Thursday 10 January 2008

EU Treaty of Lisbon: CFSP competence

Strong or brittle? Feet of iron or feet of clay? The US Constitution or the Articles of Confederation? These questions deserve some thought when we look at the common foreign and security policy (CFSP) of the European Union as laid out in the Treaty of Lisbon.


Basically, you can approach the European Union from two different angles. You can try to ponder what the Union could do for its citizens: external and internal security as well as enhancing prosperity. Or you can reason from a domestic perspective.

A sincere form of ‘special relationship’ would be to emulate the success of the United States of America. The main purposes of that Union were succinctly put by Alexander Hamilton in the Federalist, number XXIII:

“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.

The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”


According to the Reform Treaty, the scope of EU competence covers all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.

We have to bear in mind the joint declarations 13 (see previous posting) and 14 (see below), which emphasize the continued freedom of Member States to pursue their national foreign and security policies, regardless of the common interest.

The common foreign and security policy (CFSP) is almost exclusively in the hands of the Member States. The European Council and the Council rule, if they can reach unanimous decisions (as a rule).

The intergovernmental nature of the CFSP means that democratic scrutiny by the European Parliament and judicial review by the Court of Justice are nearly completely excluded. (The external action of the Commission is placed under intergovernmental tutelage.)

If not overridden by national policies or paralysed by dissenting views and vetoes, the Union conducts, defines and implements the CFSP, meant to lead to increasing convergence of Member States’ actions in the long run. The loyalty, solidarity and compliance of Member States are keys to effective common action on the world stage.


The Treaty of Lisbon (OJ 17.12.2007, C 306) amends Article 11 TEU. In the consolidated version paragraphs 1 and 2 have replaced the existing paragraph 1, and the present paragraph 2 has been renumbered paragraph 3 and amended slightly.

Article 11

1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.

The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 25b of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 240a of the Treaty on the Functioning of the European Union.

2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.

3. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.

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 and the High Representative shall ensure compliance with these principles.


Joint Declaration (number 14) concerning the common foreign and security policy continues in the same vein as Declaration 13 to subtract from the consistency of common policy by underlining the independent policies of the Member States, especially the Members of the UN Security Council, and the intergovernmental nature of the policies the Member States happen to agree on, as well as the “specific nature” of the Member States’ security and defence policy:

“In addition to the specific rules and procedures referred to in paragraph 1 of Article 11 of the Treaty on European Union, the Conference underlines that the provisions covering the Common Foreign and Security Policy including in relation to the High Representative of the Union for Foreign Affairs and Security Policy and the External Action Service will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State’s membership of the Security Council of the United Nations.

The Conference also notes that the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament.

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.”


Next time we look at the foreign policy instruments of the EU.

Ralf Grahn

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