(35) EU Constitutional Law

 Foreign & security policy at EU level

Common Foreign and Security Policy (CFSP)



Under the ToL the intrinsic dualism of the EU’s foreign policy remains in that external action under the TFEU is conducted in accordance with the “EU method” and the CFSP is “subject to specific rules and procedures” (Article 24 TEU), i.e. the intergovernmental method. However, the ToL establishes new institutional arrangements and mechanisms aimed at enhancing the coherence and efficiency of EU external action. Innovations introduced by the ToL aimed at improving the coherence of EU foreign policy.

The main innovations are:

The creation of the post of the High Representative of the Union for Foreign Affairs and Security Policy (HR);

The establishment of the European External Action Service (EEAS);

The ability for the European Council to make determinations of “strategic interests and objectives” for all EU external action;

The creation of the post of the President of the European Council who exercises external representative responsibilities.


The principles and objectives of EU foreign action.



The ToL refers to the EU’s external action as comprising all its policies towards the wider world and sets out the principles and objectives applicable to all areas of EU foreign action whether provided for in the TFEU or the TEU. The principles are those which have inspired the creation, development and enlargement of the EU. The objectives are listed in Article 21(2) TEU.

The CFSP. The European Council and the Council are the main decision making bodies within the CFSP. The main role of the European Council is to “identify the Union’s strategic interests, determine the objectives of and define general guidelines” for the CFSP as well as to decide on the EU strategy when facing international crises. The Council “shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council”. However, neither the European Council nor the Council are empowered to adopt legislative acts in respect of any CFSP matters.

The European Council acts by unanimity, so does the Council, subject to exceptions concerning mainly decisions implementing the European Council guidelines and the potential use of the “passerelle clause”. The Commission, resulting from the HR being ex officio Vice President of the Commission, is fully associated with the CFSP. It is the HR, not the Commission, who has the right to initiate proposals in the CFSP areas. The EP is consulted and kept informed. The ECJ has no jurisdiction under the CFSP but it is required to ensure that the CFSP does not encroach on other EU policies and vice versa, and has jurisdiction to review the legality of sanctions imposed against natural and legal persons under the CFSP. As to the Member States they are required to implement measures adopted by the Council, co-operate with each other and “actively and unreservedly in a spirit of loyalty and mutual solidarity” support the CFSP.


 The Common Security and Defence Policy (CSDP). The ToL has:


Extended and enhanced the objectives of the CSDP;  

Introduced the “mutual defence clause” and the “solidarity clause”;

Established new procedures to finance “urgent initiatives” under the CFSP, and in particular preparatory activities for CSDP missions, i.e. measures ensuring rapid access to the EU budget and the creation of a “start-up fund”;

Provided for the possibility of the Council to entrust the implementation of a CSDP operational task to a “coalition of willing and able States”;

 Established the European Defence Agency (EDA);

Introduced more flexibility as to the establishment and subsequent development of the “permanent structured co-operation”;

Expanded the Petersberg tasks to include joint disarmament operations, military advice and assistance tasks, conflict prevention and post-conflict stabilisation.

The Assessment of the CFSP. Under the ToL the CFSP has the potential to have a stronger political profile and an increased capacity to act consistently on the international stage. The main mechanism for ensuring this is the creation of the post of HR who has the necessary power under the Treaties, a substantial budget and a diplomatic corps, i.e. the EEAS, and who is empowered to speak on behalf of the EU, even in front of the UN Security Council.

The EU is often described as an economic giant but a political dwarf. Its economic weight in the international arena has not been matched by an equal gravitas in international politics. This dichotomy can be explained by historical reasons. From its inception the Community was a “civilian power”, that is, an organisation implicitly rejecting power politics and concentrating on the economic aspects of European integration. In reality, it lacked military capacity to conduct a defence policy. This aspect of European affairs was developed mainly within the framework of NATO. The collapse of Communism, the reunification of Germany and the American policy of burden-shedding in military matters have changed perspectives on Europe’s future foreign and defence policy. However, the realistic objective of the common foreign and security policy for the EU was and remains more to agree on a common position in international policy (that is, to speak with one voice) than to achieve a unified foreign policy conducted by supranational bodies, with the EU raised to the status of a superpower. This is because Member States are not currently willing, and may never be willing, to give up their exclusive power to conduct national and foreign policies as they wish. In particular, Member States which have a substantive military capability do not wish to lose the power and influence which that capability affords them in the international arena.

Prior to the entry into force of the ToL, the external action of the EU was conducted within Pillar 1 in accordance with the “Community method” [now “EU method”] and in Pillars 2 and 3 in accordance with the intergovernmental method. Although the ToL abolished the Pillar structure the distinction between the Community method and the intergovernmental method remains. Article 24 TEU states that the Common Foreign and Security Policy (CFSP) and its vital component, the European Security and Defence Policy (ESDP), which has been renamed by the ToL and is now called the Common Security and Defence Policy (CSDP), is “subject to specific rules and procedures”, i.e. the intergovernmental method. This results in provisions relating to the EU foreign policy to be found in both the TFEU and the TEU. With regard to the TFEU, some foreign policies are expressly covered by its provisions, e.g. trade, development assistance, other forms of co-operation with third states, humanitarian aid, neighbouring policy, enlargement and diplomatic and consular protection of EU citizens when in a non EU country where their own state has no representation, others are based on the doctrine of implied powers. The TEU contains mainly rules concerning the CFSP including the CSDP.

One of the main objectives of the reform leading to the adoption of the ToL was to enhance the coherence of the EU’s foreign policy, i.e. to make the EU’s external action more efficient and effective within the existing division between intergovernmental CFSP and the Community áreas of foreign policy. The option of applying the “Community method” to the CFSP was nonexistent. For example the British Government clearly stated its position in its 2007 White Paper entitled “The Reform Treaty: The British Approach to the European Union Intergovernmental Conference” that a condition of signing of the ToL was “the maintenance of the UK’s independent foreign and defence policy”. In those circumstances the ToL represents a step towards greater coherence both in terms of the location in the EU’s Treaty architecture of provisions relating to the external action of the EU and in terms of establishing new institutional arrangements and mechanisms with a view to maximising EU influence and presence on the global stage.

With regard to the ToL’s architecture, a new Chapter I of Title V on “General provisions on the Union’s external action” has been inserted into the TEU which sets out principles and objectives applicable to all provisions relating to EU external action irrespective of whether those provisions are located in the TFEU or the TEU. However, the splitting of provisions on the EU’s external action into those governed by the “EU method” (which are located in the TFEU) and those to which the intergovernmental method applies (which are contained in the TEU) has not been complete. Some provisions of the TFEU are relevant to the CFSP (e.g. those relating to enhanced co-operation, those concerning the new “solidarity clause”and the provisions on the imposition of economic sanctions on natural and legal persons) and vice versa. With regard to institutional innovations the most important is the establishment of the post of a High Representative of the Union for Foreign Affairs and Security Policy (hereafter the HR) who ensures the uniform external representation of the EU, i.e. the HR is the single face and voice of the EU on the world political stage.


Innovations introduced by the ToL aimed at improving the coherence of EU foreign policy


The main innovations are: the creation of the post of the HR, the establishment of the European External Action Service (EEAS) and the ability for the European Council to make determinations of “strategic interests and objectives” for all EU external action. However, it is uncertain whether the allocation of external representative responsibilities to the President of the European Council in respect of the CFSP will contribute to the efficiency of the EU’s external action although he will certainly ensure the continuity of all work of the European Council including that relating to the external affairs of the EU.

Creation of the post of the HR


The procedure for appointment of the HR is as follows: the European Council acting by a qualified majority, with the agreement of the President of the Commission, appoints the HR. Subsequently, the HR, the President of the Commission and the Commissioners must be approved by the EP by a vote of consent. The first HR, Baroness Catherine Ashton, was appointed in accord with this procedure in November 2009 for a five year term.

The holder of the post wears three hats:

She is the Vice-President of the Commission and, as a member of the Commission, responsible for External Relations and European Neighbourhood Policy. The position of the HR in the Commission is very strong in that the HR is the only Vice-President and the only Commissioner who is appointed ex officio (although subject to the approval of the President of the Commission) and the only Commissioner who cannot be forced by the President of the Commission to resign. However, the EP has the right to apply a motion of censure on the entire Commission, including the HR. Further, the European Council, with the approval of the President of the Commission, may end the HR’s term of office. It is to be noted that the HR is bound by Commission procedures to the extent that this is consistent with the tasks carried out by her within the CFSP. Under Article 18(4) TEU, the HR as a Commissioner, is “responsible within the Commission for responsibilities incumbent upon it in external relations and for co-ordinating other aspects of the Union’s external action”. This entails that she exercises authority over European Commission delegations (to more than 100 countries and many international organisations), which under the ToL, became EU delegations.

She replaces the High Representative for the Common Foreign and Security Policy, a post created under the Treaty of Amsterdam which was assigned to the Secretary General of the Council. The post of Secretary General of the Council has become a separate post from that of HR.

 Within the framework of the CFSP, the HR:

Ensures unity, consistency and effectiveness of EU action relating to the CFSP acting in co-operation with the Council and the Commission;

Assists the Council in all matters relating to the CFSP;

If requested, acts on behalf of the Council in conducting political dialogue with third parties;

Ensures the implementation of CFSP decisions together with the Council and the Member States;

Refers any question, initiative or proposal on the CFSP to the Council;

Represents the EU externally in all CFSP matters including before the UN Security Council;

Regularly consults the EP;

Has the right to propose the appointment of EU Special Representatives, who are accountable to her, with a mandate in relation to particular policy issues (Article 33 TEU);

Is responsible for facilitating the harmonisation of Member States’ views on the CFSP;

Fulfils many other tasks which are set out in the aide-mémoire to this chapter.

She is the President of the Foreign Affairs Council. In this capacity, the HR has the right to make proposals to the Council and the right to convene extraordinary meetings of the Foreign Affairs Council at either her own initiative or that of a Member State. Views differ as to whether it is a good idea to submit proposals to a body which one chairs. By merging three posts, the ToL ensures uniform external representation as well as greater coherence and unity in the conduct of EU foreign policy. However, some Member States fear that too much power has been vested on one individual. In this respect it can be said that with regard to the CFSP the HR only supervises the implementation of measures adopted by the European Council and the Council acting unanimously, This is clearly stated in Declaration 14 attached to the Treaties which provides that the provisions of the CFSP, including those relating to the new post of HR:. . . “will not affect the existing legal basis, responsibility 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 organizations, including a Member State’s membership of the Security Council of the UN.”

Declarations 13 and 14 emphasise that the ToL will not give any new powers to the Commission or the EP, and that defence and security matters are within the exclusive competence of each Member State.

If the Member States do not all agree on a common policy with regard to a particular international issue, the HR will have no reason to exercise her power of implementation. However, if there is agreement between the Member States to present a common front on a particular issue, the voice of the HR (being the voice of 27 countries) will carry enormous weight.


 Establishment of the EEAS


In order to assist the HR is performing her task, the ToL has created a new body, the European External Action Service (EEAS). This body, accountable to the HR, will be made up of officials from the relevant departments of the General Secretariat of the Council and of the Commission as well as diplomats from the Member States. The organisation, structure and functioning of the EEAS will be established by a decision of the Council, acting on a proposal from the HR after consulting the EP and obtaining consent from the Commission. The EEAS will also assist the President of the European Council, the President of the Commission and Commissioners in the area of external relations, and will work in close co-operation with the diplomatic services of Member States. The creation of the EEAS was as controversial as the creation of the post of HR, in that it has been submitted that the EEAS will, in fact, be the beginning of a European foreign service and thus will constitute a threat to the national foreign services of the Member States.


The power of the European Council to make determinations under Article 22 TEU


Under Article 22 TEU the European Council has the ability to make determinations of “strategic interests and objectives” for all EU external action. Such determinations 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” (Article 22(1) TEU). The determinations will be made by the European Council on a recommendation from the Council to which the HR for the CFSP and the Commission for non-CFSP foreign policy may submit joint proposals.

The powers of the President of the European Council in EU external action

One of the main tasks of the President of the European Council, a new position created by the ToL, is to “provide impetus” for the work of the European Council, to ensure “the preparation and continuity” of its work and to facilitate cohesion and consensus within the European Council. Thus he has a great influence on the work of the European Council in all areas of EU activity including its external action which are defined in Article 22 TEU. The President of the European Council is also entitled to convene extraordinary meetings to deal with new international developments. Further, without prejudice to the powers of HR, the President of the European Council ensures the external representation of the EU on issues concerning the CFSP. At the time of writing, it is uncertain whether the allocation of external representative responsibilities to the President of the European Council will enhance the coherence of EU external action or will became a source of confusconfusion internally and externally and even a source of conflict between the HR and the President.



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