The Law of EU External Relations: Cases, Materials, and Commentary on the EU as an International Legal Actor
... 25 There is an abundance of literature on the development of EU external relations law. Just to name one example, see Kuijper et al. (2013). For a focus on the case law, see Butler and Wessel (2022). ...
Since its establishment in the early 1950s, the European Court of Justice, seated in Luxembourg, has played a key role in managing and developing the European integration architecture. Yet, with subsequent developments, the Luxembourg Court appears to have gained even more importance, particularly in the constitutionalization of the European integration process. Today, this has reached such an extent that one can ask whether all roads lead to Luxembourg rather than to the political EU institutions in Brussels and beyond, or to the capitals of the EU Member States. The present paper, based on an annual lecture in honour of Professor and Foreign Minister Krzysztof Skubiszewski, seeks to provide examples of areas where the case law of the Court has been particularly consequential and to explain why the Court has become more influential. However, the paper concludes by arguing that the role of the Court should not be overstated and that, in any case, its enhanced role is explained by many constitutional and legislative developments beyond the control of the Court itself. Moreover, the reader will be reminded that the Union’s judicial system is not limited to the two Union Courts (the Court of Justice and the General Court) but that its backbone is formed by the national courts of the Member States.
This Chapter examines the relationship between European Union (EU) external relations law, sustainability, and the role of China in advancing global sustainable development goals. The Chapter analyzes the EU’s approach to engaging China in its external relations and explores the potential for collaboration on sustainability issues. Additionally, it identifies key challenges and opportunities in the EU-China relationship concerning sustainability, offering insights into the legal and policy dimensions. By focusing on the specific dynamics between the EU and China, this chapter contributes to the academic discourse on EU external relations law. The main findings highlight the potential of EU-China collaboration on sustainability while emphasizing the need to strengthen the legal framework, address geopolitical tensions, enhance climate change cooperation, promote regulatory convergence, and balance economic and environmental interests for a more sustainable relationship.
This chapter identifies and analyzes recent legal developments in arguably one of the most dynamic areas of EU external action, namely, restrictive measures. Drawing on the extensive research in this area, the chapter briefly outlines the concept of sanctions and their typology in the EU context, before exploring how these measures are imposed and implemented. It then examines current issues relating to the legality of restrictive measures and compensation under EU law, as they emerge from the recent case law of the European Courts. Particular attention is paid to targeted measures against individuals, as these have increased sharply in response to the illegal Russian invasion of Ukraine.
Collective self-defence can be defined as the use of military force by one or more states to aid another state that is an innocent victim of armed attack. However, it is a legal justification that is open to abuse and its exercise risks escalating conflict. Recent years have seen an unprecedented increase in the number of collective self-defence claims. It has been the main basis for US-led action in Syria (2014-) and was advanced by Russia in relation to its full-scale invasion of Ukraine (2022-). Yet there still has been little analysis of collective self-defence in international law. This book crucially progresses the debate on various fundamental and under-explored questions about the conceptual nature of collective self-defence and the requirements for its operation. Green provides the most detailed and extensive account of collective self-defence to date, at a time when it is being invoked more than ever before.
Considering the three different approaches that have characterized the evolution of the EU’s enlargement policy, this chapter will show that the ‘duty of solidarity’ that permeated previous enlargements toward Eastern Europe has given way to a strong focus on the principle of ‘fundamentals first’ in the accession process of Western Balkan countries. Consisting mainly in the transfer of justice and home affairs (JHA) acquis and crime control policies aimed at respecting the rule of law principle, the current enlargement process has relegated these countries to a partnership ‘limbo’. In particular, we intend to show that despite strong conditionality in the JHA domains, the previous enlargement processes have ended up affecting the EU’s core values, and in turn, the accession methodologies and strategies toward the Western Balkans, rendering the European ‘perspective’ almost a mirage.KeywordsEnlargement policyExternal actionRule of lawSecurity strategySolidarityEU values
Hoffmeister and Bruckert review how the EU’s High Representative for Foreign Affairs and Security Policy used his constitutional powers under Article 18 TEU in recent practice. They show his increasing role in conducting the CFSP by shaping decisions and representing the Union internationally. He has by now also intervened in external relations cases before the European Court of Justice and has contributed to the coordination of Member State interventions before the International Court of Justice. As Chairman of the Foreign Affairs Council, he has invited foreign ministers from third States more often and plays an important role as chairman of Association Councils. Finally, some examples of his coordination function on external action within the Commission are discussed. The authors conclude that the High Representative has become an ever more powerful institutional actor in the foreign policy domain of the European Union.
Articles 143 and 144 TFEU contain the safeguard clauses which can be invoked to adopt balance of payments measures. A country’s balance of payments is the difference between all money flowing into the country and money flowing out of the country in a particular period (usually as receipts and payments by natural and legal persons for goods and services). Since 1 January 1999, which marks the beginning of the third stage of EMU, the safeguard clause to remedy crises in the balance of payments is only applicable to those MS outside the euro area.
This chapter introduces the legal dimension of the EU as an international actor. We define this notion as an entity which interacts with third countries and international organisations (and even its own Member States) in ways which are legally and politically distinguishable from its constitutive Member States. In the global context, this entity thus has a stand-alone identity composed of values, interests, and policies which it seeks to define and promote internationally as its own. • This chapter shows the importance of legal rules in organising EU international action and indicates that EU external relations law consists of an internal and an external dimension. In its internal dimension it consists of the set of rules which govern the constitutional and institutional legal organisation of this legal entity in pursuit of its interests in the world. The external dimension comprises the rules governing the relationship of the European Union with the international legal order in which it is active. • In order to study EU external relations law in all its complexity, this Chapter provides an overview of the architecture of EU external relations. It outlines the existence of the European Union as an international organisation with legal personality, which exists legally distinctly from its Member States. It also shows that the European Union is based on the Treaty on European Union and the Treaty on the Functioning of the European Union, which each contain crucial legal principles constituting the body of EU external relations law. • Finally, in order to carry out its external action , the European Union needs actors to make the decisions and represent the EU at the global stage. These include the EU institutions, but also other key players in the law of EU external relations.
The Eurasian Economic Union (hereinafter ‘EAEU’) is a new international organization established in the post-Soviet space. It is based upon past regional integration initiatives, but also claims to follow best European Union (hereinafter ‘EU’) practices. One of the clearest indications thereof in the legal field is the abundance of references to the case law of the Court of Justice of the European Union, which can be found in the rulings of the EAEU Court. The dissertation explores the legal nature and functioning of the EAEU by taking the theoretical framework of legal order autonomy, which is largely associated with the EU and the case law of its Court of Justice. Therefore, the aim is to find out whether the EAEU can be qualified as an autonomous legal order. This research has developed a number of indicia of internal and external legal order autonomy, which, in the absence of a definition of the latter, has proven to be a useful tool to unpack the complex legal system and functioning of the EAEU. Whereas the indicia are manifestations of legal order autonomy, there are certain essential preconditions, which must be met first, i.e. the existence of a legal order and international legal personality. Chapter 1 further identifies the following indicia of legal order autonomy: self-referential character of law; supranational judicial mechanisms (a mechanism ensuring uniform application and interpretation of law in all member states and a mechanism ensuring exclusive jurisdiction); supranational effect of legal norms (direct effect and primacy); interpretation of distribution of powers; and institutional supranationality. The next chapter sets out the historical background, evolution, and context of Eurasian integration, including the legal nature of the EAEU and the entities it has been built upon. Four relevant stages of Eurasian integration have been identified in Chapter 2. It is demonstrated that although there were many failures along the way, Belarus, Kazakhstan and Russia managed to create a rather viable core capable of pushing integration forward and eventually formalize it in the EAEU Treaty. Chapter 3 explores the functioning of the EAEU in terms of its institutional structure and decision-making, with a particular focus on the Eurasian Economic Commission as the main regulatory body of an alleged supranational character. This research challenges this idea of supranationality by uncovering the predominantly intergovernmental mode of operation not only of the EAEU as such, but also of the Commission. The chapter also focuses on the structure of the Court as the major institution on which legal order autonomy depends. It was demonstrated that the history of its establishment and the rules regarding its formation raise the question of judicial independence. Thereafter, this research focuses on the powers of the EAEU. Similarly to the EU, the principle of conferral is the basis of the EAEU’s functioning, and a number of areas fall under its exclusive competence. However, the range of such powers is rather limited and there is no clear typology of competences. Specific attention is devoted to the doctrine of implied powers as a manifestation of the Court’s ability to interpret distribution powers and the attempt of the Member States to curtail this option on the basis of the EAEU Treaty. Chapter 4 demonstrates that the EAEU Treaty provisions do not in effect preclude the Court from finding a balanced approach to the implied powers. Therefore, it is enabled to exercise its authority to interpret competences in this respect and enhance legal order autonomy. In Chapter 5, the EAEU legal system is further explored. It is found that the EAEU Treaty established its own legal order and its sources under the heading of ‘Union Law’. However, the hierarchy of rules and even the legal force of some of the acts is not always clear. Further, a problematic issue concerns the compatibility between the national constitutional law of EAEU Members and their obligations under the EAEU legal framework, especially in the cases of Russia and Belarus. The former has rather activist courts, which have and still can challenge the authority of the EAEU Court; while the latter effectively allows for the Constitutional Court to check the compatibility of decisions of the Commission with national laws and decrees. It is argued in this chapter that some of the concerns can be mitigated through an increased interinstitutional dialogue between the judicial authorities and a ‘living document’ constitutional interpretation. The ability of the EAEU Court to fulfil its aim of ensuring uniform application and interpretation of Union law is the main focus of Chapter 6. It is illustrated that some basic judicial remedies available in the EAEU are similar to those in the EU. However, most importantly, it is also established that procedures, crucial for legal order autonomy, are absent and no suitable substitutes to replace them are available. Thus, there is no viable mechanism ensuring uniform application and interpretation of Union law in all Member States; and the Commission cannot challenge Member States’ infringements in the Court. It is argued in the chapter that these challenges are the hardest to overcome. Nevertheless, it is demonstrated that, in particular, regardless the absence of a provision on exclusive jurisdiction, the Court’s kompetenz-kompetenz to determine its jurisdiction coupled with the duty of loyal cooperation can play a key role in establishing it. Further, it is argued that the limitation on the creation of new norms by the Court is virtually impossible to uphold in practice. Overall, this research demonstrates that the EAEU fulfils certain requirements of an autonomous legal order. In the first place, it complies with the essential preconditions through its system of Union law and international legal personality. There are also certain manifestations of the indicia of legal order autonomy. In particular, the supranational effect of legal norms is manifested in an established direct applicability of a range of rules: the EAEU Treaty establishes direct applicability of Commission decisions and the Court has already interpreted competition law provisions as well as certain international agreements as directly applicable. It does not automatically mean that this will lead to the recognition of a full-fledged direct effect in the legal order of EAEU Member States, although the Court is seemingly moving in this direction. The Court has also started incorporating the discourse of primacy in its rulings, which is not necessarily in line with the approach of the Member States’ judiciary. Nevertheless, the lack of an advanced mechanism ensuring uniform application and interpretation of Union law in all Member States (i.e. preliminary ruling) is the gravest concern for legal order autonomy as it endangers the ability of the legal order for self-maintenance. Moreover, coupled with the Commission’s inability to prosecute Member States, this increases the risk of misapplication of Union law and fragmentation of the legal system. The Court is also limited in its ability to interpret the powers of the Union as certain of its interpretations can be overruled by the Member States, and there is a clear restriction on vesting institutions with new powers (i.e. implied powers). However, this research demonstrates that the former has its limits and the latter can be overcome without encroachment on the principle of attributed powers. Institutional supranationality is almost non-existent in the EAEU, with the exception of the Commission Board and the Court. The issue whether Union law is of self-referential character is more controversial and is subject to continued monitoring of the development of the EAEU legal discourse. However, there are indications that favour this reading at least when the internal dimension of legal autonomy is concerned. To conclude, the EAEU legal order is without doubt far from the same type of legal order autonomy developed in the case law of the Court of Justice of the European Union. The EAEU possesses a number of similar autonomy features allowing to say that the organization has a limited autonomy of the legal order. Nevertheless, it has troubles demonstrating some of the indicia. Even though this research demonstrates that certain limitations can be mitigated through interpretation, others are beyond the scope of pure interpretative powers and require Treaty amendments.
This major new textbook for students in European law uses a text, cases and materials approach to explore the law, politics, policy and practice of EU external relations, and navigates the complex questions at the interface of these areas. The subject is explored by explaining major constitutional principles, and elaborating upon them in policy-specific chapters ranging from common commercial policy and development policy over CFSP/CSDP and AFSJ to energy and enlargement policy. Specific attention is given to the relationship between European integration, the role of law, and the EU as an effective international actor. Designed for easy navigation, chapters include key objectives, summaries and textboxes, which frame key issues and guide the reader through the functioning of legal principles. Students gain a detailed understanding of the historical development, context and present functioning of EU external relations law in a highly politicised European and international environment.
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