Geert De Baere’s research while affiliated with KU Leuven and other places

Comparing the EU law principle of loyalty with international law good faith and the duty of federal good faith in German constitutional law ( Bundestreue ), this article contributes to the discussion on the nature of the EU legal order and its relationship to international law more generally by finding that EU loyalty is in essence a specific incarnation of the international law principle that treaties are to be interpreted in good faith. At the same time, it challenges the assumption that international law good faith differs fundamentally from federal good faith. To this end, the article points at historical links between both, and posits that good faith is in essence a principle of constructive interpretation, the strictures of which increase with the level of integration of the legal order in which it is applied.

In her foreword to the 2013 EEAS Review, High Representative of the Union for Foreign Affairs and Security Policy (High Representative or HR) Baroness Ashton likened the early days of the European External Action Service (EEAS) and its setting-up phase to ‘trying to fly a plane while still bolting the wings on’ (EEAS, 2013, p. 1). This chapter explores the legal nuts and bolts of the construction of the EEAS. An astonishing amount of law is involved. While foreign policy and law have forever been strange bedfellows (De Baere, 2012, pp. 359–360; Wessel, 2015), European integration is essentially a legalisation project (Cappelletti, Seccombe and Weiler, 1986), for the EU is a system constructed on the basis of law. It has created its own distinctive legal system, and legal niceties and practical legal implications dominate its everyday functions (Allott, 1999, p. 37, 46; De Baere, 2012, p. 364). Law also played a determining role in the fraught negotiation process setting up the EEAS (Erkelens and Blockmans, 2012; Van Vooren, 2011), and it continues to have a crucial impact on its daily functioning. At the same time, the EEAS is a groundbreaking legal construction, and as such it has had an impact on EU constitutional law, 1 which it has influenced and even transformed.

This unique compilation of materials, cases, and commentary on EU external relations law is both a valuable teaching tool for (post-)graduate courses and seminars on the foreign relations of the European Union, as well as an indispensable first initiation in the legal foundations of the external action of the Union for diplomats, civil servants, attorneys, and other practitioners. Apart from making accessible key primary materials such as EU Treaty provisions; judgments and opinions of the Court of Justice; legislation; agreements; and more obscure documents revealing the law in practice, the book includes concise, expert legal analysis of these materials. The third edition of the book incorporates more than ten years of fascinating dynamics since the entry into force of the Lisbon Treaty. Apart from analysing the general basis of the Union’s external action and its relationship to international law, the book explores the law and practice of the EU in more specialized fields of external action, such as common commercial policy, neighbourhood policy, development cooperation, cooperation with third countries, humanitarian aid, external environmental policy, and common foreign and security policy, as well as EU sanctions. The chapters contain numerous cross-references with a view to facilitating the establishment of connections between different issues and fields of law. Annotations and materials are kept to what is strictly necessary to place them in their context and to clarify links to documents presented elsewhere in the book.

This paper develops an analytical framework to assess the contribution of international and supranational courts and tribunals to the rule of law at international, regional, and domestic levels. After a brief historical overview of the rise of international adjudication, it clarifies the distinction between supranational and international bodies and explores possible interpretations of the concept of the rule of law. Subsequently, the paper places the international judiciary in its political context and analyses the institutional safeguards of the courts’ independence and impartiality. Finally, the authors provide a preliminary comparative analysis of the many ways in which international courts may arguably strengthen the rule of law and concludes by taking a closer look at the remaining challenges that the international judiciary faces today.

Second edition

The present article discusses the international legal context of the EU's emissions trading scheme in the light of the judgment of the Court of Justice of the EU in Air Transport Association of America. After ascertaining the effect in the EU legal order of the relevant international norms invoked in that case, the focus of the present article lies on the discussion of the substantive issues that arise when reviewing the scope of Directive 2008/101 in light of the applicable norms. The article assesses the legality under customary international law of the jurisdictional assertions of the EU as upheld by the Court of Justice, reviews the EU measures in light of the law of the World Trade Organization, and compares those measures with similar EU environmental measures in the field of fisheries regulation and maritime transport.

The High Representative of the European External Action Service (EEAS) is held to provide a review of the organisation and functioning of the EEAS by mid-2013. This short and user-friendly legal commentary on the 2010 Council Decision establishing the organisation and functioning of the EEAS is the first of its kind. It is intended to inform those involved in the review process and to serve as a reference document for practitioners and analysts dealing with the EEAS. Rather than an elaborate doctrinal piece, this commentary is a textual and contextual analysis of each article that takes account of; i) other relevant legal provisions (primary, secondary, international), ii) the process leading to the adoption of the 2010 Council Decision, iii) the preamble of the Council Decision, and, iv) insofar as it is possible, early implementation. Wherever relevant, cross-references to other provisions of the Council Decision have been made to tie in the different commentaries and ensure overall consistency.

This chapter examines the choice of legal basis in EU external relations post-Lisbon in the light of the judgment of the Court of Justice in the Legal Basis for Restrictive Measures case. Before reaching the conclusion that the regulation at issue there was rightly based on Article 215(2) of the Treaty on the Functioning of the European Union (TFEU) and rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, the Court made a number of important observations on the principles to be followed when choosing a legal basis and recalled some of its earlier case law, in particular Titanium Dioxide and its progeny. This chapter reflects upon the application of those principles in a post-Lisbon framework.