The law of EU external relations : cases, materials, and commentary on the EU as an international legal actor

913 Pages·2015·7.34 MB·English

by  Pieter Jan Kuijper

THE LAW OF EU EXTERNAL RELATIONS

The Law of EU External
Relations
Cases, Materials, and Commentary on the EU
as an International Legal Actor
Second Edition
PIETER JAN KUIJPER
JAN WOUTERS
FRANK HOFFMEISTER
GEERT DE BAERE
AND
THOMAS RAMOPOULOS
3
3
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© PJ Kuijper, J Wouters, F Hoffmeister, G De Baere, and T Ramopoulos 2015
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First edition published in 2013
Second edition published in 2015
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Foreword
This volume of annotated documents and judgments relating to the foreign relations
powers of the European Union (EU) and the practice of the Union in the field of interna-
tional law and organizations has a double purpose.
First, it can serve as a teaching tool for a course or a seminar on the foreign relations
powers of the EU and on how these powers are used in practice. Especially in this field,
where so much of the law is determined by judgments and opinions of the Court of Justice
of the EU and by documents that lay down the interpretation or application of that law
by one or more institutions of the Union, there is hardly a better way to study the subject
than directly from the documents and the cases themselves. There are already several
good monographs and introductory manuals on the subject matter that have appeared on
the market in the past few years. We hope that this book can serve as a suitable companion
volume to them.
Second, the book also offers to diplomats and other practitioners in the field of the
external relations of the EU an indispensable first initiation in the legal foundations of
what after the Treaty of Lisbon is called the external action of the Union. Without having
some understanding of that legal foundation, it is impossible to operate effectively in the
field of EU external action.
We have sought to combine chapters on the general basis of the Union’s external action
and its relationship to international law (Chapters 1–5 and 12–13) with chapters which
further explore the law and practice of the EU in the specialized fields of external action,
such as common commercial policy, development cooperation, cooperation with third
countries, humanitarian aid, enlargement and neighbourhood policies, external envi-
ronmental policy, and common foreign and security policy, as well as a chapter specifi-
cally dedicated to EU sanctions and countermeasures (Chapters 6–11). In addition, the
chapters contain numerous cross-references with a view to facilitating the establishment
of connections between different issues and fields of law. This structure will enable lec-
turers to make their own choice from these specialized policy areas to complement the
general chapters and to orient their courses as they wish. It will also allow the practitioner
to target the specific policy area that he or she has to become familiar with in a short space
of time and, if necessary, to refer back to the general chapters for additional background
material.
In choosing the primary materials, the authors have been careful to select, also in the
chapters on the general legal foundations of EU external action, extracts that can be seen
as representative of a larger category of documents. Thus, in the chapter on mixed agree-
ments, for example, both bilateral and multilateral mixed agreements have been picked
so as to be representative of the larger group of these two variants of mixed agreements.
The authors have made an effort to limit the annotations of the cases and materials to
what was strictly necessary to place them in their context and to clarify links to docu-
ments presented elsewhere in the book. If we have truncated cases and documents, it has
been with a view to omitting what was superfluous or repetitive in the light of the place
and function of the extract in the overall collection.
The original idea for this collection of cases and materials came from Pieter Jan Kuijper
and Frank Hoffmeister, shortly after the former’s departure from the External Relations
and Trade team of the Commission Legal Service for the University of Amsterdam. They
vi ForeworD
involved Professor Jan Wouters in the project right from the beginning. A first selection
of documents took shape during 2009–10. For her help during this first phase of the pro-
ject, the authors owe many thanks to Ms Serena Egidi, at the time student assistant at the
Faculty of Law of the University of Amsterdam.
When a second effort had to be made to revise and expand this first draft, precious
assistance in manpower was forthcoming from Jan Wouters and his Leuven Centre for
Global Governance Studies. Geert De Baere joined the team and Thomas Ramopoulos
proved himself so valuable as an editorial assistant that in the end he became an author in
his own right. His energy and staying power have been crucial to the final completion of
the project. Finally, the authors wish to thank Oxford University Press and the editorial
staff for International and European Law under John Louth for encouragement and sup-
port throughout the process of preparing the book.
We hope that this book will find its way into the hands of all who are interested in the
external action of the EU and its practice in the fields of international law and interna-
tional organizations. We would be happy to receive any corrections, remarks, and sug-
gestions that our readers may care to provide. The book represents the state of the law up
to 1 January 2013.
The authors
Foreword to the Second Edition
In the slightly more than two years since the first edition, the domain of EU external rela-
tions has been subject to such important developments in such number that waiting any
longer with a new edition did not seem possible. There has been a baker’s dozen of impor-
tant judgments coming out of Luxemburg, going all the way from the dramatic (Opinion
2/13, declaring the accession treaty of the EU to the ECHR unacceptable in its present
form) to the simply useful (Judgments in Case C-414/11, Dai-Ichi-Sankyo and in Case
C-137/12, Commission v Council, confirming that new Article 207 TFEU on the common
commercial policy means what it says about trade in services and trade-related intellec-
tual property rights). Moreover, important new legislation has been enacted, notably in
respect of foreign direct investment, and existing legislation has been adapted to the new
Lisbon rules on delegation of legislative and implementation powers (Articles 290 and 291
TFEU), a development with potentially revolutionary impact on the field of external rela-
tions, which hitherto had been barely subjected to the old rules on ‘comitology’.
All these developments the reader will find reflected in the following pages. However,
old material has been removed and existing material has been pruned and streamlined
so as to render this book more manageable and accessible to the student and practitioner
alike. The book has thus shed about 20 per cent of its volume. This is in conformity with
the wish of many of our readers and reviewers. We thank them all for their useful remarks
and suggestions and hope to continue to receive more of them, in the interest of future
editions of this book. The collaboration with the International and European Law depart-
ment of OUP has, once again, been exemplary.
The authors

Contents
Table of Cases  xiii
Table of Statutes  xxi
List of Abbreviations  lxiii
1. Personality and Powers of the EU  1
1.1 The classical cases before the Treaty of Lisbon: erTA and Laying-up Fund  1
1.2 Further jurisprudential development  8
1.3 Codification  12
1.4 Post-Lisbon case law  13
2. International Representation of the EU  21
2.1 Introduction  21
2.2 Historical evolution  21
2.3 International representation after Lisbon  24
2.3.1 Constitutional principles applying to the international
representation of the EU  24
2.3.2 Institutional framework for the international representation of the EU  26
2.4 Diplomatic relations of the eU  40
2.5 representation of the eU in judicial proceedings  48
3. Treaty-making Procedures  55
3.1 Historical evolution  55
3.2 Negotiations  57
3.3 Signature  72
3.4 Conclusion  73
3.5 Provisional application  82
3.6 Suspension  84
3.7 Position of the eU in respect of a draft decision having legal effects to
be taken by a treaty body or an organ of an international organization  86
3.8 Termination of agreements  88
3.8.1 Constitutional principles in the Member States  88
3.8.2 EU practice  90
3.8.3 Institutional balance between EU institutions  91
3.9 Advisory opinions of the Court of Justice  92
3.10 Non-legally binding agreements (Memoranda of Understanding)  95
4. Mixed Agreements  101
4.1 Introduction  101