1. TAMARA ĆAPETA JEAN MONNET CHAIR FACULTY OF LAW, UNIVERSITY OF ZAGREB 2014 The External Powers of the EU

2. Division of powers in external relations Unlike most federal states, in which external power is exercised by federation, in the EU external power is shared between the EU and its Member States division of powers between the EU and its Member States is complex and constantly changing When can EU act in international relations?

3. Legal personality Article 47 TEU : “The Union shall have legal personality.” EU has legal personality since Lisbon Treaty Untill Lisbon treaty, European Communities had legal personality Legal personality means, among other, that EU is legal subject in international relations

4. Principle of conferral EU has powers to regulate only those relations for which Member States have transferred a competence Applicable also in the field of external powers To enable the EU to conclude an international agreement, Treaty needs to contain a legal basis which authorizes EU to do so If the legal basis does not exist, an international agreement concluded by the EU is legally invalid

5. Principle of conferral in international relations EU can sign an international agreement  When the Treaty expressly grants external powers – express powers  When the Treaty is silent about the possibility of signing an international agreement, but there is a power to regulate this area internally– implied powers Wide EU powers in international relations, based on the doctrine of implied powers, are largely the result of case-law, starting with the case ERTA (1971.)

6. Codification of case law by the Lisbon Treaty? Article 216 TFEU 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

7. Express external powers Sector-by-sector approach: external aspect today mentioned in different ways in different policy areas, but not in all Lisbon Treaty has increased number of such areas: CCP and common customs tariff, agriculture, movement of capital and payments, transport, monetary policy, education and vocational training, culture, public health, trans-European networks, research and technological development, cooperation in the field of environmental protection, development cooperation, humanitarian aid, economic and financial cooperation with third countries, association agreements

8. Implied external powers 2 separate questions:  Has the EU external power in certain field?  Is this power exclusive or shared?

9. Does the EU possess implied power ? Case ERTA: Existence of external power linked to the adoption of internal measures Later case-law: - EU has external power whenever there is an internal power, even if the internal power was not yet exercised (no internal measures were yet adopted)

10. Exclusive or shared power? Exclusive power – means that Member States have lost the power to regulate certain issue on the international level – the EU only can sign an international agreement In some areas in which power is expressly provided, the Treaty expressly provided for exclusivitiy (eg. Customs treaties) Shared power – means that certain issue may be regulated internationally by both, the EU and the Member States Shared powers become exclusive in certain situations

11. When an EU external power becomes exclusive? ERTA – when the EU has enacted internal measures implementing certain policy, the external power is exclusive Later case-law– additional conditions for the power to become exclusive Case-law since the mid-1990s: presumption of shared powers

12. Exclusive external powers in Lisbon Treaty Article 3/2 TFEU: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.”

13. Case-law after the Lisbon Treaty Opinion 1/13 – confirmation of the continuation of the ERTA case law Case C-399/12 Germany v Council (OIV) - if EU is not a member of an international organisation, the Member States who are members have to adopt common position not to influence EU internal policies

14. Parallel powers In certain areas, powers of the EU and of the Member States exist simoultaneously:  Development policy  Humanitarian aid

15. Political importance of shared powers Justification for conclusion of mixed agreements Mixed Agreements: international agreements in which both EU and its Member States appear as a party on the same side of the agreement Example: all Stabilisation and Association Agreements For entry into force of such agreements, EU and each Member State has to ratify them Important for states in order to retain international visibility and control international legal commitments

16. Mixed Agreements EU must conclude an agreement together with its Member States if such agreement relates also to issues for which EU lacks competence EU may conclude an agreement together with its Member States if it has competence in the area which agreement covers, but such competence is shared with its Member States. EU may sign such agreements without the participation of Member States as parties

17. Procedure for signing international agreements Article 218 TFEU Actors:  Commission or High Representative: initiate and negotiate  Council: gives negotiating mandate, signs and ratifies internally (by unanimity or qualified majority)  European Parliament – consent or consultation  A priori control by the CJEU – Article 218/11 TFEU

18. Importance of the EU external dimension “To foster growth, the EU must encourage trading in open, fair markets worldwide, within a rule-based international framework.” Thus, Strategy 2020 necessarily also has its external dimension: International trade relations organised via multilateral and bilateral trade agreements and participation in international trade organisations (WTO) Externalising certain aspects of EU internal policies (as energy, environmental protection, R&D, agriculture, transport) Providing aid to developing countries Participation in economic and financial international fora, such as G7, G 20

19. Multiannual financial framework 2014-2020 External Action The total amount agreed for the external relations package is €51,419 million over the period 2014-2020 Four policy priorities: enlargement, neighbourhood, cooperation with strategic partners and development cooperation. Instrument for Pre-accession Assistance (IPA):€11,699 million European Neighbourhood Instrument (ENI):€15,433 million Development Cooperation Instrument (DCI):€19,662 million Partnership Instrument (PI):€955 million Instrument contributing to Stability and Peace (IfSP):€2,339 million European Instrument for Democracy & Human Rights (EIDHR):€1,333 million

20. Conclusions EU has wide external powers, which allow it to pursue its economic interests on the global scene Eg. TTiP (the Transatlantic trade and Investment Prtnership) – currentlly in the process of negotiation - could boost EU economy by €120 billion; US economy by €90 million, and the economy of the rest of the world by €100 billion