1. University of Political Sciences, Zagreb University of Political Sciences, Zagreb European Constituional Law “The external EU powers evolution, the role of ECJ in expanding the external powers of EU and the changes implemented by the Lisbon Treaty” Klevis GJONI

2. University of Political Sciences, Zagreb University of Political Sciences, Zagreb The main focus of the presentation I. The evolution and stages of external powers in the EU II. The role of the European Court of Justice in expanding the EU competences in international relations III. The EU external powers after the Lisbon Treaty

3. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1. The evolution of the European External Powers  The creation of Steel and Coal Community and the EEC until the mid 1965 (and after the Merger Treaty) was seen as a solely an economical union.  The European Common Defense, which required harmonisation in the field of external relations failed in 50-es.  The Gaullism era in the 1960-s obstruced any initiative of delegationg powers to the EEC in the field of international relations.  1970 – European Political Union, giving the internal market an international relations dimension.

4. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1. The evolution of the European External Powers – The legal capacity of the Community After the qualification in 1963 of the Community as constituting ‘a new legal order of international law’, one year later the Court confirmed the Community’s ‘own legal capacity and capacity of representation on the international plane. The Community was not merely meant to govern the relations between its Member States but also to partly replace these Member States in their relations with third states and other international organisations.

5. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1. The evolution of the European External Powers – Costa/ENEL landmark case  From the outset, the capacity of the Community to enter into legal relations with third states or other international organisations has been undisputed.  In Costa/ENEL, the Court already referred to ‘its own personality, its own legal capacity and capacity of representation on the international plane’.  The status enjoyed by the Community as a ‘legal person’ was already established by Article 281 TEC, which simply states that ‘[t]he Community shall have legal personality.’

6. University of Political Sciences, Zagreb University of Political Sciences, Zagreb The evolution of the European External Powers – Single European Act of 1986  Codified the European Political Cooperation Treaty  Integrated a build up of caselaws during the 1970-80  Extended the Community’s explicit external competences to other fields that were thought to form part of the newly introduced concept of the ‘internal market’.  Enpowered the Community to act in agriculture; fisheries; transport, competition; the harmonisation of indirect taxation and the general approximation of legislation and administrative practices.

7. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1. The evolution of the European External Powers – Treaties of Maastricht, Amsterdam and Nice  Provided a broadening of the scope of the Common Commercial Policy  Expanded the external powers field in development policy, monetary matters, cooperation powers with third states  Indroduced new legal basis for economic, financial and technical cooperation with third countries (Article 181a).  Indroduced the rol of General Secretary/High Representative.  ECJ established that the areas of the Common Commercial Policy, the Common Fisheries Policy and competition policy belong to the exclusive competences of the EU.

8. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1. European External Powers characteristics in 2000-09  In most of the agreements concluded, except for trade agreements, the Commission and the Council decided to involve the Member States and conclude socalled mixed agreements.  The question of the division of competences between the Union and the Member States (or the possible exclusivity of Union competences) is still difficult to be established.  Nevertheless, the Commission is responsible for the relations with international organisations.  The declaration on the behalf of the Commision becomes frequent.

9. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1. European External Powers characteristics in 2000-09  The role of the Commission strictly limited to the management of external relations under the auspices of the Council.  Negotiations take place on the basis of a mandate given by the Council.  Different case law reveals that this mandate may also include the negotiation of guidelines that create no legally binding effect and have a clearly defined scope.  Compared to national parliaments and their classical pivotal role in the ratification process of international treaties, the role of the European Parliament is restricted, although it has evolved over the years thanks to successive treaty.

10. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers - COSTA vs ENEL 1964 The Italian Constitution Court ruled that while the Italian Constitution allowed for the limitation of sovereignty for international organisation like the EEC, it did not upset that normal rule of statutory interpretation that where two statutes conflict the subsequent one prevails. ECJ disagreed with the Italian government… The ECJ ruled: “It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question”.

11. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers – Fruit Company NV 1971 case Subject of the case: APPLICATION FOR THE ANNULMENT OF DECISIONS REFUSING TO ISSUE IMPORT LICENCES FOR DESSERT APPLES COMING FROM THIRD COUNTRIES, The ECJ dismissed the case and basically stated hat: “States had transferred exclusive external powers to the Community, the Community was destined to replace the Member States in the international organizations working in that field, in this case the General Agreement on Tariffs and Trade”.

12. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers – ERTA 1971 case Subject of the case: APPLICATION FOR THE ANNULMENT OF THE PROCEEDINGS OF THE COUNCIL OF 20 MARCH 1970, RELATING TO THE NEGOTIATION AND CONCLUSION BY THE MEMBER STATES OF THE EEC OF THE EUROPEAN AGREEMENT CONCERNING THE WORK OF CREWS OF VEHICLES ENGAGED IN INTERNATIONAL ROAD TRANSPORT. In its ERTA judgment, the Court introduces its famous implied powers doctrine. Through a purposive interpretation of the Treaty provisions on the EC international legal personality, the Court enables the “Community to negotiate and conclude external agreements over the whole range of its broadly defined objectives”. It also makes this power potentially exclusive, in the sense of a progressive limitation of Member States’ autonomous power on the international scene to the benefit of the Community.

13. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers – Opinion 2/91 1993 Subject of the case: APPLICATION OF EU FOR MEMBERSHIP IN ILO  The result of this reasoning was not only that ILO conventions, but also many other international agreements (not only in the social domain where minimum norms are also widely applied in both Community law and in international conventions) would not fall under exclusive Community competence.  That is unless there was another element in the Convention that was of exclusive Community competence (as was the case with ILO Convention No. 170).

14. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers – Opinion 2/94 1996 Subject of the case: Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Ruling: The Court explicitly refers to the TEU principle of conferred powers to limit the reach of both EC implied and residual powers based on Article 308 EC. This pronouncement confirms that the implied and residual powers form part of the new EU legal framework.

15. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers – Article 84 of TEU If the Member States were free to enter into international commitments affecting the common rules adopted on the basis of Article 84(2) of the Treaty, that would jeopardise the attainment of the objective pursued by those rules and would thus prevent the Community from fulfilling its task in the defence of the common interest. …

16. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and external powers – Open Sky Case 2002 Subject of the case: The air transport agreement with USA  The Court thereby suggests that the necessity of a Community external action in the field of shared powers is to be determined by taking account of the formulation of the power- conferring basis, as well as by the actual exercise of that power by the EC political institutions.  The EU judicature thus not only polices the confines of the Community external competence by reference to the principle of conferred powers as it did in ECHR, it also oversees the exercise of those Community powers, by reference to the notion of necessity, which in turn relates to subsidiarity

17. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and External Powers It is to be noted that among the external relations cases coming before the ECJ, after Maastricht and beginning to be decided during the period leading up to the Treaties of Amsterdam and Nice (but continuing thereafter), there is an increasing number of cases that concern the demarcation among different external policies, especially between trade and environmental policies. This is a natural outcome of the proliferation of different external policies recognized in the EC Treaty after the Single Act and Maastricht.

18. University of Political Sciences, Zagreb University of Political Sciences, Zagreb 1I. ECJ and Exteral Powers – Case numbers by year

19. University of Political Sciences, Zagreb University of Political Sciences, Zagreb III. Lisbon Treaty key changes  The Treaty introduces a single legal personality for the Union that enables the EU to conclude international agreements and join international organisations. The EU is therefore able to speak and take action as a single entity.  The “permanent” President of the European Council appointed for a renewable term of two and a half years  High Representative for Foreign Affairs and Security Policy and Vice-President of the Commission, who shall ensure the consistency of the Union's external action

20. University of Political Sciences, Zagreb University of Political Sciences, Zagreb III. External Powers of EU after Lisbon Treaty – Other changes in CFSP  Established the European External Action Service to support the High Representative  EC delegations in countries all around the world became delegations of the European Union with an increased political mandate to represent the interests of the Union  The Lisbon Treaty defines the external policy areas of the EU, and establishes them with equal standing.  Created a dedicated administrative capacity for each of the areas of policy: Foreign Affairs, Defence and Security, Development, External Trade, Humanitarian Assistance, Fisheries)  The Treaty established the EU’s Development Policy as the principal framework for the EU’s cooperation with developing countries

21. University of Political Sciences, Zagreb University of Political Sciences, Zagreb III. External Powers of EU after Lisbon Treaty – Commision exclusive competences  Int. development, development aid and cooperation policy  International negotiation  Humanitarian Aid  Cooperation with Neighbourhood Countries (Commisioner for Enlargement)  External Trade  The EU’s fisheries policy  The High Representative is in the same time vice- president of the Commision

22. University of Political Sciences, Zagreb University of Political Sciences, Zagreb III. External Powers of EU after Lisbon Treaty – Council  Responsible for Security and Defense Policy Two bodies:  General Affairs Council  Foreign Affairs Council (FAC)  Foreign Affairs Ministers and Development Ministers meet in the FAC, chaired by HR

23. University of Political Sciences, Zagreb University of Political Sciences, Zagreb III. External Powers of EU after Lisbon Treaty – Results  EU was able to act as one entity in the recent crisis between Russia and Ukraine, imposing joint sanctions of her member countries towards Russia.  EU was inneficent in the beginning of 1990-s crisis in Yugoslavia. Croatia indipendence was recognised first by Germany, against the will of the remaining 11 members of EU.

24. University of Political Sciences, Zagreb University of Political Sciences, Zagreb Conclusions  ECJ has played a crucial role in the development of EU external powers  Most of the substantial changes of the Treaties, empowering the “supranational EU” are insipired from ECJ case rulings.  After the treaty of Lisbon, the capacity of EU acting as a unique entity has greatly increased.

25. University of Political Sciences, Zagreb University of Political Sciences, Zagreb References 1. Desmond Dinan – The Ever Closer Union 2. Federiga Bindi - European Union Foreign Policy: A Historical Overview 3. Andrea Ott and Ramses Wessel – The EU’s external relations regime: Multilevel complexity in an expanding union 4. European External Relations under the Lisbon Treaty - Briefing No. 50 5. Dr Simon Duke - Areas of Grey: Tensions in EU External Relations Competences 6. Dilek Morgul – The ECJ, an agent of the member states? 7. Fordham International Law Journal - Fifty Years of EC/EU External Relations 8. Christophe Hillton - ERTA, ECHR and Open Skies: Laying the Grounds of the EU System of External Relations 9. http://www.iai.it/pdf/transworld/tw_wp_17.pdf

26. University of Political Sciences, Zagreb University of Political Sciences, Zagreb Landmark Case Laws included in the presentation Costa vs ENEL 1964 - http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:61964CJ0006http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:61964CJ0006 ERTA CASE 1971 - http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:61970CJ0022#I2http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:61970CJ0022#I2 International Fruit Company NV and others v Produktschap voor groenten en fruit 1971 case. http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:61971CJ0051http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:61971CJ0051 Opinion 2/91 - Opinion of the Court of 19 March 1993 regarding ILO membership - http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61991CV0002 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61991CV0002 Opinion 2/94 1996 - http://eur-lex.europa.eu/resource.html?uri=cellar:3645916a- 61ba-4ad5-84e1-57767433f326.0002.02/DOC_1&format=PDFhttp://eur-lex.europa.eu/resource.html?uri=cellar:3645916a- 61ba-4ad5-84e1-57767433f326.0002.02/DOC_1&format=PDF Open Sky Case 2002 - http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61998J0476:EN:HTMLhttp://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61998J0476:EN:HTML