Koutrakos / Eeckhout / Wessel

Introduction = Constitutional dimension of the external

relations
Section 1: the object of the ER : the conceptions of external
relational »
different conception: the rst one:
formal approach = when we study ER we should talk about conventional relations. All the treaty
has signed by EU.
The purely normative approach we can’t limit this approach because of isn ’t only traits. The
balance of power between the different power.
and the substantive approach = we can say that substantive approach is affairs from the outside,
old approach, Machiavelli « affairs will always remain quiet within when they are quiet outside
unless they have been already disturbed by conspiracy ». If u want peace inside your state you
need to be quiet outside. Outside and inside need to be trained differently.
Isn’t only one to think of this idea = Hobbes; if there are no common power there are no law. In the
international area, this relations between states outside are a jungle. In this area, the law and the
way u deal with and u have a common power and because u have u common justice you have
justice. So substantive difference between outside and inside.
Kant: As Hobbes thinks that outside from the state relations between the subject of law are very
speci c. Relations between states in international area is closer than the states because there are
not common law.
In the EU we try to do established a common poster to avoid this states of nature and to prevent
the war.
Aron: the External affair is very linked. If u are ghting against terrorism inside many subjects like
that are the limit and every linked ( justice, human right) that why internal affair and international
affair are linked but this is weird.
Functional approach: we will study all the organs which are linked to the international organization.
Studying international relation is similar to study how the states are organized. Study the external
by the inside. We will study how EU can do that from the outside.

Conclusion ;
Constitution because EU is not a state is more that international organization but what we know is
that the function in EU has been a little bit by the functioning for the states. When the European
Union want to have external relations wit we will do in the European union. when a states want a
negational a treaty and to conclude it => executive power so the government negotiate signed the
treaty and give to the parliament and parliament authorized the rati cation and we will see that in
EU we can nd something close to this practice and in this production how EU has appropriated of
the ER in the states and how EU has a federal dimension.

Section 2: ER of a state

Paragraph 1: ER and Sovereignty of states

when we talking about ER we r talk about sovereigns this concept is very hard to be found. In
literature, every author have his de nition
Carré de Malberg: 3 meanings of sovereignty
- Supreme character of a fully independent power ( international sovereignty)
- PowerS included in the state power
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 - the position in the state of the holder of the state power.
2 kinds of de nition:
- Formal: a quality, u can’t have half quality u have or not you cant divided a legal quality. This
the conception of sovereignty
- Material: a content, sovereignty its an area of different competencies: money justice, army,
police.. so u can give a competence to another power; u can share a content and this is more an
American conception of sovereignty and u can be divided this power.
When u think a sovereignty is a content u give all the power to another power u loose you
sovereignty. Maybe we can say that sovereignty is a quality and a quality that belongs to the
states. It's a legal quality that’s why in European union have.
External sovereignty has to be a unity / uni ed if considered that sovereignty is a quality and the
quality can be divided it must be uni ed. because if u divided u not protect the unity.
Example with the logan act 1799 has to be authorized by the government, the states have a kind of
monopoly on the rules. The french CE has a monopoly in this area and nobody can have a relation
external. But can the external sovereignty be divided?
Yes as a material realization of the formal dimension of the sovereignty
Ex: Protectorate /
EU common commercial policy has exclusive competence to negotiates and conclude a
commercial argument. Every member of states has lost their competencies. u can transfer some
powers who belongs to
An example of french protectorates: Indochina morocco. this legal could do what every wants
inside but for international sovereignty is divided that why its material so u can divide.

Paragraph 2: ER and the functions of the states 3 functions usually

legislative excites judicial

How many functions?

spéci é function related with ER from the beginning even Montesquieu. Locke federative power
( peace war, alliances ..) there is a speci c power that we can name diplomatic power or
international power of a state and speci c and concerned peace war .. so for locke, u have
federative power, executive, legislative and judicial power. U have 4 power for Locke.
Montesquieu: « puissance exécutive de l’état « it's similar to executive power. What it call
puissance exécutrice its very similar to diplomatic function of the states.
Rousseau: everything which its links to international relational have to be linked by power and not
by people. The International relation for him is not democratic, the leaders know more than the
people. European parliament this past year ght external relation especially during this 5 years,
thing have changed in the European union.
Hamilton: parliament operates rati cation, maybe to this legislative power, so speci c that this kind
of power is a speci c one, another branch.
to what extend the international function is speci c?

A- THE AUTONOMY

Why ? this power is thanks from this other its speci c but you need to prove it with 3 criteria
- Organic centralization of power for the executive branch= > the organic centralization content
organic administration =
- administrative centralization.
- constitutional centralization: in every country, there is constitutional
centralization with a rationalized parliamentary system. ART 35 Constit: the government can’t
declare war without the parliament authorization.
-
-

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 rationalized parliamentary system. After 2 WW we can’t declare war anymore we can help states if
there are in crisis. When troupe is ghting is too late for the parliament to say stop or something.
Between parliament and government, you have politic unity usually the majority support all the time
the government = Bagehot. //

US system separation of power: what does our constitution say with ER in the USA. And we
know with Hamilton ER don't below with legislative. So the powers are separate. The supreme
court in the case Curtis in 1936. The only president can negotiate, the senate can't introduce and
the congress itself is powerless to invalidate the eld of negotiation. If u want rati cation a treaty
you need that you congress have the majority ( 2/3) so u have to convince 2/3. Senate has a
strong power because the condition of a majority is very strict maybe the relation between
executive and legislative are more balanced than France. Executive argument: u need the
signature of the president of the treaty. Why there is this kind of argument beaucoup it's a small
argument because when it's a big argument u need to turn off with the senate but sometimes when
it's little u can take an executive argument. Ex: Litvinov agreement 1933 usually the act are
considerate has a prerogative tier of the executive. Yalta was 3 country and only an executive
agreements. Marrakesh agreement was considered even if the senate has a big power, the
parliament avoided the senate by qualifying these acts executive acts. the main difference between
parliament and president is u don't have this politic unity between president and senate and
because the president didn’t need parliament to act or rati ed this two power are kind of
independent, if the parliament wants the senate to rati cation a treaty. In the USA a lot of important
treaties haven’t been rati ed by the senate.
- Judicial relegation:
- ordinary judge: Abraham member of the supreme court administrative in France ( CE),
commissaire of government recognizes when u are in this area u can be shyer and its good,
because is not the part of u job. Theory in France is the act of government u don't have judicial
control; he thinks that he doesn’t have jurisdiction to control the legality of this act. The decision of
the ministry of defense who decide to send troupe is an act of government is close to another
theory in America is a political question. is not a function of the judiciary to entertain privately. So
the 2 theory are very close, is not my job as a judge when the question is political or the act of
government. U are in this international affair judges limited their own control in built some theories.
- constitutional judge: try to not call question the foreign policy of the government. International
law is not European law because judges feel freer when they are in European law. Usually,
constitutional judges approve all international agreements. Is not true concerning the European
treaty. Concerning the international treaties, the french constitutional conceal council doesn't see
any contradiction between the constitution and international treaties.

- Speci c status of international law within the domestic legal order

- when u read constitution usually after that u don't know u don't know where treaty are
constitute. If u read french constitution concerning the relation between treaties and law art 55
treaties are more important than law so the constitution branch is not so bad because it tell us
about the organization. But for the customary law, the constitution doesn't say anything. If we look
at the others norms, law adopts inside the states u know where is it u have the constitution after
the law and after administrative. When u talk about the customary law is not easy every states or
judge decided where the treaty, law ... stand. This the place in higher norms is speci c.

- « invocability « of treaties » How can we assess this autonomy.

The rst characteristics of all this speci city are very general, the rst one is the organic
centralization secondly judicial relegation and thirty speci c statuses and we see that there has
some question of rank.
Concerning invokability of treaties, self-executing treaties and treaties with are direct. The position
of the french Conseil d’état, the rst one Gisti 1997 and the last one Gisti and Fapil 2012.

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 For the rst one Gisti, the french Conseil d’état said that you can always invoke treaty but you need
to prove that there is direct effect.
For the second one, is developing the methods, the idea doesn’t change. He precise how can u
prove the provision of the treaty.
Subjective condition concerning the direct effect of a treaty: the intention of the parties they want to
give some right to the citizen
Objectif condition: are the characteristics of the norms.
When u want to invoke law u don ’t need to prove all the characteristics, and the provision of law
are a direct effect. When national judge demand that the person the applicant to prove that treaty is
direct effect u limit the effect of treaty inside the domestic law order.

B- UNITY

Sovereignty is a formal dimension is a quality, substantive powers. Concerning the quality, we see
that because the quality can’t be divided there are a kind of unity. And for the international
dimension of sovereignty, there is a unity of the unity relations.

How does it work for a federal state?

- Federal jus eminens:

German Basic Law 1949: in this law, the provision speci es that the federal states are a leader and
as an exception lender can conclude treaty but only after the consent of the executive power. In
this area, external relations the governments is mostly the only organ who can have the power of
the treaty. If only the government have the power to conclude the treaty concerning, for example,
civil law and if the procedure stops here without any participation of the parliament, it means that
the government has a kind of legislative power and he can avoid the competencies of legislating
bodies. The Constitution demands generally that the parliament gives a rati cation so u need to let
the parliament choose. If u let government conclude treaty with 1/3 part and the government take
the power of the lender you don’t have the contentment of the lander just only the government the
danger is that the government can avoid all the relation international concerning the competence of
the leaders this is the vertical distribution and can avoid the parliament and this is the horizontal
dimension. Usually in Germany when federal parliament negotiates treaties on a norm that he can’t
negotiates inside in the rst way the lender can negotiate with him. For horizontal, without
rati cation, usually only parliament as competencies concerning family law so the government
can’t adopt a law on family, so he can do outside something he can’t do inside by concluding a
treaty with 1/3, to avoid this non-democratic action constitution demand or government need
rati cation but government doesn’t need the only rati cation only some treaties ( only treaties
which are inside the competencies of the parliament.)

Federated states are holders/ Bearer of the treaty-making power

The federal states have a treaty making power. If a judge, a federative state, an administration,
parliament, bridges the agreement at the end only the general states will be responsible. All the
responsibility are concentrated on the deferral states. Even in federal states the unity is protected,
preserve. In german law, some lenders can conclude treaty but after the authorization of the
federal states. Even if the are in federal states many distributions of power the unity is preserved.

Section 3: General characteristics of the EU external Relation

two main differences between a states and a EU:
Legal nature, EU are international organization
Not a State
international organization/ International federation ?
Sovereignty :

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 Lack of this quality: the formal dimension sovereignty it’s quality concerning the EU he doesn’t
have sovereignty so is not a state so is not a quality
external relations, therefore, can’t be united: if u don’t have this quality u cannot have unity external
relations

Paragraph 1: Building an autonomy

A- ORGANIC CENTRALIZATION OF POWER FOR THE EXECUTIVE BRANCH?

- Constitutional centralization
in a state the executive power which conducts by the external relation. But for the EU is different. It
can be the commission because there is the right of the initiative. Though job identi es it, does the
executive can be located in the EU?
The balance of powers is too different to compare with the state? Maybe yes Maybe not.
Parliament is always in the second place, the government is the leader. In EU you can identify a
government like in the states, u can’t identify the executive power because is more distributive. But
in the executive power in the state, we can say that the situation of the parliament is the same, the
parliament in the EU is in second place after commission. The similarity between a state and EU is
located only is the legislative power.

- Administrative centralization
In the state when u want to build a state, u found an administration which has the monopoly of the
power. But in EU, there are DG Trade, DG competition … it ’s a kind of ministry. u need to have
this for build external relations. After we had nothing. Now we had European external action
service (EEAS). This service which can be used by all the others DG. This EEAS has created after
Lisbon Treaty, before Lisbon we had anything. They tried to build a ministry, to organize an
administration, the beginning of the centralization of the foreign affairs is the beginning but u can ’t
compare we the real ministry of foreign affairs. The states is an example for EU.

B- JUDICIAL RELEGATION

Political question in EU law?

the court af rming the two need to preserve the political question. We cannot deny this role of law.
But it’s too easy to say that, the exclusion of jurisdiction has been settled by primary law. After the
Maastricht treaty, it’s easy to say without the European community we don’t have. When u adopt
the act the jurisdiction court has no jurisdiction and after the Maastricht treaty, he changes the
foreign policy but sanction.
This judicial relegation is settled by the treaty u have this king of the speci city like in the state.

C- SPECIFIC STATUS OF INTERNATIONAL LAW WITHIN THE DOMESTIC LEGAL ORDER?

Uncertainty of its rank in the hierarchy of norms

Harder: the hierarchy of norms is less clear
Invokability of treaties
nearly unpredictable
harder 3 legal orders: national European and international
we can nd the same characteristics an organic centralization and judicial relegation and the status
are speci c to so con rm the autonomy of the EU as the states because the states are the model
for the EU.

Paragraph 2: The quest for consistency

A- The challenges of the external relations consistency

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 We quali ed one of the characteristic rst of all autonomy and unity. Here we talk about not unity
but consistency. The unity concerning external relations within the UE cannot be achieved that why
is a challenge.
We use the word consistency and not unity because it’s a palliative or an EU identity? There is
different nature between consistency and unity. The consistency we can’t rich as unity in EU. In the
treaty everywhere we’re talking about consistency. The concept is linked with the concept of legal
order because the legal order needs to be consistency.
Consistency with the relations with EU, we talking about the EU failures: failures because all the
member's states don’t speak with one voice. In the beginning of the 90, some war started in
Yugoslavia and EU didn’t do anything concerning this war so this is a failure.
To understand the consistency we need to talk about « S word » the security word. The main
project was to create a European army, France wants to be a European defense community.
French community didn’t want the treaty because of the treaty re-armed the german. After this
failed we didn’t talk about the security in the European.
Security in European single act: Art 30 Paragraph 6, this article is quite famous because member
states try to build a kind of security policy, it was the beginning.
During the European single act, we understood that we need to build a European foreign policy
and security for the identity of the EU. After we understood that if we want to build a European
security we need to make an alliance in an economy and industrial and 10 years ago we create a
cooperation. Is the rst time that in European treaty we have the S word or Security word.
Coherence within the EU: Two different sorts: Horizontal coherence => promote development
policy or social policy it’s substantial. Vertical is between the institution.
Concerning the horizontal coherenceThe single act created to develop the single market and the
European politic co-operation.
For the vertical consistency, it’s consistency between the EU for foreign policy. We can nd some
provision. the ministry shall meet the EU four times a year.
In the EU community, we have some competencies link with international relation like common
commercial policy. When a competence is exclusive and unify we can say that the consistency is
preserved.
In Lisbon treaty as well but something change because this article 7 TFEu has a principle of
consistency, it’s strange because we don’t know if it’s a legal principle. If we could change
regulation between consistency we could change all the regulation because it’s dif cult to prove to
a judge that this s not consistency. The question of a liability this dif cult to prove that isn’t
consistency.
In the article 21 TEU concerning the European foreign security policy.

One dif culty: horizontal consistency

between the policies
between institutions

The vertical consistency this main by the duty of legislation applies many competencies shared
between states and EU we can apply a loyalty even of there is exclusive competence. The EU
nation has to act with loyalty with the member of states.

B- Exempli cations of the consistency

1- The duty of loyalty: a vector of consistency

There is two kinds of obligations: positive and negation in the article 4 of the TEU. On negative was
to refrain from any measure which could jeopardize…

General characteristics of this duty

Total
Costa contre Enel case 1964:

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 Case Hurd 1986: that provision is the expression of the more general rule imposing on member
states and the community institutions mutual duties of genuine cooperation and assistance.
Autonomous
can prove that members states didn’t corporate with loyalty with the EU and the only prove can be
that the member's states bridge the duty so bridge the loyalty.
In European law, the main different is the principal is autonomous the good faith no. The good faith
reinforce the real obligation is always kind with another obligation and complete another obligation
that pre-exists. Duty is not the same u don’t need another obligation to use duty.
In two provision we can nd a kind of loyalty.

3 examples of this duty in the eld of the external relations

the external representation of the EU; in the international organization's

conclusion of international agreements
implementation of an international agreement

A) diplomatic relations

2- The right of active legation

lisbon art 35 TEU.

we have a lead states this lead states will manage the corporation with all the ambassades.
Usually in africa if u come from malta and u don’t have embassy france can help you.
The right that citizen can help u is just because your country can’t help u.
EU délégations in the world : 140 countries / 31 OI.

3- The question of the unity in the international representation

this duty in loyalty doesn’t exist in the treaty. it’s a consequence of the treaty. It’s a cooperation.
Concerning the opinion 2/91 1993 use the « duty of cooperation ». When we are in the
international repression order we need to protect unity. CThis objective is unity because in EU we
don’t have legal sovereignty. If we are not unify we can’t protect unity of the representation.

a. the fragmentation of the external political representation

the european council have been established to coordinate the member of state. In the 70 we
decided to said that we was a kind of constitution but not a treaty.
The main of constitution was the council and it concerning cooperation policy and common foreign
and security.
concerning the development of policy is lead by the european council. Because it’s a political.
AFter the lisbon treaty we had a reform concerning the european council now its a institution. The
president of european council is the president for 2 and Half years. We have a council president
before the lisbon treaty every 6 months the presidency was change

the council
Troika : rotating presidency.
article 18 President shall conduct political dialogue with third parties on the union’s behalf and shall
express the union’s position in international organizations and at international conferences »
amsterdam SG/HR

The commission
presiden t
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 commissioners
techno bureaucracy

Before the lisbon treaty we created the high representative. of the union for foreign affairs and
security policy.
European Constitution : minister for foreign affairs.
In amsterdam we try to organize the policy
b) the effort to centralize administrative external representation : the european external action
service (EEAS)
decision of 26 july 2010

postitiv results the budget have autonomy,

D- International liability of EU

1- international liability of international organizations in international law

There are two activities : operational activities and normative activities.

The question with the operational activities and liability

Ex: a of cer who causing damage that is operational activities. In IAEA & austria, the damages
can’t be attribute accomplished by the of cer working for the international organisation.

Normative activities: the International organisation can’t insure the responsibility only because the
organization will be responsible for that.

Only one problem: imputably/ Imputation of the activity to the organization. The main question is
when the organization adopt something can we attribute the decision to organization or to the
states who approve the decision.

Exception : subsidiary

circuvention : contournement.
ART 61 Can invokes this obligation in order to nomme something
in reality u can attribute the liability as a member of state only if the context of the states can
presume that the states can assume this responsibility.

c- Suppletive / Subsidiary competences

Art 352 TFEU according this article u can create a new competence even if treaty don’t say a word
concerning this competence. Competence is like to harmonize national environment. By using this
article EU created his competence. Can we u this article in the external competence of EU.
Commission agree with that , even we cannot nd a implied powers maybe we can use this article
to create.

What differences with the implied powers ?

- It’s written
- it’s closer to the US version of implied powers
- Use of this clause is conditional : the creation has one objective is to :
- to the attainment of an objective of EU
- lack of power between in the EU competence
- the external competence is not consequence of internal competence, but of a necessary action
to realize an objective of the treaties.
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 - A fortiori one of the worst in the world ! when u try to involved this exible clause u can’t invoke
this article to generate exclusive competence
- When u talk about use the 352 article, the competence doesn’t really exist. => U use the article
352 u create the competence after the commission try to demonstrate that the competence is
exclusive.
- accroding to the court there are not competence at all u can only create a competence maybe u
can base the argumentation on a exible clause to create competence but can be only a shared
competence. If we continu this explanation, the legal regime is quiet similar to legal regime
before this opinion we can’t evoke this article to create the competence and after EU can
conclude the agreement. Harmonization and by the effect of the implied power you will have an
exclusive competence.
- According to the court this way to create is similar to real creation of competence and this is not
a work of a judge.

Section 2: The exogenous factor

Paragraph 1: International recognition of the EU

De nition : unilateral expression of a will to recognize as valid and opposable to itself a given fact
or a legal situation
- it’s a expression of a unilateral will
- does a state can discretionary recognize another state?
- International law remains inter subjective only agreement between subject of international law.
But we try to circumscribe this liberty and the rst idea was Stimson we try to shape the duty to
not recognize as lawful a situation created by the illegal use of force. Advisory,
- a recognition act is a declarative act, or constitutive act ? If u think that u don ’t need a
recognition the recognition will be only declarative. If nobody interest usually
- Which conditions to participate to internationals organizations?
- have enough competences
- usually, EU needs at least some exclusive powers to prove that it can participate
- Have the right to participate
- it depends on each treaty establishing the relevant international organization
- when the biggest international organization have been created
- after the terrorist attack EU try to built a real security strategy and not only economic. When EU
negotiate treaty association agreement there have foreign policy terrorism agreement..

CHAP 2 : The EU legal means in the international legal order

Section 1: The conclusion of international agreements

P1: The international phase

If the competence is exclusive ( very rare) and normally we start with exploratory contacts
(commission). The commission start contact with country to see if maybe he can be conclude a
agreement. If commission and the third country want conclude a agreement the commission offer a
authorization by the council after a commission’s recommendation. It’s not only the council which
will talk « ok u can do the negotiation" it’s more a negotiating mandate. During the négociation
council can change the mandate when it wants.
Council all the time he controlling the commission and usually this mandate is secret ( CETA
agreement), it’s a king of habits. CETA was very citizeng and CETA is a law and nobody knows
nothing. The commission does go beyond its mandate ?

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 So u negotiate with for example services, goods, intellectual property right … If we negotiate for
services maybe inside we negotiate media. Even if the commission that negotiate the argument,
understand all the question, and the commission where can nd public function who know this
question, if we talking about power we can talk about the council who offer the power to the
commission, can change the mandate during the negotiation and conclude signed of cial. Kind of
separation of power. Distribution of power is not so bad.

Negotiation : Art 218 TFEU. Who negotiate => The Union negotiator or the head of the union’s
negotiating team.
If the commission usually lead the negotiation.
the agreement in simpli ed form; signed by the president of the council and it comes into force
after the signature

Agreement in solemn form; signed but the president of the council.

- Special matters
- the commercial policy : u only see commission in the 218 TFEu, commission want to
protect this exclusivity and the only way it’s to preserve the commission.
- committee has a great power
- Common foreign and security policy : commercial policy and the rest ( art. 218) are quiet
similar. Even if this general rules of negotiating and this procedure in the commercial policy
are very similar we deciding to write two different article.

If the competence is shared between member of state and commission : a mixed agreement is
negotiated. there is a negotiator as usual. All the member states are parties to the agreements.
And can negotiate.
- Risk of inconsistency between European and national positions
si it’s a mixed delegation : unique delegation : commission negotiates on the behalf of the
member states:
-> it’s ensuring the unity of the EU external representation. Best deal?
-> the question of the association of the national parliaments

Common delegation EU+MS

observance of the principle of a sincere cooperation.

P2: The internal phase: the amplification of the European parliament’s role

The agreement has been sign by the third party and everything it’s ok now we going to see whats
going on after.

rst conquest : rati cation process

Problem: national parliaments didn’t use this power
power is useless if you don’t exercice it
power is nothing if you don’t have information to exercice it.
the European parliament have the same problem :
conquest of the power
conquest of the access to information

A- The access to the information

1) European parliament ’s access to the information on the negotiations

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 U need to have an access, main question is to nd a balance between democratic requirements
and secrecy in international relations.
- Squaring a circle?
- If, in a state, external relations are falling within the eld of executive power, with its
secrecy, why not doing the same for the EU?
The tribunal was agree with that : Sophie in’t veld 4 mai 2012.
this secrecy can preserve the unity of the EU ’s external representation.
Lisbon has changed the deal: Art 218 TFEU, in this article we have the extract « The European
parliament shall be immediately and fully informed at all stages of the procedure »
2010 : New framework agreement on relations between the European parliament and the
commission. It’s a commission will engaged itself to behavior some information.

The agreement doesn’t require the consent and the article 218 paragraph 10 doesn’t make
different agreement that not require parliament agreement and commission without agreement.

moreover : interinstitutionnal agreement of 12 march 2014 between the European parliament and
the council concerning the forwarding to and handling by the European parliament.
We will see that the council did everything to impede the EP to access to the information : ACTA
( anti counterfeiting trade agreement ) and CETA ( comprehensive economic and trade
agreement )
This question is harder in the CFSp : Interinstitutionnal agreement of 20 november 2002
concerning access bu the Ep to sensitive information if the council in the eld of security and
defense policy

2) The parliamentary struggle for a public access to the information

B- The formal powers’ expansion

Section 2: The EU status in the international organizations

Section 3: The EU

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