The Democratisation of EU

International Relations Through EU Law

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Soledad Rodríguez Sánchez Tabernero
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The Democratisation of EU International
Relations Through EU Law

Since the entry into force of the Treaty of Lisbon, key improvements have occurred in
the democratisation of EU international relations through the increased powers of the
European Parliament. Nevertheless, a comprehensive legal analysis of the new
developments in democratic control of EU external action has not yet been performed.
This book aims to improve the understanding of the set of mechanisms through
which democratic control is exerted over EU external action, in times of profound
transformations of the legal and political architecture of the European integration pro-
cess. It analyses the role of the Court of Justice in the democratisation of interna-
tional relations through EU law, and further provides a legal overview of the role
of the European Parliament in the conduct of the EU's international relations. In
those areas where the powers of the Parliament have greatly increased the book aims to
raise questions as to whether this enhanced position has contributed to a more consistent
external action. At the same time, the book aims to contribute to the debate on judicial
activism in connection with the democratisation of EU external action. It offers the
reader a detailed and topical analysis of the recent developments in democratic con-
trol of external action which are of relevance in the daily practice of EU external
relations lawyers, including the topic of mixed agreements.
This text will be of key interest to scholars and students working on EU external
relations law, EU institutional law, European Union studies/politics, international
relations, and more broadly to policy-makers and practitioners, particularly to those
with an interest in the European Parliament and the Court of Justice of the European
Union.

Juan Santos Vara is Jean Monnet Chair in EU External Action, Professor of Public
International Law and European Law, Director of the Master in European Studies and
Coordinator of the European Joint Master’s in Strategic Border Management at the
University of Salamanca, Spain.

Soledad R. Sánchez-Tabernero is Doctoral researcher at the Department of Public

International Law and EU Law of the University of Salamanca and Analyst at the
Institutional Team of the European Political Strategy Centre of the European Com-
mission. The views expressed in this contribution are exclusively those of the author,
writing in her personal capacity, and do not represent the Institution that she works
for.
Routledge/UACES Contemporary European Studies

The primary objective of the new Contemporary European Studies series is to

provide a research outlet for scholars of European Studies from all disciplines.
The series publishes important scholarly works and aims to forge for itself an
international reputation.

Edited by Chad Damro, University of Edinburgh, UK, Elaine Fahey,

City University London, UK, and David Howarth, University of
Luxembourg, Luxembourg, on behalf of the University Association
for Contemporary European Studies

Editorial Board: Grainne De Búrca, European University Institute and

Columbia University; Andreas Føllesdal, Norwegian Centre for Human Rights,
University of Oslo; Peter Holmes, University of Sussex; Liesbet Hooghe, Uni-
versity of North Carolina at Chapel Hill, and Vrije Universiteit Amsterdam;
David Phinnemore, Queen’s University Belfast; Ben Rosamond, University of
Warwick; Vivien Ann Schmidt, University of Boston; Jo Shaw, University of
Edinburgh; Mike Smith, University of Loughborough and Loukas Tsoukalis,
ELIAMEP, University of Athens and European University Institute.

The Contested Diplomacy of the European External Action Service

Inception, Establishment and Consolidation
Jost-Henrik Morgenstern-Pomorski

Power Politics, Banking Union and EMU

Adjusting Europe to Germany
Shawn Donnelly

EU Human Rights and Democratization Policies

Achievements and Challenges
Edited by Felipe Gómez Isa, Cristina Churruca and Jan Wouters

The Democratisation of EU International Relations Through EU Law

Edited by Juan Santos Vara and Soledad R. Sánchez-Tabernero

Commercial Realism and EU Trade Policy

Competing for Economic Power in Asia and the Americas
Katharina L. Meissner

For more information about this series, please visit: https://www.routledge.

com/Routledge-UACES-Contemporary-European-Studies/book-series/UACES.
The Democratisation of EU
International Relations Through
EU Law

Edited by
Juan Santos Vara and
Soledad R. Sánchez-Tabernero
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 selection and editorial matter, Juan Santos Vara and Soledad R.
Sánchez-Tabernero; individual chapters, the contributors
The right of Juan Santos Vara and Soledad R. Sánchez-Tabernero to be
identified as the authors of the editorial material, and of the authors for
their individual chapters, has been asserted in accordance with sections 77
and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
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ISBN: 978-1-138-96276-7 (hbk)

ISBN: 978-1-315-17872-1 (ebk)

Typeset in Times New Roman

by Taylor & Francis Books
Contents

List of illustrations vii

List of principal abbreviations viii
List of contributors xi
Acknowledgement xiii
Foreword xiv

The democratic legitimacy of EU international relations:

an introduction 1
JUAN SANTOS VARA AND SOLEDAD R. SÁNCHEZ-TABERNERO

PART I
The role of the Court of Justice in the interplay between
democracy and institutional balance 19
1 Lost in principles? Institutional balance and democracy in the
ECJ case law on EU external action 21
LUIS N. GONZÁLEZ ALONSO

2 The CJEU and the external powers of the Parliament:

self-restraint or activism? 39
FABIEN TERPAN

PART II
The role of the European Parliament in the conclusion of
international agreements in the Post-Lisbon period 61
3 The European Parliament in the conclusion of international
agreements post-Lisbon: entrenched between values and
prerogatives 63
JUAN SANTOS VARA
vi Contents
4 A tale of two principles: exploring the democracy-consistency
nexus in light of the pirate-transfer saga 82
SOLEDAD R. SÁNCHEZ-TABERNERO

5 The democratic puzzle of ‘living’ megaregional agreements: TTIP

and TPP 97
DAVOR JANČIĆ

6 The role of the European Parliament in the adoption of non-

legally binding agreements with third countries 115
PAULA GARCÍA ANDRADE

PART III
Democratic oversight by the European Parliament: beyond the
conclusion of international agreements 133
7 Legal aspects of parliamentary oversight in EU foreign and
security policy 135
RAMSES A. WESSEL

8 Oversight trumped by secrets? How access to information and

leaks affect European parliamentary oversight in foreign policy 155
VIGJILENCA ABAZI

9 The financial dimension of democratic legitimacy in EU external

policies: Linking audit and political accountability 169
MARÍA LUISA SÁNCHEZ-BARRUECO

PART IV
The role of national democracies in a multilevel system: a needed
extra layer of legitimacy? 193
10 Rebels with a cause? Parliaments and EU trade policy after the
Treaty of Lisbon 195
JAN WOUTERS AND KOLJA RAUBE

11 National parliaments and mixed agreements: exploring the legal

bumps in a rocky relationship 210
GUILLAUME VAN DER LOO

Index 239
Illustrations

Figures
9.1 Share of Special Reports on external policies, and specifically the
CFSP (1990–March 2017). 179
9.2 Regularity: share of irregularities in the overall error rate, by type. 179

Table
2.1 Legal interpretation and strategic position of the CJEU in cases
related to the external powers of the Parliament 51
List of principal abbreviations

AA Association Agreement
ACP Group African, Caribbean, and Pacific Group of States
ACTA Anti-Counterfeiting Trade Agreement
AFET European Parliament’s Committee on Foreign Affairs
AFSJ Area of Freedom, Security and Justice
AG Advocate General
AJCL American Journal of Comparative Law
APSR American Political Science Review
BJALS British Journal of American Legal Studies
CCP Common Commercial Policy
CEPS Centre for European Policy Studies
CETA Comprehensive Economic and Trade Agreement
CFSP Common Foreign and Security Policy
CIS Center for Comparative and International Studies
CJEU Court of Justice of the European Union
CJICL Cambridge Journal of International and Comparative Law
CLEER Centre for the Law of EU External Relations
CML Rev Common Market Law Review
COBU European Parliament’s Committee on Budgets
CONT European Parliament’s Committee on Budgetary Control
CSDP Common Security and Defence Policy
CUP Cambridge University Press
DEVE European Parliament’s Committee on Development
DG DEVCO Directorate-General for International Cooperation and
Development
DG NEAR Directorate General for Neighbourhood and Enlargement
Negotiations
EBLR European Business Law Review
ECA European Court of Auditors
ECHO European Civil Protection and Humanitarian Aid
ECHR The Convention for the Protection of Human Rights and
Fundamental Freedoms
ECJ European Court of Justice
 List of principal abbreviations ix
ECtHR European Court of Human Rights
EDF European Development Fund
EEA European Economic Area
EEAS European External Action Service
EFA Rev European Foreign Affairs Review
EIB European Investment Bank
EILR Emory International Law Review
EIPAScope Journal of European Institute of Public Administration
EJDR The European Journal of Development Research
EJIL European Journal of International Law
EJPR European Journal of Political Research
EJRR European Journal of Risk Regulation
EL Rev European Law Review
ELJ European Law Journal
EO European Ombudsman
EP European Parliament
ESDP European Security and Defence Policy
EU European Union
EUCI European Union Classified Information
EUI European University Institute
EUIA European Union in International Affairs Conference
FPI Service for Foreign Policy Instruments
FTA Free Trade Agreement
GATS General Agreement on Trade in Services
GC General Court
GMO Genetically Modified Organism
GWLR George Washington Law Review
Hanse LR Hanse Law Review
HR/VP Vice-President of the Commission/High Representative of the
Union for Foreign Affairs and Security Policy
I.CON International Journal of Constitutional Law
ICLQ International and Comparative Law Quarterly
ICS Investment Court System
IIA Interinstitutional Agreement
IJLIT International Journal of Law and Information Technology
ILO International Labour Organization
INTA European Parliament’s Committee on International Trade
Intl International
The Intl
Spectator The International Spectator: Italian Journal of International
Affairs
IPC Interparliamentary Conference
ISDS Investor-State Dispute Settlement
ISPI Italian Institute for International Political Studies
ITLOS International Tribunal for the Law of the Sea
x List of principal abbreviations
J Journal
JCER Journal of Contemporary European Research
JCMS Journal of Common Market Studies
JIBL Journal of International Business and Law
JIEL Journal of International Economic Law
LIBE European Parliament’s Committee on Civil Liberties, Justice
and Home Affairs
MEP Member of the European Parliament
MFF Multiannual Financial Framework
ML Rev Modern Law Review
MPIfG Max Planck Institute for the Study of Societies
MWP Working
Papers Max Weber Programme Working Papers
NGO Non-Governmental Organization
NILQ Northern Ireland Legal Quarterly
NSA National Security Agency (USA)
OJ Official Journal of the European Union/ European
Communities
OLAF European Anti-Fraud Office
OUP Oxford University Press
PCA Partnership and Cooperation Agreements
PNR Passenger Name Records
PRIF Peace Research Institute Frankfurt
RSCAS Robert Schuman Centre for Advanced Studies
SAA Stabilisation and Association Agreement
SME Small and Medium-sized Enterprises
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
TFTP Terrorist Finance Tracking Program
TLD Transatlantic Legislators’ Dialogue
TPP Transpacific Partnership
TTIP Transatlantic Trade and Investment Partnership
UN United Nations
UNHCR The United Nations Refugee Agency
US United States
WTO World Trade Organization
Contributors

Vigjilenca Abazi is Assistant Professor of EU Law, Maastricht University,

Centre for European Research in Maastricht (CERiM).
Paula García Andrade is Associate Professor of International Law and EU
Law, Faculty of Law, Universidad Pontificia Comillas ICAI-ICADE,
Madrid.
Luis N. González Alonso is Professor of Public International Law and European
Law at the University of Salamanca.
Davor Jančić, Lecturer in Law, Director of the European Law LLM and
English and European Law LLB programmes, Queen Mary University of
London.
Kolja Raube is Assistant Professor and Senior Researcher, Leuven Centre
for Global Governance Studies, Programme Coordinator of the Master
of European Studies: Transnational and Global Perspectives, KU
Leuven.
María Luisa Sánchez Barrueco is Senior Lecturer in EU Law and Politics at
the University of Deusto, Bilbao.
Soledad R. Sánchez-Tabernero is Doctoral researcher at the Department of
Public International Law and EU Law of the University of Salamanca and
Analyst at the Institutional Team of the European Political Strategy Centre
of the European Commission.
Juan Santos Vara is Jean Monnet Chair in EU External Action, Professor of
Public International Law and European Law, Director of the Master in
European Studies and Coordinator of the European Joint Masters in
Strategic Border Management at the University of Salamanca.
Fabien Terpan is Jean Monnet Chair in Law and Politics of the European
Union, Associate Professor of European Law, Deputy Director of the
CESICE (Centre for the Study of International Security and European
Cooperation), Sciences po Grenoble, Univ. Grenoble Alpes.
xii List of contributors
Guillaume Van der Loo is a postdoctoral researcher (FWO) at the Ghent
European Law Institute (GELI) and researcher at CEPS.
Ramses A. Wessel is Professor of International and European Law and
Governance, Centre for European Studies, University of Twente.
Jan Wouters is Jean Monnet Chair ad personam EU and Global Governance
and Full Professor of International Law and International Organizations,
Director of the Leuven Centre for Global Governance Studies and
Institute for International Law, KU Leuven.
Acknowledgement

This collective volume has been published within the framework of the
research project “Democratic Control and EU External Action (EUDE-
CEXT)” (DER2015 70082-P), funded by the Spanish Ministry of Economy
and Competitiveness.
Foreword

The editors, Juan Santos Vara and Soledad Sánchez-Tabernero, were well
inspired in launching the publication of this book, and I feel honoured for the
invitation to contribute with this modest foreword. The subjects, dealt with by
well-known specialists, offer a comprehensive picture of what the European
Union’s external action is, and the possible future perspectives in this field,
from a legal perspective. If we look behind to what has already been achieved,
we can note with satisfaction that the European Union has today, in our
troubled world, a predominant role worldwide in trade and development
cooperation. As for trade, the EU is indeed the largest world exporter. A
recent illustration: the EU-Japan Economic Partnership Agreement estab-
lishes a free zone of more than 600 million inhabitants and represents around
30% of the world’s GNP.1
This is not only important in terms of political strategy or economic policy,
but also as a means to conveying human values. Indeed, according to the
Treaty, the Union’s action in the international scene shall be guided by the
principles of democracy, the rule of law, the universality and indivisibility of
human rights and fundamental freedoms and respect for human dignity
(Article 21, paragraph 1, TEU). Just a very concrete example: every EU
decision to provide financial support to a third country must meet eligibility
criteria that include a political appraisal of the counterpart as regards
democracy, human rights and the rule of law (see the contribution by Maria
Luisa Sanchez Barrueco in chapter 9). Not to mention the insertion of human
rights clauses in bilateral trade agreements (see the contribution by Juan
Santos Vara in chapter 3).
During its evolution, the Treaties have been modified in order to overcome
a considerable degree of democratic deficit, in particular concerning the
insufficient involvement of the European Parliament (EP), as it is explained in
Part II of this volume. In parallel, another (maybe more unforeseeable)
development has been in recent years the increasing political will of national
parliaments to be involved in the process of conclusion of international
agreements, which need to be concluded both by the Union and its Member
States (mixed agreements). Their involvement is presented as necessary in
terms of democratic legitimacy. This launches directly the issue of the Union
 Foreword xv
competences to conclude international agreements and whether the relation-
ship between the Union and the Member States, as well as between the EP
and the national parliaments should not be improved in the future. This is
maybe a subject for further academic discussion.
Revisiting the last decades of the EU's history, we may note that, from the
very beginning, the European Union has conferred to the international rela-
tions a significant role in the Treaties (including the Euratom). The successive
revisions of the latter increased this role substantially.
A crucial moment in this evolution was the Laeken Declaration of 15
December 2001 on the Future of the European Union, when the European
Council noted that the Union stood ‘at a crossroads, a defining moment in its
existence about to bring in ten new Member States’. The European Council
enumerated certain challenges to be tackled in the future, namely the need for
a better division and definition of competences, the simplification of the
Union’s instruments, and more democracy, transparency and efficiency. These
challenges related of course also to the Union’s foreign policy and its role in a
fast-changing and globalised world. The European Council formulated the
future perspectives of the Union as follows:

What is Europe’s role in this changed world? Does Europe not, now that
it is finally unified, have a leading role to play in a new world order, that
of a power able to play a stabilizing role worldwide and to point the way
ahead for many countries and peoples? The European Union’s one
boundary is democracy and human rights. The Union is open only to
countries which uphold basic values such as free elections, respect for
minorities and respect for the rule of law.2

The Laeken Declaration constituted then, in substance, the mandate of the

Convention on the Future of Europe, which started in 2002 and, after 17
months, adopted a Draft Treaty establishing a Constitution for Europe.
Even if the latter was eventually not adopted following the negative results
of the referenda in France and in the Netherlands in 2004, it is generally
acknowledged that it had an important impact on the work of the Inter-
governmental Conference, which elaborated the Treaty of Lisbon. In reality,
concerning the Union’s external action, the Treaty of Lisbon inserted, in
substance, the main provisions already contained in the Draft Constitution.
In particular the following new features are worth mentioning:

 the suppression of the Pillar structure in the Treaties;

 the legal personality of the European Union;
 the new provisions concerning the Union competences (Article 5 (3),
TEU and Articles 2, 3 and 216 (1) TFEU);
 a single provision concerning the negotiation and conclusion of interna-
tional agreements, including those relating to the Common Foreign and
Security Policy (CFSP) (Article 218 TFEU);
xvi Foreword
 the role of the High Representative and the creation of the External
Action Service.

The ratio of these provisions was mainly to clarify the competences in the
field of external action and to simplify the existent procedures with a view to
enhancing the unity of the international representation of the Union and the
efficiency of its external action.
Some authors now hold the view that these objectives have not been fully
attained. Some even argue that the Herren der Verträge are currently acting,
in this field, as if they were questioning the last modifications of the Treaties
enshrined in the Treaty of Lisbon, as approved by them.3
The reality is indeed that the implementation of the Treaties’ provisions
concerning the external action has raised important legal issues and the Court
of Justice had several times to provide its interpretation through opinions or
judgments setting legal disputes between the institutions and the Member
States, or between the institutions themselves. These disputes related mainly
to the competence of the Union, to the interpretation of Article 218 TFEU,
to legal bases issues or to restrictive measures.
The role played by the Court has been crucial, given the importance of the
cases brought before it, as Fabien Terpen describes in his contribution in
chapter 2. Advocate General (AG) Kokott stated in this respect that ‘the
question of the extent of the powers of the European Union institutions in the
field of external action is not only of considerable practical importance, but
has constitutional significance. It is not surprising that this problem has often
given rise to legal disputes’.4
This being said, – as it is so well reflected in the contributions from Juan
Santos Vara and Soledad Sánchez-Tabernero – the Treaty of Lisbon clearly
improved the democratic legitimacy of the Union’s external action, in parti-
cular with the role conferred to the EP to be immediately and fully informed
about the negotiation of international agreements under Article 218 (10)
TFEU.5 This right of the Parliament is an essential procedural requirement
and ‘is the reflection, at EU level, of the fundamental democratic principle
that the people should participate in the exercise of power through the inter-
mediary of a representative assembly’.6 The Court has acknowledged the
importance of guaranteeing, also in the context of CFSP, the rights of the EP
vis-à-vis the Council and was strict in the defence of the principles of democ-
racy and institutional balance. Luis González Alonso, in his contribution to
this volume in chapter 1, claims that the Court’s approach is tantamount to
‘re-reading of a dimension of the institutional balance in such a sensitive area
for the Member States’.
Moreover, the Court of Justice provided further classification on the scope
of the legal obligation to inform the EP, which includes all the negotiating
process from the authorisation to open negotiations until the conclusion of
the agreement.7 This had two direct consequences:
 Foreword xvii
 First, the EP may actively influence the very shaping of the international
agreement during the phase of the negotiations until its conclusion,
including its provisional application. The EP of course exercises more
influence where it has to vote the approval of the agreement.
 Second, the procedure became more transparent, because the EP meets
generally in public and debates openly, within the parliamentary com-
mittee responsible and at the plenary session, the very purpose of the
agreement and its evaluation concerning the negotiation and conclusion.
This practice has altered substantially the situation which prevailed before,
where secrecy was the rule and consequently the lack of information of
the citizens concerned. A few examples illustrate this new situation with
extensive debates in the EP and in the civil society at large concerning
important recent international agreements, such as SWIFT, PNR, ACTA,
Morocco Fisheries Agreement (second Protocol), CETA and TTIP.

Things have changed so deeply that the Commission, which was in the past
rather discreet, now declares with conviction, concerning trade agreements, that

citizens have the right to know what the Commission is proposing. Gone
are the days of no transparency. Gone are the days of rumours, of inces-
santly questioning the Commission motives. The Commission thus com-
mits itself to publish in full all draft negotiating directives, which it will
propose to the Council.8

This does not exclude that, in some instances, during the negotiating process,
information could have a confidential treatment. However, Article 218 (10)
TFEU, as interpreted by the Court of Justice, requires the Council and the
Commission to transmit also classified information to the EP. In order to
respect this legal obligation, the institutions have concluded interinstitutional
agreements, and only the one concerning classified information relating to
CFSP still needs to be concluded between the Parliament and the Council.
There are still two other questions which are worth mentioning in this
context: one is about the competence to conclude an international agreement
and the consequences as for the relationship between Member States (includ-
ing their national parliaments) and the EU institutions; and the other con-
cerns the need to respect the institutional balance and the principle of sincere
cooperation.
As for the question of competence and the delimitation of what is exclusive
or shared competence, that is a matter that has occupied the legal doctrine
and the Court for many years now, as is well described in the volume. The idea
that the Treaty of Lisbon would reduce in practice the resort to mixed agree-
ments, and that international agreements would be more systematically con-
cluded by the Union alone proved to be a naïve perception. Following the
entry into force of the Treaty of Lisbon, it is the opposite that has occurred.
As it has been said, mixed agreements are here to stay,9 or, as formulated by
xviii Foreword
Guillaume van der Loo in his contribution in chapter 11, ‘old habits die
hard’. The recent case-law seems to confirm this statement, even if the Court,
in many occasions, acknowledged the exclusive competence of the EU, such
as in the Broadcasters judgment (case C-114/12) or in the Opinion on the
1980 Hague Convention (Opinion 1/13).
In Opinion 2/15 of 16 May 2017 the Court considered that the Free Trade
Agreement with Singapore falls within the exclusive competence of the EU
with some exceptions, in particular the provisions relating to non-direct
investment (section A of chapter 9 of the agreement) and those relating to the
Investor-State Dispute Settlement (ISDS) (section B of chapter 9 of the
agreement). As for the latter, the Court underlined that this dispute settlement
regime falls within a competence shared between the Union and the Member
States. The Court noted that a claimant investor may decide pursuant to the
envisaged agreement to submit a dispute to arbitration, without the Member
State concerned being able to oppose this. Such a regime removes disputes
from the jurisdiction of the courts of the Member States, and cannot therefore
be established without the Member States consent. It has been held that, fol-
lowing this Opinion, the Union’s exclusive competence in foreign direct
investment becomes practically unfeasible. The link between direct and indir-
ect investments, together with the attached dispute settlement system makes it
very difficult for these areas of regulation to be split in different international
agreements.10
This finding of the Court seems to have already some concrete impact,
because on 8 December 2017 the EU and Japan finalised the negotiations on
an Economic and Partnership Agreement, without such a dispute settlement
mechanism, so that the agreement may be concluded by the Union alone, and
not as a mixed agreement.11 The negotiations on investment protection will
continue separately.12
The other question concerns the practical and concrete difficulties in
respecting fully the principles of institutional balance and mutual sincere
cooperation. It is not possible to deepen here the very concepts or to revisit
the pertinent case-law. The legal doctrine is rather abundant on the subject.
My intention is merely to refer to some tensions in the implementation of
Article 218 TFEU, which reveals two different approaches: one where the
institutions apply the provisions, as they stand basically, and another accord-
ing to which the Member States intervene actively in the EU procedures,
where in principle, only the institutions are entitled to act.
Two different types of situations have given to the Court the opportunity to
provide guidance. One is about the so-called ‘hybrid acts’ adopted jointly by
the Member States and the Council, and the other is about the implementation
of Article 218 (9) TFEU.
The abovementioned hybrid acts were adopted jointly by the Member
States and the Council in relation with the situation of mixed agreements. The
idea was to demonstrate, in practical terms, how close the duty of cooperation
could be exercised. The Commission (supported by the EP) denounced this
 Foreword xix
practice and brought two cases before the Court: one about a joint decision
by the Council and the Member States authorising the Commission to
negotiate a convention of the Council of Europe on the rights of a broad-
casting organization13 and the other relating to a joint decision on the sig-
nature and provisional application of two mixed agreements concerning the
Air Transport Agreement between the USA, the EU and its Member States,
Iceland and Norway.14
In both cases the Court annulled the joint decisions (‘hybrid acts’). In the
first case, the Court actually did not examine the nature of the acts, because it
considered that the competence to conclude the convention of the Council of
Europe was exclusive, and thus there could be no mixed agreement. However,
the conclusions of AG Sharpston are particularly interesting for our purpose.
She underlined that Article 218, paragraphs 2 and 8, TFEU could not allow
for the adoption of a joint decision, and she also pointed out that this implied
a shift in the voting procedure within the Council, in violation of Article 218
(8) TFEU, with consequences on the very content of the decision (‘the con-
tent of a decision which can command a qualified majority might need to be
watered down in order to be approved unanimously or without any opposition’,
paragraph 189).
In the second case, AG Mengozzi made the point that such joint decisions
are not foreseen in Article 218 TFEU, and moreover undermine the autono-
mous decision-making process of the EU institutions and cause damage to
the autonomy of the EU as a specific legal order (paragraph 80). The Court
followed in substance the same reasoning. It also responded to the argument
put forward by the Council and the Member States participating in the pro-
cedure, according to which a joint decision was the expression of the principle
of duty of cooperation required by the Court in the international representa-
tion of the Union. According to the Court ‘that principle cannot justify the
Council setting itself free from compliance with the procedural rules and
voting arrangements laid down in Article 218 TFEU’ (paragraph 55). The
Court underlined that there were in reality two different acts: one was a
Union act under Article 218 TFEU and one intergovernmental.15 It has been
pointed out, as a criticism, the paradox of accepting the technique of mixity
as EU common practice whilst refusing hybrid decisions during the procedure
of their conclusion.16 Yet the Court clearly identified that the confusion of
two procedures of different nature violates the Treaties, in particular the rule
concerning the voting procedure (Article 218 (6) TFEU), which is not at the
disposal of the institutions or the Member States.
The other situation where a certain tension exists between Union acts and
intergovernmental acts relate to a recent Court case purporting to an act
adopted on the basis of Article 218 (9) TFEU. Concerning the preparation of
the position of the EU in the World Radio Communication Conference 2015
(WRC-15), the Commission submitted to the Council a proposal for a
Council decision on the position to be adopted by the EU at the conference.
The proposal was based on Article 114 TFEU in conjunction with Article
xx Foreword
218 (9) TFEU. Instead of adopting this decision, the Council adopted
‘conclusions’ (without any legal basis indicated in the act).
The Commission submitted before the Court that the Council infringed Arti-
cle 218 (9) TFEU. The Council was supported by four Member States: Czech
Republic, Germany, France and the United Kingdom. The Court annulled
the Council conclusions (adopted on 26 October 2015) and considered that by
adopting conclusions instead of a decision, as laid down by Article 218 (9)
TFEU, the Council infringed ‘the essential procedural requirement laid down
in that provision’. It emphasised that the Council ought to have indicated
explicitly the substantive and procedural legal basis, which has constitutional
significance, in terms of conferral of powers and of preservation of the pre-
rogatives of the institutions concerned by the procedure for the adoption of
the act in question (here it should have been qualified majority voting, as laid
down in Article 218 (9) TFEU, instead of unanimity).17
Are these examples only a sort of ‘incident de parcours’ or do they illustrate a
misuse of the principle of institutional balance and the duty of sincere coop-
eration? Does the Court give clear guidance that it is legally impossible to
conciliate a Union act with an act adopted by the Member States? Are simi-
lar situations likely to occur again in the manner in which the Treaties are
applied?
Surely, as the Court has repeatedly held, insofar as the rules regarding the
manner in which the EU institutions arrive at their decisions are laid down in
the Treaties and are not within the discretion of the Member States or of the
institutions themselves, the Treaties alone may, in particular cases, empower
an institution to amend a decision-making procedure established by the
Treaties.18
Another situation where this type of different approach has been visible is,
of course, the very existence of mixed agreements. The Court has not set itself
against them, it has basically emphasised that they cannot undermine the
Union’s procedures on the autonomy of the Union as a treaty-maker.
Yet one may fear that, in some cases, mixed agreements have been preferred
by (some) Member States concerning trade agreements, where their provisions
could be covered by the exclusive competence of the Union, only because
they have an important impact on the daily lives of the citizens and under-
takings. It is also plausible that, for reasons of political legitimacy, some
national parliaments put pressure on their governments, to insert provisions in
trade agreements, where the EU competence is in principle exclusive, in order
to make sure that they will be mixed, with the consequence that the national
parliaments will have a say through the ratification procedure. Does this show
a lack of trust on the political responsibility of the EP or indeed on their own
governments, upon which they exercise political control?19
These questions will be raised possibly each time there is an important EU
agreement to be concluded by the EU, and that is fortunate, because it
demonstrates the interest of the citizens and undertakings to be actively
involved in the EU decision-making process. It is crucial for the EU to
 Foreword xxi
protect this right. The Union institutions are obliged to ensure the participa-
tion of civil society and thus to work openly in accordance with Article 15 (1)
TEU.
Balanced responses need to be found, combining the two democratic legit-
imacies: EU and national, without one encroaching on the other. It is indis-
pensable that the Member States and the Union institutions provide clear and
fair answers to these legitimate expectations and fears from the citizens con-
cerning the EU ambitious external policy, while respecting, at the same time,
the autonomy of the EU legal order and the Treaties which the Member
States have approved.20
Thanks to the excellent quality of the contributions in this volume, I have
no doubt that the reader will find appropriate and comprehensive reflections
(and answers) to a complete set of complex legal issues relating to the Union’s
external action.

Ricardo da Silva Passos

Judge of the General Court

Notes
1 Commission, ‘A Balanced and Progressive Trade Policy to Harness Globalization’,
(Communication) COM (2017) 492 final.
2 <http://www.consilium.europa.eu/media/20950/68827.pdf> accessed 23 January 2018.
3 P-J Kuijper, ‘Litigation on External Relations Powers after Lisbon: The Member
States Reject Their Own Treaty’ (2016) 43 Legal Issues of Economic Integration 1–
14. He wrote: ‘The Member States did not want the new treaty provisions to be
implemented and at the same time strove to upset the balance between the insti-
tutions where it had been maintained unchanged by (…) the Member States as
constitutional legislators’.
4 Case C-137/12, Commission v Council, ECLI:EU:C:2013:441.
5 The democratic legitimacy is not implemented without difficulties. As Professor
Timmermans pointed out there is still a problem of identification of the EU citi-
zens with the EP. He claims the EU citizens generally do not consider that they are
represented by the EP, see C Timmermans, ‘Intégration européenne, démocratie et
rôle de la Cour de justice : quelques remarques éclectiques’ in A Tizzano et al.
(eds), La Cour de justice de l’Union européenne sous la présidence de Vassilios
Skouris (2003–2015), Liber Amicorum Vassilios Kouris (Bruylant 2015) 634.
6 Case C-658/11, Parliament v Council (Mauritius), ECLI:EU:C:2014:2025, para 81.
7 Case C-263/14, Parliament v Council (Tanzania), ECLI:EU:C:2016:435, para 76.
8 Commission President J-C Juncker, ‘State of the Union Speech’ (Brussels, 13
September 2017).
9 By the way ‘shared’ is not ‘mixed’ and it is possible that an agreement over which
the EU has shared competences can also be concluded by the EU only. See for a
deep analysis of these issues, F Castillo de la Torre, ‘The Court of Justice and
External Competences After Lisbon: Some Reflections on the Latest Case-Law’ in
P Eeckhout and M López-Escudero (eds), The European Union’s External Action
in Times of Crisis (Hart 2016) 130–184.
10 A Segura-Serrano, ‘The Recurrent Crisis of the European Union’s Common
Commercial Policy: Opinion 2/15’(2017) 3 European Papers 843.
11 Agence Europe, 12.12.2017.
xxii Foreword
12 In this context it is worth mentioning that Belgium has introduced before the
Court a request for an opinion under Article 218 (11) TFEU concerning the
CETA Agreement (but still with the ISDS dispute mechanism).
13 Case C-114/12, Commission v Council, ECLI:EU:C:2014:2151.
14 Case C-28/12, Commission v Council, ECLI:EU:C:2015:282.
15 See about the hybrid acts and other issues concerning the principle of sincere
cooperation, M Cremona, ‘EU Treaty-Making After the Lisbon Treaty – A Text
Case for Mutual Sincere Cooperation?’ in D Czuczai and F Naert (eds), The EU
as a Global Actor Binding Legal Theory and Practice, Liber Amicorum in Honor of
Ricardo Gosalbo Bono (Brill/Nijhoff 2017) 424–450.
16 T Verellen, ‘On Hybrid Decisions, Mixed Agreements and the Limits of the New
Legal Order: Commission v. Council (“US Air Transport Agreement”)’ (2016) 53
CML Rev 752, quoted by Luis González Alonso in his contribution in chapter 1.
17 Case C-687/15, Commission v Council, ECLI:EU:C:2017:803.
18 Cases C-643/15 and C-647/15, Slovakia and Hungary v Council, ECLI:EU:
C:2017:631, para 149.
19 In this context it would not be satisfactory, in my view, to have recourse to non-
legally binding instruments through a decision-making procedure lacking in prin-
ciple democratic scrutiny, just to avoid the drawbacks inherent to the conclusion of
mixed agreements, as Paula Garcia Andrade points out in her contribution in
chapter 6.
20 See in this context the excellent contribution from Professors Jan Wouters and
Kolja Raube in chapter 10, where they analyse the Namur and Brussels Declarations
in the context of the CETA Agreement.
The democratic legitimacy of EU
international relations: an introduction
Juan Santos Vara and Soledad R. Sánchez-Tabernero

1 Are EU international relations democratic? A question worth asking

Democracy in EU international relations is a hot topic. The debate over the
democratisation of the EU in general and of international relations in parti-
cular has made its way to the top political level in the EU, being an important
element of President Juncker’s State of the Union Address of 2017 before the
European Parliament (EP).1 The Commission has listened to demands from
the EP and from civil society to enhance transparency in the conduct of its
international relations, and in particular concerning international trade
agreements.
It is not only the questions of transparency and international agreements
that have gained heightened attention in civil society and media, but also
several landmark cases have reached EU courts and have been received with
great interest by the specialised literature. As the title of this book suggests,
EU law is playing a key role in the democratisation of EU international
relations. Nevertheless, and despite this great interest, a comprehensive legal
analysis of the new developments in democratic control of EU external action
has not been yet performed.
For that reason, the Editors aimed at filling this gap by providing the
reader with a comprehensive review of the most salient issues in EU law
contributing to the democratisation of the conduct of EU international rela-
tions. This edited volume has been conceived in the framework of the Jean Monnet
Chair in EU External Action at the University of Salamanca awarded to
Professor Juan Santos Vara in 2016 (574677-EPP-1–2016–1-ES-EPPJMO-
CHAIR). It is primarily based on further reflection and discussion on the
works presented at the panels on the democratisation of EU international
relations through EU law at the European Union in International Affairs
Conference (EUIA) held in Brussels in May 2016 as part of the research
project on ‘Democratic Control and EU External Action (EUDECEXT)’
funded by the Spanish Ministry of Economy (DER2015 70082-P). These dis-
cussions benefitted from greater reflection on some of these contributions that
were tested against the views of senior practitioners from the legal services of
the EU institutions and other academics at a seminar held at the Leuven
2 Juan Santos Vara and Soledad R. Sánchez-Tabernero
Centre for Global Governance Studies in July 2016 under the title of
‘Reassessing Institutional Balance in EU External Relations Post-Lisbon’.
As a result of these enriching exchanges, the Editors aimed at filling this
identified gap in the literature by performing a comprehensive overview on
democratic control and – more broadly – democratic scrutiny in EU external
action. For this purpose, a number of key and timely themes that needed to
be addressed in order to provide an adequate picture of democracy in EU
external action were identified. In this regard, the role of the Court in balan-
cing the principles of democracy and institutional balance deserved to frame
the analysis, in order to later explore the role of the EP in the conclusion of
international agreements post-Lisbon, which has greatly benefitted from the
Court’s interpretation. The role of the EP is however not limited to the
conclusion of international agreements, but also touched upon oversight over
foreign and security policy, as well as its role in monitoring financial
accountability.
A first reflection on the concepts of democracy and legitimacy was con-
ducted and provided to the authors by the Editors in order to have a common
understanding of the concepts of democracy and legitimacy in the EU. The
authors were asked to take account of the following concepts of democracy
and legitimacy, understanding the EU as a democratic infrastructure with
democratic traits stemming from the concepts of representative democracy or
deliberative democracy, within the framework of the dual source of legitimacy
existing in the EU. Each of these contributions aim to exemplify the way in
which democracy and legitimacy have played a role in each of the key themes
outlined, with a clear focus on the way the Court has facilitated the role of
the EP and the use that it has made of its new prerogatives. Finally, the last
section of the book tackles more precisely the dual source of legitimacy by
focusing on national parliaments in the context of mixed agreements and
whether they are indeed rebels with a cause.

2 Democracy and legitimacy in the European Union

The democratic legitimacy of the EU and the existence or absence of a
democratic deficit raises the very question of the understanding of what the
Union is and what it should be. In this sense, intergovernmentalists find
legitimacy in national legislatures from which law-making legitimacy of the
Union stems in a form of principal/agent or delegation of the Member States’
rulemaking power, while integrationists find the source for legitimacy in a
Union level authority.2 In the case of the EU, if legitimacy is to be found in
the principal’s control over the delegate, the principal being the Member
States and the delegate being the Union, this appears to be hardly the case in
‘a supranational policy attenuated from national control’.3 While the Member
States remain the Herren der Verträge, 4 the legitimacy derived from national
democracies through the Member States decreases when the veto power of the
Member States disappears.5 In the context of the EU, more modes of
 An introduction 3
representation, supervision, procedures of monitoring and manners of expres-
sion of preferences become available while at the same time democracy appears
ever more diluted due to the multiplication of the possibilities of relating to
institutions.6
Differently from Member States, the debate over legitimacy of a suprana-
tional organisation such as the EU questions its very existence.7 Nevertheless,
claims over democratic deficit in the EU occasionally derive from underlying
assumptions that aim to compare the Union with different normative pre-
mises that do not necessarily apply to the Union.8 This is mainly due to its
institutional architecture, which does not follow a classical separation-of-
powers model as well as to the fact that the EU lacks a fully-formed demos. 9 The
debate over the democratic legitimacy of the Union inevitably brings back issues
of input and output legitimacy, which are common to complex democracies.10
In the EU, input and output legitimacy can occasionally contradict each
other. While not diminishing output legitimacy in the form of hampering
decision-making, it has been argued that a stronger input legitimacy is needed
if the EU is to be seen as a democratic polity.11
As part of a multilevel constitutional structure with federal or quasi-federal
traits,12 the Union can hardly be boxed into a pure majoritarian model of
democracy and it must rest on a dual structure of legitimacy where rather
than replacing the Member States it seeks to supplement them.13 However, non-
majoritarian organisations also present legitimacy problems which apply to the EU
and which are also embodied in this notion of democratic deficit such as a lack of
transparency, the insufficient public participation in EU decision-making and
the inadequacy of the mechanisms of control and accountability.14
In order to justify its existence and its exercise of the tasks attributed to it,
the EU must be endowed with a combination of sources of legitimacy and
democratic traits that can be based on the system of indirect, non-majoritarian
and multilevel democracy already in place but need strengthening.15 While
admitting that the EU’s standards cannot be based on national standards or
Westphalian conceptions and on the basis of this dual structure of legitimacy,
there are several elements that can be identified in the multilevel system of
democracy in the EU, particularly on the basis of an analysis of Articles 9–12
of the Treaty on European Union (TEU) and that can denote the existence of
a ‘democratic infrastructure’16 or a form of ‘democratic governance’.17 A first
element is that of representative democracy, which is deeply linked to the
democratic principle in the EU.18 This is enshrined in the Treaties as a result of
the Treaty of Amsterdam (ex Article 6 EU and current Article 10 TEU). The
concept of representative democracy found in the Treaties derives the repre-
sentative legitimacy of the EU from a dual source: the Council and the
European Council, stemming from the democratically elected representatives
in the Member States,19 and the EP, directly elected by the citizens. This form
of representative democracy enshrined in the EU’s constitutional charter is
however not centred on the will of the people, but rather focuses on the
individual with the concept of citizenship at its core.20
4 Juan Santos Vara and Soledad R. Sánchez-Tabernero
Aside from the ballot box, other forms of citizen intervention contribute to
the legitimation of a contemporary democratic system, in line with a more
deliberative democracy, such as the possibility of contestation, protest and
critique.21 Furthermore, the EU currently shows traits of participatory
democracy, although rather limited (see inter alia the European Citizens’
Initiative). This is in line with von Bogdandy who, on the basis of Articles 9–12
TEU ‘suggests that the cornerstones of European democracy are civic equal-
ity and representation, supplemented with participation, deliberation, and
control’.22 This can be found particularly in Articles 10–11 TEU, which lay
strong emphasis on transparency. The principle of transparency has thus
become a corollary of the democratic principle in the EU in connection with the
requirement that decisions must be taken as openly as possible (the principle
of openness).23
In this context of deliberative democracy, the EP attains particular impor-
tance regarding contestation and responsiveness. This has become a more
salient issue in the field of international relations. Recent events in the EU
have shown an increased public awareness on issues relating to international
relations. Cases such as the Transatlantic Trade and Investment Partnership
(TTIP) have led to the development of unparalleled transparency machinery.
The role of the EP in these cases serves to channel contestation at EU-wide
level. Furthermore, as the notion of the public space must be seen in a
dynamic perspective, confrontation at EU level through the EP can also
contribute to enhancing the incipient European public sphere.
In a multilevel composite such as the EU there is a strong relationship
between the two sources of legitimacy namely the Member States and the
citizens, represented by the EP. This strong interrelationship is well pictured in
the connection between the democratic principle and the principle of institutional
balance (Article 13(2) TEU). This places the Court as a non-majoritarian and
independent institution as a warrant of the system of checks and balances
established in the Union.24 The balance between the institutions can be
understood from two perspectives: legal and political.25 The political aspect,
referring to the distribution of powers among the institutions that has been
substantially altered throughout the Treaty reforms and particularly as a
result of the Treaty of Lisbon, resulting in a somewhat unclear picture. From
a legal or constitutional perspective, the principle of institutional balance is
based on the notion that the institutions must act within the limits of their
powers and with due regard to each other’s prerogatives.26 In the latter sense,
institutional balance must be understood in the harmonic accommodation
that it should form with the principle of democracy.27 Insofar as democratic
legitimacy of the Union derives from two sources, the principle of democracy
cannot overrule that of institutional balance to the extent that the EP gains
decision-making powers where it is not supposed to do so.28 The principle of
institutional balance must be interpreted in a dynamic form and in light of
the Court’s case law insofar as the Court defines and redefines the implica-
tions of the application of this principle to interinstitutional relationships
 An introduction 5
depending on the context, as assessed in the contribution by González
Alonso.29 This also raises questions on the role of the Court in the EU’s legal
order30 and brings back claims over judicial activism or alternatively of judicial
self-restraint, as defended by Terpan in this volume.31

3 The EU in international relations: more democratic but less efficient?

For a number of decades, the traditional debate surrounding the democratic
deficit affecting the European integration process has also focused on its
external sphere.32 Just as its external dimension has evolved and strengthened,
so have the control powers of the EP over it. This has been particularly sali-
ent, although not exclusively, in the context of its involvement in the proce-
dure for the conclusion of international agreements with third countries and
other international organisations, as currently provided for in the unified
procedure in Article 218 of the Treaty on the Functioning of the European
Union (TFEU). Furthermore, it is well known that the EP has been active
in making the most out of these prerogatives and of its budgetary powers in
order to shape in a much broader manner the whole of EU external action,
also in areas where its intervention was a priori not foreseen. We argue that a
greater involvement of the EP contributes to fostering public debate and
contestation at an EU-wide level and therefore contributes to enhancing
deliberative democracy in the Union.33 This is reinforced by the transparency
and openness created by parliamentary involvement as opposed to the reigning
secrecy in the Council and European Council.34
As in many other fields, the entry into force of the Treaty of Lisbon has
introduced new elements that are of great relevance in the context of this
debate. It is important to recall, in the first place, that the long ‘constituent
process’ that led to this reform of the Treaties was already marked since its
very origins in the Laeken Declaration of 2001 by a clear will to reinforce the
democratic legitimacy of the integration process as a whole and more specifi-
cally to strengthen the democratic input in the legal architecture and the
panoply of legal instruments at the service of its external action. This set of
modifications in the Treaties have contributed to a significant change in the
legal and institutional model that prevailed in EU external action, as well as
to a further development of the explicit inclusion in EU primary law of the
democratic principle (see Articles 9–12 TEU), and therefore to a change in
the means and concrete mechanisms through which those are manifested in
the functioning of the Union.
Some of those Lisbon novelties aimed at reinforcing democracy are not
applicable by their very nature to EU external action, as is the case of the
European Citizens’ Initiative or the subsidiarity control mechanism. Despite
the peculiarities that affect external action or foreign policy, sensu lato, it
appears evident that the new and interesting developments taking place in this
field since the entry into force of the Treaty of Lisbon point towards an
emergence of a specific model of democratic control in EU external action.
6 Juan Santos Vara and Soledad R. Sánchez-Tabernero
As a system of dual legitimacy and in view of the limited pooling of sover-
eignty in areas of foreign policy such as Common Foreign and Security Policy
(CFSP), the Council has remained as a relevant source of legitimacy and as the
key decision-maker in foreign policy strictu sensu in the EU. However, sensu
lato, the EP has gained increasing powers that can even appear unparalleled
to national or federal democracies, where the executive traditionally had a
primary role in the course of foreign affairs.35 In this context, the European
Court of Justice has played a key role in reinforcing the EP’s prerogatives
particularly in the field of international agreements concerning CFSP. In this
regard, Terpan argues in this volume that the Court has been particularly acti-
vist with regards to the Pirate-Transfer Saga, concerning the right of infor-
mation, but not with regards to other cases concerning the rights of consent
or of consultation.36 From the following contributions it is hardly possible to
determine a clear pro-Parliament line of reasoning in the case-law of the
Court. However, as an independent institution policing the system of checks
and balances established in the EU, the Court has through its interpretation
of the principles of institutional balance, of democracy and of consistency,
contributed to enhancing the powers of the EP in the past years.37
The limited powers of the EU have also led to the recurrent use of mixed
agreements, occasionally due to the lack of EU competences but also due to
the will of Member States to maintain their visibility in the international
arena.38 Such recourse increases the democratic input at national level but at
the same time can hamper decision-making at Union level through the pos-
sible blockage caused by the decisions of a single parliament or a single
Member State, as has been made evident by the gridlock on CETA caused by
the Wallonian ‘non’ or the Dutch referendum on the EU-Ukraine agree-
ment.39 This raises the very question of whether one can expect national
parliaments to defend European interests or rather national interests and
therefore whether the EP would be better suited for defending EU interests, in
light of the EU multilevel governance structure.40
On a similar note, it has been argued that ‘if the EP could successfully
claim to represent EU citizens as a group in external relations (…), citizens
may feel better represented through the EP than through national parlia-
ments’.41 Particularly, in the context of EU external relations, the EP has
shown to be an influential actor. This degree of influence which appears
greater than that of national parliaments could lead to an adjustment of the
popular interest and sense of representation from the part of the EU citi-
zens.42 Furthermore, the increase of democratic control powers by national
parliaments versus the EP runs the risk of fragmenting democratic control
into 28 democracies. This could result in a popular perception of contestation
and conflicts between the interests of the different Member States, which
could lead to frustration by the citizens of the given Member States insofar as
a single parliament can hardly block decision-making.43
The classic tension between effectiveness and democratic control has always
been linked to this debate in the foreign policies of the Member States.44 The
 An introduction 7
case of the EU is complicated further, and even more so since the entry into force
of the Treaty of Lisbon, due to the complex system of external representation
and negotiation of international treaties, which is causing a non-stop inter-
vention of the Court of Justice in the context of interinstitutional disputes.
However, while Lisbon has changed a number of aspects regarding the balance
of power between the institutions particularly in the context of the conclusion
of international agreements, other have remained unchanged. Where there
have been changes, the Court has conceded to the claimants.45 However, where
the institutions have tried to rely on the changes of the Treaty of Lisbon as a
pretext to alter the existing balance, the Court has rejected their claims.46
Among those post-Lisbon developments, reference should undoubtedly be
made to the enhanced institutional role of the EP and to the particularly persis-
tent attitude with which it has been asserting its new powers over the past
years.47 This occurs as the natural result not only of the new control powers
resulting from Article 218 TFEU,48 which arguably place it in a more solid
position than that of national parliaments (at least for the exercise of demo-
cratic control of the conclusion of EU-wide international agreements),49 but
also thanks to other mechanisms in the field of CFSP.50 The background for
our research is constituted by those post-Lisbon developments, which are
obviously linked to the reinforced institutional position of the EP, but also to
the role of other actors such as the rest of the EU institutions, its agencies, the
European External Action Service and even national parliaments. Further-
more, the complexity of the international agreements currently being devised
by the EU requires close attention regarding the democratic input during the
life of the agreements. Issues such as the devised mechanisms on regulatory
cooperation included in the TTIP can cause serious constitutional and
democratic concerns if the EP’s powers are impinged through an extensive
‘policy-shaping’ that could impinge on ‘policy-making’ functions.51 On the
basis of this scenario, this volume will offer the reader an understanding of
the set of mechanisms through which democratic control is exerted over the
EU external action with particular emphasis on the role of the Court in
policing democracy and institutional balance.
Furthermore, the Court of Justice has recently connected the principles of
democracy and institutional balance with the principle of consistency in EU
external action as laid down in Article 21(3) TEU.52 It did so in relation to
the duty to inform the Parliament at all phases of the procedure in the con-
text of the conclusion of international agreements (Article 218(10) TFEU).
The use of the principle of consistency to inform the interpretation of gap-
bridging provisions such as Article 218 TFEU could point towards a shift in
the focus of the Court’s case law from the first sentence of Article 13(2) TEU
to the development of synergies in a more ‘cooperative jurisprudence’, as has
already occurred regarding the vertical dimension.53 The principle of con-
sistency can therefore contribute to informing the interpretation of certain
procedural obligations towards the achievement of positive synergies that
would in turn lead to material consistency between CFSP and non-CFSP
8 Juan Santos Vara and Soledad R. Sánchez-Tabernero
external policies being achieved, thanks to the input of the Parliament in both
CFSP and non-CFSP policy areas.54 What appears intriguing and calls for
further research is the fact that while the EP is not among the ‘main trustees’
of coherence and consistency according to Article 21(3) TEU, the Court in
interpreting Article 218(10) TFEU in connection with Article 21(3) TEU has
de facto given a greater role to the EP in ensuring cross-pillar consistency
than to the Commission, who has no role as an institution in the context of
CFSP agreements, except for the HR/VPs belonging to the college of
Commissioners.
The timely question of parliamentary oversight of EU external affairs has
attracted heightened attention from some scholars in EU external relations
law – some of them contributing to this book – and from political scientists.55
However, at the time of writing, it is apparent the democratisation of EU
external action has not been analysed in the literature in a systematic and
comprehensive manner from a legal perspective. This book does not seek to
provide a complete historical overview of the democratisation of EU external
action. Instead, it aims to offer the reader a detailed and topical analysis of
the recent developments in democratic control of external action, which are
of relevance in the daily practice of EU external relations lawyers. This is
even more so at a point where the EP’s powers and informal leverage must be
considered more than ever, particularly in the context of the negotiation of
international agreements where high economic interests for the EU and its
trade partners are at stake, and when civil society appears to be reacting to
what the EU does outside its borders in an unparalleled manner.56 Without
aiming to provide crystal clear answers, this exercise will allow for reflection
as to the quality of the ‘democratic infrastructure’57 of the conduct of EU
international relations.

4 The democratic legitimacy of EU international relations: an overview

For that purpose, this book is formally structured around the role of law in
the democratisation of EU international relations in four areas that were
identified as the key themes worth tackling for a comprehensive analysis: the
defence of institutional balance by the Court of Justice and its relationship
with the democratic principle and the Parliament; the role of the EP in the
conclusion of international agreements in the post-Lisbon period; the demo-
cratic oversight by the EP beyond the conclusion of international agreements;
and the role of national and subnational democracies as an extra layer of
legitimacy. It presents novel perspectives on the interesting developments
taking place in the field of democratic control of external action in the post-
Lisbon period through the contributions of a number of legal scholars of
different levels of seniority working in the field of EU external relations.
Part I aims to frame the discussion on the basis of basic concepts such as
institutional balance and democracy. It focuses on the sources of legitimacy of
the EU’s foreign affairs powers and the role of the Court of Justice in the
 An introduction 9
patrol of institutional balance and the democratisation of EU international
relations. The Court of Justice has long acted, on the one hand, as a warrant
of the principle of institutional balance, and on the other, developed an
inevitably pro-integrationist case law. This has led to judicial activism claims.
Nevertheless, concerning the EP, the Court has not always been seen as acti-
vist, but rather as exercising self-restraint. This volume questions claims of
judicial activism in connection with the democratisation of EU external
action. Therefore, the first Part includes an analysis of the latest interinstitu-
tional disputes post-Lisbon, as well as a critique of the judicial activist claims
concerning the Court of Justice.
In chapter 1, Luis N. González Alonso conducts a comprehensive analysis
of the significant role that the principle of institutional balance has played in
the post-Lisbon jurisprudence on external action. He analyses the degree of
autonomy with which the ECJ conceives the operation of the principle of
institutional balance in this field, paying particular attention to the principles
of conferral and loyal cooperation. González Alonso also examines the com-
plex interaction between democracy and institutional balance within the cur-
rent model of democratic control of the external action of the Union. In this
context, the analysis conducted reveals that, regardless of these latest devel-
opments, the model of democratic control over the external action of the EU
is destined to be characterised by a high degree of judicialisation, at least
more intense than what is usual at national level within federal systems.
Fabien Terpan looks, in chapter 2, at the case law of the Court of Justice of
the EU with regard to the external powers of the EP, since the 1990s, and
seeks to answer the following question: is the Court supportive of the EP in
the field of external action? Historically, the Court of Justice has compensated
for the lack of powers of the EP by using the principle of institutional balance
with a view to strengthening the position of the EP in the EU system. Since
the 1990s, however, the Court is sometimes presented as an actor exercising
self-restraint instead of activism. In his contribution, Fabien Terpan defends
the view that, in the case of the Parliament’s external powers, the Court has
not opted in favour of a bold jurisprudence. Both the legal interpretations of
the Court and its positioning towards the EU institutions tilt the balance
towards self-restraint.
Part II aims to exemplify the broadened powers granted to the EP thanks
to the interpretation of key constitutional principles by the Court of Justice,
particularly in the context of the conclusion of international agreements. In
this regard, it offers a detailed picture of the implications of the reinforced
position of the EP. It intends to capture the influence of the EP in the sub-
stantive content of the agreements, with questions on whether it has acted as
a driver for a more consistent external action, in light of recent developments
in the Court’s case law. Moreover, it focuses on issues with important demo-
cratic implications such as regulatory cooperation and the role of the EP in
this regard concerning ‘living’ agreements such as the TTIP or the TPP, as
well as at the adoption of non-legally binding agreements.
10 Juan Santos Vara and Soledad R. Sánchez-Tabernero
The conclusion of international agreements is one of the areas where the
powers of the Parliament have seen a greater increase. Article 218(6) TFEU
has turned the EP into a co-legislator in areas where the consent procedure
applies and where it exerts an ex-post form of democratic control. However,
Article 218(10) TFEU and Article 207(3) TFEU have also increased the
extent of the EP involvement through ex-ante mechanisms such as the right to
be fully informed at all stages of the procedure. An understanding of the legal
framework governing parliamentary oversight of the conclusion of interna-
tional agreements in light of the latest provisions and of the Court’s case law
on Article 218 TFEU will be a key asset for future negotiations.
The resulting picture arising from these disputes concerning the Court’s
case law on Article 218 TFEU shows a clear empowerment of the EP, which
besides having the power of consent for a large number of international
agreements also has the right to be fully informed at all stages of the proce-
dure, according to Article 218(10) TFEU, even in areas relating to CFSP.
This has been salient in the Parliament’s rejection of the first SWIFT Agree-
ment and the adoption of SWIFT II, as well as in the rejection of ACTA and
the Fisheries Agreement with Morocco. However, the role of the Parliament in
the (pre-) negotiation phases of international agreements is in need of further
clarification. According to the judgment of the CJEU of 14 June 2016 in the
Tanzania case the purpose of this provision in CFSP is not for the Parliament
to participate in the negotiation and conclusion of agreements. This raises the
question of the different levels of parliamentary involvement in CFSP and
non-CFSP areas. An enhanced role in the determination of the substantive
content of the agreement through ex-ante mechanisms could have strong
implications in future international negotiations by the EU and in the EU’s
negotiating position, as well as on the coherence and consistency of EU
external action.
In chapter 3, Juan Santos Vara explores to what extent the new powers
conferred on the EP by the Treaty of Lisbon are enabling it to substantially
influence the content of the international agreements concluded by the EU.
The strengthened role of the EP in the conclusion of international agreements
has led to an increasing influence of the EP on the content of the most
important agreements concluded by the EU in the last years. We have wit-
nessed the consolidation of a new political actor in this field. The reinforced
position of the EP in the negotiation and conclusion of international agree-
ments is one of the developments taking place in the EU external action since
the entry into force of the Treaty of Lisbon that points towards the emergence
of a specific model of democratic control in EU external action. The EP has
presented itself even more than in the past as a normative actor and defender
of EU values and fundamental rights in the negotiation and conclusion of
international agreements in the post-Lisbon period.
The contribution by Soledad R. Sánchez-Tabernero, in chapter 4, looks
into the democracy-consistency nexus and aims to assess the implications
derived from the Mauritius and Tanzania rulings vis-à-vis the enhancement of
 An introduction 11
the democratic principle and the principle of consistency in the conclusion of
international agreements. After a brief analysis of the Court’s rulings in
Mauritius and Tanzania regarding Article 218(10) TFEU, this chapter builds
on the Court’s approach to consistency in Tanzania to support a broad
understanding of the principle of consistency, still largely underdeveloped in
the Court’s case law. Given the link made between the principle of consistency
and the democratic principle in Tanzania, the rationale of the possible contribu-
tion of the EP to consistency is explored, with a focus on the goal-oriented
conception of consistency enshrined in both Articles 7 TFEU and 21(3) TEU.
The author therefore argues that the EP’s involvement – in spite of the Par-
liament not being one of the ‘main trustees’ of consistency according to Article
21(3) TEU – can contribute to the attainment of consistency across the CFSP/non-
CFSP divide in a twofold manner. In this sense, eliminating procedural incon-
sistencies and ‘normalising’ CFSP will in turn lead to material consistency, as
inferred by the Court in Tanzania, with the EP as a more normativist actor in
EU foreign policy.
Davor Jančić analyses, in chapter 5, the implications of the conclusion of
mega-regional trade agreements for democratic participation using TTIP as a
model of deep integration with a brief comparative insight into TPP. He cri-
tically reflects on the democratic deficits that may arise out of contemporary
‘living’ trade agreements and discusses the rationales for increased parlia-
mentary participation in the institutional mechanisms created by such agree-
ments. On this basis and with a specific focus on the EP and the US Congress,
this chapter identifies avenues for legislative participation in post-agreement
regulatory cooperation and provides policy recommendations as to how this
can be achieved.
Chapter 6 by Paula García Andrade explores the limited role of the EP in
the conclusion by the EU of non-binding agreements with third countries.
This situation leads to a lack of democratic scrutiny of an increasing and
relevant part of the EU external action, as recent developments are demon-
strating. Her contribution is thus aimed at analysing and assessing the bal-
ance of powers among the institutions in the adoption of non-legally binding
agreements and, especially, the lack of EP’s involvement, as opposed to the
approval/consultation and information powers conferred on this institution in
Article 218 TFEU regarding the conclusion by the EU of international leg-
ally-binding agreements. As the increasing democratisation of EU external
action calls for a revision of this state of affairs, ways of increasing the
supervision capacities of the EP in conformity with the principle of institu-
tional balance are put forward and the use of non-binding agreements is
generally criticised for diminishing the democratic input and the transparency
of EU external action.
International relations extend well beyond the conclusion of international
agreements, which can be perceived as a tool for regulating them. For that
reason, Part III of the volume focuses on the democratic oversight of the EP
beyond the conclusion of such international agreements. A paradigmatic case
12 Juan Santos Vara and Soledad R. Sánchez-Tabernero
is that of CFSP, which despite its intergovernmental nature has not remained
isolated from the reach of the EP via Article 36 TEU. Part III will provide a
legal overview of parliamentary control over CFSP. The budgetary powers of
the EP as an important leverage in the context of CFSP and Common
Security and Defence Policy (CSDP) and the setup of the multiannual finan-
cial framework and the EU budget are also explored, in particular through
complementary forms of control in the area of financial accountability, notably
performed by the European Court of Auditors and the EP Committee on
Budgetary Control (CONT). Further to these forms of oversight in the con-
text of CFSP, the EP has also developed a practice of launching enquiries on
international affairs affecting the EU, as was the case of the NSA scandal. In
Part III, this practice of the EP receives close attention from a legal perspective
as a form of democratic scrutiny in the broad sense.
On this note, Ramses A. Wessel shows, in chapter 7, that while the question
of CFSP parliamentary oversight has been addressed by political science lit-
erature – in particular vis-à-vis policy legitimacy – legal studies have so far
only addressed the issue to a limited extent. The exclusion of ‘legislative acts’
in the area of CFSP (Article 24 TEU) may form the basis for a traditional
view that the EP has no role to play in CFSP. However, the EP has found
other mechanisms to increase its influence. The ECJ has also clarified the
position of the EP in relation to CFSP in a number of recent cases. Compared
to national parliaments, the EP is far more active with respect to foreign
policy issues. At the same time, the current Treaties underline the role of
national parliaments; but the relevance of these arrangements for CFSP
(including CSDP) is less clear. Ramses A. Wessel offers a legal analysis of the
current state of affairs in relation to parliamentary oversight in the area of
CFSP and CSDP.
In chapter 8, Vigjilenca Abazi considers that executive secrecy is not a new
problem in conducting parliamentary oversight in international relations,
rather the contrary; secrecy in international relations is an acknowledged cir-
cumstance that allows to maintain or re-capture executive privilege. She
argues that notwithstanding these challenges of executive secrecy in foreign
policy, the EP has managed to assert its oversight role. In a number of cases,
the EP conducted oversight in external relations by relying on leaks and
hence has been able to initiate inquiries and produce salient reports. In this
respect, Abazi examines whether the EP has the necessary policy arrange-
ments to provide a counterbalance to executive secrecy and to what extent it
affirms its oversight prerogative despite or beyond the limitations imposed by
the use of secrecy.
Finally, María Luisa Sánchez-Barrueco argues in chapter 9 that financial
accountability mechanisms contribute to the democratic legitimacy of EU
external action but remain a largely under-researched field. She holds the
view that post-Lisbon attempts to instil consistency in EU external action
have focused primarily on the decision-making stage, while further stages in
the policy process (notably policy implementation and financial
 An introduction 13
accountability) still remain largely affected by compartmentalisation across
policy areas. The financial accountability institutions (the European Court of
Auditors and the EP) struggle to cope with the complex financial environment
of EU external action. Innovative financial instruments and mixed financing
with non-EU donors make it difficult for the financial watchdogs to ‘follow the
money’ up to the last recipient, to prevent irregularities, and to ensure that
the values, goals and effectiveness of EU foreign policy are not undermined
during the financial management stage.
As a last element, Part IV focuses on the role of national democracies in
the context of EU external action. It looks at this issue from the perspective
of the multilevel constitutional system established in the EU and the com-
plementary sources of democratic legitimacy. On the one hand, it analyses the
role of national and subnational parliaments and their contribution to the
internal and external legitimacy and effectiveness of the EU. On the other
hand, it looks at the future of mixed agreements and the role of national
democracies in this context. Is the strengthening of democratic input from
national parliaments really required to legitimise EU external action or is the
strengthening of the role of the EP sufficient? Are national democracies not
already represented via their representatives in the Council? Regard is paid to
the events surrounding the Walloon rejection of CETA and the Dutch refer-
endum on the EU-Ukraine agreement. These issues must be seen in the con-
text of the interaction of the principles of constitutional identity of the
Member States, of conferral and of loyal cooperation between the EU and
the Member States.
For this purpose, Jan Wouters and Kolja Raube (chapter 10) look into the
law and practice regarding the role of national parliaments in EU trade policy
after Lisbon. The chapter starts by examining the legal basis of EU trade
policy after the Treaty of Lisbon and by giving an overview of the practice of
trade policy, including recently signed trade agreements and ongoing nego-
tiations. On this basis, Wouters and Raube explore the role and contribution
of parliaments in EU trade policy. However, they also examine the responses
in the current legal and political discourse to the request and practice of
parliaments to become more directly involved in the making of EU trade
policy. To this end, they analyse claims made by national and subnational par-
liaments to become embedded in the decision-making of EU trade policy, for
example in the context of the so-called ‘Namur Declaration’ and ‘Brussels
Declaration’. Finally, Wouters and Raube focus on the recent Singapore
Opinion 2/15 of the Court of Justice of the European Union (CJEU), which is
arguably impacting upon the question of parliamentary involvement, and the
Commission’s response to the aspiration of parliaments regarding their
involvement in trade policy.
A final chapter by Guillaume Van Der Loo (chapter 11) focuses specifically
on the future of mixed agreements after the Treaty of Lisbon. He argues that
although the Treaty of Lisbon significantly decreased the ‘need’ to conclude
mixed agreements, for example by broadening the scope of the exclusive
14 Juan Santos Vara and Soledad R. Sánchez-Tabernero
common commercial policy, numerous international agreements have been
categorised as ‘mixed’ in the post-Lisbon era. Mixed agreements are thus still
a common practice in the EU’s external relations. Nevertheless, several legal
issues of this heterogeneous group of agreements remain unclear. After pro-
viding an overview of the legal and political reasons to opt for mixity in its
various forms (i.e., compulsory mixity and facultative mixity),58 Van der Loo
briefly analyses the role of the EP and the different national parliaments in
the conclusion of mixed agreements. This provides the ground for tackling the
three key legal questions related to the participation of national parliaments
in the conclusion of mixed agreements identified by the author: is there a duty
on the national parliaments to ratify?; what exactly do national parliaments
need to ratify and what is their role with regard to the provisional application
of such agreements?

Notes
1 President Juncker, State of the Union Speech, 13 September 2017.
2 C Harlow, ‘The Limping Legitimacy of EU Lawmaking: A Barrier to Integration’
(2016) 1 European Papers 29, 35–36.
3 N Walker, ‘Justice In and Out of the European Union’ in D Kochenov, G De
Búrca and A Williams (eds), Europe’s Justice Deficit? (Hart Publishing 2015) 251ff.
4 The Treaty of Lisbon has at the same time reinforced the role of the Member
States as Herren der Verträge. See in this regard P Andrés Sáenz De Santamaría,
‘El Tratado de Lisboa y la alargada sombra de los Estados’ (2010) 18 Revista de
Derecho de la Unión Europea 55ff; J Martín y Pérez de Nanclares, ‘La posición de
los Estados miembros ante la evolución de la Unión Europea: comprometidos con el
proceso de integración, convencidos de la necesidad de reforzar los rasgos de
intergubernamentalidad’ (2015) 50 Revista de Derecho Comunitario Europeo
125–171.
5 G Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4
ELJ 5–28, 12; see also M Nettesheim, ‘Developing a Theory of Democracy for the
European Union’ (2005) 23 Berkeley J Int’l Law, 358–400, 390–391.
6 P Rosanvallon, Democracy Past and Future (Columbia University Press 2006) 221.
7 Poiares Maduro has argued that as the Union has undergone a process of con-
stitutionalisation as a consequence of market integration without a clear constitu-
tional debate, its legitimacy has been frequently challenged and remained mostly
functional. See M Poiares Maduro, ‘Europe and the Constitution: What If This Is
as Good as It Gets?’ in JHH Weiler and M Wind (eds), European
Constitutionalism Beyond the State (CUP 2003) 77.
8 In one of his seminal contributions, Majone classifies the democratic deficit argu-
ments into four groups: namely, standards based on the analogy with national
institutions; majoritarian standards; standards derived from the democratic legitimacy
of the Member States and social standards. See Majone (n 5) 5–28, 6.
9 See G Conway, ‘Recovering a Separation of Powers in the European Union’ (2011)
17 ELJ 304–322; K Lenaerts, ‘The Principle of Democracy in the Case Law of the
European Court of Justice’ (2013) 62 ICLQ 271–315, 280. But see Follesdal and
Hix who argue that a demos can be formed in due time through the creation of a
European political space for contestation. A Follesdal and S Hix, ‘Why There Is a
Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44
JCMS 533–562, 550; in this sense see also N MacCormick, ‘Sovereignty and After’
 An introduction 15
in H Kalmo and Q Skinner (eds), Sovereignty in Fragments – The Past, Present
and Future of a Contested Concept (CUP 2011) 167.
10 See F Scharpf, Games Real Actors Play: Actor-Centered Institutionalism in Policy
Research (Westview 1997).
11 Harlow (n 2) 29–54, 52. Schmidt also raises the question of the need to improve
throughput legitimacy, referring to a process-based conception of what ‘goes on
inside the black box of governance’. See V Schmidt, ‘Democracy and Legitimacy
in the European Union Revisited: Input, Output and “Throughput”’ (2013) 61
Political Studies 2–22, 5.
12 See J Shaw, ‘Process, Responsibility and Inclusion in EU Constitutionalism: A
Contribution to the Debate on a Constitutional Architecture’ (2003) 9 ELJ 45–68,
49; G De Búrca and JHH Weiler, ‘Introduction’ in G De Búrca and JHH Weiler
(eds), The Worlds of European Constitutionalism (CUP 2011) 3; N MacCormick,
Questioning Sovereignty: Law, State and Nation in the European Commonwealth
(OUP 1999) 104.
13 A von Bogdandy, ‘The European Lesson for International Democracy: The Sig-
nificance of Articles 9 to 12 EU Treaty for International Organizations’ (2012) 23
EJIL 315–334, 325.
14 Majone (n 5) 5–28, 15; F Scharpf, Governing in Europe: Effective and Democratic?
(OUP 1999) 6–42.
15 See A Moravcsik, ‘The Myth of Europe’s Democratic Deficit’ (2008) 43 Inter-
economics 331–340, 340.
16 A Peters, ‘European Democracy After the 2003 Convention’ (2004) 41 CML Rev
37–85, 37.
17 According to Ritleng, the Court in its recent case law favours democratic govern-
ance but not necessarily following a concept of representative democracy. See D
Ritleng, ‘Does the European Court of Justice Take Democracy Seriously? Some
Thoughts about the Macro-Financial Assistance Case’ (2016) 53 CML Rev 11–33,
31–32.
18 See case C-138/79, Roquette Frères v Council, ECLI:EU:C:1980:249, para 33.
19 On the democratic character of the Council in the Court’s reasoning, see case C-
280/11P, Council v Access Info Europe, ECLI:EU:C:2013:671, para 33; cases C‑39/
05P and C‑52/05P, Sweden and Turco v Council, ECLI:EU:C:2008:374, para 46.
20 See von Bogdandy (n 13) 315–334, 322; Lenaerts (n 9) 271–315, 280.
21 On deliberative democracy in the EU see e.g. D Curtin, Postnational Democracy:
The European Union in Search of a Political Philosophy (Kluwer Law International
1997) 53ff; E Eriksen and JE Fossum, ‘Rescuing Democracy in Europe’ in E
Eriksen, C Joerges and F Rödl (eds), Law and Democracy in the Post-National
Union (Arena 2006) 411–431; A Crespy, ‘Deliberative Democracy and the Legiti-
macy of the European Union: A Reappraisal of Conflict’ (2014) 62 Political
Studies 81–98.
22 Von Bogdandy (n 13) 323.
23 See D Curtin, ‘Judging EU Secrecy’ (2012) 2 Cahiers de Droit Européen 459–490;
Lenaerts (n 9) 277.
24 Lenaerts (n 9) 282.
25 JP Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CML Rev 383–391, 383.
26 A Mangas Martín, ‘El nuevo equilibrio institucional en tiempos de excepción’
(2015) 50 Revista de Derecho Comunitario Europeo 13–42, 17.
27 However, institutional balance and the democratic principle are not always so
harmonically applied. There are borderline cases where the defence of principle of
institutional balance by the Court has impinged on the democratic principle, as
argued by Ritleng regarding the Macro Financial Assistance to Third Countries
case; see C-409/13, Council v Commission (MFA), ECLI:EU:C:2015:217, para 96;
Ritleng (n 17) 25–26.
16 Juan Santos Vara and Soledad R. Sánchez-Tabernero
28 In this sense, Lenaerts (n 9) 312.
29 See, for example, case C-660/13, Council v Commission (MoU with Switzerland),
ECLI:EU:C:2016:616; and case C-73/14, Council v Commission (ITLOS), ECLI:
EU:C:2015:663. See also chapter 1 by LN González Alonso in this volume.
30 On the role of the Court as a motor of integration see K Alter, The New Terrain of
International Law: Courts, Politics, Rights (Princeton University Press 2014) 131;
D Chalmers and M Chaves, ‘The Reference Point of EU Judicial Politics’ in SK
Schmidt and D Kelemen (eds), The Power of the European Court of Justice (Rou-
tledge 2013) 25–42, 32; H De Waele, ‘The Role of the ECJ in the Integration
Process: A Contemporary and Normative Assessment’ (2010) 6 Hanse LR 1–24,
11–13.
31 H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative
Study in Judicial Policymaking (Martinus Nijhoff Publishers 1997); M Dawson, E
Muir and B de Witte (eds), Judicial Activism at the European Court of Justice
(Edward Elgar 2013); G Conway, The Limits of Legal Reasoning and the Eur-
opean Court of Justice (CUP 2014). See also chapter 2 by F Terpan in this volume.
32 See R Bieber, ‘Democratic Control of International Relations of the European
Union’ in E Cannizzaro (ed), The European Union as an Actor in International
Relations (Kluwer Law International 2002) 105–115; R Gosalbo Bono, ‘The
International Powers of the European Parliament, the Democratic Deficit and the
Treaty on the European Union’ (1992) 12 Yearbook of European Law 85–138.
33 On a comparative perspective, a relevant comparator may be found in the evolu-
tion of the powers of the US House of Representatives in treaty-making through
the congressional-executive agreements and the fast-track procedure accepted by
Congress whereby the House would gain consultation powers during the negotia-
tion phase and Congress would not amend the agreement, therefore simply
approving or rejecting in block. This was criticised in the context of the US for
enhancing efficiency but decreasing democratic input. Although the EP does not
enjoy the formal right to amend draft agreements but only to accept or reject
them, it is interesting to explore the way in which the use of informal powers in
connection with Art 218(10) TFEU (Consolidated Version of the Treaty on the
Functioning of the European Union [2012] OJ C326/47) by the EP evolve in rela-
tion to ex ante influence in international agreements with regards to the dichotomy
of efficiency and democratic legitimacy. See R Schütze, ‘The “Treaty Power” and
Parliamentary Democracy: Comparative Perspectives’ in R Schütze (ed), Foreign
Affairs and the EU Constitution: Selected Essays (CUP 2014) 359–401, 370–371.
34 See D Curtin, ‘Overseeing Secrets in the EU: A Democratic Perspective’ (2014) 52
JCMS 684–700; D Curtin, ‘The Challenge of Executive Democracy in Europe’
(2014) 77 ML Rev 1–32; D Curtin and M Hillebrandt, ‘Transparency in the EU:
Constitutional Overtones, Institutional Dynamics, and the Escape Hatch of
Secrecy’ in S Blockmans and A Lazowski (eds), Research Handbook on EU Insti-
tutional Law (Edward Elgar 2014); D Curtin, ‘Official Secrets and the Negotiation
of International Agreements: Is the EU Executive Unbound?’ (2013) 50 CML Rev
423–457.
35 For a comparative perspective on the role of democracy in foreign affairs in the
US see the seminal work by L Henkin, Constitutionalism, Democracy and Foreign
Affairs (Columbia University Press 1990).
36 See chapter 2 by F Terpan in this volume.
37 See in this regard the contributions by LN González Alonso (chapter 1), J Santos
Vara (chapter 3) and SR Sánchez-Tabernero (chapter 4) in this volume.
38 See M Gatti and P Manzini, ‘External Representation of the European Union in
the Conclusion of International Agreements’ (2012) 49 CML Rev 1703–1734.
39 See G Van der Loo and J Pelkmans, ‘Does Wallonia’s Veto of CETA Spell the
Beginning of the End of EU Trade Policy?’ CEPS Commentary, 20 October 2016.
 An introduction 17
40 C Timmermans, ‘Intégration européenne, démocratie et rôle de la Cour de justice:
quelques remarques éclectiques’ in A Tizzano et al. (eds), La Cour de justice de
l’Union européenne sous la présidence de Vassilios Skouris (2003–2015) (Bruylant
2015), 633–646, 642–643.
41 C Eckes, ‘How the European Parliament’s Participation in International Relations
Affects the Deep Tissue of the EU’s Power Structures’ (2014) 12 I.CON 904–929,
919.
42 Ibid. 920. Eckes argues that if this is not the case, there will be a need of legal
adjustment to the mismatch between the EP’s external powers and the internal
institutional weakness.
43 Timmermans (n 40) 642–643.
44 See P Bajtay, ‘Democratic and Efficient Foreign Policy? Parliamentary Diplomacy
and Oversight in the 21st Century and the Post-Lisbon Role of the European
Parliament in Shaping and Controlling EU Foreign Policy’ (2015) EUI Working
Paper RSCAS 2015/11; E Barbé and A Herranz (eds), Política Exterior y Parla-
mento Europeo: Hacia el equilibrio entre eficacia y democracia (Instituto
Universitario de Estudios Europeos 2007).
45 See the cases C-658/11, Parliament v Council (Mauritius), ECLI:EU:C:2014:2025;
and C-263/14, Parliament v Council (Tanzania), ECLI:EU:C:2016:435.
46 PJ Kuijper, ‘Litigation on External Relations Powers after Lisbon: The Member
States Reject Their Own Treaty’ (2016) 43 Legal Issues of Economic Integration
1–14, 12.
47 See J Santos Vara, ‘Transatlantic Counterterrorism Cooperation Agreements on
the Transfer of Personal Data: A Test for Democratic Accountability in the EU’ in
E Fahey and D Curtin (eds), A Transatlantic Community of Law: Legal Perspec-
tives on the Relations between the EU and US Legal Orders (CUP 2014); Eckes (n
41); M Cremona, ‘International Regulatory Policy and Democratic Account-
ability: The EU and the ACTA’ in M Cremona et al. (eds), Reflections on the
Constitutionalisation of International Economic Law – Liber Amicorum Ernst-
Ulrich Petersmann (Brill 2013); J Santos Vara, ‘The Role of the European Parlia-
ment in the Conclusion of Transatlantic Agreements on the Transfer of Personal
Data after Lisbon’ (2013) CLEER Working Papers 2013/2; J Monar, ‘The Rejec-
tion of the EU-US SWIFT Interim Agreement by the European Parliament: A
Historic Vote and Its Implications’ (2010) 15 EFA Rev 143–151.
48 The demands to extend democratic control to the treaty-making power in the context of
States were already present in the Federalist Papers in the US and since the start
of modern constitutionalism in Europe. See in this regard Schütze (n 33) 360ff.
49 See Eckes (n 41) 919.
50 See J Wouters and K Raube, ‘Europe’s Common Security and Defence Policy: The
Case for Inter-Parliamentary Scrutiny’ (2012) Leuven Centre for Global Govern-
ance Studies, Working Paper no 90; A Herranz-Surrallés, ‘Parliamentary Oversight
of EU Foreign and Security Policy: Moving Beyond the Patchwork?’ (2014) ISPI
Analysis no 230.
51 JHJ Bourgeois, ‘Is Transatlantic Trade and Investment Partnership a Regional
Contribution to Global Economic Governance?’ (2016) 43 Legal Issues of
European Integration 407–422, 418.
52 Tanzania case (n 45), para 72; see SR Sánchez-Tabernero, ‘The Choice of Legal
Basis and the Principle of Consistency in the Procedure for Conclusion of Inter-
national Agreements in CFSP Contexts: Parliament v Council (Pirate-Transfer
Agreement with Tanzania)’ (2017) 54 CML Rev 899–920.
53 C Hillion, ‘ERTA, ECHR and Open Skies: Laying the Grounds of the EU System
of External Relations’ in M Poiares Maduro and L Azoulai (eds), The Past and
Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of
the Rome Treaty (Hart Publishing 2010) 224–233, 232.
18 Juan Santos Vara and Soledad R. Sánchez-Tabernero
54 There is a considerable body of literature that has described the EU as a normative
power. See mainly I Manners, ‘Normative Power Europe: A Contradiction in
Terms?’ (2002) 40 JCMS 235–258. On the basis of the normative power Europe, it
has been suggested in the literature that the EP is the institution that is most pre-
occupied with normativist concerns. See T Leeg, ‘Normative Power Europe? The
European Union in the Negotiations on a Free Trade Agreement with India’
(2014) 19 EFA Rev 335–355. However, other authors have argued that the EP has
at times been more preoccupied with defending its prerogatives than fundamental
rights and EU values as such. See Santos Vara, ‘The Role of the European
Parliament’ (n 47) 29.
55 See, for instance, D Thym, ‘Beyond Parliament’s Reach? The Role of the European
Parliament in the CFSP’ (2006) 11 EFA Rev; RA Wessel, ‘Good Governance and
EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds),
Good Governance and the European Union: Reflections on Concepts, Institutions
and Substance (Intersentia 2005) 215–25; B Crum, ‘Parliamentarization of the
CFSP through Informal Institution-Making? The Fifth European Parliament and
the EU High Representative’ (2006) 13 J of European Public Policy; U Diedrichs,
‘The European Parliament in CFSP: More than a Marginal Player?’ (2004) 39 The
International Spectator; Bajtay (n 44).
56 See E Fahey, ‘On the Benefits of the Transatlantic Trade and Investment Partner-
ship (TTIP) Negotiations for the EU Legal Order: A Legal Perspective’ (2016) 43
Legal Issues of European Integration 327–340, 335–337.
57 Peters (n 16) 37.
58 See more in general on mixed agreements J Heliskoski, Mixed Agreements as a
Technique for Organizing the External Relations of the European Community and
its Member States (Kluwer Law International 2001); as well as the various con-
tributions to C Hillion and P Koutrakos (eds), Mixed Agreements in EU Law
Revisited – The EU and its Member States in the World (Hart Publishing 2010).
For an analysis of some of the specificities of multilateral mixed agreements, see G
Van der Loo and RA Wessel, ‘The Non-Ratification of Mixed Agreements: Legal
Consequences and Solutions’ (2017) 54 CML Rev 735–770.
Part I
The role of the Court of
Justice in the interplay
between democracy and
institutional balance
This page intentionally left blank
1 Lost in principles? Institutional balance
and democracy in the ECJ case law on
EU external action
Luis N. González Alonso

1 Introduction
As was expected, the reforms introduced by the Treaty of Lisbon in the area
of external action were soon to bring all kinds of controversies before the
Court of Justice of the EU. It was only natural1 considering the unprece-
dented magnitude of the reform and the high degree of judicialisation that
has traditionally accompanied this aspect of the integration process. Neither
is it a surprise that the better part of those disputes has arisen between the
EU’s political institutions in their struggle to defend their prerogatives in this
new scenario. That said, what may not have been so foreseeable is the sig-
nificant role the principle of institutional balance was to play in this first
phase of the post-Lisbon jurisprudence on external action. This principle has
undoubtedly become one of the most striking aspects of the said case law.
Being a legitimising factor of the EU’s distinct model of governance, insti-
tutional balance has always been closely linked to the logic of democracy.
Beyond its effect of strengthening, at times, the position of the European
Parliament (EP), this principle ultimately protects the system as a whole
against the arbitrary exercise of power,2 guaranteeing an adequate interaction
between all the interests represented in the institutional framework of the
Union.3 It is understandable, therefore, that insofar as democracy has pro-
gressively consolidated itself as an explicit parameter of legitimacy of the
integration process, the relation between the two has become extensively more
complex; a general trend that acquires an especially sensitive touch when it
concerns the exercise of external powers.
It could be considered, in this sense, that the correct interpretation of the
way in which democracy and institutional balance interact in this field is
relevant to the identification of the defining features and, therefore, the par-
ticular nature of the model of democratic control by which the EU’s external
action is bound.4 Hence the interest of the ECJ’s intervention in this area
through a certain number of cases, very closely related in time and decided by
the Grand Chamber during the period immediately after the entry into force
of the Treaty of Lisbon. It should be reminded, furthermore, that this reform
not only strived to reinforce the consistency and efficiency of the EU’s
22 Luis N. González Alonso
external action, but also to foster its ‘parliamentarization’, as has been the
case.5 The problem lies in the fact that the Court of Justice does not always
apply these principles with clarity. Indeed, they never appear in the Court’s
reasoning by themselves, but systematically accompanied by other principles
or notions of an equally constitutional character and interacting with each
other according to what has been described as ‘porosité troublante’.6
This contribution intends to examine the underlying logic (should there
be one) of the said line of case law. It ultimately aims to shed some light
on the complex interaction between democracy and institutional balance
within the current model of democratic control of the external action of the
Union. Firstly, I shall analyse the degree of autonomy with which the ECJ
conceives the operation of the principle of institutional balance in this field
(Section 2). I will then assess in what sense and to what extent this principle,
inasmuch as constitutional guarantee for the correct functioning of the
system, conditions the external action of the EU (Section 3). Finally, I will
pay attention to what, in light of the Court’s case law, could be defined as the
unexplored potential of the direct relationship between institutional balance
and the principle of democracy (Section 4). I will close the chapter with
some brief conclusions (Section 5).

2 The autonomy of a vaguely defined legal principle with

limited functionality
The reason why the principle of institutional balance has become so relevant
in the ECJ’s case law on external action is, as already noted above, the scale
of the reform introduced by the Treaty of Lisbon in this domain and the
subsequent exacerbation of interinstitutional tensions caused by its gradual
development through practical implementation.7 Noteworthy amongst these
tensions are no doubt those related to the interpretation of Article 218 TFEU,
a provision that lays down ‘a single procedure of general application con-
cerning the negotiation and conclusion of international agreements which the
European Union is competent to conclude in the fields of its activity, includ-
ing the CFSP’.8 Precisely because the new procedure applies to this policy,
Article 40 TEU has also become a mandatory reference with regard to insti-
tutional balance, even though the Court has not yet resorted to this principle
in explicit terms when resolving those controversies over which that provision
has so far cast its shadow.9
In any case, a comprehensive analysis of this jurisprudence allows for sig-
nificant conclusions to be drawn relating to the nature and scope of the
principle of institutional balance: some of a general character and pertinent,
thus, to the constitutional system of the Union as a whole; others more spe-
cifically referring to the operation of this principle in the field of external
action. Although more attention will be given to the latter, it is nonetheless
convenient to briefly place these specific inferences in their more global
context.
Another random document with
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 CHAPTER XIX.
The discovery of the fact that there was a secret way in and out of
the Abbey had a strong and most unhappy effect upon poor Freda.
She dared not say anything about it to Nell, and Crispin she never
saw: forced, therefore, to bear the burden of the secret alone, she
crept about the house day by day, not daring to make any fresh
researches, and suffering from a hundred fears. To add to her
unhappiness, she now could not but feel sure that Nell had kept back
her letter to Sister Agnes. For she got no answer to it. Mrs. Bean
seemed to guess that the girl had learned something about which
she would want to ask inconvenient questions. So Freda passed a
week in silence and solitude such as the convent had not
accustomed her to. Even the nocturnal noises had ceased. Once,
and once only, she caught sight of Crispin, and ran after him, calling
him by name. It was dusk, and she was watching the sea-mews from
the courtyard, as they flew screaming about the desolate walls of
what had once been the banqueting-room. He did not answer, but
disappeared rapidly under the gallery in evident avoidance of her.
Poor Freda felt so desolate that she burst into tears. Her old,
fanciful belief in her father was dead. Everything pointed to the fact
that he was really Blewitt’s murderer, and that, in order to save
himself from detection, he had feigned death and gone away without
one thought of the daughter he was deserting. Now that Crispin,
whom she had looked upon through all as her friend, was deserting
her also, she grew desperate, and recovering all the courage which
for the last few days had seemed dead in her, she resolved to make
another attempt to fathom the secrets the Abbey still held from her.
To begin with, she must explore the west wing. Now this west wing
was so dark and so cold, so honeycombed with narrow little
passages which seemed to lead to nowhere in particular, and with
small rooms meagrely furnished and full of dust, that Freda had
always been rather afraid of lingering about it, and had hopped
through so much of it as she was obliged to pass on her way to and
from the library, with as much speed as possible. Now, however, she
got a candle, and boldly proceeded to examine every nook and
corner of the west wing. And the result of her researches was to
prove that on the ground floor, underneath her own room, there was
a chamber surrounded by four solid stone walls without a single
doorway or window. The only entrance to this mysterious chamber
seemed to be through the panel-door in the storey above. Where,
then, did the secret door in the library lead to? That question she
would solve at once. It was quite dark and very cold in the narrow
passages through which she ran, and the tipity-tap of her crutch
frightened her by the echo it awoke. She reached the library panting,
and running to the secret door, began pulling it and shaking it with all
her might.
Suddenly the door gave way, almost throwing her down as it
opened upon her; with a cry she recognised Dick behind it. She had
thought of him so much since his last strange appearance, that the
sight of him in the flesh made her feel shy. She said nothing, but
crept away towards the window, feeling indeed an overwhelming joy
at the sight of a friendly face.
“Did I frighten you again?” asked he.
The girl turned and looked up at him, shyly.
“I am always frightened here,” she said.
“Poor child! They are treating you very badly. I was afraid so. I
have been to see you twice, to make sure you had come to no
harm.”
Freda, who had crept into the window-seat, as far away from him
as she could get, looked up in surprise.
“You have been to see me?” she exclaimed.
“Not to see you exactly, because the door was shut between us.
But I heard you in here, talking to yourself and turning over the
leaves of your books. I didn’t think it worth while to disturb you. I
shouldn’t have come in to-night, only I heard you shaking and pulling
the door, and I thought you had heard me and were frightened.”
“Oh, no. I wanted to know where it led to.”
“To the floor above by a staircase. See.”
He opened the door through which he had entered, and showed
her the lowest steps of a very narrow staircase, which went up along
the outer side of the library-wall.
“And how did you get into the floor above?”
“Well, it’s a secret I’m bound not to betray.”
“It doesn’t matter,” said Freda coolly, “I shall find it out. I want them
to find that I am a meddlesome, inquisitive creature, who must be got
rid of.”
“Who’s ‘them’?” asked Dick.
“Crispin and Mrs. Bean.”
“And you want them to send you back to the convent?”
“Yes.”
“I think that would be a pity.”
“You didn’t last time.”
“No-o,” said Dick, clearing his throat. “Perhaps I didn’t see it quite
so well then. You see I hadn’t thought about it. But I have since; and
there’s a lot in what you said about the selfishness of it.”
“Ah, but now I’m just in the only position in the world in which it
isn’t selfish. I am quite alone, you see.”
“So you were a week ago.”
“But I had some hope then that I might be able to do some good.
Now I haven’t. And you don’t know what it is to be always lonely, to
have nobody to speak to even. It makes one feel like an outcast from
all the world.”
“Yes, so it does. So that one is glad of the very mice that run
behind the wainscot; and when one of the little brutes comes out of
its hole and runs about the room, why one wouldn’t disturb it for the
world.”
“Oh, yes, I love the mice. Do you know I expect that sometimes
when I have listened to a scratching in the wall and thought it was
mice, it was really you all the time!”
“Very likely.”
“It was very good of you to come and see that I was all right.”
“Oh, I was glad to come. I’m lonely too now. They’ve gone away,
the others.”
“Your aunt, and your cousin? And left you all by yourself?”
“That wouldn’t be much of a hardship, if only one could manage to
exist. But it is lonely, as you say. I shouldn’t mind it if the dog
wouldn’t howl so. Sign of a death, they say; I shouldn’t be sorry if it
were mine.”
“Your death! Oh, don’t say that. You didn’t seem at all miserable
when I went to your house.”
“No. The fact is, you are at the bottom of my low spirits. It’s your
uncanny spells that have done it, Miss Mulgrave. Witches always
have little sticks like that.”
He took up her crutch almost reverently. It was leaning against the
window-seat between them, for he had sat down beside her.
“What do you mean, Dick?”
It was only a consequence of her extreme ignorance of the world’s
ways that she called him by the name by which she had heard
others call him. But it came upon the young man as a startling and
delicious surprise.
“Why, I mean,” he said, with rather more apparent constraint than
before, “that you said things which made me uncomfortable,
preached me a little sermon, in fact.”
“Oh, I beg your pardon; I did not mean to preach indeed.”
“It’s all right, it did me good. I don’t mind a girl preaching, and I
thought over what you said very seriously. I—” he hesitated, and
then finished hurriedly, “I thought you’d like to know.”
“Indeed I’m very glad, if you didn’t think me rude. Perhaps if my
preaching did you good, it might do Crispin good too—if only I could
get hold of him.”
Dick laughed.
“I don’t think I should set my heart too much upon that. Crispin is a
thorough-paced old rascal.”
“You don’t know him. You haven’t seen into his heart,” cried Freda,
rising from the window-seat in her earnestness, and bending forward
so that she might look into the young man’s face. For very little light
now came through the old mullioned window.
“Well, I don’t believe he has a heart to see into.”
“Ah, that is because you have been careless, and have neglected
your religion. We all, even the worst, have a heart; it may sleep
sometimes, so that men think it is dead. But if God sends some one,
with love for Him alive and glowing, to speak to that sleeping heart, it
awakens, and a little spark of love and goodness will shine bright in
it. Don’t you believe that?”
“I believe that if anybody could work miracles through goodness, it
would be you. But it would take a thundering big miracle to make
Crispin Bean anything but an unprincipled rascal. Why, if you only
knew—— But then it’s better you should not know,” said he, pulling
himself up hurriedly and getting up to go.
“Oh, tell me, do tell me. I want to know!”
“You wouldn’t be a woman if you didn’t. But I’m not going to tell
you.”
And Dick drew himself up and looked out of the window, with the
obstinate look she had seen before on his face. Freda was far too
unconscious of her own feminine powers to attempt to move his
resolution. She only sighed as he held out his hand.
“Are you very lonely at the farm?” she asked.
“Very. At least I mean rather.”
“You have nobody there at all to speak to?”
“Nobody at all.”
“And you will go on living like that?”
“As long as I can hold out. The love of the old place, and of all this
country round, is a passion with me—the only one I’ve ever had, in
fact. And you,” he continued, leaving the subject of his own
prospects with some abruptness, “you are lonely too. May I come
and see you again?”
Freda hesitated.
“May I not come? Don’t you want to see me again?”
“Oh, yes. But——”
“I don’t frighten you, do I, with my rough, uncivilised ways?”
“Oh, no; Oh, no. Frighten me! Of course not.”
“Then, if I don’t frighten you, why did you screw yourself up into a
corner of the window-seat just now, to be as far from me as
possible?”
He spoke in a low tone, bending towards her.
Freda blushed, but she never thought of denying the accusation.
But what had her reason been? She herself did not know.
“I—I think it must have been because I had been crying, and of
course nobody likes to be seen crying,” she answered slowly, hoping
that she had told the truth.
“Crying, had you? What about? Tell me just this: is it about—
Blewitt’s—death?”
“Why, why, do you know anything about that?”
“I know,” said Dick cautiously, “that it had something to do with
your father’s—disappearance.”
Freda shivered at the word.
“You know more than that?” she said hoarsely.
“Perhaps. But I swear I can’t tell you what I know, so don’t ask
me.”
For a minute there was dead silence, as they stood face to face,
but scarcely able to see each other in the gathering darkness.
Suddenly both were startled by the sound of a man’s hoarse voice,
muffled by distance, which seemed to come from behind the door,
through which Dick had entered.
 CHAPTER XX.
At first both Dick and Freda listened to the faint sounds in silence.
Then Dick spoke.
“They’ve come back. I sha’n’t be able to get out that way,” he said.
“Why should you? I can let you out by the front-gate.”
“But—I don’t want to be seen,” he said. “If Captain Mulgrave were
to see me——”
Freda was startled by this suggestion, which betrayed how much
the young man knew or guessed. She turned from the door, where
she had paused with her fingers on the handle.
“Oh, yes,” he said in a low voice and very quickly, understanding
her thought, “it did take me in, for a time, and my cousin Bob too,
that story about his being dead, although we both knew him very
well.”
“But why should he pretend any such thing?”
“That’s what we want to find out. It makes us careful. So Bob’s
gone away, and I keep watch.”
“And you are so sure he is alive?”
“I’ve seen him.”
Freda began to tremble. Here was an answer to the question she
had so often asked herself, whether her father was not really in
hiding about the place after all. She led the way out of the library,
along the corridor and out into the courtyard by the nearest door,
without a word. It was so dark that there was little fear of their being
seen crossing to the gate; though indeed Freda had forgotten that
there was need of caution, being absorbed in conjectures about her
father. She took the big key from its nail, opened the heavy gate, and
led Dick through to the open space before the blank wall of the
banqueting-hall. They crossed this, still in silence, and came to the
lodge. Here she was about to summon the lodge-keeper, when Dick
stopped her.
“Don’t,” said he. “The old woman would recognise me, and you
would be made to suffer. I must get out some other way.”
 “There is no other way,” said Freda. “And when my friends come
to see me they should go out by the front way.”
And, before he could stop her, she had seized the iron bell-handle
which hung outside the wall of the lodge and rang it firmly.
The old woman who kept the key looked rather frightened when
she saw who was with Freda, but she unlocked the gate, waited,
curtseying, while the young people shook hands, and then popped
back into her cottage like a rabbit.
But there were eyes about more to be dreaded than the old
woman’s. When Freda returned to the inner gate, which she had left
open, she found it locked, and had to ring the bell. Mrs. Bean did not
answer the summons for some time, and when she did, it was with a
frown of ill-omen upon her face.
“So you’ve been receiving visitors, I see,” she began shortly.
“Yes, I’ve had one visitor.”
“One of the young Heritages, whom your father specially wished
you not to have anything to do with. Crispin told you that.”
“Yes,” said Freda tremulously, “but since they leave me here all by
myself with nobody to speak to, they can’t be surprised if I make any
friends when I can.”
“Well, and am I not friend enough for you, without your having to
run after any stranger or vagabond that happens to come into the
parish?”
“No, you’re not, for I certainly couldn’t say anything I liked to you,
as one can to a friend. If I ask you a question, you put me off with an
answer that tells me nothing, as if I were a child. But I’m going to
show you that I’m grown up, and do some things that will astonish
you.”
And Freda hopped quickly away across the court-yard to the
entrance of the west wing, leaving Nell a little anxious and perturbed
by this new independence.
Freda returned to the study, her little brain actively spinning
fancies concerning her late visitor, all of a pretty, harmless kind,
dowering him with a great many ideal qualities to which the young
man could certainly not lay claim. It was now so dark in the room that
she had to feel her way carefully, well as she knew it. She walked
along close by the wall, touching the book-laden shelves as she
went, until she came to a point where they seemed to yield under her
fingers. Her heart leapt up. This was the secret door through which
Dick had entered: and he had left it open.
Freda’s first impulse was delight; her second fear. Now that the
way was at last open to her to learn the secrets of this guilty house,
she began to shrink from the knowledge she was about to gain. She
opened the door, listened, and looked in. Pitch-black darkness; utter
silence. She knew that Dick had come down by a staircase, so she
felt for it and mounted carefully. She counted fourteen rather steep
steps, and then she found that she had reached a level floor. It was
so cold here that her hands and feet were stiff and benumbed,
although her head was burning; she was in a passage the walls of
which were of stone, just like those outside her own room. But this
passage was narrower, she thought. There was no light whatever, so
that she groped her way cautiously, with her left hand outstretched
before her face, while with the right she tapped her crutch lightly on
the ground in front of her. After a few steps she came to a blank
stone wall; it was the end of the passage and she had to turn back.
As she retraced her steps, she suddenly came to a slight recess on
the right hand, where the stone wall was broken by a wooden door.
Something in the sound of this as she rattled it made her believe that
this was the panel-door into the gallery. If this were so, the way down
was through a trap-door in the floor; for this was the way Crispin had
brought her on the day that he found her in the disused stable. Down
she went upon her knees, feeling about until her hand touched an
end of knotted rope. Pulling this up, she found, as she had expected,
that it raised a door in the floor, beneath which was a flight of
wooden steps. There was still no sound to be heard, so, after a
moment’s hesitation, she decided to continue her explorations, and
to trust to luck to hide herself if she heard any one coming. The
steps were rickety, but she got down them in safety, and found
herself in a stone passage, similar to that on the floor above. At the
end of this was a door, which Freda, still groping in the dark, decided
to be that which opened into one of the out-houses in the yard
outside. It was securely fastened. She felt her way back along the
walls until a door on the right suddenly gave way under her hand,
and a flash of light, after the darkness in which she had been so
long, streamed into her eyes and dazzled her.
Freda thought she was discovered; but the utter silence reassuring
her, she presently looked up again, and found that she was standing
before the doorway of a big, stone-walled, windowless room, piled
high with bales and boxes which reeked with the unmistakable odour
of strong tobacco. She was in the smugglers’ storeroom. An oil-lamp,
which hung opposite to the door and gave a bright light, enabled her
to make an exhaustive survey of the room and its contents. In one
corner there was a rope and pulley fastened securely to one of the
strong beams which ran from end to end of the roof. There was no
ceiling. Directly under this rope and pulley was a square hole in the
floor; and Freda, peeping down, saw that a rope-ladder connected
this chamber with another underneath, which, however, was
unlighted. She had scarcely had time to make these discoveries
when she heard dull, muffled sounds which seemed to come from
beneath the cellar. Afraid of being caught by one of the unknown
men whose coarse voices she had so often heard, Freda hid herself
among the bales not far from the opening in the floor. The sounds
came nearer, became distinguishable as the tramp of one man’s
feet, and then the rope-ladder began to shake.
Freda, peeping out, began to tremble at her own daring. The man
was coming up, and already she knew, whether by instinct or by his
tread she hardly could tell, that it was not Crispin. She shrank back,
with a loudly-beating heart, and crouched behind the bales as the
newcomer reached the floor and pulled up the rope-ladder after him.
He began to move some of the bales, and Freda was half dead with
fear lest he should touch those behind which she was hiding. But
presently he desisted from this work, and she heard him drag out a
heavy weight from the space he had made, draw a cork, and
presently began to take long breaths of pleasure and to smack his
lips. Very cautiously, believing him to be too agreeably employed to
notice her, she then dared to peep at him. But the sight of his face
turned her sick with surprise and dread.
For she saw the grinning, withered face she had seen about the
house in the darkness, the face which Nell had tried to persuade her
was the creation of her imagination.
 CHAPTER XXI.
Freda fancied that the long-drawn breath which escaped her as she
recognised the man must attract his attention. But he was too intent
upon the enjoyment of the strong spirit, which he kept pouring from a
huge stone bottle into a cracked tumbler, to have eyes or ears for the
little eavesdropper in the corner. A horrible idea flashed into her mind
as she crouched again in her hiding-place: Was this grinning
creature, with the hideous face of an ape, the father she had waited
to know so long? A shiver of horror ran through her as she
remembered how this would tally with the facts she knew: with the
dread in which her father was held, with her belief that he was in
hiding about the house, and with the airs of proprietorship which this
man was assuming.
Even as these unwelcome thoughts pressed into her mind, the
man got up, and confirming her fears by his tone of authority,
stamped upon the floor and called down the opening in a loud voice:
“Hallo! Anybody there yet? Kelk! Harrison!”
There was no answer, and he walked up and down, swearing to
himself impatiently. Presently a muffled sound came from below, and
he called out again.
“Aye, aye, sir,” said a hoarse voice.
“Is that you, Braim?” asked the man above.
“Aye, sir.”
“Anybody else with you?”
“Theer be fower on us, sir.”
“All right. Close up, and I’ll be down with you in a minute.”
There were sounds now in the cellar below of several men moving
about and talking in low tones. Then the man above moved back a
step or two from the opening in the floor; and Freda, whose curiosity
had grown stronger than her caution, peeped out far enough to see
him take from a shelf a small revolver, which he secreted about his
person. Then he lowered the rope-ladder, let himself down into the
cellar by it, and immediately threw it up again so deftly that it landed
safely on the floor he had left. Freda heard a chorus of demands for
“soomat to warm them,” and by the sounds which followed she could
soon tell that drinking had begun. Being now able to lift her head
without fear, she could make out a good deal of their talk, although
the strong dialect in which all but the leader spoke often puzzled her.
As the talk went on and the drink went round, the men seemed to get
more and more excited; but just as they had done at the “Barley
Mow,” they lowered their voices as they grew warm in discussion,
until Freda, whose interest and curiosity had become deeply excited,
crept softly out of her hiding-place, and crawling to the opening in the
floor, listened with her head only just out of the men’s sight.
They were talking about some person against whom they had a
grudge, using oaths and threats which, although strange and new to
Freda, shocked her by their coarseness. At last her curiosity to see
them grew so great that she was impelled to glance down stealthily
at the group below. The men were seated at a rough deal table, over
which they leaned and sprawled, with their heads close together, in
eager converse. It was some moments before she got a view of any
of the faces; at last, however, two of them raised their heads a little,
and she instantly recognised one as a little wrinkled, oldish-looking
man, who wore rings in his ears and walked with the cat-like tread of
one accustomed to go barefoot, whom she had seen at the “Barley
Mow.”
“Ah tell ye,” he was now saying, “it’s’ t’ same now as were at t’
‘Barley Mow’ on t’ neght when train was snawed oop. Barnaby
Ugthorpe fund him aht, and tawd me abaht it hissen.”
Freda forgot to draw back; her breath came with difficulty: this man
against whom they were using such hideous threats must be her
friend, John Thurley. From this moment, every word they uttered
assumed for her a terrible significance.
“Oh, I’ve no doubt your information is right enough,” said the
leader, who used fewer words than the rest, “the question is whether
he hasn’t found out too much for it to be any good interfering with
him. You see, he’s been about the neighbourhood some time now,
keeping very quiet, and he may have picked up and sent off to
London enough information to do for all the lot of us; in that case a
bullet or two through his hide would only increase the
unpleasantness of our position.”
“Aye, aye, Captain, but Ah’ve kep’ a eye upon him, to see what he
were up to. A pal of mine done that business for me, an’ as fur as we
mak’ aht, he hasn’t done mooch correspondering, an’ nothing
suspicious-loike. Ah’ve a pal in t’ poast-office, as Ah have moast
pleaces, an’ ye can tak’ my word for’t.”
“An’ now we’ve fahnd him aht spying at us from t’ scaur, as we did
yesterneght, Ah seay it’s high toime as a stop wur put to his goings
on, an’ it’s not loike ye, Capt’n, to seay neay to that.”
“I don’t say nay to that,” said the little withered man, with an ugly
grin on his face. “You know me better. But no good ever comes of
using violent means until you’ve tried all others. I’ll be on the scaur
myself to-night and watch.”
Freda stared down at the group, fascinated with horror. There was
a brutal callousness of look and tone in these men which made her
feel as if she were watching a cageful of wild beasts. Every line of
their weather-beaten faces, dimly as she saw them by the light of
two flaring tallow candles, seemed to her to be eloquent of the risks
and dangers of a hardening and brutalising life. And the face which
looked the most repulsive of all was that of the leader. Was he her
father? The girl prayed that it might not be true. Although his speech
was so much more correct than that of the rest as to mark him as
belonging to a higher class, his voice was coarse and thick, and his
manner furtive and restless. Even the faint twinkle of humour which
was visible in the eyes of the wizened informer, James Braim, was
absent from those of his chief. Those few words, in which he said
that he would watch on the scaur that night, filled Freda with more
anxiety for John Thurley’s safety than all the coarse threats and
menacing gestures of the other three men.
“Goin’ to unload to-night, Capt’n?” asked one man.
The leader nodded.
“Must. Here’s three nights we’ve wasted hanging about, on
account of the scare about this spy, whoever he is. So to-night you’ll
get to work, and I’ll keep the lookout, and if anybody’s fool enough to
be loafing about where he’s not wanted when he ought to be in bed,
why, he can’t in fairness complain if he gets—sent home.”
 He paused significantly before the last two words, and a low
murmur of appreciation and amusement went round the group. Then
the talk was carried on in short whispers, and Freda was presently
seized with the fancy that some of the questions and answers
exchanged referred to her. For the men talked about some woman,
and all the questions were directed to the repulsive-looking leader,
who after some minutes rose, with a remark a little louder than the
previous talk.
“She won’t interfere with any of us much longer, at any rate. We
can’t afford to keep spies in the camp. Now, lads, it’s time for
business. Get off to the yacht, and to business as fast as you can. I’ll
be down on the scaur in less than half an hour.”
The men pushed back their seats without delay, Kelk alone
venturing on a grumbling word of remonstrance. And then, still
watching closely from above, Freda saw a very strange occurrence.
The bare, ill-lighted cellar grew empty of all except the leader as if by
magic, the men seeming to disappear into the bowels of the earth.
As she looked, bending her head lower and lower with straining eyes
to spy out the reason of this, Freda involuntarily drew a long breath
of amazement. The solitary man left in the cellar looked up, as he
was in the act of filling his own glass once more from the stone jar.
The girl drew back with a cry, for a look of intense malignity passed
over the man’s wrinkled face.
“Hallo!” he exclaimed very quietly, blinking up at her, “so it’s you, is
it? Playing the spy as usual?”
He muttered an oath below his breath, and came close under the
opening in the floor.
“Just throw down that rope,” he continued peremptorily.
“What rope?” asked Freda, trembling.
“Come, you know well enough. You haven’t got eyes in your head
for nothing.” He paused, but Freda remained motionless. “Now then,”
he added with a sudden access of anger and a stamp of his foot on
the stone floor, “throw down the rope-ladder I came down by. Do you
understand that?”
But Freda only attempted to get away. Excited by anger and drink,
the man took from his belt a revolver, which he pointed up at her.
This action, strangely enough, checked Freda’s impulse to retreat.
She looked down at him straightforwardly and fearlessly, eye to eye.
“Do you think you can make me obey you by shooting me?” she
asked simply.
“I think you are a d——d ungrateful little chit,” answered the man
sullenly. But he lowered the weapon in his hand.
“Ungrateful!” faltered Freda, the great fear rising again in her
heart. “Ungrateful!” she repeated. “Then you are—are you—my
father?”
“Of course I am,” he answered sullenly. “Pretty filial instincts you
seem to have!”
Freda was overwhelmed. For a few moments she sat transfixed,
looking down on this newly-found parent with undisguised horror.
“Well, aren’t you going to obey me?” repeated he with rather less
ferocity of tone.
“Yes,” whispered Freda hoarsely.
She drew back a step or two from the opening in the floor, and
began to grope about with cold, clammy fingers for the rope-ladder.
At last she found it and threw it down.
If she had not been so benumbed with amazement and grief at
this discovery, she would have been frightened by the savage
exclamation with which the man set his foot on the ladder. As it was,
she heard nothing, saw nothing until she suddenly felt herself pulled
up by the arm. Dragged to her feet against her will, paralysed with
alarm, she turned to see the grinning, withered face held close to
hers, full of spite and malignity.
“Now,” said he, “I’m going to give you a lesson for your
disobedience.”
With a shudder and a low cry, Freda struggled with him, avoiding
the meeting with his eyes.
“Don’t,” she whispered hoarsely. “Don’t. I wish to remember my
obedience, my duty. I can’t if you treat me like a dog.”
He gave a short, rasping laugh.
“I sha’n’t do that,” he said. “I respect a dog.”
At the brutal words and tone, Freda, by a sudden movement,
wrenched herself free for an instant, and looked him steadily in the
face.
 “Now,” she said, “I know that you have been deceiving me. You
are not my father!”
“We’ll see about that. Come here.”
He seized her by the right wrist, giving it such a violent twist that
she cried out with pain. “Now if you struggle any more or cry out, I’ll
just give you a broken arm to match your broken leg.”
He gave her arm another wrench to prove that his threat was not
an idle one, and the girl with difficulty suppressed a moan. Just as he
gripped her arm more tightly to inflict further punishment for this
insubordination, a change came quite suddenly over his face; he
dropped her arm at once, and sliding over the floor as stealthily and
rapidly as a cat, he ran down the rope-ladder, and disappeared from
view just as his four subordinates had done.
Freda was bewildered, and not one whit relieved at his
disappearance. It only seemed to augur some fresh misfortune. As
she stood where he had left her, dazed, miserable, still nursing her
arm for the pain, she heard another step behind her. Her endurance
had been tried too much; she could not face a fresh enemy, as she
believed the newcomer to be. Putting her hands before her face, she
turned and stepped backwards, away from him, murmuring broken
entreaties, interrupted by sobs. As she retreated, she felt that the
intruder was pursuing her, and fled faster and faster.
“Stop, child, stop,” cried at last a voice she knew. At the same
moment she felt that she had gone a step too far, and was falling
through the opening in the floor. But even as she felt this, strong
arms were thrown round her, and she found herself in a warm clasp
of kindliness. Opening her eyes, she saw who her preserver was,
saw too that his eyes were full of tenderness.
“Crispin! Crispin!” she cried.
But the next moment, with a wild shriek, she flung her arms round
his neck in a passionate embrace.
“No, no, not Crispin, you are not really Crispin! You—are—my
father!” she sobbed out with a burst of hysterical tears and laughter.
 CHAPTER XXII.
Not even the stolid silence with which he received her
demonstrative outburst could dissuade Freda from her new belief
that this man, whom she had always known as Crispin Bean, was
really her father. She wondered, as she looked into his stern, rugged
face, and noted the half involuntary tenderness in his eyes as he
looked at her, how she could ever have doubted it. She chose to
believe now that she had really known it all the time, and that she
had only been waiting for him to declare himself. This, however, he
was not ready to do even now.
“I am Crispin, Crispin,” he said, while he patted her soothingly on
the shoulder, “remember that.”
He did not speak harshly, but even if he had done so she would
not have been afraid of him. She was so overjoyed to have found her
father, as she still obstinately believed she had done, that she was
ready to submit to any condition it might be his fancy to impose.
“Yes, Crispin,” she said meekly, nestling up to his shoulder and
looking with shy gladness up in his face, “I will remember anything
you tell me, Crispin.”
He put his arm round her with a sudden impulse of tenderness,
and Freda fancied, as he looked into her eyes, that he was trying to
trace a resemblance to her mother; she fancied, too, by a look of
content mingled with sadness which came over his face, that he
succeeded.
“I heard you crying out as I came in,” he said at last, abruptly.
“Was it my footsteps that frightened you?”
“No,” said Freda hesitatingly.
“What was it, then?”
“A man, a man I have seen about the house before, came up from
there,”—she pointed to the hole in the floor—“and frightened me. He
said he was my father.”
Crispin looked black.
“How did he frighten you?” he asked shortly.
 “He saw me looking through at him and some other men—dreadful
looking men—who were talking together; and I think he was angry
because I saw them. So he made me throw the rope down to him,
and he came up, and he was very angry.”
And Freda shuddered at the recollection.
“He didn’t hurt you, threaten you, did he?”
She hesitated.
“Not much. Perhaps he didn’t mean to hurt me at all, only to
frighten me. But I was frightened.”
And she hid her face against Crispin’s shoulder.
“Jealous brute, he shall suffer for this!” he muttered angrily.
Turning to her suddenly again he asked: “Did you hear what the
other men said? Did they frighten you?”
“I didn’t hear much, and none of them saw me except that one
man. But, oh, Crispin, they are dreadful people! Why do you have
anything to do with them?”
“Little girls shouldn’t ask questions,” he answered rather grimly.
But Freda would not take his tone as a warning. Indeed she had
an object of vital importance at her heart.
“But there was something they said, something I did hear, which I
must tell you about, even if I make you angry—Crispin. There is a
man whom they want to hurt, perhaps to kill; they said so. They are
going to be out on the scaur to-night, and if he is there, as they
expect, the wicked man, the worst of them all, said he would be on
the watch.”
“Well, a man may watch another without hurting him. Like a foolish
girl, who listens to what doesn’t concern her, you have half-heard
things, and jumped to a ridiculous conclusion.”
But Freda was not to be put off like that. She rose from the bench
on which they had been sitting side by side, and stood before him so
that she could look straight into his face.
“No, no,” she cried vehemently. “I know more than you think, and I
know they meant harm to John Thurley, who was kind to me, and
wanted me to go away because he thought I was lonely and not
taken care of.”
Crispin glanced up hastily, with a guilty flush on his face.
“Mrs. Bean—Nell looks after you, doesn’t she?” he asked sharply.
 “Oh,” said the girl with a little half-bitter laugh, “I am fed all right;
but perhaps Mr. Thurley thinks that food isn’t quite all a girl wants.”
Crispin got up abruptly, almost pushing her aside, and began
walking about the room, as if in search of something to do, to hide a
certain uneasiness which he felt. He kicked a coil of rope into a
corner, and shifted one of the bales that had got a little out of place.
“I know,” he burst out suddenly, “that I—that you have not been
treated well. You have been neglected, shamefully neglected. Of
course you ought never to have come. It was a mistake, a caprice of
temper on the part of—your father. Then when you came, of course
you ought to have been sent back; it was cruel and wrong to keep
you here. But by that time—you had brought—something, a ray of
humanity, perhaps, or of sunshine, to—somebody, and so you
stayed. And—and of course it was wrong, and somebody—is sorry.”
Freda, touched, breathless, was drinking in every word, with her
great brown eyes fixed upon him. She flew up at the last words, and
forgetting even her crutch, limped across to him and fell into his
arms.
“Oh,” she whispered, “but you should have said so, you should
have told me! And then if you had wished me to live on here like this
for a year, ten years, without ever even seeing your face, I would
have done it gladly, if I had only known you cared, that it gave you
one spark of comfort or satisfaction. Oh, you believe me, do you
not?”
He could not help believing her, for truth and devotion were
burning clear in her eyes. But it puzzled, it almost alarmed him.
“You—you are strangely, ridiculously sentimental,” he said, trying
to laugh. “How did you come by all these high-flown notions?”
“Whatever I feel God put into my heart, when he sent me to you to
make you happy again, as you were when my mother was alive.”
He half-pushed her away, with a sharply-drawn breath of pain; for
she had touched the still sensitive place.
“Ah, child,” he said, “they have educated you on fairy tales. There
is no going back to peace and happiness and innocence to men like
me. The canker has eaten too deep.”
These words gave Freda a sudden chill, recalling to her unwilling
mind the mysterious murder of Blewitt. She shuddered, but she did
not draw away.
“Well,” said Crispin brusquely, “if you are frightened you can go
away. I’m not detaining you.”
She looked up with a flushed face, full of sensitive feeling.
“I am sorry and sad with thinking of things which can’t be undone,”
she said softly; “but I am not frightened.”
He put his hand gently upon her head. She fancied that she heard
him murmur: “God bless you.” In a few moments, however, he
withdrew his hand abruptly, and said that he must “be off.”
“And you must go out of this place,” he continued in his harder
tone. “We don’t allow intruders here, you know.”
He led her up the stone staircase to the panel-door, which he
unlocked. Then he helped her through into the gallery, and said
“Good-night” in his usual matter-of-fact, brusque manner. But Freda
was not to be repulsed. Before he could close the door, she caught
his hand, and held it firmly, forcing him to listen to her.
“Crispin,” she whispered, “remember what I said. John Thurley
was kind to me. Don’t let them hurt him. Promise.”
But he would not promise. His face grew stern again, and he put
her off with a laugh as he freed his hand.
“Don’t worry yourself with silly fancies,” he said shortly. “He’s all
right.”
He closed the door sharply and fastened it. Freda remained for a
few moments listening to his footsteps as he went down the stone
stairs. Then remembering with excitement, that “Crispin” had
forgotten to ask her how she got in, and that the way through the
library into the locked-up portion of the house was still open, she
went downstairs, and passed again through the door among the
bookshelves.
She would try and get down to the scaur by the secret way the
smugglers used.