Areas of Grey: Tensions in EU External Relations Competences

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Areas of Grey: Tensions in EU External Relations Competences EIPASCOPE Bulletin 2005/1 21 However, 3 Later, the Single 2 EIPASCOPE 2006/1 EIPASCOPE The Council and the Commission, in the context 4 The end of the Cold War and the Maastricht Treaty saw European Act of 1986 noted that external policies were to European Act of 1986 noted that external be ‘consistent’ and the Presidency and the Commission were given ‘special responsibility’ in this regard. in a curious formulation, the preamble stressed the importance of Europe ‘speaking increasingly with one voice and to act with consistency and solidarity in order more effectively to protect its common interest and independence’, but also that the Member States ‘may make their own contribution to the preservation of peace and security…’. The juxtaposition between ‘one voice’ and ‘own contribution’ not only points backwards, to the ‘otherness’ of EPC, but also hints at the future difficulties that would be encountered in achieving a ‘voice’ in external relations. EPC incorporated into the Treaty on European Union (TEU) as CFSP, or the second pillar. The former EPC ministerial meetings were replaced by meetings of the Foreign Ministers meeting as the General Affairs Council (and, from 2002 onwards, as the General Affairs and External Relations Council). CFSP remained distinct in terms of its decision- making procedures and the respective rights accorded to the Member States and the Community. The TEU was attentive to the need for the Union to ‘ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies’. petences of EPC and its successor, CFSP, would be framed petences of EPC and its successor, CFSP, an appendage to the in a ‘distinct’ manner and, to some, as summit referred to Community. The October 1981 London ‘the Commission of the importance attached by the Ten to fully associated with the European Communities being political cooperation, at all levels’. of the Union’s single institutional framework, were given

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The EU’s competences in external relations are shared between the European The EU’s competences in intergovernmental ‘pillars’ on which the Union rests. Community and the more (CFSP Security Policy and case of the Common Foreign This is most obvious in the the rapid the demise of the cold war and – the so-called ‘second pillar’). Moreover, (ESDP), the European Security and Defence Policy growth of CFSP and its subset, Community areas’ that fall in-between the in the ‘grey have led to some tensions extent of of this contribution is to examine the nature and The purpose and CFSP. or at least various approaches to resolving, these tensions and to consider them. diminishing, The intention is not to offer a comprehensive legal Dr Simon Duke Dr Simon Duke Dr Simon Duke* Dr Simon Duke Dr Simon Duke By Relations Competences Relations Tensions in EU External in EU Tensions Areas of Grey: of Areas Areas of grey in EU external relations Areas of grey in EU external Historically there is evidence of at least concern, if not tension, between the predominant Community aspects of external relations and the European Political Cooperation (EPC) process that emerged in 1970. By design EPC was intended to be ‘distinct from and additional to the activities of the Community’. analysis of competences in external relations, since many exist, but to consider the issue from a more political and policy-oriented perspective. Since the scope of the subject still remains broad, it is therefore hoped that the use of a case study, that of Small Arms and Light Weapons (SALW), will help to illustrate some of the more general issues. The EU’s competences in external relations are shared The EU’s competences in external and the more inter- between the European Community rests. This is most governmental ‘pillars’ on which the Union Foreign and Security obvious in the case of the Common pillar’), although Policy (CFSP – the so-called ‘second important external relations also involves an increasingly and counter-terrorism collection of border, organised crime issues that arise in the context of the ‘third pillar’ of Police and Judicial Cooperation in Criminal Matters. Moreover, the demise of the cold war and the rapid growth of CFSP and its subset, the European Security and Defence Policy (ESDP), have led to some tensions in the ‘grey areas’ that fall in-between the Community and CFSP. The purpose of this contribution is to examine the nature and extent of these tensions and to consider various approaches to resolving, or at least diminishing, them. longer-term consequences since it implied that the com- 22 EIPASCOPE Bulletin 2005/1 Areas of Grey: Tensions in EU External Relations Competences provisions’. may flowimplicitlyfromits by theTreaty,butequally from anexpressattribution ments couldarise‘notonly into internationalcommit- most notablyinthe the competencesofCommunityinexternalrelations, TEC. derive fromtheinternalcompetenceslaidoutinArticle3 external relationsmayalsobe cooperation withthirdcountries’.Second,competencesin vocational concernswheretheCommunitywill‘foster blems’ aspartoftheCommunityremit)andeducation ‘international level’and‘worldwideenvironmentalpro- environmental policy(whichspecificallymentionsthe also includeanumberofothersignificantareassuchas association agreements).TheCommunity’sexternalpowers the commoncommercialpolicy)andArticle310(concerning Other prominentexampleswouldbeArticle133(addressing Community thepowertoenterintointernationalagreements. Community (TEC),suchasArticle300whichgivesthe Community bytheTreatyestablishingEuropean there are competences inexternalrelationsfromtwosources.First, with itsrespectivepowers’. the implementationofthesepolicies,eachinaccordance responsibility forconsistencyandwererequiredto‘ensure military andciviliancrisis management institutions inthe a PolicyUnitwhich reportstohimand,soon thereafter,the for CFSPinOctober 1999,aswellthe establishmentof in thegreyareas.Theappointment oftheHighRepresentative more institutionaladaptation andtheassumptionoftasks of Directorate-GeneralEin particular,haveallowedfor the CouncilGeneralSecretariat andthemorepoliticalrole commonly under-estimated. Thelighterstructureswithin have alsoplayedarolein competencesissueswhichis culture andthesizecompositionofEUinstitutions ‘full association’withCFSP.Differencesinbureaucratic in EUexternalrelationsandshapingthesubstanceof its difficulties encounteredindefiningtheCommunity’sprofile respective Commissionersmay,inpart,accountfor the competition thatresultedbetweentheDGsandtheir for externalrelationsanddevelopment.Theinevitable less thanfourDirectorates-General(DGs)beingresponsible bated bydifferenceswithintheCommissionitself,with no and TitleV(CFSP). to questionsofhierarchybetweentheCommunityareas From theoutsetTEUgaverise,asweshallseebelow, being ascribedtoitsexternalassistanceprogrammes). Commission dislikesthenotionof‘politicalconditionality’ to developmentpolicy(whichisoneofthereasonsthat issues arosewithregard to foreignpolicy.Similar questions ofhowitrelates but itnowraisedimplicit particularly contentious, TEC hadnothithertobeen commercial policyinthe example, thecommon tions ofcompetence.For posed immediateques- www.eipa.eu The Community,whichhaslegalpersonality,derivesits The questionsofcompetenceandhierarchywereexacer- The adventofCFSP 5 TheCourthas,overtheyears,shapedandextended express 6 powersspecificallybestoweduponthe Kramer casewheretheauthoritytoenter its externalrelationsand,in particular, therapid growth challenges facingtheEUin implied over issuesofcompetence fuelled bythemultifarious The potentialforclashes of crisismanagement. has doubtlesslybeen

, meaningthatthey

○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○ for thecasestudy. called greyareas.Thiswillhopefullyprovideusefulcontext the extenttowhichdifferencesortensionsexistinso- specific caseofSALW,itisimportanttoprovideasense of theCouncilinexternalrelations. ESDP area,havehadanotableimpactontheascendancy frequently surfacedas pointsofcontention between the of countries,such astheexportofdual-use goodshavealso zation initiative. well astheKoreanPeninsula EnergyDevelopmentOrgani- cases ofelectoralobservation inRussiaandSouthAfricaas cited ofthe‘overlypervasive’ useofCFSPinstrumentsinthe in CFSP‘commonpositions’. Similarexampleshavebeen were bothcriticisedfortheinclusion ofCommunitymatters positions adoptedin1994 onRwandaandtheUkraine Community competencesinexternalrelations.Common ted onanumberofoccasionsforallegedlyinfringingupon complex challenges,withlessclear-cutresponses. SALW andissuesofexternalrepresentationposemore aspects, conflictprevention,civiliancrisismanagement, as electionmonitoring,dual-usegoods,defenceindustrial also, however,ratherpredictablecases;otherissuessuch made foraconsistentandcoherentapproach.They are tences thatwereidentifiedbytheTreatiesandprovisionwas the manneroutlinedabove. Liberia, Niger,TogoandZimbabwe,tonamebutafew)in suspension ofeconomicrelations(aswasthecasein results ofpartialortotalnon-compliancecanbethe for penaltiesintheeventofnon-compliance.One instance andtheemphasisisverymuchuponprimacy between thetwoinstitutionsisalsoclearlylaidoutinthis Commission overseestheimplementation.Therelationship political decisiontoenforceeconomicsanctionswhilethe this particularinstancetheCounciladoptsnecessary majority onaproposalfromtheCommission’.Hence,in necessary urgentmeasures’andshallactby‘aqualified [Article 301TEC].InthisinstancetheCouncil‘shalltake ‘economic relationswithoneormorethirdcountries’ the interruptionorreduction,inpartcompletely,of in theTreaties.Themostobviousexampleofthisnatureis clearly foreseenandprovisionwasthereforemadeforthis There weresomeareaswherethepotentialforoverlapwas Shades ofgreyinEUexternal relations Before embarkinguponamoredetailedlookatthe Commission challengestotheCouncilhavebeenmoun- Both oftheaboveareexamplesoverlappingcompe- 7 Otherissueareas, cuttingacrossanumber partners, withstipulations agreements withexternal ments’ clause)intoits to asan‘essentialele- provisions (oftenreferred integrates humanrights Commission routinely TEC andtheTEU.The is mentionedinboththe damental freedoms,which for humanrightsandfun- Council isintherespect Commission andthe laboration betweenthe where thereisclosecol- of theCouncil. An associatedarea Areas of Grey: Tensions in EU External Relations Competences EIPASCOPE Bulletin 2005/1 23 12 ? A resolution 18 20 16 EIPASCOPE 2006/1 EIPASCOPE In retrospect Small Arms and Light Weapons (SALW) was one of the more likely areas for a clash between the Community and CFSP. The action brought by the European Commission against the Council of the EU on 21 February 2005 has the potential to be a ECOWAS and SALW: a and SALW: ECOWAS landmark case The 1998 EU Code of Conduct 19 17 Dewaele and Gourlay lament that the Dewaele and Gourlay lament 15 As we look to the future the funding issue is likely As we look to the future 13 The general thrust of the proposal has been welcomed The general thrust 14 Before examining the case in more detail, a little EU issues relating to the production, transfer and The competence issue, though, is only partially a legal a is only partially though, issue, The competence included ‘full scope’ sanctions (in other words, those including military, arms and any other items). to remain at the centre of the inter-pillar competence to remain at the Instrument for Stability (hence- question. The Commission’s is intended to improve the EU’s forth Stability Instrument) streamlining the Community and CFSP response to crises by forthcoming Financial Perspective (2007- responses under the 13). has the European Parliament, although it by the Council and that ‘the Instrument oversteps also met with charges reduce parliamentary Commission competences and would oversight’. on small arms the following year reinforced the Union’s landmark case, with profound implications for the Council landmark case, with profound implications and the Commission. operation which falls outside the Community budget. Community the falls outside which operation background on SALW is necessary in order to understand why it has become a landmark case. The trade and spread of SALW has been recognised internationally and affects not only the security of civil populations but is also associated with terrorism and organised crime. According to UN estimates there are around 600 million light weapons in global circulation, which are responsible for 500,000 deaths per annum, 300,000 of which occur in armed conflicts. Of the 49 major conflicts in the 1990s, 47 were conducted with SALW as the major weapons. acquisition of armaments are generally a Member State competence (Article 296 TEC). In spite of this, arms trafficking was mentioned in the 1997 Amsterdam Treaty and eight broad criteria were agreed that Member States should take into account when licensing arms exports. A Programme for Preventing and Combating the Illicit Trafficking in Convention Arms was agreed to on 26 June 1997 which, although internal in focus, had important external dimensions including various weapons buy-back, collection and destruction schemes. ‘negotiations on this new financial instrument have not been ‘negotiations on this new financial instrument solidarity, but carried out in the spirit of inter-institutional over the precise rather been reduced to legalistic arguments delineation of institutional competences’. matter. The question of funding also influences competence also influences question of funding matter. The funding to Put rather directly, the pillars. issues between limited, operations remains crisis-management support CFSP its disposal. substantial funds at Community has whereas the for the secretariats that worked quote Patten, ‘The Again, to and its High Representative for the CFSP Council of Ministers like access to useful things resented the Commission’s money’.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ a legal matter. The competence issue, The competence though, is only partially The question of funding issues between the pillars. issues between the also influences competence Although undoubtedly correct, 9 10 with the In a similar vein there are also dimensions of In a similar vein there 8 This therefore suggests that an operation is either a 11 The important point is the new structures, that – however awkward they may be – procedures and instruments of CFSP recognise the need to harness the strengths of the European Community in the service of European foreign policy. That is why the Treaty ‘fully associates’ the European Commission with CFSP. We participate fully in the decision-making process in the Council, with a shared right of initiative which we shall exercise. Our role cannot be reduced to one of ‘painting by numbers’ – simply filling in the blanks on a canvas drawn by others. Nor should it be. It would be absurd to divorce European foreign policy from the institutions which have been given responsibility for most of the instruments for its accomplishment: for external trade questions, including sanctions; for European external assistance; for many of the external aspects of Justice and Home Affairs. The potential for clashes over issues of competence has The potential for clashes Community instrument, financed through the Community budget; a CFSP operation (without military or defence implications) financed through the CFSP budget; or, an ESDP Issues of foreign policy are one factor, but perhaps of more importance is the rapidly emerging ESDP with its various crisismanagement roles; it has already been observed that some of the most sensitive competence issues have arisen in and around this area. From a legal perspective it is ‘the aim and content of an envisaged operation’ that determines the legal basis. Community and the second pillar. Conversely, the Council the Conversely, pillar. the second and Community when to act competence the Commission’s has challenged West Africa programmes in conflict-prevention it supported Community Development The Southern Africa (through States) as of West African Community and the Economic mediation peace-building and Nepal; supported well as in promoted peace-building Liberia and Sudan; in Aceh, in and support for UN good offices efforts in Bolivia; Colombia. doubtlessly been fuelled by the multifarious challenges doubtlessly been the external relations and, in particular, facing the EU in its as management. These challenges, rapid growth of crisis for CFSP, Javier Solana, observed the High Representative to Strategy, call upon the Union in his European Security different instruments and capabilities: ‘bring together the and the European European assistance programmes capabilities from Development Fund, military and civilian … Security is the first Member States and other instruments condition for development’. the instruments the issue still remains of how to combine the strategy was and capabilities. The manner in which Secretariat and with drafted, primarily within the Council little consultation with the Commission, is symptoma- tic of the issue. Chris Patten has already noted that the growth of CFSP and its associated structures de- pended upon finding a modus vivendi Community. The following reflections by Patten, made in 2000, are worth quoting with this in mind: Security Sector Reform (SSR) that have military or (external) Security Sector Reform which fall within the CFSP competence. police dimensions 24 EIPASCOPE Bulletin 2005/1 Areas of Grey: Tensions in EU External Relations Competences alia legislation, inthiscasetheCotonou Agreement,covers competent toadoptthedecision referredtoandthatexisting was mountedonthegrounds thattheCouncilwasnot ECOWAS intheframeworkonMoratoriumSALW. lack ofcompetence’,regardinganEUcontribution to annulment ofaCouncildecisionDecember2004, ‘for competences andinter-institutionalfriction. Union in2001,wastobeanotherareasubjectconflicting conflict prevention,whichbecamea‘fixedpriority’for the million conflict-preventionprojectapprovedin1999.Ironically link clear: Commission) makesthe irrefutable. ASALWpamphlet(publishedbytheEuropean However, thelinkagewithCommunityactivitiesisalso alongside thecontinuedexistenceofArticle296TEC. related issues,givennationalsensitivitiesinthisarea, States wouldclearlynotgiveuptheirinterestinSALW- legality oftheCouncildecision. It isthereforenowuptotheCourtofJusticereview the moratorium forseveralyears,especiallythrougha conduct. TheCommissionhasindirectlysupportedthe SALW inNovember1998and,ayearlater,codeof a moratoriumontheimport,exportandmanufactureof In thecaseofECOWASspecifically,membersdeclared external ramifications,includingtheSALW. crime, terrorismanddrugtrafficking–allofwhichcarried for cooperationonavarietyofeffortstocounterorganised attention ontheissuesinceitimpliedthattherewasaneed gestation. TheemergenceoftheSchengenareafocussed Africa. emphasis onsouthern(SADC)andwestern(ECOWAS) resolve tostemthespreadofSALW,withaparticular SALW’. internal conflictsaggravatedbythedestabilisinginfluxof remains thecontinentmostaffectedbyimpactof case discussedbelow,thestrategynotedthat,‘Africa ammunition inDecember2005and,ofrelevanceforthe a StrategytocombattheillicittraffickingofSALWandtheir States andCanada.Finally,theEuropeanCounciladopted by bilateralarrangementssuchasthosewiththeUnited decision alsoallegedly violatesArticle 47ofthe TEU which accumulation of smallarmsandlightweapons’. TheCouncil excessive and uncontrolledspread,illegal traffickingand mentions, amongstotherthings, theneedtoaddress‘the www.eipa.eu To returntothecase,Commissionrequested mes. development program- social andeconomic as anintegratedpartof batants intocivilsociety, reintegration ofex-com- bilisation aswell disarmament anddemo- order topromotesecurity, should beprovidedin countries orregions tance toconflict-prone tance. Therefore,assis- of developmentassis- cannot makeeffectiveuse of insecurityorviolence Countries withhighlevels The developmentofEUpolicyonSALWhashadaslow thespreadofSALW. 21 22 24 Theagreementsabovehavebeencomplemented 27 Article11(3)oftheAgreement 26 TheCommissionchallenge with profoundimplications the EuropeanCommission against theCouncilof EU on21February2005 has thepotentialtobe The actionbroughtby for theCounciland a landmarkcase, the Commission. 23 TheMember € inter 1.9

○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○ CFSP shall‘include security policy...’[Article11.1].TheTEUalsostatesthat foreign andsecuritypolicycoveringallareasof that, ‘TheUnionshalldefineandimplementacommon to abovewereconsonantwithTitleVoftheTEUwhichstates strays into securitypolicy issues, or challenges ofdeciding where,forexample, financialsupport (TEC). Asidefrom thelegalniceties,practical, everyday, from theinternalCommunity taskslaidoutinArticle2 powers oftheCommunity,these aspectsaremerelyimplied is alsolikelytoendinfrustration. Ifwelookattheexternal aspects ofsecurity’,whichis ofrelevancetoourdiscussions, over allaspectsoftheUnion’s externalactivities’. TEU], hasled‘bothinstitutionstorightlyclaimcompetence ‘each inaccordancewithitsrespectivepowers’[Article 3 a responsibilityfallingtotheCouncilandCommission, According toPascalGauttiertherequirementforconsistency, not modifythe assume thattheexistenceofCFSP(andthirdpillar)does Joint ActionfromJuly2002. also soughtadeclarationofillegalityforfurtherCouncil cooperation measureswiththirdcountries’.TheCommission its spheresofcompetence,economic,financialandtechnical competence fordevelopmentaidand,inparticular,‘within these respectivearticlestheCommunityisattributed Under Action alsoviolatedArticles177and181aoftheTEC. ding totheCommission’schallengeCouncil’sJoint Treaties andActsmodifyingorsupplementingthem.Accor- establishing theEuropeanCommunity or states that,...nothinginthisTreatyshallaffecttheT the Union...[Article17.1 if notname. applying equallytothesecondandthirdpillars,inpractice national law,allimplythatthereexistsaUnion [Article 3TEU]andtheprecedenceofCommunitylawover ‘respecting andbuildinguponthe ensure theconsistencyofUnion’sexternalactionswhile presence ofa‘singleinstitutionalframework’,theneedto ‘founded ontheEuropeanCommunities, Common ProvisionsoftheTEUstatethatUnionshallbe second pillarmustrespectthe to theCommunityinsensethatdevelopmentof Treaty’ [Article1,emphasisadded].Itshouldbenotedthat the policiesandformsofcooperationestablishedbythis From theCouncilperspectiveJointActionsreferred An attempt,bydeduction,to ascertainthenatureof‘all 29 Itwouldbeequallycounter-intuitiveto acquis communautaire all questionsrelatingtothesecurityof emphasis added 28 acquis communautaire third pillar)aresubservient (and, forthatmatter,the seem toimplythatCFSP when readtogether,would [Article 2].Thetwoarticles, tutions oftheCommunity’ mechanisms andtheinsti- the effectivenessof with theaimofensuring may needtoberevised introduced bythisTreaty and formsofcooperation to whatextentthepolicies it withaviewtoconsidering munautaire full the objectives to‘maintainin out asoneoftheUnion’s the followingarticlesets acquis communautaire andEuropeanlaw. vice versa supplemented ]. However,the the subsequent acquis com- and tobuildon , isoften 30 acquis reaties . The by , ’ Areas of Grey: Tensions in EU External Relations Competences EIPASCOPE Bulletin 2005/1 25 250 € 39 The APF carries the EIPASCOPE 2006/1 EIPASCOPE seeds for further con- fusion regarding the roles of the Community and the second pillar. Although the APF has been presented primarily as a vehicle for development, which ne- cessitates an active Community role, the political implications of supporting sensitive peace keeping operations points to an active CFSP role (especially economic co-operation that has typified the Union’s role on the con- tinent. Hence, to some critics, it was seen as ‘inappropriate to use development aid for military-related expen- ditures, which was the case with the Africa Peace Facility even if they are not considered directly “military” operations’. 37 EDF resources. The use of funding originally intended as Official The use of funding 38 A more formal approach, interrupted by the two ‘No’ The AU Peace Facility (APF) is now worth some is now worth some Facility (APF) The AU Peace million and is managed by Africans. The overall purpose of The overall is managed by Africans. million and the conditions for development since, the Facility is to create by Solana in the European Security as is acknowledged no Cotonou Agreement, there can be Strategy and in the security. From the Commission’s development without to extend the use of development perspective, ‘the decision security issues was therefore a deliberate funds to peace and one’. that of the Political and Security Committee). Formal and informal approaches to competence issues One of the first solutions, or perhaps a form of short-term ‘non-solution’, is simply to step back and let the situation evolve, with the Court’s decision on the ECOWAS/SALW case as an integral part of this evolution. Indeed, it could be argued that different interpretations of competences are part of everyday life – in national administration, the work place and even the home – and the situation will gradually right itself. Whilst there is some merit to the argument, it can be challenged on the grounds that there may be a very real human cost in terms of the Union’s ability to be an effective international actor, if the problems outlined above are not addressed. accordingly agreed in July 2003 to establish a EU Peace a EU to establish July 2003 in agreed accordingly funds from AU financed for the Facility Operation Support development co-cooperation to them via existing allocated from by matching funding matched initially agreements, unallocated has for peace support operations Development Assistance for and, more generally, the support created controversy missions is a change from the normal AU peacekeeping

○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○ ○○○○○○○○○○○○○○○○ 34 The advent of the 36 Thus, the Commission- 31 The EU strategy refers to 35 Benita Ferrero-Waldner, Member of the EC in charge of External Relations and European Neighbourhood Policy. © European Community, 2006 33 The 32 The story is further complicated by the fact the Union’s The EU Strategy to On the question of intentions, Bastien Nivet comments of intentions, On the question principal vehicles to stem SALW in Africa had been through Disarmament, Demobilization and Reintegration (DDR) and SSR which it helps to finance through the European Development Fund (EDF). combat illicit accumulation and trafficking of SALW and their ammunition, adopted by the European Council after the above-mentioned legal challenge, conti- nues to portray SALW as primarily a CFSP concern, even going so far as to argue that, ‘generally speaking, the whole range of CFSP instruments can be mobilised in support of Union SALW-related action (Personal Representatives, Special Representatives, political declarations, technical support, demarches and structured dialogues, ad hoc seminars on export controls)’. African Union (AU) in December 2002 at the Durban Summit contained a strong security dimension; hence the inclusion of a Peace and Security Council. At the AU Maputo summit in 2003 the heads of state proposed that a peace facility be set up using EC development co-operation agreements directed at their respective countries. The EU that the ‘EU’s intervention in ECOWAS countries and its in ECOWAS countries intervention that the ‘EU’s developed of SALWs had first ECOWAS in the field support to support to local and UNDP- essentially as a financial operated existing programmes’. unclear. So, in addition to the legal ambiguities sur- ambiguities legal to the in addition So, unclear. question the all important is also case, there this rounding instruments of the respective and perceptions of the intentions above. referred to ‘development and assistance programmes financed by the EDF, in the framework of EC-ACP cooperation’ as one of the available external instruments. Council therefore wish- ed to establish direct technical and financial assistance to the ECO- WAS Secretariat itself, rather than the Com- mission model which was based on support directed through existing programmes; as Nivet comments, the Council’s approach ‘implies a shift of co- operative method’. backed SALW efforts could legitimately be portrayed as a could legitimately be portrayed as backed SALW efforts competence, based on the Cotonou matter of Community The it was primarily financial in nature. Agreement, since CFSP, committed the EU to ‘offer Council, acting through up and technical assistance to set a financial contribution Unit within the ECOWAS Technical the Light Weapons the Moratorium into a Convention Secretariat and convert light weapons between the ECOWAS on small arms and Member States’. 26 EIPASCOPE Bulletin 2005/1 Areas of Grey: Tensions in EU External Relations Competences ability toconcludeinternational agreementstoimplement the Court’sjurisdictionin the CFSParea,alongside nevertheless benotedthatthe generalnon-applicabilityof effects, suchasjudgements of theCourtJustice.Itshould Such aprocesscouldalsobe complementedbytop-down some ofthecompetenceissuesinabottom-upmanner. possible thataslowneo-functionalistapproachmayclarify cases, reflecttheexistenceoflimitedresources.Itistherefore the recognitionofcommonaimsbutwhichalso,inmany are afewexamplesofpragmaticsolutionswhichinvolve well exacerbateexistingtensions.Atthepracticallevelthere leave manyquestionsofcompetenceintheairandmay above. TheConstitutionalTreaty,ifadopted,would still There isnosimplesolutiontothecomplexissuesraised Conclusion a broaderemergingunderstandingoncompetences. of whatis has arisenintheExternalServiceaswell,sinceboundaries of theCommissiondelegations.More relations betweentheSpecialRepresentativeandheads Representative –thusavoidingthesometimesawkward Yugoslav RepublicofMacedonia,aswellEUSpecial of theEuropeanCommissiondelegationtoFormer example isthejointappointmentofErwanFouéréasHead Ukraine bordermonitoringmission.Anotherinteresting example, thecurrentmissionstoAcehandMoldova- There arealreadyexamplesofclosecooperationin,for ad hoc competences struggleandmostlikelyitsfocus. powers, buttheywillalsobecomepartandparcelofthe may holdthepotentialtoalterinstitutionalbalanceof Foreign AffairsortheEuropeanExternalActionService, external relationsarea,suchastheUnionMinisterfor remain muchastheyarecurrently.Theinnovationsinthe petences sincetheprocedures,instrumentsandinstitutions Constitutional Treatydidlittletosolvetheissueofcom- areas ofcompetencetheMemberStates…’. petence oftheUnionortoencroachmentuponexclusive time, guardingagainst‘creepingexpansionofthecom- for aredefineddivisionofcompetencewhile,atthesame Declaration ontheFutureofEUhadidentifiedneed tence issuesthroughtheConstitutionalTreaty.TheLaeken votes inthe2005referendums,wastoaddresscompe- question remainsastowhethertheyare development. Inspiteoftheseencouragingsigns,the defence industrysupportedbycooperativeresearchand objective ofcreatingastrongandcompetitiveEuropean especially throughDGEnterprisewhostronglybacksthe Community’s interestinthedefence-industrialaspects, relatively newEuropeanDefenceAgencyhasrevivedthe Military StafftogiveadviceontheDarfurregion.The temporary assignmentofamilitaryadvisorfromtheEU specialist adviceinthe‘grey’areas,exemplifiedby those oftheCommission). liaison officesinGenevaandNewYork(separatefrom of CouncilSecretariatrepresentationoverseasoutside have becomemoreblurred,aidedandabettedbythelack www.eipa.eu In theabsenceofaConstitutionalTreaty,otherforms The Commissionhasalsorealisedtheneedforoccasional cooperationinthe‘greyareas’couldbefostered. communautaire and whatisintergovernmental de facto ad hoc collaboration orpartof 40

The ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ © EuropeanCommunity,2006 High RepresentativeforCFSP. Javier Solana,SecretaryGeneraloftheCouncilEUand NOTES NOTES of thecompetenceissue,buttheyarealsolongoverdue. will inevitablybeverysensitivesincetheygotheheart important asanyoutcome.ThediscussionsontheService talking throughthedesignofServicethatisalmostas is oftenmentionedasapotentialtarget),itthe easily leadtochargesof‘cherrypicking’(andtheService and theCommissiononService.Althoughthiscould may besomelogictorevivingthetalksbetweenCouncil to theexistenceofaUnionMinisterforForeignAffairs,there Service. InspiteofthefactthatServiceisintimatelytied Treaty itself,intheformofEuropeanExternalAction tension inthegreyareasmaystemfromConstitutional areas’ identifiedabove. CFSP, mayleadtofurtherdisputesinthenumerous‘grey 5 4 3 2 1 DrSimonDuke, AssociateProfessor–EIPAMaastricht. * NOTES NOTES NOTES One ofthebesthopesfordiminishinginter-institutional Articles 94,95and308TEC areoftenusedtoestablish significant externalaspects. and EconomicMonetary Affairs,allofwhichhave have toincludeotherareassuch asenergy,JHA,agriculture This listofexternalactivitiesishowever limitedandwouldnow pean Act),11June1986,TitleIII,Article20,Para.5. munities andActsrelatingtotheCommunities(SingleEuro- Treaties RevisingtheestablishingEuropeanCom- Supplement 3-1981,pp.14-17. October 1981,in ‘Report onEuropeanPoliticalCooperation’,London,13 Bulletin oftheEuropeanCommunities Bulletin oftheEuropeanCommunities , No.10-1972,p.18. process of , Areas of Grey: Tensions in EU External Relations Competences EIPASCOPE Bulletin 2005/1 27 , 15 126 € 10 billion long- € Comment on the Pro- EIPASCOPE 2006/1 EIPASCOPE , European Law Journal, , Occasional Paper, No. , Occasional Paper, The EU and (sub-) regional ? , Para. 19. , Para. 19. . 39.00 35.00 € € Horizontal Coherence and the External Horizontal Coherence Ibid. Loc Cit Information Note for the attention of Coreper Note for the attention Information Security by Proxy , Directorate-General for Development, Informa- ’, 23 May 2005, Section 1.3.2 (at http://www.eplo.org/ , 14 March 2005, Brussels. , 14 March organisation: the case of ECOWAS organisation: the case 26. 63, March 2006, p. Securing Peace and Stability for Africa: The EU-Funded African Securing Peace and Stability for Africa: The Peace Facility Commission, 2004, tion and Communication Unit, European p.5 (at http://europa.eu.int/comm/development/index_en.htm). European Peacebuilding Liaison Office, ‘ an Instrument posal for a Regulation of the Council establishing for Stability documents/EPLOPolicy PaperStabilityInstrument.pdf). European Union Laeken Declaration on the Future of the 7285/05, JUR, 7285/05, II on the EU 12 July 2002 Action 2002/589/CFSP, Council Joint destabilising accumulation to combating the ’s contribution repealing light weapons and of small arms and and spread L 191, 19 July 2002. 1999/34/CFSP, OJ Joint Action stipulations regarding PJCCM are even In some respects the especially when Article 29 of the TEU more explicit than CFSP, concerning the area of freedom, states that the provisions be exercised security and justice, shall ‘without prejudice to the Community ...’. powers of the European Pascal Gauttier, European Union Competences of the 2004, p. 27. Vo. 10, No. 1 January Bastien Nivet, Quoted in Nivet, Ibid. Loc cit. and trafficking EU Strategy to combat the illicit accumulation of SALW and their ammunition budget, but is The EDF is not part of the general Community covered by its own funded by the Member States and is the national parlia- financial regulations that are ratified by ments, and is managed by a specific committee. and trafficking EU Strategy to combat the illicit accumulation of SALW and their ammunition was taken from 1.25% of EDF 9 (this is the ninth round) money the Cotonou country ‘B’ envelopes within the December 2001. nity states, in part, that the Court of Justice shall have shall of Justice the Court part, that in nity states, the Council State, by a Member brought in actions ‘jurisdiction …’. of lack of competence on the grounds or the Commission term development envelope; amounting to around term development envelope; amounting million. Information from http://www.bond.org.uk/networker/ 2004/aug04/apf.htm. The Hyperpower and the Hype: Reassessing Transatlantic The Hyperpower and the Hype: Reassessing Transatlantic Relations in the Iraqi Context Relations in the Iraqi Context The EU and Crisis Management: Development and Prospects The EU and Crisis Management: Development and Prospects Between Vision and Reality: Between Vision and Reality: CFSP's Progress on the Path to Maturity CFSP's Progress on the Path to Maturity The Hyperpower and the Hype: Reassessing Transatlantic Relations in the Iraqi Context Simon Duke EIPA 2003/W/0, 19 Pages ISBN – , Free of charge The EU and Crisis Management: Development and Prospects Simon Duke EIPA 2001/08, 230 Pages ISBN 90-6779-163-6, Between Vision and Reality: CFSP's Progress on the Path to Maturity Simon Duke (ed.) EIPA 2000/P/02, 319 Pages ISBN: 90-6779-145-8, The Hyperpower and the Hype: Reassessing Transatlantic The Hyperpower and the Hype: Reassessing Transatlantic Relations in the Iraqi Context Relations in the Iraqi Context The EU and Crisis Management: Development and Prospects The EU and Crisis Management: Development and Prospects Between Vision and Reality: Between Vision and Reality: CFSP's Progress on the Path to Maturity CFSP's Progress on the Path to Maturity 38 39 40 27 28 29 30 31 32 33 34 35 36 37 , , ISIS , 21 May . The Stability Instru- The Stability Germany v European The Political System of the , Council Doc. 8675/2/98, , adopted by the European , Para. 12. (2000) ECR-8419. 28.00 € , Council Doc. 9057/97, 20 June 1997. Official Journal of the European Union , COM (2000)674 final, Brussels, 28 No- , COM (2000)674 , (Basingstoke: Macmillan, 1999), p. 321. , COM (2004) 630 final, 29 September 2004. , COM (2004) 630 final, European Security Strategy European , ISIS Europe, 27 June 2005, p. 1. Not Quite the Diplomat: Home Truths About Not Quite the Diplomat: , (London: Allen Lane, 2005), p. 157. , (London: Allen Lane, , European Commission, (Luxembourg: Office for Offi- , European Commission, (Luxembourg: Office . p. 6. C115/10, 14 May 2005. cial Publications of the European Communities, 2001), p.cial Publications of the European Communities, 8. Article 230 of the Treaty establishing the European Commu- Council Decision 2004/833/CFSP, 2 December 2004. Council Decision 2004/833/CFSP, 2 December 1999. For full text see, http://www.grip.org/bdg/g1787.htm This point is made by Simon Hix, European Union of the European Small Arms and Light Weapons: The response Union Development Council’s Resolution on Small Arms Development Council’s Resolution on Small and trafficking EU Strategy to combat the illicit accumulation of SALW and their ammunition Council, 15-16 December 2005, Council 5319/06, 13 Janu- Council, 15-16 December 2005, Council ary 2006, Para. 8. the Illicit Trafficking Programme for Preventing and Combating in Conventional Arms Code of Conduct on Arms Exports EU Strategy to combat the illicit accumulation and trafficking EU Strategy to combat the illicit accumulation of SALW and their ammunition Briefing, 27 June 2005, p. 5. Briefing, 27 by the European ‘Action brought on 21 February 2005 European Union’, Commission against the Council of the (Case C-91/05), in Rev. 2, 8 June 1998. The Stability Instrument: defining the Commission’s role in The Stability Instrument: crisis response Ibid Chris Patten, of the Council establishing an Instru- Proposal for a regulation ment for Stability Communication from the Commission to the Council and the Communication from Financing of Civilian Crisis Manage- European Parliament: ment Operations World Affairs ment: defining the Commission’s role in crisis response the Commission’s ment: defining C-376/98, As established in Case Parliament and Council vember 2001, p. 4. Javier Solana, Javier Solana, des Patten, Institut Français The Rt Hon Chris Speech by SPEECH/ Paris, 15 June 2000, (IFRI), Relations Internationales 00/219. Case 3,4 and 6, Kramer et al. Kramer 3,4 and 6, Case at 1308. ECR 1279 (1976), 28. Gauttier, p. Gourlay, and Catriona Aline Dewaele implied external competences. external implied RELATED EIPA RELATED EIPA PUBLICATIONS PUBLICATIONS The Commission and the CFSP The Commission and the CFSP Beyond the Chapter: Enlargement Challenges Beyond the Chapter: Enlargement Challenges for CFSP and ESDP for CFSP and ESDP The Convention, the Draft Constitution and External Relations: The Convention, the Draft Constitution and External Relations: Effects and Implications for the EU and its International Role Effects and Implications for the EU and its International Role RELATED EIPA PUBLICATIONS The Commission and the CFSP Simon Duke EIPA 2006/W/01, 37 Pages ISBN – , Free of charge Beyond the Chapter: Enlargement Challenges for CFSP and ESDP Simon Duke EIPA 2003/P/03, 111 Pages Isbn: 90-6779-176-8, The Convention, the Draft Constitution and External Relations: Effects and Implications for the EU and its International Role Simon Duke EIPA 2003/W/02, 39 Pages ISBN – , Free of charge RELATED EIPA RELATED EIPA PUBLICATIONS PUBLICATIONS The Commission and the CFSP The Commission and the CFSP Beyond the Chapter: Enlargement Challenges Beyond the Chapter: Enlargement Challenges for CFSP and ESDP for CFSP and ESDP The Convention, the Draft Constitution and External Relations: The Convention, the Draft Constitution and External Relations: Effects and Implications for the EU and its International Role Effects and Implications for the EU and its International Role ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 25 26 23 24 21 22 19 20 18 17 15 16 13 14 12 11 9 10 6 7 8