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The evolving system of EU external relations as evidenced in the European Union Partnerships with Russia and Ukraine Hillion, C.A.P. Citation Hillion, C. A. P. (2005, February 22). The evolving system of EU external relations as evidenced in the European Union Partnerships with Russia and Ukraine. Retrieved from https://hdl.handle.net/1887/4338 Version: Not Applicable (or Unknown) Licence agreement concerning inclusion of doctoral thesis in the License: Institutional Repository of the University of Leiden Downloaded from: https://hdl.handle.net/1887/4338 Note: To cite this publication please use the final published version (if applicable). THE EVOLVING SYSTEM OF EUROPEAN UNION EXTERNAL RELATIONS AS EVIDENCED IN THE EU PARTNERSHIPS WITH RUSSIA AND UKRAINE Christophe Hillion Leiden, 2005 List of Abbreviations Introduction PART I THE PARTNERSHIP AND COOPERATION AGREEMENTS WITH RUSSIA AND UKRAINE: A NEW FORMULA OF MIXITY 1 Mixed agreements defined by default 1.1 More comprehensive than the trade and cooperation agreement between the Community and the Soviet Union 1.1.1 The PCAs: More ambitious political aims than the 1989 TCA 1.1.1.1 Beyond normalisation: The EU ambition to support the transformation in the Partner countries 1.1.1.2 Furthering rapprochement between the EU and its Partners 1.1.2 The PCAs: Broader commitments than in the TCA 1.1.2.1 The wide scope of the PCAs’ trade regime 1.1.2.2 The broader scale of cooperation under the PCAs 1.1.2.3 The sophisticated institutional framework under of the PCAs 1.1.3 The extended legal bases of the PCAs 1.1.3.1 Different procedural legal bases implying an enhanced role for the European Parliament 1.1.3.2 Amplified legal bases ratione materiae following Opinion 1/94 1.2 Less ambitious than the Europe Agreements concluded with the central and eastern European countries 1.2.1 PCAs and EAs as components of the EU Ostpolitik 1.2.1.1 A common inspiration: Promoting an emerging set of “values” towards countries in transformation 2 1.2.1.2 Agreements subject to the approval of European and national parliaments 1.2.2 A differentiated Ostpolitik: Distinguishing Partnership and Association 1.2.2.1 Differentiated aims as regards the rapprochement with the European Union 1.2.2.2 Differentiated commitments undertaken by the Partners and Associated States 1.2.2.3 Distinct legal foundations 1.2.2.4 A tentative explanation of the choice of Agreements 1.3 Conclusion 2 Proto cross-pillar instruments of EU external relations 2.1 Agreements in line with the aims of the Treaty on European Union 2.1.1 Agreements inspired by CFSP objectives 2.1.1.1 The foreign policy foundations and aims of the PCAs 2.1.1.2 The correspondence between the foreign policy aims of the PCAs and CFSP objectives 2.1.2 Agreements incorporating a JHA dimension 2.1.2.1 The provisions on cooperation to combat drugs 2.1.2.2 Cooperation on prevention of illegal activities under the PCA with Russia 2.2 Agreements subject to political conditions advocated by the Union 2.2.1 The regime of political conditionality envisaged by the PCAs 2.2.1.1 The foundations of the conditionality regime 2.2.1.2 The intricate suspension procedure 2.2.2. A human rights dimension with dual origins 3 2.2.2.1 A human rights clause with an EC dimension 2.2.2.2 A human rights clause with an EU dimension 2.3 Agreements including a systematic political dialogue 2.3.1 A political dialogue straddling the pillars 2.3.2 A political dialogue involving the EU institutional framework 2.4 Conclusion PART II A MIXITY GOVERNED BY THE CONSTITUTIONAL PRINCIPLES UNDERPINNING THE SYSTEM OF EU EXTERNAL RELATIONS 3 Principles organising the interactions between Union sub-orders and Member States 3.1 The judicial nature of the duty of cooperation 3.1.1 A duty derived from the Community principle of loyal cooperation 3.1.1.1. A connection acknowledged by the doctrine 3.1.1.2. A connection implied by the case law 3.1.2 A duty involving legal obligations: the FAO case 3.1.3 A directly applicable duty: the Dior case 3.2 The wide scope of application of the duty of cooperation 3.2.1 The application of the duty of cooperation in the context of mixed agreements involving “inextricably interlinked” exercise of Member States and Community competences 3.2.2 The application of the duty of cooperation where Member States and Community exercise their competences independently 3.2.3 The application of the duty of cooperation in the context of the EU 3.3 Conclusion 4 4 Principles organising interactions between the sub-orders of the European Union 4.1 The principle of preservation and development of the acquis communautaire 4.1.1 A principle establishing a hierarchy among the EU sub-orders 4.1.2 A principle guaranteed by the European Court of Justice 4.1.3 A principle qualified by other fundamentals of the EU constitutional order 4.2 The principle of consistency in the external activities of the Union 4.2.1 The constitutional foundations of the principle of consistency 4.2.2 The principle of consistency understood as pursuit of coherence 4.2.3 Consistency as a guiding principle for EU external action 4.3 The Union’s single institutional framework as factor of consistency 4.3.1 A single set of institutions for the EU 4.3.2 A single framework involving differentiated institutional interactions 4.4 Conclusion PART III AN EVOLVING SYSTEM OF EU EXTERNAL RELATIONS TESTED IN THE PARTNERSHIPS WITH RUSSIA AND UKRAINE 5 The elusive quest for coherent partnerships in an increasingly polarised system of EU external relations 5.1 EU instruments developed towards Russia and Ukraine post- Maastricht 5.1.1 The EU Common Position towards Ukraine: a CFSP instrument igniting institutional tension 5.1.1.1 The substantive overlaps between the Common Position and the PCA 5.1.1.2 The contentious interface between the Common Position and EC law 5 5.1.2 The burgeoning of all-encompassing instruments involving the European Council 5.1.2.1 The EU Action Plan for Russia: elevating the Partnership above “pillar-politics” 5.1.2.2 The EU Action Plan for Ukraine: embedding the Partnership in a broader political perspective 5.2 EU instruments towards Russia and Ukraine post-Amsterdam 5.2.1 A plethora of new CFSP devices adding strain on the coherence of EU external activities 5.2.1.1 Differentiating the EU external contractual relations: the procedure of Article 24 TEU 5.2.1.2 Incarnating the polarisation of system of EU external relations: the High Representative for CFSP 5.2.1.3 Introducing a new CFSP instrument: the common strategy 5.2.2 The Common Strategies on Ukraine and Russia: a limited contribution to furthering coherence 5.2.2.1 A codification of the decision-making role of the European Council in EU external relations 5.2.2.2. A catalyst for the fragmentation of the Partnerships 5.3 Conclusion 6 The Partnerships after enlargement: towards an integrated formula of EU external relations 6.1 EU enlargement policy: a model for integrating the Partnerships 6.1.1 The pre-accession methodology: the promotion a fully integrated EU on the international plane 6.1.1.1 The promotion of the acquis as a whole towards third states 6 6.1.1.2 A methodology based on an integrated functioning of the EU institutional framework 6.1.2 A methodology penetrating the Partnerships with Russia and Ukraine 6.1.2.1. Fostering the integration of the Partnership with Ukraine through the European Neighbourhood Policy 6.1.2.2. New concepts for an all-encompassing EU cooperation with Russia: the “Common Spaces” 6.2 The Constitutional Treaty: a partial consolidation of the system of EU external relations as evidenced in the Partnerships with Russia and Ukraine 6.2.1. Reviewing the new formula of mixity illustrated by the PCAs 6.2.1.1. The widening of the Union’s exclusive external powers under the Constitution 6.2.1.2. The formal “de-pillarisation” and express recognition of the legal personality of the EU 6.2.2. The continued significance of the principles underpinning the system of EU external relations envisaged in the Constitution 6.2.2.1. The consolidation of the principles governing the interactions between the EU and its Member States 6.2.2.2. The consolidation of the principles governing interactions between sub-orders 6.2.3. Further substantive and institutional integration of the system of EU external relations 6.2.3.1. Substantive integration 6.2.3.2. Institutional integration 6.3 Conclusion Conclusion References 7 ABBREVIATIONS AFDI Annuaire Français de Droit International AG Advocate General AJIL American Journal of International Law Bull. EC Bulletin of the European Communities CCP Common Commercial Policy CDE Cahiers de Droit Européen CEEC Central and Eastern European Country CFI Court of First Instance CFSP Common Foreign and Security Policy CIS Commonwealth of Independent States CMLRev. Common Market Law Review COREPER Comité des Représentants Permanents CS Common Strategy CSCE Conference on Security and Cooperation in Europe CUP Cambridge University Press CYELS Cambridge Yearbook of European Legal Studies DG Directorate General EA Europe Agreement EAEC European Atomic Energy Community EC European Community ECHR European Convention on Human Rights ECR European Court Report ECSC European Coal and Steel Community EEA European Economic Area EEC European Economic Community EFARev. European Foreign Affairs Review EFTA European Free Trade Association EIPA European Institute of Public Administration EJIL European Journal of International Law ELJ European Law Journal ELRev.