The External Representation of the EU: a Simple Matter of Protocol? François Roux
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No. 69 AprilNo. 2022 1 June 2011 The external representation of the EU: A simple matter of protocol? François Roux “Sofagate” has brutally disclosed the internal It provides an analysis of the dysfunction, why it divergences within the EU in the field of its external happened, and how it could be fixed. relations. This paper does not comment on the role of Some tried to minimize this unfortunate incident as a Turkish authorities or any other aspect of the mere breach of diplomatic protocol. However, several “sofagate”. elements lead us to think that the issue at stake is a very political matter: the division of power between the President of the EU Commission and the President of I. WHAT THE LISBON TREATY SAYS the European Council concerning the external representation of the EU. In the Lisbon treaty (TEU) three main actors have been designated to represent the European Tensions between both presidents were predictable Union on the international scene: The President and identified as soon as the Lisbon Treaty came into of the European Council, the President of the force (see premonitory analysis written by Professor Niki Aloupi in 2010) 1 . The ambivalent language of the European Commission, and the High Lisbon treaty seems to be the main source of these Representative for the Common Foreign and tensions which had, until now, been contained. On 6 Security Policy. of April 2021, these misgivings became public as pictures of the Ankara meeting, amplified by social From 1974 until November 2009, when the media, went viral. Lisbon treaty entered into force, the European Council was presided by the head of state or Considering the complex relationship between government of the rotating presidency, clearly institutions and Member states as well as the harsh designated as head of delegation for all bilateral criticism from Eurosceptical populists, an institutional summits between the EU and third countries. quarrel is the last thing the EU needs in these COVID-19 times. This awkward dispute undermines The big innovation introduced by the TEU was the ambitions for an efficient and coherent European the institution of a stable presidency of the foreign policy. European Council elected for a two and a half year term, renewable once (article 15, para.5 This article focuses solely on the impact of the incident TEU). The purpose of this innovation was to on the internal structure of the EU’s external reinforce the visibility and continuity of the representation. European Council’s presidency, which became an EGMONT Royal Institute for International Relations official institution of the Union (article 13 TEU). States was not unambiguous. In fact, the reason According to article 15, para. 6 “The President of why the external representation of the EU the European Council shall, at his level and in remains difficult to grasp, is the reluctance of that capacity, ensure the external representation Member States to transfer the exercise of their of the Union on issues concerning its common national foreign policy to the Union. foreign and security policy, without prejudice to the powers of the High Representative of the The Presidency of the European Council was Union for Foreign Affairs and Security Policy.” modelled on the role of a head of state in a classic parliamentary regime, not as politically exposed For matters other than foreign affairs and as a head of government. However, nothing in security policy (CFSP), the Commission ensures the TEU prevents an assertive personality of (as an institution, not as a person) the external fulfilling his/her tasks with dynamism and taking representation of the Union (Article 17 TEU). the necessary initiatives to make the role look The suppression of the so-called pillars and the more presidential. The lack of precision in the attribution of a legal personality to the Union manner in which the job description is drafted have reinforced the Commission’s role in the allows the President of the European Council to external representation of the EU in community take advantage of any opportunity to compete matters. Besides the CFSP exception, there is the with the President of the Commission. This particular case of the external representation of loophole was detected and criticized by the the eurozone, which is ensured by the president representatives of smaller Member States – of the Eurogroup (an informal body). Just as the including Belgium- that considered it a way of President of the European Council, the President weakening the Commission. of the European Commission is a full member of the European Council and the counterpart of When dealing with the external competences of Heads of State and government in matters the Union, the EU treaties have always made a relating to the competences of the Commission. clear distinction between those of an intergovernmental nature (which require The High Representative (HR) conducts the unanimity as is the case with CFSP/CSDP) and Union’s common foreign policy, represents the those of an exclusively community nature (such EU in political dialogues with third countries and as trade policy, cooperation and development, within international organizations and and humanitarian assistance). In practice, this conferences and in all matters related to the distinction is not as obvious as it seems. In most European Security and Defence Policy (CSDP). cases, when dealing with foreign policy, the He presides over the Foreign Affairs Council Commission and the Council will inevitably (Articles 18 and 27 of the TEU) and, as one of depend on one another. Ultimately, the efficiency the Vice-Presidents of the Commission, ensures of the EU’s foreign policy is determined by the the consistency of the EU’s external action. personal relationship and compatibility of the respective ambitions of the President of the Unsound competition Commission and the President of the European As anyone can see, the tasks of the designated Council. actors in charge of the EU’s foreign policy were not clearly defined. The possibility of competition between these actors could not be excluded since the definition of shared competences between the EU and its Member EGMONT Royal Institute for International Relations 2 II. POLITICS NOT PROTOCOL. The coherence principle is repeatedly mentioned in the TEU (Role of the General Affairs Council article Calling upon protocol rules to justify primacy in the 16, para.6; Role of the High Representative in article external representation of the Union is not a 18, para.4; Coherence/cooperation in article 21, convincing argument. para.3 and Common Foreign and Security Policy in Article 13, para.1 TEU enumerates the institutions article 26, para.2). The loyal cooperation between of the Union without explicitly indicating any order institutions is specifically mentioned in article 13, of precedence. Besides the ambiguity of the treaty, para.2 of the treaty. This principle does not only protocol arrangements in the EU are based on apply for EU institutions, but also for EU Member customary practices, not on legally binding texts. The States (Article 4, para.3). practical arrangements referred to as “protocol This cooperation principle, which can be interpreted rules” are, in fact, guidelines with no political as a code of conduct or as an obligation to reach a meaning provided by the protocol services of either particular result was designed to ensure a strong 2 institution . The informal document entitled representation of the EU on the international scene. “Practical Arrangements between President Van This is the principle which was violated during the Rompuy and President Barroso regarding External diplomatic incident in Ankara. Representation of the European Union at Presidential Level”, signed on 16 March 2010, Individuals profiles proves this point. This written gentlemen’s Since the TEU entered into force, Member States agreement had to be negotiated because of the have been careful not to select personalities who absence of a formal EU protocol book. would have boosted the autonomy of the Furthermore, the role of the European Council and Commission or the European Council. Their of the European Commission concerning the reluctance towards a supranational approach of the management of the financial, migration, BREXIT external representation of the Union confirms the and COVID-19 crises was not defined by protocol traditional will of European heads of state and considerations. The way the eurozone crisis or the government to keep control over the EU’s foreign compromise with Turkey on migration were policy. managed are particularly telling in this regard. These One of the ironies in the implementation of the challenges generated a lot of expectations towards Lisbon treaty is that the same Member States that the decision-making capacity of European leaders pleaded for the upgrading of the EU’s role in the and European institutions. On many occasions both world were also the ones that made sure that the had to “improvise” to use the expression of Luuk selected personalities would not be able to challenge Van Middelaar 3. them. This was the result of a compromise between Whereas the Lisbon Treaty is relatively silent and large and smaller Member States – yet another ambiguous on precedence arrangements, it is very example of the ambivalent identity of the EU in clear on how institutions should work together. The which the community and intergovernmental purpose of the TEU’s innovations was precisely to methods coexist, sometimes in a complementary reinforce the external representation of the and sometimes in a competing manner. European Union in terms of visibility and efficiency. The same ambivalence is visible in the EU’s Coherence and unity in representation are the main governance, especially in times of crisis. While the tools Member States and the EU institutions should Commission represents the supranational aspect of use to increase the relevance of EU foreign policy.