EU External Relations Law and Policy in the Post-Lisbon Era

EU External Relations Law and Policy in the Post-Lisbon Era Paul James Cardwell Editor EU External Relations Law and Policy in the Post-Lisbon Era 123 Dr. Paul James Cardwell School of Law, University of Sheffield Bartolomé House, Winter Street Sheffield, S3 7ND UK e-mail: [email protected] ISBN 978-90-6704-822-4 DOI 10.1007/978-90-6704-823-1 e-ISBN 978-90-6704-823-1 Library of Congress Control Number: 2011940204 Ó T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors 2012 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. 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Cover design: eStudioCalamar, Berlin/Figueres Printed on acid-free paper Springer is part of springer Science+Business Media (www.springer.com) Foreword The growth of the European Union (EU) from a small regional coordinating organisation devoted to the management of coal and steel resources into a global political actor with a full range of power resources and unique responsibilities represents one of the most remarkable achievements in the history of international organisation. No other regional organisation on the planet has managed to take on so many of the traditional governing functions of its Member States while simultaneously developing its own power projection capabilities, involving trade policy, development and humanitarian aid, economic and financial sanctions, diplomacy and good offices, policing forces, and military forces. This achievement is even more remarkable when one considers the uneven and even disorganised institutional history of European integration, which involves numerous actors with a wide range of power resources, policy interests and institutional preferences for various forms of European integration. These actors involve not just institutions in Brussels and Luxembourg, such as the Commission and the European Court of Justice, but also national governments and policymakers, private firms, academics and think-tanks, concerned citizens and other interested players, all organised in dense webs of formal and informal networks across the EU and beyond. Despite this diffusion of actors, or perhaps because of it, European integration is critically dependent on the emergence of rules to govern the activities of these players, in the form of customs, norms, international treaties, regulations and other laws at the EU and national levels. This system of law has been associated primarily with, and instigated by, the steady development of the single European market since the 1950s. However, as the EU’s global ambitions have increased, so has its concern with the overall purpose and effectiveness of its various international activities. The EU is paying more attention than ever before to the external impact of European integration, and in areas well beyond the more traditional—for the EU—trade and economic development policy domains. This concern to improve the overall coherence of the EU’s foreign policies was a major impetus behind the failed effort to produce a constitution for the EU, followed by the more successful effort to reform various EU policy domains under the Treaty of Lisbon. v vi Foreword Now that the Treaty of Lisbon has finally entered into effect, the time is ripe for a comprehensive analysis of how the Treaty reforms will impact on the EU’s external relations policy ambitions. As with most major Treaty reforms in the EU, the general blueprint for Lisbon was finalised in a series of complicated intergovernmental conferences and periodic negotiations, yet the true impact of the Treaty will only be known after policymakers at the EU and national levels attempt to put its various provisions into practice. This process has now begun, and it is already clear that the Treaty reforms have created numerous challenges and opportunities for revising EU policy-making procedures, and for both internal and external policies. As always, these challenges and opportunities have inspired a range of interesting solutions in the form of informal and formal norms, soft law, socialisation processes, network-building and other ‘behind the scenes’ institutional reforms as various policy experts and legal officials attempt to put flesh on the bones of the Lisbon Treaty. This volume provides us with a wide range of analyses targeted at these lawmaking and law-following efforts in the realm of European foreign policy. Together, they can help us determine whether the Lisbon Treaty will work as intended, and whether another round of institutional reform is necessary in the EU. Towards this end, the volume covers topics such as the principle of coherence in EU foreign policy, the creation of the new European External Action Service, the Common Foreign and Security Policy, the role of the High Representative of the Union for Foreign Affairs and Security Policy, the role of the European Court of Justice, networking mechanisms in the realm of EU foreign policy, the EU’s efforts regarding weapons proliferation, European Neighbourhood Policy, relations across the Atlantic and with NATO, the Area of Freedom, Security and Justice, EU climate change policy, Common Commercial Policy and new provisions on investment and other critical issues regarding the EU’s increasingly prominent role as a global actor. The specific theories, methodologies, and arguments presented in these chapters vary widely, yet taken as whole they clearly indicate that the EU possesses nearly as many foreign policy competencies as those of a nation-state, and that legal procedures—involving national, EU-level, and international law—are absolutely critical in the way that the EU develops and pursues these competencies. However, this wide range of competencies, and the complex interactions among (at least) three major legal jurisdictional levels, make it extremely difficult for scholars to compare and generalise their findings beyond their specific cases. This is why it is so critical for volumes such as this, based as it was on a very stimulating interdisciplinary conference held at the University of Sheffield, to offer insights drawn from a range of viewpoints but always with an eye towards the creation of cumulative knowledge about one of the most important and theoretically interesting actors in the international system, the European Union. Prof. Michael E. Smith University of Aberdeen [email protected] Preface The present volume originates from a two-day conference, EU External Relations Law and Policy in the Post-Lisbon Era, hosted by the Sheffield Centre for International and European Law (SCIEL) at the School of Law, University of Sheffield on 13 and 14 January 2011. The conference was generously funded by the Modern Law Review and the University Association for Contemporary European Studies (UACES). Participants at the conference were invited to consider the scope, nature and practice of EU External Relations Law and Policy in the Post-Lisbon Era. At the time of the conference, the Treaty had entered into force some 13 months earlier, so authors were able to reflect on some of the immediate consequences—both theoretically and practically—brought about by the Treaty as well as some of the incremental changes occurring during the period of Treaty reform. The response and the breadth of papers discussed was testament to the healthiness of EU external relations as a research area. The approach taken was deliberately interdisciplinary in order to promote a wide understanding of the contemporary nature of this dynamic field of study. Sheffield, August 2011 Paul James Cardwell vii Acknowledgments I am extremely grateful to the Modern Law Review and UACES for their generous financial support. I would also like to thank all the participants in the conference and contributors to this collection for helping make it such a successful event and making this book one of the first substantial publications about EU external relations since the Treaty entered into force. My thanks also go to the editors of the European Foreign Affairs Review and Studia Diplomatica for permitting the inclusion of previously published articles. At Sheffield, I am especially grateful to Duncan French, Director of SCIEL, for his support as well as my colleagues in the School of Law and the Department of Politics who were in involved in the conference and the production of this volume: Diego Acosta, Estella Baker, Russell Buchan, Simon Bulmer, Richard Collins, Tamara Hervey and Emma Nesbit, as well as Tawhida Ahmed (University of Reading) and Daniel Wunderlich (University of Bath). Sarah Beedham, Harriet Godfrey and Audrey Pang provided their excellent skills in helping organise the conference and I am grateful to them. I would also like to express my sincere gratitude to Katie Tunstall for her research assistance in the preparation of the manuscript; Philip van Tongeren, Marjolijn Bastiaans and Antoinette Wessels at TMC Asser Press; Ursula Gramm and Arul Johny Marcus at Springer, and Seethalakshmi S at SPS. Finally, my eternal gratitude for love and support goes to Etienne Dunant. ix Contents 1 EU External Relations Law and Policy in the Post-Lisbon Era. . . Paul James Cardwell Part I 2 3 4 5 1 The Common Foreign and Security Policy in the Post-Lisbon Era The Latest Attempt at Institutional Engineering: The Treaty of Lisbon and Deliberative Intergovernmentalism in EU Foreign and Security Policy Coordination . . . . . . . . . . . . . . . . . . . . . . . . Uwe Puetter European Realism in the EU’s Common Foreign and Security Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annegret Bendiek Between Legalisation and Organisational Development: Explaining the Evolution of EU Competence in the Field of Foreign Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aurel Sari The Role of the European Court of Justice in the Field of Common Foreign and Security Policy After the Treaty of Lisbon: New Challenges for the Future . . . . . . . . . . . . . . . . . Maja Brkan 17 35 59 97 xi xii Contents Part II 6 7 8 9 Institutionalization or Intergovernmental Decision-Taking in Foreign Policy: The Implementation of the Lisbon Treaty . . . . Pol Morillas 119 The European External Action Service: Enhancing Coherence in EU External Action? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Steven Blockmans and Marja-Liisa Laatsit 135 The High Representative, the President and the Commission—Competing Players in the EU’s External Relations: The Case of Crisis Management . . . . . . . . . . . . . . . . . Julia Schmidt Don’t Mess with the Missionary Man! On the Principle of Coherence, the Missionary Principle and the European Union’s Development Policy . . . . . . . . . . . . . . . . . Morten P. Broberg Part III 10 Perspectives on Institutional Developments Pre and Post-Lisbon Institutional Trends in the EU’s Neighbourhood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nariné Ghazaryan EU Law Export to the Eastern Neighbourhood . . . . . . . . . . . . . . Rilka Dragneva and Kataryna Wolczuk 12 EU-North Africa Relations in Cross-Border Law Enforcement: New Legal Challenges for the EU in the Post-Lisbon and Post-Stockholm Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maria O’Neill 14 181 The EU in the Wider World 11 13 161 Boost or Backlash? EU Member States and the EU’s Latin America Policy in the Post-Lisbon Era . . . . . . . . . . . Bettina Trueb No Data Without Protection? Re-Thinking Transatlantic Information Exchange for Law Enforcement Purposes After Lisbon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . María Quesada Gámez and Elitsa Mincheva 199 217 241 265 287 Contents Part IV 15 16 xiii Principles, Policies and Practices of EU External Relations Challenges in EU External Climate Change Policy-Making in the Early Post-Lisbon Era: The UNFCCC Copenhagen Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lisanne Groen and Arne Niemann 315 The EU, NATO and the Treaty of Lisbon: Still Divided Within a Common City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Simon Duke 335 The External Dimension of the EU’s Non-proliferation Policy: Overcoming Inter-institutional Competition. . . . . . . . . . . . . . . . . Kamil Zwolski 357 Foreign Direct Investment as Common Commercial Policy: EU External Economic Competence After Lisbon . . . . . . . . . . . . Chien-Huei Wu 375 Creating an EU Investment Policy: Challenges for the Post-Lisbon Era of External Relations . . . . . . . . . . . . . . . Angelos Dimopoulos 401 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 17 18 19 Contributors Dr. rer. pol. Annegret Bendiek Stiftung Wissenschaft und Politik, German Institute for International and Security Affairs, Berlin, Germany Prof. Dr. Steven Blockmans T.M.C. Asser Institute, The Netherlands and University of Leuven, Leuven, Belgium Dr. Maja Brkan European Court of Justice, Luxembourg, Luxembourg Prof. Morten P. Broberg University of Copenhagen, Copenhagen, Denmark Dr. Paul James Cardwell Sheffield Centre for International and European Law (SCIEL) at the School of Law, University of Sheffield, Sheffield, UK Dr. Angelos Dimopoulos Tilburg Law School, Tilburg, The Netherlands Dr. Rilka Dragneva School of Law, University of Manchester, Manchester, UK Prof. Dr. Simon Duke European Institute of Public Administration (EIPA), Maastricht, The Netherlands Dr. Nariné Ghazaryan Brunel Law School, Brunel University, Uxbridge, UK Lisanne Groen Department of Political Science, Institute for European Studies (IES), Vrije Universiteit Brussel, Brussels, Belgium Marja-Liisa Laatsit European University Institute, Florence, Italy Elitsa Mincheva Department of EU General Studies, College of Europe, Bruges, Belgium Pol Morillas European Institute of the Mediterranean (IEMed), Barcelona, Spain Prof. Dr. Arne Niemann Department of Political Science, University of Mainz, Mainz, Germany xv xvi Contributors Dr. Maria O’Neill Dundee Business School, University of Abertay Dundee, Scotland, UK Prof. Uwe Puetter Department of Public Policy, Center for European Union Research, Central European University, Budapest, Hungary María Quesada Gámez Department of EU International Relations and Diplomacy Studies, College of Europe, Bruges, Belgium Dr. Aurel Sari School of Law, University of Exeter, Exeter, UK Julia Schmidt School of Law, University of Edinburgh, Edinburgh, UK Prof. Michael E. Smith Department of Politics and International Relations, University of Aberdeen, Aberdeen, UK Bettina Trueb Center for Doctoral Studies in Social and Behavioral Sciences (CDSS), University of Mannheim, Mannheim, Germany Dr. Kataryna Wolczuk Centre for Russian and East European Studies, University of Birmingham, Birmingham, UK Dr. Chien-Huei Wu Institute of European and American Studies, Academia Sinica, Taipei, Taiwan Dr. Kamil Zwolski Department of History, Politics and Philosophy, Manchester Metropolitan University, Manchester, UK Abbreviations AAU ACP AETR/ERTA AFET AFSJ AG AMM ASEAN AU BASIC BIT BRICs CAP CBRN CCP CEDAW CEE/CEEC CEPOL CFI CFP CFR CFSP CHOD CITES CJEF CJEU Assigned Amount Units African, Caribbean and Pacific states European Road Transport Agreement Foreign Affairs Committee of the European Parliament Area of Freedom, Security and Justice Advocate General at the Court of Justice of the European Union Aceh Monitoring Mission Association of Southeast Asian Nations African Union Brazil, South Africa, India, China Bilateral Investment Treaty Brazil, Russia, India, China Common Agricultural Policy Chemical, Biological, Radiological and Nuclear Common Commercial Policy Convention on the Elimination of All Forms of Discrimination Against Women Central and Eastern Europe/Central and Eastern European Countries European Police College Court of First Instance Common Fisheries Policy Charter on Fundamental Rights Common Foreign and Security Policy Chiefs of Defence Convention on International Trade in Endangered Species of Wild Fauna and Flora Combined Joint Expeditionary Force Court of Justice of the European Union xvii xviii COLAT COP COREPER COWEB CPM CSDP DCI DDA DRC EC ECAP ECFR ECHR ECJ ECOWAS ECSC ECtHR EDA EDC EDF EEAS EEC EFP EMEA EMU ENP ENPI EP EPC ESDP ESS EU EU SITCEN EUBAM EUMC EUMS EURATOM Eurojust EuroMed Europol FAC FAO FCO Abbreviations Council Working Group for Latin America Conference of the Parties Comité des représentants permanents (Permanent Representatives Committee of the Council) Council Working Group on the Western Balkans Civil Protection Mechanism Common Security and Defence Policy Development and Cooperation Initiative Doha Development Agenda Democratic Republic of Congo European Community European Capability Action Plan European Council on Foreign Relations European Convention on Human Rights European Court of Justice European Community of West African States European Coal and Steel Community European Court of Human Rights European Defence Agency European Defence Community European Development Fund European External Action Service European Economic Community European Foreign Policy Euro-Mediterranean Economic Area Economic and Monetary Union European Neighbourhood Policy European Neighbourhood Partnership Instrument European Parliament European Political Cooperation European Security and Defence Policy European Security Strategy European Union EU Situation Centre EU Border Assistance Mission European Union Military Committee European Union Military Staff European Atomic Energy Community The European Union’s Judicial Cooperation Unit Euro-Mediterranean Partnership The European Police Office Foreign Affairs Council Food and Agricultural Organisation of the United Nations Foreign and Commonwealth Office Abbreviations FDI FET GAM GATS GATT GC GCC GSC GSP HLCG HR HR/VP ICJ IfS IGC IIA ILO INSC ISAF ISCID ISTC JHA KEDO LAC LAIF LIBE LULUCF MEP MERCOSUR MFN MIC MONUC MPoI NATO NGO NSC OECD PCA PCIJ xix Foreign Direct Investment Fair and Equitable Treatment Free Aceh Movement General Agreement on Trade in Services General Agreement on Tariffs and Trade General Court of the European Union Gulf Cooperation Council General Secretariat of the Council General System of Preferences High Level Contact Group (on Data Protection) High Representative of the Union for Foreign Affairs and Security Policy High Representative of the Union for Foreign Affairs and SecurityPolicy/Vice-President (of the Commission) International Court of Justice Instrument for Stability Intergovernmental Conference International Investment Agreement International Labour Organisation Instrument for Nuclear Safety Cooperation International Security Assistance Force International Centre for Settlement of Investment Disputes International Science and Technology Centre Justice and Home Affairs Korean Peninsula Energy Development Organisation Latin America and Caribbean Latin America Investment Facility Civil Liberties, Justice and Home Affairs Committee of the Parliament Land Us, Land Use Change and Forestry Member of the European Parliament Mercado Común del Sur (Southern Common Market) Most Favoured Natiom Monitoring and Information Centre United Nations Organisation Mission in the Democratic Republic of Congo Minimum Platforms on Investment North Atlantic Treaty Organisation Non-Governmental Organisation New Strategic Concept Organisation for Economic Co-operation and Development Partnership and Cooperation Agreement Permanent Court of International Justice xx PESCO PJCCM PNR PoCo PSC QMV REIO RPC RPCJEC SALW SEA SIRENE SitCen SNE STCU TACIS TEU TFEU TFTP TLD TRIMs TRIPS UK UMFA UN UNAMID UNCLOS UNFCCC UNITA UNSC USA WAEMU WEU WHO WMD WTO Abbreviations Permanent Structured Cooperation Police and Judicial Cooperation in Criminal Matters Passenger Name Record Political Committee Political and Security Committee Qualified Majority Voting Regional Economic Integration Organisations Rules of Procedure of the Council Rules of Procedure of the European Parliament Small Arms and Light Weapons Single European Act Schengen Information System CFSP’s Joint Situation Centre Seconded National Experts Science and Technology Centre in Ukraine Technical Aid to the Commonwealth of Independent States Treaty on European Union Treaty on the Functioning of the European Union Terrorist Finance Tracking Programme Transatlantic Legislators Dialogue Trade-Related Investment Measures Agreement on Trade-Related Aspects of Intellectual Property Rights United Kingdom Union Minister of Foreign Affairs United Nations African Union/UN Hybrid operation in Darfur United Nations Convention on the Law of the Sea United Nations Framework Convention on Climate Change National Union for the Total Independence of Angola United Nations Security Council United States of America West African Economic and Monetary Union Western European Union World Health Organisation Weapons of Mass Destruction World Trade Organisation