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Legal Dynamics of EU External Relations pp 29–55Cite as

The Common Foreign and Security Policy

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Abstract

In this chapter, we take a closer look at the Common Foreign and Security Policy (CFSP). Although the CFSP may at first glance appear to be an all-encompassing policy, regulating all the external (‘foreign’) relations of the EU, in reality it has a much more limited reach. As will become clear in this chapter, it occupies a special and separate position, possesses a legal character that is wholly distinct from all other fields of Union law, and still today appears to carry a more residual character. In the sections following the introduction (Sect. 2.1), we in subsequent order expound the CFPS’s historical background (Sect. 2.2); its purpose and nature (Sect. 2.3); the various institutions, bodies, agencies and other actors (Sect. 2.4); decision-making (Sect. 2.5); and the array of legal instruments (Sect. 2.6).

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Notes

  1. 1.

    For more details, see Ruane (2000).

  2. 2.

    The plan was devised by and named after the French diplomat Christian Fouchet. An underlying objective was to hedge in the European Commission .

  3. 3.

    The WEU lasted for almost 50 years. In 2002, it was for the largest part swallowed up by the EU. On 31 March 2010, the WEU Council officially decided to disband the organisation.

  4. 4.

    The true enactment followed one year later with the endorsement of the so-called Davignon Report, drafted by a committee chaired by the eponymous Belgian diplomat.

  5. 5.

    The guiding principles have been described as ‘the three c’s’: consultation, confidentiality and consensus. See Gosalbo Bono (2006), p. 338.

  6. 6.

    For in-depth studies, see e.g. Allen et al. (1982) or Nuttall (1992).

  7. 7.

    A factor contributing to the confusion was that, instead of sticking to Arabic numerals, the provisions of the EU Treaty took their designation after letters of the alphabet (sometimes combined with numbers, leading to articles such as ‘D’, ‘J.3’, ‘K.7’ and ‘Q’).

  8. 8.

    Signed in 2004, definitely shelved in 2007, first and foremost due to the negative outcomes of the Dutch and French popular referendums that took place in mid-2005.

  9. 9.

    More on the CSDP and its evolution in Chap. 3.

  10. 10.

    Which is exactly the reverse of the ordinary situation in EU law , namely qualified majority voting, except where Treaty provisions prescribe that decisions be taken unanimously. For further elaboration and illustrations, see Sect. 2.5 infra.

  11. 11.

    Formerly the ‘Community loyalty’ principle (Gemeinschaftstreue ), incorporated in Article 10 TEC; in the post-Lisbon era also referred to as ‘Union loyalty’ ( Unionstreue ).

  12. 12.

    Notwithstanding the fact that their goals and ambitions in these fields may be internally inconsistent, and shift over the course of time.

  13. 13.

    Consonant with Article 17(7) TEU, after being appointed by the European Council as HR, the Parliament needs to approve his nomination as member and vice-president of the Commission. Whereas he can be dismissed from the latter institution in several different ways (see e.g. Article 17(8) TEU and Article 247 TFEU), he will remain in office as HR until the European Council were to relieve him as well.

  14. 14.

    Article 18(2) TEU; see also Article 27 TEU: ‘The High Representative of the Union for Foreign Affairs and Security Policy , who shall chair the Foreign Affairs Council, shall contribute through his proposals to the development of the common foreign and security policy and shall ensure implementation of the decisions adopted by the European Council and the Council.’

  15. 15.

    Article 30 TEU; see also Article 31(2) TEU.

  16. 16.

    Article 18(3) TEU. However, Article 2(5) of Council Decision 2009/908/EU laying down measures for the implementation of the European Council Decision on the exercise of the Presidency of the Council, and on the chairmanship of preparatory bodies of the Council, OJ [2009] L 322/28, provides that discussions in the Foreign Affairs Council on Common Commercial Policy issues will be chaired by the six-monthly rotating Presidency. Moreover, if the HR is unable to attend a session, he will be replaced by one of the Commissioners from the ‘external cluster’, who are to act as his deputies. The foreign minister of the Member State holding the rotating Presidency may also step in, should the need arise.

  17. 17.

    To make this easier, the office physically moved from a separate edifice back to the Berlaymont building. When exercising his responsibilities here, the HR is bound by Commission procedures, albeit, as Article 18(4) TEU stipulates, only to the extent that this is consistent with Article 18(2) and (3) TEU.

  18. 18.

    Cf. Article 15(6) TEU.

  19. 19.

    Article 36 TEU.

  20. 20.

    Adoption of a Council Decision establishing the organisation and functioning of the European External Action Service, OJ [2010] C 210/1. It stipulates inter alia that, if the HR is unable to appear before the Parliament, depending on the issue to be discussed, a Commissioner or a representative from the Council Presidency (or the trio) will act as his deputy.

  21. 21.

    See Article 42(4) TFEU. The CSDP is explored in Chap. 3.

  22. 22.

    Discussed infra, Sect. 2.4.10.

  23. 23.

    Dashwood (2013), p. 15.

  24. 24.

    See e.g. Helwig (2015).

  25. 25.

    See Article 13(1) TEU.

  26. 26.

    In the past, the European Council also included the foreign ministers of the Member States and a member of the Commission. Article 15(3) TEU now provides that, when the agenda so requires, the members of the European Council may decide to be assisted by a minister, and the President of the Commission by a member of the Commission.

  27. 27.

    See Article 15 TEU.

  28. 28.

    See Article 15(5) and (6) TEU.

  29. 29.

    See Article 15(6) (a) and (b) TEU.

  30. 30.

    See e.g. de Waele and Broeksteeg (2012).

  31. 31.

    See Article 15(6) TEU.

  32. 32.

    Notwithstanding the seminal influence of the Committee of Permanent Representatives (COREPER ), which pre-cooks every meeting and attempts to reach agreements on most dossiers in advance. In the CFSP, there are numerous other preparatory bodies that actively supply input; an overview can be found in Annex II to Council Decision 2009/908/EU laying down measures for the implementation of the European Council Decision on the exercise of the Presidency of the Council, and on the chairmanship of preparatory bodies of the Council, OJ [2009] L 322/28.

  33. 33.

    See Article 3(1) of European Council Decision 2009/882/EU adopting its Rules of Procedure, OJ [2009] L 325/51.

  34. 34.

    The decisions are generally taken on the basis of Article 28(1) and 29 TEU, and the Council may act entirely of its own motion, without any prior proposal to act. Decisions regarding the CSDP are however adopted on the initiative of the High Representative or a Member State: see Article 42(4) TEU.

  35. 35.

    See Article 26(2) TEU.

  36. 36.

    See Article 33 TEU, as well as Sect. 2.4.15 infra.

  37. 37.

    See Article 42(6) and 46 TEU. The concept is explored further in Chap. 3.

  38. 38.

    See Article 30(1) TEU. As the second section stipulates, they may also request the HR to convene an extraordinary Council meeting if they believe that a topical event requires a quick response.

  39. 39.

    Cf. Article 289(4) TFEU.

  40. 40.

    In accordance with Article 32(4) TEU, such obligations extend to the diplomatic missions of the Member States and the Union delegations in third countries and at international organisations .

  41. 41.

    The UN does not have to respond favourably, since the EU as such continues to hold only an observer status in that organisation (alongside entities such as the Vatican, the Arab League, and the International Federation of the Red Cross and the Red Crescent).

  42. 42.

    See respectively Article 42(3), 44 and 42(6) TEU.

  43. 43.

    As remarked in Sect. 2.4.1, the HR has set out some further modalities in a (non-binding) Declaration on Political Accountability . Of course, in her capacity as member and vice-president of the Commission, she can be subjected to parliamentary scrutiny in the same way as her colleagues.

  44. 44.

    The same goes for any questions concerning CFSP issues put to the European Council President . The latter is merely bound to present a report after each of the meetings of the European Council: the Treaties do not even oblige him to appear personally before the Parliament.

  45. 45.

    See Sect. 2.4.10.

  46. 46.

    See Article 41(1) and (2) TEU.

  47. 47.

    See Article 310-314 TFEU.

  48. 48.

    Case C-658/11, Parliament v Council (Mauritius agreement).

  49. 49.

    See e.g. Smith (2004) and Riddervold (2015).

  50. 50.

    See Chap. 1, Sect. 1.6.

  51. 51.

    Often abbreviated as COPS, after its French name, Comité politique et de securité.

  52. 52.

    In tune with Article 2 of Decision 2009/881/EU on the exercise of the Presidency of the Council, OJ [2009] L 315/50.

  53. 53.

    As illustrated in Juncos and Reynolds (2007).

  54. 54.

    Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service, OJ [2010] L 201/30. After the staff regulation , the financial regulation, the budget and the members of the senior management team were approved by the Parliament, the Service became officially operational on 1 December 2010.

  55. 55.

    The Service received its own section in the EU’s general budget.

  56. 56.

    As Article 5(9) of the Council Decision ordains, EU delegations are to work in close cooperation and share information with the diplomatic services of the Member States. Interestingly, the original proposal for setting up the EEAS added that they would provide all relevant information ‘on a reciprocal basis’.

  57. 57.

    For a colourful portrayal of their work, see Novotná (2014).

  58. 58.

    E.g. EU Military Staff , the Civilian Planning and Conduct Capability, the Commission DG for External Relations (RELEX). The annex to the Council Decision provides a full list.

  59. 59.

    Since mid-2013, officials and civil servants from all EU institutions may apply for vacant posts in the EEAS . At full capacity, EU officials are to represent at last 60% of the staff at administrator level; at least one-third of all the staff ought to come from national diplomatic services.

  60. 60.

    And a director-general for budget and administration.

  61. 61.

    Elaborate reflections on the creation, merits and first achievements of the EEAS provide Vanhoonacker and Reslow (2010); Blockmans and Hillion (2013); Gatti (2014).

  62. 62.

    Available at eeas.europa.eu/top_stories/2013/29072013_eeas_review_en.htm.

  63. 63.

    Pursuant to Council Decision 2001/79 setting up the Military Committee of the European Union, [2001] OJ L 27/4.

  64. 64.

    Council Decision 2001/80/CFSP on the establishment of the Military Staff of the European Union, OJ [2001] L 27/1, as amended by Council Decision 2005/395/CFSP, OJ [2005] L 132/1.

  65. 65.

    Before the advent of the MPCC , the latter relied on Mission Commanders deployed in theatre. This created difficulties both in the planning and conduct, leaving some missions in need of more proactive HQ support. At the operational level, each mission will now be led by a Mission Force Commander, acting under the supervision of the MPCC’s Director.

  66. 66.

    Established by Council Joint Action 2001/555/CFSP on the establishment of a European Union Satellite Centre , OJ [2001] L 200/1, subsequently replaced by Council Decision 2014/401/CFSP, OJ [2014] L 188/73.

  67. 67.

    Established by Council Joint Action 2001/554/CFSP on the establishment of a European Union Institute for Security Studies [2001] OJ L 200/1, as amended by Council Joint Action 2006/1002/CFSP, OJ [2006] L 409/181.

  68. 68.

    Council Joint Action 2004/551/CFSP on the establishment of the European Defence Agency, OJ [2004] L 245/17. In July 2011, the Council adopted Decision 2011/411/CFSP, OJ [2011] L 183/16, to replace the earlier Joint Action . It was in turn repealed and recast by Council Decision 2015/1835 defining the statute, seat and operational rules of the European Defence Agency, OJ [2015] L 266/55.

  69. 69.

    See further Chap. 3, Sect. 3.5.1.

  70. 70.

    This budget covers the Agency’s operating costs; individual projects are funded separately.

  71. 71.

    See Article 36 TEU.

  72. 72.

    See Article 31(1) TEU, second sentence.

  73. 73.

    The Maastricht Treaty only contained an underexplored exception in Article J.8(2), for procedural issues and the implementation of Joint Actions and Common Strategies .

  74. 74.

    This might seem to constitute a staggeringly broad possibility for QMV, but here, the proposal should always follow a specific request by the European Council (where unanimity is still required). In other words, any Member State can still throw up an effective blockade if it wants to.

  75. 75.

    Article 31(4) TEU.

  76. 76.

    Article 31(2) TEU.

  77. 77.

    Forming a remote echo of the ‘Luxembourg Compromise’, the ‘agreement to disagree’ reached in the 1960s in order to overcome the ‘empty chair crisis’.

  78. 78.

    See Blockmans (2014), p. 5.

  79. 79.

    At the same time, one should keep in mind that, within the scope of the CFSP, international agreements can be concluded with third countries or international organisations . For this, Article 37 TEU supplies the necessary legal basis, with Article 218 TFEU setting down the procedural arrangement (discussed in Chap. 1, Sect. 1.5).

  80. 80.

    There also existed the instrument of ‘sui generis decisions’, adopted on the rather dubious legal basis of the former Article 23 TEU. These seemed to be steadily gaining in popularity, and were adopted in ever greater numbers in the 1993–2009 period.

  81. 81.

    Article 25(1) TEU also states that the Union shall conduct the CFSP by defining general guidelines and by strengthening systematic cooperation between Member States, but neither amounts to a legal instrument as such.

  82. 82.

    These had more or less fallen into desuetude: only three were ever adopted, namely on Russia, the Ukraine and the Mediterranean region.

  83. 83.

    Joint Actions involved financial transfers and expenditure, sending missions (from election observers to military personnel), and were also used for setting up centres and agencies. Joint actions were adopted for operations in e.g. South Africa, Bosnia, Georgia, the Democratic Republic of Congo, Kosovo, Iraq and Afghanistan.

  84. 84.

    Common Positions did not concern operational action but roughly amounted to binding political statements. Common positions were e.g. adopted on specific situations related to conflict prevention, anti-terrorism, human rights, the rule of law and good governance. Economic, financial and other sanctions against third countries, suspicious organisations and individuals were also imposed in this form.

  85. 85.

    Cf. supra, footnote 80. Another parallel with the past concerns the imposition of restrictive measures : presently, pursuant to a sanctioning decision under Title V TEU, follow-up measures are to be established under the TFEU (see Article 215 TFEU). In earlier times, in such cases CFSP Common Positions led to the subsequent adoption of EC Regulations.

  86. 86.

    Cf. the extended analysis in Chap. 10.

  87. 87.

    Inter alia Cardwell (2015) and Wessel (2015) attempt to debunk this myth.

  88. 88.

    Compare e.g. the ‘command theory of law’, advanced by the philosopher John L. Austin (1790–1859).

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Authors and Affiliations

  1. Radboud University Nijmegen, Nijmegen, The Netherlands

    Henri de Waele

  2. University of Antwerp, Antwerp, Belgium

    Henri de Waele

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de Waele, H. (2017). The Common Foreign and Security Policy. In: Legal Dynamics of EU External Relations. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-54817-2_2

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