Horizontal Consistency in the Areas of the European Union's External Action

Table of Contents

Introduction

1. The Concept of Consistency
1.1. Consistency as a Legal Obligation under the EU Law – a Multi-layered Concept
1.2. Horizontal versus Vertical Consistency

2. Consistency and the Development of the European Union’s External Action
2.1. External Action prior to the Treaty of Lisbon
European Political Cooperation
Treaty of Maastricht and the Introduction of the Common Foreign and Security Policy
Delimitation of Competences between Pillars
The “Unity Thesis” – Relationship between the EC and EU Legal Orders
Consistency in External Action prior to Lisbon
2.2. External Action after the Treaty of Lisbon
2.2.1. Institutional Innovations brought about by the Lisbon Treaty
2.2.2. External action and the Unity of the EU legal order
2.2.3. Components of European Union External Action

3. Consistency in practice: Overlapping External Competences

4. The Duty of Consistency in EU External Action
4.1. Inter-institutional Consistency
4.2. Inter-policy Consistency

Conclusion

Table of Cases

Case 6/64 Costa v. ENEL [1964] ECR 585 at 593

Case 26/62 Van Gend en Loos [1963] ECR 1

Case 106/77, Simmenthal, (1978)ECR 629

Case C-130/10 European Parliament v. Council

Case C-170/96 Commission v Council [1998], ECR I-02763

Case C-176/03 Commission v Council [2005], ECR I-7879

Case C-268/94, Portugal v.Council (1996)ECR I-6117

Joined cases C-317/04 and C-318/04, European Parliament v. Council and Commission [2006] ECR I-4721

Case T-306/01 Yusuf v. Council and Commission [2005] ECR II-3353

Case T-315/01 Kadi v. Council and Commission [2005] ECR II-3353

List of Abbreviations

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List of Figures

Figure 1: The multidimensional concept of consistency

Figure 2: Achieving Vertical Consistency: Model of a Bargaining Process

Figure 3: The Functions of the High Representative

Figure 4: The Institutional Architecture of the CFSP

Abstract

The Lisbon Treaty brought about substantial legal and institutional innovations to the external action of the European Union: In line with the principle of horizontal consistency, the dissertation aims at assessing how the Lisbon changes have affected areas of external actions individually and collectively as well as to what extent these changes have contributed to more consistent external policy. In the beginning of the analysis consistency is discussed as a multi-dimensional concept. The dissertation has focused on two aspects of horizontal consistency – inter-institutional and inter-policy horizontal consistency. Whereas inter-institutional horizontal consistency has focused on achieving synchronisation among the European institutions, inter-policy horizontal consistency is interested in coherent policy-making between the different external action areas, namely the Common Commercial Policy, the Common Foreign and Security Policy, the Common Security and Defence Policy, the development cooperation and the technical assistance with third countries.

Introduction

The Lisbon Treaty introduced substantial changes in the field of the EU’s external action. Firstly, many institutional innovations were introduced, most notably the high-ranking posts of the High Representative and the President of the European Council as well as Union’s diplomatic service – the European External Action Service. Secondly, there is an attempt to create a more unified legal order through the formal abolition of the pillar structure, the introduction of a single legal personality and the abolition of the hierarchical relationship between pillars. Finally, the Lisbon Treaty re-organised the EU’s external action. With the Treaty of Lisbon entering into force, the external action of the Union encompasses the common foreign and security policy (CFSP), the common security and defence policy (CSDP), the common commercial policy (CCP), the development cooperation and economic, financial and technical cooperation with third countries. According to Article 13 of the Treaty on European Union (TEU): ‘The Union shall ensure consistency between the different areas of its external action and between these and its other policies.’ Consistency in EU external relations can be seen as a multi-layered concept, consisting of variety of dimensions, intertwined with other concepts and legal obligations in the Treaty as well as a political objective of the Union. Most importantly, it is a legal requirement through which the TEU accords to the Union the general responsibility for ensuring consistency of its external action as a whole but it charges the High Representative, the Council and the Commission with ensuring the implementation of these policies each in accordance with its respective powers. The dissertation will focus on horizontal consistency as an issue in EU external action and the legal as well as political implications of the institutional innovations brought about by the Lisbon Treaty. Whereas vertical consistency applies to the relations between the Member States and the Union, horizontal consistency designates consistency on European level, either inter-policy or inter-institutional consistency. Inter-institutional horizontal consistency is responsible for omitting gaps, avoiding conflicts and ensuring there are no overlapping competences between the European institutions. It is the strive for harmony, beneficial relationship and cooperation of institutional co-existence. On the other hand, inter-policy consistency is a prerequisite for the Union in order to speak with one voice on the international scene. It requires having overarching objectives and working for the same goals through variety of policies. This, it is especially relevant for the Union as prior to the Lisbon Treaty, there was a hierarchical separation of external policies because priority was given to first pillar competences. An example of inter-policy consistency is using policy instruments form the CCP to achieve development and security goals. Thus, the traditional aim of CCP to promote international trade liberalisation can gradually give way to a more normative EU trade agenda. Hence, ideally, the Union’s status as a global economic and trade power would be deployed for the purpose of promoting human rights and fundamental freedoms, sustainable development and environmental protection. The general aim of the dissertation is to explore the European Union’s desire to make its foreign policy more coherent and to analyse how consistency is ensured in tow domains of horizontal consistency – inter-institutional and inter-policy. The first chapter discusses the multi-layered concept of consistency through the use of other legal concepts. It further elaborates on the terms vertical and horizontal consistency as well as the difference between “consistency” and “coherence” and the different language versions of the Treaty. The second chapter tracks historically the development of the EU’s external action as well as its efforts to make its external action more consistent. The first part traces the Union’s quest for more legal unity and consistency from the establishing of European political cooperation (EPC) until the Treaty of Amsterdam. In the second part, the innovations in the external action framework of the Union brought about by the Lisbon Treaty are discussed in detail. Firstly, attention is paid to the institutional innovations brought about by the Lisbon Treaty. Secondly, the “unity of the legal order” is discussed. Finally, all individual external action policies are presented in their final “version” after Lisbon. The third chapter attempts to illustrate “consistency in practice” by two examples of overlapping between CFSP and non-CFSP issues will be discussed, namely European Neighbourhood Policy and economic sanctions. The focus in the final chapter is on two aspects of horizontal consistency - inter-institutional and inter-pillar consistency. It seeks to answer the question whether the new institutional and legal framework have enhanced the consistency and the effectiveness of the Union’s external action.

1. The Concept of Consistency

1.1. Consistency as a Legal Obligation under the EU Law – a Multi-layered Concept

European foreign policy consistency has been the subject of extensive academic debate and a source of concern among European and national policy-makers for almost four decades. Consistency has an ambiguous nature, which at first sight appears to have a primarily political character. In fact, it is a multi-layered concept and most scholars in the field of European Union’s external relations law or political studies take as a point of departure in their contributions the explanation of the (legal) meaning of the term. Many different theoretical formulations of the term can be met in the literature. For example, Gauttier argues that at least in the context of EU foreign policy consistency does not designate a specific legal concept.^[1] However, according to Tietje it is “one of the main constitutional values of the EU”^[2]. Provisions in both the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) make reference to the principle of consistency. The principle of consistency provides a context and a rationale for the operation of fundamental legal principles governing the relations between Member States and the EU institutions and between the institutions themselves, including the principles of primacy, legal personality and competence as well as the duties of sincere cooperation and complementarity. Consistency is mentioned in Art.13 TEU as one of the main elements for smooth implementation of EU policies:

The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.

While Art.13 TEU has a more general application, the most important provision on consistency specifically on external action is Article 21 (3) TEU:

The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.

To translate concepts of consistency into legal obligations is not straightforward. As such, these concepts are generally not well-established principles of EU law. However, they are an important political aim of the Union. Hence, the quest for consistency policy-making is translated into several legal duties for the Union and its Member States. Furthermore, there is no substantive benchmark in the Treaty as to how consistency can be achieved. Arguably, consistency has to be the outcome of a political process. Consistency can be derived from other core principles in the Lisbon Treaty. Cremona illustrates consistency as a three-level notion. Consistency can be seen as: (1) conflict avoidance between potentially contradictory norms in the areas of external action and between them and other Union policies; (2) effective allocation of tasks between actors and instruments in terms of rules of delimitation; (3) synergy between norms, actors and instruments.^[3] Kenzler and Schneider define consistency as: “coordinated behaviour based on agreements where comparable and compatible methods are used in pursuit of a single objective and result in an uncontradictory policy.”^[4] Thus, a first level of consistency can be seen as the absence of contradictions between the external policies of the European Union.^[5] It encompasses rules for conflict avoidance between potentially contradictory norms and for resolving conflicts when they arise in terms of rules of hierarchy. For example, the rule of primacy of European Union law ensures that European Union law will prevail over conflicting norms of national law. Likewise, the primary law of the EU including the Treaties but also including general principles of law will take precedence over secondary law enacted by the institutions. A second level of consistency is seen in terms of rules of delimitation - the effective allocation of tasks between actors and instruments. Not only must the EU act within the limits of the powers conferred upon it by the Treaties, but also each institution must act within the limits of its own powers. Delimitation aims at avoiding duplications and gaps in institutional competences which is vital for synchronisation of external action areas. Preventing cases of overlapping in powers and ensuring effective allocation of tasks between actors and instruments is a key task for the smooth functioning of the European institutions. An example of a delimitation rule designed to ensure consistency is the doctrine of pre-emption, under which the Member States are precluded from acting externally to the extent that the Community has enacted common rules in the field and insofar as those rules would be affected by national action. However, effective delimitation of competences between institutions and between the Union and the Member States will not be sufficient to ensure consistency if there are no mechanisms in place to establish cooperation (the so-called “bridges”). A third level of consistency implies synergy between norms, actors and instruments. This synchronisation can be termed “coherence”. From a legal point of view, consistency and coherence have a different meaning. Whereas the term “consistency” points at the absence of contradictions between the various external policies, “coherence” refers to the positive obligation of ensuring synergy between the different elements of external action. As a number of writers have pointed out while coherence is a matter of degree, consistency is a static concept (legal provisions are either consistent or they are not). They cannot be used interchangeably but should be understood as distinct concepts in a sense that the requirement of consistency forms the first degree of coherence.^[6] An initial problem with terminology arises when comparing the different language versions of the Lisbon Treaty.^[7] The different language versions of the Treaties do not use the same term. For example, the French, Italian, German and other language version use coherence - “cohérence”, “coerenza”,“Kohärenz”, while the English versions use “consistency”. This difference can be traced back to the Single European Act in 1987 in its provisions on European Political Cooperation and has not been remedied by the Treaty of Lisbon. When referring to the meaning in Art. 21 (3), some authors choose to use coherence rather than consistency. Coherence can be seen as a broader and more flexible concept than consistency. Duke proposes how to proceed with this linguistic deficiency:

The difference between consistency and coherence has been the subject of legal scrutiny but viewed from a political perspective, the terms are not significantly at variance since they both point out to the direction of coordinated activities with the objective of ensuring that the Union speaks with a single voice.^[8]

I have adapted the same approach in my research. More importantly, for the sake of clarity the term “consistency” is preferred since reference will be made to the English language versions of the various official documents. Thus, in the present dissertation, it is considered that consistency in the English version of the Treaty “presupposes a quest for synergy and added value between the different actions of the Union.”^[9]

1.2. Horizontal versus Vertical Consistency

Figure 1: The multidimensional concept of consistency

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Source: S. Duke (2006), 12

From a theoretical viewpoint, the meaning of consistency has usefully been refined by reference to horizontal and vertical consistency. Vertical consistency applies to the relations between the Member States and the Union while horizontal consistency designates consistency on European level, either inter-policy or inter-institutional consistency. Horizontal and vertical consistency are compared by Gauttier as: “on one hand at providing a declaratory diplomacy with content, often economic, by combining the CFSP with the various other actions of the Union in the field of external relations[inter-policy horizontal consistency], and on the other hand attaining harmony between the CFSP and the sphere of national action [vertical consistency].”^[10] While vertical consistency focuses on coordination and bargaining, horizontal consistency focus falls on implementation. Vertical consistency requires coordination and satisfaction of a large number of participants including governments and ministries, private interest groups, lobbyist, the European institutions, international organisations and many others. Therefore, the emergence of a consistent position will be a product of negotiations and can be seen as a long drawn-out and complicated process.

Figure 2: Achieving Vertical Consistency: Model of a Bargaining Process

illustration not visible in this excerpt

Source: S.Duke (2006), 13

In contrast, horizontal consistency involves the implementation of external policies on EU level. In the process of policy implementation, the Union is required by the Treaty to strive for inter-institutional complementarity, conflict avoidance and cooperation. The term horizontal consistency has two aspects – inter-institutional and inter-policy aspect. Inter-institutional issues focus on achieving harmonious balance between the European institutions in terms of the delimitation of competences. The inter-institutional design of the EU external relations law is of a particular importance having in mind the institutional innovations brought about by the Lisbon Treaty on external action. In terms of inter-policy^[11] horizontal consistency, consistency can be defined in this case in terms of “systemic outputs” in terms of “the way in which the substance of different policies generated by the EU forms part of a coherent whole”.^[12] The present dissertation will focus on horizontal consistency in the EU external relations both in terms of inter-institutional and inter-policy consistency. Here, horizontal consistency refers to consistency exclusively on EU-level as opposed to vertical consistency, which is the law that governs the vertical allocation of competences between EU-level and the Member States in the field of external action.

2. Consistency and the Development of the European Union’s External Action

This chapter tracks historically the development of the EU’s external action as well as its efforts to make its external action more consistent. The first part traces the Union’s quest for more legal unity and consistency from the establishing of European political cooperation (EPC) until the Treaty of Amsterdam. In the second part, the innovations in the external action framework of the Union brought about by the Lisbon Treaty are discussed in detail.

2.1. External Action prior to the Treaty of Lisbon

On 25 March 1957, ECSC Member States signed the Treaties of Rome, the aim of which was the establishment of a common European market without customs duties or quantitative restrictions in the framework of a European Economic Community (EEC), combined with a European Atomic Energy Community (Euratom). The key objectives set out in the Treaties of Rome – a common market, freedom of movement and common agricultural, trade and competition policies – were gradually achieved in the course of subsequent years. Although the notion of consistency was not mentioned per se in the founding treaties, the foundations of the principle of consistency were nevertheless present. Under the Treaty of Rome, all Member States were obliged in Art.5 to “abstain from any measure which could jeopardise the attainment of the objectives of this treaty”. The European Community was externally only competent in the area of trade in terms of the Common Commercial Policy (CCP). Presently, the CCP is the most developed external policy of the EU and it is an exclusive European competence since the Treaty of Rome. The Community was given competences to replace their Member States in their relations with third states and other international organisations as Member States are precluded from conducting individual commercial policies. After the qualification in 1963 of the Community as constituting “a new legal order of international law”^[13] one year later the Court confirmed the Community’s “own legal capacity and capacity of representation on the international plane”:

It cannot therefore be accepted that, in a field such as that governed by the understanding in question, which is covered by export policy and more generally by the common commercial policy, the Member States should exercise a power concurrent to that of the Community, in the Community sphere and in the international sphere. The provisions of Articles 113 and 114 concerning the conditions under which, according to the Treaty, agreements on commercial policy must be concluded show clearly that the exercise of concurrent powers by the Member States and the Community in this matter is impossible.^[14]

European Political Cooperation

Therefore, the first external relations of the Community were in the domain of trade with third countries. Since the early days of the Community, the Treaties did not devote too much space to the division of external competences between the Community and its Member States and developments in this field are to a large extent driven by case law.^[15] After a boom in the 1970s, following judgments or opinions of the Court of Justice like ERTA, Kramer, Haegeman, International Fruit Company and Opinion 1/76 and 1/94 on the WTO agreement, it was a period in which the external dimension of the European Community received abundant attention. The 1970s saw increasing foreign policy cooperation between Member States in the framework of the system of European Political Cooperation (EPC). Within the framework of the EPC, the Member States enhanced coordination of foreign policies and adopted a number of common positions, concerning especially the Middle East region. However, this initial stage of foreign policy cooperation was built outside of the Community framework and is an evidence of the Member States’ decision for a strict separation between the intergovernmental EPC and the supranational and mainly economically oriented external relations of the then European Economic Community (EEC). The founding Treaties, as they existed until Lisbon, did not contain a provision defining the Commission tasks in external relations, apart from the specific case of negotiations of international agreements. Beyond this aspect, the Commission’s external role has been based on practice and it has evolved over the years. Following the introduction of EPC, the increasing number of external activities of the Union highlighted the need for consistency. According to Duke, throughout the duration of the EPC, consistency has meant only addressing the obvious – “ensuring that the EPC and the Community did not cancel or contradict each other’s actions”.^[16]

[...]

^[1] P. Gauttier, ‘Horizontal Coherence and the External Competences of the European Union’ (2004) 10 European Law Journal 23, 24.

^[2] C. Tietje, ‘The Concept of Coherence in the TEU and the CFSP’ (1997) European Foreign Affairs Rev,2, 12

^[3] M Cremona, ‘Coherence through Law: What difference will the Treaty of Lisbon make?’, in Six Authors in Search of a Notion: (In)Coherence in EU Foreign Policy and its Causes, C.Portela and K. Raube (eds) Hamburg Review of Social Sciences, (2008) Vol.3, No.1, 17

^[4] H.G Krenzler, and H.C Schneider, ‘The Question of Consistency’ in E. Regels-Berger and others (eds), Foreign Policy of the European Union: From EPC to CFSP and beyond (Lynne Rienners: London 1997) ,34

^[5] P.Van Elsuwege,’External Action after the Collapse of The Pillar Structure’ (2010) 47CML Review,987, 1013

^[6] ibid

^[7] For example, Art.21(3) in German: “Die Union achtet auf die Kohärenz zwischen den einzelnen Bereichen ihres auswärtigen Handelns sowie zwischen diesen und ihren übrigen Politikbereichen.”

^[8] Simon Duke, ‘Consistency as an Issue in EU External Activities’ (2006), Working Paper, European Institute of Public Administration, http://www.eipa.eu/files/repository/product/20070816131419_99w06.pdf, Accessed 05 June 2011

^[9] P.Van Elsuwege,’External Action after the Collapse of The Pillar Structure’ (2010) 47CML Review,987,1014

^[10] P. Gauttier, ‘Horizontal Coherence and the External Competences of the European Union’ (2004) 10 European Law Journal 23,34

^[11] Under the pre-Lisbon Treaty framework know as an inter-pillar consistency.

^[12] C.Portela and K.Raube, ‘Six Authors in Search of a Notion: (In)Coherence in EU Foreign Policy and its Causes’ (2008),Hamburg Review of Social Sciences, Vol.3, No.1, 5

^[13] ECJ, Case 26/62 Van Gend en Loos [1963] ECR 1.

^[14] ECJ, Case 6/64 Costa v. ENEL [1964] ECR 585 at 593.

^[15] A Ott and RWessel, ‘The EU’s External Relations Regime:Multilevel Complexity in an Expanding Union’ in The European Union and its Neighbours( Asser Press, 2006), 20

^[16] Simon Duke, ‘Consistency as an Issue in EU External Activities’ (2006), Working Paper, European Institute of Public Administration, http://www.eipa.eu/files/repository/product/20070816131419_99w06.pdf, Accessed 05 June 2011,8