EU External Relations Law

by Eeckhout, Piet

• ISBN13: 9780199659951
• ISBN10: 0199659958
• Edition: 2nd
• Format: Paperback
• Copyright: 2012-10-12
• Publisher: Oxford University Press

Summary

The law of the external relations of the European Union is a subject of great importance. The EU institutions have developed an extensive practice in this area, by concluding many international agreements, by participating in the work of international organizations, and by legislating and regulating on matters of external relations. It is a practice giving rise to many legal problems and questions, as evidenced by the substantial and fast expanding body of case-law in this area from the EU Courts. These problems and questions are often of constitutional significance, and the external relations law of the EU therefore occupies an important place in the overall constitutional and institutional development of the EU.

This volume examines the legal foundations of the EU's external relations. It focuses on the EU's external competences and objectives; on the instruments, principles, and actors of external policies; and on the legal effects of international agreements and international law. It analyzes a number of key external policies, particularly in the fields of trade and foreign policy.

Substantially updated to take into account recent case law, it also incorporates an examination of the changes made by the Lisbon Treaty. This new edition, formerly published as External Relations of the European Union: Legal and Constitutional Foundations, is an invaluable asset to those studying and working in the field.

Author Biography

Piet Eeckhout is Professor of European Law at the Faculty of Laws, University College London.

Table of Contents

Table of Cases	p. xiii
Table of Legislation	p. xxxi
List of Abbreviations	p. xlvii
Introduction	p. 1
Constitutional moment	p. 1
Subject matter and methodology	p. 4
Second Edition and Treaty of Lisbon	p. 7
Constitutional Foundations: Competences and Objectives
Competence in matters of commercial policy	p. 11
Introduction	p. 11
Opinion 1/75 and the notion of exclusivity	p. 13
The rise of UNCTAD and the broad conception of 'trade'	p. 18
The bipolar world of Commission v. Council	p. 21
The internal market and external trade	p. 23
The Uruguay Round and Maastricht	p. 25
The joint competence settlement of Opinion 1/94	p. 27
Trade in goods	p. 28
Trade in services	p. 29
Transport	p. 32
Intellectual property	p. 33
Trade and foreign policy	p. 35
Trade and environment	p. 39
The Treaty of Lisbon	p. 57
Trade in services and the commercial aspects of intellectual property	p. 58
Foreign direct investment	p. 62
Conclusions	p. 67
The doctrine of implied powers	p. 70
Introduction	p. 70
The AETR case: implied versus conferred powers?	p. 71
The parallelism approach of Opinion 1/76	p. 76
The clarity of Opinion 2/91	p. 82
The meanderings of Opinion 1/94	p. 87
GATS	p. 88
TRIPs	p. 93
The limits of Opinion 2/94	p. 95
The Open Skies cases	p. 101
Opinion 1/76-type competence	p. 102
AETR-type competence	p. 105
The consolidation of Opinion 1/03	p. 108
The codification by the Lisbon Treaty	p. 112
Conclusions	p. 113
Express and implied competences under the TFEU	p. 120
Introduction: external competences after Lisbon	p. 120
Association agreements	p. 124
Development co-operation and other co-operation policies	p. 127
Development co-operation prior to the TEU	p. 127
The EC Treaty provisions on development co-operation and Portugal v. Council	p. 130
The Small Anus and Light Weapons case	p. 137
The Treaty of Lisbon amendments	p. 139
Other co-operation agreements	p. 140
Environment	p. 141
The internal market and transport	p. 144
The four freedoms, internal market harmonization, and competition policy	p. 144
Investment treaties	p. 149
Transport	p. 151
Social policy	p. 152
Economic and Monetary Union	p. 153
Area of freedom, security, and justice	p. 157
Introduction	p. 157
Border checks, asylum, and immigration	p. 158
Judicial co-operation in civil matters	p. 160
Judicial co-operation in criminal matters	p. 162
Police co-operation	p. 163
Conclusions	p. 163
Competence to conduct a Common Foreign and Security Policy	p. 165
Introduction	p. 165
CFSP objectives and competences	p. 167
Scope	p. 167
Nature of the competences	p. 171
Delimitation of TEU and TFEU competences	p. 172
Article 47 TEU, pre-Lisbon	p. 172
Article 40 TEU, post-Lisbon	p. 180
Consistency	p. 186
Conclusions	p. 189
International Foundations: Treaties and International Law
The life cycle of international agreements	p. 193
Introduction	p. 193
Negotiations	p. 195
Article 218 TFEU	p. 195
Article 219 TFEU	p. 200
Signature and conclusion	p. 200
Article 218 TFEU	p. 200
Article 219 TFEU	p. 207
Implementation, amendment, and adoption of EU positions	p. 208
Suspension and termination	p. 209
Conclusions	p. 209
Mixed external action and membership of international organizations	p. 212
Introduction	p. 212
Cause and practice of mixed agreements	p. 213
Competence	p. 213
Practice and case law	p. 215
Causes	p. 220
Membership of international organizations	p. 222
Membership and non-membership	p. 222
International organizations, the autonomy of the Community legal order, and the exclusive jurisdiction of the Court of Justice	p. 231
The duty of co-operation	p. 241
Establishing the principle	p. 241
Recent case law	p. 246
Further issues	p. 255
Negotiation	p. 255
Clarification of the division of powers	p. 256
Ratification and conclusion	p. 258
Representation and voting	p. 259
Implementation, interpretation, and effect	p. 260
International responsibility	p. 262
Partial mixity	p. 264
Conclusions	p. 264
The courts and international agreements	p. 267
Introduction	p. 267
Requests for an Opinion	p. 268
Preliminary rulings on questions of interpretation	p. 274
General issues	p. 274
Mixed agreements-first developments	p. 277
Mixed agreements-case law on TRIPs	p. 279
Mixed agreements-other case law	p. 286
Review of legality	p. 287
Review of an agreement	p. 288
Review on grounds of violation of an agreement	p. 292
Non-contractual liability	p. 299
Enforcement actions	p. 300
Methods of interpretation	p. 304
Introduction	p. 304
Early case law	p. 306
The EEA Agreement	p. 311
Recent case law	p. 314
Assessment	p. 318
Conclusions	p. 319
The legal effects of international law	p. 323
Introduction	p. 323
The effect of international law	p. 323
Agreements are binding	p. 325
Transposition and implementation	p. 327
Judicial application-direct and indirect effects	p. 328
Structure of the chapter	p. 330
Agreements concluded by the EU	p. 331
A survey of the case law on direct effect	p. 331
The principle of consistent interpretation	p. 355
The principle of implementation	p. 357
Origins	p. 357
Rationale and further application	p. 360
The effects of international litigation	p. 365
The legal effects of EU agreements: an assessment	p. 374
General international law	p. 383
Early case law	p. 384
Conclusion and suspension of agreements: Opel Austria and Racke	p. 386
Recent case law	p. 391
Assessment	p. 393
Agreements binding on the Member States	p. 395
General issues	p. 395
UN law: the Kadi judgment	p. 401
Yusuf and Kadi (Court of First Instance)	p. 402
Kadi and Al Barakaat (Court of Justice)	p. 404
Kadi: an assessment	p. 414
Agreements pre-dating accession	p. 421
First paragraph	p. 422
Second paragraph	p. 430
Conclusions	p. 434
Policies
Common commercial policy	p. 439
Introduction	p. 439
Principles	p. 440
The principle of uniformity	p. 441
The principle of assimilation	p. 444
Towards a principle of non-discrimination?	p. 446
Instruments	p. 447
Conventional and autonomous instruments	p. 447
Common Customs Tariff	p. 448
Generalized tariff preferences	p. 451
Applying the CCT	p. 452
General import regulations	p. 454
Anti-dumping	p. 454
Anti-subsidy	p. 456
The trade barriers instrument	p. 457
Export policy	p. 457
Actors	p. 458
Judicial review of commercial policy measures	p. 460
Conclusions	p. 465
Common Foreign and Security Policy	p. 467
Introduction	p. 467
Instruments	p. 469
Introduction and overview	p. 469
Decisions on Union actions	p. 471
Decisions on Union positions	p. 473
Decisions on strategic interests and objectives	p. 475
The exclusion of legislative acts	p. 478
Budget	p. 483
Actors	p. 485
European Council	p. 485
Council	p. 486
Commission	p. 490
High Representative	p. 491
European External Action Service	p. 494
Parliament	p. 496
Court of Justice	p. 497
Conclusions	p. 499
Sanctions policy	p. 501
Introduction	p. 501
A short history	p. 503
Competence issues	p. 506
Protection of fundamental rights	p. 511
Bosphorus	p. 512
Yusuf and Kadi	p. 515
OMPI and PMOI	p. 516
Kadi and Al Barakaat	p. 519
Kadi II	p. 523
Interpretation and application	p. 528
Sanctions against the FRY	p. 529
Counter-terrorism sanctions	p. 537
Sanctions by the Member States	p. 540
Conclusions	p. 547
Index	p. 549
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