Trade Foreign Policy and Defence in EU Constitutional Law

by Koutrakos, Panos

• ISBN13: 9781841131665
• ISBN10: 1841131660
• Format: Hardcover
• Copyright: 2001-03-01
• Publisher: Hart Publishing

Summary

This book examines how the increasing interdependence between trade and foreign policy can be managed within the legal framework of the European Union. In the context of the legally distinct characteristics of the European Community and the Common Foreign and Security Policy,it analyses the problems underpinning the regulation of three areas: sanctions against third countries, armaments, and exports of dual-use goods. The focus is on whether the constitutional order of the European Union may address these problems while performing a variety of functions: ensuring the consistency and coherence of its external relations, preserving the acquis communautaire and respecting the right of the Member States to conduct their foreign policy as fully sovereign subjects of international law. The book concludes that the interactions between trade and foreign policy may be regulated in a legally sensible and realistic way within the current structure of the European Union. The recent developments regarding the defense and security identity of the European Union and the debate over the nature of an enlarged Union make this book all the more topical.

Author Biography

Panos Koutrakos is a lecturer in law at Durham University.

Table of Contents

Table of Equivalences	p. xv
Table of Cases	p. xxi
Table of Legislation	p. xxv
Introduction	p. 1
The canvas: the two pillars, European Community and Common Foreign and Security Policy	p. 1
The scope of the book	p. 3
The structure of the book	p. 5
The Common Foreign and Security Policy of the European Union	p. 7
Introduction	p. 7
The past framework: genesis, development and Treaty recognition of European Political Co-operation	p. 7
Failure leading to genesis (1950-70): foreign policy prior to European Political Co-operation	p. 8
The informal phase of EPC (1970-86)	p. 9
EPC under the Single European Act	p. 12
The paradox: the dynamic, incremental and sui generis foreign policy under EPC and the limits of procedural requirements	p. 14
Common Foreign and Security Policy under the Maastricht Treaty	p. 18
The CFSP provisions of the Maastricht Treaty	p. 19
The CFSP record under the Maastricht Treaty	p. 21
The character of the Union's foreign policy confirmed	p. 24
The current framework: CFSP under the Amsterdam Treaty	p. 26
The CFSP provisions under the Amsterdam Treaty	p. 26
The sui generis character of the Union's foreign policy confirmed: the issue of international legal personality	p. 29
The principles underpinning the CFSP of the European Union	p. 34
A "single institutional framework": institutional interactions between EC and CFSP	p. 35
The requirement of consistency and substantive interactions between EC and CFSP	p. 39
The definition of "consistency"	p. 39
Substantive interactions	p. 40
Administrative interactions	p. 43
Respect for the acquis communautaire	p. 44
Conclusion	p. 47
Economic Sanctions by the Member States: Definition, General Issues and Past Practice	p. 49
Introduction	p. 49
Definition and problems regarding the effectiveness of economic sanctions	p. 50
The Common Commercial Policy of the European Community	p. 53
The main principles of the CCP	p. 53
The scope of the CCP	p. 55
The first phase of the imposition of sanctions prior to TEU: national measures and the relevance of Article 297 EC	p. 58
The "Rhodesia" doctrine: sanctions under Article 297 EC	p. 58
Comment on the implementation of sanctions under national measures	p. 58
The second phase of the imposition of sanctions prior to TEU: recourse to Community law under Article 133 EC	p. 60
Comment on the imposition of sanctions prior to the adoption of TEU	p. 63
Conclusion	p. 65
Economic Sanctions under the Law of the European Union	p. 67
Introduction	p. 67
Typology of sanctions imposed under Article 301 EC	p. 68
Trade sanctions under Article 301 EC	p. 69
Financial sanctions under Articles 60 and 301 EC	p. 70
Sanctions on transport services under Article 301 EC	p. 71
Common features of sanction regimes imposed under Article 301 EC	p. 72
Reference in the common position to the political background and the main thrust of the sanctions regime	p. 72
Provision for exceptions	p. 73
Scope for independent action left to the Member States	p. 73
Establishment of a co-operation procedure amongst the Member States and between them and the Commission	p. 74
The right of the Member States to determine the penalties for breach of Article 301 EC regulations	p. 75
The Sanctions Committee in cases of regulations adopted under Article 301 EC pursuant to United Nations Security Council Resolutions	p. 75
The scope of Article 301 EC	p. 76
The relationship between Articles 301 and 133 EC	p. 78
The relationship between Articles 301 and 297 EC	p. 79
The interpretation of Article 297 EC	p. 80
Article 297 EC as the legal basis for collective sanctions against a third country	p. 82
The implementation of UN Security Council Resolutions and Article 297 EC	p. 84
Unilateral sanctions under Article 297 EC	p. 86
Problems raised by the application of the inter-pillar procedure established under Article 301 EC	p. 86
Conclusion	p. 90
The Community Regime on Exports of Dual-use Goods to Third Countries	p. 93
Introduction	p. 93
The establishment of common rules on the control of exports of dual-use goods under Regulation 3381/94	p. 94
The objectives of the Community regime for the control of dual-use goods	p. 95
The material scope of the Community regime for the control of exports of dual-use goods	p. 96
The central principle of the Community regime on exports of dual-use goods	p. 97
Scope for unilateral action left to the Member States	p. 98
Typology of export authorisations granted by national authorities under Regulation 3381/94	p. 99
The criteria to be taken into account by national authorities	p. 100
Comment on the common rules on exports of dual-use goods established under Regulation 3381/94 and Decision 94/942/CFSP	p. 101
The criteria provided for in Decision 94/942/CFSP as amended by Decision 96/613/CFSP	p. 101
The legal formula--inconsistencies and problems	p. 104
The Commission's proposals on reforming the common rules on exports of dual-use goods	p. 106
The substantive issues examined by the Commission regarding the functioning of the Community regime on exports of dual-use goods	p. 107
The legal formula of the Community regime on exports of dual-use goods	p. 108
Conclusion	p. 110
The Court's Approach to Exports of Dual-use Goods to Third Countries	p. 113
Introduction	p. 113
The general framework: political issues before the judiciary	p. 114
The Court's approach towards exports of dual-use goods: trade and foreign policy as within a single normative framework	p. 117
The Richardt case--the facts	p. 117
The Richardt judgment	p. 118
The Werner case--the facts	p. 119
The Werner judgment	p. 119
The Leifer case--the facts	p. 121
The Leifer judgment	p. 121
Comment on the Court's rulings on exports of dual-use goods	p. 122
Exports of dual-use goods as within the CCP	p. 122
Broad definition of public security	p. 123
The issue of judicial control	p. 124
The issue of the definition of commercial policy	p. 126
The implications of the Court's approach for the legal regulation of exports of dual-use goods	p. 127
Conclusion	p. 130
A Fully-fledged Approach to the Interactions between Trade and Foreign Policy: The Court's Case Law on Sanctions against Third Countries	p. 131
Introduction	p. 131
The first step: the Bosphorus case	p. 132
The Bosphorus case--the facts	p. 133
The Bosphorus judgment	p. 133
Comment on the Bosphorus judgment	p. 135
A step further: the Centro-Com case	p. 138
The requirement of consistency with Community law	p. 139
The issue of compatibility with the Common Commercial Policy	p. 140
The issue of the justification of national export restrictions under Article 307 EC	p. 142
Comment on the Centro-Com judgment	p. 142
The Court's approach fully applied: the Ebony Maritime case	p. 146
The Ebony Maritime judgment	p. 146
Comment on the Ebony Maritime judgment	p. 148
The emergence of a fully-fledged approach to the linkage between trade and foreign policy	p. 149
The Court's dynamic approach within the broader context of its jurisprudence	p. 152
Early indications of the Court's approach	p. 153
The exceptional jurisdiction of the Court under Article 298(2) EC	p. 156
The emergence of the functional jurisdiction of the Court: adjudicating upon the pillars	p. 159
Conclusion	p. 161
The Regulation of Defence Products under the Law of the European Union	p. 165
Introduction	p. 165
The multifarious functions of security	p. 165
The defence and political aspects of security	p. 167
The economic aspects of security	p. 169
Political and economic approaches to the problems of defence industries	p. 171
The intrinsic link between the multifarious functions of security	p. 174
Community practice under Article 296(1)(b) EC	p. 175
The defence industries under Community competition law	p. 176
Defence procurement	p. 179
Imports of defence products	p. 180
The emerging interpretative vacuum surrounding Article 296(1)(b) EC	p. 181
The interpretation of Article 296(1)(b) EC in the context of the EC Treaty	p. 182
The wholly exceptional character of Article 296(1)(b) EC	p. 182
The scope of Article 296(1)(b) EC	p. 183
The notion of "security" under Article 296(1)(b) EC	p. 186
The discretion enjoyed by Member States under Article 296(1)(b) EC and the role of the Court under Article 298(2) EC	p. 189
The requirement of respect for the conditions of competition in the common market regarding dual-use goods under Article 296(1)(b) EC and the role of the Commission under Article 298(1) EC	p. 191
The interpretation of Article 296(1)(b) EC within the constitutional structure of the European Union	p. 192
The interrelationship between Article 296(1)(b) EC and and Title V TEU	p. 193
The limited effect of Article 296(1)(b) EC	p. 196
Article 296(1)(b) EC and political realities	p. 196
Conclusion	p. 197
The European Union Code of Conduct on Arms Exports and the Commission's Proposals on Defence Industries	p. 199
Introduction	p. 199
Arms exports and the European Union code of conduct	p. 199
International initiatives on the regulation of arms exports	p. 201
Objective, scope and criteria laid down in the EU code of conduct on arms exports	p. 202
The applicable procedures under the EU code of conduct	p. 203
Comment on the code of conduct	p. 204
The Commission Communications regarding defence-related industries	p. 207
The thrust of the Commission's proposals: a coherent approach	p. 208
The Community legal framework: a strict interpretation of Article 296(1)(b) EC	p. 209
The CFSP: the development of the economic aspects of security	p. 209
Beyond the structure of the European Union	p. 210
The Commission's proposals to formalise the interactions between EC and CFSP	p. 211
Comment on the Commission's proposals	p. 213
The Commission's proposals as a general thesis	p. 213
The "national" counter argument	p. 214
The "supranational" counter argument	p. 215
The significance of the Commission's proposal in practical terms	p. 217
The Commission's proposal in the light of related developments	p. 218
Conclusion	p. 219
Conclusions	p. 221
Epilogue	p. 225
Bibliography	p. 227
Index	p. 239
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