Principles and practices of EU external representation - TMC Asser ...

The role of the Court of Justice in ensuring the unity of the EU’s external representation
tutional level. Former Article 3 TEU has been dissected and dispersed over a
number of new Lisbon provisions. 21 Article 13 TEU echoes the idea that the
institutional framework shall ‘ensure the consistency, effectiveness and continuity
of its policies and actions’. In the light of the amalgamation of the Community
with the Union, the new Article omits the requirement that this has to respect
and build upon the acquis communautaire. Article 7 TFEU adds that the ‘Union
shall ensure consistency between its policies and activities” and balances this
with the principle of conferred powers. Such a general unambiguous duty of
consistency of all Union action does not have a predecessor under the previous
Treaty regime. Article 21(3)TEU replicates the second paragraph of former
Article 3 TEU and requires the Union to ‘ensure consistency between the different
areas of its external action and between these and its other policies’.
Besides scattering the provisions on the duty of consistency, the Lisbon
Treaty also diffuses responsibility over its execution. Article 21(3) TEU states
that the ‘Council and the Commission, assisted by the [High Representative],
shall ensure that consistency and shall cooperate to that effect’. Quite confusingly,
while this article places the High Representative in a supporting role,
Article 18(4) TEU seems to make the latter, in his/her capacity as Vice-President
of the Commission, the sole responsible for ensuring external action consistency.
Be that as it may, the High Representative is assisted by the European
External Action Service in fulfilling his/her mandate ‘to ensure the consistency
of the Union’s external action’. 22 Further, Article 16(6) TEU assigns a central
function to the General Affairs Council to ‘ensure consistency in the work of the
different Council configurations’ and bestows the Foreign Affairs Council (FAC)
with the responsibility of elaborating the Union’s external action and ensuring
that it is consistent.
While the reorganisation of provisions and political responsibility may seem
to obscure the legal basis of the duty and assign it a less prominent position, 23
the Lisbon Treaty essentially confirms consistency between the various EU
policies and actions as one of its central threads. 24 First of all, the new TEU
assembles all the Union’s external action principles and objectives in a single
Article 21 and provides that these shall be respected and pursued in all the
different areas of the Union’s external action, as well as in the external aspects
of its other policies. Article 24(2) TEU and 205 TFEU confirm that both CFSP
and TFEU external policies shall be conducted within this general framework
of Article 21 TEU. 25 Moreover, Title II of Part One on the Principles of the TFEU
mon Security and Defence Policy’, speech delivered to the European Parliament, Strasbourg, 13
December 2011, A 512/11, at 1).
21 For an analysis of former Article 3 TEU, see: I. Bosse-Platière, L’article 3 TEU. Recherche
sur une exigence de coherence de l’action extérieure de l’Union européenne, Bruxelles: Bruylant,
2009.
22 Council Decision (2010/427/EU) of 26 July 2010 establishing the organisation and functioning
of the European External Action Service, OJ L201/30, 3.8.2010 (further: ‘EEAS Decision’),
Article 2(1).
23 P. Eeckhout, EU External Relations Law, Oxford: Oxford University Press, 2011, at 186.
24 M. Cremona, ‘Coherence through Law: What difference will the Treaty of Lisbon make?’
3(1) Hamburg Review of Social Sciences (2008), at 30.
25 See also: 207(1), 208(1), 212(1) and 214(1) TFEU.
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