Principles and practices of EU external representation - Asser Institute

The principle of loyal co-operation: A ‘master key’ for EU external representation?The provision, however, does not make reference to the protection of the Union’svalues (only the positions and the interests of the Organization are mentioned):it can thus be argued that, according to the findings of the Court in Kadiand Al Barakaat Foundation, the safeguard clause contained in Article 34 TEUshould not be invoked by France and the United Kingdom to act in disregardof the constitutional principles of the Union. 86 Yet, due to the limitations to theCourt’s jurisdiction provided for by the Lisbon Treaty in the Common Foreignand Security Policy domain (Article 275 TFEU), enforcement actions by theCommission against Member States are not applicable in relation to Article 34TEU. This circumstance, however, does not undermine the above-proposedreading of Kadi and Al Barakaat Foundation, which may also be extended tothe participation of the Member States in other international organizations: theCourt appears, indeed, to suggest that Member States should take into accountthe need to respect EU law (in particular, EU primary law and the constitutionalprinciples of the EU legal order) even in the case in which they do notact within an international organization as trustees of the Union and the obligationsthey assume under international law are implemented by means of EUlaw. In such cases, Member States thus may be called, according to the principleof loyal cooperation, to protect EU values against the influence of an internationalorganization they adhere to. Evidently, this application of theloyalty principle cannot replace the EU full membership in international fora. 87Nonetheless, the outcome of the Court’s reasoning is of great importance ifone considers the legal and political obstacles that prevent the Union fromadhering to international agreements or international organizations. In thisrespect, the loyalty duties may act as a veritable ‘Trojan horse” that has beenbrought into the international forum at stake in order to ensure the protectionof EU law.4. The mutual nature of loyaltyThe discussion thus far has essentially considered the loyalty duties of MemberStates. However, as already recalled, the principle of sincere cooperation impliesmutual obligations and consequently should impose analogous duties uponthe EU institutions.Whilst the Lisbon Treaty has codified the mutual nature of the principle, thecase-law concerning the EU institutions’ loyalty duties in the international arenais still not very rich. The earlier case involving the institutions’ duties at thewhich states that ‘... the provisions covering the Common Foreign and Security Policy ... will notaffect the existing legal basis, responsibilities, and powers of each Member State in relation tothe formulation and conduct of its foreign policy, its national diplomatic service, relations with thirdcountries and participation in international organisations, including a Member State’s membershipof the Security Council of the United Nations’, [emphasis added].86 Opinion of Advocate General Poiares Maduro, supra note 83, paras. 39 and 44.87 See also P. Eeckhout, supra note 13, at 265.29CLEER WORKING PAPERS 2012/5