eu constitutionalisation - EUROPEUM Institute for European Policy

Chapter 5: The European Constitution and the Reform of External Competencesthat the member states’ decisions on emergency aid infringed its budgetaryprerogatives. With a view to the “complementary” character of this policyand notwithstanding the coordination with Union actions, member statesmay still continue to pursue independent operations.V.5. Chapter V: Restrictive Measures (Art. III-322 CT)The provisions on economic and financial sanctions against third countrieshave all along rendered the inextricable link between CFSP and externalrelations under the current first pillar apparent, both in procedural as wellas in substantive terms. Generally, embargo sanctions are imposed by anauthority against another subject of international law in pursuance of a foreignpolicy objective, namely to alter the conduct of the target State.⁸⁴ Art III-322 incorporatescurrent Articles 301 TEC on economic and 60 TEC on financialsanctions and, in terms of procedure, maintains the two-stage approachprovided for in Art 310 TEC for the adoption of sanctions.⁸⁵ This is particularlynoteworthy with a view to the merger of the pillars. In fact, it providesanother confirmation that, also in a “unified” Constitution, the memberstates’ concerns to hand over sensitive foreign policy instruments are successfullyaddressed through the persisting procedural safeguards in theCFSP. For the interruption or reduction of economic or financial relationspursuant to Art. III-322 CT the Council thus needs to adopt a (principally)unanimous European decision in the framework of the CFSP. On the basisof such a decision, the Council, acting by qualified majority, would adoptthe necessary European regulations or decisions.Evidently, a unanimous Council decision as necessary precondition for theadoption of sanctions, though most probably unavoidable from a politicalpoint of view, is a rather challenging requirement in a Union of 25 memberstates. It substantially weakens an otherwise powerful trade and policyinstrument in the hands of the Union. Moreover, the unanimity requirementcomprises another important facet with a view to the competence allocationfor the adoption of sanctions. Notably, Art. III-322 CT is not assigned84) Compare LUKASCHEK (2002), p. 324 referring to SCHNEIDER (1997) 27f.85) The structure of this provision introduced through the Treaty on European Union has been precededby a long standing practice of a combined approach, namely the adoption of sanctions on the basis ofa consensus decision with in the EPC followed by a Community measure based on former Art 113 TEC; fora detailed account on the European Union’s legal framework on economic sanctions, compare LUKASCHEK(2002), p.322-354.Chapter 5: The European Constitution and the Reform of External Competencesto a specific competence category. On the basis of the general rule in Art.I-14(1) CT, one might therefore argue that it figures as a shared competence.This conclusion somewhat contradicts the current perception of Art 301TEC which is that of an exclusive competence⁸⁶ or, alternatively, suggeststhat the scope of the Union’s competence depends on the repartition ofpowers in the field of the respective embargo measures.⁸⁷ Following thelatter approach, for example, the “classical” trade sanctions covered by theCommon Commercial Policy-competence are exclusive. In contrast, on theassumption that the competence to adopt economic or financial sanctionswas shared in the Constitution, the member states would be principally freeto adopt autonomous sanctions, as long as the Union had not acted in a givencase. This would become problematic in each case where the adoption ofa measure in the Council was blocked for the lack of unanimity.With a view to the quest for a more coherent and consistent approach inthe field of external relations, this solution seems entirely inappropriate:Particularly with a view to the Union’s comprehensive exclusive powers inthe field of the common commercial policy, it should be out of questionthat the member states adopted autonomous trade sanctions. The moreplausible approach would therefore be to not interpret Art. III-322 CT asa genuine empowering provision. Rather, the division of competenceswould depend on the individual case. As long as the Union did not adoptsanctions against a third country, an individual or non-State entity, themember states would be free to take such embargo measures that are not inconflict with any of the Union’s exclusive competences. This might includeflight embargos in the field of transport, visa restrictions, or eventuallythe freezing of accounts in the field of capital and payment. In contrast, itwould prevent the member states from adopting any trade sanctions witha view to the Union’s exclusive competence under Art. III-315 CT. Art. III-322 CT would thus be understood as a horizontal competence provision,conferring power on the Union only in those fields, where the Union’slegislator is internally entitled to act. This approach would also seem in linewith the member states’ interest to retain control on the implementation86) Compare for example CREMER (2002), in CALLIES (2002), ad Art 301 para 14 and fn.63.87) Compare for example LUKASCHEK (2002), p.345f; this would, for example imply that a measure on thebasis of Art 301 TEC, which also encompassed services, would on the basis of Opinion 1/94 only conferconcurrent competence. This view would, however, contradict a systematic interpretation of the Treaty,as Art 60 TEC extends the competence for adopting measures under Art 301 TEC to the field of capitaland payment and explicitly foresees in its para 2 in exceptional cases, a (concurring) competence of themember states for serious political reasons and on grounds of urgency.182183