Horizontal Consistency in the Areas of the European Union’s External Action

Magisterarbeit von Veronika Minkova

Introduction:

The Lisbon Treaty introduced substantial changes in the field of the EU’s external action. Firstly, many institutional innovations were introduced, most notably the high-ranking posts of the High Representative and the President of the European Council as well as Union’s diplomatic service – the European External Action Service. Secondly, there is an attempt to create a more unified legal order through the formal abolition of the pillar structure, the introduction of a single legal personality and the abolition of the hierarchical relationship between pillars. Finally, the Lisbon Treaty re-organised the EU’s external action. With the Treaty of Lisbon entering into force, the external action of the Union encompasses the common foreign and security policy (CFSP), the common security and defence policy (CSDP), the common commercial policy (CCP), the development cooperation and economic, financial and technical cooperation with third countries.

According to Article 13 of the Treaty on European Union (TEU): ‘The Union shall ensure consistency between the different areas of its external action and between these and its other policies.’ Consistency in EU external relations can be seen as a multi-layered concept, consisting of variety of dimensions, intertwined with other concepts and legal obligations in the Treaty as well as a political objective of the Union. Most importantly, it is a legal requirement through which the TEU accords to the Union the general responsibility for ensuring consistency of its external action as a whole but it charges the High Representative, the Council and the Commission with ensuring the implementation of these policies each in accordance with its respective powers. The dissertation will focus on horizontal consistency as an issue in EU external action and the legal as well as political implications of the institutional innovations brought about by the Lisbon Treaty. Whereas vertical consistency applies to the relations between the Member States and the Union, horizontal consistency designates consistency on European level, either inter-policy or inter-institutional consistency. Inter-institutional horizontal consistency is responsible for omitting gaps, avoiding conflicts and ensuring there are no overlapping competences between the European institutions. It is the strive for harmony, beneficial relationship and cooperation of institutional co-existence. On the other hand, inter-policy consistency is a prerequisite for the Union in order to speak with one voice on the international scene. It requires having overarching objectives and working for the same goals through variety of policies. This, it is especially relevant for the Union as prior to the Lisbon Treaty, there was a hierarchical separation of external policies because priority was given to first pillar competences. An example of inter-policy consistency is using policy instruments form the CCP to achieve development and security goals. Thus, the traditional aim of CCP to promote international trade liberalisation can gradually give way to a more normative EU trade agenda. Hence, ideally, the Union’s status as a global economic and trade power would be deployed for the purpose of promoting human rights and fundamental freedoms, sustainable development and environmental protection.

The general aim of the dissertation is to explore the European Union’s desire to make its foreign policy more coherent and to analyse how consistency is ensured in tow domains of horizontal consistency – inter-institutional and inter-policy. The first chapter discusses the multi-layered concept of consistency through the use of other legal concepts. It further elaborates on the terms vertical and horizontal consistency as well as the difference between ‘consistency’ and ‘coherence’ and the different language versions of the Treaty. The second chapter tracks historically the development of the EU’s external action as well as its efforts to make its external action more consistent. The first part traces the Union’s quest for more legal unity and consistency from the establishing of European political cooperation (EPC) until the Treaty of Amsterdam. In the second part, the innovations in the external action framework of the Union brought about by the Lisbon Treaty are discussed in detail. Firstly, attention is paid to the institutional innovations brought about by the Lisbon Treaty. Secondly, the ‘unity of the legal order’ is discussed. Finally, all individual external action policies are presented in their final ‘version’ after Lisbon. The third chapter attempts to illustrate ‘consistency in practice’ by two examples of overlapping between CFSP and non-CFSP issues will be discussed, namely European Neighbourhood Policy and economic sanctions. The focus in the final chapter is on two aspects of horizontal consistency - inter-institutional and inter-pillar consistency. It seeks to answer the question whether the new institutional and legal framework have enhanced the consistency and the effectiveness of the Union’s external action.

Table of Contents:

	Introduction	7
1.	The Concept of Consistency	9
1.1	Consistency as a Legal Obligation under the EU Law – a Multi-layered Concept	9
1.2	Horizontal versus Vertical Consistency	12
2.	Consistency and the Development of the European Union’s External Action	14
2.1	External Action prior to the Treaty of Lisbon	14
	European Political Cooperation	15
	Treaty of Maastricht and the Introduction of the Common Foreign and Security Policy	17
	Delimitation of Competences between Pillars	18
	The ‘Unity Thesis’ – Relationship between the EC and EU Legal Orders	19
	Consistency in External Action prior to Lisbon	21
2.2	External Action after the Treaty of Lisbon	22
2.2.1	Institutional Innovations brought about by the Lisbon Treaty	22
2.2.2	External action and the Unity of the EU legal order	31
2.2.3	Components of European Union External Action	36
3.	Consistency in practice:Overlapping External Competences	43
4.	The Duty of Consistency in EU External Action	48
4.1	Inter-institutional Consistency	49
4.2	Inter-policy Consistency	53
	Conclusion	55

Text Sample:

Chapter 1, The Concept of Consistency:

1.1, Consistency as a Legal Obligation under the EU Law – a Multi-layered Concept:

European foreign policy consistency has been the subject of extensive academic debate and a source of concern among European and national policy-makers for almost four decades. Consistency has an ambiguous nature, which at first sight appears to have a primarily political character. In fact, it is a multi-layered concept and most scholars in the field of European Union’s external relations law or political studies take as a point of departure in their contributions the explanation of the (legal) meaning of the term. Many different theoretical formulations of the term can be met in the literature. For example, Gauttier argues that at least in the context of EU foreign policy consistency does not designate a specific legal concept. However, according to Tietje it is ‘one of the main constitutional values of the EU’.

Provisions in both the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) make reference to the principle of consistency. The principle of consistency provides a context and a rationale for the operation of fundamental legal principles governing the relations between Member States and the EU institutions and between the institutions themselves, including the principles of primacy, legal personality and competence as well as the duties of sincere cooperation and complementarity. Consistency is mentioned in Art.13 TEU as one of the main elements for smooth implementation of EU policies:

‘The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions’.

While Art.13 TEU has a more general application, the most important provision on consistency specifically on external action is Article 21 (3) TEU:

‘The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect’.

To translate concepts of consistency into legal obligations is not straightforward. As such, these concepts are generally not well-established principles of EU law. However, they are an important political aim of the Union. Hence, the quest for consistency policy-making is translated into several legal duties for the Union and its Member States. Furthermore, there is no substantive benchmark in the Treaty as to how consistency can be achieved. Arguably, consistency has to be the outcome of a political process. Consistency can be derived from other core principles in the Lisbon Treaty. Cremona illustrates consistency as a three-level notion. Consistency can be seen as: (1) conflict avoidance between potentially contradictory norms in the areas of external action and between them and other Union policies; (2) effective allocation of tasks between actors and instruments in terms of rules of delimitation; (3) synergy between norms, actors and instruments.

Kenzler and Schneider define consistency as: ‘coordinated behaviour based on agreements where comparable and compatible methods are used in pursuit of a single objective and result in an uncontradictory policy.’ Thus, a first level of consistency can be seen as the absence of contradictions between the external policies of the European Union. It encompasses rules for conflict avoidance between potentially contradictory norms and for resolving conflicts when they arise in terms of rules of hierarchy. For example, the rule of primacy of European Union law ensures that European Union law will prevail over conflicting norms of national law. Likewise, the primary law of the EU including the Treaties but also including general principles of law will take precedence over secondary law enacted by the institutions.

A second level of consistency is seen in terms of rules of delimitation - the effective allocation of tasks between actors and instruments. Not only must the EU act within the limits of the powers conferred upon it by the Treaties, but also each institution must act within the limits of its own powers. Delimitation aims at avoiding duplications and gaps in institutional competences which is vital for synchronisation of external action areas. Preventing cases of overlapping in powers and ensuring effective allocation of tasks between actors and instruments is a key task for the smooth functioning of the European institutions. An example of a delimitation rule designed to ensure consistency is the doctrine of pre-emption, under which the Member States are precluded from acting externally to the extent that the Community has enacted common rules in the field and insofar as those rules would be affected by national action. However, effective delimitation of competences between institutions and between the Union and the Member States will not be sufficient to ensure consistency if there are no mechanisms in place to establish cooperation (the so-called ‘bridges’).

A third level of consistency implies synergy between norms, actors and instruments. This synchronisation can be termed ‘coherence’. From a legal point of view, consistency and coherence have a different meaning. Whereas the term ‘consistency’ points at the absence of contradictions between the various external policies, ‘coherence’ refers to the positive obligation of ensuring synergy between the different elements of external action. As a number of writers have pointed out while coherence is a matter of degree, consistency is a static concept (legal provisions are either consistent or they are not). They cannot be used interchangeably but should be understood as distinct concepts in a sense that the requirement of consistency forms the first degree of coherence.