Armin von Bogdandy and Jürgen Bast (eds.), Principles of European Constitutional Law, 2nd edition (Hart, 2009), pp. 309–343
35 Pages Posted: 2 Apr 2016
Date Written: March 29, 2009
For the founding fathers the establishment of the European Communities was a foreign policy project. It is therefore not surprising that internal and external Community policies are governed by comparable regimes. In its landmark judgment on implied external powers the Court of Justice paradigmatically rationalises the wide understanding of EC competences with the impact of international rules on internal policies: Whenever European laws are promulgated “the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope.” Also, concurrent activities of the Member States cannot be tolerated, “since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the Common Market and the uniform application of Community law.” To this date, the constitutional foundations of European foreign affairs are characterised by the assumption of supportive parallelism between external and internal policies. In view of the constant expansion of European foreign affairs their analysis however requires a partial detachment from the internal perspective by taking on board the particularities of international relations.
Objectives and themes of European foreign affairs nowadays transcend their supplementary character as an instrument for the protection and projection of internal rules with the dynamic evolution of the Common Foreign and Security Policy (CFSP) as an alternative point of reference. Its progress is not dominated by supranational law-making; rather the CFSP is typified by the identification of strategic goals and the constant adjustment of methods for their realisation. This condition of international relations explains the legal and institutional regime governing the CFSP, thereby establishing the constitutional dichotomy of European foreign affairs between intergovernmentalism and supranationality (section IV). Irrespective of the novelty of foreign policy and defence integration the supranational Community policies under the current EC Treaty remain the historic starting point and continuous centre of gravity of the legal analysis of European foreign affairs. In the supranational arena the parallelism between the constitutional foundations of internal and external action is most tangible – even if the decision-making procedure and the substantive constraints exemplify a variation on the supranational model. These particularities of international relations law explain the deviations from the orthodoxy of the Community method (section III).
It remains a challenge for European foreign affairs to guarantee the coherence and complementarity of the different fields of external action in the daily decision-making practice. This concerns the coexistence of the intergovernmental and the supranational spheres just as much as the cooperation with the Member States’ national foreign policies. Existing legal obligations mandate and support the horizontal and vertical cooperation between the Community, the Union and the Member States; one step further the reform project of the Lisbon Treaty sets sight on the pragmatic connection of the different level of foreign policy formulation and articulation with the ultimate objective of uniform external representation (section V). Coexistence and cooperation of the Community, the Union and the Member States is one particularity of European foreign affairs; their wider constitutional analysis therefore requires a reflection about the background and assumptions of our constitutional argument. They are presented in the preliminary section on the constitutional foundations and particularities of foreign affairs, which cannot ignore the continuous transformation of the international legal and political context.
Keywords: EU, Foreign policy, Foreign and Security prolicy, Treaty of Lisbon, Competences, High representative
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