EU Loyalty

Chapter 2 discusses the legal consequences and deeper meaning of EU loyalty with particular attention to external relations. It identifies specific active and passive obligations flowing from the principle of sincere cooperation in the context of EU external relations and argues that they are best understood as forming part of a comprehensive duty of loyalty. EU loyalty endows EU membership with a distinctive meaning. It is central to imposing a quasi-federal discipline and making sovereign states ‘Member States of the EU’ by acting as a tool that can at times take specific legal obligations beyond the letter of the law. EU loyalty legally restrains Member States from exercising their rights as independent international actors in a way that finds no parallel beyond the European Union. It may require placing the common Union interest above national interests. The concept of unity of international representation has a particular capacity to deepen and widen the obligations flowing from EU loyalty. It amplifies the effects of EU loyalty on the scope of legal action of the Member States, including in the field of reserved competences. It is also part of the explanation of why loyalty has more stringent consequences externally rather than internally. This in turn means that the duty of loyalty has a particular integrative force in the context of external relations. Chapter 2 also argues that this stringent understanding of EU loyalty is justified by the nature of external relations and that this justification should be (better) explicated by the EU institutions in order to justify EU external actions vis-à-vis EU citizens.

Conceptual Toolkit

Chapter 1 sets out the conceptual framework for the rest of the book. It first and foremost develops the meaning and relevance of structures of bonding that formally legally connect the Union and its citizens. One prominent example is the European Parliament’s legal mandate to represent EU citizens. The chapter further identifies the autonomy and effectiveness of the EU legal order as the unique features that set it apart from international organizations and international law. The potential of structures of bonding depends on these features. Chapter 1 also develops the mutually dependant relationships of autonomy, effectiveness, structures of bonding, and the legitimacy of the Union and its actions. It identifies different dimensions of legitimacy and emphasizes, drawing on Jürgen Habermas, justifiability or, even more precisely, worthiness of recognition (Annerkennungswürdigkeit) as the core of legitimacy. Justification to individuals, as EU citizens and national citizens, returns in all the following chapters as a necessary precondition for legitimacy and as the core potential of bonding structures.

Conclusions

The Conclusions articulate the findings of the different chapters of this book as a consistent narrative that EU external relations not only have specific legal consequences for the power division between the Union and the Member States but also affect the Union’s constitutional structures at a deeper level. The interpretation of organizing principles changes in the context of external relations. Power shifts between the different EU institutions. Member States experience different and more stringent constraints on their ability to take unilateral action. More often than not, these changes and shifts empower the Union when it acts externally. Furthermore, the Union has established itself as an autonomous legal entity, whose law enjoys a unique effectiveness in practice. These unique features of the EU legal order are subject to particular pressure when the Union takes external actions. Loyalty obligations of the Member States and the institutions should be reconsidered in the light of this pressure, an explicit acknowledgement of the pluralist legitimation of Union action, and the purpose of the Union. Moreover, the Union has established numerous direct links with its citizens that create formal legal structures of bonding. These structures could and should serve as structures of justifiability, in which the Union directly addresses its citizens and explicates its purpose and added value, including in terms of democratic representation in external relations.

Organizational Principles Under External Pressure

Chapter 3 identifies how the organizational principles of subsidiarity, primacy, and consistency are interpreted in the context of external relations. When Union action gives effect to international law, for example, this is portrayed by the EU institutions as amounting in certain circumstances to an assumption that the requirements of subsidiarity are met. Yet subsidiarity is regularly reduced to an economic concept focused on increasing ability to achieve a certain objective, that is, effectiveness. The chapter highlights the democratic legitimacy dimension of subsidiarity. It argues that, in particular, the principle of subsidiarity forms part of the bonding structures because it offers a formal legal opportunity to justify Union action and explicate that the Union is better placed to represent its citizens externally. With regard to primacy, Chapter 3 demonstrates that this principle is the necessary precondition for both the autonomy and effectiveness of the EU legal order. It explains how EU external relations may put primacy under pressure. It gives a glimpse of why national courts may rebel against the primacy of EU law because of this external pressure. Chapter 3 then turns to the principle of coherence. It argues that the Lisbon Treaty made a choice for coherence through ambiguity, which empowers the Court and contributes to the opaqueness of decision-making in the context of external relations. It argues that (perceived) coherence is a necessary precondition for bonding structures between the Union and EU citizens to realize their potential. Moreover, justifiability and hence legitimacy require a certain level of coherence and predictability.

Consequences of Choosing an External Legal Basis

Chapter 4 discusses the constitutional consequences of the choice of legal basis in the context of external relations. The Union and its Member States are interlocked in a tight embrace, which leads to a far more complicated power division than may appear from a straightforward reading of the Treaty provisions on competences. The choice of the appropriate legal basis is the legal emanation of political power struggles between the Member States and the Union and among the EU institutions. The chapter identifies situations, in which the fact that law-making moves from the internal EU sphere to the external (i.e. international) sphere places more far-reaching restrictions on the Member States’ exercise of powers than would apply internally. It also argues that clarity in attributing responsibilities is a foundational requirement for bonding structures in a divided representative democracy, in which individuals are represented as EU citizens and national citizens. An adequate level of clarity on who is responsible for what is a necessary, albeit insufficient, condition for feeling represented and for limiting the ability of representatives to deny responsibilities. Finally, the chapter illustrates how the international obligations of the Member States are vested with the particular bite (i.e. effectiveness) of EU law when the question of who should take action, which is at the centre of the choice of legal basis, is avoided by concluding a mixed agreement. This limits the scope of manoeuvre of Member States as international actors.

Introduction

The Union, while externally trying to assert the role of one single international actor, remains internally a complex and compound legal order in which numerous actors, that is, Member States and different EU institutions, participate and struggle for visibility. The apparent contradiction between the Union’s ambition to create one uniform international presence and the many internal actors and complex structures is not new but tensions have significantly increased as a result of the Union’s extended powers and ambitions, as well as the political climate within and beyond the Union. These tensions not only influence the Union’s external capacity and actions; they also have an impact on the Union’s internal constitutional structures. Some of the Union’s external actions profoundly change its internal mode of operation and transform the relationship between the Union and its Member States. They influence the settled understanding of certain organizational principles and the Union’s division of powers. The role of the EU institutions changes as a result of the EU’s external actions. The resulting changes cannot easily be translated into an overall extension or reduction of powers but have more nuanced implications. More importantly, these changes also affect the relationship between the Union and EU citizens. They offer opportunities for justification and bonding. This Introduction sets out the objectives, relevance, and the structure of the book.

International Courts or Tribunals and the Autonomy of the EU Legal Order

Chapter 6 examines the consequences of the Union’s submission to the jurisdiction of international courts and tribunals (ICTs) for the autonomy of the EU legal order. In fact, no discussion of the effects of external relations on the internal constitutional structures would be complete without considering the specific and ever-increasing external pressure from ICTs that led the Court of Justice (CJEU) to take a rather protective and controversial position, for example, in Opinion 2/13 (EU accession to the European Convention on Human Rights). Chapter 6 concentrates on three ICTs that have, in the eyes of the Court or the Commission, raised particular issues for the autonomy of the EU legal order: investor-state dispute settlement mechanisms/the Investment Court System (ISDS/ICS), the Aarhus Convention Compliance Committee (ACCC) and the European Court of Human Rights (ECtHR) after the EU’s accession to the ECHR. The chapter draws the conclusion that, under certain circumstances, the CJEU’s concern that ICTs may threaten the autonomy of the EU legal order is plausible and links this conclusion to the potential of emerging structures of bonding within the EU legal order, as well as the effectiveness and legitimacy of the Union and its actions. Simply put, conceptual legal autonomy is needed for all three. Indeed, the very potential of structures of bonding depends on autonomy. One can only bond with an autonomous entity.

Institutional Powers in External Relations

Chapter 5 identifies the institutional changes that take place when the Union acts under international law and in cooperation with third countries or international institutions, rather than internally. The focus is, in particular, on the role of the European Parliament. The fact that the conclusion of EU international agreements depends on the consent of Parliament gives EU citizens a voice in international relations, which, with all its flaws, draws on a source of democratic legitimation that is independent and separate from the EU Member States. The chapter demonstrates that, in practice, Parliament has also been adept in strengthening its rights to information and its influence at the negotiation stage. Parliament’s powerful position in negotiating and concluding international agreements and its ability to represent EU citizens (and also non-economic interests) in external relations are analysed as an emerging formal structure of bonding. The chapter argues in favour of further explicating the Union’s added value in legitimizing the conclusion of international agreements and thus justifying Union external action, including where it limits the scope of manoeuvre of Member States as international actors. It further shows that facultative mixity (i.e. the conclusion of international agreements as a political choice rather than a legal necessity) deprives Parliament of the ability to represent EU citizens in international relations.