THE EU EXTERNAL ACTION

1. The legal nature of the EU and the objectives and principles of the EU external action In this first week we will consider the objectives and principles of the EU external relations as well as the EU values. The legal nature of the EU will also be discussed. The EU is a “sui generis” international organization. The level of integration amongst its Member States is very advanced. Yet, it is not a State. See the position of the ECJ: “The EU is, under international law, precluded by its very nature from being considered as State” (Opinion 2/13, par. 156). The EU has legal personality as of the Lisbon Treaty (Article 47 TEU); this means that Member States provided the Union with the capacity to enter into international legal relations with third countries or international organizations in specific fields. What are they? The EU works on the basis of the principle of conferral (Article 5, par. 1, TEU): it is competent in the areas defined by the masters of the Treaties. External powers are conferred either expressly or impliedly (Article 216(1) TFEU). Third countries recognize to the Union the capacity to enter into international agreements and they actually engage with the Union. The Lisbon Treaty defines a number of objectives and principles that it seeks to advance in the wider world. The objectives set out in Article 21, par. 2, TEU include: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security. In addition, the EU aims at (d) integrating all countries into the world economy, including through the progressive abolition of restrictions on international trade; (e) fostering social and environmental development of developing countries, with the primary aim of eradicating poverty as well as (f) protecting the quality of environment; (g) assisting populations, countries and regions confronting natural or man-made disasters; (h) promoting an international system based on stronger multilateral cooperation and good global governance. The EU also aims at promoting ‘multilateral solutions to common problems’ (Article 21, par. 1, TEU). Questions 1. Can you find in Chapter 2, Title V of the TEU or in Part V of the TFEU the specific legal bases (i.e. Treaty provisions) that detail the procedures that EU institutions should follow to achieve the objectives listed above? 2. Read COM (2024) 570 and SWD(2024) 233 final. What do we mean by “hybrid threats” and how has the EU responded to them? Readings [1] Articles 2, 3(5), art. 5(1), 13(2), 21, art. 47 TEU; [2] Chapter 2, Title V of the TEU and Part V of the TFEU; [3] Communication on countering hybrid threats from the weaponisation of migration and strengthening security at the EU’s external borders, COM (2024) 570 final; [4] European Commission, High Representative of the Union for Foreign Affairs and Security Policy, Eighth Progress Report on the Implementation of the 2016 Joint Framework on Countering Hybrid Threats and the 2018 Joint Communication on Increasing Resilience and Bolstering Capabilities to Address Hybrid Threats, SWD(2024) 233 final.

2. The EU competences, the Treaty making power, the exercise of the EU external competence and situations in which the EU has exclusive powers to conclude international agreements The EU primarily exercises exclusive, shared, parallel competences, competences to support, coordinate or supplement the actions of the Member States and competences in the field of the CFSP. In areas of EU exclusive competences Member States can no longer act. They could at most be authorised by the EU to act on its behalf. Exclusive competences are listed in Article 3(1) TFEU and are a minority with respect to shared competences between the Union and Member States. However, the nature of the exclusive competence is dynamic. The EU may acquire exclusive competence in specific circumstances (Article 3(2) TFEU). In areas of shared competence with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The CFSP is subject to special rules and procedures with respect to those applicable in non-CFSP areas. This also applies to the EU external representation (as we shall see in lecture nr. 3). Article 216 TFEU is the provision defining the Treaty making power of the EU while Article 3(2) TFEU is the provision setting out the conditions for exclusive external competences to arise. Both Treaty provisions are an imperfect codification of the case-law of the ECJ which has greatly contributed to expand the EU/EEC Treaty making power since the 1970s, starting with the ERTA case. Under Article 216 TFEU, the EU may conclude agreements with one or more third countries or international organisations “where the Treaties so provide (explicit competence) or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope”. The agreements are binding on the EU institutions and Member States. Article 3(2) TFEU defines the circumstances under which the EU has exclusive powers to conclude an agreement in addition to those listed in article 3(1) TFEU. Questions 1. Compare Article 3(2) TFEU concerning the circumstances under which the EU’s exclusive powers to conclude an international agreement arise and the way it was interpreted by the ECJ. What is the starting point to decide that the EU is exclusively competent to conclude an agreement? 2. Protocol (No 25) on the exercise of shared competence states that, “when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area”. How was this provision been interpreted in case C-114/12, Commission v Council of 4 September 2014? Did the Court interpret the Protocol as a limit to EU’s exclusive powers? 3. Read case C-24/20, Commission v Council, 22 November 2022. Is it possible for the Council to authorise Member States to accede to a Convention which covers areas of EU’s exclusive competence by voting unanimously on this matter? Readings [1] Articles 2-6 and 3(2) TFEU; Art. 216 TFEU; [2] R. A. Wessel, J. Larik, Chapter 3 (The EU external competences), EU External Relations Law – Text, Cases and Materials, Hart Publishing 2020, pages 61-87; [3] C-114/12 Commission v Council (Convention on broadcasting rights), 4 September 2014; [5] C-24/20 Commission v Council (Geneva Act), 22 November 2022.

Topic 3A - The external representation of the EU, the principle of unity and its representation in International Organizations In these lectures we will examine: A) who can speak on behalf of the Union on the international arena. More precisely, the division of work between the Commission, the High Representative of the Union and the President of the European Council in representing the EU abroad will be examined. The role of the EU Council Presidency will also be discussed in the light of the recent practice of the Hungarian Presidency (from 1 July to 31 December 2024). B) who represents the Union in international organizations. The EU is full member of some international organizations (i.e. WTO and most of international fishery organizations) together with its Member States while it has mere observer status in others. In other cases the EU is not part of an international organization since the Statute of the latter admits only States. In these cases only Member States can be part of the organizations but when they act within the organization or at international conferences they are required to coordinate their action in international organizations and to uphold the Union’s positions in such forums (Article 34 TEU). Who can speak on behalf of the Union depends on the policy field in which a common position must be taken in an I.O. The policy field may fall within exclusive, shared, parallel competence or the CFSP. The EU and its Member States internally decide how to coordinate to represent their position in the I.O. Questions [1] When an international agreement that is concluded in the context of an I.O. (of which the Union cannot be part) concerns an area of EU’s exclusive competence, can the EU ratify the agreement? [2] Read case C 161/20, Commission v Council (International Maritime Organization or IMO). What is the contested act before the Court of Justice? Why does the Commission seek the annulment of the act? [3] Why is the Court of Justice competent to decide about this case? What is the position of the Council on who represents the Union within the IMO? [4] How can we decide who can speak on behalf of the Union in the IMO case? What is the conclusion of the Court of Justice? Readings [1] Art. 15-17 TEU; art. 221(1) TFEU; [2] G de Baere, EU status in other international organizations, in R. Schütze, T. Tridimas, Oxford Principles of EU law, 2018, Oxford University Press, only pages 1258-1276; [3] P Van Elsuwege, How Viktor Orbán Challenges the EU’s Common Foreign and Security Policy, VerfBlog, 2024/7/09, https://verfassungsblog.de/howviktor-orban-challenges-the-eus-common-foreign-and-security-policy/, DOI: 10.59704/da56a3449b491903. [4] Case C 161/20 European Commission v Council of the European Union (IMO). Topic 3B – EU diplomacy and the EU delegations In these lectures we will also examine how EU diplomacy works and, more precisely, the organisation and functioning of the European External Action Service as well as of the EU delegations in third countries. Readings [1] Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (EEAS Decision) OJ L201/30; [2] S Duquet, EU Diplomatic Law, OUP 2022, Chapter 1 and Chapter 5 (consular protection, pp. 298-306); [3] A Pau, An analysis of the rationales behind the launch of the European Political Community and its added value for EU diplomacy, Eurojus n. 2/2023, pp. 141-154.

4. The procedure to conclude international agreements in CFSP and in areas different from CFSP. The wide use of the mixed agreements The conditions for the negotiation, conclusion, and application of international agreements are set out in Article 218 TFEU. Specific provisions define the rules to conclude trade agreements (Article 207 TFEU) and other categories of agreements such as those on exchange-rate system for the euro in relation to the currencies of third States (i.e. Article 219 TFEU), CFSP matters (Article 37 TEU) and the withdrawal agreement of an EU Member State from the EU (Article 50 TEU). The EU may conclude an international agreement according to different modus operandi. There are “EU-only agreements” (for example, in areas of exclusive competence but not only in these areas) or “mixed agreements”. The ECJ recognized the possibility to use mixed agreements since Opinion 1/78 (International Agreement on Natural Rubber), EU:C:1978:202, paras. 34–36. The Council may be obliged to opt for mixed agreements (“mandatory mixity”) or may choose (“facultative mixity”). In case the Council has a choice, it chooses most of the times mixed agreements. In contrast, the Commission favours the adoption of EU only agreements. It may seem paradoxical but agreements falling within the CFSP are EU only agreements. Most of the association agreements are concluded on the mixed modus operandi. Agreements that cover both non CFSP and CFSP issues are mixed agreements. As to trade and investment agreements, in Opinion 2/15, ECLI:EU:C:2017:376, the ECJ found that the free trade agreement with Singapore fell in part within the exclusive competence of the EU and in part within the Union’s shared competence. Questions 1. How does the EU choose the substantive legal basis of a Decision to conclude an international agreement? 2. What are “mixed agreements”? When is the Council obliged to choose a mixed agreement rather than an “EU only agreement”? What are the advantages and disadvantages of mixed agreements? 3. What does it happen in case a Member State fails to ratify a mixed agreement? 4. The European Parliament has gained powers in the procedure leading to the approval of international agreements with the Lisbon Treaty. How has the Parliament used its powers in the practice? Has it ever rejected an international agreement? Does the Parliament have the power to influence the opening of the negotiation of international agreements? Are there concrete examples of how the Commission changed an external policy to accommodate the Parliament’s requests? 5. Read case C-551/21 Commission v Council. Does the Commission have the power to sign agreements on behalf of the EU? Readings [1] Art. 218 TFEU; [2] P Koutrakos, The decision making process, in R. Schütze, T. Tridimas, Oxford Principles of EU law, 2018, Oxford University Press, only pages 1141-1161; [3] Proposal for a Council Decision authorising Member States to ratify, in the interest of the European Union, the Violence and Harassment Convention, 2019 (No. 190) of the International Labour Organization, COM (2020) 24 final; [4] Council conclusions on the negotiation and conclusion of EU trade agreements, 8 May 2018; [5] Framework Agreement on relations between the European Parliament and the Commission, 20 October 2010, P7_TA(2010)0366; paras. 23-27 and Annex 3 dealing with international negotiations; [6] Case C-551/21 Commission v Council.

5. EU common commercial policy (CCP): objectives, scope and challenges in light of the WTO crises As M. Cremona states: “[a] CCP measure (.) concerns international trade (trade with third States), and in order to ‘relate specifically’ to (as opposed to merely having implications for) international trade it must (i) be essentially intended to promote, facilitate or govern international trade, and (ii) have direct and immediate effects on such trade. See M Cremona, Defining the Scope of the Common Commercial Policy, in M Hahn and G van der Loo (eds), Law and Practice of the Common Commercial policy: The first 10 years after the Treaty of Lisbon, Brill, 2020, p. 49. The EU is committed to liberalise trade in a multilateral context, that is to say, within the WTO. Yet, this organization has been affected by crises. In this class we will cover: (i) the scope of the CCP and the decision-making processes in the CCP; and (ii) the way the EU responded to the crises of WTO; (iii) how the EU promotes “non trade values” in its trade agreements. Questions 1. How is the scope of the CCP defined by the ECJ? 2. Why has the EU concluded many bilateral trade agreements after 2006? 3. The EU South Korea agreement was the first comprehensive trade agreement and has served a model for new generation trade agreements. What is the difference between this new generation agreement and the classic free trade agreements? 4. Hoes does the EU “support the green transition and promote responsible and sustainable value chains” through trade agreements? 5. How does the EU promote sustainable development through its investment policy? 6. How has the EU contributed to the functioning of the WTO throughout the years and how has it addressed the crisis caused by the blockage of new appointments of the Appellate Body of the Dispute settlement body? Readings [1] Articles 3(1), 206 and 207 TFEU; [2] R Schütze, Chapter 12 External Union policies - A substantive overview, in R Schütze, Foreign Affairs and the EU Constitution, Cambridge University Press 2014, p. 407-426; [3] M Cremona, Defining the Scope of the Common Commercial Policy in M Hahn and G van der Loo (eds), Law and Practice of the Common Commercial policy: The first 10 years after the Treaty of Lisbon, Brill, 2020, only pages 47-64; [4] M Colli Vignarelli, The European Commission Trade Policy Review: The Effectiveness of Sustainable Development Chapters in EU FTAs, in European Papers, Vol. 6, 2021, No 1, European Forum, Highlight of 29 March 2021, pp. 1-5; [5] N Andreotti, Is EU Investment Policy Fit for Promoting Sustainable Development? Insights from the EU-Angola SIFA, European Papers, European Papers, Vol. 9, 2024, No 1, European Forum, Insight of 2 July 2024, pp. 229-245. For the current state of FTA agreements and negotiations, see: [6] https://policy.trade.ec.europa.eu/eu-trade-relationships-country-and-region/negotiations-and-agreements_en European Parliament Research Service, International trade dispute settlement World Trade Organisation Appellate Body crisis andthe multi-party interim appeal arbitration arrangement, PE 762.342 – June 2024. Further readings [1] Commission Report on Implementation and Enforcement of EU Trade Agreements, COM(2022) 730 final, 11 October 2022; [2] Commission Communication, ‘Trade Policy Review: An Open, Sustainable and Assertive Trade Policy’ 18 February 2021, COM (2021) 66 final.

6. EU common commercial policy: unilateral measures and the challenges posed by China In this class we will examine the reasons behind the adoption of a number of EU unilateral trade measures. In 2016 the Commission/HR stated: “The EU welcomes productive Chinese investment in Europe provided it is in line with EU law and regulations. We expect EU investment in China to be equally welcome. Mutually beneficial co-operation on all aspects of investment should be increased, including by finding practical ways for China to contribute to the Investment Plan for Europe. China should limit the scope of security-related reviews of EU investments in China solely to issues that constitute legitimate national security concerns. Similarly, the EU expects Chinese Overseas Direct Investment in Europe to be based on free market principles, and will use all the means at its disposal to address the potential market distortions and other risks of investment by enterprises which benefit from subsidies or regulatory advantages provided by the state”. See Joint communication to the European Parliament and the Council - Elements for a new EU strategy on China Join (2016) 30, p. 7. We will consider the picture of the EU external relations described in 2016 and examine how the EU-China relations have developed after this year. Questions 1. What does “open strategic autonomy” mean? 2. What is the aim of Regulation 2019/452 on screening of foreign direct investments? What role does the Commission play in investment screening? 3. Why has the EU taken the initiative to address the problem of foreign subsidies? 4. What is the purpose of the Global Gateway? Readings [1] Regulation 2019/452 on screening of foreign direct investments; [2] Regulation 2022/2560 on foreign subsidies; [3] Global Gateway JOIN (2021) 30, 1 December 2021; [4] Commission, Elements for a new EU strategy on China, JOIN (2016) 30, 22 June 2016; Further readings [1] Commission, Second Annual Report on the screening of foreign direct investments into the Union, 1 Sept 2022, COM(2022) 433 final; See summary and comment at: [2] https://www.whitecase.com/insight-alert/eu-releases-its-second-annual-fdi-report-showing-increased-momentum-fdi-regulation; [3] Commission White Paper on levelling the playing field as regards foreign subsidies, 17 June 2020, COM (2020) 253 final; [4] Editorial comments, Protecting the EU’s internal market in times of pandemic and growing trade disputes: Some reflections about the challenges posed by foreign subsidies, 57 Common Market Law Review 57, 2020, 1365–1382; [5] M Szczepański, EPRS, Distortive foreign subsidies regulation- A level playing-field for the single market, 23 March 2023, https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2021)690700; [6] S Blockmans, The EU’s New Trade Policy: An Autonomous Assertion of Strategic Objectives? October 2021; [7] T Verellen, ‘When Integration by Stealth Meets Public Security: The EU Foreign Direct Investment Screening Regulation’. Legal Issues of Economic Integration 48, no. 1 (2021):19.

7. The EU’s engagement with non-self-governing/occupied territories in the EU neighbourhood In this class we will address EU’s engagement with non-self-governing or occupied territories in the EU neighbourhood as well as EU’s action in support of the States’ territorial integrity in case a State does not have effective control over its territory. The EU does not recognise self-proclaimed independent regions (e.g. Abkhazia and South Ossetia – of Georgia or Crimea – which considers itself separated from Ukraine further to the referendum of 16 March 2014). The EU contributes to strengthen the “sovereignty, political independence, unity and territorial integrity of Ukraine within its internationally recognized borders” by enacting restrictive measures. The EU does not conclude agreements with self-proclaimed independent regions. How different is the EU’s engagement with National Liberation Movements in concluding international agreements? The ECJ had the opportunity to examine the territorial application of several Association agreements and of Fishery agreements whose contracting parties were Israel, Morocco and Palestine. The EU has developed very strong ties with Israel over the years but in the Brita case (case C-386/08, Brita) made clear that the referring Court should not allow products that originated in the West Bank, east of Jerusalem, and hence in Palestinian territory could benefit from the preferential treatment regime allowed under the agreement between the EEC and Israel. Those products were subject to the interim Association Agreement between the EC and Palestine (EC-PLO). Is the EU consistent in the way it engages with Palestinians and the people of Western Sahara, a non-self-governing territory largely occupied by Morocco? In order to respect the right of self-determination recognized to the people of the Western Sahara and the principle that treaties are binding only on those who sign them, the ECJ construes the references to the territory of Morocco included in the various bilateral agreements concluded with Morocco as not applying to the territory of Western Sahara. See cases T‑512/12, Front Polisario v Council and C‑104/16 P, Council v Front Polisario. See also Case C-266/16, Western Sahara Campaign UK v Commissioners for Her Majesty’ s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs, ECLI:EU:C:2018:118, delivered 27 February 2018. The latest ruling of the saga was released on 4th October 2024. Readings and questions 1. Read joined cases C‑779/21 P and C‑799/21, P European Commission v Front Polisario (4 October 2024). What are the positions of the applicant and of the defendant? What is the position of the Court of Justice? How convincing is the Court’s position? 2. Read Joint Statement by President von der Leyen and High Representative/Vice-President Borrell on the European Court of Justice judgements relating to Morocco. What is the impact of the ruling on the EU-Morocco relations? 3. E Cannizzaro, In Defence of Front Polisario: the ECJ as a Global jus cogens Maker, Common Market Law Review 55, 2018, p. 569 ff.; 4. A Medizevec, Safeguarding Self Determination of Western Sahara: All Eyes Set on the General Court, in EU law blog, 19 September 2024; 5. J Odermatt, Whose Consent? On the Joined Cases C-779/21 P, Commission v Front Polisario and C-799/21 P, Council v Front Polisario, in VerfBlog, 5/10/2024.

8. The EU and candidate countries Albania, Bosnia and Herzegovina, Moldova, Montenegro, North Macedonia, Serbia, Turkey and Ukraine and Kosovo are candidate states. Ukraine and Moldova have been granted candidate status in June 2022. Georgia’s accession process is suspended since July 2024. Turkey is a candidate country whose European perspective is frozen. Kosovo applied for EU membership in December 2022. The accession procedure of Western Balkans such as Montenegro, Albania and North Macedonia was accelerated as a result of the war in Ukraine. The mentioned countries, except Turkey, have an interest in becoming a Member of the EU. They all have concluded association Agreements (art. 217 TFEU). Questions 1. How have the admissibility criteria to accede developed over time after the Copenhagen criteria were defined by the European Council? 2. Given that Ukraine has been given candidate status, does this imply that Ukraine satisfies all admissibility criteria to become a member of the EU? 3. To what extent is Kosovo different from other candidate countries and how is this difference reflected in the conclusion of international agreements and in the enlargement process? 4. Read case C-632/20 (Kosovo). What is the difference between a “third country” and “third State” emerging from the ruling of the ECJ? 5. How is the EU favouring the normalization of the relations between Serbia and Kosovo? Readings [1] Art. 49 TEU; [2] K Inglis, EU enlargement: membership conditions applied to the future and potential member States, in S Blockmans, A Lazowski (Eds.), The European Union and its Neighbours: A legal appraisal of the EU’s policies of stabilisation, partnership and integration. The Hague: T.M.C. Asser Press, 2006, p. 61-92; [3] Guest Editorial “Accession through war” – Ukraine’s road to the EU, (2022) 59 Common Market Law Review 1289; [4] European Council conclusions 23-24 June 2022; [5] https://www.eeas.europa.eu/eeas/belgrade-pristina-dialogue-eu-proposal-agreement-path-normalisation-between-kosovo-and-serbia_en; [6] Communication on pre-enlargement reforms and policy reviews, COM 2024 (146); [7] Case C-632/20 P Kingdom of Spain v European Commission (Kosovo), paras. 37-47; Further readings [1] C Hillion, The Copenhagen criteria and their progeny, in C Hillion, EU Enlargement: A Legal Approach, Hart, 2004. [2] M Cremona, Enlargement as Foreign Policy – A Research Agenda, in H A Ikonomou, A Andry, R Byberg (eds), European Enlargement across Rounds and Beyond Borders, Routledge 2017; [3] E Kassoti, Of Third ‘States’, ‘Countries’ and Other Demons - The CJEU’s Judgment in Case C-632/20 P Spain v Commission (Kosovo), in EU Law Analysis (12 February 2023).

9. The Common Foreign and Security Policy The CFSP is an area of EU competence subject to special rules and procedures (art. 24(1) TEU). In this lesson, we will understand how it works in the light of some of the ECJ’s landmark judgments. Part of the class will be devoted to understanding the decision-making process in this field and discussing the possibility of switching from unanimity to qualified majority voting. We will then examine the boundaries of the ECJ’s jurisdiction in the CFSP. Questions 1. How do the powers of the EU institutions in the CFSP differ from those exercised in fields other than non-CFSP? 2. In 2018 the Commission proposed to change the decision making in the Council as far as the CFSP is concerned. How can this Treaty change be made? What was the proposed change? Are you in favour of this change? What are the advantages and disadvantages in taking decisions by qualified majority within the Council? 3. What is the scope of the Court of Justice’s jurisdiction in the field of CFSP, in light of the ruling of the ECJ in Joined Cases C-29/22 P and C-44/22 P, KS and KD? Readings [1] Art. 24, 29, art. 25, art. 31 TEU; [2] Commission Communication, A stronger global actor: a more efficient decision-making for EU Common Foreign and Security Policy, COM (2018) 647 final; [3] P Koutrakos, The decision making process, in R. Schütze, T. Tridimas, Oxford Principles of EU law, 2018, Oxford University Press, only pages 1168-1172; [4] K Pomorska, R A Wessel, ‘Qualified Majority Voting in CFSP: A Solution to the Wrong Problem?’, European Foreign Affairs Review, 2021, n. 3, p. 351–358; [5] L Lonardo, ‘How the Court Tries to Deliver Justice in Common Foreign and Security Policy, Where the Need for Judicial Protection Clashes with the Principles of Conferral and Institutional Balance. Joined Cases C-29/22 P and C-44/22 P KS and KD’, European Papers, Vol. 9, 2024, No 2, pp. 830-844; Further readings [1] E Bartoloni, Simple Abstention and Constructive Abstention in the Context of International Economic Sanctions: Two E. Too Similar Sides of the Same Coin?, European papers Vol. 7, 2022, No 3, European Forum, Insight of 4 February 2023, pp. 1121-1131; [2] K Lenaerts, P Van Nuffel, T Corthaut, ‘CFSP Decision-making,’ in K Lenaerts, EU consititutional law, Oxford University Press, 2021, p. 587-593.

10. EU restrictive measures The most important CFSP measures in quantitative terms are decisions instituting restrictive measures. The Union has competence to impose restrictive measures (i.e. sanctions) to interrupt or reduce economic and financial relations with one or more “third countries” (Article 215, par. 1, TFEU) and to address targeted sanctions “against natural or legal persons and groups or non-State entities” (Article 215, par. 2, TFEU). The EU will enact these measures to react to breaches of international law or to achieve CFSP objectives. The EU currently has sanctions regimes in place against 35 third countries, plus measures directed at terrorist groups, against chemical weapons and cybercrime ad well as in case of serious breaches of human rights. Most of the EU restrictive measures are enacted independently of the UN. Why does this happen in your opinion? Questions 1. The EU restrictive measures are sometimes contested since they are comprehensive in nature rather than targeted; the Council broadens the designation criteria to include persons not directly responsible for the illegal conduct that is at the origin of the enactment of restrictive measures; the EU restrictions are not temporary and tend to have an “indefinite duration”. Finally, EU sanctions seem to have an increasingly punitive character. Can you make examples drawing on the readings? 2. The Council has expanded the designation criteria of individual restrictive measures by targeting family members of primary targets and persons who frustrate the prohibitions set out by restrictive measures. 3. A restrictive measure, under art. 215 TFEU is based on: first a political Council Decision adopted under CFSP, followed by an EU Regulation. The former is adopted by the Council at unanimity. One advantage of this procedure is that the CFSP decision can include a wider range of restrictive measures, including those to be implemented directly by the Member States, such as arms bans and travel restrictions. CFSP Decisions instituting restrictive measures are subject to the jurisdiction of the ECJ (Article 275 TFEU) which has been broadly defined by the court itself, although the Court does not generally have jurisdiction over CFSP acts. Why does the ECJ have jurisdiction over CFSP Decisions instituting restrictive measures vis-à-vis natural and legal persons? Readings [1] Art. 29 TEU, Articles 215, 275 and 263(4) TFEU; [2] S Poli, F Finelli, Context specific and structural changes in EU restrictive measures adopted in reaction to Russia’s aggression to Ukraine, in rivista.eurojus.it n. 3/2023, pp. 19-49; [3] S Poli, Judicial challenges to EU restrictive measures by individual state organs, ‘emanations of non-EU member states’ and third countries: the limits to the Council’s discretion, in A. Lang, G. Adinolfi, C. Ragni, Sanctions by and against International organizations (Intersentia, Cambridge, 2024), p. 203-224; [4] EU Council, Basic Principles on the Use of Restrictive Measures (Sanctions), June 2004; [5] Restrictive measures (Sanctions) - Update of the EU Best Practices for the effective implementation of restrictive measures, 2022. Further readings [1] Proposal for a Directive on asset recovery and confiscation, COM (2022) 245; [2] Proposal for a Council Decision on adding the violation of Union restrictive measures to the areas of crime laid down in Article 83(1) of the TFEU, COM (2022) 247; [3] EU Council, Guidelines on the implementation of sanctions, May 2018; [4] S Poli, ‘The right to effective judicial protection with respect to acts imposing restrictive measures and its transformative force for the Common Foreign and Security Policy’ (2022) 59 Common Market Law Review, p. 1045.

11. The Common Security and Defence Policy Topic 11A – CSDP Missions The CSDP is part of the CFSP. According to Article 24(1) TEU, the CFSP “shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence”. In this class we will focus on CSDP missions. The CSDP is concerned with operational capacity for defence, including military and civilian missions, which may be deployed “outside the Union for peace-keeping, conflict prevention and strengthening international security” (Article 42, par. 1, TEU). The so-called “Petersberg tasks” are listed in more detail in Article 43(1) TEU: “joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilization”. There have been 37 CSDP missions and operations on three Continents, of which 17 are still ongoing, deploying 5000 personnel (EEAS, 2020). Most of these missions are small, with a narrow mandate and timid objectives, deploying military and civilian personnel (Juncos, 2020) (see M. Koppa, p. 205). The CFSP and CSDP are fields of EU (external) action in which we see considerable flexibility in terms of participation: CSDP action is generally a matter for groups of Member States, and third country participation is frequent (see Houde & Wessel). The EU currently has 9 military missions and 12 civilian missions operational. For an overview see: https://www.eeas.europa.eu/eeas/missions-and-operations_en#9620 Topic 11B – Towards a common European Defence? This lesson will instead focus on the latest developments (at the EU level) in the field of defence, with particular attention to recent EU initiatives, such as the Strategic Compass for Security and Defence and the White Paper for European Defence - ReArm Europe/Readiness 2030. Member States have traditionally viewed national autonomy in the defence field as essential to safeguarding their security interests, protected by Article 4, par. 2, TEU. However, recent events - most notably Russia’s military aggression against Ukraine - have highlighted the growing need for deeper integration in this field. The class will discuss such topic in the light of the strategic autonomy doctrine, as well as of the objective of preventing a war of aggression in Europe within the next five years. Finally, we will analyse the mutual assistance clause (Article 42, par. 7, TEU), the conditions for its activation and the relationship with the collective defence under the NATO Treaty Questions 1. Why has the EU sought to become an autonomous security actor? 2. What are the lessons learnt from Yugoslav Wars, the Second Gulf War, the Libyan campaign, the annexation of Crimea, the Syrian crisis, and the combined effect of Brexit and the election of America’s first isolationist President for three generations, namely Donald J. Trump? (M Koppa, see below, p. 181)? 3. What is the Strategic Compass, when was it approved, and what are its main objectives and pillars? Readings [1] Articles 23-46 TEU; [2] R A Wessel, E Anttila, H Obenheimer, A Ursu, The future of EU Foreign, Security and Defence Policy: Assessing legal options for improvement, European Law Journal, 2020, pp. 371–390; [3] M Koppa, ‘Negotiating a European defence framework’ (Chapter 11) in M Koppa, The Evolution of the Common Security and Defence Policy -Critical Junctures and the Quest for EU Strategic Autonomy, 2022, Palgrave Mcmillan.

12. The EU and its relations with European countries not interested in acceding to the EU There are a number of European countries that are not interested in becoming a Member of the EU; yet, they have close relations with EU. These are the countries of the European Economic Area (EEA) such as Norway, Lichtenstein and Iceland on the one hand, and Switzerland and the UK on the other hand. Association agreements were concluded between the EU and the EEA countries and a trade and cooperation agreement was concluded with the UK. The EU’s economic and trade relations with Switzerland are governed by the free trade agreement of 1972, and by the Bilateral agreements of 1999 (Bilateral I) and 2004 (Bilateral II). Over 120 agreements were concluded giving to Switzerland access to parts of the internal market. Between 2014 and 2021 the EU and Switzerland have negotiated an Institutional Framework Agreement (‘IFA’). In May 2021 the Swiss Federal Council decided to terminate the negotiations. Questions 1. Why was the EEA created? Does it cover cooperation in all the fields of EU competence? 2. What is the institutional setup of the EEA? How has the EEA worked so far? 3. What is the meaning of the principle of homogeneity? 4. What is the geographical scope of the EEA Agreement? 5. After Brexit, how has the UK performed as “an autonomous global trade actor”? 6. Why did the EU request Switzerland to negotiate the Institutional Framework Agreement? Why were the negotiations stopped? Readings [1] HH Fredriksen and CNK Franklin, ‘Of Pragmatism and Principles: The EEA Agreement 20 Years On’ (2015) 52 Common Market Law Review 629. [2] C. Kaddous, ‘The Failure of the Institutional Agreement from a Legal Perspective,’ in M Maresceau and C. Tobler, Switzerland and the EU-a challenging relationship, Brill, 2023, p. 310-336. [3] I. Hallak, European Parliamentary Research Service, ‘EU-Swiss trade relations and the institutional, framework agreement,’ 2021. [4] Filippo Fontanelli (2023): The Law of UK Trade with the EU and the World After Brexit, King's Law Journal, DOI: 10.1080/09615768.2023.2187615. Further Readings [1] Steve Peers, ‘So Close, Yet So Far: The EU/UK Trade and Cooperation Agreement (2022) 59 Common Market Law Review 49. [2] Adam Łazowski, ‘Mind the Fog, Stand Clear of the Cliff! From the Political Declaration to the Post-Brexit EU-UK Legal Framework – Part I’ (2020) European Papers 1105. [3] Paul Craig, ‘Brexit A Drama, the endgame - Part II: trade, sovereignty and control’ (2021) 46(2) European Law Review 129. [4] G Van der Loo and S Blockmans, ‘The impact of Brexit on the EU’s international agreements’, CEPS Commentary (2016), available at https://www.ceps.eu/publications/impact-brexit-eu%E2%80%99s-international-agreements. [5] C. Kaddous, ‘Switzerland and the EU: Current issues and new challenges under the Draft Institutional Framework Agreement,’ in S. Gstöhl, D. Phinnemore, (eds), The Proliferation of Privileged Partnerships between the European Union and its Neighbours, Routledge, 2019. [6] P Van Elsuwege, ‘A New Legal Framework for EU UK Relations: Some Reflections from the Perspective of EU External Relations Law’ (2021) European Papers 785.