Obiettivi formativi
This course has the aim to present the way the European Union interacts with third countries and international organizations in the international community, considering its ‘sui generis nature’. Students attending the course are expected to have knowledge of the way the EU institutions work and of international law. The course will:
• provide an understanding of how the EU as a subject of international law act in the international arena to achieve the objectives of EU external action;
• provide an overview of the Treaty rules on the competence of the EU institutions to act in the field of external relations as well as of the instruments through which the EU interacts with third countries and participates in international organizations;
• examine how Member States act in the Council or the European Council and interact with the Commission and the Parliament to shape the EU external action;
• Examine the role of the Court of Justice in promoting respect of international law;
• focus on the EU’s main external policy fields: the trade policy, the European Neighbourhood Policy, the Common Foreign and Security Policy, including restrictive measures. The course will also present the challenges posed by the enlargement for the EU, a policy field with implications for the EU external action.
Prerequisiti
The course presumes knowledge of international law and of EU institutional law as well as a basic understanding of the EU legal remedies.
Risultati di apprendimento attesi
After following this course the student will:
• Have a critical understanding of the powers that the Council, the Commission, the High Representative of the Union for the Foreign Affairs and Security Policy and the Parliament have to shape the EU’s external action and of the role that the EU Court of Justice has in influencing the development of the EU external action;
• Have a critical understanding of the legal instruments which can be used to shape the external action;
• Be able to identify who can speak on behalf of the Union in the EU’s external action;
• Have a critical understanding of the complex relation between the EU institutions and the EU member States in managing the EU external action and on the implications of the duty of loyal cooperation;
• Have an understanding of the special relations between the EU and European countries that are candidates to EU membership and of the relations between the Union and its neighbours
• Examine the EU’s engagement with non-self-governing territories in third countries of the EU neighbourhood and the way the EU ensures to act in line with international law.
Contenuti Del Corso
The course will examine the objectives of the EU external action, the legal personality of the Union and the way the EU institutions, the European External Action Service and the Member States interact with third countries; the way the Treaty making powers are exercised and the procedure leading to the adoption of international agreements will be examined; the use of mixed agreements and of ‘EU only agreements’; the way the EU ensures respect of international law, the constraints under which the EU operates, considering that it is a ‘sui generis’ international organization, which can only act within the powers attributed to it by its Member States. Emphasis will be placed upon specific examples of EU external relations practice across a range of the following policy fields: trade policy, the European Neighbourhood Policy and the enlargement and the Common Foreign and Security Policy. The following topics will be covered in the course:
1. The legal nature of the EU and the objectives and principles of the EU external action
2. The EU competences and the external representation of the EU in international organizations
3. The Treaty making power, the exercise of the EU external competence and situations in which the EU has exclusive powers to conclude international agreements
4. The procedure to conclude international agreements in CFSP and in areas different from CFSP. The wide use of the mixed agreements
5. EU common commercial policy: objectives, scope and challenges in light of the WTO crises
6. EU common commercial policy: unilateral measures and the challenges posed by China
7. The EU’s engagement with non-self-governing territories in third countries of the EU neighbourhood
8. The EU and candidate countries
9. The EU and its relations with European countries not interested in acceding to the EU
10. The Common Foreign and Security Policy and its challenges
11. Restrictive measures
12. The Common Security and Defence Policy missions
Testi Di Riferimento
Relevant materials will be uploaded on the e-learning platform. The following are general reference works for the course:
[1] G Butler and RA Wessel (eds) EU External Relations Law: The Cases in Context, Hart Publishing 2022.
[2] M Cremona and B de Witte, EU Foreign Relations Law – Constitutional Fundamentals, Hart Publishing 2008.
[3] P Eeckhout, EU External Relations Law, 2nd ed OUP 2011.
[4] I Bosse-Platière and C Rapoport (eds) The conclusion and implementation of EU free trade agreements: constitutional challenges, Edward Elgar 2019.
[5] 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.
[6] PJ Kuijper, J Wouters, F Hoffmeister, G de Baere & T Ramopoulos, The Law of EU External Relations - Cases, Materials, and Commentary on the EU as an International Legal Actor, 3rd ed OUP 2021.
[7] N. Levrat, Y. Kaspiarovich, C. Kaddous and R. A. Wessel (eds), The EU and its Member States’ Joint Participation in International Agreements, Hart Publishing 2022.
[8] Ramses A Wessel & Joris Larik (eds), EU External Relations Law - Text, Cases and Materials, Hart Publishing 2020.
[9] Sanderijn Duquet, EU Diplomatic Law, OUP 2022.
Metodologie Didattiche
Class attendance is compulsory. The course will be taught through a combination of lectures and interactive class discussion, based on the discussion of case studies, case law and reading materials. Students will receive in advance the relevant reading materials to prepare for classes. Lectures will provide the general framework for understanding the topics and class discussion will help the development of critical skills. Students must be prepared to discuss actively in class and to present the assigned reading materials to the class.
Modalità di verifica dell'apprendimento
The final exam for students attending the course will consist in the submission of a paper (2500 words max.) on a topic previously agreed with the course teacher, which will be discussed orally.
Points will be allocated as follows:
• 70% final paper
• 30% oral exam
The assessment criteria for the final paper will be the following:
1. Relevance to the question
2. Demonstration of understanding of the field
3. Organisation and structure of the answer
4. Evidence provided and its effective use (e.g., case law; scholarship)
5. Originality of treatment and ideas
6. Bibliography
A mid-term exam will be a formative work, aimed at practicing for the writing of the final paper.
Non-attending students will be assessed on the course materials either in a written exam or through a timed essay.
Criteri per l’assegnazione dell’elaborato finale
Essay topics 2024
Examples
1.‘How does the EU promote sustainable developments in its trade relations? The case of the ‘sustainable Development Chapters in EU Free Trade Agreements:’
2. ‘In recent post 2008 practice, EU bilateral trade agreements are precluded to have direct effect. This practice contrasts with the traditional silence of EU bilateral agreements over the effects of their provisions within the national legal order of the contracting parties. What are the main reasons for this shift?’
3.‘Does the EU respect the principle of people’s self-determination? Does it act consistently with its objective of promoting respect of international law?’
4.‘Does the EU respect human rights in its trade relations: the case of the EU-Vietnan trade agreement?’
5.‘The ruling on the status of Kosovo in the case law of the ECJ: C-632/20 P, Spain v Commission.’
6.‘The Global Gateway and its objectives: could it be considered an instrument to counter the Chinese Belt and Road Initiative?’
7.‘How does the EU ensure that authors of crimes in Ukraine are brought to justice?’
8.‘Read Council Decision (CFSP) 2021/509 setting up the European Peace facility. What is the purpose of this instrument? How is the Facility funded? Are all Member States bound by this Decision? Why was the financial ceiling of this Facility increased? Which third country benefited from an assistance measure under this Facility? What is the assistance measure in question? How can the assistance measure be acceptable for Member States whose defence policy has a ‘specific character’ (art. 42(2)TEU)?’
9. ‘Read Case C-364/10 Hungary v Slovak Republic concerning the right to move within the territory of the Member States for a Head of State (the President of Hungary) and Diplomatic relations between Member States. You should: (a) briefly summarise the case and the issues raised by the parties to the case; (b) comment on the judgment of the Court of Justice: what was the main ruling in the case and what arguments the Court used; to what extent did the outcome of the case reflect the views of one or other party? (c) explain the significance of the case for the development of EU external action (data case-note).’
10.‘In the Lisbon Treaty there is a persistent legal duality between the CFSP and non- CFSP policies. How has the Court of Justice reduced the differences between CFSP and non-CFSP?’
11. ‘After 2016 the EU has sought to achieve strategic autonomy, which implies reducing dependence from others. Describe and comment the content of two pieces of EU secondary law (or Commission’s proposals) that are designed to achieve this objective.’
12. ‘What are the advantages of disadvantages for the EU of enacting restrictive measures independently of the UN?’
13.‘The EU’s position on Azerbaijan’s attack to Nagarono-Karabak’
14. ‘The EU-Swiss relations: causes and consequences of the failure to conclude the Institutional Agreement (InstA)’
15.‘What is an international agreement? Define the legal issues arising out of the case-law of the Court of Justice.’
16.‘Does the European Cour of Justice have competence on settlements of disputes on borders between Member States: the ruling of the Court in case C- 457/18, Republic of Slovenia v Republic of Croatia.’
17.‘Legal problems arising from the conclusion of informal agreements by the EU.' Why does the EU rely on informal agreements rather than on formal agreements? What is the procedure that is followed to conclude international agreement? Describe the EU memorandum with Tunisia of 2023 as an example of informal agreement.’
18. ‘Is the EU consistent in its reaction to the terrorist attack in Israel (7th October 2023) and to war in Gaza? Reflections on the position of the EU member States in the UNGA and UNSC.’
Settimana 1
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 organizations. 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 (Article 47 TEU) as of the Lisbon Treaty; 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 (art. 5(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 art. 21(2) TEU includes: (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 the 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) assist populations, countries and regions confronting natural or man-made disasters; (h) promote an international system based on stronger multilateral cooperation and good global governance.
The EU also aims at promoting ‘multilateral solutions to common problems’ (art. 21(1) TEU).
Questions
1. Is there a hierarchy amongst the objectives of the Union of art. 21 (2) TEU?
2. Can you find in chapter 2 title V of the TEU or in Part V of the TFEU the specific legal bases (Treaty provisions) that detail the procedures that EU institutions should follow to achieve the objectives listed above?
3. How does the EU promote multilateralism in the context of its relations with EU neighbours?
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] M Cremona, ‘The ENP and multilateralism,’ in S Poli, The European Neighbourhood Policy: values and principles, Routledge, 2016, p. 81-98.
Settimana 2
2. The EU competences and the external representation of the EU in international organizations
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 art. 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 (art. 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.
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 (art. 34 TEU).
Who represents the Union in international organizations depends on: a) whether the Union is part of the IO. Who can speak on behalf of the Union depends on the policy field in which a common position must be taken. The policy field may fall within exclusive, shared, parallel or the CFSP. The EU and its Member States internally decide how to coordinate to represent their position in the I.O.
Questions
1. Who represents the Union abroad in its entirely?
2. What is the difference between an EU office and an EU delegation?
3. Which institutions ensure the external representation of the Union in international organizations?
4. What role does the rotating Presidency of the Council play in the external representation of Union on the basis of the EU Treaties?
5. Suppose that the EU cannot be part of an international organization (‘IO’) whose membership is reserved to States (there are no RIO clauses in the agreement establishing the IO). This international organization promotes the adoption of an international convention which covers EU and Member States’ competences, can Member States accede to this convention on behalf of the Union if the convention covers matters of EU exclusive competence? Can Member States accede to this convention on behalf of the Union if the convention covers matters of shared competence?
Readings
[1] Art. 17(1) TEU; Art. 2-6 TFEU; art. 221(1) TFEU.
[2] T. Ramopoulos, J. Wouters, The EU institutional structure, Part VI The External Relations of The Union, in R. Schütze, T. Tridimas, Oxford Principles of EU law, 2018, Oxford University Press, only pages 1067-1108.
[3] 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.
Settimana 3
3. The Treaty making power, the exercise of the EU external competence and situations in which the EU has exclusive powers to conclude international agreements
Art. 216 is the provision defining the Treaty making power of the EU while art. 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 art. 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. Art. 3(2) TFEU defines the circumstances under which the EU has exclusive powers to conclude an agreement in addition to those listed in art. 3(1) TFEU.
Questions
1. Compare art. 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 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 3(2) and 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.
[4] C-24/20 Commission v Council (Geneva Act), 22 November 2022.
Further readings
[1] M Cremona, ‘EU External Competence – Rationales for Exclusivity’ in S Garben and I Govaere (eds), The Division of Competences between the European Union and its Member States: Reflections on the Past, Present and Future, Hart Publishing 2017.
Settimana 4
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 (art. 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. art. 219 TFEU), CFSP matters (art. 37 TEU) and the withdrawal agreement of an EU Member State from the EU (art. 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, points 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 non CFSP and CFSP 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 European Union and in part within the Union’s shared competence.
Questions
1. How does the use 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 fail 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?
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] G Van der Loo, RA Wessel, 'The non-ratification of mixed agreements: Legal consequences and solutions' (2017) 54 Common Market Law Review, 735.
[6] 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.
Settimana 5
5. EU common commercial policy (CCP): objectives, scope and challenges in light of the WTO crises
As M. Cremona states: ‘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. Should the EU Member States withdraw from the Energy Charter Treaty or should they support the modernisation of this Treaty?
Readings
[1] Articles 3(1), Art. 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] Mattia Colli Vignarelli, ‘The European Commission Trade Policy Review: The Effectiveness of Sustainable Development Chapters in EU FTAs’ European Papers, Vol. 6, 2021, No 1, European Forum, Highlight of 29 March 2021, pp. 1-5.
[4] European Parliament resolution of 24 November 2022 on the outcome of the modernisation of the Energy Charter Treaty.
For the current state of FTA agreements and negotiations, see:
[5] https://policy.trade.ec.europa.eu/eu-trade-relationships-country-and-region/negotiations-and-agreements_en
[6] Commission Report on Implementation and Enforcement of EU Trade Agreements, COM(2022) 730 final, 11 October 2022.
[7] Commission Communication, ‘Trade Policy Review: An Open, Sustainable and Assertive Trade Policy’ 18 February 2021, COM (2021) 66 final.
[8] European Commission, ‘Global Europe: competing in the World’, COM (2006) 567 final, 4 October 2006; European Commission, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’, COM (2010) 2020 final, 3 March 2010; European Commission, ‘Trade for All’ (2015).
Further readings
[1] 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.
Settimana 6
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.’ Joint communication to the European Parliament and the Council - Elements for a new EU strategy on China Join (2016) 30, p. 7. Consider the picture of the EU external relations described in 2016 and examine how the EU-China relations have developed after 2016.
Questions
1. What does open ‘strategic autonomy’ mean?
2. What is the aim of 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] M Damen, European Parliament research service, EU strategic autonomy 2013-2023 From concept to capacity, 2022.
[5] 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.
[6] 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.
Further readings
[1] S Blockmans, The EU’s New Trade Policy: An Autonomous Assertion of Strategic Objectives? October 2021
[2] 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.
[3] European Commission Communication, ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ COM (2015) 497 final.
[4] 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:
[5] https://www.whitecase.com/insight-alert/eu-releases-its-second-annual-fdi-report-showing-increased-momentum-fdi-regulation
[6] V Kube, EU Human Rights, International Investment Law and Participation: Operationalizing the EU Foreign Policy Objective to Global Human Rights Protection (Springer 2019).
[7] S Velluti, The Role of the EU in the Promotion of Human Rights and International Labour Standards in Its External Trade Relations (Springer 2020).
Settimana 7
7. The EU’s engagement with non self governing territories in third countries of the EU neighbourhood
EU’s action in support of the state’s territorial integrity in case a state does not have effective control over its territory: the EU does not recognise self-proclaimed independent regions (Abkhazia and South Ossetia–of Georgia) or Crimea–which considers it 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. What is the position adopted by the EU vis-à-vis Nagorno Karabakh?
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 (C-386/08, Firma 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).
In order to respect the right of self determination recognized to the territory 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 the 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. How convincing is the EU’s position?
Questions
1. Read case Joined Cases T-344/19 and T-356/19. Why did the General Court annulled the decision concluding the EU fishery agreement with Morocco?
2. Compare the position of the EU vis-à-vis Palestine and Western Sahara. What are the differences and how can you explain them?
3. Read Case C-363/18, Organisation juive européenne, Vignoble Psagot Ltd v. Ministre de l’Économie et des Finances, Judgment of the Court of 12 November 2019. The case is about mandatory labelling requirements for products having their origin in territories occupied by Israel (settlements situated in territories occupied by the State of Israel, namely the Golan Heights, the West Bank and East Jerusalem).
Readings
[1] Case C-386/08, Firma Brita GmbH v Hauptzollamt Hamburg-Hafen, ECLI:EU:C:2010:91.
[2] Case C-363/18, Organisation juive européenne, Vignoble Psagot Ltd v. Ministre de l’Économie et des Finances, Judgment of the Court (Grand Chamber) of 12 November 2019.
[3] Joined Cases T-344/19 and T-356/19, Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario) v. Council, judgement of the General Court of 21 September 2021.
[4] N. Ghazaryan, The EU and the Nagorno-Karabakh Conflict: The Forty-Four-Day War and Its Aftermath, in European Foreign Affairs Review, 28 (2023) 1, p. 53-71.
Settimana 8
8. The EU and candidate countries
Albania, Bosnia and Herzegovina, Moldova, Montenegro, North Macedonia, Serbia, Turkey and Ukraine and Kosovo are candidate states. Ukraine has been granted candidate status in June 2022. Moldova and Georgia have candidate status with conditions. Turkey is a candidate country whose European perspective is frozen. Kosovo applied for EU membership in December 2022.
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 satisfied all admissibility criteria?
3. Why was European Political Community was created? What purpose does it serve?
4. 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?
5. Read case C-632/20. What is the difference between a “third country” and “third State”?
6. 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] Commission Opinion on Ukraine’s application for membership of the European Union, COM (2022) 407,
[4] Communication on EU Enlargement Policy COM (2022) 528, 12 October 2022, read pp 1-8.
[5] Guest Editorial “Accession through war” – Ukraine’s road to the EU, (2022) 59 Common Market Law Review 1289.
[6] R. Petrov, How the European Political Community Could Support the Accession of Ukraine to the EU, VerfBlog, 2022/12/22, https://verfassungsblog.de/how-the-european-political-community-could-support-the-accession-of-ukraine-to-the-eu/
[7] European Council conclusions 23-24 June 2022
[8] https://www.eeas.europa.eu/eeas/belgrade-pristina-dialogue-eu-proposal-agreement-path-normalisation-between-kosovo-and-serbia_en
[9] Case C-632/20 P Kingdom of Spain v European Commission (Kosovo), para. 37-47.
Further readings
[1] C. Hillion, The Copenaghen 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 Haakon A. Ikonomou, Aurélie Andry, Rebekka Byberg (eds), European Enlargement across Rounds and Beyond Borders, Routledge 2017.
Settimana 9
9. 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 did the EU request Switzerland to negotiate the Institutional Framework Agreement? Why were the negotiations stopped?
Readings
[1] 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.
Further Reading (on other neighbours)
[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] Peter Van Elsuwege, ‘A New Legal Framework for EU UK Relations: Some Reflections from the Perspective of EU External Relations Law’ (2021) European Papers 785.
Settimana 10
10. The Common Foreign and Security Policy
The CFSP is an area of EU competence subject to special rules and procedures (art. 24(1) TEU).
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?
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.
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.
Settimana 11
11. EU restrictive measures
The most important CFS measures in quantitative terms are decisions instituting restrictive measures. The Union has competence to impose restrictive measures (sanctions) to interrupt or reduce economic and financial relations with one or more ‘third countries’ (Article 215(1) TFEU) and to address targeted sanctions ‘against natural or legal persons and groups or non-State entities’ (Article 215(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. 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 (art. 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?
3. In a recent of 2020 (Case C-872/19 P Venezuela v Council) the ECJ held that third countries qualify as ‘legal persons’ under international law and therefore they have standing to seek the annulment of CFSP Decisions. How do you assess this judicial development?
Readings
[1] Art. 29 TEU, Articles 215, 275 and 263(4) TFEU
[2] T-152/22 RT France, 27 July 2022
[3] C-872/19P Venezuela v Council, 22 June 2021
[4] Proposal for a Directive on asset recovery and confiscation, COM (2022) 245.
[5] 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.
[6] EU Council, Basic Principles on the Use of Restrictive Measures (Sanctions), June 2004.
[7] EU Council, Guidelines on the implementation of sanctions, May 2018.
[8] 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.
[9] Y. Miadzvetskaya, C. Challet, ‘Are EU restrictive measures really targeted, temporary and preventive? The case of Belarus’ [2022] 6(1): 3, Europe and the World: A law review.
[10] S. Poli, ‘The EU and US Global Human Rights Sanction Regimes: Useful Complementary Instruments to Advance Protection of Universal Values? A Legal Appraisal,’ E. Fahey (ed.), Routledge Handbook on Transatlantic Relations, due to publication.
Settimana 12
12. The Common Security and Defence Policy missions
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.’
The CSDP is part of the CFSP; it 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(1) TEU) – the so-called Petersberg Tasks 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). (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
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; what are its 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, p. 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.
[4] General Secretariat of the Council, A Strategic Compass for Security and Defence - For a European Union that protects its citizens, values and interests and contributes to international peace and security, 21 March 2022, https://data.consilium.europa.eu/doc/document/ST-7371-2022-INIT/en/pdf
Further readings
[1] P Koutrakos, The EU Common Security and Defence Policy, Oxford University press, 2013.
[2] S Ø Johansen, Case Study: The EU’s Common Security and Defense Policy Missions, in S Ø Johansen, The Human Rights Accountability Mechanisms of International Organizations, Cambridge University press, 2020, p. 119.