Zoltán Massay-Kosubek

The dictionary is the only place where success comes before work.” ~Mark Twain

Followed by an interesting discussion in the European Parliament group, I decided to dedicate my next, short Blog Entry to a common, more general, but interesting question: Does Europe really need to speak always in one voice and therefore to have a truly common foreign policy?

Those who fully understand my point, do not expect a clear, straight answer, since it is not a question to be answered by a simple ‘Yes’ or ‘No’. The truth is likely hidden from our searching eyes and the most appropriate answer should begin with ‘It depends’.

Firstly, I know very well, that the representation of the EU in international insitutions is just one, and not obviously the most important sector of the EU’s foreign policy.

Secondly, let’s be clear: the treaty of Lisbon did not resolve the question, at all. In counterpart, it created even more confusion by giving more accentuated role to the High Representative. Some say that the Foreign Ministers pushed the Treaty of Lisbon through to be adopted before throughoutly reading it, since one of the effect was the growing power of the so-called common foreign policy to the Member States’ disadvantage.

To briefly summarize the current situation, there are 3 main groups of actors claiming the leading role in the representation of the EU:

1. The EU External Action Service (hereinafter referred to as EEAS)
2. The European Commission and
3. The Member States (‘ Foreign Ministers) lead by the Member State holding the rotating presidency (which is Denmark at the moment)
Why is the primary law of the Union so controversial in that matter?

I will shortly present, as an example, the legal background of a current competency dispute. By giving this special example, I will present one segment of the complexity of the situation.

The European Union has 2 main sources of primary law which are international treaties:

1. the Treaty on the European Union (the several redrafted version of the Treaty of Maastricht originally adopted in 1992, hereinafter referred to as TEU) and

2. the Treaty on the Functioning of the European Union (the several redrafted version of the Treaty of Rome originally adopted in 1958, hereinafter referred to as TFEU)

(Comment: People often say that “the Treaty of Lisbon lays down that…” which is not really correct. The Treaty of Lisbon only introduced the necessary modifications to the original texts of the Treaties. However, the Treaty of Lisbon only _modified_ the TEU and not only modified but renamed the Treaty establishing the European Community to TFEU. Therefore, the primary sources of the law of the Union are the TEU and the TFEU and not the Treaty of Lisbon, and from a legal point of view the text of the Lisbon Treaty does not prevail.)

Thus, some relevant articles of these legal texts are in contradicition in each other.

Paragraph 1 of Article 17 of the TEU lays down:
“1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”

Meanwhile, the Paragraph 3 of Article 218 of the TFEU lays down:

“3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.”

With that short overview of the legal situation there is clearly visible that ‘in special cases’ the TFEU gives the priority to the COM in other cases to the Council (=the Member States led by the rotating EU Presidency), not to mention the EEAS. Since the legal hierarchy between the TFEU and the TUE is not clear, yet, the final resolution of this competency discussion is still open.

As a consequence of the complexity of the EU, in some cases the competence of the EU and the Member States are clearly distinguished. However, in some special cases (and the international environmental related affairs such as the agreement on Mercury or in the public health international negotiations lead by WHO belong to those ‘special cases’) it is not clear at all, where can speak on behalf of the EU.

And since it is not clear, the usual results are endless internal negotiations, confusions, and either a completly empty ‘common position’ which could have been agreed upon by all EU player as a compromise or a cacophony of the EU players (EEAS, COM, MS) without having a unique voice.

After this long presentation, we reached the original question: does the EU need a single voice to speak?

Instead of giving clear answers, may I put forward 3 basic sub-questions to be answered before adressing the original question:

1. Who is eligible to speak on behalf of the EU in each single cases? The rotating presidency articulating the opinion shaped by the most influential EU Member States? Or the EEAS? Or the Commission?

2. What about the EU’s Membership (as an international organisation) in other international organizations (ex. UN, WHO, UNEP)? Sometimes, the EU has its separate membership in those organizations represented by the officials of EEAS but without having the right to vote, which make it at the same level as other international NGOs.

3. Is it really an absolute necessity to “speak in one voice” in every single cases? Would not be an extra advantage from communicational point of view if the same position was said not only by the EU represented by COM/EEAS/Presidency but also by other EU Member States [in line with the EU’s position] during the same session?

I remain at your disposal.

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Related earlier updates:

The EU-USA Agreement on the Use and Transfer of Passenger Name Records (PNR) to the US Department of Homeland Security

Thoughts on the Margin of the European Parliament’s Decision Concerning the Reports on the Negotiation of the EU-Azerbaijan and of the EU-Armenia Association Agreement

(Cover photo: Catherine Ashton © European Parliament audiovisual service)

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