«RAMSES A. WESSEL Professor of the Law of the European Union and other International Organizations, Centre for European Studies, University of Twente, ...»
It is beyond the scope of this paper to discuss the exact arrangements as to when a statement should say “on behalf of EU”, or “on behalf of the EU and its Member States” (Council of the European Union 2011), though it is truistic to state that such is hardly the core-business of multilateral diplomacy – the substance of the single message being of central importance. What is then notable in light of the single message is that even when there is agreement that the EU shall present a statement on its own behalf, according to the arrangement, still, “Member States may complement statements made on behalf of the EU whilst respecting the principle of sincere cooperation.” (Council of the European Union 2011) This statement is rather troubling diplomatically and legally: Diplomatically, the utility of a Member State also taking the microphone to repeat what the EU delegate has just said (since the duty of cooperation in Article 4 (3) TEU would not allow that Member State to say anything that contravenes it), seems rather futile. In international diplomacy one may certainly consider it useful that specific Member States with specific skills, knowledge, or historically good diplomatic relations ‘back up’ and strengthen ‘EU’ action, but this is not what is envisaged by this arrangement: it concretely implies that Member States should still be allowed to repeat the same message of the Union, largely for the visibility of their own foreign (etc.) minister.
2.2 An Implied Expansion of EU Competences?
One example may further illustrate the concrete impact of this rigid interpretation of Union competence and legal personality from the perspective of unified diplomatic representation. It also shows the apparent willingness of some Member States to back-track what could be gained from the Lisbon Treaty in terms of unified EU diplomatic representation.
On 22 February 2012, the Council adopted a Decision concluding the “Memorandum of Cooperation between the European Union and the International Civil Aviation Organisation providing a framework for enhanced cooperation, and laying down procedural arrangements related thereto.”6 The Commission had proposed the negotiation of this Memorandum in June 2009, and it was authorized to do so by the Transport Council in Opinion of Advocate General Maduro, Case C-246/07 Commission v. Sweden (Stockholm Convention on persistent organic pollutants), 1 October 2009, para 49 & 56.
Council Decision on the conclusion of a memorandum of Cooperation between the European Union and the International Civil Aviation Organisation providing a framework for enhanced cooperation, and laying down procedural arrangements related thereto, DOC 5560/12, Brussels, 22 February 2012 December 2009, with the final document being initialled in September 2010. The purpose of this document is to ensure deep EU involvement in a multilateral organization of which it is not a member, but where it has significant competences.
This is essentially the situation at issue in Opinion 2/91, where due to absence of EU membership in the International Labour Organization, the Court stated that Member States owed a close duty of cooperation to the Union to ensure adequate representation of the common “Union interest” (Opinion 2/91). And the Union certainly has a strong legal and political interest to be represented in a singular fashion before the ICAO. Through the completion of the internal aviation market by the mid-nineties, as confirmed by the Open Skies judgments of 2002 (Holdgaard 2006), many of the aspects on civil aviation covered by the 1944 Chicago Convention (safety, security, environment and air traffic management) fall within the scope of EU competence through the application of the ERTA doctrine (Van Vooren, 2011b). In keeping with this reality, the EU-ICAO memorandum essentially sets out a regime of closer cooperation through the reciprocal participation in EU and ICAO consultative processes, joint mechanisms for regular dialogue, information sharing through databases, and so on. From the perspective of the EU Member States, supporting the EU in achieving its Treaty objectives through such a Memorandum in an organization of which it is not a member, is indubitably an expression of their duty of loyalty towards the Union
embedded in Article 4 (3) TEU.7 The response of the United Kingdom was the following:
"The UK will be abstaining on the Decision on Conclusion of a Memorandum of Cooperation between the European Union and the International Civil Aviation Organisation. The UK recognises the benefits of the Memorandum of Cooperation, but attaches great importance to the principle of Member State sovereignty in international organisations. The UK is cautious about any measures and processes which could eventually lead to a change of the distribution of competences between the EU and Member States. We would wish to convey these concerns by abstaining on this Decision."8 The source of this abstention is the UK’s more general suspicion towards a common EU diplomacy (or the EU as such), as is clear from the House of Commons’ EU scrutiny committee travaux préparatoires (European Scrutiny Committee 2011). Here we see that the UK government considered that an effect of this agreement could be to “eventually lead to the Commission securing overall competence in ICAO matters through full membership of the organisation”. For that reason the Scrutiny Committee argued that thus an abstention would not suffice, and that the UK ought to vote against in Council because it considered the Commission’s guarantees against competence creep insufficient. Namely, that institution had submitted that the proposal was not intended to affect relations between individual Member States and ICAO, nor that it was to affect the arrangements for preparing EU positions for meetings of the ICAO Council.The UK thought that insufficient, and while a negative vote was thought too far-reaching, the Minister of State Department of transport replied that “it is Opinion 2/91, 'Convention No 170 ILO on the safety in the use of chemicals at work',  ECR I-1061 Council Decision of 22 February 2012, o.c., at 3.
necessary to put down a marker that the UK is concerned about the principle of Member State sovereignty in international organisations and cautious about any proposals which appear to enhance the role of the EU at the expense of Member States.” Because the legal basis of this Decision is Articles 100 (2) io 218 (6) TFEU, the Council adopts this decision by qualified majority and the adoption of the ICAO Memorandum is not blocked. However, it points to a road in EU external representation which ought not to be taken. A close look at the substance of the Memorandum of Cooperation shows that it is ‘procedural’ in nature, by establishing forms of closer cooperation between the EU and the ICAO in areas where it already possesses competence. It thus does not ‘expand’ EU competence in scope or substance, and one might query what would be the on-the-ground consequences of this ‘abstention’? In application of QMV it is normal that certain Member States may be outvoted, but the explicit adoption of this statement cannot be permitted to have any further consequences. Indeed, the UK remains bound by the duty to cooperate loyalty embedded in Article 4 (3) TEU: “The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.” Thus, in practice the UK must actively support EU activities in Montréal to implement this Memorandum of cooperation, and may not undertake any action that would hamper its implementation. Time must now tell whether that will be the case, but the blockage of EU presence in other multilateral fora in 2011 does not bode well.
3. Diplomatic visits by top EU political representatives: separate roles of the EEAS, EU Delegations and the Commission.
The issue of competence as a challenge to the EU’s diplomatic representation is equally exemplified by the procedures relating to visits, missions and meetings of the Commissioners or the High Representative with third countries and international organisations – part and parcel to international diplomacy. The decision on the need for such visits, their preparation as well as their execution is rather complex within the Union, due to the co-existence of many ‘high level political faces’ of the Union, and notably the co-existence of the Commission and EEAS each with their own international relations responsibilities (Arts 17 and 27 io. 18 TEU). In January 2012 the EEAS and Commission agreed a ‘working arrangement’ in implementation of Articles 3 (3) and 4 (5) of the EEAS Council Decision (European Commission 2012), which duly illustrates the coordinative challenges of having two distinct actors with a significant and similar role in the single diplomatic task of external representation at the highest political levels. In legal terms, the procedures agreed in case of such visits is the expression of the duty of cooperation embedded in Articles 4 (3), 13 (2) and 24 TEU, as explicitly reiterated in Article 3 (2) of the EEAS Council Decision (Van Vooren 2011a): “The EEAS and the services of the Commission shall consult each other on all matters relating to the external action of the Union in the exercise of their respective functions, except on matters covered by the CSDP. The EEAS shall take part in the preparatory work and procedures relating to acts to be prepared by the Commission in this area.”9 The Working arrangement’s rules on cooperation in the case of
visits and missions are set out in four paragraphs:
1) Ensuring that relevant EEAS and Commission services are properly informed about planned visits and missions.
2) Establishing the role of EU Delegations in such visits.
3) Establishing the role of the EEAS and the Commission in visits of commissioners and the HR/VP’s visits and missions.
4) Establishing competence boundaries for the EEAS and Commission officials in multilateral contexts during such visits.
The first point is that of intra-EU information about impending visits. Namely, when a Commissioner will visit a third country or international organization, the relevant Commission services “shall inform” the EU delegation and the EEAS country desk of such a visit for which they are responsible (European Commission 2012). This does not contain reciprocity however, and thus the EEAS must not inform Commission services of visits by the HR/VP. This is no coincidental omission, as that same first paragraph does state that “information about the HR/VP’s and Commissioners’ missions shall also be communicated to [the Secretariat General, Directorate F3 on relations with the EEAS] which is maintaining a strategic planning calendar of missions and meetings.” We may of course query whether reciprocity in this regard would even be necessary, given her CFSP focus? However, should for the HR/VP visit the Palestinian Authority for example – as she has regularly done in the past – DG DEVCO would certainly have an interest in direct information about such as visit by the HR/VP.10 Undoubtedly, in practice, Commission development staff would come to know about such visits through staff at relevant EU delegations, the internal calendar, or other day-to-day contacts, but the formal absence of reciprocity in the Working Arrangement is nevertheless telling of competence sensitivities. The principle in the Arrangement seems to be that the EEAS, a structure set up on a legal basis within the TEU’s articles on CFSP (Art. 27 (3) TEU), ought not inform Commission services of missions conducted by its top officials.
The second paragraph of the Working Arrangement focuses specifically on EU Delegations stating that they “will provide all necessary support for the organisation of visits or missions to the countries or IO’s for which they are responsible. They should be consulted in advance on the aim, content and timeliness of visits/and or demarches.” These consultations are indeed crucial, and importantly, the Working Arrangement is silent on whose visits they should be consulted upon – which is positive. On the basis of the EEAS’ tasks as described in Article 2 of the EEAS Decision, we can thus assume that it concerns both Commissioners, the HR/VP, but also the President of the European Council. From the perspective of diplomatic ambitions, the working Arrangement is then laudable as it gives a crucially “embassy”-like role to the EU Council Decision 2010/427/EU of 26 July 2010 establishing the organization and functioning of the European External Action Service, O.J. 2010, L 201/30, 3 August 2010 See for example: Statement by High Representative Catherine Ashton following her meeting with the President of the Palestinian Authority, Mahboud Abbas, Brussels, 14 December 2011, A 514/11 delegations. The fact that this second paragraph is formulated ‘in the abstract’ is then arguably significant: there is no reference to specific competence-related limitations, but EU delegations are expected to act as the proverbial one-stop-shop with important influence on visits and missions by EU representatives.