External Relations and External Competence of the European Union: The emergence of an integrated policy
Title: External Relations and External Competence of the European Union: The emergence of an integrated policy
Author: CREMONA, Marise
Citation: Paul CRAIG and Graínne DE BÚRCA (eds), The Evolution of EU Law, 2nd ed., Oxford, Oxford University Press, 2011, 217-268
The objective of this chapter is to examine three inter-connected themes which have emerged in the evolutionary development of the Union as an international actor. The first theme relates to the relationship between internal and external powers and policies. The degree to which the Union’s external powers reflect or mirror internal competence is not only a question of their extent; it extends to the objectives and content of the policies pursued by the Union internally and externally; the nature or fundamental legal characteristics of the external dimension to the Union legal order. To what extent are external powers an extension of internal powers and objectives? The expansion of the scope and extent of the Union’s external powers (whether express or implied) has of course reflected not only the expansion of areas of activity internally but also the changing preoccupations of the Union, in particular as regards its place in the world. It is also true that external commitments and activity are having an increasing impact on the development of internal policies. As always within the Community and Union systems, issues of competence are intimately connected with both the inter-institutional and the institution–Member State balance of power. The second theme of this chapter traces how the classic approach to pre-emption, whereby the occupation of a field of legislative activity by the Community legal order excludes concurrent Member State competence, has given way to a wide acceptance of shared powers in external and internal spheres of competence, as well as the legal principles and structural solutions by which shared competence is managed. The emergent international identity of the Union and the factors that shape it form the third theme. A number of factors are at play here, including constitutional constraints on Union competence, the essential autonomy of the Union legal order within the wider context of international law and legal relations, the raised profile (and raised expectations) of the Union especially through the development of the Common Foreign and Security Policy, the complexity of relations between the ‘Pillars’ between 1993 and 2009 and the legacy of the Pillars present in the Union’s constitutional structure following the Treaty of Lisbon. The evolution of the Union as an effective international actor will depend on the emergence of sufficiently flexible and robust internal constitutional structures. Amid the angst over policy fragmentation, the failure of the Constitutional Treaty, and the lack of institutional cohesion, it is possible to see a process of integration in the formation of an international identity for the Union. The terms ‘integration’ and ‘identity’ are not, however, intended to imply a monolithic structure. Highly diverse patterns of decision-making, different power-structures between the actors involved (Member States, Commission, Council, European Council, European Parliament), the wide variety of (formal and informal, binding and non-binding) instruments used, the connections between external policies and between internal and external aspects of policies, are all elements of a complex multi-dimensional construction. The complexity and diversity are necessary but need to operate within a framework which manages to be both flexible and coherent, and this chapter will end by assessing some of the ways in which the most recent Treaty reform process responds to this need.
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