External competences and the principle of conferral

Abstract

This chapter offers some reflections on the relationship between the Union’s express and implied external competences by examining them in the light of the principle of conferral of powers, one of the most fundamental of the principles which structure the EU’s external relations. Since the landmark decision in Commission v Council (AETR), the evolution of implied powers has been one of the defining features of EU external relations law, scholarship focusing on the basis and scope of implied external powers, their relation to internal powers, and the conditions under which an implied external power may be declared exclusive. The consolidation of the AETR line of case law in the Treaty of Lisbon, in particular in Articles 3(2) and 216(1) TFEU, as well as the development of practice and law since the Treaty of Lisbon came into force invite us to rethink the relationship between express and implied powers. This relation has implications for the principle of conferral. Although implied powers might seem to put some strain on that principle, in fact their connection with the Treaty’s internal competences and legislation adopted in furtherance of those objectives provides an identifiable Treaty- based rationale for external action. Express external competences, on the other hand are in themselves a conferral of powers. Their open- ended nature is designed to allow the Union to develop as an external actor, evolving its objectives and priorities in line with the Treaty- based objectives and principles governing all external action, but with considerable scope for institutionally- defined policy choice. The principles governing the process whereby such policy choice is made— including the principle of conferral as it is applied to the individual institutions— are therefore all the more important.