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In Search of Coherence in EU ForeignPolicyCesare PinelliPublished online: 20 Jun 2007.
To cite this article: Cesare Pinelli (2007) In Search of Coherence in EU Foreign Policy,The International Spectator: Italian Journal of International Affairs, 42:2, 277-284, DOI:10.1080/03932720701406621
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In Search of Coherence inEU Foreign Policy
Cesare Pinelli
Many years ago, US Secretary of State Henry Kissinger affirmed, half-jokingly, that he didn’t have a telephone number to call ‘‘Europe’’, thusdenouncing the EU’s inability to speak with a single voice in the field ofinternational relations. A European foreign policy has since then progres-sively emerged on a number of occasions, but it still requires morecoherence in its pursuit.This article argues that such coherence depends not only on political will,
given that the interests of the bigger member states are difficult to reconcilewith a common vision of the EU as a ‘‘global player’’, but also on theinstitutional framework of the Common Foreign and Security Policy (CFSP),as set down in the Treaty of European Union (TEU) in 1992. Many thinkthat, in spite of the division of tasks among diverse institutions providedin the TEU, a centre of influence and initiative has emerged aroundthe figure of the High Representative for CFSP, thus ensuring to a certainextent informal coordination in EU foreign policy. It will be argued that thisis indirectly confirmed by the provisions of the EU Constitutional Treatywhich introduce the figure of an EU Foreign Minister, entrusted with thepresent functions of the High Representative and the Commissioner forExternal Relations (the so-called ‘‘double-hatting’’ solution), together withthose of Vice President of the Commission. Finally, given the crisis in theConstitutional Treaty’s ratification process, attention will be drawn tothe proposals aimed at enhancing coordination in CFSP in the absence ofthe double-hatting solution, claiming that measures strengthening the HighRepresentative’s role are likely to be more effective in pursuing thatobjective.
Cesare Pinelli is Professor of Public Law at the University of Macerata and member of theExecutive Committee of the International Association of Constitutional Law (IACL);Email: [email protected].
The International Spectator, Vol. 42, No. 2, June 2007, 277–284 ISSN 0393-2729 print/ISSN 1751-9721 online� 2007 Istituto Affari Internazionali DOI: 10.1080/03932720701406621
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The CFSP institutional framework
The TEU distributes the main tasks relating to CFSP among the followinginstitutions:
� the European Council ‘‘shall define the principles and general guidelinesfor CFSP’’ and ‘‘shall decide on common strategies to be implemented bythe Union in areas where the Member States have important interests incommon (art. 13, para. 1 and 2);
� the Council shall take on that basis ‘‘the decisions necessary for definingand implementing the common foreign and security policy’’ and ‘‘ensurethe unity, consistency and effectiveness of action by the Union’’ (art. 13,para. 3);
� the Presidency of the Council ‘‘shall represent the Union in matterscoming within the common foreign and security policy’’ (art. 18);
� the Secretary General of the Council-High Representative for CFSP (HR)shall assist the Council ‘‘through contributing to the formulation,preparation and implementation of policy decisions and, when appro-priate and acting on behalf of the Council at the request of thePresidency, through conducting political dialogue with third parties’’(art: 26), and shall assist the Presidency of the Council in representingthe Union and implementing the related decisions (art. 18, para. 3);
� the Commission ‘‘shall be fully associated’’ with the work carried out inCFSP (art. 18, para. 4);
� the European Parliament shall be consulted by the Presidency ‘‘on themain aspects and the basic choices of the common foreign and securitypolicy’’ and ‘‘shall be kept regularly informed by the Presidency and theCommission of the development of the Union’s foreign and securitypolicy’’ (art. 21, para. 1).
This distribution reflects the traditional EU institutional structure, which ischaracterised by both intergovernmental and supranational features. But itdoes not favour coherence and efficiency in EU foreign policy. On the onehand, foreign policy needs ‘‘quick decision and action, whereas theCommunity method was essentially devised as a rule-making procedure’’.1
On the other hand, intergovernmental coordination is in itself biased by thefact that, while CFSP decisions ‘‘shall be taken by the Council actingunanimously’’ (art. 23, para. 1, TEU), the foreign policy of larger memberstates only occasionally coincides with that of the Union.Moreover, provisions of the TEU need to be reconciled with those of the
Treaty of the European Communities (TEC), which grant the Commission aleading role in the fields of trade and development cooperation with thirdcountries, to avoid overlap between the Council and the Commission in CFSPdecision-making and implementation.
1 Schoutheete and Wallace, ‘‘The European Council’’, 12.
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The growing influence of the High Representative
According to some scholars, the emergence of a centre of influence andinitiative around the figure of the High Representative for CFSP, Javier Solana,has partially altered the distribution of tasks provided for in the TEU.The positive perception of the HR and his political weight have drawn fromSolana’s proactive role in the process of establishing the European Securityand Defence Policy (ESDP). Actually modifying the provisions of theAmsterdam Treaty, his job description has changed from ‘‘assisting thePresidency’’ to ‘‘steering the ESDP’’, pushed forward by the new Politicaland Security Committee (COPS).2 Moreover, in representing the Union ininternational organisations and at international conferences, Javier Solana hasincrementally acquired a position that goes far beyond that of ‘‘assisting’’ thePresidency in this field.3 Some believe that the HR has actually limited theCommission’s margin of manoeuvre in the field of CFSP.4
Solana’s political skill has certainly helped him achieve these positiveresults, but the length of the HR’s tenure must also be taken into account.While the EC Treaty establishes that the Council Presidency changes everysix months (clearly a very short time for dealing with foreign policy issues),according to the EU Treaty, the HR is appointed by the European Council withno limitations on tenure. This is an institutional resource for the HR, bestowingparticular authoritativeness upon him.Could, then, the TEU provisions that give the HR the task of ‘‘contributing
to the formulation, preparation and implementation of policy decisions’’ beinterpreted as casting the HR as the ‘‘general manager’’ of CFSP? Caution isneeded in this respect. The developments mentioned earlier should not beoverestimated. TheHR’s role in coordinating European institutions andmemberstates is still likely to depend on political will – and even good luck. The cases ofthe Balkans, Iran, and the Israel/Palestinian issue demonstrate the variety ofmeans through which CFSP can be pursued according to the different interestsat stake5 – not to speak of Iraq, which is a case of non-EU foreign policy.Appropriate institutional devices are therefore deemed a necessary, albeit
not sufficient, condition for filling the persistent gap between the growingexpectations of Union performance in international affairs and its inefficientdecision-making and insufficient capabilities for action.
Double-hatting and the stand-by in CT ratification
The EU Constitutional Treaty (CT) attempts to achieve coherence in theforeign policy field by introducing important changes, such as the attribution
2Gussgen, Of Swiss Army Knives and Diplomacy, 3.3Martin and Lirola, ‘‘External Action of the European Union’’, 364.4 Durand, After the ‘‘annus horribilis’’, 18.5 See the detailed analysis of Crowe, Foreign Minister of Europe, 16.
In Search of Coherence in EU Foreign Policy 279
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of legal personality to the EU, the substitution of the European Council’srotating presidency with a permanent president, and the institution of adiplomatic service bringing Commission and Council staff together withnational diplomats.First and foremost, the CT introduces the figure of an EU Foreign Minister,
entrusted with the present functions of the High Representative and theCommissioner for External Relations, together with those of the Vice Presidentof the Commission. The Minister would work in and consequently accountfor different ‘‘modes’’, depending on whether the policy issue concernedentered the remit of the Commission or the formerly separate CFSP portfolio.Hence the term ‘‘double-hatting’’ usually given to this solution.While respecting the traditional combination of intergovernmental and
supranational elements,6 double-hatting aims to make CFSP progressivelymore coherent, and should per se improve coordination in this field. Yet, theForeign Minister would be expected to move in the ‘‘tangled web’’ of thecurrent CFSP institutional framework.7 New rivalries would be foreseeableboth with the President of the Commission, whose authority would be largelyshifted to the Minister appointed by the European Council and directlyanswerable to the Foreign Affairs Council, and with the President of theEuropean Council, held responsible – although ‘‘without prejudice to thepowers of the Minister’’ – for the external representation of the Union for aterm of two and a half years (once renewable).8
At any rate, the failure to ratify the CT in France and the Netherlands inSpring 2005 and the consequent ‘‘stand-by’’ of the whole ratification processhave changed priorities. Analysis of the CT’s provisions per se appear lessurgent today than an inquiry into whether, and to what extent, suchprovisions are compatible with those of the treaties in force. This isparticularly felt with regard to EU foreign policy. The paradox is that whileforeign policy played little or no role in the results of the French and Dutchreferenda,9 it is the field that has suffered the most from their failure, giventhe treaty’s significant innovations in CFSP.10
Hence the current hot debate on institutional developments in EU foreignpolicy, including the question of whether or not double-hatting can beconceived as the final result of the institutional arrangements set out by the EUtreaties in force.One caveat is needed in this respect. The debate is inevitably biased by
political expectations concerning the future of the entire CT. While somenational governments are reluctant to be seen as ignoring popular will with
6On this, see Pawel Karolewski, ‘‘Constitutionalization of Common Foreign and Security Policy’’,1650; and Pinelli, ‘‘Federal Features of EU Constitutional Treaty’’, 417 ff.7 Crowe, Foreign Minister of Europe, 5.8 On these potential contrasts, see Ibid.; Martin and Lirola, ‘‘External Action of the European Union’’,364; Pawel Karolewski, ‘‘Constitutionalization of Common Foreign and Security Policy’’, 1656.9 Ladzik, A Foreign Minister for Europe.10 Grant and Leonard, How to Strengthen EU Foreign Policy.
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regard to the CT as expressed in the French and Dutch referendums, others,which have not abandoned the hope of eventually ratifying the CT, fear thatinstitutional arrangements going in the direction envisaged by some of theCT’s provisions could lead to the rest of the text being abandoned.11
The Commission’s warning that the treaties in force do not allow for theappointment of a Minister of Foreign Affairs nor dual allegiance to the Counciland the Commission, aims exclusively at demonstrating the ‘‘costs of thenon-Constitution’’.12
The question of whether the treaties in force allow for steps involvingearly implementation, albeit only partial, of the arrangements provided forin the CT needs to be distinguished from considerations driven by politicalconcerns.
Proposals for enhancing coordination of CFSP tasks
To save the office of the Foreign Minister from possible failure, some scholarsbelieve that it is sufficient to redesign the HR’s formal link with the Counciland the Commission by means of an inter-institutional agreement.13
However, combining the positions of the HR and the External RelationsCommissioner in one person would come up against the provisions of Article213, para. 2, TEC, which prevents members of the Commission from engaging‘‘in any other occupation’’ and from seeking or taking instructions ‘‘from anygovernment or any other body’’. While the former provision could refer onlyto extra-institutional activities, especially in light of the Code of Conductbrought in during the Prodi Commission, the latter refers to institutionalconnections with bodies other than the Commission, including those of theEU – and this would indeed be the case of the HR, given the structural linkswith both the European Council and the Council of Foreign Affairs.Inter-institutional agreements introducing the double-hatting solution
therefore appear to be incompatible with the provisions of the treaties inforce. There is nothing to prevent us, however, from envisaging inter-institutional agreements and informal devices that aim at arriving at thatsolution from other angles.Proposals for enhancing coherence in EU foreign policy were put forward
by the ‘‘Europe in the World’’ Communication, presented by the Commissionto the European Council on 15/16 June 2006:
(a) coordination of the External Group of Commissioners (Relex Group)with the High Representative, by inviting the HR ‘‘to be associated withthe work of the Relex Group, particularly on strategic planning’’;
11 Ladzik, A Foreign Minister for Europe.12Commission of The EC, The Cost of the Non-Constitution, 6.13Martin and Lirola, ‘‘External Action of the European Union’’, 366; and Kurpas, What Could BeSaved?
In Search of Coherence in EU Foreign Policy 281
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(b) coordination of the Relex Group with the European Council and the HRthrough informal meetings held every six months ‘‘to undertake anoverview of the Union’s external action’’;
(c) extension to other fora of the experience of coordination in the Councilon the EU position between member states, the Presidency and theCommission, where the EU is already a member of UN bodies,multilateral and regional organisations;
(d) cooperation between EU institutions and member states throughvarious devices such as the exchange of personnel with the diplomaticservices of the member states and the staff of the Council Secretariat(which the Commission is already preparing), national diplomatictraining schemes to staff EU institutions working on external relationsissues, proposals from the Council and the Commission for the double-hatting of Heads of Delegations and EU Special Representatives inparticular areas such as the Western Balkans.
These proposals deserve consideration in that coordination is attempted notonly between the high ranks of the Commission and the Council, but alsobetween the related administrations and national diplomacies.However, instead of anticipating the double-hatting solution, the
Commission’s proposals actually seem to go backwards, once more tablingthe questions of who coordinates whom and for what purposes, which hadalready found answers in CSFP practice. Associating the HR to the workingsof the Relex presupposes that the Relex is the decisive CFSP seat – even for‘‘strategic planning’’. This presumption not only reflects a strategy thatappears to be the opposite of double-hatting, but also contrasts with boththe TEU provisions that allow the Commission to be ‘‘fully associated’’ withwork concerning CFSP, and the CT provision that clearly states that theCommission ensures the EU’s external representation outside of the field ofCFSP (art. 26-I).
An alternative approach to coordination
An alternative approach to coordination could be directly, or even indirectly,strengthening the HR’s role in respect of the treaties in force. Measuresrecently suggested by the Council could be seen as reflecting such anapproach:
� Briefing meetings and joint written contributions by the Presidency, theHR and the Commission should be scheduled regularly and, thus,institutionalised with respect to CFSP;
� A special agreement among member states could confer upon the HighRepresentative the power to give voice to any common position the EUworks out on issues being discussed both in the UN Security Council(as provided for by the CT) and in the meetings of COPS with NATO;
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� The Presidency should regularly entrust the HR with the task ofconducting political dialogue with third countries.14
Further suggestions in a similar vein concern the European External ActionService (EAS) envisaged in the declaration annexed to the CT. The EAS couldbe established through an agreement of the Council and the Commission,setting up the functional links between the structures required for such aservice and giving the HR the task of chairing the EAS.15
While being fully compatible with the Treaty, these measures requirecertain political conditions in order to be met. As further demonstrated by theEU’s recent response to the crisis in Lebanon, external relations instruments‘‘can be deployed coherently when the political will exists’’.16 The HR’sgrowing role in representing the EU abroad has also resulted, as mentionedearlier, from political cohesion among member states. The chances ofachieving coherence in CFSP therefore appear to be closely linked to the HR’sability to seize the occasions on which such cohesion exists for coordinatingEU institutions. Not vice versa.
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