Suchergebnisse

Since the Conclusions of the European Council on the Area of Freedom, Security and Justice (AFSJ) at Tampere in 1999 the Union has recognised the significance of the external dimension to this policy field, and over the last decade the Union's activity in this field has both intensified and broadened to include not only migration, border management and asylum but all aspects of the AFSJ, ranging from counter-terrorism to civil procedure. Although the scope of external action reflects the fragmentation of the subject matter and the AFSJ lacks an easily identifiable policy objective, there are ways in which we can identify certain common elements in the approach to external AFSJ policy, in particular in managing the relationship between different actors. This paper seeks to explore some of these distinctive elements; its purpose is to set out some of the particular legal features of external AFSJ policy. First, to examine the basis for and the scope of external competence given that there is no explicit provision in the EC Treaty for external action in the field. Second, the legal implications of the inter-pillar nature of the AFSJ: the consequences this has for the types of instrument available to the Union and the legal constraints imposed by the need to 'police' the boundary. And finally the paper explores the relationship between Union / Community action and Member State action: the possibility of exclusive Community competence, the mechanisms developed to manage shared competence and the additional complexity created by the varying 'opt-outs' for some Member States.

The following Report will be presented to the 22nd FIDE Congress to be held in Limassol, Cyprus, 1-4 November 2006. It has been prepared in response to a questionnaire devised by the General Rapporteur, Professor Piet Eeckhout, which is reproduced as an Annex. It seeks to do two things: first, to respond to the questions and issues raised by the General Rapporteur, and second to comment on some issues and recent developments which are particularly relevant to the relationship between the European Union and its Member States in the external relations field. These include the obligation on Member States when exercising their own external competence to comply with their Community law obligations, including procedural obligations; issues relating to choice of legal base for external action, and in particular the impact of the pillar structure when characterising EU external action; international responsibility under mixed agreements; and the relationship between international law and EU law.

This paper will appear in Genèse et Destinée de la Constitution Européenne Commentaire du traité établissant une Constitution pour l'Europe à la lumière des travaux préparatoires et perspectives d' avenir edited by Giuliano Amato, Hervé Bribosia and Bruno De Witte. It seeks to assess, on a selective basis, the provisions in the Constitutional Treaty which relate to the Union's external action. In doing so it considers issues of consistency, competence, the partial integration of the pillars and remaining questions concerning the legal nature of the EU's Common Foreign and Security Policy, the Common Security and Defence Policy, the procedures for concluding international agreements and the common commercial policy. Institutional aspects of external action, and in particular the creation of the Minister of Foreign Affairs, are considered elsewhere in the volume and are therefore not covered here. Consideration is also given to the extent to which it would be possible, and/or desirable, to incorporate the changes made by the Constitutional Treaty into a revised text or an alternative Treaty.

It is of course by no means certain that the Treaty of Nice will be ratified and that we will face the most radical revision to the EC Treaty provisions on the Common Commercial Policy (CCP) since its inception in 1957. Unlike most other proposed changes, however, this revision was foreshadowed in substance if not in detail by the Treaty of Amsterdam, which by adding a new paragraph 5 to the existing Article 133, allowed for the possibility of the extension of the CCP by Council decision. This aspect of the Treaty of Nice is particularly worth discussing, even in the absence of certainty as to its coming into force, both because some alterations to the CCP would be possible even under the existing regime, and because the issues raised by the Nice amendment are extremely pertinent to any such development. Discussion of the implications of the choices made at Nice are instructive when considering not only the post-Nice CCP but alternative options in the event of other Treaty amendments. The complexity of the Nice amendment is a reminder of just how difficult it is to achieve consensus in this area, and also of how important in practice that consensus is.