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Journal of International Relations and Development
The Institutional Structure of the Common Foreign and Security Policy After Amsterdam
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By Michael Alexander Rupp
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Introduction
The European Union’s Common Foreign and Security Policy (CFSP) has now been in operation for just over five years. It was introduced by the Treaty on European Union (TEU), which came into operation in November 1993 and gave European integration a new look, a new name and a number of new instruments to pursue its interests internationally.
Yet even before signing the Treaty it seemed clear to a number of member-states that those very reforms would need to be further revised. Article N of the TEU specifically provided for an Intergovernmental Conference (IGC) to be convened in 1996 in order to review certain provisions, including the CFSP chapter. The CFSP chapter itself contains an even clearer reference to that new IGC, set out in Article J.10 of the TEU. These two articles were the main reason why in the first half of 1995 Community institutions prepared a report on TEU activity. Later in that year, the Reflection Group chaired by the Spanish Secretary of State for European Affairs, Carlos Westendorp, analysed the Treaty in-depth. The group presented its report at the Madrid European Council in December 1995.
After consulting both the Commission and the European Parliament (EP), the Turin European Council formally launched the IGC by opening negotiations up on 29 March 1996. Several European Councils, in Florence (21-22 June 1996), two in Dublin (5 October 1996 and 13-14 December 1996) and the informal Council at Noordwijk (23 May 1997) discussed the various proposals. That process finished under the Dutch presidency at the Amsterdam European Council on 17 June 1997. The new treaty, called the Amsterdam Treaty, was signed on 2 October 1997.
Given the length of this institutional procedure, the question this article seeks to answer is why the member-states thought reforms were necessary so soon after the TEU was signed. In particular:
To this end, this article outlines the underlying motivation for the CFSP’s inception, examines the day-to-day problems arising from the mechanisms established at Maastricht, and discusses possible solutions to them. In the second part, the article analyses the changes to the CFSP chapter which were agreed upon at the IGC and codified in the new Treaty. In doing so, it will touch on some member-states’ positions regarding the solutions discussed. 2 It should be emphasised that, for reasons of space, this article does not discuss aspects of military-security integration in Europe and related issues of co-operation between the European Union (EU) and the Western European Union (WEU
Reasons for inception of the CFSP
Foreign policy barely existed in the original Treaty of Rome. Focusing on the economy, the treaty did not empower the European Economic Community (EEC) to deal with such a ‘high politics’ issue, traditionally considered the domain of the sovereign nation-state.
However, over time the EEC’s internal integration dynamic increased the sharpness of the internal-external distinction. The EEC began to exert significant political power through a number of channels. For example, via the representation of all EEC member-states in external trade agreement negotiations through the Commission. Other factors creating the image of unity of the ‘Europeans’ was the common development policy emphasised by the special Agreements of the EEC with ACP-countries (Associated Countries of Africa, the Caribbean and the Pacific), the EEC’s common tariff or the multitude of commercial and co-operation agreements. This development generated third countries’ demands and expectations to deal with the EEC as a major international economic and political actor. The ensuing attempts to respond to those third parties’ expectations of a common ‘political’ European Community resulted in the invention of European Political Co-operation (EPC) in the foreign policy field. The evolution of the EPC between 1969 and 1987 took place outside the legal framework of the European Communities. The EPC’s legal foundation involved declarations by member-states’ governments at the summits - later called European Councils. The three reports adopted by these summits progressively shaped the EPC’s institutional structure, 3 and there is no need to rehash the arguments about their efficiency and effectiveness during and after their evolution.
At the end of its gradual evolution, the EPC’s mechanisms encompassed:
What is important in the context of this article is that, even at this early stage, the mechanism enabled member-states to make common declarations, define common views and even to take joint actions.
It was only in the Single European Act (SEA), which came into force in 1987, that EPC was codified. In the SEA, the Member-states recognised “that closer co-operation on questions of European Security would contribute in an essential way to the development of a European identity in external policy” but even then they restricted EPC to the non-military aspects of security (Article 30/6(a) of the SEA).
Generally speaking, EPC was pragmatically conceived to provide a platform for the member-states to pursue common actions at the international level in tandem with their national foreign policies. Its intergovernmental character even in the SEA is manifest in the denomination of the Twelve as ‘High Contracting Parties’ rather than as member-states (Article 30/1 of the SEA). In addition, its decision-making was governed by the rule of consensus.
The result of EPC was the development of a healthy ‘co-ordination-reflex’, resulting in a substantial increase in consultation and advance notifying of actions planned or to be taken between the member-states. The Copenhagen Report recognised that “this collegiate sense in Europe [was] becoming a real force in international relations” (EPC—The Copenhagen Report 1973:14). Yet the new mechanisms also had their problems. Overall, EPC did not appear to show sufficient action and there was little shaping of international developments. The member-states mainly reacted to events with even those reactions often lacking in coherence between the Twelve and in fine-tuning between the policies resulting from the processes in the EPC and the European Communities.
CFSP and the Treaty on European Union
The experience of EPC’s shortcomings as well as external factors emerging in the 1990s both increased scholarly reflection on the possibility of the Europeans increasing their influence on world events (Hill 1990) and provoked the member-states’ decision to call an IGC to strengthen the foreign policy capacity of what was to become the EU. 4
Even though the IGC on Political Union had been convened, there were substantial differences of opinion between member-states and the Commission and among the member-states themselves as to the form and extent of integration of the foreign policy field into the Treaties. 5 The consequence of the latter differences among member-states was that the TEU provisions on CFSP did not change the system substantially, but rather incorporated it under new headings within the new Treaty. Putting it differently, despite its impressive name, the TEU did not incorporate all policy-sectors within the Union’s competencies into one unified political structure. Instead, it introduced two separate legal constructions, the CFSP and the Justice and Home Affairs (JHA), which are not communautarian. The resulting structure has been widely dubbed ‘the temple’, because it comprises three pillars—the EC pillar, the CFSP and the JHA. Far from being only an aesthetic question, this structure creates instability in the Treaties and makes the EU difficult to operate. It impinges directly on the EU’s ability to play an important role in international relations because the relevance of the Union and changes in the international system make the functionally separate conducting of policy-fields at best inefficient and at worst ineffective. While the foreign economic policy (EC pillar) directly influences the foreign relations of the EU (CFSP), both in turn can directly influence and be influenced by the formulation and execution of internal policies under JHA. For instance, formulation of immigration policies towards Eastern Europe (a JHA matter under Article K.1. of the TEU) is closely entangled with the general perspective of foreign policy developed under the CFSP and the aid and re-conversion programmes developed and managed by the EC. 6 The artificial procedural separation in the temple-structure thus does not equip the EU with the best institutions to define a holistic and encompassing approach to the world enabling management of complex interdependencies of different policy-fields and accommodating the often conversely inter-related aims.
Returning to the CFSP pillar, there are a number of ambiguities that have attracted particular attention. Article J.3 of the TEU contains one of the most interesting. For instance, the notion of a ‘joint action’ that the EU can pursue is not further defined and the unanimous voting procedure has been evaluated as leading to “either a weak CFSP, or a lowest common denominator approach to joint actions. There is a possibility that a bold approach could be deterred, and indeed the adoption of joint action stifled” (Lodge 1993:50).
Political experience of the past years has shown that the normal procedure of unanimous decision-making is hampering the development of EU foreign policy formulation. Taking decisions by qualified majority-voting has proven to be an exception, rather than regular practice. 7
Another problem is that the institutional substructure of the CFSP, supposed to provide advance planning and help prepare decisions, is not closely integrated. Article J.8 of the TEU states that the Political Committee, a relic from EPC, “shall contribute to the definition of policies ... without prejudice” to the tasks of COREPER (Comité des Représentant Permanents - Committee of Permanent Representatives). This leaves both the Political Directors, COREPER and the CFSP section in the Council secretariat with essentially similar tasks which are not clearly delineated. 8 At the same time, the capacities to fulfil these tasks are uneconomically dispersed.
Greater friction was expected to occur at the implementation level. The obligation of member-states to implement agreed joint action is weakened by Articles J.3(6) and J.3(7) of the TEU.
“In cases of imperative need arising from changes in the situation”, Article J.3(6) enables member-states to adopt unilateral emergency measures. Although the constraint is that these measures are to have “regard to the general objectives of joint action”. Indeed such a derogation can only be temporary as “the Member State concerned shall inform the Council immediately of any such measures”.
Article J.3(7) of the TEU provides for the seeking of “appropriate solutions” for member-states which face “major difficulties in implementing a joint action”. In both of these cases, safeguard clauses are supposed to protect the impact and stability of an agreed joint action even in adversity. Yet the scope of cases which can arise and where the escape clauses can be applied is difficult to define. The fact that the European Court of Justice (ECJ) has no jurisdiction over these matters makes it more difficult to obtain an independent review.
On closer inspection, even the qualified majority-voting during a joint action, hailed as a breakthrough, is weakened by Article J.3(2) of the TEU. This states that “the Council shall when adopting the joint action and at any stage during its development, define those matters on which decisions are to be taken by a qualified majority” (emphasis added). Each member-state thereby fully retains its veto power and the ability to block decisions running counter to its national viewpoint.
These weaknesses did not cause any major havoc in the CFSP machinery. This was mainly due to the fact that the number of joint actions per se was small and that the extent of action was relatively low. For instance, only 16 joint actions were adopted between November 1993 and September 1995. These covered humanitarian aid, sending observers to elections, organising conferences and issuing statements. Indeed issuing statements formed the majority of so-called joint actions, with the distinction between (common) statements and joint actions having emerged as an issue (Kintis 1996).
A number of institutional connections made by the TEU marginally improved the political practice already existing under the former EPC regime: The role of the Presidency was confirmed while the Troika procedure 9 was formally recognised, the Commission was granted a non-exclusive right of political initiative (Article J.8(3) of the TEU), and the EPC Secretariat was merged with the Council’s General Secretariat (Declaration 28 to the TEU Final Act). 10
The goal of achieving Europe’s stable and positive international image in world affairs is saddled with a predicament that has plagued the EU as much as its predecessor organisations: due to the constraints placed on the Commission in the provisions of the CFSP pillar, it is the Presidency of the EU that plays the biggest role in the decision-making process, the implementation and especially in the external representation of the EU. However, the EU Presidency rotates half-yearly so that every six months third countries have to deal with another crew of people claiming to represent the EU in the international arena. Understandably, each Presidency has different priorities, plans, strategies and expectations concerning foreign policy issues (Bulmer 1983). 11
Even if the differences were not as fundamental as often suggested, it must be borne in mind that the foreign policy field in particular is strongly characterised by declarations, resolutions and rhetoric. Hence, depending on the circumstances, a difference in the style of conducting foreign policy can have a substantial impact and, in the case of the EU, the rotation-induced lack of continuity is only partly mediated by the Troika system.
One of the questions arising from the contentious institutional separation of CFSP from the external policies of the EC pillar concerns co-ordination between the two.
Some of the limitations of the Union’s foreign and security policy stem from the existence of separate pillars for conducting the EU’s external activities: because of the provisions in Articles C and M of the TEU, which separate the competencies of the pillars, the Commission continues to conduct external relations for the EC in the traditional manner. 12 This is understandable given that the ‘full association’ (Article J.9 of the TEU) of the Commission with the deliberations under CFSP in reality amounts to very little. Although there is substantial expertise in the Commission, the latter has in the past been excluded from discussion in the Council on a large range of topics and reduced to being a silent observer.
A further problem in coherently conducting external relations is the fact that the TEU, unlike the Treaty of Rome, does not explicitly assign a legal personality to the Union. 13 This has led to the judgement that the EU does not possess any “legal personality or standing as such under international law” (Curtin 1993:27). On the other hand, this personality could be indirectly inferred from Article B of the TEU which states that one of the EU’s aims is “to assert its identity on the international scene” and which introduces “a citizenship of the Union”. Both aims cannot be conceived of without the background concept of a legal personality. Nevertheless, without the explicit provision of a legal personality, the Union is unable to become a party to international treaties.
The lack of a legal personality for the EU has meant that the legally and politically unfortunate practice of ‘Mixed Agreements’ has continued. 14 This appears ironic given the fact that founding the ‘Union’ was supposed to strengthen the Europeans’ ability to act internationally and reduce the inter-governmental character of the EU’s foreign policy.
The Treaty’s Revision
Most of the problems outlined above have contributed to frustrations of politicians and civil servants in the member-states and EU institutions. The IGC convened in 1996 therefore had a number of proposals on the table to improve the CFSP’s performance and to bridge the EU’s capability-expectations gap identified in academic literature three years earlier (Hill 1993).
The first proposals discussed at the IGC were directed at improving preparation of the EU’s foreign policy. Given that neither the CFSP section in the Council Secretariat, the meetings of Political Directors nor COREPER appeared to be able to provide coherent advance planning and analysis for coherent formulation of the EU’s foreign policy, the member-states agreed early in the revision process on the creation of a common planning and analysis unit to close this gap (Griller et al. 1996). The great majority of member-states favoured installing this unit within the General Secretariat of the Council or simply strengthening the already existing CFSP unit within the General Secretariat. The demand that the Commission be involved in the work of the unit and/or delegate a certain amount of civil servants to it was widely shared among the member-states. Especially Spain, Ireland, and Austria emphasised the need to use the Commission’s resources for the unit’s work in order to create greater coherence between the economic and political aspects of the EU’s foreign policy (ibid.).
There have been several other proposals to achieve greater coherence between the external economic relations (governed largely by procedures in the EC pillar of the TEU—Title II) and the genuine CFSP (governed by procedures under Title V of the TEU). The most radical proposal, yet simultaneously most thorough, would have been the complete communautarisation of the CFSP pillar. The IGC negotiations have shown that only a minority of member-states clearly advocated this solution (namely the Netherlands, Greece, Spain and Austria). By contrast, France and Germany even made out a good case for the opposite solution in the ‘Freiburger Leitlinien’ agreed bilaterally. In their view, strengthening the heads of states and governments as an arbiter could lend supreme authority to decisions which would then bind member-states and the Commission (Griller et al. 1996).
Indeed the draft treaty put forward by the Irish Presidency (henceforth the Irish Presidency Draft) appeared to lean in this direction. The Amsterdam Treaty goes the way of creating legitimacy for actions under the CFSP not through the Commission but through the European Council as the assembly of the Heads of State and Government. By means of the European Council having to decide on the objectives, duration and means of a strategy, the new Treaty involves them in a much stronger way in the detail of CFSP decision-making.
The improvement proposed by the Irish Presidency Draft could be detected in the amendment proposed to Article J.1(1) of the TEU, concerning the role of the European Council, which stipulated:
The Union and its Member States shall define and implement a common foreign and security policy, governed by the provisions of this Title and covering all areas of foreign and security policy. The European Council shall define the principles of and general and strategic guidelines for the common foreign and security policy (Conference of the Representatives of the Governments of the Member States 1996:68).
The final draft of the Amsterdam Treaty did not take up the suggestion to amend this article, but it extended the role of the European Council in a slightly different way: it introduced the notion of a “common strategy” in Article J.3(2) (Article 13(2) according to the new numbering of the Treaty of Amsterdam). This article now states that, in addition to the definition of the principles of and general guidelines for the CFSP:
the European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common. Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
Furthermore, the possible scope for action of the European Council was enhanced as it was accepted that, according to Article J.3(1) (Article 13 according to the new numbering of the Treaty of Amsterdam), the European Council “shall define the principles of and general and strategic guidelines for the common foreign and security policy, including for matters with defence implications” (Conference of the Representatives of the Governments of the Member States 1996:68; emphasis added).
The draft did not touch on the possibility of communautarisation of the CFSP pillar and therewith has to be judged as implicitly rejecting it. Nevertheless, the draft proposed the Treaty text be changed in order to achieve greater consistency: among the proposed changes was an amendment to the second subparagraph of Article C of the TEU. The amendment would have resulted in the stipulation that:
The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall co-operate appropriately to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers (Conference of the Representatives of the Governments of the Member States 1996:67).
The Amsterdam Treaty took on the proposed changes in full except that it eliminated the word “appropriately” as a limit on the co-operation between the Council and the Commission.
In the best tradition of both federalist and neo-institutionalist approaches to European integration, the Irish Presidency Draft attempted to improve what in the Article J.1(4) of the TEU read “a spirit of loyalty and mutual solidarity”. This formulation was to be amended by the provision that “the Member States shall work together to enhance and develop their mutual political solidarity” (Conference of the Representatives of the Governments of the Member States 1996:69). This formulation, too, found its way into the final Treaty in Article J.1(2) (Article 11 under the new numbering of the Treaty of Amsterdam). This could be interpreted as a sign that the member-states appeared to feel that more political solidarity was needed than they were able to show in the past.
As regards the planning and analysis unit, the Irish Presidency Draft proposed to attach a new declaration to the final act establishing such a unit. Declaration No. 6, referring to the “Establishment of a Policy Planning and Early Warning Unit”, was adopted to this effect at the Amsterdam IGC. While an amendment to the TEU (for instance to Article J.8) might have been a more elegant and constitutionally more coherent solution, the declaration to the final act could nevertheless provide a sufficient basis for the Unit’s work.
The Unit’s tasks are as follows:
The Unit was to consist of personnel drawn from the General Secretariat, the member-states, the Commission and the WEU (Paragraph 3 of the Declaration).
At first sight, this outlining of tasks is only one small step further along than the stipulations of Article J.8(5) of the TEU, which prescribes the involvement of the Political Committee as the preparatory instrument of CFSP. Two decisive points are nonetheless likely to have a significant impact. First, the staffing of the Policy Planning and Early Warning Unit with personnel drawn from the General Secretariat, the member-states, the Commission and the WEU takes the preparatory steps of specific CFSP decisions out of the grey area of Political Directors from the member-states. Second, the task of “providing assessments” and “identifying areas” puts the Unit in charge and empowers it to initiate policy in an active manner. This is in stark contrast to the rather passive undertone found in Article J.15 (Article 25 under the new numbering of the Treaty of Amsterdam), which provides that the Political Committee is only to “contribute to the definition of policies”, and only “by delivering opinions” to the Council. 15
It is not improbable that, combined with the extension of the Commission’s right to make suggestions to the unit for work to be undertaken, introduction of such a Unit could jump-start the so far unsatisfactory preparation of CFSP discussions. If this were to result in better argued policy discussions at the Council level, the new mechanism could significantly contribute to more effective action.
However, in spite of the introduction of the Policy Planning and Early Warning Unit, the fundamentals of the constitutional arrangement remain the same as in the TEU. The steps taken in Amsterdam only led to the setting-up of a preparation and implementation monitoring centre within the Council Secretariat. The question may be asked why this centre was not anchored in the same institution which already has this power in the EC pillar—the European Commission. The answer should probably be sought in the Realpolitik approach of the member-states, which means the simple fear of member-states’ governments that the Commission would take away power in this area from them. It is interesting to note that at the 1996 IGC, Belgium took exactly the opposite approach (Griller et al. 1996). It recommended strengthening the Commission in external representation instead of involving the Secretariat. Taking constitutional and systemic logic as yardsticks, the Belgian proposal appears to be the more elegant and effective solution. It would solve the consistency problem between the EC and the CFSP pillar and avoid the cumbersome redistribution of power to a new institution. Instead, all functions would have found their ‘natural’ habitat.
Nevertheless, the prevailing attitude towards European integration in the member-states resulted in adoption of the formulation proposed in the Irish Presidency Draft. One can only conclude that the member-states preferred to risk a dysfunctional system of competence allocation rather than shift further competencies to the Commission. During the IGC, the Spanish government already warned that, whatever new structure emerged, it should not cause confusion about the competencies (Position Paper of the Spanish Government 1996). Observers will have to watch carefully whether the Spanish concerns were justified.
Apart from creating the planning unit, the other significant change which the declaration brings to the decision-preparation mechanism is that it puts the onus on member-states and the Commission to “assist the policy planning process by providing, to the fullest extent possible, relevant information, including confidential information” (Declaration No. 6 to the Treaty of Amsterdam, par. 5). Without such information, no planning unit can play a satisfactory part in CFSP development.
While reform of the decision-preparation mechanism in the CFSP has been a fairly uncontentious issue among member-states, the revision of decision-making in this pillar proved to be a much bigger problem. In principle, no member-state demanded that decisions on CFSP matters adopted by a qualified majority-vote should bind all member-states on all issues. Most member-states drew a distinction between decisions of principle which should remain to be taken unanimously and decisions about implementation which could be taken by qualified majority (Griller et al. 1996). An important caveat is the use of military means in the framework of CFSP. Only few member-states advocated that a decision taken by qualified majority should be able to force member-states to participate in military implementation measures adopted within the CFSP.
During the IGC, the member-states considered new models of decision-making in this sector. These models would allow the Union to take action under the CFSP pillar whilst enabling individual member-states to abstain from the policy or from its implementation. Such decisions could be taken by ‘unanimity minus n', something that has also been called ‘constructive abstention’. In this regard, the Dutch representative at the IGC introduced the condition that any widening of qualified majority-voting on CFSP issues would have to go hand-in-hand with a greater say of the EP (Griller et al. 1996:97).
Indeed, the Irish Presidency Draft incorporated unanimity with constructive abstention in the case of adoption of a common position or joint action. It proposed to incorporate a new Article J.8(a). The draft article provided that member-states abstaining from a vote should submit a formal declaration to this effect. Furthermore, the draft article provided for a quorum for a decision on such joint action. The proposed joint action would lapse if “the members of the Council qualifying their abstentions in this way represent more than 25 votes” (Conference of the Representatives of the Governments of the Member States 1996:77). Using this apparently complicated process, the EU could adopt joint actions with a large majority of the member-states, whereas member-states not wanting to take part could distance themselves from involvement. The fifth sentence of proposed Article J.8(a) would commit them, however, to show “mutual solidarity” in that they “refrain from any action likely to conflict with or impede Union action based on that decision”. On the other hand, the other member-states were held to “respect its position” (Conference of the Representatives of the Governments of the Member States 1996:84).
The Amsterdam Treaty takes on, with slight modifications, this carefully balanced system. First, member-states abstaining from a vote are not held to give a declaration, but have the possibility to do so under the introduced Article J.13 (Article 23 according to the new numbering of the Treaty of Amsterdam). Second, the blocking minority for a motion to lapse was set more generally at one-third of the (weighted) qualified majority-vote (ibid.). The Irish Presidency Draft and, subsequently, the Amsterdam Treaty went even further in the aforementioned article. If common positions or joint actions are taken subsequent to a common strategy decided by the European Council, or a decision is simply the implementation of a common position or joint action, the Council decides by normal qualified majority-vote, with votes cast by at least ten members. Only in the case of a formal veto by one member-state would a decision be postponed. The qualified majority of the member-states can refer the matter “to the European Council, for decision by unanimity” (ibid.).
In view of the confusion about the use of joint actions and common positions sketched above, it is of some significance that the Irish Presidency Draft proposed to amend Article J.1(3) of the TEU (Conference of the Representatives of the Governments of the Member States 1996:75). The Amsterdam Treaty took up the suggestion so that the redrafted Article J.2 (Article 12 according to the new numbering of the Treaty of Amsterdam) empowers the Union to pursue its objectives by:
There is no denying the fact that changes to the rules contained in the Amsterdam Treaty are by no means certain to improve formulation of the Common Foreign and Security Policy of the European Union (EU). Yet the said changes may be expected to have a positive effect. The increased scope of the qualified majority-voting in the second pillar, and the possibility for member-states to abstain from decisions and actions taken by the EU might increase the presence of the Union in the international arena. At the same time, however, there is no doubt that the weight of the Union’s decisions would be questioned if for instance big member-states were to abstain.
The Irish Presidency Proposal did not touch on questions of strengthening the influence of the EP in CFSP matters. Dutch demands during the IGC to increase democratic control of the EP if decision-making in CFSP dropped the consensus basis and shifted to qualified majority-voting found some resonance with other governments. Only the United Kingdom, France and Finland were fundamentally opposed to the expansion of the EP’s influence over CFSP. Several other governments, however, wanted to improve the consultation procedures with the EP in this area (Griller et al. 1996:103).
The Amsterdam Treaty itself followed the path, set by the Irish draft, by not touching on any change to the EP’s powers. Former Article J.7 of the TEU remains in place. With the new treaty entering into force, it merely changes the number to be J.11 (Article 21 according to the new numbering of the Treaty of Amsterdam). This article provides for the Presidency to consult the EP on the main aspects and the basic choices of the CFSP and shall ensure that the views of the EP are duly taken into consideration. The EP shall be kept regularly informed by the Presidency and the Commission of the development of the Union’s foreign and security policy. The Article further allows the EP to “ask questions of the Council or make recommendations to it” as well as to “hold an annual debate on progress in implementing the common foreign and security policy.”
The EP’s powers thus cannot be said to be disproportionately small, especially compared to the limited powers that parliaments in national political systems tend to enjoy in the field of foreign and security policy. Some analysts even argue that the EP has “somewhat greater powers of oversight in respect of the EPC” when compared to many other parliaments (Lodge 1993:51). Overall, the Amsterdam Treaty treats foreign policy as the domaine reservé of the executive. Yet this is normal in most parliamentary systems.
The problem of the EU’s international image outlined above has also been discussed in the IGC. Here, the most eye-catching proposal is the election of a Mr. or Ms. CFSP who mutatis mutandis would be sort of an elected EU foreign minister. Only Italy appeared entirely content with this institutional solution, with most smaller member-states being opposed to it. A compromise solution between introducing a new high profile representative and keeping changes within the established framework was put forward in the Irish Presidency Draft and was later included in the Amsterdam Treaty. The new Article J.8 (Article 18 under the new numbering of the Treaty of Amsterdam) stipulates that the Presidency shall be assisted by the Secretary-General of the Council in the EU’s international representation. Further, in order to ensure consistency in the EU’s external activities, the Commission is envisaged to be fully associated with these tasks. The draft also proposed changing the traditional idea of the Troika. By deleting the preceding Presidency from the list of Troika participants, the current draft would lead to the EU being represented internationally by the Presidency, the Secretariat-General of the Council, and the succeeding Presidency, should that be needed.
It is currently difficult to anticipate the effect of this new approach. From a constitutional perspective, this new system could be again regarded as an incomplete and inelegant solution. It certainly is if compared to a conceivable mechanism in which the external policy were conducted by the Commission as a whole, or by an individual Commissioner for the whole of the EU.
Instead, the Commission—at least constitutionally—still plays second-fiddle after the Presidency (by only being “fully associated”), although in reality the Commission is a much more important player than on paper due to its advantage in legal and material competence. As to the legal aspect, wherever CFSP discussions stray into areas of EC pillar competence like trade and economic relations, including specific sanctions or embargoes, it is the European Commission as the main initiator of decisions in the Community pillar which determines the direction. The higher material competence of the Commission relates to its greater and easier availability of expertise due to the high number of staff and the highly qualified personnel by means of which the Commission can effectively channel the discussion about policy-options.
Despite its relevance, the issue of a legal personality for the EU has not attracted much attention of the member-states in the IGC. Only a minority of member-states was clearly in favour of giving the EU a legal personality with the rest being undecided. Only Spain emphasised the need to create this legal personality. Spain’s overall aim at the IGC was to facilitate the conclusion of international agreements and to end the confusion in the EU’s external relations discussed above. One very specific point made was that a legal personality could, for example, enable the EU to accede to the European Convention on Human Rights (Position Paper of the Spanish Government 1996).
The Irish Presidency Draft incorporated the recommendation to create a legal identity for the EU. The proposed “New Article in the TEU” endowed the EU with legal personality, and “in each of the Member States, the most extensive legal capacity accorded to legal persons under their laws” (par. 2). The draft placed a particular emphasis on “the legal capacity to the extent necessary for the exercise of its functions and the fulfilment of its purposes” (par. 3). That paragraph also provided that in the international arena the Union was to be represented by the Presidency of the Council (Conference of the Representatives of the Governments of the Member States 1996:91).
When it comes to concluding international agreements, the Irish Presidency Draft proposed that the Council, acting unanimously, authorise the Presidency to conclude these agreements assisted by the Commission “if appropriate”. This part of the proposal was accepted and is now incorporated in Article J.14 (Article 24 according to the new numbering of the Treaty of Amsterdam). However, at this juncture the old problem of the dispersion of responsibility between the Council and the Commission resurfaces. With regard to the Commission’s participation in opening up negotiations on international agreements, the draft left unclear what the term ‘appropriate’ actually stands for. Further, the said article provided for the opening up of negotiations by the Presidency and “if appropriate” by the Commission, but did not reflect on who would actually conduct the negotiations. 16
In an attempt to pre-empt member-states’ possible reservations in the area of concluding international agreements, the Irish Presidency Draft proposed two restrictions on the use of the “New Article in the TEU”. First, it did not empower the EU to “conclude any agreements providing for the use of military means” (par. 6). Second, it stipulated that “no provision of this article shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts amending or supplementing them” (par. 7) (Conference of the Representatives of the Governments of the Member States 1996:91-2). 17 However, these attempts were to no avail. When reviewing the Amsterdam Treaty for traces of the arrangement set out in the “New Article in the TEU”, one comes to the conclusion that basically nothing was left of this proposal. There is no trace to be found of the EU having a legal identity. As for the capacity for the Commission to conduct international negotiations with a view to concluding international agreements, the Amsterdam Treaty has gone only as far as extending the Commission’s (limited) powers, which are set out in Title IX (Common Commercial Policy—ex Title VII of the TEU). 18
Conclusions
The above discussion reveals that a number of institutional problems caused by the construction of the early mechanisms of CFSP as devised at Maastricht can in fact be rectified. The Amsterdam Treaty is certainly one step in the right direction towards such a coherent and stable solution. However, discussions at the IGC and the results of Treaty negotiations have shown that the member-states still have strong impediments to moving forward in a decisive manner. As on earlier occasions, evolution of the CFSP has been piecemeal.
The most important institutional change concerning the CFSP pillar appears to be the introduction of the Policy Planning and Early Warning Unit. If this mechanism is in fact well staffed and encouraged to be proactive by the Council, it could give a significant impulse to defining the EU’s interests and then trigger more determined action. A federalist-minded observer would of course claim that such a new mechanism should not be put into the Council structure. It would be conceivable and indeed institutionally easier to understand if this institution were established within the European Commission.
The legal personality of the Union suggested by the Irish Presidency Draft would have been a significant step in the right direction, although it might have complicated relations between the EU and the EC pillar. After all, lawyers and politicians do not appear to have yet come to any consensus on whether granting a legal personality to the EU would ipso facto imply the loss of legal personality for the EC pillar. Perhaps this legal debate was a factor in the ultimate decision to drop the Irish Presidency Proposal. Nevertheless, it is more probable that it was member-states’ reluctance to give too much power to the Union-level that carried the day.
Concerning changes in the Union’s external representation, it remains to be seen if the ‘Mr. or Ms. CFSP’-solution brings with it any improvement. This is unlikely in view of past experience. The new arrangement will not substantially change the discontinuity problem, except unless the new Secretary-General of the Council were really a high-profile politician and the Presidency were to agree to implicitly reverse the constitutional allocation of responsibility. If these two conditions were to be met, then the Secretary-General could indeed become the central focus of attention in CFSP and the central contact person for third countries. However, without very tight co-ordination with Commission-led policies, this arrangement is bound to prove incoherent.
Whether the constitutional poetry of ‘the different EU institutions providing for coherence’ will be more than wishful thinking depends to a high degree on the will of the member-states to fully exploit the arrangements. Yet we should be mindful of the fact that scholars already hinted at this ray of hope when the TEU arrangements were set up. And contrary to assumptions, the arrangements also did not lead to a saut qualitif. The lack of the member-states’ political commitment to make the most of the Maastricht provisions has annihilated much of the optimism about the small-scale changes agreed at Amsterdam.
Summa summarum, the new institutional structure of CFSP after Amsterdam is largely the same as agreed on in the TEU. This is no surprise because the member-states had to bridge the same divide: the contradiction between the will of the whole EU to be seen as a world player in international political affairs and the particularism of each member-state’s government which does not intend to relinquish its international political room for manoeuvre.
In 1990, this meant that the European integration endeavour was torn apart into an odd creature with three pillars. Since then, arguments about the incorporation of CFSP within the first pillar have not subsided. However, the CFSP pillar has still not become communautarised. The pillar structure will remain in place and most of the resulting inconsistencies will remain. The Amsterdam Treaty does provide a treatment for some of the symptoms of this constitutional disease, but so far no convincing solution to remove the actual cause. It is unlikely that the next group of doctors will convene earlier than some time in the next millennium.
February 1999
References
Amsterdam Treaty and the Consolidated EU Treaties (1997). Special edition of the Official Journal OJ C 340.
Baldwin-Edwards, Martin and Martin A. Schain (1994) Politics of Immigration. In Martin Baldwin-Edwards and Martin A. Schain (eds) The Politics of Immigration in Western Europe. Special Issue of West European Politics 17(2), 1-16.
Bulmer, Simon (1983) Domestic Politics and European Community Policy-Making. Journal of Common Market Studies 21(4), 349-63.
Conference of the Representatives of the Governments of the Member States (1996) The European Union Today and Tomorrow. Adapting the European Union for the Benefit of its Peoples and Preparing it for the Future. Dublin II. Conf 2500/96. Brussels, 5 December.
Curtin, Deirdre (1993) The Constitutional Structure of the Union: A Europe of Bits and Pieces. Common Market Law Review 30, 17-69.
EPC—The Copenhagen Report (1973). Bulletin of the European Communities (9), 14-21.
EPC—The London Report (1981). Bulletin of the European Communities (3), 14-17.
EPC—The Luxembourg Report (1979). Bulletin of the European Communities (11), 9-14.
George, Stephen (1992) The European Community in the New Europe. In Colin Crouch and David Marquand (eds) Towards Greater Europe?, 52-63. Oxford: Blackwell Publishers.
Griller et al. (1996) “Regierungskonferenz 1996: Ausgangspositionen”. Vienna: Forschungsinstitut für Europafragen - Wirtschaftsuniversität Wien, IEF Working paper No. 20, June.
Hill, Christopher (1990) European Foreign Policy: Power Bloc, Civilian Model—or Flop? In Reinhardt Rummel (ed.) The Evolution of an International Actor: Western Europe’s New Assertiveness, 31-55. Boulder, CO and Oxford, UK: Westview Press.
Hill, Christopher (1993) The Capability—Expectations Gap, or Conceptualising Europe’s International Role. Journal of Common Market Studies 31, 305-28.
Hill, Christopher, ed. (1983) National Foreign Policies and European Political Co-operation. London: George Allen & Unwin/RIIA.
Ifestos, Panayiotis (1987) European Political Cooperation. Vermont, USA: Avebury/Gower Publ. Comp.
Kintis, Andreas (1996) Two Years of CFSP: A Review. In Iain Hampsher-Monk and Jeffrey Stanyer (eds) Contemporary Political Studies 1996, Vol. II, 1020-26. London: Political Studies Association of the United Kingdom.
Lodge, Juliet (1993) From Civilian Power to Speaking With a Common Voice: The Transition to a Common Foreign and Security Policy. Paradigms 7, 33-58.
Neuwahl, Nanette A. (1991). Joint Participation in International Treaties and The Exercise of Power by the EEC and Its Member States: Mixed Agreements. Common Market Law Review 28, 717-40.
Nuttall, Simon (1987). Interaction between European Political Co-operation and the European Community. Yearbook of European Law 7, 211-49)
Nuttall, Simon (1992a) European Political Co-operation. Oxford: Clarendon Press.
Nuttall, Simon (1992b) The Institutional Network and the Instruments of Action. In Reinhardt Rummel (ed.) Toward Political Union: Planning a Common Foreign and Security Policy in the European Community, 55-76. Boulder, CO: Westview Press.
Position paper of the Spanish Government (1996). April, unpublished.
Endnotes
*: This article was written as part of a private research project. Statements therein represent only the opinion of the author and do not necessarily represent the position of the European Commission. Back.
**: Michael Alexander Rupp has researched and taught at the Universities of Heidelberg (Germany), Hull (United Kingdom) and Leeds (United Kingdom). He currently works for the European Commission in Brussels. Back.
Note 1: The author does not intend to engage on the more fundamental question of why the Heads of State and Government agreed to a Treaty which they themselves deemed in need of reform even at the time of their signing. Back.
Note 2: For this purpose, this article draws largely on the text that was published as the official negotiating platform for revisions of the TEU, the Irish Presidency Draft of 1996 (Conference of the Representatives of the Governments of the Member States 1996). As the focus of this article is the question of changes concerning CFSP introduced at Amsterdam, and not the IGC negotiation dynamics per se, the depiction of the positions of different member-states at the IGC will be limited. Back.
Note 3: See EPC—The Copenhagen Report (1973); EPC—The Luxembourg Report (1979); EPC—The London Report (1981). The mechanisms of EPC have been well covered in the literature (Ifestos 1987; Nuttall 1987; 1992a; 1992b). Back.
Note 4: Without repeating the analysis of the external factors arising in the early 1990s, the five most important ones should be briefly mentioned. First, third countries increasingly urged the Europeans to bridge the gap between progress in the economic field and political and security co-operation. The fledgling Single Market and the plans for Economic and Monetary Union (EMU) were signs of the economic maturity of the European Community (EC) pressing for the coming of age of political union. Second, the EC was faced with the prospect of further enlargement which eo ipso would increase its global political role. Third, the EC was faced with a rapidly transforming international environment moving from a predictable bipolar to an unpredictable multipolar system. This increased the need to develop active collective policies in order to safeguard the commercial, economic and security interests of the EC member-states. Fourth, the fear of step-by-step disengagement of the USA from the provision of European security added to political deliberations about the need of a European security capability. Fifth, the expectation that the EC would shoulder most of the financial and administrative burden to reconstruct the former post-communist countries thrust the Community into the position of a regional power realising that it was not equipped with the political mechanisms to take on the task. Back.
Note 5: Without going into detail here, the gulf of differences can best be exemplified by statements of the French and German governments on the one hand, and a statement of the United Kingdom on the other: The joint Franco-German statement of 22 March 1991 urged the IGC “to obtain the best content and institutional formulas for the implementation of a common foreign and security policy, that will allow Europe to act effectively in the world’s important affairs” (Agence Europe, 23 March 1991, p. 3). For Britain its former Foreign Minister, Douglas Hurd, instead made clear that Britain had no objections to discuss at the IGC the “strengthening of European Co-operation”, but “less through Community integration than on an intergovernmental basis” (Agence Europe, 21/22 May 1990, p. 3). More about the reluctance of the British government to convene the conference can be found in George (1992). Back.
Note 6: On a national level, the pressing issue of immigration has already influenced the way in which national governments perceive and deal with such diverse problems as foreign economic policy, immigration policy, social policy and security (Baldwin-Edwards and Schain 1994). Back.
Note 7: See, e.g., Council Decision 95/170/CFSP of 12 May, relating to the joint action concerning anti-personnel mines. Back.
Note 8: The Declaration No. 28 “on Practical Arrangements in the Field of the Common Foreign and Security Policy”, attached to the TEU, promised to examine this question later. Back.
Note 9: Under the Troika system the preceding and the succeeding presidency share in the administrative and organisational burden. External commitments are taken on by representatives of all three countries. Back.
Note 10: This initiative should not be confused with the exclusive right of legislative initiative, accorded to the Commission in the first pillar. Back.
Note 11: Differences of member-states in the approach to foreign policy per se as well as specific issue- areas are the result of numerous factors, whose impact cannot easily be neutralised: the differences in status on the international stage (e.g. membership in the United Nations Security Council, membership in the North Atlantic Treaty Organization, neutrality), different historical, cultural and political experience with regions, different economic foundations, different geo-strategic positions and—not to be underestimated—different institutional and bureaucratic practices (Hill 1983). Back.
Note 12: Article C of the TEU emphasises, however, that the EU has a single institutional framework. Furthermore, it requests that the EU provide for coherence between action under the CFSP and under the Communities’ Treaties in the context of the EU’s “external relations, security, economic and development policies”. It is the Council and the Commission—but each “in its own sphere of competence”—which have the responsibility to ensure this consistency. Back.
Note 13: Compare to Articles 210 and 211 of the Treaty of Rome. Back.
Note 14: Under this form of agreement, the EC negotiates agreements jointly with the member-states when the agreements involve shared competencies. The agreements then have to be concluded for the EC and for each of the member-states. This makes both the member-states and the EC party to the agreement and involves substantially more complicated and time-consuming procedures (Neuwahl 1991). Back.
Note 15: It is somewhat surprising that given the inauguration of the Policy Planning and Early Warning Unit the Political Committee as the purely intergovernmental arm of the CFSP preparation was not entirely taken out of the system. On the other hand, it is worth pointing out that the Irish Presidency Draft had even attempted to secure its revival. The Draft Declaration on Article J.15 of the TEU proposed to issue a declaration to the final act increasing the activity of the Political Committee by stipulating that the Committee meets “any time, in the event of international crises or other urgent matters, at very short notice at Political Director or deputy level”. Eventually, the Declaration was not taken up in the Amsterdam Treaty. Back.
Note 16: Some clarification concerning the issue of negotiations was offered by paragraph 4 of the “New Article in the TEU”, namely that negotiations were to be conducted “within the framework of directives issued by the Council, acting unanimously”. However, this has not been adopted by the member-states. It should also be noted that the use of the word “directives” in the paragraph above would seem unfortunate, as this particular term is normally used—in the legal sense—within the EC pillar. The term ‘guideline’ would have prevented possible confusion. Back.
Note 17: A provision similar to the original Article M in the TEU. Back.
Note 18: Article 113.5 of the EC Treaty (Article 133.5 of the EC Treaty according to the new numbering) extends the Commission the right to conduct international negotiations in the areas of services and intellectual property “insofar as they are not covered by these paragraphs”. The Council can make such a decision on a proposal from the Commission and after consulting the EP, but its decision has to be unanimous. Back.