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The new European External Action Service and the Lisbon Call for Coherence of European External Action: Issues of Accountability and Scope

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The new European External Action Service and the Lisbon Call for Coherence of European External Action: Issues of Accountability and Scope
    T HE C OLUMBIA J OURNAL   OF E UROPEAN L AW O NLINE   The new European External Action Service and the Lisbon Call for Coherence of European External Action: Issues of Accountability and Scope Chiara Cellerino* I.   The Lisbon Treaty and the Road to Decision 2010/427/EU   The Treaty of Lisbon, which entered into force on December 1, 2009, introduced important changes to the European Union’s system of external relations, as it aimed to foster the Union’s capability to implement effective and coherent external action within the international arena. First, it is worth remembering that the Treaty of Lisbon led to both the conferral of a legal  persona to the European Union (Art. 47 TEU) 1  and to the establishment of a “double hatted” High Representative of the Union for Foreign Affairs and Security Policy (“High Representative”), charged with the twofold mission to “conduct the Common Foreign and Security Policy” and “ensure the consistency of the Union’s external action ”  (Art. 18 TEU). 2  More interestingly, a major innovation was the creation of the European External Action Service (“EEAS”), which is intended to act as the “European diplomatic corps” with the express task of assisting the High Representative   in “fulfilling his mandate” (Art. 27.3 TEU). 3   *LL.M Columbia Law School (2010). Ph.D. candidate in European Union Law at the University of Udine (Italy). The organization and functional framework of the EEAS would be established     by a decision of the Council, acting on “a proposal 1  Consolidated Version of the Treaty on European Union, Art. 47, Mar. 30, 2010, 2010 O.J. (C 83) 13 [hereinafter TEU]. 2  The High Representative is both President of the Foreign Affairs Council and the Vice President of the Commission. From the “merging” of the “two hats,” a “personal union” has been created, which seems to subsume under a single persona the external representation for both CFSP (“Common Foreign and Security Policy”)  proper and the rest of Union’s external policies. See  C EPS ,   E GMONT ,   E PC ,   J OINT S TUDY ,   T HE L ISBON T REATY :   I MPLEMENTING I  NSTITUTIONAL I  NNOVATIONS 125 (2007), available at http://www.ceps.eu/files/book/1554.pdf .  3  Preparatory works for the creation of the European External Action Service had already started following the signing of the constitutional Treaty in October of 2004. The machinery was later halted by the French and Dutch referenda in May of 2005. See  C OUNCIL O F T HE E UROPEAN U  NION ,    Joint Progress Report to the  European Council by the Secretary-General/High Representative and the Commission on the European  External Action Service,  C OUNCIL O F T HE E UROPEAN U  NION 9956/05, CAB 24, RELEX 304, DQPG   (Jun. 9, 2005), available at   http://register.consilium.europa.eu/pdf/en/05/st09/st09956.en05.pdf. For a recent account, see Reslow Vanhoonacker, The    European External Action Service: Living Forward by Understanding Backwards , 15   E UR  .   F OREIGN A FF .   R  EV . 1 (2010) 18.  2010 THE TREATY OF LISBON - TOWARDS AN EVER CLOSER UNION 23 from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission”   (Art. 27.3 TEU). 4 Pursuant to this legal basis and to the European Council guidelines issued in October of 2009,   5  Ms Catherine Ashton, the appointed High Representative of the Union for Foreign Affairs and Security Policy, presented her proposal for a Council Decision establishing the organization and functioning of the EEAS in March of 2010. 6  Political agreement among institutions and member States was reached in Madrid on June 21, 2010. The agreed upon package included, alongside amendments to the March proposal, the text of two Declarations by the High Representative: the Declaration on Political Accountability and the Declaration on Basic Structure of Central Administration. The Service was finally established by Council Decision  2010/427/EU,  adopted on July 26, 2010 (the “Decision”). 7 II.   The Organization and Functioning of the EEAS : a Preliminary Assessment The institutional structure was one of the most discussed issues with regard to the establishment of this new service. While the European Parliament, in order to ensure full transparency and  budget control, aimed to influence its incorporation under the Commission administration, Member States strongly opposed this solution because they feared that it would allow the Commission to interfere in matters that are still ruled by the intergovernmental method.  8   4  The decision establishing the organization and functioning of the EEAS was then adopted in July of 2010: Council Decision No. 427/2010 of 26 July 2010, 2010 O.J. (L 201), available at   http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:201:0030:0040:EN:PDF.  5  Presidency Report to the European Council on the European External Action Service, POLGEN 163 LIMITE doc. 14930/09 (23 October 2009), available at   http://register.consilium.europa.eu/pdf/en/09/st14/st14930.en09.pdf. The European Parliament  played a prominent participatory role in the institutional dialogue regarding the establishment of the new service, somehow exceeding the mere consular role conferred onto it by the Treaty. See  Resolution of 22 October 2009 on the institutional aspects of setting up the European External  Action Service, E UR  .   P ARL .   D OC .   2009/2133(INI),  available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2009-0057&language=EN ;  6  T HE H IGH R  EPRESENTATIVE FOR F OREIGN A FFAIRS AND S ECURITY P OLICY ,  Draft Council  Decision    Establishing the Organisation and Functioning of The European External Action Service ; H IGH R  EPRESENTATIVE OF C OMMON F OREIGN AND S ECURITY P OLICY , POGEN 43 INST 93 8029/10 (25 March 2010), available at   http://register.consilium.europa.eu/pdf/en/10/st08/st08029.en10.pdf.  7  Council Decision No. 427/2010, supra  note 4, available at   http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:201:0030:0040:EN:PDF.  8  Presidency Report to the European Council on the European External Action Service  , supra note 5, § 7. See also , Simon Taylor,  MEPs Seek More Power Over Diplomatic Service , E UROPEAN V OICE . COM  (Oct. 15, 2009, 5:20 CET), available at   http://www.europeanvoice.com/article/imported/meps-seek-more-power-over-diplomatic-service/66122.aspx.    24 COLUMBIA JOURNAL OF EUROPEAN LAW ONLINE Vol. 17 As a result, the Decision established the EEAS as a functionally autonomous body of the European Union, separate from both the Commission and the General Secretariat of the Council. It would be managed by an executive Secretary-General, operating under the authority of the High Representative. The new service would have its headquarters in Brussels, and would be made up of: (i) a Central administration organized in directorates general (including, among others, geographic desks covering all countries and regions of the world, as well as multilateral and thematic desks), and (ii) the Union’s delegations to third countries and to international organizations (succeeding the former 136 Commission delegations), which would be led by a Head of Delegation, accountable to the High Representative. Ms. Ashton’s decision to create an autonomous body seems to be a step towards the service’s capacity to operate effectively to the advantage of the EU’s external action independently from inter-institutional tensions. At the same time, since the EEAS is neither a service of the Commission nor of the Council, but rather a self-governing entity, it seems to be an “orphan” devoid of a formal institutional framework. 9  This raises a few legitimate concerns regarding its accountability and the scope of its action. With respect to accountability, it should be noted that the European Parliament conducted a successful battle during the post-March negotiations aimed at counter-balancing the autonomy of the service from the Union’s institutions. From this  perspective, the adoption of the Declaration of the High Representative on Political Accountability accounts for a series of specific consular, informational and reporting duties carried by the High Representative to the European Parliament with regard to CFSP actions, in accordance with Article 36 TEU, thus indirectly ensuring greater political control of the EEAS’s actions. 10  Furthermore, an amendment of budget provisions was negotiated, and, accordingly, implementation of the EEAS operational expenditure remains within the Commission’s section of the budget and    the service is subject to full discharge duties, pursuant to Council Regulation 1605/2002, which is   applicable to the general budget of the European Union. 11   9   See  MirjamVan Reisen,  Establishing the EU External Action Service (EEAS) , Briefing (Europe External Policy Advisors, Brussels) 21 Apr. 2010, at 4, available at    With respect to the staffing of the service and in view of strengthening its “Community identity,” at least 60% of EEAS staff would be made up of permanent EU officials who would be imported from relevant departments of the General Secretariat of the Council and the Commission, whereas staff seconded from national diplomatic services would be temporary agents for a duration up to eight http://www.eepa.be/wcm/dmdocuments/20100421_Briefing_EEAS.pdf .  10  The Parliament also ensured that, in the event that the High Representative cannot participate in a debate in the plenary of the Parliament, the High Representative would be replaced either by the EU Commissioners for Enlargement, Development or Humanitarian Aid, or by the Foreign Affairs Ministry holding the Presidency of the Council, with the exclusion of simple civil servants as HR deputies. See  Council Notice,  Adoption of a Council Decision establishing the organisation and functioning of the  European External Action Service, 2010 O.J. (C 210) 1, 2, available at   http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:210:0001:0002:EN:PDF.  11 See  Council Decision of 26 July 2010, supra  note 7, Art. 8.  2010 THE TREATY OF LISBON - TOWARDS AN EVER CLOSER UNION 25 years. 12 Given the above, one may now address the more delicate issue of “horizontal competences,” or, in other words, whether the EEAS’s scope of action should be limited to Common Foreign and Security Policy actions (“CFSP”) or extended to deal with Community policies traditionally under the domain of the Commission, such as enlargement, development, common commercial  policy, or neighborhood policies. Thus, a good balance seems to have been struck between operative independence and Community accountability. In this respect, the Lisbon Treaty does not seem to provide clear instructions. The Treaty does not suppress the intrinsic dualism of the EU’s external action, maintaining different institutional arrangements and procedures for CFSP proper and other external policies. 13 The High Representative, however, is expressly charged with the task to “ensure consistency”  between the different areas of the EU’s external action. It is arguable that, in order to ensure the effet utile  of such “call for coherence,” the mandate should be reflected in the EEAS itself. In this vein, the role of the EEAS is only mentioned in Article 27 TEU, which refers to the High Representative’s tasks within the CFSP, no mention being made of a “double hatted” EEAS. Some insights on this issue may be gained from the dialogue preceding the establishment of the service. For example, institutions and Member States have seemingly agreed that it is unnecessary to strip the Commission Directorates General of all their external relations responsibilities. As the European Parliament suggested: [p]articularly in the fields where the Commission has executive powers, the integrity of current Community policies with an external dimension should be preserved; the Commission, striving to avoid duplications, should provide a specific model for the departments concerned. 14 The Council expressed itself with even more clarity, affirming that “[t]rade and the development  policy as defined by the Treaty, should remain the responsibility of relevant Commissioners and DGs of the Commission.”  15 Article 2 of the Decision is relevant in this respect and frames the issue as follows: the EEAS would support the High Representative in fulfilling her mandates as outlined in Articles 18 and 27 TEU, which notably include her CFSP mandate as well as her capacities as Vice-president of the Commission and President of the Foreign Affairs Council.  16   12  Id. ,   Art. 6. The reference to Article 18 TEU seems to entail, therefore, that the “double hatted” nature of High Representative’s tasks are, to a 13   See, e.g. , Marise Cremona,  Defining Competence in EU External Relations: Lessons from the Treaty  Reform Process , in  L AW AND P RACTICE OF EU   E XTERNAL RELATIONS  34–69 (Dashwood & Mareceau eds., 2008). 14   E UR  .   P ARL .   D OC .   COM 2133 (INI) (2009),  supra note 5, at § 6(c). 15   Presidency Report  , Doc. No. 14930/09  , supra note 5, at § 6. 16  Council Decision 2010/427, supra  note 7, Art. 2.  26 COLUMBIA JOURNAL OF EUROPEAN LAW ONLINE Vol. 17 certain extent, reflected in the EEAS. At the same time, this would occur “without prejudice ”  to the ordinary tasks of the Commission’s services as well as the General Secretariat of the Council. In this regard, Article 9 of the Decision lists a number of specific instruments of external assistance in which the EEAS would participate by contributing to their    “programming and management cycle.” 17 The Decision provides limited guidance as to how the EEAS could show its ability to coordinate the fragmented aspects of EU’s external policies. However, the Lisbon Treaty’s failure to solve the dilemma regarding the EEAS’s scope of action seems to conceal a purposeful choice by the drafters: the dilemma would be progressively resolved alongside the development and implementation, in practice, of the new Lisbon dimension of the EU’s external action. Among these, decisions and proposals regarding the European Development Fund, the Development Cooperation Instrument, and the European Neighborhood and Partnership Instrument would be jointly prepared by the EEAS and the Commission, under the responsibility of the appropriate Commissioner, and submitted jointly alongside the High Representative for adoption by the Commission. In contrast, other actions, such as those undertaken under the CFSP budget,   the Instrument for Cooperation with Industrialized Countries, and part of the Instrument for Stability, would be under the responsibility of the High Representative and the EEAS. Additionally, the Commission’s department for these instruments’ financial implementation would be co-located. Some other thematic programs would, however, remain within the Commissioner for Development Policy primary responsibility. 17  The list includes: the Development Cooperation Instrument, the European Development Fund, the European Instrument for Democracy and Human Rights, the European Neighborhood and Partnership Instrument, the Instrument for Cooperation with Industrialized Countries, the Instrument for Nuclear Safety Cooperation, and the Instrument for Stability, regarding the assistance provided for in Parliament and Council Regulation 1717/2006, Establishing an Instrument for Stability, Art. 4, 2006 O.J. (L 327) 1 (EC), available at   http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:327:0001:0011:EN:PDF. 
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