Editor’s Note: This is part of a series of post on the Treaty of Lisbon. The first post in the series was by Laurent Pech and can be found here
Now that Ireland has voted yes in a referendum earlier this month – remarkable how democracy swings! – the European Union’s Treaty of Lisbon looks set to enter into force over the next couple of months. Barring any further upheaval, such as a recalcitrant Czech President refusing to sign, or further delay allowing the UK Conservative Party (if they win the next general election in the UK) to set up their referendum, the curtain will fall over the European Union’s [EU] long constitutional episode which followed the Treaty of Nice. It is by no means the end of the play though. The curtain may fall for the general public, but behind the scenes much of the work remains to be done. The entry into force of Lisbon will not close institutional reform. Quite the contrary, it will set in motion an intense period of institutional adaptation, governed by often sketchy Treaty provisions which are indeterminate and riddled with opportunities for inter-institutional strife. This is particularly the case for the conduct of the EU’s external relations – or external action, as the Treaties now call it. The role and position of the High Representative for Foreign Affairs and Security Policy, who will also be a Commission Vice-President, will need to be clarified. His or her relationship with both the Commission President and with the new European Council President will need to be developed. The EU’s External Action Service will need to be set up. These are just some examples.
The focus of this post is not on such institutional issues, but on other questions regarding the EU’s future as an international actor, subject to international law. What are some of the main changes which may affect that future? Here are some projections.
The International Legal Personality of the European Union
Readers probably know this by now, but it is still momentous: the European Community will be no more. The difficult construction of a European Union, based on, and complementing the European Community, will be replaced by a single EU, which will have legal personality (Art 47 Treaty of the European Union [TEU]). That will terminate the rather tedious academic discussions about whether the EU, as opposed to the EC, has international legal personality (it clearly had, at the latest from the moment it started concluding international agreements). Instead of two international legal persons, the EU and the EC, there will be only one. This also means that the various EU external policies will need to be further integrated. The above institutional changes aim to contribute to that. The single EU will be able to act under international law, mainly by concluding international agreements and through action in international organizations, in all the spheres of its activity. There is a big but, though. The Common Foreign and Security Policy [CFSP] continues to be subject to a specific and separate set of provisions, in the TEU, which are not very different from the old ones. CFSP essentially retains its ‘pillar’ status. One question which this raises is whether, under the new Treaties, the EU will be capable of concluding international agreements which contain provisions on, say, both foreign policy and trade policy. At present such inter-pillar agreements appear excluded – see the European Court of Justice’s decision in Case C-91/05 Commission v Council (Small Arms and Light Weapons)  ECR I-3651, paras 76-77. It is not clear whether Lisbon changes that.
EU Objectives on the International Scene
One way in which the new Treaties aim to unify external action is through a common set of provisions, which inter alia define the EU’s overall objectives on the international scene. A short version can be found in Art 3(5) TEU, a longer one in Art 21 TEU. There is no lack of ambition. The EU ‘shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to strict observance and the development of international law, including respect for the principles of the United Nations Charter’ (Art 3(5) TEU). Europeans continue to be from Venus, not Mars. But do such provisions have any legal effect? It is an interesting question. The ECJ has so far not been minded to pay much attention to general Treaty objectives when interpreting or reviewing Community acts (Art 131 EC, for example, which speaks of ‘the progressive abolition of restrictions on international trade’, has never had any significance for the judicial review of trade policy measures). But a new Treaty may lead to new case-law.
International lawyers will note the final phrase in Art 3(5) TEU: strict observance and development of international law, including respect for the principles of the UN Charter. Could that provision become relevant for the EU Courts? The Kadi judgment springs to mind, of course. Many international lawyers are critical of the way in which the Court treated UN law in that judgment (see discussion of this criticism here). Would the ECJ re-define the relationship between EU law and UN law, in the light of the above provision? It is in any event not unlikely that there will be a sequel to Kadi before the ECJ (there is an action for the annulment of Mr Kadi’s re-listing, pending before the CFI, see discussion here), and by that time the new Treaty should have entered into force.
The EU is of course already a very active international player, in particular in terms of concluding international agreements. Lisbon is remarkable, not only for what it regulates, but also for what it leaves untouched. The EU’s treaty-making practice is dominated by its preference for concluding so-called mixed agreements, which have the EC and its Member States as contracting parties. These mixed agreements raise a host of complex questions, under EU law, but also under international law. The current Treaties do not address those questions – other than through the application of the principle of loyalty (Art 10 EC), which is translated into a duty of cooperation in external action. Lisbon, notwithstanding its focus on external action, adds nothing as regards mixed agreements. Indeed, an uninformed reader of the EU Treaties will find no references to mixed agreements, and will not even be aware that they exist. Constitutional law evolves in written and in unwritten form. It will continue to fall to the ECJ to put flesh to the duty of cooperation (see e.g. the recent Opinion by Advocate General Maduro in Case C-246/07 Commission v Sweden, see EJIL:Talk! Commentary on the case here).
Expansion of EU Common Commercial Policy to include Foreign Direct Investment
The EU’s external powers – its catalogue of competences – do not substantially expand when Lisbon enters into force, with one major exception. The common commercial policy will include ‘foreign direct investment’ (Art 207 TFEU). With a tick of the clock, an important area of international law will come within the EU’s exclusive powers. That is a remarkable development, given that the EU has never displayed a very strong interest in this branch of international economic law. EU Member States all operate a complex network of bilateral investment treaties, which are at the heart of international investment law. The EU’s involvement has been limited to participation in the Energy Charter Treaty, and in GATS, which have investment dimensions, and in the negotiation of the ill-fated multilateral agreement on investment. A momentous development, therefore, and it is at this stage unclear how the EU institutions intend to proceed in this area. Of course, the many bilateral treaties cannot be immediately replaced by Europe-wide agreements, and the EU will therefore have to authorise their continued existence and operation. But beyond that, there is at present no discernible policy direction. International lawyers with an interest in this area will need to brush up on the law of EU external competences, EU trade policy, and treaty-making (including mixity).
These are just some pointers to what kind of questions Lisbon may bring to the surface. One final comment. Notwithstanding the repeal of the Constitution for Europe, and the excision of constitutional symbols and concepts from its Lisbon twin, constitutionalism continues to be the EU law paradigm. The excisions may make that a bit more difficult to notice, but have not fundamentally altered the nature of the exercise. So Lisbon further strengthens the EU constitution, small caps; and it looks like it will be with us in the present form for quite some time.