Mauro Gatti is a PhD candidate in EU law at the University of Bologna and the University of Strasbourg. His article, “‘External representation of the European Union in the conclusion of international agreement” (with Pietro Manzini) recently appeared in (2012) 49 Common Market Law Review, Issue 5, pp. 1703–1734.
The awarding of the Noble Peace Prize to the European Union is a welcome event, especially in the context of the economic, social and political crisis facing the EU. The choice of the Nobel Committee also raises an interesting legal question: who should physically go to Oslo on December 10th and deliver a speech on behalf of the Union? This is a variation of the eternally unanswered question, attributed to H. Kissinger, “who do I call if I want to call Europe?”
This sort of question is often derided as exceedingly technical or formal. In international relations, however, forms may coincide with substance. The external representation of the Union grants elevated visibility and it ensures some discretion as to the content of the message to be delivered or, at least, in respect of the way the message is provided. Since institutional power games and personal struggles for visibility render external representation extremely contentious, this issue has been the object of turf wars for decades.
The Lisbon Treaty modified some specific arrangements, but it did not simplify the general representation framework. On the contrary, it introduced some novel uncertainties, which have already led to legal confrontation (see e.g. case C-28/12) and are likely to raise new issues in the case of the Peace Nobel Prize. The numerous declarations of EU leaders, issued subsequently to the announcement of the Nobel Committee, provide for a glimpse of the insterinstitutional battles that will be fought in the next few weeks: a statement came from the Cyprus Rotating Presidency, another from the European Parliament, a third from the High Representative, a fourth from the President of the European Council, a fifth from the President of the Commission, and a sixth from…the two Presidents together. It is likely that all these leaders strongly desire to deliver a speech in Oslo and be associated with this prestigious Prize. Therefore, the identification of the EU speaker will probably be laboriously performed through a legal battle concerning the interpretation of their respective competences.
The new pivotal rule relating to EU external representation is contained in Article 17(1) TEU: “with the exception of the common foreign and security policy, and other cases provided for in the Treaties, [the Commission] shall ensure the Union’s external representation.” In order to identify the EU representative in Oslo, therefore, we need to assess whether the Treaties contain exceptions to Article 17(1) TEU.
The Treaties do not contain any such exceptions enabling the Council Rotating Presidency, other Member States or the European Parliament (EP) to represent the EU. Before the Lisbon reform, the Rotating Presidency used to represent the Union with respect to the Common Foreign and Security Policy (CFSP) and Police and Judicial Co-operation in Criminal Matters, as well as in the signing of numerous international agreements. In theory, the Treaties no longer contain any provision which allows the Rotating Presidency, or any other Member State, to ensure EU external representation. In practice, there seem to be two exceptions. The Member States represent the Union in multilateral fora open only to States, such as the Security Council. In addition, the Council enables the rotating presidency to sign international agreements on behalf of the EU, by relying on an extensive reading of its decision-making powers under Article 218 TFEU (even if this practice is controversial). Needless to say, the case of the Nobel Prize is not concerned by these exceptions. Hence, the Member States should not have any place on the stage of the Nobel Ceremony.
For similar reasons, the European Parliament cannot represent the EU, even if its President affirms that “we, together with the other EU institutions, look forward to receiving the Nobel Peace Prize in Oslo”. To be sure, the EP is the only democratically elected EU institution, it has relevant powers in the field of external relations and it embodies the democratic values and ideals that led to the awarding of the Nobel Prize. However, the Treaties do not attribute the EP any competence relating to external representation. This is not surprising: the representation of most countries is ensured by organs holding the executive power and not by the legislative ones. In fact, which parliamentarians should go to Oslo on behalf of the EP? The president, some representatives of the majority, or a representative from each group? Should extremist and eurosceptic groups be represented in the EP delegation? In this perspective, the absence of the EP in Oslo would be both legally correct and politically logical.
The Treaties enable only five entities to represent the Union: Union Delegations, the European Central Bank (ECB), the High Representative (HR), the President of the European Council and the Commission.
According to Article 221(1) TFEU, “Union delegations in third countries and at international organisations shall represent the Union.” Therefore, the Head of the Union Delegation to Norway should be the most qualified person to receive the prize on behalf of the EU. However, the solemnity of the Nobel Ceremony probably requires the presence of a political representative, instead of a diplomatic one.
This political representative can hardly be the president of the ECB. This is not because the Treaties (Article 138(2) and 218(3) TFEU) never explicitly empower the ECB to do so, but rather because the Nobel Prize certainly was not awarded for the EU’s monetary policy. In fact, the Nobel Committee made a reference to European “grave economic difficulties and considerable social unrest.”
The above considerations leave only three possible choices: the High Representative, the President of the European Council and the Commission. According to Article 27(2) TEU: “The High Representative shall represent the Union for matters relating to the common foreign and security policy.” The HR would have an advantage over other political actors, since she is a CFSP representative and she can represent the Union also in the non-CFSP area, in her capacity as a Commission Vice-President. Nonetheless, the HR only acts at ministerial level: it may be argued that the Nobel Ceremony deserves a representative at the level of Head of State.
It is commonly accepted in practice that the Union ‘Head of State’ for CFSP matters is the President of the European Council, who, according to Article 15(6) TEU “shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.”
The President of the European Council, however, can only represent the EU with respect to the CFSP, whereas the Nobel Prize was not awarded solely because of this policy. Hence, the EU needs another representative beside H. Van Rompuy. Since no Treaty provision provides for a specific representation regime for non-monetary non-CFSP issues, we have to conclude that the Commission shall ensure the Union’s external representation in this area, consistently with Article 17(1) TEU. As it is customary for solemn events, the President of the Commission should perform this task.
In summary, the Treaties suggest that the Nobel Committee will have to call the President of the European Council and the President of the Commission. This is not surprising since the EU was represented by these subjects also during recent summits, such as the G-20. The issuing of a joint statement by J. Barroso and H. Van Rompuy after the Nobel Committee’s announcement may suggest that they intend to continue this representation practice also in this case.
It may be wondered whether this bicephalous solution is a good way to represent the “fraternity between nations” the Union stands for. Legally speaking, this duality can only be avoided by ‘downgrading’ the EU’s representation to ministerial (HR) or diplomatic level (Head of Delegation). In a political perspective, such choice would be inopportune and even undesirable: since the EU is also a Union of States, it is perhaps fair to ensure the presence of an ‘intergovernmental’ representative beside the ‘Communitarian’ one.