In a policy-oriented analysis, Dr Simon Duke (EIPA, Maastricht) looks at conflicts of competences and “grey areas” between the Community and the more ‘intergovernmental pillars’ on which the Union establishes its external relations – and how to remedy them.
In the first part of the document, S. Duke takes a historical and institutional approach at the “otherness” of the external policy within the wider EU policy-making system. Dating back to the 1970s, and increasingly so with the end of the Cold War and the Maastricht Treaty, the European external capacity has been split between the Community and a “special” pole of competence – as from now, the Common Foreign and Security Policy (CFSP) and its “subset,” the European Security and Defence Policy (ESDP), that constitute the “second pillar.”
This dual competence has resulted in the Commission and Council’s competition for power and funds in their activities, the author points out. This is even more so since external relations increasingly involve border, organised crime and counter-terrorism issues that arise in the context of the “third pillar.” The Community-biased jurisprudence of the European Court of Justice, aimed at developing “implied” external powers of the Community, is also said to have added to already institutional tensions. Finally, the appointment of the High Representative for CFSP in October 1999, the establishment of a Policy Unit which reports to him and thereafter, the military and civilian crisis management institutions in the ESDP area may have been resented by the Commission as a provocative confirmation of “the ascendancy of the Council in external relations,” according to the author.
These tensions are then illustrated by a series of examples and with a more in-depth study of the ECOWAS and SALW case – an action brought by the Commission against the Council for lack of competence in certain civil security activities abroad, that S. Duke considers a “landmark” ruling.
To conclude, the author mentions recent initiatives that he thinks go in the right direction to “resolve, or at least, diminish” competence issues:
- The creation, foreseen in the Constitutional Treaty, of a European External Action Service and of a Union Minister for Foreign Affairs – although he admits this could also represent another sensitive issue in the competence struggle;
- In the absence of such Treaty, ad hoc solutions such as the cooperation for the missions in Aceh and at the Moldova-Ukraine border, or the appointment of a single European Commission/EU representative to the Former Yugoslav Republic of Macedonia.