The EU has thus far been unable to settle to what extent the Foreign Affairs Council is allowed to intervene in the decisions of other Council configurations, such as the Environment or Agricultural Council, when they discuss matters with international implications. This battle between diplomats and policy experts is an often overlooked cause of the EU’s inability to present a coherent image to the outside world. The new provisions in the Lisbon Treaty do not settle this issue, even though the co-ordination of all external policies is mentioned as a task of the High Representative.
Contemporary international relations is not only about war and peace questions. Neither is it about these issues combined with discussions on trade tariffs and development aid. In our globalised world, international relations cover almost all issues national governments deal with, such as environment, health, transport, crime, labour, finance, food, and so on. Indeed, probably most of what is discussed in international bodies and bi-lateral talks concerns issues falling outside the prime responsibilities of traditional foreign policy specialists or diplomats. There is a rationale for these diplomats to seek a co-ordinating role on these issues though, as international policy discussions are usually intertwined; the problems they address are often related and policy solutions have side effects for other fields. The performance of the EU, or any other political entity, in one set of international negotiations influences its general image in the world.
Globalisation of policies has major repercussions for the division of labour between policy experts of line ministries and diplomats of ministries of foreign affairs, or – in EU speak – between Commission Directorate-Generals and the European External Action Service. In the ongoing reform of the EU’s external relations this issue is insufficiently addressed. Most attention is devoted to the question of how far the EU level is allowed to take over foreign policymaking decisions made at the national level. This has drawn attention away from the question of how far the EEAS and its delegations are allowed to develop, co-ordinate and represent EU foreign policy to the detriment of policy experts from DGs and line Ministries. In comparison to the battle between the EU and national level, the battle between diplomats and policy experts is receiving much less attention, but it too has major repercussions for how the EU operates internationally.
The Lisbon Treaty distinguishes in essence between three categories of EU foreign policy or external relations (see table 1). The first category is the Common Foreign and Security Policy (CFSP), the traditional war and peace questions to which the Common Security and Defence Policy also belongs. Decision-making in this area has remained largely intergovernmental with member states keeping their national veto over most important decisions. Only recently has the High Representative taken over chairmanship of the Foreign Affairs Council and its subordinate bodies, giving her an agenda setting role and entitling her to be the EU’s spokesperson to the outside world on common positions agreed by the Council. If EU Member States disregard such positions, however, there isn’t much that can be done, as the CFSP has remained outside the scope of the European Court of Justice. In case no position is agreed, there is even more space for EU member states to put forward their own position.
The second category of external policies are those issues where a full EU competence exists according to the Treaty on the Functioning of the Union. The most important one is trade, an issue also formally falling within the remit of the Foreign Affairs Council. Yet when trade is on the agenda of this Council it is not chaired by the High Representative, but by a representative of the rotating presidency. His or her role is merely that of a technical chair, as mandates for trade negotiations are proposed by the European Commission which is also the EU’s main spokesperson, or lead negotiator, towards third countries and within the WTO. Qualified majority voting is used to decide upon these mandates in the Council and when trade agreements are concluded the European Parliament’s assent is also now needed for them to enter into force.
The third category of external policies are those issues where only a shared or complementary EU competence exists. This is the most problematic category where policy experts often oppose EU level involvement and the involvement of EU diplomats in particular. These issues are usually discussed in other Council configurations than the Foreign Affairs Council, which makes it unclear to what extent they could be labelled foreign or external policies. Moreover, other Council configurations are still chaired by the rotating presidency, which also represents the Council externally. On fully harmonised EU policies authority over external representation has to be transferred to the Commission, but international agendas often do not neatly follow what is covered by specific EU treaty articles or pieces of EU law. This leaves space for representation by the rotating presidency, an option often preferred by the EU member states.
The problem is that it is not clear to what extent the part of the external policy not falling within the realm of the EU’s competence – the member states’ share – is subject to CFSP provisions, which would justify involvement by the High Representative and her EEAS and EU delegations. Neither is it clear whether member states still have a choice in deciding whether they want to operate with a single voice on these issues, which would allow them to ignore any co-ordinating role for EU actors, be it the Commission or the EEAS and EU delegations.
A solution has to be found when an international agenda covers both issues where the thrust of the competence is with the EU and issues where the thrust of the competence is with the national level. Either all issues are covered by one EU lead negotiator, or non-EU states have to accept that on different agenda items different EU lead negotiators are in charge, as happens in the Food and Agricultural Organisation. In this case the rotating presidency represents the EU on issues where the thrust of the competence is with the member states and the European Commission represents the EU on issues subject to exclusive EU competence. This also assumes, by the way, that the European Commission is allowed to speak as if it were a state, which is not automatically the case in all international institutions. The actor that speaks also usually prepares the position, and if the Commission is the spokesperson, the mandate tends to be adopted by qualified majority voting, which tends not to be the case when the presidency is in charge and often allows consensus as decision-making norm.
Not surprisingly, since the enforcement of the Lisbon Treaty turf wars have emerged in just about all the settings where the EU represents itself externally, be it in New York, Geneva, Vienna or Rome, or in capitals such as Beijing, Washington and Moscow. Member states, the UK in particular, seem highly reluctant to allow the EU level to take the lead in developing, co-ordinating and representing the EU externally. They begrudgingly accept it for reasons clearly rooted in the EU’s exclusive competence in areas like the WTO negotiations, where they oversee the Commission’s activities as 27 mother-in-laws. On many other issues they contest a take-over by a supranational EU spokesperson on the basis of sovereignty arguments, either arguing that the thrust of the competence is with the Member States or that own rights for external representation in international institutions continue to exist, as acknowledged by various policy specific provisions in the treaty.
Those involved frequently look to Brussels for a general solution – a solution that’s hard to envisage when taking into account the different rules for external representation applying to the three categories, with international agendas often covering issues that belong to at least two of them (e.g. trade and CFSP items). Issues falling within the realm of member states’ competence cause particular headaches since in legal terms it remains unclear what procedure to follow. A legal dispute is unlikely to settle the issue, as both external policies of EU member states and the CFSP fall outside the scope of the European Court of Justice. Foreign policy specialists would argue it is more coherent for the EU to speak jointly on all international issues and this would also prevent others from using divide and rule strategies. But policy experts look at the specific issue in hand and may prefer national representation, even if that’s detrimental to the EU’s overall image. This battle between diplomats and policy experts has intensified after the new EU foreign policy actors entered office. It will inevitably need to be sorted out on a case by case basis, acknowledging that both diplomatic and expert knowledge are often needed to be internationally effective.
Currently national governments allow, and sometimes even encourage, their policy specialists to oppose a larger degree of co-ordination and involvement of the EU’s foreign policy specialists of the EEAS and EU delegations. Their involvement would dilute policy specific or national interests. Policy experts from line Ministries and Commission DGs that sit together at international meetings at times have even joined forces in opposing their counterparts from the EEAS. This is a somewhat neglected but essential issue that cannot be settled by lawyers. A political solution is the only option, and only then will speaking with a single voice on all issues become a reality.
Louise van Schaik is a Senior Research Fellow at the Clingendael Institute, The Hague. firstname.lastname@example.org