Foreign Policy: a Challenge for European Governance?

The EU Foreign Affairs and Security Policy is often seen as weak and vague when addressing its objectives due to the internal disputes it faces that test the coherence and efficiency of the EU’s external action. Since its creation in 1992, the EU Common Foreign and Security Policy (CFSP) has been subject of intense debate regarding the precise delineation of competence between the EU and its Member States. Entered into force in 2009, the Lisbon Treaty, was seen as a significant step towards greater integration and cohesion in the EU’s institutional structure, including in its foreign policy. This essay aims to explore the complexities and ambiguities surrounding this crucial issue and tries to provide an answer on its competence delineation, highlighting how the Lisbon Treaty was supposed to transform the structure of the CFSP. 

Despite efforts to consolidate and define competencies in this area, significant uncertainties and challenges persist, and in this context, the provisions of the Treaty of Lisbon in relation to the CFSP will be carefully examined. It will also be analysed how the lack of a clear classification of the CFSP within the Title I of the Treaty on the Functioning of the European Union (TFEU) has contributed to the ambiguity in the distribution of powers between the EU and its Member States. Moreover, a study of the 2011 Libyan crisis will evidence the complexities and challenges faced by the EU foreign policy, particularly with regard to coherence between the Union and its Member States. The case study will provide an insight into how ambiguities can affect the EU’s ability to act effectively on foreign policy. Ultimately, this essay will argue that, while the Lisbon Treaty sought to revolutionise CFSP by providing a clearer and more unified framework, significant challenges remain and thus  continued attention and critical reflection on the future of EU foreign policy is required in order to address global challenges with coherence and effectiveness.

1. Legislative framework: Foreign policy competence delineation

The EU Common Foreign and Security Policy (CFSP) has existed for thirty-two years, yet  the division of competences between the EU and the Member States often remains unclear. The Treaty of Lisbon chose not to categorise the CFSP within the classifications specified in Title I of the Treaty on the Functioning of the European Union (TFEU) (Wessel, 2012). As a result,  it is not specified whether the CFSP is within the scope of exclusive, shared or supporting competence, instead  it is listed separately. Article 2.4 of the TFEU merely acknowledges the existence of this competence: “The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a Common Foreign and Security Policy, including the progressive framing of a Common Defence Policy.” (TFEU, 2012). One could argue that the CFSP is not classified within the TFEU because its foundation is located in the Treaty of the European Union (TEU), unlike other areas of the Union’s policy. However, even in the TEU, there are no explicit provisions that outline the allocation of competences in this area (Wessel, 2012). 

It is widely accepted that the CFSP does not have the character of an exclusive competence, as decisions on CFSP are taken through unanimity voting by Member States at the Council. Instead, it is more accurately characterised as a shared or concurrent competence (Gosalbo, 2006). Over time, the idea that this competence could be shared has gained traction  (Bono, 2006). However, drafters of the Treaty decided to refrain from establishing the CFSP as shared competence, because such competences are described as having a pre‐emptive effect. Article 2(2) TFEU indeed provides that, in areas of shared competence “the Member States shall exercise their competence to the extent that the Union has not exercised its competence”, and furthermore, the same provision also defines it  as “authorising both the EU and the Member States to legislate and adopt legally binding acts” (TFEU, 2012). Article 2(2) TFEU is then incompatible with Article 24(1) TEU, which excludes the adoption of legislative acts within the scope of the CFSP. As a result, CFSP can not be considered a shared competence as it is not an area of general law‐making, or normative action, where EU acts have a pre‐emptive effect on national competence. (Eeckhout, 2011). 

However, CFSP  is not a competence to support Member States (article 6 competence) as  the latter don’t have discretion to act on their own. Article 24(3) TEU indeed instructs Member States to “support the policy actively and unreservedly in a spirit of loyalty and mutual solidarity, and to comply with the Union’s action in this area. Member States shall refrain from any action which is contrary to the interests of the Union” (TEU, 2007). Thus, CFSP cannot be classified as a field where the Union simply has competence to support Member States.

The choice of the drafters of the Treaties to refrain from categorising it should be interpreted as evidence of the distinct nature of the CFSP (Koutrakos, 2017). Legal experts, such as Cremona define it as a competence sui generis (Cremona, 2013), where  the Commission, the European Parliament, and the Court of Justice have very limited roles. CFSP is “defined and implemented by the European Council and the Council of the EU acting unanimously” (Article 24 TEU), and as a result, it is neither exclusive, shared nor a supporting competence  but rather an undefined category of its own. CFSP is rooted in intergovernmentalism, meaning that neither national parliaments nor the European Parliament can legislate over it (Article 24 TEU), leaving decisions to be taken by states in the European Council and the Council of the European Union – the two intergovernmental institutions of the EU. 

However, once clear that CFSP is intergovernmental, a new question arises:  Article 216 TFEU states that “the competence to conclude international agreements is reserved exclusively to the Union”. While international agreements can be considered a key part of CFSP, they are competence of a supranational entity like the Commission, and Member States don’t have control over them, which clearly affects the coherence and effectiveness of CFSP. Furthermore, Article 216(2) TFEU states that Member States are automatically bound by the agreements as a matter of EU law, but these agreements can restrict the individual freedom of states in external relations which suggests  that Member States should have a say on them (Wessel, 2012).

At the same time, the Lisbon Treaty did not explicitly address whether the High Representative (HR) of CFSP should promote a common foreign policy position by redefining the interests of Member States towards a unified perspective, or if the HR  should simply act as a spokesperson of the Council – an issue that has greatly affected the coherence of CFSP. Furthermore, treaties have not resolved the question of who represents  the Union in international relations. It is not only the HR of CFSP who handles  foreign policy issues; both the President of the European Council and the President of the Commission play significant roles in the external relations of the Union. (Piris, 2010) 

The Maastricht Treaty established the three pillar structure of the EU,  then  abandoned with the entry into force of the Lisbon Treaty. The pillar structure illustrated in legal terms an evident fact: Member States want to collaborate, but each at its own speed and following its own integration model without compromising their independence in the conduct of foreign policy (Koutrakos, 2017). This is what the pillar structure was intended to safeguard. The Lisbon Treaty succeeded in making the EU legal order appear less complex. However, it did not become less complex to manage in substance.

In simpler terms, even though the treaty didn’t explicitly keep the old pillar structure, it still essentially functions that way; this isn’t necessarily negative; it acknowledges that Member States want to cooperate more closely in some areas but still want to retain control over their own foreign policies. This distinction is important for the EU’s organisation and how it acts externally.

As a result, it is evident how treaties have left  many questions unanswered, leading to too much ambiguity and a lack of formality in CFSP. This results in inconsistencies and inefficiencies in Foreign Policy, ultimately producing an EU that is weak when addressing its objectives due to internal disputes. An example of what has been just mentioned is the 2011 Libyan Crisis.

2. The EU Framework in Practice: Examining the 2011 Libyan Crisis Response

The crisis in Libya, which started in the beginning of 2011, represented the first major security crisis after the ratification of the Lisbon Treaty. Libya at the time was an important business partner, with many Member States having established significant trade relations and investments with Gaddafi’s regime. Consequently, when the Arab Spring sparked political upheaval, major European countries were cautious in  taking a stand against Gaddafi (Fabbrini, 2014). 

The first official responses of the EU to the crisis were communicated by the HR Catherine Ashton, who, in a tone of caution, expressed that the Union was “extremely concerned by the unfolding events in Libya” and urged the Libyan authorities to abstain from using violence against insurgents (Council of the EU Press Office, 2011). It was followed by similar statements by the President of the Parliament, the President of the European Council and the President of the Commission (Gines, 2020). Simultaneously, the UNSC passed Resolution Nº 1973 which established a no-fly zone and encouraged ‘taking all necessary measures to protect civilians” (UNSC, 2011)

Divergences inside the EU arose when the need to outline the intervention strategy in Libya entered the Foreign Policy agenda. While the President of the European Council claimed that the objective of the intervention should be a regime change, the HR of CFSP favoured  a less confrontational approach with the Libyan regime. At the same time, France and Britain moved towards intervening in Libya, as the HR continued to express caution regarding the establishment of sanctions, and opposed an intervention (Fabbrini, 2014). 

NATO, instead, emphasised the necessity to intervene on humanitarian grounds, a claim  supported mainly by France and UK, but opposed by Germany and Italy (Barigazzi, 2016). As a result, the HR refrained  from taking a position in support of military intervention in Libya as different interests froze the decision-making process at EU level (Echague et al, 2011). On March 11th an extraordinary meeting of the European Council was held, during which the HR’s resistance to the intervention caused a public confrontation with the British Prime Minister David Cameron and French President Sarkozy (Fabbrini, 2014). Giving in to external pressures, on 17 March 2011, the HR finally expressed her support to a military intervention in Libya, as it was going to be authorised by UNSC Resolution Nº 1973. 

Due to the clash of interests among EU countries, the European Union’s capacity to respond effectively to international crises has often been called into question, with some leaders asserting that specific institutional reforms could enhance its impact. During the conflict between Russia and Georgia in August 2008, French President Nicolas Sarkozy argued that if the Lisbon Treaty had been in force, the EU would have had  the institutions and mechanisms necessary to take decisive action and assert its influence (Koutrakos, 2017). However, the 2011 Libyan Crisis, which occurred when  the Lisbon Treaty was in force, demonstrates  that Sarkozy was mistaken;  the Lisbon Treaty still failed to guarantee coherence and efficiency in the EU’s external action.

3. Conclusion 

Despite the Lisbon Treaty being hailed  for supposedly bringing unity to the EU’s structure, and for integrating foreign, security, and defence policies within its constitutional framework; it has been proven that legally it’s not as unified as it seems. It has only been the appearance of unity which has been achieved. 

As shown by the 2011 Libyan crisis, the EU’s foreign policy continues to face significant challenges, even after the Lisbon Treaty. The lack of unity among member states demonstrates how national interests still hinder the EU’s capacity to act collectively. This remains a critical issue today, as seen in recent crises like Nagorno-Karabakh, where similar divisions affected the EU’s response.

Thus, while the Lisbon Treaty might have created the illusion of a simpler legal framework, the underlying complexities remain, leading to inconsistencies and inefficiencies in the EU’s external action. 

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