Intergouvernementale Exekutivgewalt : die Verfassung der europäischen Außen-, Sicherheits- und Verteidigungspolitik

Abstract

CFSP diplomacy and CSDP operations differ from law-making and should be described as executive power instead. This may appear as a trivial conclusion, but allows us to read the Treaty regime for CFSP correctly. It explains why institutional practice follows the Treaty concept of formalised decision-making by the Council only when the projection of personnel or the dispersal of funds require a formal legal basis in a Council Decision. By contrast, everyday foreign policy business is often managed without Council involvement through informal instruments or direct contact with third country representatives. Thus, the European External Action Service (EEAS) and other administrative support bodies gain momentum of their own as Brussels-based executive institutions. These administrative CFSP bodies support the Council, the High Representative (HR), the Commission and the member states, which jointly constitute Europe's compound executive order.Despite the abolition of the pillar structure CFSP continues to be subject to 'specific rules and procedures' (Art. 24.1 TEU). This assertion hints at the decidedly intergovernmental set-up of the Treaty regime. The member states acting by consensus within the Council retain full control over the direction of CFSP. This persistence of procedural intergovernmentalism explains why the legal capacities of the HR and the EEAS fall short of the political prerogatives of most national foreign ministers and foreign ministries. Without consensus among the member states, there is no foreign policy position to represent. Moving beyond decision-making, six arguments support my hypothesis that legal effects of CFSP are not supranationalised. Legal instruments, categories of competences, national constitutional law and the executive character of CFSP argue against the extension of supreme and direct effect. Formal CFSP decisions are legally binding, but are in regular circumstances not based on a transfer of sovereign powers to the European level. This state of affairs reflects the present structure of security and defence policies, whose effet utile requires political support by the member states - not the disapplication of national policies. CFSP is a variation on the supranational integration model.This sober outlook concerns the rejection of vertical supranationalisation of relations between the EU and the member states only. By contrast, the new unity of the EU legal order results in the horizontal constitutionalisation of CFSP, which in future will be subject to Europe's constitutional control standards, including human rights. Thus, the most important consequence of the uniform Treaty framework does not concern institutions or procedures, but is normative, in the thick understanding of European constitutionalism: EU primary law is substantively biased towards the legal and political accountability. CFSP is no exception in this respect. Academics working on CFSP should consider substantive control standards and institutional mechanisms to hold CFSP executive power to account.