CYIL 2012

EMIL RUFFER CYIL 3 ȍ2012Ȏ Another and much more viable perspective is offered by A. Dashwood, who stresses the fact that the CFSP competences under Chapter 2 Title V TEU are confined to foreign policy in the sense of political, security and defence aspects of international relations. It should therefore not be understood in a general sense, as covering the whole range of the Union’s competence in the external sphere, for which the Treaty of Lisbon has introduced a new term, namely ‘the Union’s external action’. 24 CFSP measures can thus be used to attain political or security objectives, whereas, for example, development cooperation competence under the TFEU should be used for actions focused on development objectives. However, any determination of a legal basis for particular external action will continue to require consideration of its aim as well as of its content, though the choice may be less clear cut and there is likely to be a proliferation of ‘overlap effects’. 25 To put it in other words: with the common set of objectives for the Union’s external action, CFSP measures will have to be ‘extracted’ from this common framework, bearing in mind the nature of the CFSP as being confined mainly to political, security and defence aspects of international relations. It can be expected that CFSP measures will have ‘side effects’ – they might affect other objectives of EU external action within the common set of objectives. However, this might not be an insurmountable problem from the perspective of Art. 40 TEU, since this provision only protects the relevant procedures and the extent of the powers of the institutions under the TEU and TFEU, respectively. 26 The crucial point is that the choice of a CFSP measure may incidentally affect other objectives of the Union’s external action (such as development cooperation), which can be closely interlinked, provided that it is consistent with other external policies. What it may not do is to wholly substitute the external action under the respective TFEU legal basis, which would amount to affecting the relevant TFEU procedures and infringing the extent of the powers of the EU institutions. It follows from the above that due to the existence of the EU single legal personality and the common set of external action objectives, the choice between the CFSP and other external policies might be much more influenced by the distinction between the procedures and the extent of involvement of the institutions, including the European Parliament (hereinafter also the “Parliament”). Nevertheless, this shift of focus does not solve the problem of the unchartered borderline between the CFSP and other external policies under TFEU, since the procedural argument can just substitute the substantive one (i.e. aim and content of the measure) and still generate future institutional disputes between the Council, the Commission and the Parliament. 27 24 Dashwood, op. cit. supra in note 11, p. 102. 25 Ibid., p. 103. 26 This is rather different from the “non-affectation” clause in (pre-Lisbon) Art. 47 TEU, which protected the competences under the TEC as such, without it being necessary to examine whether the CFSP measure actually prevented or limited the exercise of these competences by the Community (C-91/05 Commission v. Council , para. 60). 27 Such disputes would probably focus on the issue of whether it is justified and legitimate to use the

10