Stelio Mangiameli

Article 7 [The Principles of the Federal Coercion]

1. On a reasoned proposal 23–28 by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.

Article 38 [Role and Powers of the Political and Security Committee]

Without prejudice to Article 240 of the Treaty on the Functioning of the European Union, 6 a Political and Security Committee 1,2,4,5 shall monitor 13,14 the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council 7,9–12 at the request of the Council or of the High Representative of the Union for Foreign Affairs and Security Policy 8 or on its own initiative. 14 It shall also monitor the implementation of agreed policies, without prejudice to the powers of the High Representative. 11,15

Article 27 [Role and Powers of the High Representative for Foreign Affairs and Security Policy]

Throughout the years of European Political Cooperation (EPC) on foreign policy—from 1969 until 1993—the rotating Presidency was in charge of responding to external events, proposing common positions and initiatives to be agreed by the MS and acting as spokesman for any agreed policy in foreign capitals and in international organisations. The primary role of the Presidency was formalised in the SEA in 1986 and retained when the CFSP was established on a binding legal basis with the entry into force in 1993 of the TEU-Maastricht (Art. J.5 and J.8 TEU). Leadership by the Presidency reflected the intergovernmental character of the CFSP and the continuing identities of the MS in international fora.

Article 5 [Principles on the Distribution and Limits of Competences]

The vertical division of powers in any federal or regional system is reflected by the vertical distribution of competences between the federal/central level and the state/regional level. Although it is not intended here to insinuate a federal- or regional-like system of vertical division for the evolution of the EU, the distribution of competences of a “supranational union” or “Staatenverbund” (in the terminology of the German FCC) may follow similar models of distribution of powers between the Union and the MS.

Article 26 [Identification of the Union’s Interests and Objectives in CFSP: Competent Authorities]

The provision, which modifies ex-Art. 13 TEU, specifies the competences of the European Council and of the Council, in matters of CFSP as well as in the defining and implementation of the HR’s competences.

Article 46 [Permanent Structured Cooperation]

The institution of permanent structured cooperation is one of the mechanisms incorporated into the TEU in implementation of the principle of differentiated integration or flexibility. As such it has no direct predecessor in EU law. In fact, within the new legal architecture of the ESDP created by the Treaty of Lisbon it is one of the rare genuine novelties. Although the TEU, as amended by the Treaties of Amsterdam and Nice, did not completely rule out more subtle forms of flexible participation in the ESDP (→ Art. 20 para 11), it did not provide for any effective long-term mechanism allowing a group of MS to proceed faster in this field than the rest of the EU.

Article 20 [Enhanced Cooperation]

The institution of enhanced cooperation is proof of the effort to master the balancing act between the widening and deepening of the EU, to bypass the growing heterogeneity among the MS regarding structure and interests and to correspond with the increasing complexity of necessary regulation by institutional provisions beyond the restricted framework of the Treaties.

Article 40 [The Relationship Between Powers and Competences Under the TEU and Under the TFEU]

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3–6 of the Treaty on the Functioning of the European Union.

Article 35 [Coordination Among Member States’ Diplomatic and Consular Missions]

The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.

Article 18 [The High Representative]

The comment analyzes the evolution, the present role and some possible perspectives of the HR in European legal system, in order to reduce the fragmentation of European Foreign Policy. At the same time, a peculiar attention is given to institutional questions concerning the problematic relationship of the HR with other European Institutions (European Council and Council, Commission, European Parliament) and the principles of action lying behind each of them.