Abstract: This contribution aims at giving a comprehensive, horizontal and detailed analysis on Article 8 TEU, which was introduced by the Lisbon Treaty in 2009 in the EU founding Treaties as a special legal basis for concluding 'specific agreements' with the so-called 'neighbouring countries' of the EU in the context of developing a 'privileged relationship' with them for the purpose of 'establishing an area of prosperity and good neighbourliness', based on close and peaceful cooperation. It will address first of all the historical background of this unique (but somewhat 'forgotten') legal basis; then how it can be distinguished from Article 49 TEU (accession treaty legal basis) and Article 217 TFEU (association agreement legal basis)?; what are the main legal doctrinal, political and institutional elements and the real effet utile of this specific legal basis?; what type of potential specific agreements could be concluded by the EU based on this legal basis?; why it has not been used so far? and whether what could be the future legal and political advantages of its potential application?; finally what legal (and/or political) limits could be addressed in terms of using it, especially following the very rapidly and constantly developing jurisprudence of the CJEU, strongly defending the autonomous nature of the EU legal order and the values, based on which the EU is built upon?
Article 8 TEU was a great legal innovation of the Lisbon Treaty (and before that of the draft Treaty establishing a Constitution for Europe[2]). It was born together with the reformed foreign policy approach and substantially renewed European Neighbourhood Policy (ENP) of the EU after 2003[3]. A new concept of the ENP was undoubtedly necessary for the EU after its biggest ever enlargement, which was politically decided at the Göteborg European Council Summit in June 2001[4] and when the EU admitted ten new Member States (from Central and Eastern Europe plus Cyprus and Malta) at the same time in 2004. It was inevitable and rational to offer a new concept and a new 'Wider Europe' dimension[5] to all the neighbouring countries, a new real European 'neighbourhood policy' perspective first of all for the 'immediate neighbourhood' (or as it was called at that time 'immediate proximity'[6]) of the enlarged Union primarily in order to avoid any further division between the Union and (after the 'so-called big bang 'Eastward enlargement') the newly occurring outer periphery of the EU as well as to further ensure, but in a more coherent and consistent way, peace, prosperity and stability in the wider Europe, not focusing only on the Western Balkan, but even much beyond it. This meant a new dimension both to the EU's 'old' (EFTA countries, mini states) as well as to the 'new' neighbours (like e.g. former PCA partners in the Eastern Europe etc) all together, since it was clear that not all 'neighbouring countries' around the EU can join the EU in the foreseeable future or there are some, which don't have even the idea and/or the aspirations to ever join the EU. The EU had to offer something new to them too after 2003. In my view, the elaboration of a new ENP concept (with the newly invented special 'neighbourhood clause' as new legal basis in the EU primary law) was also a historical commitment and great practical challenge for the EU especially vis-à-vis the Eastern European neighbourhood, what concerns the newly emerged democracies from the ex-Soviet Union block to give them help and a renewed European per-
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spective (later on these states became the socalled 'Eastern Partnership' partners).
The Article 8 TEU, which is the main subject of this legal and political analysis, reads as follows:
"1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.
2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.[7]
Regrettably, however, since the entry into force of the Lisbon Treaty, so from 1st December 2009, this new Treaty provision despite its constitutional significance[8] and its distinguished place in the Treaties' architecture has not yet been applied. The usefulness and the practical relevance of Article 8 TEU as a special new legal basis for concluding specific agreements with neighbouring countries in the academic literature has been assessed very negatively so far. For example, S. Blockmans in his most recent comprehensive paper on the ENP gave the following summary on this unique Treaty legal basis: "Article 8(1) TEU represents a container concept that does not provide the necessary teeth for the Union's paper ENP tiger to survive in the mercurial neighbourhood. Moreover, the instruments through which the ENP has to be implemented have to be borrowed from other parts of the treaties, from which Article 8 TEU is disconnected. (...) When looking at the big picture, the inclusion of a specific neighbourhood clause in the Lisbon Treaty is emblematic of the overall reactive nature of the EU's actions in its neighbourhood, captured by the maxim 'too little, too late'."[9] Others consider Article 8 TEU just being a 'programming' or 'framework provision', the inclusion of which into the Treaties 'was largely inspired by political and symbolic motivations', it is practically and essentially a 'declaration of intent', the added value of which 'seems rather limited' and 'not very clear'[10]. In fact, 'the special relationship envisaged under Article 8 TEU lacks exclusivity. It is not at all clear what kind of specific benefits it offers to neighbouring countries in comparison with traditional association or even partnership agreements. (..) Hence Article 8 TEU is essentially a political provision the significance of which for practical development of the EU's neighbouring relations is questionable".[11] From the most recent related literature, for instance, G. Van der Loo even concludes that 'it is unlikely that this new neighbourhood clause will be used as a legal basis for the conclusion of future agreements with other (other than Ukraine) EU 'neighbours' such as those envisaged with Switzerland, Russia and the micro-States.. ", simply because, based on his research, from a practical point of view it is not needed.[12]
As a contrast, there are on the other hand also more positive, forward-looking and perhaps more wide-ranging and pragmatic assessment as well. For example, Ch. Cellerino strongly supports the future use of this special and innovative legal basis by arguing as follows: "...The wording of the provision ... seems to incorporate a change of approach at primary law level: .the focus should rather be put on selected priorities reflecting EU interests in stability (around its borders). The above reading of the provision seems further confirmed by the location of Article 8 within the 'Common Provisions' of the TEU. It is not related to the enlargement provision (Article 49 TEU), nor is it included in the specific sections of the Treaties relating to the external action of the Union, namely Title V TEU, and Part V TFEU. As a consequence, ENP qualifies as a structural element of the EU, a necessary tool for its peaceful existence. In order to be effective, ENP is designed as an inter-treaty (formerly inter-pillar) legal basis, involving as much TFEU competences (e.g. migration, development, energy, transport, environment, free movement of persons, trade) as CFSP competences (e.g. political dialogue, security and defence). In this perspective, its location outside of Title V TEU regarding specific provisions on CFSP allows Article 8 to operate regardless of the limits imposed by Article 40 TEU...(thus) measures aimed to support reforms or address emergencies in the neighbouring countries could be adopted on the grounds of Article 8 TEU, endorsing all the sectors necessary to pursue EU stability objectives, whether they belong to CFSP, CSDP or TFEU competences. If a more "self-interested" approach is followed by the EU, in the spirit of Article 8 TEU, it is possible that also some types of reticence from third countries
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could be overcome. It would be a real shame to fail on this attempt."[13]
Myself, personally I tend to rather belong to this more optimistic latter group of academics, since I also think that there is a huge potential in Article 8 TEU as a really unique legal basis, the use of which would bring many added value in the future bilateral contractual relationship of the EU with its neighbours. In this contribution, therefore, I would like to develop my arguments why there is effet utile veritable of this so far unused legal basis, and why it would be desirable and reasonable to exploit its great degree of flexibility in the future. For that purpose, I try to shed light on some misunderstandings as regards its interpretation, to explore the reasons why it has not been used so far, and why it could be used in the future, but I wish also to remain practical, realistic and objective, so at the end I will also point out the limits in its use and the possible difficulties in terms of reflecting on it as a potential legal basis for "Privileged partnership-type" neighbourhood agreements from the view-point of concrete treaty negotiations.
Concerning the political genesis of Article 8 TEU and the precise and detailed analysis on the travaux préparatoires of the birth of this Treaty provision we have many articles already published.[14] Thus, I would like to add just some further aspects and/or to underline again some very important elements from the historical development process, which has not yet been given, in my view, perhaps sufficient attention so far.
The first aspect is the very special historical context, in which this new Treaty provision was born. The second one is about its clear-cut and very focused finalité politique, which gives it a distinct and self-standing so-called 'catch all' legal basis character, not comparable in this sense to most of the already existing ones. Thirdly, it is still worth stressing that the real and primary aim of this provision, in my view, was historically to offer a new type of agreement for 'Privileged relationship (partnership)-building process' with neighbouring countries with an unlimited and open-ended potential (so not something, which has already been known from the EU foreign policy legal tool-box regarding EU -third country special relations).[15]
In a study, which was published in 2004 by the House of Commons Library on the Treaty establishing a Constitution for Europe (Part I, thus including also Article I-57 on the EU and its neighbours), the author specifically underlined in relation to the 'neighbourhood clause' that: "There is no current Treaty provision in this area, but the EC has established over the years a number of cooperative partnerships with the non-EU states and regional groups. Examples include the Euro-Mediterranean Partnership based on the Barcelona Declaration adopted in November 1995, the Stabilisation and Association Process of 2000, which aimed to help bring peace, prosperity and democracy in the Western Balkans, and a number of Partnership and Cooperation Agreements (PCAs) with Eastern European Countries, such as Russia, Ukraine and Moldova in 1994-1995 and with the recently acceded EU Member States. Some of these agreements have helped to integrate neighbouring states in to the EU, while other have aimed to bring about more stability in the region."[16]
I think that, indeed, this is the main point: ensuring peace and stability in the immediate neighbourhood of the enlarged EU in and after such a historical period of time, when so many wars, threats and violence, other emergencies and instability occurred in Europe and around its borders. It started inter alia with the collapse of the Soviet Union and the system-change process in Central and Eastern Europe, which was though more or less peaceful, except for Romania, nonetheless, it caused a lot of worries and uncertainties. In parallel, we faced the collapse of the former Yugoslavia, with the very sad and bloody Western Balkan war, followed by the collapse of the Milosevich regime; then the Kosovo crisis, the ethnic violence and civil wars in the region etc. That is why it was essential to bring about peace and stability in the Western Balkan (which became the immediate environ-
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ment and neighbourhood of the enlarged EU), for which purpose the 1999 Stabilisation and Association Process was further programmed in Thessaloniki (2003) with special emphasis on stability and regional cooperation and good neighbourliness.[17] In 2001, we had the tragic terrorist attack on the US (the World Trade Centre) after which the terrorist threat became again a reality in Europe too, which specifically underpinned the significance of security and stability within the Union and resulted finally in the adoption of the EU Global Security Strategy (2003)[18]. It is not by accident, therefore, that Romano Prodi, the President of the European Commission at the time, gave in the end of 2002 as title to his famous speech at the 6th ECSA-World Conference that "A Wider Europe- A proximity policy as the key to stability". He argued for a very far-reaching concept of the new ENP, for an idea about 'sharing everything but institutions' as a new potential and model for the EU's neighbourhood relations.[19] I agree with Prodi on that an effective and good proximity (ENP) policy for the EU is key to stability, which is its essential interest to secure and shall be its horizontal principle to be pursued. But, for that purpose, we needed also a special, new innovative approach, which justified the inclusion of Article 8 TEU in the Treaties. The 'key to stability' foundation of the newly designed ENP was further confirmed, for example, by the war between Russia and Georgia in August 2008[20], which new armed violence in the neighbourhood of the enlarged EU could, though post-festa, only further justify the earlier decision of the treaty-makers in 2007 to bring Article 8 TEU ahead among the 'Common Provisions' of the EU Treaties.
The second aspect, namely that Article 8 TEU is functionally determined as to its finalité politique, which the use of that special legal basis must serve for, has also already been well-elaborated in the literature.[21] However, that element should be highlighted again in the provision of: 'The Union shall develop a special relationship with the neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation', namely that: 'aiming to establish and area of good neighbourliness...characterised by. peaceful relations based on cooperation'. The world of 'area' is used in EU primary law just in connection with Title V of the TFEU, when Article 67(1) TFEU specifically stresses that: "The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States" (and for that purpose the Union shall do that and that). The fact that in Article 8 TEU the fundamental aim for the specific agreements, to be concluded under this legal basis, is practically to establish 'an area of peace, stability, prosperity and good neighbourliness' gives a unique significance to this provision and special legal basis, but also a great responsibility for the Member States and the EU institutions to effectively implement it (like in case of Title V of the TFEU).[22]
Finally, I have to say that I cannot agree with those, who are of the view that since Article 8 TEU has been modelled after Article 217 TFEU, in terms of its wording, using similar terms etc., therefore, in fact it is a lex specialis configuration of the association agreement general legal basis and taking into account that it was not used in case of Ukraine it has practically lost its effet utile because in reality everything can be covered by Article 217 TFEU[23] or by Article 217 TFEU together with a sectoral legal basis if the concrete content and purposes of the agreement in question so justify etc.[24] In my view, it is clear from the literal, functional, contextual and historical interpretation of Article 8 TEU that those 'specific agreements', which could be concluded between the EU and its neighbours under that legal basis has a completely different purpose than Article 217 TFEU. Namely that the Article 8 TEU-based 'specific' agreements shall develop 'privileged relationship' with one or more neighbouring countries, "aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation", while those agree-
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ments, which are based on Article 217 TFEU, shall aim "to establish an association" with the third partner, which is, as a rule, done typically in the first paragraph of the concerned association agreements[25]. These are, therefore, two completely different purposes and aims (Article 8 TEU even does not contain the word of 'association'!), justifying the practical effet utile of two separate, distinct and self-standing legal bases. Their clearly distinct legal nature and different finalité politique, historically designed and construed, should not, therefore, be mixed up. Article 8 TEU is a new, innovative legal basis for creating a special integration-driven 'privileged' partnership between the contracting parties in a sector-specific but extremely important policy field (or fields), without the necessity, however, of having any association to be established between the parties and excluding the accession perspectives.
The issue of the links of Article 8 TEU with other related legal bases has also been already addressed in the academic literature at length.[26] I would like to add, however, two new aspects to the conclusions, drawn so far by the different authors for the subject, partly based on the most recent case law developments in the field, which most of the referred authors could not yet have been able to take into consideration, when they analysed the links between Article 8 TEU and Article 217 TFEU as well as the dependence of the use of Article 8 TEU on Article 49 TEU, but partly also because I have different views about whether or not an Article 8 TEU-based specific contractual relationship between the EU and its neighbour per se completely excludes any future accession process to the EU?
In my view, it is true that a specific agreement, concluded with a neighbouring country under Article 8 TEU constitutes a new and innovative integration instrument in the context of a privileged partnership with the above-explored aims, but, indeed, without any membership perspective. On the other hand, I also think that Article 8 TEU is drawn up, on purpose, in such a dynamic way that it contains both an internal flexibility (see in the following title), but in principle an external flexibility as well.
What concerns the external flexibility that means a two-fold nature of this new open-ended special legal basis in the Treaties: first that, in my view, if a neighbouring country concludes a specific agreement with the EU under Article 8 TEU that does not exclude per se that that country later on could still submit an application for membership pursuant to Article 49 TEU.[27] But, there is a second face of such an external flexibility. Notably, I also think that in principle one cannot exclude either that while a neighbouring country is already under the application of Article 49 TEU, for example, is a candidate country being in accession negotiations with the Member States, that state in parallel could also conclude an Article 8 TEU-based specific agreement with the EU for a concrete sectorial policy purpose, of course, provided that the conditions of the conclusion of such a specific agreement, as required in Article 8 TEU, are fully met. I can see no impediment in Article 8 TEU, which would exclude this possibility, since, in my view, though Article 8 TEU is clearly not a legal basis for a pre-accession agreement, but that fact does not exclude per se that the parties could not conclude sector-specific agreements among themselves serving for the purposes, stemming from the 'neighbourhood clause'.[28] In this respect, one should not forget about that the pre-accession process or even the formal accession negotiations can last for a very long time and there is no guarantee at all that they can be concluded with success; or sometimes immediate specific concerns and interests may occur on both sides, namely on the side of the EU or that of the neighbouring partner country too (relating, for example, to the migration crisis, energy security cooperation or to other security and defence needs, or to emergencies-provoked cooperation needs (serious natural catastrophes or terrorist attacks etc.), which could well justify to address them in an Article 8 TEU-based sector-specific let's call it 'privileged partnership' agreement).[29]
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The second point, which I would like to make is the combination question between Article 8 TEU and Article 217 TFEU as double base juridique for the conclusion of a special or enhanced framework (privileged) partnership and cooperation (association) agreement, in whatever way it can be called. As opposed to some authors[30], I personally believe that the above-mentioned two substantive legal bases cannot be combined. Article 8 TEU cannot be combined with another 'catch all'-type distinct and self-standing legal basis, which is, indeed, Article 217 TFEU too. They simply exclude each other, which stems also from the most recent jurisprudence of the CJEU on Article 217 TFEU.[31] On the other hand, I can imagine, as it can be the case also with Article 217 TFEU following the referred new case law, that Article 8 TEU - if the content and purpose-based detailed analysis of the treaty text in question so justifies - could in principle be combined too with one or even more sector specific legal bases (e.g. transport, energy etc.). This question should, however, be always assessed certainly on a case by case basis.
Concerning the scope, the legal dogmatic and the objectives of Article 8 TEU, again a lot of detailed and good analyses are already avail-able[32]. Myself, I can more or less agree with the legal and institutional analysis of P. Van Elsuwege and R. Petrov with some important (either already above-mentioned or still below further explored) differences.
For instance, I am of different view concerning (i) the possible geographical and material scope of application of Article 8 TEU, (ii) the level of flexibility of Article 8 TEU, especially what concerns its 'unclear procedural rules', (iii) whether it can be a 'Union only agreement', excluding mixity, (iv) and finally that Article 8 TEU as legal basis, in my view, does not aim to cover primarily just a big 'Comprehensive Single Framework Agreement', but, and this is quite frequently forgotten, the Lisbon Treaty speaks instead rather about 'specific agreements' in plural, which means a lot argumentum à contrario (see further point IV.4).
With regard to the geographical scope of application of Article 8 TEU, it uses the open-ended term of "neighbouring countries", which restricted group of third countries can be the only 'contracting parties' to this type of "specific agreements". No definition is given, however, in the Treaties on this term, though we can get some indications, for example, from Regulation (EU) No 232/2014 of the European Parliament and of the Council, of 11 March 2014 establishing a European Neighbourhood Instrument (ENI), which at least defines in connection with its scope of application ratione personae the eligible 'partner countries'.[33] However, Article 8 TEU has a much broader scope of application rationae personae than the ENI's, since it covers clearly the so-called Mini-States[34], Russia, the EFTA countries too; or horribile dictum though for the financial support of the pre-accession preparation there is a separate so-called IPA II Regulation (so beyond doubt that process is out of the ENP-ENI framework), but in my broader understanding in a sense that instrument deals somehow and indirectly also with 'neighbouring countries' (at least in the context of creating an area of peace, stability, prosperity and good neighbourliness around the borders of the EU, and thus having the so-called "ring of friends" of the EU as R. Prodi spoke about them still in 2002)[35]. Consequently, one can argue that in principle, for example, even Turkey despite that it is a candidate country, but could fall under the scope of 'neighbouring country' in the context of Article 8 TEU. Certainly, the UK will legally also become a "neighbouring country" under the scope of Article 8 TEU after Brexit. As far as the material scope of application is concerned of Article 8 TEU and of all the possible integration-driven agreements without membership, concluded based on it, in my view, it is so broad that it can cover any specific part of the EU acquis, in relation to which the EU has essential
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special interests in that that in the context of its transformative powers vis-à-vis third states it could pursue a systemic acquis-exportation in order to reach the main objectives of the 'neighbourhood clause" and thus concluding "Privileged partnerships" with its neighbours.
Article 8(2) TEU speaks about that ". the Union may conclude specific agreements with the countries concerned". There is no reference to Member States at all in the 'neighbourhood clause" as opposed to many similar type of enabling clause in the Treaties[36]. One could, therefore, legitimately conclude that the international agreements, concluded based on Article 8 TEU, are prima facie so-called "Union only agreements", since the contracting parties to such agreements are on the one hand the EU while on the other hand one or more 'neighbouring countries".[37] The tendency in the post-Lisbon international-treaty-making practice -and that is also what is clearly preferred, for example, by the Commission too- is to avoid mixity, so a situation when the Member States are also contracting parties to an agreement because of its content and the fact that it relates also Member States' competences (avoiding it primarily due to the very time-consuming and complex ratification process of such mixed agreements in the Member States). This means that basing as a special 'inter-treaty' legal basis an international agreement on Article 8 TEU, in principle, might well be also useful just in order to avoid the complications, caused by 'mixity'.[38]
One of the biggest criticism towards the use of Article 8 TEU has been that it does not contain clear-cut procedural rules for the EU internal decision-making process, a precise procedural guidance ( at least a reference to Article 218 TFEU), which is an essential element for a Treaty article so that it could be considered as legal basis.[39] Some authors even argued in favour, by way of interpretation and based on the identifiable similarities, to apply perhaps the heavy procedure for the conclusion of association agreements (so unanimity in the Council and consent from the European Parliament)[40]. I think that all this reasoning is based on misunderstandings for the following reasons: (i) there are many other similar enabling clauses in the Treaties for the EU to conclude international agreements with third countries, in which there is no indication at all on that what procedural rules should apply, nonetheless, they are used as legal basis in practice.[41] (ii) This is simply because, based on Article 216(1) TFEU in combination with Article 218(1) TFEU, if there are no special procedural rules in a concrete substantive legal basis, provided for somewhere in the Treaties for treaty-making (except for Article 207 TFEU), then automatically Article 218 TFEU (as the general procedural code for the EU treaty-making) shall apply[42]. This is certainly the case with regard to Article 8 TEU too.
(iii) I also cannot agree with that submission that for the conclusion of an Article 8 TEU-based agreement the heavy procedure of concluding an association agreement should be necessarily applied mutatis mutandis. First of all, Article 218(1) point (a) (i) and Article 218(8) second sub-paragraph TFEU clearly determine the procedural rules for conclusion of the so-called "association agreements". In this respect what constitutes an "association agreement' that is defined in Article 217 TFEU, namely an agreement 'establishing an association' between the contracting parties. The applicable specific procedural rules for the conclusion of "association agreements", in my view, however, cannot be extended (by way of 'interpretatio legis extensiva') in terms of their scope to other type of international agreements, like, for example, those concluded based on Article 8 TEU. (iv) For the latter type of specific 'neighbourhood' agreements the general procedural rules should in principle be applied concerning their conclusion, namely as a rule QMV in the Council (Article 218(8) first sub-paragraph TFEU), while consent from the EP should be required only if-following a detailed purpose and content-based assessment of the given contractual text- the Article 8 TEU-based specific agreement in question would fall under any of point (a) (iii)-(iv)-(v) of Article 218(6) TFEU[43].
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Otherwise Article 218(6) point (b) TFEU shall apply (so just prior consultation with the EP).
Finally, one can see some misunderstandings concerning the importance of the unique term of 'specific agreements' in plural in Article 8 TEU, which is practically also the basis for its great flexibility.[44] This provides in fact an à la carte possibility for the EU to choose the best possible type of agreements serving for the purposes of Article 8 TEU. What is crucial is that it should be sector-specific, so potentially covering one or more (maybe inter-linked) possible EU policy areas, in which the Union has competence (including, of course, if justified, the related and necessary special institutional arrangements as well). Since the term is used in plural in Article 8 TEU it may also mean that a "Privileged partnership" could be established in several sector-dependent specific agreements, concluded with the same neighbouring country (or countries) but all with the same jointly targeted ultimate aim, namely to establish an area of prosperity, peace, good neighbourliness and close cooperation between the EU and its concerned neighbour(s). I think that this open-endedness in legal terminology and thus huge internal flexibility gives the real potential and advantage for using this special legal basis.
Based on my research and the related literature, I could have collected six reasons for why Article 8 TEU as a legal basis has not yet been used since December 2009, which list of possible reasons, however, is certainly not exhaustive.
1. It has not been used because the whole ENP and its gradually developed and several times revised approaches and instruments since 2003 were always based on the "enlargement logics and mentality", which preferred per se the choice for Article 217 TFEU.[45]
2. The targeted 'neighbouring countries' were hesitant or even rejecting as to using this legal basis because they felt on the one hand that it excludes any accession perspectives (while they had or still have such aspirations for becoming one day an EU Member State) as well as on the other hand they also think that this legal basis quasi "lowering down' the level of their relationship with the EU, which they don't want.[46]
3. The clear-cut gap was also discouraging between the aims of Article 8 TEU and the (geo-) political and socio-economic realities that define neighbouring relations in practice.[47]
4. The huge flexibility built in Article 8 TEU has not been really realised so far. It was easier to apply instead the "one fits to all' approach. Similarly, it was not properly recognised that the built-in flexibility provides substantial 'differentiation- potential', which is the aim here, since there are so many 'neighbouring countries' different in size, in historical, geopolitical and cultural background, economic potential, financial and other interests etc.[48]
5. Institutionally, for the European Parliament choosing Article 217 TFEU as legal basis is always more convenient (because of the 'consent' power), through which it can always better pursue its political agenda in terms of third countries.
6. Finally, as regards the EU treaty-making practice, there might have been some pragmatic aspects too for not to use the 'neighbourhood clause'. For example, it is always easier to start and to conduct negotiations by using a standard template agreement text (like the one, which is based on Article 217 TFEU), then to work out a new standard template agreement with many new legal and institutional challenges in drafting, which the specificities of using Article 8 TEU - despite its similarities to an association agreement-type text- obviously would have required.[49]
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One could also raise that the fact that Article 8 TEU is not used as a legal basis could lead to a situation when that Treaty provision is practically deprived from its 'effet utile'. This is typically not tolerated by the CJEU, since each Treaty provision (especially those including special legal basis for actions) is adopted by the Treaty-makers in order for them to be used and to be effectively implemented.[50]
In addition, I would like to give some further (maybe new or additional ) arguments on why it would be perhaps in the interests of the EU to reflect more proactively to possibly using this unique legal basis in the future:
1. Article 8 TEU has a 'rapid-reaction potential' because of its in-built flexibility, explored above. That potential could be used, since it could easily occur in the neighbourhood of the EU that there is an unexpected comprehensive emergency or security threat, on which the EU should quickly react, while using Article 217 TFEU takes always a lot of time;
2. Article 8 TEU is an 'inter-treaty', overarching and horizontal legal basis, which, as mentioned above, could offer a lot of advantages for avoiding the limits, stemming from Article 40 TEU;
3. Article 8 TEU in principle could be used for the conclusion of "Privileged partnership-type" specific agreements with the EU's neighbours in order to avoid the 'consent' requirement from the EP, the 'mixity' consequences of an agreement or the 'unanimity' voting requirement in the Council[51], though these possible advantages should be always carefully and textually examined on a case by case basis in each and every concrete situation;
4. Finally, Article 8 TEU provides a very wide scope of application (it is a 'catch all' provision), as analysed above, which could cover even new (not yet regulated) policy fields in the EU (e.g. cybersecurity or the security threats, caused by migration etc.), the regulatory convergence-setting of which fields, however, are in the essential interests of the EU to be put in a contractual context with its (immediate and/ or wider) neighbours as soon as possible in order to create in reality the envisaged area of peace, security, stability and good neighbourliness and close cooperation in this respect too around its borders.
Of course a valid question is that in practical terms for what purposes this special legal basis could be in principle used taking into account the current agenda of the EU as a global actor and its most challenging policy priorities in international context. I would suggest to consider five possibilities, but again the list is just indicative[52]:
1. One of the most striking challenge for the EU today is the Brexit process and the possible future relationship between the EU and the UK after Brexit. In this respect it should not be forgotten that after Brexit the UK will become a 'neighbouring country' of the EU, thus falling under the scope of Article 8 TEU.[53] Moreover, with regard to the future EU-UK bilateral relationship there can be voices heard that perhaps both parties would be interested in concluding a specific so-called 'Comprehensive Security and Defence Agreement', in relation to which, the EU Chief Negotiator also underlined: " On security, the EU wants very close cooperation to protect our citizens and democratic societies. We should organise effective exchanges of intelligence and information and make sure our law enforcement bodies work together. We should cooperate to fight crime, money laundering and terrorist financing. We can cooperate on the exchange of DNA, fingerprints, or passenger Name Records in aviation to better track and identify terrorists and criminals. We are also ready to discuss mechanisms for swift and effective extradition, guaranteeing procedural rights for suspects ..... we can build a future partnership between the EU and the UK that is unprecedented in scope and depth."[54] One could obviously submit that for the conclusion of such a possible future comprehensive 'security and defence cooperation' specific agreement
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(alongside with a trade one) Article 8 TEU could be certainly considered as legal basis, since the UK will be a neighbouring country by that time, the aim will be to develop privileged relationship with it in order to establish an area of prosperity, peace and good neighbourliness and close cooperation between the EU and its new neighbour, specifically focusing on security and defence cooperation for ensuring stability, which is in the mutual interests of the parties.
2. It is also well-known that currently there are on-going negotiations between the EU and Switzerland on a so-called new 'Institutional Framework Agreement' (IFA), in connection with which- though the final content of that agreement is obviously not yet known-, but perhaps the usefulness of Article 8 TEU as legal basis could be also observed.[55]
3. Similarly, it is also in the press that on-going negotiations are taking place at the moment between the EU and three so-called 'Mini-States' on a new specific Framework Partnership Agreement, to be concluded with Andorra, San Marino and Monaco. Though the final content of that future contractual text is, certainly, also not yet public, nonetheless, taking into account Declaration No 3. on Article 8 TEU of the Lisbon Treaty[56], specifically addressing that the special concerns of the 'Mini-States' should be taken into account by the EU, when Article 8 TEU will be applied, obviously, that provision could be considered as a legal basis for the mentioned new future framework 'Privileged Partnership'-type Agreement with these three mini-states too.
4. Though it is not actual now, since because of Ukraine the EU-Russia relations are practically frozen at the moment (see EU sanctions on Russia etc), nonetheless, it remains a fact that Russia is the biggest immediate neighbour of the EU, therefore, obviously Article 8 TEU could at least in longer terms become a potential legal basis let's say for a 'Privileged Enhanced Cooperation and Partnership Agreement', to be concluded with it covering a lot of sector-specific issues of mutual interests, for example, from energy security cooperation issues till cyber-security or research and technological cooperation questions etc. This can especially be submitted, since Russia has many times already declared that it had no intention to ever apply for membership in the EU and it would not want a classical association agreement neither to be targeted for the future EU-Russia relations. It indicated instead that it wanted a "special relationship with the EU' to be developed, which is in fact, as many scholars argue, the interests of the EU too, aiming to establish an area of prosperity and good neighbourliness based on close and peaceful cooperation and obviously serving for the joint security and stability purposes of both parties.[57]
5. Finally, as already mentioned, Article 8 TEU could be considered as potential legal basis for other sector-specific 'Privileged Partnership-type' specific cooperation agreements with 'neighbouring countries', for example, what concerns cyber-security[58] or energy security or more comprehensive security cooperation issues in connection with the migration crisis etc., including if needed and justified in principle with any of the 'neighbouring countries', who are otherwise concretely a candidate country, but their accession negotiations have not yet been concluded, as was already explored above.
As a last issue, certainly, for the sake of objectivity and in order to remain also realistic, I should still briefly address in this contribution the obvious limits to the potential use of Article 8 TEU as a legal basis for the conclusion of future specific 'Privileged Partnership-type' agreements, including all the conditionality issues, built in it, and which has already been well-elaborated by many authors.[59]
In my view, there are two strong limits:
1. Firstly, it is clear from Article 8 TEU itself, that any 'specific agreement', concluded on that legal basis with the aim to develop a 'privileged relationship with neighbouring countries" can establish an area of prosperity and good neighbourliness etc., however, only "founded on the values of the Union '. Most of the referred authors are of the views that this values-reference in Article 8(1) TEU should mean "shared values", practically those, referred to
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in Article 2 TEU, and explored and in fact imposed unilaterally by the EU on its neighbours in their relations, which is, indeed, a very high level of conditionality of the 'neighbourhood clause' in the ENP context.
There are, however, a few scholars, who argue that the quoted sentence from Article 8(1) TEU should mean a lower level conditionality, for example, Ch. Cellerino states that: ".conditionality should not be a barrier to access of third countries to neighbourhood relationship, but should be maintained as a tool for ensuring that the agreed priorities are met. (in the context of 'more for more' policy approach, including democracy and rule of law reforms etc. etc.)".[60] Yes, it is, indeed, not by accident that Article 8(1) TEU -as opposed to Article 49 TEU[61] - does not specify exactly that 'founded' on which 'values of the Union'? Therefore, it could be, indeed, argued that this conditionality was intended to be lower level, in fact it envisages just "a shared commitments to universal values of human rights, democracy and rule of law as recognised by international law, which are also inherent to the Union, and mutual accountability".[62] Couple of years ago I would have tended to join this flexible interpretation, but taking into account the most recent case law development on the one hand what concerns the further strengthening of the autonomous nature of the EU legal order vis-á-vis international law aspects (see e.g. Opinion 2/13 or 1/15 etc.)[63] as well as the most recently published new case law developments on the interpretation of Article 2 TEU itself and more specifically on the principle of rule of law[64], I also think that any flexibility in terms of the values-conditionality in Article 8 TEU is getting to become more and more narrowed by this new jurisprudence of the ECJ in terms of the possible future application of Article 8 TEU too, if there are problems in terms of the respect for Article 2 TEU-based values of the EU, in particular with the values of democracy, rule of law, protection of human rights in a given 'neighbouring country' of the EU.
2. Secondly, another strong limit, in my view, to the potential use of Article 8 TEU as a legal basis for the conclusion of "Privileged Partnership-type" specific agreements in the future can in principle be the protection requirement of the legal integrity and the legal coherence of EU internal market four freedoms (including the freedom to provide financial services) and other common policies, if you wish the so-called 'market access conditionality', though it is true that this aspect should be always assessed on a case by case basis and depending each time on the specific purposes and concrete content of the given Article 8 TEU-based specific neighbourhood agreement.
In conclusion, I think that in my academic capacity I have developed all my arguments above in favour of using Article 8 TEU as legal basis in the future in certain sector-specific fields for concluding special 'Privileged Partnership-type' agreements with 'neighbouring countries', including, under certain conditions and only if needed and if clearly justified, in principle even any of the current candidate (or potential) candidate countries, which the EU has common borders with. Of course, I have also developed, however, the practical limits to the potential use of this unique legal basis, some of which (like e.g. the rule of law and the value-protection related most recent case law development of the CJEU) are getting to become, indeed, more and more burdensome for the real use of the 'neighbourhood clause' in particular in terms of a 'neighbouring country', where there are problems in this respect.
Nonetheless, at the end I can just recall again the point of Christiaan Timmermans from my mixity article (when he argued already in 2000 in favour of using the Community for international treaty-making and for concluding only EC agreements (so he was against mixity), instead of steril debates on the nature of competences, since that is why the Member States established the Community), and when he made reference to Paul Henry Spaak's farewell speech to the Parliamentary Assembly of the Council of Europe, in which the former Belgian Minister of Foreign Affairs referred to the endless debates between federalists and intergovernmentalists, and said: 'J'ai été étonné par la somme des talents dépensés dans cette Assemblée pour expliquer pourqoi il ne fallait pas faire quelque chose".[65] I can also just hope, in agreement with
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judge Timmermans's reasoning, but almost 20 years later and in another context, that what concerns Article 8 TEU, everybody concerned should now perhaps mobilize all their talents to concentrate rather on how its potential as legal basis could be better exploited in the future, since that is why the Lisbon Treaty introduced it. ■
NOTES
[1] The author is Legal Adviser at the Legal Service of the Council of the EU (currently seconded to Cabinet/GIP of the Council) and visiting Professor of the College of Europe in Brugge. All views and opinions expressed in this contribution are personal and exclusively those of the author and do not constitute the formal position or views in any way neither of the Council of the EU nor of the European Council, and certainly nor of their Legal Service. An earlier draft of this article was based on my presentation, given at the international Conference on 'The EU's 'Privileged Partnerships' with its Neighbours: An institutional Perspective', organised at the College of Europe in Brugge on 25 January 2018, but it has been further developed and updated. The manuscript was closed on 1 July 2018.
[2] See: Article I-57 of the Treaty establishing a Constitution for Europe (Title VIII: The Union and its neighbours), (2004) OJ C 310/38.
[3] See: in more detail, Steven Blockmans: ,The obsolescence of the European Neighbourhood Policy', CEPS Brussels, Rowman and Littlefield International, London, 2017, especially pp. 5-40.
[4] See: the Presidency conclusions of the Göteborg European Council, 15 and 16 June 2001, Council doc. SN 200/1/01 REV 1, points 3-9., 15., 17. It can be loaded down at https://www.consilium.europa.eu/media/20983/00200-r1en1.pdf.
[5] See: Communication from the Commission to the Council and the European Parliament etc, "Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours", COM (2003), March 2003, 104 final.
[6] See: Marc Maresceau, 'Les micro-états européens et l'Union européenne: une relation de proximité sous tension?' in Études en honneur de Jean-Claude Gautron. Les dynamiques du droit européen en début de sciècle, Paris, Editions A. Pedone, 2004, pp. 751 et seq.
[7] It is to be noted that in some other official languages of the EU the term of 'special relationship' in the quoted provision is translated as 'privileged relationship" and there is no peremptory mode (so "shall') used, for example, in French Article 8 TEU reads: "1. L'Union développe avec les pays de son voisinage des relations privilégiées, en vue d'établir un espace de prospérité et de bon voisinage, fondé sur les valeurs de l'Union et caractérisé par des relations étroites et pacifiques reposant sur la coopération. 2. Aux fins du paragraphe 1, l'Union peut conclure des accords spécifiques avec les pays concernés. Ces accords peuvent comporter des droits et obligations réciproques ainsi que la possibilité de conduire des actions en commun. Leur mise en œvre fait l'objet d'une concertation périodique.» The Italian version of Article 8 TEU uses the same expression: «1. L'Union sviluppa con i paesi limitrofi relazione privilegiate al fine di creare uno spazio...". Or giving another example, in Hungarian, for instance, the incriminated sentence stipulates that: "(1) Az Unió a vele szomszédos országokkal különleges kapcsolatokat épít ki a jólét és a jószomszédi viszonyok egy olyan térségének a létrehozása céljából, amely az Unió értékeire épül, és amelyet az együttműködésen alapuló szoros és békés kapcsolatok jellemeznek. 2. Az (1) bekezdésben foglaltak céljából az Unió az érintett országokkal külön megállapodásokat köthet. Ezek a megállapodások kölcsönös jogokat és kötelezettségeket állapithatnak meg, és közös fellépések lehetőségéről rendelkezhetnek. E megállapodások végrehajtásáról rendszeres egyeztetéseket kell folytatni." (window-translation of the French version above, but not of the English version concerning the term of "special relationship"). The German version, on the other hand, uses special relationship', namely: "(1) Die Union entwickelt besondere Beziehungen zu den Ländern in ihrer Nachbarshaft, um einem Raum des Wohlstands und der guten Nachbarshaft zu schaffen, der auf den Werten der Union aufbaut und sich durch enge, friedliche Beziehungen auf der Grundlage der Zusammenarbeit auszeichnet.". I feel closer to myself personally the 'privilege relationship' terminology also in a historical and contextual context, and because it better fits to the 'privileged partnership' concept and related legal vocabulary in this special policy field. See still fn. 33. in relation to the ENI Regulation.
[8] See: Dominik Hanf: 'The ENP in the light of the new 'neighbourhood clause' (Article 8 TEU)', Research Paper in Law, College of Europe Cahiers juridiques No 2/2011, can be loaded down at www.coleurope.eu, p. 5.
[9] See: Blockmans (2017), pp. 135-136. He calls still Article 8 TEU as a 'sketchy in its wording' provision using 'langue du bois', which thus in practice is difficult to apply. (p. 32)
[10] See: Peter Van Elsuwege and Roman Petrov: 'Article 8 TEU: Towards a New Generation of Agreements with the Neighbouring Countries of the European Union?', (2011) 36 E.L. Rev. , pp. 688-703., especially on p. 690. and p. 696.
[11] P. Van Elsuwege-R. Petrov (2011), p. 703.
[12] See in more detail: Guillaume Van der Loo: 'The EU-Ukraine Association Agreement and Deep and Comprehensive Free Trade Area- A New Legal Instrument for EU Integration without Membership', series SEUER No 10, Brill-Nijhoff, Leiden-Boston, 2016, pp. 174-175.
[13] See Chiara Cellerino: 'What is wrong with the European Neighbourhood Policy? Lessons from Article 8 TEU in approaching its reform', Milano, Rivista di Eurojus.it (Ed: Bruno Nascimbene), October 2015, pp. 1-6, especially on pp. 4-6. and the referred literature therein.
[14] See, for example, P. Van Elsuwege - R. Petrov (2011) pp. 689- 691., or G. Van der Loo (2016) pp. 4-19. and 96. et seq., or S. Blockmans (2017) Chapters 2-3, especially pp. 29-40. etc.
[15] See, for example, D. Hanf (2011), who argues that it is in fact a 'lex specialis' legal basis for concluding a new form of association agreements ( as a new integration instrument without membership) etc, pp. 4. et seq.
[16] See: Vaughne Miller: 'The Treaty Establishing a Constitution for Europe: Part I', Research Paper 04/66, House of Commons Library, International Affairs and Defence Section, 6 September 2004, London, p. 75. , it can be loaded down at http://www.parliament.uk The author summarises the main aim of article I-57 as follows: "The Union's relations with neighbouring states: how the Union will help neighbouring states to achieve peace and prosperity." (p.3.)
[17] See in more detail and further explored in a precise and well-documented way: S. Blockmans (2017) Chapters 1-2., pp.1-27.; or Milica Delevic: 'Regional cooperation in the Western Balkans', Chaillot Paper No. 104, ISS, Paris, July 2007.
[18] See, for example, J. Czuczai: 'The development of a single
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counter-terrorism policy in the external action of the EU: the role of the Council-some legal aspects after Lisbon' in " External dimension of the EU counter-terrorism policy" (Eds: E. Herlin-Karnell-C. Mattera), CLEER Working Papers 2014/2, The Hague, T.M.C. Asser Instituut, pp. 47-59., especially pp. 48 et seq.
[19] Referred to and analysed in the same direction also in P. Van Elsuwege -R. Petrov (2011), p. 696. R. Prodi's speech on "A wide Europe- A proximity policy as key to stability" of 5 December 2002, Speech No 02/619, can be loaded down at hhtp://ec.europa.eu/en/speeches. See especially pp. 4-7.
[20] See further, S. Blockmans (2017), p. 98.
[21] See, for example, Christophe Hillion: 'The EU Neighbourhood competence under Article 8 TEU', Policy Paper 69, SIEPS- Notre Europe-Jacques Delors Institute, February 2013, pp. 4 et seq. As a contrary view, however, see S. Blockmans (2017), who calls the finalité of Article 8 TEU "fuzzy" and "somewhat utopian and certainly unrealistic in the short-to mid-term future" (pp. 34-35.).
[22] See in this respect Article 4(3) TEU and 13(1) TEU, or Ch. Hillion (2013), pp. 2-3, but also G. Van der Loo (2016) p.99.
[23] Article 217 TFEU reads: "The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure."
[24] See in more detail G. Van der Loo (2016), pp. 173-174. as well as from the most recent case law developments, for example, Case C-81/13 UK. v. Council, ECLI: EU:C:2014:2449, especially paras 36-38. and 61-62.
[25] See, for example, Article 1(1) of the EU-Serbia SAA or Article 1(1) of the EU-Ukraine AA etc. See a detailed and comparative analysis of these two association agreements and their differences and similarities in S. Blockmans (2017) Chapter 4.1.1.1, pp. 48 et seq.
[26] See, for example, D. Hanf (2011) pp. 7 et seq. , or G. Van der Loo (2016) pp. 97. et seq., or S. Blockmans (2017) pp. 42. et seq. and p. 88. etc.
[27] This option is acknowledged by G. Van der Loo as well, see op. cit. p. 97.
[28] It should be recalled that there are other sector-specific agreements (e.g. visa-facilitation, visa-liberalization, re-admission agreements; or protection of classified information or research cooperation agreements; or participation agreements of third (neighbouring) countries in ESDP missions; or most recently cooperation (so-called 'Status') agreements in relation to the actions carried out by the European Border and Coast Guard Agency etc.), concluded with neighbouring countries (not necessarily, but even with those being already in the pre-accession preparatory phase or in the accession negotiations process etc.). See further, for instance, in terms of visa liberalization or security cooperation S. Blockmans (2017) Chapters 4.3. and 4.4. It is to be noted, however, that these bilateral agreements are specific subject-based agreements without, however, the aim of establishing any 'privileged partnership' between the parties in a wider context, fully complying with the comprehensive finalité politique of Article 8 TEU.
[29] What I can fully agree with the previously referred authors on, however, is that the option, namely that any agreement could be concluded on the joint legal bases of Article 8 TEU and Article 49 TEU, that is absolutely excluded.
[30] See, for example, P. Van Elsuwege- R. Petrov (2011) p. 698.
[31] See the Case C-81/13 UK. v. Council (fn 24.) but in this respect still relevant are: Case C-377/12 Commission v. Council (Framework Agreement on Partnership and Cooperation with the Republic of Philippines), ECLI:EU:C:2014:1903, which gave a very broad and quasi 'catch all' legal basis interpretation to Article 209 TFEU (concerning the policy area of development cooperation), paras 37-39., 47-48., 55-60.; or Case C-658/11 Parliament v. Council (pirates' transfer agreement with Mauritius), ECLI:EU:C:2014:2025, which gave also a very broad interpretation to Article 37 TEU, paras 43-63. (in terms of the same CFSP legal basis, same conclusions were drawn by the CJEU still in Case C-263/14 EP v. Council (pirates' transfer agreement with Tanzania), ECLI:EU:C:2015:729, paras 50-73.). In a more broader context, for the subject, see still Frederik Naert: 'The use of the CFSP legal basis for EU international agreements in combination with other legal basis' in "The EU as a Global Actor- Bridging legal Theory and Practice" (Eds: J. Czuczai-F. Naert), Brill-Nijhoff, Leiden-Boston, 2017, pp. 394 et seq. See in addition Case C-244/17 European Commission v. Council (Kazakhstan EPCA and its CFSP aspects), ECLI:EU:C:2018:662, especially paras 31. et seq. For restricting this issue just for the EU-Ukraine AA's legal basis question see also G. Van der Loo (2016) pp. 169-171.
[32] See, for example, S. Blockmans (2017) pp. 29-40., or P. Van Elsuwege -R. Petrov (2011) pp. 691-696. etc.
[33] See OJ L 77, 15.3.2014, pp. 77., especially Article 1(1) and Annex I (16 countries) as well as Article 1(3) for Russia and Recital (10) for the EEA countries but only in relation to cross-border cooperation projects. These are the countries, mentioned, for example, by S. Blockmans (p. 32) or by P. Van Elsuwege- R. Petrov too (pp. 691-692), though their lists are rightly much longer. It is still to be noted that the ENI Regulation specifically refers to Article 8 TEU in its Recital (2) and consistently uses the legal terminology of "privileged relationships" and "privileged partnership" as well with regard to the ENP partner countries throughout the whole Regulation.
[34] See Declaration No 3., attached to the Final Act of the Lisbon Treaty, on Article 8 TEU, OJ C 326, 26 October 2012, p. 339. It should be added here that in principle the Vatican as a state should be also considered as "neighbouring country" in our context.
[35] For example, regional cooperation in order to ensure stability and good neighbourliness is a great priority in the EU-Serbia SAA as well, see in more detail S. Blockmans (2017) p. 8. and pp. 55-57. Moreover, although it is true that Article 8 TEU is formerly and legally disconnected from enlargement, but now it is placed in the Lisbon Treaty among the "Common Provisions" (Title I TEU), which articles shall be applicable over the whole Treaties' architecture as a horizontal priority policy- and governing principles and values-setting for the EU (Article 1(2) TFEU). See still fn. 19.
[36] See, for example, Article 191(4) TFEU, Article 209 (2) TFEU, Article 212(3) TFEU, and Article 214(4) TFEU etc.
[37] Of course, whether the Union can alone conclude a neighbourhood (privileged partnership) agreement' depends always on the concrete purposes and precise content of the subject specific agreement, and should be assessed and finally decided upon always on a case by case analysis. Taking into account, however, that Article 8 TEU-based specific agreements can cover any matters, falling under Union competences, it can be stated, in case of exclusive Union competences (Article 3 TFEU), for sure, that only the Union can conclude such agreements. See further the elaboration of this issue in more detail, for example, in Opinion 2/15 ,Free Trade Agreement with Singapore', ECLI:EU:C:2017:376 as well as Allan Rosas-Lorna Armati:' EU Constitutional Law- an Introduction', Hart Publishing, Oxford,
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2018, pp. 251-259.
[38] See in more detail J. Czuczai:' Mixity in Practice: Some Problems and Their (Real or Possible) Solution' in "Mixed Agreements Revisited- the EU and its Member States in the World" (Eds: Ch. Hillion-P. Koutrakos), Hart Publishing, Oxford, 2010, pp. 231- 248.
[39] See, for example, P. Van Elsuwege-R. Petrov (2011) p. 703., Ch. Cellerino (2015) pp. 4-5., G. Van der Loo (2016) p. 174. etc.
[40] See, for example, D. Hanf (2011) p. 4. or P. Van Elsuwege-R. Petrov (2011) p. 697. etc. See also Article 218(6) point (a) (i) and Article 218(8) second sub-paragraph TFEU.
[41] See, for example, Article 37 TEU (CFSP-agreements), Article 79(3) TFEU (readmission agreements), Article 186 TFEU (research and technological development agreements), Article 191(4) TFEU (environment-related agreements), Article 209(2) TFEU (development cooperation agreements), Article 212(3) TFEU (economic, financial and technical cooperation agreements), Article 214(4) TFEU (humanitarian aid agreements). Of course, Article 207(3)-(5) TFEU (common commercial policy) is an exception, since it contains precise special procedural rules for concluding agreements based on that legal basis, but that is why it is specifically mentioned also in Article 218(1) TFEU. Similarly, Article 219 TFEU (monetary and exchange-rate regimes agreements) is also an exception, since it starts with "By way of derogation from Article 218.. " as well as Article 50 TEU on withdrawal.
[42] See in this respect A. Rosas-L. Armati (2018), pp. 248 et seq., specifically fn. 12 therein.
[43] Meaning "agreements establishing a specific institutional framework by organizing cooperation procedures", "agreements with important budgetary implications for the Union" and " agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.".
[44] See, for example, in terms of underlining the high level of flexibility in Article 8 TEU G. Van der Loo' s views too. On the other hand the same author in my opinion does not pay sufficient attention to the term of 'specific agreements' in this respect, rather argues for that Article 8 TEU could serve for a broad (single) framework and integration-oriented agreement without membership, see: in G. Van der Loo (2016) pp. 97 et seq. and pp. 174-175. Similarly argues P. Van Elsuwege-R. Petrov (2011) p. 692. and pp. 695-696. S. Blockmans (2017) even refers to the 'specific agreements' as a 'fuzzy term' in Article 8 TEU (p. 37.).
[45] See in more detail, for example, S. Blockmans (2017) pp. 95 et seq. as well as G. Van der Loo (2016) pp. 98. et seq.
[46] See, for example, D. Hanf (2011) p. 7., S. Blockmans (2017) p. 48 or G. Van der Loo (2016) pp. 173-174. and the referred literature therein.
[47] See further S. Blockmans (2017) pp. 34. et seq.
[48] Idem.
[49] See more, for example, further on this issue in S. Block-mans (2017) pp. 48. et seq.
[50] One example for such 'not using' efforts relates, for instance, to Article 349 TFEU, which provision contains a special legal basis for actions in the benefit of EU outermost regions. The Commission's intention was to minimise substantially the effet utile of this special legal basis by arguing inter alia that it can be used just for amending the Treaties themselves in order to adopt specific measures aimed, in particular, at laying down the conditions of the application of the Treaties for the outermost regions (e.g. giving special derogations from the application of EU law etc.), taking into account the special structural social and economic situation of those regions etc. However, what concerns amendments for this purposes in EU secondary legislations, the Commission further argued that the sectorial policy legal bases should be used (so what is applicable, for example, to environment, agriculture, fishery policy, social policy and employment, health etc.), which rules require certainly the ordinary legislative procedure to be followed, while under Article 349 TFEU only the Council decides. The CJEU, however, did not follow this reasoning and dismissed the actions for annulments in their entirety thus maintaining in full the 'effet utile' of Article 349 TFEU, see further Joined Cases C-132/14 to C-136/14 European Parliament and Commission v. Council, ECLI:EU:C:2015:813, paras 26-27. and 65-71.
[51] The application of Article 218(8) second sub-paragraph shall be, however, always carefully examined. So, for example, if an Article 8 TEU-based specific agreement will/would cover a field for which unanimity is required for the adoption of a Union act within the EU (e.g. Article 113 TFEU (taxation)), then certainly the unanimous decision-making requirement must be applied for the conclusion of the Article 8 TEU-based specific agreement too.
[52] The potential application of Article 8 TEU with regard to the ENP partner countries, Russia, EFTA countries and micro states was also elaborated with a lot of openness in P. Van Elsuwege - R. Petrov (2011) p. 697-702. This question, however, has not been very much addressed despite its very comprehensive and interesting analysis on the ENP, for example, in S. Blockmans (2017). See in a wider perspective still G. Van der Loo (2016), pp. 329. et seq.
[53] This concern was already underlined in 2004 during the work of the Constitutional Convention in the previously referred House of Commons Research Paper as follows: "Article I-57 on the Union and its neighbours may be relevant to the nature of the withdrawal agreement, since the withdrawing state would remain a part of the Union's immediate environment. The explanatory notes from the Convention Praesidium argued that this removed the need to create a special associate status for withdrawing states.", Vaughne Miller (2004), p. 77.
[54] See, M. Barnier: 'An ambitious partnership with the UK after Brexit', published in Portfolio on-line portal on 2 August 2018 at https://www.portfolio.hu/en/economy/an-ambi-tious-partnerhsip-with-the-uk-after-brexit. See also the related draft Brexit documents at http://www.consilium.europa.eu/en/policies/eu-uk-after-referendum
[55] Especially because, as it was already mentioned, Article 8 TEU could be a legal basis also for a "Privileged Partnership-type" 'umbrella or framework' agreement, composed of a series or even system of "specific agreements".
[56] It reads as follows: "The Union will take into account the particular situation of small-sized countries which maintain specific relations of proximity with it."
[57] See especially P. Van Elsuwege and R. Petrov (2011) pp. 699-701 and G. Van der Loo (2016) Part 2 Title 6.. In this context, I should also note that in my view it is not a valid argument against the possible future use of Article 8 TEU as a legal basis that it was not ab initio intended to be used in practice. Article 7 TEU was also not intended to be used - which is another article in Title I TEU 'Common Provisions'- nonetheless, as known, it has already been activated against two Member States. Another example is Article 50 TEU on withdrawal from the EU (which is also a unique legal basis for treaty-making). Nobody would have thought that it would be ever used, but it has been. This is
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because each Treaty provision should have in fact its effet utile. Similarly, in my view, that is also perhaps not a good argument against the 'neighbourhood clause' and that its potential as a legal basis could be exploited in the future that since it was not applied in relation to the EU-Ukraine AA that fact itself can prove per se that this legal basis is probably simply not needed, see G. Van der Loo (2016) p. 174. Especially, if one looks at the regrettably very sad and difficult situation in Ukraine now from the view-points of establishing together with the EU an area of security, stability, prosperity and close and peaceful cooperation, for which Russia is certainly exclusively responsible as, for example, the above-referred literature explores it.
[58] See in more detail, for example, Thomas Renard (2018): 'EU cyber partnerships: assessing the EU strategic partnerships with third countries in the cyber domain, European Politics and Society, at https://doi.org/10.1080/23745118.2018.1430720
[59] See, in more detail on this conditionality and values-based aspect, for example, in P. Van Elsuwege-R. Petrov (2011) p. 695., or D. Hanf (2011) p. 6., or S. Blockmans (2017) p. 35.
[60] See in more detail Ch. Cellerino (2015) p. 2 and p. 6.
[61] Article 49 TEU reads as follows: "Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply.".
[62] See in more detail Joint Communications of the European Commission and the High Representative of the EU for FASP to the EP, the Council, the EESC and the Committee of Regions on "A new response to a changing Neighbourhood", COM(2011) 303 final pp. 2-3. as well as the ENI Regulation, fn. 33., Article 1(4).
[63] See Opinion 2/13 ( Draft Agreement on the Accession of the EU to the European Convention on Human Rights), ECLI:EU: C:2014:2454 and Opinion 1/15 (Draft Agreement on the Transfer of Passanger Name Record Data from the EU to Canada), ECLI:EU:C:2017:592 as well as in more detail these issues in A. Rosas- L. Armati (2018) pp. 14 et seq., pp. 57-70., pp. 167-170, pp. 188 et seq., pp. 204. et seq and pp. 287. et seq.
[64] See, for example, Case C-64/16 Associaçâo Sindical dos Juízes Portugueses, ECLI:EU:2018:117, especially paras 31-45. and Case C-216/18 PPU LM v. Minister of Justice and Equality, ECLI:EU:C:2018:586, in particular paras 35-37., paras 50-54., paras 63-67.
[65] See J. Czuczai op.cit. in fn. 38. on mixity (2010) p. 248.
Lábjegyzetek:
[1] The author is Legal Adviser at the Legal Service of the Council of the EU visiting Professor of the College of Europe in Brugge.
Visszaugrás
