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EU external action

6 important questions on EU external action

Shared competence/ principle of pre-emption

Art. 4 TFEU
principle of pre-emption -> ERTA Case
in the context of international obligations, it doesn't mean MS and the EU act together. If the EU uses a certain competence the MS cannot use that exact competence anymore. When the EU uses it, it is exclusively for the EU

Steps EU external action

Legal personality

art. 47 TFEU
art. 335 TFEU
ERTA-case

competence

is there any competence

express external competence
implied external competence -> ERTA

which kind of competence is applicable

exclusive -> art. 3 TFEU
shared -> art. 4 TFEU / ERTA
support -> art. 6 TFEU

Legal effects of international agreements; monistic system

Art. 216(2) TFEU

agreements concluded by the Union are binding upon the institutions fo the EU and on its MS
directly applicable for all the MS and institutions
no transposition necessary
EU is monistic

Legel effects of international agreements; direct effect

Kupferberg

Conditions for direct effect:

the international agreement must be binding for the EU
the nature and structure of the international agreement as a whole does note preclude direct effect

parties agree so and state it explicitly in the agreement

parties can agree on direct effect; happens a lot so check!!

CJEU decides the act does not have direct effect

ex. WTO agreements

the provision in question is sufficiently precise and unconditional

Difference direct effect and direct applicablity

Direct applicability and direct effect are two different things.

direct applicability: no transposition necessary
direct effect: whether a specific provision can be provoked before a court -> Gend en Loos

Two exceptions on the jurisdiction of the CJEU in a case of the CFSP

Art. 40 TEU

protects the CFSP and other parts of EU law against undue encroachment by the other.
CJEU may exercise judicial control over the choice of legal basis and check that the EU was competent to act as it did

art. 275 TFEU

empowers the court to hear actions brought by natural or legal persons to review the legality of decisions that provide sanctions or 'restrictive measures' against them.
include challenges to the legality of CFSP measures that arise indirectly via art. 267 as well as direct challenges through art. 263 TFEU