chapter  2
The Legal Framework for the Participation of the European Union in International Institutions
WithRamses A. Wessel
Pages 16

This article aims to analyse and clarify the legal framework surrounding the performance of the EU in international institutions. In political studies, the legal framework governing the position and competences of the EU in other international institutions plays a role only occasionally. The startingpoint in the present contribution is that ‘legal competences matter’ and that knowing the legal framework may deepen the political analysis of the Union’s international capabilities (Basu and Schunz 2008; Jørgensen and Wessel 2011). At a minimum level, the legal framework creates political possibilities and sets the boundaries for any action by the EU. With the

further development of the EU’s external relations, as for instance reflected in the newly established EU External Action Service (Crowe 2008; Duke 2009; Vanhoonacker and Reslow 2010), this legal framework will be helpful in understanding the structural position and role of the EU in global governance. Indeed, several cases studies in this collection point to the relationship

between legal rules or practices and EU performance by looking at some core elements: effectiveness (goal achievement); efficiency (ratio between outputs accomplished and costs incurred); and relevance (of the EU for its priority stakeholders) (see the Introduction to this volume, by Jørgensen, Oberthu¨r and Shahin). These rules may be laid down in treaty provisions and may thus – either procedurally or substantively – define the EU’s potential (compare the different roles of the EU in for instance the WTO and the UNSC); or they may flow from the case law of the European Court of Justice, which over the years largely filled in the existing legal gaps and even seems to have ‘enforced’ the relevance of the EU in external relations (Wessel 2007) – as for instance revealed by the ILO case (Kissack in this collection). In upcoming issue areas (such as climate change), legal practices may ultimately define the roles the EU and its member states can play (Oberthu¨r in this collection). Another reason to assess the legal framework is formed by the entry

into force of the Lisbon Treaty, which allowed the EU to enter a new phase as an international actor. No longer is the world confronted with both the European Community and the European Union as actors on the international stage; since 1 December 2009, the European Union acts as the legal successor to the European Community (Art. 1, Treaty on European Union [TEU]), while maintaining one of its original policy fields: foreign, security, and defence policy. The EU has thus also replaced the Community in international institutions. Apart from its participation in international regimes in various policy

fields, the institutionalization of the role of the EU in the world is reflected in its position in a number of formal international organizations. The question of whether the EU itself is an international organization is still open to debate, although legally there are not too many reasons to deny the EU this status (Wessel 1997, 2000). Whereas the legal dimension of the EU’s external relations in general has been given much attention in academic writings (Cremona 2008; Cremona and de Witte 2008; Dashwood and Maresceau 2008; Eeckhout 2005; Koutrakos 2006), this is less true for the position of the EU in international institutions. Yet, it is in these fora that a structural role of the EU in global governance becomes most visible. And it is this role that has become more interesting now that it becomes clear that many EU (and national) rules find their origin in decision-making processes in other international organizations (Follesdal, Wessel, and Wouters 2008). Both the position of the EU in other international institutions and the

different academic approaches to the study of the EU’s engagement in this area form the source of the questions raised by this contribution. Over the years, the EU has obtained a formal position in some international institu-

tions, either as a full member or as an observer. It is generally held that participation in a formal international organization relates to the participation in its organs: that is, the right to attend the meetings, being elected for functions in the organ, and exercising voting and speaking rights. In that sense, the term ‘position’ is related to a formal influence on the output of the international organization: decisions (often recommendations, in some occasions binding decisions) and conventions (international agreements prepared and adopted by an organ of an international organization) (Frid 1995; Marchisio 2002). The Lisbon Treaty heralds an increase in the engagement of the EU in other international institutions, including potential membership in additional international organizations such as the Council of Europe (Art. 6, TEU). In addition, the EU participates in lessformal international institutions (or regimes), sometimes in ways that come quite close to actual membership (cf. the climate-change example provided in this collection). This contribution thus aims at answering the question of to what extent

the current (post-Lisbon) EU Treaties regulate the position of the EU in international institutions, understood as both formal international organizations and international (treaty-)regimes (see Jørgensen, Oberthu¨r, and Shahin in this collection). As in general EU external-relations law, the division of competences between the EU and its member states forms an important part of this legal framework. Section 2 first of all aims to provide an analysis of the current treaty competences related to the participation of the EU in international institutions by differentiating between implied and express competences. Section 3 analyses the actual use of these competences by investigating in which international institutions the EU has a legal position and which different forms of legal positions can be discovered. Section 4 focuses on the position of the EU in the United Nations, an organization that seems to have been given more attention by the Lisbon Treaty. Finally, section 5 will be used to draw some conclusions.