Convergence and Divergence in EU External Action The Very Slowly Emergent Doctrine of Shared Competence

Abstract

This chapter sketches how unity and diversity are balanced in EU foreign relations by offering an account of how the Court of Justice has pursued two strategies to avoid, and if necessary resolve, conflicts between the EU institutions and the Member States in the foreign policy sphere – a sphere in which both the EU and the Member States are empowered to act. First, a strategy of conflict avoidance through exclusivity. Second, a strategy of conflict avoidance through the imposition on the Member States of obligations to act and not to act within a paradigm of shared competences. The chapter sketches how the Court of Justice moved from the first to the second approach and it explains how, despite the shift from a world of exclusive competences to one of shared competences, there is much continuity in the EU’s foreign affairs constitution. In the past as today, the EU Treaties as interpreted by the Court of Justice prioritise the autonomy and full effectiveness of EU law, including of EU decision-making rules. As a result, the EU Treaties both constrain the Member States in their ability to act autonomously and enable the EU to do so.