A. Status of Forces and Status of Mission Agreements

Status of forces agreements (SOFAs) and status of mission agreements (SOMAs) are bilateral or multilateral treaties that define the legal status of military forces and civilian personnel deployed abroad with the consent of the host State.Footnote ¹⁸ They typically deal with such issues as the entry and departure of foreign personnel, the carrying of arms, taxation, the settlement of claims, and the exercise of criminal jurisdiction over members of the visiting force or mission. The Council has entered into separate status agreements under Article 24 TEU with Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia (FYROM), Georgia, the Democratic Republic of the Congo (DRC), Indonesia, and Gabon in order to determine the legal position of certain ESDP missions.Footnote ¹⁹ The status of the remaining missions has been addressed either in the form of an exchange of letters not based on Article 24 TEU,Footnote ²⁰ or by extending to them the application, mutatis mutandis, of existing legal arrangements negotiated by an EU Member State or by third parties.Footnote ²¹ In the case of one operation, the Council has not entered into any kind of status arrangement with the host State concerned at all.Footnote ²²

With one exception, all status agreements concluded by the Council under Article 24 TEU include provisions governing the exercise of civil and criminal jurisdiction by the local authorities over members of EU crisis management missions, as well as provisions concerning their entry and departure, freedom of movement, means of transport, and communications in the territory of the host State. More recent agreements are more sophisticated, however, insofar as they regulate a broader range of matters and do so in greater detail than most of their predecessors. The status agreements negotiated by the EU are in most respects similar to the status agreements concluded in recent years by other international actors, such as the UN, except for one key difference. In contrast to current international practice in this area, the EU has adopted the negotiating position that all members of its crisis management missions should benefit from treatment equivalent to that accorded to diplomatic agents under the Vienna Convention on Diplomatic Relations of 1961.Footnote ²³ Given that the privileges and immunities of diplomatic agents are broader than the privileges and immunities normally conferred on members of peace support operations, this negotiating strategy runs counter to the growing emphasis on the accountability of peace support operations, and has been questioned within the Union.Footnote ²⁴

B. Third Country Participation Agreements

The EU has made it clear from the very beginning that it welcomes contributions by interested third parties to ESDP crisis management missions, and that it would invite third parties to participate in such missions on a case-by-case basis.Footnote ²⁵ To date, more than 20 third States have contributed personnel and assets to crisis management missions conducted by the EU, many of which have since become Member States of the Union. In the great majority of cases, the Council has concluded international agreements pursuant to Article 24 TEU with the third countries concerned in order to determine the conditions of their participation in ESDP missions. The Council has entered into such agreements with Albania,Footnote ²⁶ Argentina,Footnote ²⁷ Bulgaria,Footnote ²⁸ Chile,Footnote ²⁹ Croatia,Footnote ³⁰ Cyprus,Footnote ³¹ the Czech Republic,Footnote ³² Estonia,Footnote ³³ FYROM,Footnote ³⁴ Hungary,Footnote ³⁵ Iceland,Footnote ³⁶ Latvia,Footnote ³⁷ Lithuania,Footnote ³⁸ Switzerland,Footnote ³⁹ Morocco,Footnote ⁴⁰ New Zealand,Footnote ⁴¹ Norway,Footnote ⁴² Poland,Footnote ⁴³ Romania,Footnote ⁴⁴ Russia,Footnote ⁴⁵ Slovakia,Footnote ⁴⁶ Slovenia,Footnote ⁴⁷ Turkey,Footnote ⁴⁸ and Ukraine.Footnote ⁴⁹ However, not all participation agreements concluded under Article 24 TEU have been published in the Official Journal of the EU,Footnote ⁵⁰ including agreements concluded with Brazil, Brunei, Canada, Hungary, Malaysia, Singapore, South Africa, Thailand and the Philippines.Footnote ⁵¹

Successive third country participation agreements concluded by the Council have followed the same basic pattern. The agreements oblige participating third States to associate themselves with the provisions of the Council Joint Action establishing the ESDP mission in question, and impose on them a duty to ensure that their personnel act in conformity with the Joint Action and related instruments, such as the operation plan. In addition, they extend the application of the status agreements negotiated between the EU and the host State to the personnel made available by participating third States, and contain provisions concerning the chain of command, the waiver of certain claims, the protection of classified information, and financial matters. Generally speaking, the purpose of third country participation agreements is to ensure that the participation of third States in ESDP missions is subject to the same or similar conditions as the participation of EU Member States. Since EU Member States contributing personnel and assets to an ESDP mission are already bound by the relevant internal legal instruments relating to that mission, it is not necessary for the Council to enter into participation agreements with those Member States pursuant to Article 24 TEU.Footnote ⁵²

C. Exchange of Classified Information Agreements

Following the launch of the ESDP, the Council has established a comprehensive security system covering the Council, the Council General Secretariat and the Member States with the aim of safeguarding classified information held by the EU from espionage, compromise or unauthorized disclosure.Footnote ⁵³ Where there is a permanent or occasional need for the exchange of classified information between the EU and third States or international organizations, the Council's security regulations expressly direct the Council to draw up agreements or memoranda of understanding with the third parties concerned to define the reciprocal rules on the protection of the information exchanged.Footnote ⁵⁴ The Council has entered into the first international agreement of this kind with NATO,Footnote ⁵⁵ and has subsequently concluded similar agreements under Article 24 TEU with Bosnia and Herzegovina,Footnote ⁵⁶ Bulgaria,Footnote ⁵⁷ Croatia,Footnote ⁵⁸ FYROM,Footnote ⁵⁹ Iceland,Footnote ⁶⁰ Norway,Footnote ⁶¹ Romania,Footnote ⁶² and Ukraine.Footnote ⁶³ In essence, the contracting parties to these agreements undertake to protect and safeguard classified information provided or exchanged by the other party, and to develop detailed security arrangements to this end. The cooperation and assistance agreement concluded between the EU and the International Criminal Court in 2006 pursuant to Article 24 TEU also contains detailed procedures on the release of EU classified information by the EU to an organ of the Court.Footnote ⁶⁴

A. Efforts to Streamline Article 24 TEU

The terms of Article 24 TEU require two successive decisions by the Council to conclude an international agreement: one decision to authorize the Presidency to open negotiations with the State or international organization concerned, and a second decision to approve the resulting text on a recommendation from the Presidency. The first few ESDP missions launched by the EU have demonstrated that this requirement of two successive Council decisions is time-consuming and renders Article 24 TEU a ‘cumbersome tool for negotiating agreements with third parties’.Footnote ⁶⁵ This was particularly evident in the case of the first ESDP mission, the EU Police Mission (EUPM) in Bosnia and Herzegovina, where the EU had to open parallel negotiations with a large number of contributing third States during the early stages of the planning process in order to determine the conditions of their participation in the mission in time. The Council's early experiences in the implementation of Article 24 TEU have thus shown that the negotiation of separate participation agreements with each third State for every ESDP mission is a lengthy process that is difficult to finalize in time, especially during operations of short duration.Footnote ⁶⁶ The participation agreement concluded between the EU and Cyprus for operation Artemis in the DRC, which was signed shortly after the operation had officially terminated, offers a striking example in this respect.Footnote ⁶⁷

In response to these difficulties, the Council decided to streamline the decision-making process under Article 24 TEU by concluding framework participation agreements with third States and adopting model agreements to be used as negotiating templates by the Presidency. On 23 February 2004, the Council authorized the Presidency to open negotiations with certain third countries to establish a permanent legal framework for their participation in future EU crisis management missions based on a generic ‘framework participation agreement’.Footnote ⁶⁸ The conclusion of framework participation agreements eliminates the need to negotiate separate participation agreements for each new ESDP operation with those third States that are parties to these framework agreements, and thus considerably reduces the administrative burden facing the Council. However, so far the EU has entered into framework participation agreements with only seven third countries,Footnote ⁶⁹ two of which have since become Member States of the EU. This suggests that the full potential of these instruments has not yet been attained.

On 13 September 2004, the Council adopted two model agreements on the participation of third States in military and civilian crisis management missions conducted by the EU,Footnote ⁷⁰ and authorized the Presidency to open negotiations on the basis of these model agreements with those participating third States which have not entered into a framework participation agreement with the EU.Footnote ⁷¹ This was followed by the adoption of an EU Model SOFA concerning the legal status of EU military operations on 23 May 2005,Footnote ⁷² and an EU Model SOMA concerning the legal position of EU civilian missions on 18 July 2005.Footnote ⁷³ In both cases, the Council authorized the Presidency to open negotiations with prospective host States based on the relevant model status agreement in order to define the legal position of EU missions present in their territory.Footnote ⁷⁴

Both the model participation agreements and the model status agreements are conceived as permanent negotiating mandates for the purposes of Article 24 TEU. This means that the Council has entitled the Presidency to open negotiations with third States on the basis of the relevant model agreement without the need to seek a fresh mandate from the Council in each specific case. As a result, only one Council decision approving the resulting text is necessary, which should considerably reduce the time required to conclude third country participation agreements and status agreements under the ESDP. To date, the Council has entered into six agreements based on the model participation agreement for civilian crisis management operations,Footnote ⁷⁵ and has concluded one agreement based on the EU Model SOFA and one based on the EU Model SOMA.Footnote ⁷⁶ Since the model participation agreements and the model status agreements constitute permanent negotiating mandates to the Presidency, the Council considers that their disclosure would undermine the EU's position in future negotiations with third States. The Council has accordingly denied public access to these documents.Footnote ⁷⁷

B. The Need for Informal Arrangements

In addition to international agreements concluded pursuant to Article 24 TEU, various technical, administrative and practical arrangements have also been drawn up under the ESDP. The arrangements in question fall into two groups: those that merely implement or supplement agreements formally concluded on the basis of Article 24 TEU, and those that constitute independent instruments. As regards the first group, all status agreements entered into by the Council between 2002 and 2007 have called for the mandatory conclusion of supplementary arrangements to address certain specific questions, such as communications, medical services, host-nation support, or the procedures for the settlement of claims.Footnote ⁷⁸ They have also entitled or directed the head of mission or the force commander of the ESDP missions concerned to enter into additional supplementary arrangements with the host State's administrative authorities in order to settle other operational, administrative and technical matters.Footnote ⁷⁹ Similarly, some early third country participation agreements have provided for the mandatory conclusion of supplementary arrangements with contributing third States to deal with financial matters,Footnote ⁸⁰ while more recent third country participation agreements authorize the High Representative for the CFSP to enter into any necessary technical and administrative arrangements with the competent authorities of the contributing third State.Footnote ⁸¹

The second group consists of arrangements that are independent instruments in the sense that they do not implement or supplement international agreements based on Article 24 TEU. Most of the arrangements falling into this group have taken the form of an exchange of letters signed by the High Representative for the CFSP and the competent third party. For example, on 17 March 2003, the High Representative for the CFSP and the Secretary General of NATO have signed a series of arrangements tied together by a framework agreement, known collectively as the ‘Berlin Plus’ agreement, whereby NATO has granted the EU access to its collective planning capabilities and to certain pre-identified operational assets and capabilities for the purposes of ESDP crisis management missions.Footnote ⁸² Other exchanges of letters have taken place concerning the invitation to launch ESDP missions,Footnote ⁸³ their status in the territory of host States,Footnote ⁸⁴ the release of NATO assets for specific EU military operations,Footnote ⁸⁵ the participation of third States in ESDP missions,Footnote ⁸⁶ the transfer of EU classified information to international organizations and to contributing third States,Footnote ⁸⁷ and the EU's support to the African Union.Footnote ⁸⁸ In addition, in at least one case the signature of a status agreement concluded between the EU and a third State was executed through an exchange of letters.Footnote ⁸⁹

Many of the arrangements falling into the second group address matters that are normally dealt with in international agreements concluded pursuant to Article 24 TEU. It seems likely that administrative arrangements were preferred over international agreements in these cases for their procedural and substantive flexibility, which makes them particularly suitable as temporary measures and in circumstances requiring immediate action.Footnote ⁹⁰ For instance, considering the impeding accession of Cyprus, the Czech Republic, Hungary, Lithuania, Poland and Slovenia to the EU, the Political and Security CommitteeFootnote ⁹¹ decided in December 2003 that the participation of these countries in the EU police mission in FYROM (Proxima) should be regulated informally by exchanges of letters, rather than through the conclusion of formal third country participation agreements pursuant to Article 24 TEU.Footnote ⁹² Similarly, an exchange of letters took place between the High Representative for the CFSP and the Ambassador of Mali in order to determine, on an ad hoc basis, the details of Mali's participation in the EU police mission in the DRC (EUPOL Kinshasa) pending the conclusion of a formal international agreement under Article 24 TEU.Footnote ⁹³

Not only do informal administrative arrangements avoid time-consuming procedures and offer greater confidentiality than international agreements based on Article 24 TEU, but in some circumstances there is simply no need to record understandings reached between the parties on the ground on practical matters in the form of binding international agreements. The conclusion of informal supplementary and administrative arrangements is therefore likely to remain a permanent feature of the ESDP.

C. Is the Council's Practice Compatible with the TEU?

The Council's practice relating to the implementation of Article 24 TEU raises certain questions concerning its compatibility with the terms of the TEU. First, it is worth noting the prominent role that the High Representative for the CFSP has assumed in the negotiation of international agreements under Article 24 TEU. The majority of Council Joint Actions establishing ESDP crisis management missions have authorized the High Representative to assist the Presidency in the negotiation of status agreements and third country participation agreements by conducting these negotiations on its behalf.Footnote ⁹⁴ In effect, the High Representative has thus taken on the role foreseen for the European Commission under Article 24 TEU in the area of the ESDP. This development is unsurprising, given that the High Representative is better placed to conduct negotiations with third parties in this policy area than the Commission. The sidelining of the Commission does not constitute an infringement of its prerogatives, however, since Article 24 TEU merely entitles the Council to seek the Commission's assistance without imposing an obligation on it to do so in specific cases. Consequently, nothing prevents the Council from authorizing the High Representative to assist the Presidency by conducting negotiations with third parties on behalf of the Presidency; in particular, as Article 18(3) TEU expressly provides that the Presidency shall be assisted by the High Representative in representing the Union in matters coming within the CFSP.Footnote ⁹⁵ Moreover, since Article 24 TEU merely provides that international agreements ‘shall be concluded by the Council’ without specifying which body should sign these agreements on its behalf, the Council is free to delegate this task to the High Representative.Footnote ⁹⁶

Secondly, the informal nature of supplementary and administrative arrangements does not imply that they cannot be binding under international law. Whether a particular informal arrangement concluded for the purposes of the ESDP constitutes a non-binding instrument or a binding international agreement drawn up in simplified form depends, in the first place, on the question of whether or not the parties to the arrangement possess the capacity to assume legal commitments under international law and, secondly, whether or not they actually intended to do so, as evidenced by the form, terms and circumstances of the arrangement in question.Footnote ⁹⁷

As regards the first requirement, on the EU's side most informal arrangements were signed by the High Representative for the CFSP. Bearing in mind that the High Representative acts under the authority of the CouncilFootnote ⁹⁸ and that the Council enjoys the capacity to conclude international agreements under Article 24 TEU, it is certainly possible that, by signing the informal arrangements in question, the High Representative has entered into legal commitments on behalf of the Council.Footnote ⁹⁹ For instance, the exchange of letters between the High Representative and the Turkish Foreign Minister of 28 June 2006 regarding the exchange of classified information refers to the need ‘to put into place an ad hoc understanding … between the European Union and the Republic of Turkey’,Footnote ¹⁰⁰ which shows that the High Representative did not act in his own capacity when he signed this document.Footnote ¹⁰¹ As regards the second requirement, the terms and circumstances of the publicly available informal arrangements do not demonstrate a clear and manifest intent by their parties to enter into legal relations, though some arrangements do not exclude the existence of such intentions either.Footnote ¹⁰² Thus, the exchange of letters between the High Representative and the Turkish Foreign Minister of 28 June 2006 employs the term ‘will’ as well as the term ‘shall’, and is understood both to ‘enter into force’ and to ‘take effect’. The possibility cannot be excluded, therefore, that at least some informal arrangements adopted in the context of the ESDP constitute binding international agreements.Footnote ¹⁰³

In any event, even those supplementary and administrative arrangements that do not appear to constitute binding international agreements adopted in simplified form are not necessarily devoid of all legal effects.Footnote ¹⁰⁴ For instance, an exchange of letters between the High Representative for the CFSP and a prospective host State wherein the latter formally invites the EU to conduct a crisis management mission in its territory expresses that State's consent to the presence of foreign military and civilian personnel within its borders. Even if the exchange of letters were not considered a binding international agreement, it nonetheless renders the presence of foreign personnel in the territory of the host State lawful under international law.Footnote ¹⁰⁵ Similarly, a supplementary arrangement concluded between an EU crisis management mission and the administrative authorities of the host State to regulate the settlement of claims brought against that mission is evidently intended to have legal effects.Footnote ¹⁰⁶ The same goes for the understanding recorded in an exchange of letters between the High Representative and the Secretary General of NATO on 18 November 2004, whereby an EU crisis management operation (EUFOR Althea) became a legal successor to NATO's SFOR operation in Bosnia and Herzegovina.Footnote ¹⁰⁷ Some of the relevant arrangements may be regarded as expressing unilateral binding commitments,Footnote ¹⁰⁸ such as exchanges of letters in which the host State undertakes to grant the EU mission and its personnel certain privileges and immunities,Footnote ¹⁰⁹ or exchanges of letters in which third States participating in an EU crisis management mission undertake to bear the costs of their participation in the mission.Footnote ¹¹⁰

By concluding administrative and supplementary arrangements, the Council is by-passing the procedures laid down in Article 24 TEU for the conclusion of international agreements in the area of the CFSP. This does not pose any difficulties as long as the arrangements concerned are truly non-binding instruments, since Article 24 TEU is only concerned with the negotiation and conclusion of binding international agreements.Footnote ¹¹¹ However, the question arises whether the Council may conclude informal arrangements that produce significant legal effects, or in fact constitute binding international agreements, without basing itself on the provisions of Article 24 TEU. It is useful to recall the case of France v Commission in this context.Footnote ¹¹² In that case, France brought an action before the European Court of Justice seeking a declaration that an agreement signed between the European Commission and the Government of the United States in the area of competition law was void because, amongst other things, the Commission lacked the competence to conclude the agreement. Having found that the text in question amounted to an international agreement within the meaning of the Vienna Convention on the Law of Treaties of 1986,Footnote ¹¹³ the Court held that the Commission could not derive from Article 228 [now 300] of the European Community (EC) Treaty a power to enter into international agreements, because this infringed the competence of the Council to conclude such agreements under Article 228 and contravened the principle laid down in Article 4(1) [now 7(1)] EC Treaty whereby each institution shall act within the limits of the powers conferred on it by the Treaty.Footnote ¹¹⁴ The Court also added that the Commission could not derive such a competence from practice either, since ‘a mere practice cannot override the provisions of the Treaty’.Footnote ¹¹⁵ The Court accordingly annulled the act, whereby the Commission concluded the agreement concerned.

The Council's position under the TEU differs in certain key respects from that of the Commission in the case of France v Commission. First, the Council does enjoy the competence to enter into international agreements for the purposes of the CFSP. The conclusion of binding informal arrangements not based on Article 24 TEU does not, therefore, violate the principle of conferred powers, since the Council cannot be considered to be acting ultra vires in concluding such arrangements.Footnote ¹¹⁶ Secondly, since the Council is the only institution that is competent to enter into international agreements under the CFSP, the conclusion of binding informal arrangements cannot infringe the competences of the other institutions either. Consequently, the Council's practice does not raise substantive concerns, but merely a procedural question,Footnote ¹¹⁷ namely, must all agreements necessary for the purposes of the CFSP be based on Article 24 TEU, or is the Council entitled to circumvent this provision in order to enter into binding arrangements informally?

Given that the conclusion of all supplementary and administrative arrangements is based on an authorization by the Council, it may be presumed that, by agreeing to these authorizations, the representatives of the Member States of the EU have accepted the possibility that informal arrangements may produce significant legal effects or even constitute binding international agreements in simplified form. As the European Court of Justice has confirmed in France v Commission, a ‘mere practice’ cannot override the provisions of the EC Treaty as a matter of Community law.Footnote ¹¹⁸ However, the provisions of the TEU dealing with the CFSP do not form part of Community law, but are part of public international law pure and simple.Footnote ¹¹⁹ The interpretation of these provisions, including Article 24 TEU, is therefore subject to the rules of treaty interpretation as set out in the Vienna Convention on the Law of Treaties of 1969 (VCLT),Footnote ¹²⁰ and not to the rules of interpretation applied by the European Court of Justice to Community law measures.Footnote ¹²¹ The general rule of interpretation laid down in Article 31 of the VCLT suggests that the Member States' support within the Council for the conclusion of binding informal arrangements should be regarded as subsequent practice in the application of the TEU.Footnote ¹²² This subsequent practice demonstrates that not all international agreements necessary for the implementation of the CFSP have to be based on Article 24 TEU, and thus sanctions the Council's practice of concluding binding supplementary and administrative arrangements using a simplified procedure that bypasses the technical aspects of Article 24 TEU.Footnote ¹²³

A. The Notion of International Legal Personality

An international legal person is an entity that is subject to rights and duties under international law and possesses the capacity to enter into legal relations with other subjects of international law.Footnote ¹²⁴ Various theories have been put forward to explain the attribution of international legal personality to international organizations,Footnote ¹²⁵ yet in the final analysis all modern theories derive the legal personality of international organizations from their constituent or related instruments, and thus ultimately from the consent and will of their creators.Footnote ¹²⁶ An organization's constituent instrument may confer international legal personality on it either explicitly or by implication. For example, Article 281 EC Treaty provides that the European Community ‘shall have legal personality’. The European Court of Justice and most commentators have interpreted this provision, somewhat uncritically perhaps, to endow the Community with international, rather than domestic, legal personality.Footnote ¹²⁷ Likewise, Article I-7 of the failed Constitutional TreatyFootnote ¹²⁸ and the new Article 46A inserted into the TEU by the Treaty of Lisbon declare that the ‘Union shall have legal personality’.Footnote ¹²⁹ By contrast, the EU's current constituent instrument, the TEU in its Nice version, does not confer legal personality on the Union in express terms. The academic debate over the EU's international legal status has accordingly revolved around the question of whether it does so by implication.

The leading authority for the implicit attribution of international legal personality is the Reparation for Injuries case,Footnote ¹³⁰ where the International Court of Justice (ICJ) considered the international legal personality of the UN. Since the actual terms of the UN Charter do not address this matter, the Court set out to determine whether the Charter nevertheless gave the UN characteristics that entailed the attribution of legal personality to it under international law. The Court found that the UN ‘was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane’.Footnote ¹³¹ In reaching this conclusion, the Court had regard to the functions of the UN, the fact that the Charter equipped it with organs having special tasks, and that the UN in certain respects occupied a position in detachment from its Member States, partly as a result of enjoying and exercising the capacity to enter into treaties with them. Having thus established that the UN constitutes a subject of international law, the Court inferred from this that the UN ‘must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’,Footnote ¹³² such as the capacity to bring international claims.

B. The EU as a Subject of International Law: Maastricht

Applying the Court's reasoning in the Reparation case, the EU may be considered as a subject of international law provided that it constitutes a corporate entity distinct from its Member States that is capable of exercising and enjoying, and does in fact exercise and enjoy, such functions and legal capacities on the international level as to demonstrate the intention of its creators to attribute international legal personality to it.Footnote ¹³³

The EU certainly did not fit this description under the Maastricht Treaty.Footnote ¹³⁴ Not only did the Maastricht Treaty show no obvious signs that its founders intended the EU to exercise legal capacities on the international plane, but it is doubtful whether the Union occupied a position of sufficient detachment from its Member States in the first place. Whereas the Maastricht Treaty seemingly ascribed a separate legal existence to the EU in the area of foreign and security policy in so far as it made the Union and its Member States jointly responsible to define and implement the CFSP,Footnote ¹³⁵ it left the execution of the CFSP almost entirely to the Member States with the Council playing essentially a procedural role. Most revealingly, the Maastricht Treaty directed the Union to pursue the objectives of the CFSP by two means: by ‘establishing systematic cooperation between Member States in the conduct of policy’ and by ‘gradually implementing joint action … in the areas in which the Member States have important interests in common’.Footnote ¹³⁶ Even though the Council was meant to serve as a forum for systematic cooperation and was empowered to adopt binding decisions concerning joint actions,Footnote ¹³⁷ systematic cooperation and joint actions were both conceived as processes engaging the Member States, not as instruments belonging to the Union as such.Footnote ¹³⁸

The predominant role played by the Member States in the CFSP rendered the legal nature of the Union deeply ambiguous under the Maastricht Treaty. On the one hand, the overall coordinating role played by the Council and some of the language employed in the Treaty may have suggested that in certain respects the Union was more than just a centre for harmonizing the actions of its Member States in the attainment of their common ends.Footnote ¹³⁹ On the other hand, the Maastricht Treaty did not invest the Union with international legal capacities, and in various places simply seemed to equate the Union with its Member States. The objective to safeguard the Union's ‘common values’ and to act as a ‘cohesive force in international relations’, for example, was clearly aimed at the Union qua an association of States, rather than qua single legal entity.Footnote ¹⁴⁰ Indeed, this ambiguity has led the German Federal Constitutional Court to conclude that the Maastricht Treaty employed the term Union ‘as a name for the Member States acting in concert, not as an independent legal entity’.Footnote ¹⁴¹ Whilst some authors have argued that the EU amounted to an international legal person,Footnote ¹⁴² the majority of commentators have accordingly either taken the view that the Union did not constitute an entity distinct from its Member States, or that the Maastricht Treaty in any case did not establish the Union as an independent subject of international law.Footnote ¹⁴³

C. The Capacity to Conclude Treaties: Amsterdam

The Amsterdam Treaty completely overhauled the provisions of the TEU dealing with foreign policy and security matters.Footnote ¹⁴⁴ Amongst other things, the Treaty imposed an obligation on the Member States to ‘support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity’, clarified the nature and role of joint actions and common positions, introduced qualified majority voting in certain circumstances, and created the position of the High Representative for the CFSP.Footnote ¹⁴⁵ Because of these changes, the sense of the Union's detachment from its Member States in the area of the CFSP has increased considerably, though it should be underlined that the Amsterdam Treaty did not remove all ambiguities concerning the legal nature of the Union, and even created new ones.Footnote ¹⁴⁶

Following the adoption of the Amsterdam Treaty, the focus of the academic debate has gradually shifted from its initial preoccupation with the legal nature of the EU to the question of the Union's legal qualities, in particular its treaty-making capacity. One of the key innovations of the Amsterdam Treaty was the introduction of Article 24 TEU, entitling the Council to conclude international agreements in the implementation of the CFSP. However, the failure of Article 24 TEU to clarify on whose behalf the Council concludes such agreements has given rise to conflicting interpretations in the literature. A large number of authors have argued that the Council acts on behalf of the Member States as their agent.Footnote ¹⁴⁷ According to this view, the purpose of Article 24 TEU is to lay down a procedure for the collective conclusion of international agreements by the Member States. Others have argued that the Council acts on behalf of the Union as an independent legal entity.Footnote ¹⁴⁸ According to this interpretation, the Amsterdam Treaty endows the EU with treaty-making capacity, and thus implicitly recognizes that it is capable of acting as an independent subject of international law.

There is no need to rehearse the arguments advanced by these two opposing camps in any great detail here. It suffices to note the following. On the one hand, neither side has been able to conclusively prove or deny that Article 24 TEU implicitly attributes international legal personality to the Union. Both camps tend to invoke the same legal norms and facts to support their positions, and their respective arguments are often simply countered by the other side with a different interpretation of the same material. Since both camps have raised certain points supporting their position which the other side is unable to refute, the debate has remained inconclusive. For instance, much has been made of the fact that the Union bears sole responsibility for defining and implementing the CFSP under the Amsterdam Treaty.Footnote ¹⁴⁹ It has been suggested that this renewed emphasis on the EU is difficult to reconcile with the notion that the Council acts on behalf of the Member States. This may be so, yet Article 24 TEU must be interpreted in the light of all provisions of the Amsterdam Treaty. These include Article 12 TEU, which enumerates the means whereby the EU shall implement the CFSP without, however, mentioning international agreements: this suggests that international agreements concluded under Article 24 TEU are not instruments of the Union. The contextual interpretation cuts both ways.

Another case in point is the fourth declaration adopted by the representatives of the Member States on signing the Amsterdam Treaty, which proclaims that the provision of Article 24 TEU and any agreements resulting from it ‘shall not imply any transfer of competence from the Member States to the European Union’.Footnote ¹⁵⁰ Some commentators have argued that this declaration demonstrates that the Member States had no intention at all to endow the EU with independent treaty-making capacities. Others have responded to this by pointing out that States normally confer, rather than transfer, legal capacities on an international organization.Footnote ¹⁵¹ Again, while this is a valid point, it does not prove that the Member States have in fact conferred treaty-making capacities on the Union, but merely leaves open the possibility of such an interpretation. Rather than illuminating the meaning of Article 24 TEU, the declaration thus simply adds another layer to the confusion.

On the other hand, the interpretation of Article 24 TEU has occasionally lacked methodological rigour. During the drafting of the Amsterdam Treaty, the representatives of the Member States discussed the possibility of attributing international legal capacities and personality to the EU in express terms. However, certain Member States were opposed to this idea, and Article 24 TEU was adopted instead. Some commentators have sought to downplay this negotiating background, arguing that the travaux préparatoires of Article 24 TEU are neutral in so far as they neither prove nor exclude the attribution of legal personality to the EU.Footnote ¹⁵² Actually, the travaux are far from neutral. Three specific options were considered during the negotiations: the first conferred on the Union all those international legal capacities that are necessary to carry out its functions and explicitly recognized its legal personality; the second provided the Union only with treaty-making capacity without mentioning legal personality; the third option entitled the Council to conclude international agreements on behalf of all of the Member States.Footnote ¹⁵³ The fact that the final text of Article 24 TEU referred to the constitutional procedures of the Member States and to provisional application—which are the only two elements that were specific to the third option—strongly suggests that the drafters of the Amsterdam Treaty eventually decided that the Council should act on behalf of the Member States.

This result cannot be dismissed on the ground that having recourse to the travaux préparatoires of the Amsterdam Treaty constitutes merely a supplementary means of interpretation under the VCLT, as has been suggested by some.Footnote ¹⁵⁴ The purpose of treaty interpretation is to ascertain the intentions of the parties as expressed in the text of the treaty.Footnote ¹⁵⁵ Where this textual interpretation leaves the meaning of the treaty ambiguous or obscure, as is the case with Article 24 TEU, reference should be had to the travaux in accordance with Article 32 of the VCLT.Footnote ¹⁵⁶ Not only do the travaux préparatoires of the Amsterdam Treaty demonstrate a lack of agreement among the Member States regarding the explicit attribution of legal personality to the EU, but they also reveal that the discussions on this matter proceeded on the basis that there was no unanimous support in the Council for the implicit attribution of international legal personality either.Footnote ¹⁵⁷ Consequently, it requires compelling evidence to establish that the Member States have nevertheless agreed to implicitly attribute international legal personality to the Union in the form of Article 24 TEU, notwithstanding all the signs pointing in the opposite direction.Footnote ¹⁵⁸ As was already noted, the academic debate on Article 24 TEU has failed to produce such evidence.Footnote ¹⁵⁹

This partly results from overstretching the analogy between the UN and the EU in applying the Reparation case to the latter. In the Reparation case, neither the UN's treaty-making capacity nor its status as an independent subject of international law was disputed before the International Court of Justice.Footnote ¹⁶⁰ By contrast, neither the international legal capacities nor the legal personality of the Union is established. This important difference is often overlooked. For example, it has been suggested that Article 24 TEU must be understood as entitling the Council to conclude international agreements on behalf of the Union because the Council acts as an institution of the EU under the CFSP, not as an organ of the Member States.Footnote ¹⁶¹ This argument is circular, since the Union's treaty-making capacity is inferred from the presumption that the Union is capable of acting as an independent subject of international law—yet this is precisely what has to be demonstrated in the first place.Footnote ¹⁶² Besides, nothing prevents the Member States from directing the Council to act on their behalf, as was specifically foreseen in the third option considered during the negotiations of the Amsterdam Treaty. The same goes for the Presidency: even though the Presidency's role is to represent the Union in matters coming within the CFSP,Footnote ¹⁶³ this has not stopped the Member States from authorizing it to sign the Memorandum of Understanding governing the EU Administration of Mostar on their behalf.Footnote ¹⁶⁴ Overall, Article 24 TEU does not support the conclusion that the Member States have endowed the EU with treaty-making capacity and thus implicitly conferred international legal personality on it. At best, the Amsterdam Treaty has left this question open for subsequent developments.

D. The Current Legal Framework: Nice

The amendments made to Article 24 TEU by the Nice Treaty call for a more guarded assessment.Footnote ¹⁶⁵ In addition to rearranging the content of Article 24 TEU over six paragraphs, the Nice Treaty directs the Council to proceed by qualified majority, rather than by unanimity, when an agreement is envisaged to implement a joint action or common position. It has been argued that it is ‘not conceivable that agreements concluded by qualified majority, i.e., against the opposition of certain Member States, would nonetheless be concluded on their behalf’.Footnote ¹⁶⁶ However, the use of qualified majority voting does not necessarily contradict the view that the Council acts on behalf of all the Member States as long as one is prepared to accept as tenable the interpretation that, by agreeing to Article 24 TEU, all Member States have eo ipso authorized the Council to negotiate and adopt international agreements on their behalf, subject to their continued right to ultimately refuse to become a party to an agreement in specific cases in accordance with the fifth paragraph of Article 24 TEU.Footnote ¹⁶⁷ This provision declares that ‘No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall nevertheless apply provisionally.’

It is not immediately clear whether Article 24(5) TEU refers to the binding effect of international agreements on the internal level as a matter of EU law or on the international level as a matter of the law of treaties. Some support for the former view may be derived from Article 24(6) TEU, which provides that international agreements concluded under the conditions set out in Article 24 TEU shall be binding on the institutions of the Union. Since the institutions clearly are not parties to the agreements in question, they are not directly bound by them under the law of treaties, but have to comply with their terms because Article 24(6) TEU provides so. At first sight, Article 24(5) TEU could be interpreted in the same fashion. However, it is widely accepted that the constitutional requirements referred to in that paragraph include those norms of domestic constitutional law that call for the parliamentary approval of international agreements before they may be ratified by the executive of the Member State concerned. It is difficult to see why these constitutional requirements should be considered applicable to international agreements concluded under Article 24 TEU unless the Member States were parties to these agreements. This interpretation is reinforced by the rule concerning the provisional application of international agreements concluded under Article 24 TEU. The provisional application of an international agreement is an act that takes place on the international level in accordance with the law of treaties.Footnote ¹⁶⁸ In its original version under the Amsterdam Treaty, the second part of what is now Article 24(5) TEU declared that those Member States which did not make a statement in the Council regarding the need to comply with their constitutional requirements ‘may agree that the agreement shall apply provisionally to them’.Footnote ¹⁶⁹ Once again, it is difficult to see how the Member States could be competent to decide on the provisional application of an agreement unless they were prospective parties to it.

However, it somewhat complicates matters that the Nice Treaty has omitted the words ‘to them’ from the original version of Article 24(5) TEU. This omission has been interpreted to confirm that it is for the EU, rather than the individual Member States, to decide on the provisional application of international agreements, which would imply that the EU is a party to these agreements in its own right.Footnote ¹⁷⁰ This argument loses some of its force, however, if one considers that at one stage the draft version of the Nice Treaty expressly provided that the Member States ‘may agree that the agreement shall nevertheless apply provisionally to the Union’,Footnote ¹⁷¹ but that this wording failed to receive the support of all negotiating Member States and was deleted from the final text. Arguably, Article 24(5) TEU should therefore be understood as enabling those Member States which have not made statements in the Council regarding the need to comply with their constitutional requirements to agree to provisionally apply the agreement in question as between all Member States of the EU, including those that have made such statements, on one side and the third party concerned on the other side.Footnote ¹⁷² The Member States which have made statements in the Council could then either opt to become parties to the agreement once their constitutional requirements have been met, or they could unilaterally terminate the provisional application of the agreement to them in accordance with Article 25 of the VCLT by notifying the other States and organizations concerned of their intention not to become parties to the agreement.Footnote ¹⁷³ While this interpretation is certainly tenable, it has to be acknowledged that the amendments introduced to Article 24 TEU by the Nice Treaty do weaken the interpretation that the Council acts on behalf of the Member States. Nevertheless, they hardly offer conclusive proof in favour of the opposite view whereby the Council is said to act on behalf of the Union as an independent legal entity.

E. Subsequent Practice

Given that the academic debate surrounding Article 24 TEU has yielded no conclusive results, a significant number of authors have argued that definite conclusions regarding the international legal status of the EU can only be drawn once the Council has actually begun to implement the provisions of Article 24 TEU in practice.Footnote ¹⁷⁴ The launch of the ESDP has supplied plenty of such practice, and it seems that a consensus is now emerging in the literature to the effect that the international agreements concluded by the Council since 2001 in the context of the ESDP demonstrate that the Council acts on behalf of the EU under Article 24 TEU, rather than on behalf of the Member States.Footnote ¹⁷⁵ One of the key arguments put forward in support of this view is that both the internal Council acts adopting international agreements as well as the agreements themselves name the ‘European Union’ as one of the contracting parties. The Council has consistently approved the agreements negotiated by the Presidency under Article 24 TEU ‘on behalf of the European Union’, and has specifically authorized the Presidency to designate the person empowered to sign them ‘in order to bind the European Union’.Footnote ¹⁷⁶ Moreover, the titles and preambles of all of the more than 70 agreements concluded by the Council refer to the ‘European Union’ as one of their parties.Footnote ¹⁷⁷ Consequently, there can be no doubt that the Council has acted on behalf of the ‘European Union’ when entering into these agreements, and that the Union has become a contracting party to them.

Still, the fact that the agreements were concluded in the name of the ‘European Union’ does not establish, in and of itself, that the EU enjoys and exercises the capacity to enter into treaties as a separate entity, unless one simply assumes that the term ‘European Union’ refers to a legal entity that is distinct from the Member States and is capable of acting on the international level, rather than being merely a collective name for the Member States. Though perfectly reasonable given the evolution of the Union's role under the CFSP since the Maastricht Treaty, this assumption has to be tested by examining the actual terms of the agreements, in particular by considering whether or not they grant rights to and impose duties on the EU separately from its Member States.

Despite the large number of agreements concluded by the Council since 2001 in the area of the ESDP, only a handful of passages differentiate between the EU on the one hand and the Member States on the other. Status of forces and status of mission agreements are the least instructive group of agreements in this respect, since they confer privileges and immunities directly on EU crisis management missions and their personnel, and not on the EU or the individual national contingents making up those missions. The agreements laying down security procedures for the exchange of classified information are not very helpful either. All agreements falling into this group provide that the term ‘EU’ shall mean, for the purposes of these agreements, the Council, the Council General Secretariat, and the Commission.Footnote ¹⁷⁸ While this definition excludes the Member States, certain parts of the agreements continue to refer to the EU in a broader sense.Footnote ¹⁷⁹ It appears that the EU is a contracting party to these agreements in this broader sense, rather than the Council, the Council General Secretariat and the Commission acting collectively.Footnote ¹⁸⁰ The only agreement in this group that clearly differentiates between the EU and the Member States is the one concluded with NATO, which authorizes the EU to disclose NATO classified information to its Member States in certain circumstances.Footnote ¹⁸¹ A similar distinction is drawn in recent third country participation agreements and in framework participation agreements in the form of a clause whereby the ‘European Union undertakes to ensure that Member States make a declaration’ waiving certain types of claims against the participating third State concerned.Footnote ¹⁸²

The terms of the international agreements concluded by the Council shed comparatively little light on the legal character of the EU and its relationship with its Member States. Once again, it is useful to recall the Reparation case, where the International Court of Justice was able to confirm the UN's detachment from its Members on the ground that it had entered into treaties with them. The practice of the Council under Article 24 TEU is not as clear-cut as that of the UN. Nevertheless, at least some of the relevant agreements seem to treat the EU as an entity that is distinct from its Member States and is capable of bearing rights and duties under international law.Footnote ¹⁸³ This seems to confirm that the EU is a contracting party to these agreements in its own right, independently from its Member States, and that it must be considered an international legal person as a result.Footnote ¹⁸⁴ However, the Council's practice in implementing Article 24 TEU should not be understood as retrospectively corroborating the view that the Member States had already conferred international legal personality on the EU by implication under the Amsterdam or Nice Treaty: it should rather be seen as a stage in the gradual evolution of the legal nature and capacities of the EU since its creation at Maastricht, one that constitutes the EU as a new subject of international law.

F. Political Actor or Legal Person?

As an international legal person, the EU is subject to rights and duties under international law separately from its Member States. One of the key consequences of its status as an independent subject of international law is that the EU bears legal responsibility for its conduct should it fail to comply with its international obligations. However, it is precisely in this field that the agreements concluded by the Council since 2001 cast some doubts on the ‘actorness’ of the Union as a legal person.Footnote ¹⁸⁵ Two points illustrate the dilemma.

First, all agreements that contain provisions concerning the settlement of disputes arising out of their interpretation or application provide that such disputes shall be settled by diplomatic means.Footnote ¹⁸⁶ The sensitive subject-matter of the agreements concluded in the context of the ESDP does not necessarily rule out binding methods of dispute settlement, such as arbitration or adjudication. Indeed, international practice offers several examples of status of forces agreements and other politico-military agreements that provide for compulsory forms of dispute settlement between their parties.Footnote ¹⁸⁷ The fact that the EU has in all cases preferred bilateral diplomatic negotiations over more formal procedures as a means to settle potential disputes with the other contracting parties indicates that it seeks to avoid the international agreements concluded for the purposes of the ESDP from becoming the subject of legal proceedings. Of course, this in no way affects the legal nature of the commitments undertaken in those agreements, nor does it prevent the EU and the other contracting parties from incurring international legal responsibility should they breach these commitments. What it does mean, however, is that none of the parties may have recourse to legal remedies in order to invoke the responsibility of another party and to resolve disputes relating to the application and interpretation of the agreements.Footnote ¹⁸⁸ Secondly, the relevant legal instruments provide that the Member States and institutions of the EU as well as the third States contributing personnel to an ESDP mission shall be responsible for answering any claims linked to, from or concerning the personnel they have seconded to the mission.Footnote ¹⁸⁹ While claims relating to seconded personnel are thus settled directly by the sending States or institutions, claims for damage caused by the headquarters of military operations are covered by a financing mechanism acting on behalf of the contributing States.Footnote ¹⁹⁰ These arrangements are designed to settle claims arising from EU crisis management missions without invoking the international legal responsibility of the EU itself.

These two examples suggest that the Member States are more content with the EU as a political actor on the international stage than as a legal person: whereas the Union has concluded more than seventy international agreements and conducted 18 crisis management missions in its own name in the period between 2002 and 2007, it has been reluctant, or so it seems, to fully accept the legal consequences of its status as an independent subject of international law. It is unlikely, however, that the Member States and the EU will be able to indefinitely avoid the question of the Union's sole or joint responsibility for damage or injury caused by its crisis management missions from arising in practice.Footnote ¹⁹¹ Indeed, should third States or private claimants ever commence proceedings against EU Member States in relation to EU crisis management missions before international judicial bodies, such as the International Court of Justice or the European Court of Human Rights, it would not be surprising to see the Member States concerned arguing that the alleged wrongful conduct that gave rise to the proceedings should be attributed exclusively to the EU, rather than to them.Footnote ¹⁹²

The extent to which the EU may be held responsible for the acts or omissions of its crisis management missions, and whether it has a sufficient legal interest in acting on their behalf, for instance by presenting international claims,Footnote ¹⁹³ depends in large measure on the nature of the legal and institutional relationship between the EU and those missions. Whereas peace support operations established by the UN and operating under its effective command and control are subsidiary organs of the Organization,Footnote ¹⁹⁴ it is unclear whether missions launched in the context of the ESDP should be considered as de jure subsidiary organs of the EU, as instrumentalities of the participating States and organizations, or as independent legal entities. Arguments can be found both for and against each of these three positions. For example, the fact that ESDP missions are established by the Council in the form of a Joint Action under Article 14 TEU suggests that a close institutional relationship exists between them and the EU. At the same time, nothing indicates that the operational assets and personnel contributed to ESDP missions by the participating States and organizations are incorporated into the institutional structure of the EU for the purposes and duration of these missions: instead, it appears that such assets and personnel remain the exclusive organs of the respective contributing States and organizations. Still, the fact that the status of forces and status of mission agreements concluded by the Council confer privileges and immunities directly on ESDP missions and entitle them to enter into contracts and to conclude arrangements with the local authorities could imply that they are not mere instrumentalities of the contributing States and organizations after all, but entities that in some respects lead an independent legal existence. Consequently, the extent of the EU's international legal responsibility for the acts or omissions of ESDP missions and their personnel remains uncertain.Footnote ¹⁹⁵