• Morocco
• EU external relations law
• consistency principle
• Israel
• Kosovo
• Front Polisario
• customary international law
• self-determination

Before the Treaty of Lisbon, the problem of horizontal consistency was considered to be due to ‘the original sin of overall EU external action’: the separation between the CFSP and ‘other aspects of foreign policy’, in particular ‘the entire area of external economic policy’. After the Treaty of Lisbon, the Union no longer needs to ensure inter-pillar consistency, as the pillars no longer exist, and the EU has a single legal personality nowadays. A unitary framework of ‘substantive requirements’ informs and governs EU external action. Yet, the ‘quest’ for consistency of EU external action remains. Article 21(3) TEU is a specific expression of the (more general) principle of consistency set out in Article 7 TFEU. It is something more than a political aspiration: it has a prominent role in the Treaties, and it appears to enjoy a constitutional nature. Yet, the practice on this principle is scarce, and the Court of Justice has not had the opportunity to shed light on it.
In this dissertation, the expression of ‘substantial consistency’ is coined to refer to the consistency of EU external action in two dimensions: respect and promotion of the principles and objectives underlining EU international relations. The issue is whether the EU acts consistently with its self-imposed ‘strict’ commitment towards international law (Article 3(5) TEU). While the focus of legal scholars has mainly been on the Union’s respect and promotion of human rights abroad, other fundamental norms of international law, such as the peoples’ self-determination principle, have so far received less attention. This is regrettable: in fact, the Union must respect international law as a whole, including customary law and the principle of peoples’ self-determination. In recent years, the EU institutions have attracted criticism for their way to selectively promote respect of this principle: in particular, the EU has relied on this principle to shape its relations with the Occupied Palestinian Territories; in contrast, the Commission and the Council have neglected this principle with respect to the situation of Western Sahara. The two case studies are taken as fertile ground to test the contours of the obligation to ensure consistency with respect to international law for the EU, which often claims to adopt a ‘principled approach’ in its external relations.
Chapter 2 highlights that the obligation arising from Article 21(3) TEU must be discharged by the Council and the Commission, taking into account the interests of the Union and the Member States. Emphasis is placed on the wide margin of discretion that informs the area of EU external relations. Such discretion, coupled with the need to ensure the interests of the Union, can be an obstacle to consistent external action, especially when the Union must fulfil obligations under general international law, which have been defined as ‘complex and imprecise’ by the same Court of Justice.
Although the task of ensuring consistency is specifically assigned to the Commission and the Council, the Parliament can play a twofold role: on the one hand, by giving its consent or, vice versa, by rejecting an international agreement; on the other hand, by supervising the actions of the Council and the Commission and by prompting them to adopt substantially consistent policies. The Court of Justice has defined the duty to inform which the EU institutions owe to the Parliament under Article 218(10) TFEU as an instrument to ensure the coherence and consistency of the EU external action. As for the Court, this institution has not clarified the obligations stemming from the consistency principle so far, despite it being subject to its jurisdiction. The Court has sometimes invoked the notions of ‘coherence’ and ‘consistency’, either giving them different meanings depending on the contexts, or referring to both notions together, or intending to refer to other concepts of Union law. With this institution now facing increasingly complex and politically sensitive issues, including the implications stemming from the principle of peoples’ self-determination, a ruling firmly anchored on the principle of consistency is desirable.
This dissertation has addressed the ‘quest’ for substantial consistency through selected case studies. In Chapters 3 to 5, the dissertation zooms in on them. All three case studies are concerned with EU engagement with contested territories in the EU neighbourhood or with countries having a ‘European perspective’. The quality of the relations with third countries such as Israel, Palestine and Morocco, as well as with the Non-Self-Governing Territory of Western Sahara and Kosovo, prompted us to study these cases in the light of the consistency principle.
As for Kosovo, the EU appears to provide an original and effective contribution to State recognition on the international stage, through a synthesis of its own interests, principles and objectives, on the one hand, and the position of the Member States, on the other. Despite Member States’ divergence over the status of this country, the EU has managed to forge a common position without breaching international law and has acted as a promoter of stability in the interests of the Western Balkans, as well as in its own interests. Once the EU accepts the application of Kosovo and grants it effective candidate status, this will be conclusive proof that for the EU Kosovo is a State.
Turning to the case studies concerning the application of the principle of peoples’ self-determination, it is possible to conclude that the Union has not been fully consistent with international law. More particularly, the trade practices followed in the implementation of the EU-Morocco agreements have proven to be contrary to the rules of international law applicable to Western Sahara. A large part of this dissertation is devoted to the case law of the Court of Justice on the application of EU international agreements to ‘contested territories’. Chapters 4 and 5 are almost entirely reserved for the position of the GC or the ECJ in different cases concerning EU relations with Morocco and Israel. The Court’s reticence to rely on specific norms of customary international law has been emphasised. Many scholars have criticised the judiciary for this reason. However, the Court of Justice also has merits. With the rulings in the Front Polisario saga, which are in turn based on the Brita case law, the Court has shown that it adheres to a strict ‘differentiation policy’, according to which internationally recognised territory is to be kept legally separate from occupied territory. And although the European judges did not explicitly address the problem of illegal occupation, they engaged with the issue of territorial ‘status’ under international law and required that customary international law be respected by the Union. For the first time, the Court was confronted with a possible infringement, by the Council, of the obligation to comply with the requirements inferred from the CJEU case law on the principle of peoples’ self- determination. It is striking that, in this context, the Court embarked on an exercise of interpretation, application, and (arguably) development of international law, thus contributing to such a legal order, and this ‘goes beyond what was originally intended as a role for the Court’.
The innovations brought by the Court’s ruling in OJE deserves special attention. Here, the Court creatively interpreted an internal instrument, designed to protect consumers, taking into consideration the principles of international law, which are principles that must be respected by the EU in its external relations. In so doing, consistency between the application of internal rules and the EU’s external action has been ensured.
Chapter 6 is the most innovative and also ‘daring’ chapter of this dissertation. In this context, it is argued that Article 21(3) TEU provides a ‘powerful’ vehicle for the Court to ensure that EU external action is compatible with international law. The view is taken that this provision could serve as a sort of ‘interpretative bridge’, enabling the Court to require that the Commission and the Council respect, inter alia, the principle of peoples’ self-determination. This would be legally possible only if the principle of consistency was qualified as a general principle of EU law.
The Court could use the techniques of systematic and teleological interpretation to this end. Reliance on the principle of consistency by the Court would lead to the greater openness of Union law to international law. The European judges had an opportunity to enhance the principle of consistency in the last episode of the Front Polisario saga, but they missed it. It remains to be seen whether the Court will be open to this creative solution in confirming that the GC did not err in law in annulling the contested decision. This dissertation ends with the statement that consistency with international law would be beneficial to the EU legal order and would contribute to fulfilling the Union’s commitment to the strict observance and development of international law.