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Chapter 4 offers a legal assessment of the orientation of EU foreign investment law. It identifies and analyzes the principles and objectives that determine the exercise of EU competence in the field of foreign investment. Chapter 4 offers firstly an insight into the specific principles and objectives that EU action in the field of foreign investment adheres to and pursues, emphasizing their position within the broader framework of the general objectives of EU external action. Secondly, Chapter 4 considers the application of these principles and objectives in practice, looking at the objectives pursued by existing (and future) EU International investment Agreements and assessing whether the legal mechanisms that are established in EU IIAs are suitable and sufficient for achieving the envisaged objectives.

This chapter explores the ways in which the EU uses its external relations powers and its wide range of external instruments to extend the reach of EU law, and the ways in which law shapes the EU’s external action. It examines three dimensions of the relationship between law and external action: first, the role law plays in the construction of the EU’s international presence as a ‘Union of values’; second, the use of law by the EU as a way of conducting its foreign policy and constructing its relationships; third, the EU as a regulatory actor engaged in shaping, importing and promoting international legal norms. These dynamics illustrate different aspects of the notion of the global reach of EU law and in so doing they raise questions about the ambivalent role that law plays in these processes, challenging our understanding of law as the foundation of the EU’s external power and the instrument through which, and in accordance with which, it expresses that power.

The external relations of the Union span a broad spectrum, from external competences in ‘Community’ areas to external aspects of internal ‘Community’ competences and the Common Foreign and Security Policy (CFSP), which includes the Common Security and Defence Policy (CSDP). There is an overarching institutional architecture governing the external relations of the Union, but at the same time, depending on whether the competence at issue falls within the CFSP or the non-CFSP policies, different institutions assume different roles. It is for this reason that, although Part III of this volume has already examined the institutional framework of the EU legal order as a whole, it is analytically necessary to revisit the institutional architecture of EU external relations in particular, before delving in the following chapters of this Part into specific issues relevant to the actions of the Union and its Member States abroad. The remainder of this introduction serves as a short overview of developments in the constitutional history of the Union that determined the current legal and political outlook of the EU external relations institutional architecture.

This chapter considers the European Union’s (EU) external activities in the field of migration policy and assesses to what extent there is a common EU external migration policy. The chapter covers both short- and long-term migration as well as legal and illegal migration. The chapter first provides an overview of the historical development of EU migration policy. It then presents the current legal bases of EU migration policy and subsequently recalls certain basic principles concerning the extent and nature of the EU's external competences in this field. On this basis, the chapter examines the EU's external activities in the fields of visa and border controls, long-term migration, and the fight against illegal immigration. Finally, the chapter considers the links between certain other EU external policies, namely the common foreign and security policy, the common commercial policy, development cooperation, and the common migration policy.

The Treaty of Lisbon profoundly changed the scope and operation of the common commercial policy (CCP). These changes can be analysed and categorized in constitutional terms relating to horizontal and vertical distribution of powers, that is, Union vs Member State competence, voting procedures in the Council and parliamentary participation in the decision-making process. Furthermore, the CCP is now subject to the overall value-driven framework of the Union's external policy (Article 205 TFEU). An in-depth analysis of the proposed provisions on the common commercial policy shows that the Union competence in this field will increase, covering trade in services, intellectual property rights and investment (Article 206 TFEU). Nevertheless, some elements of control remain through unanimous voting requirements in the Council (Article 207(4) TFEU). At the same time, the role and importance of the European Parliament will increase. However, the reduction of the competence of the Member States will result in a reduced role of national parliaments. Furthermore, the European Parliament will also only exercise limited control over the European Commission. Therefore, while the Treaty of Lisbon will make the common commercial policy more coherent, its achievement concerning democratization is mixed.

The Union, while externally trying to assert the role of one single international actor, remains internally a complex and compound legal order in which numerous actors, that is, Member States and different EU institutions, participate and struggle for visibility. The apparent contradiction between the Union’s ambition to create one uniform international presence and the many internal actors and complex structures is not new but tensions have significantly increased as a result of the Union’s extended powers and ambitions, as well as the political climate within and beyond the Union. These tensions not only influence the Union’s external capacity and actions; they also have an impact on the Union’s internal constitutional structures. Some of the Union’s external actions profoundly change its internal mode of operation and transform the relationship between the Union and its Member States. They influence the settled understanding of certain organizational principles and the Union’s division of powers. The role of the EU institutions changes as a result of the EU’s external actions. The resulting changes cannot easily be translated into an overall extension or reduction of powers but have more nuanced implications. More importantly, these changes also affect the relationship between the Union and EU citizens. They offer opportunities for justification and bonding. This Introduction sets out the objectives, relevance, and the structure of the book.

This chapter sheds some light on a number of dimensions of the requirement of consistency and coherence which characterize the position of the European Security and Defence Policy (ESDP) within the EU external relations system. First, it examines the normative dimension of consistency by outlining the effects that the substantive interaction between security policy and external relations law may have on the legal autonomy of the respective sets of rules. It then highlights the political dimension of the need for coherence by focusing on the interactions between development cooperation and conflict prevention. Finally, it identifies certain areas where EU institutions and the Member States have developed practical mechanisms aiming at managing the conduct of ESDP and its interactions with EU external relations in an efficient manner.

The Introduction to this book introduces the concept of the extraterritorial or global reach of EU law, encompassing the extraterritorial application of EU law, territorial extension and the so-called ‘Brussels Effect’ through unilateral, bilateral and multilateral legal instruments, and explores its significance for the EU’s external relations and its identity as an international actor. It introduces the contributions of the subsequent chapters on specific fields of law and policy, including the environment, the internet and data protection, banking and financial markets, competition policy and migration. Finally, it offers some conclusions to the research findings of the book, exploring the ways in which law shapes the EU’s external identity and its relations with other legal regimes, both enabling and constraining the EU’s external action, and making the case for a normative perspective.

The launch of the EU-Korea Strategic Partnership in 2010 raises questions about the nature and scope of this relationship. This chapter considers the reasons why states decide to pursue bilateral and regional cooperation before giving a general introduction to the development of EU-Korea relations. It explains the history of EU engagement in Asia and the gradual evolution of closer ties with Korea, which was chosen as a priority partner because it is one of the principal economic powerhouses in the region. The chapter notes that this relationship is based upon a number of legal instruments and it discusses the implications of the legalisation of EU-Korea relations. The chapter aims to set the scene for the more detailed discussion of particular aspects of EU-Korea relations in subsequent chapters of the book.

The effective prevention and investigation of crime, particularly violent crime, is a basic desire in every society. But in this area there is an acute tension between civil liberties and security objectives. It is obvious that the greater the level of supervision and control of the public, the easier it is to prevent crime and to investigate it more effectively. Yet, even putting aside their cost and practicality, such measures erode the extent of freedom in society. There is as a result a continuing debate over the right balance to be struck between the two objectives. This chapter focuses on law enforcement within the European Union, beginning with an examination of the institutional framework as it has developed over time, an overview of measures adopted, and an examination of the relevant issues of legal competence, territorial scope, human rights, and overlaps with non-JHA EU law. It then analyses in turn EU measures concerning crime prevention, the collection and exchange of data relating to policing, other forms of cooperation between national law enforcement authorities, the operation of Europol (the EU’s law enforcement agency), and cross-border police operations. Finally, it examines the issues of administrative cooperation and EU funding and EU external relations in the field of policing law.

This chapter analyses the link between the European Union’s external relations and its migration policy. It explains how this link between the two developed in the 1990s, with the European Commission and the European Council gradually shaping the external dimension of the EU’s migration policy. Subsequently, it became evident that a comprehensive and balanced approach to deal effectively with migration and asylum issues in cooperation with countries of origin and countries of transit was indispensable for EU migration policy. In 2005, with this in mind, the EU Heads of State and Government adopted the EU’s Global Approach to Migration and Mobility, which is said to be comprehensive, balanced, and in line with the European Union’s other external policies. However, on closer inspection, the Global Approach raises fundamental questions in view of its content, its orientation, and its territorial application.

This chapter explores aspects of Court of Justice of the European Union (CJEU) case law that highlight the role that this Court has played in enhancing the global reach of EU law and the influence of its own judgments abroad. It addresses two main themes. The first theme is concerned with the CJEU’s contribution in shaping the institutional arrangements established by international agreements concluded by the EU with its neighbouring countries, particularly as regards the role carved out for the CJEU within them. The CJEU has succeeded in enhancing its own role and interpretative authority within the framework of these agreements. The chapter argues that the CJEU has emerged as an agent of its own authority by jealously guarding its interpretative supremacy, as well as the autonomy of EU law. The second theme is concerned with CJEU case law addressing ‘global reach’ EU law. This includes EU law which is extraterritorial, or which gives rise to territorial extension. It also covers EU legislation, which serves as a catalyst for the ‘Brussels Effect’. It is argued that the CJEU has enhanced the external influence of EU law by interpreting broadly and upholding the lawfulness of global reach EU law. Taken together, these two themes exemplify the ways in which EU law, including CJEU judgments, can have influence in third countries. This analysis contributes to our understanding of why some judgments issued by the CJEU have proved to be particularly influential in third countries, as exemplified by the various chapters included in this volume.

Secrecy and informality rather than transparency traditionally reign trade negotiations at the bilateral, regional, and multilateral levels. Yet, transparency ranks among the most basic desiderata in the grammar of global governance and has been regarded as positively related to legitimacy. In the EU’s case, transparent trade diplomacy is quintessential for constitutional—but also for broader political—reasons. First, even if trade matters fall within the EU’s exclusive competence, the EU executive is bound by the Treaty on the Functioning of the European Union (TFEU) to inform the European Parliament, the EU co-legislator, in regular intervals. Second, transparency at an early stage is important to address public reluctance, suspicion, or even opposition regarding a particular trade deal. This chapter chronicles the quest for and turning moments relating to transparency during the EU trade negotiations with Canada (CETA); the US (TTIP), and various WTO members on services (TiSA).

The EU-Korea FTA is the first of a new generation of FTAs to be concluded by the EU since the adoption of the Global Europe Strategy in 2006. It therefore offers an important insight into the way in which the EU will exercise its treaty-making powers following the entry into force of the Lisbon Treaty. This chapter considers the adoption of the EU-Korea FTA from the perspective of EU law and it argues that the approval and ratification process of this FTA have created precedents for future EU FTAs. In particular, the chapter undertakes a detailed discussion of the granting of negotiating authorization and negotiating directives by the EU institutions, the conduct of negotiations, the signature and conclusion of the FTA, its provisional application, the adoption of the Korea Safeguard Regulation, and the role of the European Parliament in the implementation of the Agreement.

This part introduces the theme of the book. It highlights the proliferation of objectives in the area of foreign policy in the EU Treaties as well as in numerous constitutions around the world. Noting that this is the outcome of three main trends in contemporary constitutional design (internationalization, ‘dynamization’, and Europeanization), it raises the main questions the book seeks to answer: What is the role and function of constitutional foreign policy objectives as legal norms? What are the specific features of the system of external relations of the EU and its Member States, and how do they affect the pursuit of its ambitious set of foreign policy objectives? What do these codified objectives mean for the allegedly distinctive ‘normative power’ of Europe as an actor in international relations? The Introduction furthermore outlines the structure of the book and addresses a number of methodological issues.

This introductory chapter provides an overview of the relationship between EU external relations law and private law. Usually external relations and private law are seen as two separate fields. There is a mutual deficit in perspective in that traditional private law appears to be essentially bound to the nation state and EU external relations law, on the other hand, tends to focus on the competence of the EU to act within the realm of public international law. Traditional private law is barely visible in this context. However, this picture changes dramatically if private law is understood as regulatory private law, the arena in which regulatory law intersects with private economic activity. Here the link between the internal market and the global market, and thereby international law, is pronounced.