The last corollary of the EEAS’ autonomy and personality consists of its capacity to stand before the Court of Justice. This and the next two paragraphs concern the EEAS’ capacity to be sued. The last paragraph addresses the EEAS' capacity to sue other bodies.277
The position of the EEAS as a defendant may relate, in the first place, to the annulment of its acts. It is worth clarifying the rationale for this analysis. A superficial reading of the Treaties may suggest that an inquiry into the EEAS' position before the ECJ is totally unnecessary, because of the combination of Article 275 TFEU and Article 27(3) TEU. Article 275 TFEU affirms that “the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.” Article 27(3) TEU, that is to say the legal basis of the EEAS Decision, is part of the CFSP chapter of the TEU. Hence, the ECJ may seem not to not have jurisdiction with respect to any act adopted by the EEAS. This interpretation could only be accepted if the EEAS were solely concerned with CFSP, which is not the case. As demonstrated above, the Service only acts in its own capacity in areas related to its own administration. Such activity is not solely CFSP-related, since the EEAS performs tasks in non-CFSP areas, under the responsibility of the High Representative in his/her capacity as president of the Foreign Affairs Council and Vice-President of the Commission. The administration of the EEAS, therefore, is not a purely CFSP affair, and is not covered by Article 275 TFEU. Therefore, it cannot be asserted a priori that the EEAS cannot stand before the ECJ as a defendant.
In order to analyse the EEAS’ capacity to be sued in annulment proceedings, we have to consider, in particular, the first paragraph of Article 263 TFEU:278 "the
Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties."
276 Such instruments, if entered into by the HR, may however be binding upon him/her.
277 It is worth stressing that we only intend to elucidate the peculiarities of the EEAS’ position, and we
consequently do not provide for a comprehensive account of jurisdictional procedures involving the Service.
278 Notice that According to the last paragraph of this provision “acts setting up bodies, offices and
agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.” This provision, however, is of scarce interest at present, since the EEAS Decision never mentions such specific conditions and arrangements.
This provision, as interpreted by the ECJ, implies that the EEAS should pass a four stages test in order to be capable of being sued in annulment proceedings. In the first place, the Service should be characterised as an institution, agency, office or body of the Union, consistently with the last sentence of the first paragraph of Article 263 TFEU. This does not prove exceedingly challenging, since we have already demonstrated that the EEAS is an administratively autonomous entity, which possesses legal personality. Consequently, it is a ‘body’ within the meaning of Article 263 TFEU.
Secondly, the EEAS must be able to adopt reviewable “acts”, within the meaning of Article 263 TFEU. This aspect proves rather unproblematic too, especially because the Court specified that reviewable acts are not identified on the basis of formal criteria, such as their nomen juris, but only with regard to their capability to have legal effects.279 The ECJ also specified that reviewable acts do not necessarily need
to be adopted pursuant to a Treaty provision. Hence, even sui generis acts may be reviewed by the Court. This makes sure that EEAS acts, however defined, may be reviewed, provided they meet the substantive requirements that form the object of the two last stages of our test.
Thirdly, the EEAS should be capable of adopting acts “intended to produce legal effects”. To be sure, the EEAS cannot adopt legal acts concerning operative areas, but it merely prepares the acts to be adopted by the HR, in his/her own capacity. This implies that it should be the HR, and not the EEAS, to defend acts relating to operative areas. If an EEAS act ever concerned an operative issue, it should be declared non-existent, given the manifest lack of competence of the Service.280 As
demonstrated in the preceding paragraphs, the EEAS can however adopt legal acts and enter into legally binding arrangements with other Union bodies in the areas concerning its own administration, that is to say staff management, administrative budget implementation and access to documents. Such legal acts should consequently be subject to review.281
Fourthly, the EEAS should be capable of adopting acts producing legal effects “vis- à-vis third parties”.282 The Court originally elaborated this concept in cases
concerning the European Parliament, by affirming that it is not possible to challenge acts of this Institution which only relate to the internal organisation of its work.283 The Court further developed this concept in the case France v.
279 See case C-22/70, Commission v Council (Agreement on Road Transport), [1971] ECR 263, and
case C-151/88, Italy v Commission, [1989] ECR 1255.
280 On the non-existence of EU acts, see joined cases T-79, 84, 85, 86, 89, 91, 92, 94, 96, 98, 102 and
104/89, BASF AG and others v Commission, [1992] ECR II-315; joined Cases 1 and 14/57 Société des Usines à Tubes de la Sarre v High Authority [1957] ECR 105; joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73 Kortner and Others v Council, Commission and Parliament, [1974] ECR 177; case 15/85, Consorzio Cooperative d' Abruzzo v Commission, [1987] ECR 1005; case 226/87, Commission v Hellenic Republic, [1988] ECR 3611; case 156/89 Valverde Mordt v Court of Justice [1991] ECR II-412.
281 This should apply also to statements concerning the action that the EEAS may take in the future,
provided that they are definite and unequivocal. See case C-15/63, Lassalle v Parliament, [1964] ECR English special edition p. 31; case C-79/74, Kuster v Parliament, [1975] ECR 725; case C-25/77, De Roubaix v Commission, [1978] ECR 1081, par. 6-9.
282 See case C-294/83, Parti Ecologiste ' Les Verts ' v European Parliament, [1986] ECR 1339. 283 See case T-345/05, Ashley Neil Mote v Parliament, [2008] ECR II-2849, par. 22-24; see also
order in case 78/85, Group of the European Right v Parliament, [1986] ECR 1753, par. 11; order in case C-68/90, Blot and Front national v Parliament, [1990] ECR I-2101, case C- 314/91, Weber v Parliament, [1993] ECR I-1093; joined Cases T-222/99, T-327/99 and T-329/99, Martinez and Others v Parliament, [2001] ECR II-2823.
Commission (1990),284 where it asserted that the capability of an act to affect the
legal position of thirds is not simply determined by its form, but it must be verified on the basis of its content:285 a binding act, disguised as an internal document, is
subject to review.286 At first sight, it may seem that all EEAS acts should be
‘internal’ since they relate to administrative issues. However, 'administrative' does not equal “internal”.287 For instance, the decisions whereby EEAS officers authorise
the disbursement of Union funds necessarily affect the legal position of thirds; similarly, the EEAS acts that concern the management of its staff affect the position of physical persons (i.e. EEAS officers).
In sum, since some EEAS acts may meet this quadruple test, they may be challenged before the ECJ.