If the EEAS were a 'normal' service of the HR, it may be expected to assist him/her in the performance of all his/her functions, including those in the Commission and the Council. A literal interpretation of the Treaties seems to exclude such possibility, since the EEAS is only mentioned in the CFSP chapter of the TEU (Article 27(3)). Had the drafters of the Treaties intended to give the EEAS a role 'transversal' to the external action, they would have provided for its legal basis in the common provisions on the external action (Articles 21-22 TEU) or directly in Article 18 TEU, which introduces the three 'hats' of the HR.315 The opposite
313 Speech to the European Parliament's foreign affairs committee, 23 March 2010, Brussels.
314 King James Bible, Matthew 6:24. See also Pinsky and Laranjeira, “No one can serve two masters”,
Addiction (2008): 855, according to whom “because of its universality, it is possible to find versions of these wise words in many cultures”.
315 Blockmans and Hillion (Eds.), op. cit., p. 2, notice that "the rationale for locating the legal basis of
conclusion can be reached through a teleological and systemic interpretation of Article 27(3) TEU. The EEAS' function is it to weave together the Community and intergovernmental approaches through the Union method. Moreover, the principle of coherence requires an interpretation of the Treaties favourable to the conduct of a synergetic external action. Hence, Article 27(3) TEU should receive an extensive interpretation.316
The legislator retained this approach. The numbering of the EEAS Decision (2010/427/EU) suggests that it is not a merely CFSP act (since, in the latter case, it would appear as 2010/427/CFSP). Moreover, Article 2(1) of the EEAS Decision explicitly states that "the EEAS shall support the High Representative in fulfilling his/her mandates as outlined, notably, in Articles 18 and 27 TEU". This provision further clarifies that the EEAS supports the HR in the performance of all his/her tasks, including the conduct of the CFSP, the presidency of the Foreign Affairs Council and the promotion of external action coherence.317
The concern for coherence of the legislator was such that it actually introduced new tasks of assistance for the EEAS. Whereas, according to Article 27(3) TEU, the EEAS assists the HR, Article 2(2) of the EEAS Decision asserts that it "shall assist the President of the European Council, the President of the Commission, and the Commission in the exercise of their respective functions in the area of external relations." This provision is not entirely surprising, since the EEAS is linked to both the European Council and the Commission via its duty of assisting the HR, who takes part in the work of the former and is a Vice-President of the latter. It cannot be denied, however, that Article 2(2) suggests the existence of a new direct link between the Service and the two aforementioned institutions. Does this imply that the EEAS is hierarchically integrated in the administration of other institutions? 318
This is not the case, since primary law clearly hints at the fact that the EEAS functions as the administration that serves the HR. A systemic reading of the Treaties confirms that the EEAS is not one of the departments of the Commission, since the organisation of the latter is regulated according to Article 249(1) TFEU, whereas the EEAS has its legal basis in Article 27(3) TEU. The EEAS is not an administration of intergovernmental institutions either, since their services find their mandate in Articles 235(4) and 240(2) TFEU. The practice confirms this reading of the Treaties. Although the EEAS’ bureaucratic structure resembles that of the Commission (and of most national administrations), the Service has peculiarities of its own. This is rendered evident by the EEAS nomenclature: instead of having units, heads of unit, directorates and directors, like the Commission, the Service has “divisions”, “heads of division”, “managing- directorates” and “managing-directors”. The EEAS’ structure is anomalous also in substantive terms. For instance, the Service has two heads: a Chief operating
316 A similar conclusion is reached when Article 27(3) TEU is interpreted in light of preparatory
documents: as noted in chapter 1, the drafters of the Treaties transparently intended to enable the EEAS to support the HR in the performance of all his/her tasks.
317 Perhaps incongruously, this reference to consistency is performed in the same paragraph that
provides for the EEAS role in the CFSP, whereas, as shown in chapter 1, this issue is transversal to the different areas of the EU's external action.
318 On the hierarchical relations between the organs of the public administration see, e,g., Garofoli
and Ferrari, Manuale di Diritto Amministrativo (Nel Diritto, 2009), p. 101, Mazzaroli et al., op. cit., pp. 390 ff., and Waline, Droit Administratif (Dalloz, 2010), p. 67. It must be stressed, however, that the peculiarities of the EEAS render the traditional characterisation of hierarchy scarcely useful in our perspective, since the Service may receive input from different sources, which may be hierarchically superior (HR) but also linked in a non-hierarchical manner (Commission, Council), as this paragraph intends to clarify.
officer, dealing with administrative issues, and an Executive Secretary General, overseeing operative aspects (under the HR guidance). Together with their deputies and other high-ranking officers, these subjects compose the “corporate board”, that is to say the internal coordination management unit that steers the EEAS’ activities. The peculiar nomenclature of the EEAS is not found in any other EU institution, but it seem to have been borrowed (for reasons that remain obscure) from the terminology used in business management.
It is clear, therefore, that the EEAS' support to the HR does not imply the hierarchical subordination of the former to other Union institutions. The EEAS' duty to assist the Commission and the European Council must consequently be construed as a generic political duty to 'serve' these institutions. How can such duty be enforced?