The EEAS Decision mentions the Service's support to, and cooperation with, the EP,326 and it specifies that the HR should submit a few reports on the EEAS to the
Parliament. Neither this Decision nor the Treaties, however, clarify the democratic accountability regime applicable to the EEAS.
The Service’s relation with the EP may be determined on the basis of the HR’s position. In this perspective, the democratic accountability of the EEAS seems rather limited. Whereas Article 230 TFEU affirms that the Commission must reply to questions put to it by the Parliament, no Treaty provision specifies that the HR should respond to the representatives of European citizens. In addition, whereas the Commission may be censured by the EP and the HR may be obliged to resign from duties that he or she carries out in the Commission, he/she cannot be compelled to renounce its prerogatives in the CFSP area and within the Council. Nonetheless, the HR is indirectly accountable to the EP through other means. He/she is subject to a vote of consent by the EP when the latter approves the Commission en bloc.327 Thus a very strong opposition to the HR on the part of the
European Parliament may render impossible the appointment of the Commission. Such form of ‘indirect’ accountability is reinforced by the fact that the HR “shall resign, in accordance with the procedure set out in Article 18(1) [TEU], if the [Commission] President so requests.” Thus if the Commission President (who is accountable to the EP) comes to oppose the HR, he may ask for the latter’s demotion.
The EEAS’ democratic accountability is partially strengthened by its direct relation with the Parliament. The EEAS must take into consideration the Parliament's views, since the latter co-decides the adoption of the budget. The EP is unlikely to reduce the Service's administrative budget, but it may well choose not to grant the
324 On the democratic and international form of legitimacy of the EU, see Constantinesco,
Compétences et pouvoirs, cit. supra, particularly at p. 418. The coexistence of democratic and international accountability in the EU explains why the Commission entertains an original relation with the EU legislator, which oscillates between a State-like government-parliament model and the typical formula of an international organisation’s administration; see also Constantinesco, "La Responsabilité de La Commission Européenne : La Crise de 1999", 92 Pouvoirs (2000): 117-131, at p. 130.
325 De Quadros, Droit de l’Union Européenne: Droit Constitutionnel et Administratif de l’Union
Européenne (Bruylant, 2008), pp. 190-191. The inherent legitimacy of the Commission is testified by the letter of Article 17 TEU, according to which "In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks."
326 Article 3(4). 327 Article 17(7) TEU.
discharge of the EU's budget.328 Since the EU budget is entirely implemented by the
Commission, ex Article 317 TFEU, it is the latter institution that is directly accountable to the EP. However, considering that the EEAS cooperates with the Commission in the implementation of several policies, and it must interact with it for the purpose of financing CFSP endeavours (which are implemented by the HR/EEAS), it is evident that the Commission's accountability partially extends to the EEAS de facto if not de jure.
In addition, the EP may oversee some of the EEAS’ implementation activities in the context of Comitology procedures. As it is known, Comitology relates to the procedures through which the Member States control the implementation of Union acts,329 before their adoption by the Commission.330 The EP has a “right of scrutiny”
in Comitology procedures,331 whereby "it can indicate to the Commission that, in its
view, a draft implementing act exceeds the implementing powers provided for in the basic act. In such a case, the Commission shall review the draft implementing act.” 332 Since the Service assists a Vice-President of the Commission, it may be
administratively responsible for the implementation of certain policies; therefore, it may represent the Institution in some Committees. In this perspective, the EEAS is partially accountable to the EP as far as the implementation of Union policies is concerned. The EEAS’ democratic accountability in the implementation of Union policies, however, has relevant limits. The EP’s “right of scrutiny” does not concern the merit of a decision, but only its respect for institutional balance. Moreover, the exercise of this right obliges the Commission and thus the EEAS to revise, but not to modify, the proposed implementing decision. Finally, and most importantly, the right of scrutiny of the EP does not extend to the implementation of the CFSP, which is performed directly by the EEAS, under the authority of the HR, outside the Commission framework.
In order to reinforce these weak forms of accountability, the EP requested the HR to adopt a Declaration on political accountability,333 as part of the negotiation for
the approval of the EEAS Decision. Most provisions contained in this document probably are non-binding. The wording of the Declaration might seem to indicate that the HR intended to give the European Parliament a supervisory role in the field of CFSP decision-making334 and implementation,335 beyond the letter of the
Treaties. Considering that primary law does not provide for such powers for the EP, and provided that EU offices and bodies cannot modify the distribution of competences set in the Treaties, it is evident that the HR could not intend to confer competences on the EP, but she simply wanted to undertake political
328 On the discharge procedure, see Petit, "Les Finances de l'Union Européenne dans Le Projet de
Traité Etablissant une Constitution Pour l'Europe", in Constantinesco, Gauttier and Michel (eds.), Le Traité Etablissant une Constitution Pour l'Europe (Presses Universitaires de Strasbourg, 2005), pp. 191-202.
329 See Article 291(3) TFEU and Regulation 182/2011/EU of the European Parliament and of the
Council of 16 February 2011 OJ 2011 L 55/13 –18.
330 The existence of a function of ‘control’ does not exclude the possibility that Committees perform
other functions too, including “technical assistance” to the Commission, see Baratta, “Introduzione Alle Nuove Regole Per L’adozione Degli Atti Esecutivi Dell’unione”, Diritto Dell’unione Europea (2011): 565-583, p. 568.
331 Regulation 182/2011/EU, Article 11.
332 The Commission may modify and integrate the non-essential elements of the base act, Case 23/75,
Rey Soda, [1975] ECR 1301 and C-403/05, Parliament v. Commission, [2007] ECR I-9045.
333 Declaration by the High Representative on political accountability, O.J. 2010 C 210/01. 334 E.g. id., par. 1.
commitments.336 Notwithstanding its ‘soft law’ character, the Declaration requires
attention, since it may shape the expectations of both the EEAS and the EP, thus entailing the accountability of the former to the latter.
The Declaration may be analytically divided in three parts. The first contains political commitments that the HR entered into in order to enhance the transparency of the EEAS vis à vis the EP and European citizens. These commitments concern mainly the ‘interviews’ of high ranking EEAS officer. According to the Declaration, Heads of Delegation are required to participate in “exchanges of views” with the EP, before taking service, if the latter so desires.337
Similarly, Heads of Delegations, Heads of CSDP missions and senior EEAS officials may be required to participate “in relevant parliamentary committees and subcommittees in order to provide regular briefings”.338 It is not clear to what
extent this first category of political commitments is enforceable. The EP is unlikely to transform such commitments into ‘hard powers’, as it did in the case of the appointment of prospective Commissioners. The views of the Parliament on single Commissioners cannot be disregarded, lest the EP does not approve the Commission.339 On the contrary, the EP has little means to sanction the non-
cooperative behaviour of the EEAS senior staff or their perceived inadequacy. The HR/EEAS’ accountability to the EP seems to be stronger in a second area, relating to mutually beneficial arrangements. In her Declaration, the HR affirmed that the EP will be consulted on the identification and planning of Election Observation Missions and their follow-up”.340 Given the obvious expertise of the
European Parliament in respect of elections, it may be expected that the EEAS will live up to this commitment, at least because of its own interest in the matter. In this case, however, the relation between the EP and the EEAS resembles a dialogue between two functionally similar bodies, rather than the relation of a body accountable to another.
The EEAS’ accountability is most evident in the fields where cooperation is fostered by the EP’s ability to sanction the Service. This is transparently the case of the Declaration’s provision whereby the EEAS shall provide briefings relating to CFSP missions “financed out of the EU budget”.341 Since the funding of these missions is
dependent also on the will of the EP, in its capacity as budget authority, it is evident that the Service needs to take the latter’s view into consideration. A similar example consists of the requirement to provide information as to the negotiation of international agreements for the conclusion of which the consent of the Parliament is required,342 since any serious lack of cooperation on the part of the EEAS may
lead to the non-approval of the agreement that is being negotiated.
336 Some provisions contained in the declaration might nonetheless be binding, insofar as they
concern the internal governance of the EEAS or the deputising of the HR’s functions. Since these provisions merely echo the Treaties, or have an extremely vague content it is not necessary to investigate their legal character.
337 Id., par. 5. 338 Id., par. 7.
339 As it is known, the EP obtained a de facto veto power on the nomination of new Commissioners, as
testified by the case of the prospective Commissioner Buttiglione, see Zucca, "The Barroso Drama: All Roads Lead to Rome”, 1 European Constitutional Law Review (2005): 175-181.
340 Par. 9. 341 Id. par. 1.
342 Id. par. 2. The provision is rather puzzling, in so far it relates to the agreements falling under the
HR’s area of responsibility, “where the consent of the Parliament is required.” Since the HR only negotiates CFSP agreements, which are generally not subject to the approval of the EP, this provision is likely to be redundant.
In summary, the EEAS, unlike the European Commission, is scarcely accountable to the European Parliament. The elements of accountability binding the Service are mainly related to non-CFSP policy implementation, financial implementation and the negotiation of international agreements.
4. ‘International’ Accountability: EEAS' Strong Links to the Member States
After having considered the ‘democratic’ side of the EEAS’ accountability, we now turn to the ‘international’ one. The accountability of the EEAS to the Member States may be ensured in three manners: via a direct relation between the Service and the States, through the EEAS’ officers and through the relation between the EEAS and intergovernmental organs. This paragraph addresses the first issue, paragraph 5 concerns the second one, and paragraph 6 approaches the third.
The EEAS is most closely associated with the Member States when it acts as their organ. There is no international or EU rule that prevents States from entrusting the exercise of their competences to Union bodies, outside the field of Union competences. They have done so, in practice, in numerous occasions. This is typically the case of the European Development Fund (EDF), which was created through an ‘internal agreement’ of the Member States, entrusting EDF implementation on the Commission.343 A similar solution is often adopted in the
negotiation of the so-called ‘mixed agreements’, where the Commission represents the Member States in their area of competence.344 In these situations, the Member
States do not confer competences on the Union; the Commission, therefore, does not act in its capacity as a Union body. They do not attribute competence on the Commission either, since the latter is not an international subject and it cannot have competences of its own under international law. It may consequently be argued that the Member States adopt the Commission as their common organ;345 in
other words, the Commission functions as a part of Member States’ executives, and is consequently accountable to them.
The Member States may adopt also the EEAS as their common organ.346 They seem
to do it in practice in the case of the “EU local statements”,347 which are issued by
the Union Delegations accredited to third countries “in agreement with the EU Heads of Mission”, that is to say Member States’ embassies.348 Provided that the
343 The very ECJ accepted the legality of these arrangements, by holding that “no provision of the
Treaty prevents Member States from using, outside its framework, procedural steps drawing on the rules applicable to Community expenditure and from associating the Community institutions with the procedure thus set up”.C-316/91 [1994] ECR I-625, par. 41.
344 The legality of these arrangements was supported by Advocate General Jacobs in his opinion in
Case C-316/91, Parliament v. Council, [1994] ECR I-625.
345 On the notion of ‘common organ’ in international law, see Sereni, La Représentation en Droit
International (Hague Academy of International Law, 1948), p. 86.
346 The direct adoption of the EEAS is improbable, since the Service does not have operational
autonomy from the HR. It is more probable the Member States adopt the High Representative as their organ; since the EEAS is a Service of the HR, the Member States would implicitly adopt the EEAS too.
347 Cf. http://eeas.europa.eu/statements/local/index_en.htm
348 Since the latter do not necessarily issue the statements autonomously, it may be assumed that
their “agreement” functions as an ad hoc entrustment of competence to deliver a message. The picture may be complicated through a consideration of the distribution of competences. If the statement concerns both EU and Member States’ competences, the Delegation represents also the Member States. If the statement concerns only EU competences, the agreement expressed by Member States’ missions should be seen in analogy to the voting within the Council: the EU mission
Delegation is not autonomous from the EEAS, it would seem that the Member States adopt the EEAS as their organ for the issuing of “local statements”. Another interesting case concerns the negotiation of mixed agreements on behalf of the Member States: although the latter traditionally entrust their representation on the Commission, it may not be excluded that they will choose the HR and the EEAS as their representatives for future agreements containing ‘political’ elements, given their expertise in CFSP issues.
The adoption of the EEAS as a common organ of the Member States appears to imply the complete accountability of the former to the letter: the power of the EEAS should be strongly constrained, since the Member States may issue detailed instructions, request information and sanction the EEAS’ incompliance through the withdrawal of its powers. Would the accountability of the EEAS be different in the case it acted in its capacity as a Union body?
There is no Treaty provision that suggests a general accountability of the EEAS to the Member States. As it is known, the Union is conferred competences by the Member States and it exercises them through its organs, including the EEAS. Consequently, there should be no direct relation between the Member States and Union organs,349 unless the Treaties affirm otherwise. Since the Treaties do not
foresee any direct relation between the Member States and the HR/EEAS, a formalistic approach would lead to exclude any accountability of the latter to former. However, such reading probably is neither realistic nor useful. Since the Member States are the Masters of the Treaties, their views can hardly be disregarded by Union bodies. The mechanisms enforcing their accountability are not only found in the Treaties, but are identified also in the practice. Informal mechanisms for the enforcement of accountability may be provided for by critical notes or reports. Such was the case of the non-paper on the EEAS prepared by several EU Member States in 2011.350 Although this document obviously had no
binding character, it had at least the effect of placing some issues in the HR’s agenda.
The Member States can use another mechanism to enforce the EEAS' accountability: comitology. As recalled above, comitology consists of a mechanism for control by Member States of the Commission’s exercise of implementing powers.351. Comitology concerns the EEAS in so far as the latter participates in the
would therefore act representing the EU position, decided upon by the Member States’ representatives. Independently from the distribution of competences, however, the decision-making method is always intergovernmental, since it is based on consensus. Therefore, the distinction between these two situations is theoretically relevant, but probably has no practical implication.
349 The only exception to this principle is provided for by intergovernmental organs, which are
formed by the States’ representatives: since the EEAS is not composed by such representatives, this issue can be ignored.
350 Non-paper on the European External Action Service from the Foreign Ministers of Belgium,
Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland and Sweden, 8 December 2011, available at http://www.europarl.europa.eu/, last visited 15 December 2012.
351 Regulation 182/2011/EU of the European Parliament and of the Council of 16 February 2011 OJ
2011 L 55/13 –18. Although Comitology is now codified, it was created in the practice: the Member States subjected Commission implementing decisions to the scrutiny of a committee composed by their representatives, on the basis of the delegation of implementing powers by the Council to the Commission. The Court famously held that comitology did not run counter the EU institutional balance, because “without distorting the community structure and the institutional balance, the management committee machinery enables the council to delegate to the commission an implementing power of appreciable scope, subject to its power to take the decision itself if necessary”,
implementation of policies falling within the competence of the Commission, that is to say non-CFSP actions. The Service is invited by the Commission to participate in the Committees dealing with actions prepared also by the EEAS, such as in the field of development cooperation. Comitology is not directly applicable to the CFSP, whose implementation is regulated by Article 24 and 26 TEU, rather than Article 291 TFEU. However, since the HR and the EEAS put into effect this policy under the scrutiny of the Council, it is evident and logical that the Member States should exert a strong control in this area too.352 The interaction between the Member
States and the EEAS in the implementation of CFSP is particularly evident with respect to the CSDP. The Service indeed contains the organs that are responsible for the support to military operations (EU Military Staff), the conduct of civilian CSDP missions (Civilian Planning and Conduct Capability), and the civilian-