The last corollary of the EEAS’ legal capacity consists of its capacity to sue other Union bodies for their actions and omissions. This paragraph addresses this issue by focussing on the EEAS’ standing in annulment proceedings and, subsequently, in proceedings for failure to act.
It may be recalled that Article 263 TFEU provides for different conditions of access to Court for privileged, semi-privileged and non-privileged applicants. To be sure,
305 Joined cases C-63-9/72, Wilhelm Werhahn Hansamühle and others v Council, [1973] ECR 1229,
par. 7.
306 See EEAS Decision, Article 6(2), according to which "the EEAS shall comprise officials and other
servants of the European Union, including personnel from the diplomatic services of the Member States appointed as temporary agents", and Article 6(4), whereby "the staff of the EEAS shall carry out their duties and conduct themselves solely with the interests of the Union in mind. Without prejudice to the third indent of Article 2(1) and Articles 2(2) and 5(3), they shall neither seek nor take instructions from any government, authority, organisation or person outside the EEAS or from any body or person other than the High Representative."
307 Case C-370/89, Société Générale d'Entreprises Electro-Mécaniques and Roland Etroy v
the Service is not listed as a privileged or a semi-privileged applicant. This does not prevent the Service from initiating proceedings in its capacity as a “legal person”, within the meaning of the fourth paragraph of Article 263 TFEU. It may be recalled, however, that the EEAS’ capacity is limited to the administrative area. Hence, the Service may sue other bodies with respect to administrative issues, but it is barred from suing other bodies’ acts that concern operative matters.308
Being a “legal person” for the purpose of Article 263 TFEU, the EEAS can only challenge other bodies’ acts subordinately to two conditions: direct concern and lack of implementing measures, for regulatory acts, or direct and individual concern, for non-regulatory acts. In principle, this should not prevent the Service from being able to challenge most acts affecting its activities. However, the criteria set by Article 263 TFEU may prove problematic in the case of some non-regulatory acts, which are not addressed to the EEAS but impinge on its prerogatives. For instance, a Commission decision whereby the Institution grants access to a EEAS document in its possession may be characterised as a non-regulatory act, since it has a specific addressee, that is to say the person who requested access to the document. According to Regulation 1049/2001 the Commission may only grant access to such document after having consulted the EEAS.309 If it did not do so,
however, the EEAS may hardly challenge the Commission’s decision, which is neither formally nor substantively addressed to the Service.
This problem may appear to be solvable through an analogical application of the ECJ jurisprudence. The Court affirmed in Chernobyl that “observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. It also requires that it should be possible to penalize any breach of that rule which may occur.”310 This line
of reasoning famously led the ECJ to conclude that, although at the time of the facts the Treaty did not enable the Parliament to bring action for annulment, such an action was admissible provided that it sought only to safeguard the EP’s prerogatives.311 This might lead to think that the EEAS should be enabled to bring
action for annulment in order to safeguard its prerogatives. This jurisprudence, however, does not appear to be applicable to the EEAS: in Chernobyl, the Court started from the assumption that “the Treaties set up a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community.”312 The EP’s access to
Court was thus functional to preserve the distribution of power set in the Treaties. Institutional balance cannot be violated in a case concerning the EEAS, since this entity has legal capacity only in respect of administrative matters, and it does not directly participate in its own capacity in the political life of the Union. Consequently, the EEAS’ access to Court is not implied by the distribution of power
308 The Service may use two non-judicial ways to ensure the compatibility of such acts with the
Treaties. Ex ante, it may influence the content of those acts through its responsibilities as a service working for the Commission and the Council. Ex post, the EEAS may suggest the HR to impugn other bodies’ acts before the Court. However, Article 263 TFEU does not list the HR among privileged applicants, therefore this second way may not be exceedingly easy to follow.
309 Cf. Id., Article 4(4): “as regards third-party documents, the institution shall consult the third party
with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.”
310 Case C-70/88, Parliament v Council, [1990] ECR I-2041, par. 22. 311 Id., par. 27.
set in the Treaties and the Service may be incapable of bringing action against certain acts of other Union bodies.
After having analysed the locus standi of the EEAS in respect of annulment, it is necessary to briefly evaluate the EEAS’ capacity to initiate proceedings for failure to act. As in the case of annulment, the EEAS is a non-privileged applicant for the purpose of Article 265 TFEU. This implies that the Service cannot challenge omissions of other bodies that are not concerned with the Service’s activities, namely the failure to adopt decisions relating to operative issues.
In addition, the non-privileged status of the EEAS implies that the Service cannot challenge omissions to adopt non-binding acts. As a consequence, the EEAS is not able to sue other Union bodies for failure to cooperate, as required by Article 3 of the EEAS Decision, unless the Service demonstrates that this cooperation should be implemented through binding acts directed at the Service; on the contrary, as we demonstrated above, Union institutions may sue the EEAS because of its lack of support, independently from the instrument through which this support should be implemented.
*
* *
This section sought to demonstrate that the EEAS is new kind of body of the European Union, since it has a 'dual' identity. It lacks competences of its own and autonomy of political direction and it consequently functions as a service of High Representative. At the same time, it has the legal capacity that is necessary to oversee its internal administration, in all its aspects, ranging from the adoption of acts, to cooperation with other entities and capacity to stand before the Court of Justice. The EEAS, therefore, seems to closely 'mimic' the functioning of a Union institution.
It is apparent, therefore, that the legislator intended the couple HR/EEAS to function as a single quasi-institution, where the HR performs the 'operative' functions, dealing with the exertion of Treaty-based powers, while the EEAS manages the administrative governance. The original design of the EEAS has a clear rationale: enabling the setting up of an administration capable of assisting the HR in the performance of his/her duties without encumbering him/her with the performance of administrative tasks. Such choice is manifestly in line with the purpose of the EEAS that was outlined in chapter 1, that is to say contributing to the feasibility of the HR's "impossible job".
This conclusion raises a further question: why did the legislator avoid creating a simple new institution made up of both the HR and the EEAS? The reason appears to be simple: by establishing the EEAS as a service, the legislator enabled it to participate in the activities of other entities. This allows the Service to work with (and within) the entities that spearhead the intergovernmental and Community method, that is to say the Councils and the Commission, as demonstrated in the next section.
S
ECTION2–'S
ERVANT OF TWOM
ASTERS':
EEAS'P
OLITICALA
CCOUNTABILITY TOO
THERP
OLICY-M
AKERSThe characterisation of the EEAS as the administration that supports the High Representative has important consequences for its relation with the other entities that manage European foreign policies, and for its position in the division of power of the external action. Given the HR's responsibilities in the Commission and intergovernmental frameworks, it may be expected that his/her administration should, as noted by Catherine Ashton, "serve the President and Members of the Commission, especially the RELEX family, and the President of the European Council, and of course the Member-States and European Parliament.”313 This issue
is of great relevance. If the EEAS served the Member States, the latter may use it to ‘intergovernmentalise’ the entire external action. If the EEAS served the bodies that promote EU interests, i.e. the Commission and the European Parliament (EP), it may entail an unwarranted ‘communitarisation’ of national foreign policies. Finally, if the EEAS served both the Member States and EU bodies, it may encounter insurmountable obstacles. It is indeed common knowledge that “no man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.”314
This section intends to verify whether the EEAS serves entities other than the HR, and is divided into 7 paragraphs. The first one investigates the EEAS' capability to assist the HR in the performance of all his/her functions, and consequently excludes that the EEAS' assistance to the HR may entail its hierarchical subordination to other entities. The second one hypothesises a ‘softer’ form of subordination, and argues that the EEAS may be 'accountable' to the entities that have legitimacy in the EU. The third paragraph assesses the 'democratic' accountability of the Service. In paragraphs 4-6 the analysis turns to the 'international' accountability of the EEAS, by focusing on the relation with the Member States (paragraphs 4-5) and intergovernmental organs (paragraph 6). The section is concluded, in paragraph 7, through an analysis of the EEAS' accountability to the institution embodying the legitimacy brought by the process of European integration, that is to say the Commission.