personality and capacity.233 Legal personality is commonly defined as the quality
through which an entity can be subject to rights and obligations. Legal capacity then denotes the scope of its power to be subject to rights and obligations.234
229 Cf. Id., Article 6.
230 Cf. Joint Progress Report to the European Council by the Secretary-General/High Representative
and the Commission, 9 June 2005, doc. 9956/05, par. 7: “All Member States underlined that the purpose of the service was to assist the Minister in his various functions, including that of Vice- President of the Commission. He must have the means to shape the agenda, to make proposals, and to ensure overall coherence and consistency, subject to the relevant treaty provisions” (emphasis added).
231 Cf. case T-411/06, Sogelma Srl v European Agency for Reconstruction, [2008] ECR II-2771, par.
50-51: “it must be pointed out that the EAR is a Community body endowed with legal personality and established by a regulation […] In the present case, it is the EAR which took the decision to cancel the tender procedure, by virtue of the powers delegated by the Commission in accordance with Regulation No 2667/2000. The Commission played no part in the decision-making process. Accordingly, it is clear that the EAR is the body which enacted the contested measure.”
232 Such interpretation of the EEAS’ nature appears to be confirmed by a systemic reading of Article
27(3) TEU and 240(2) TFEU: these provisions are formulated in a similar manner, since the former affirms that the HR is assisted by the EEAS, while the latter states that the Council is “assisted by a General Secretariat”, that is to say the service of the Council.
233 In this sense, see Gautier, "The Reparation For Injuries Case Revisited: the Personality of the
European Union", in Max Planck Yearbook of United Nations Law (2000), pp. 331-361, p. 333.
234 The definitions are taken from Van Vooren, "a Legal-Institutional Perspective on the European
External Action Service", 48 Common Market Law Review (2011): 475-502, p. 485; see also, inter alia, Smith, “Legal Personality”, 37 Yale Law Journal (1928): 283-299; Yasseen, “Création et
It may be excluded that the EEAS should be able to act on the international level in its own capacity, insofar as it is merely an organ of the Union; hence, the EEAS can have neither international legal personality nor international legal capacity. For similar reasons, it may be excluded that the EEAS should have legal personality and capacity in the legal order of the Member States.235 It may be wondered, however,
whether the Service has been granted internal legal personality and capacity by the EU legislator and it consequently exercises it in the legal order of the EU.236
The existence of the EEAS' legal personality is demonstrated by its autonomy: being separate from the HR in administrative areas, the Service must be subject of rights and obligations in its own name.237 The EEAS, for instance, is the entity with which
the Service's officers have a contractual relation for the purpose of their professional activity. Similarly, it is the EEAS that is under an obligation to disclose its documents to European citizens and that enters into financial commitments for the purpose of implementing its budget.
The existence of the EEAS' legal personality can be demonstrated also through a parallelism with the international legal personality of international organisations. As affirmed by the International organisation Court Justice (ICJ), in the Reparation for Injuries case, the legal personality of an international organisation is demonstrated by the fact that it occupies “a position in certain respects in detachment from its Members.”238 By analogy, the legal personality of a body of an
international organisation may be demonstrated by its position in detachment from other organs of that organisation. Since the EEAS is autonomous from the HR, at least for administrative purposes, it should have legal personality. The fact that the EEAS is not entirely autonomous, on the other hand, is not significant. International organisations are not completely autonomous either, since, as the ICJ held in 1996, they "are governed by the "principle of speciality", that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them".239 Since the speciality of international organisations does not question their
international personality, the speciality of their organs should not lead to the exclusion of the latter's legal personality either.
Personnalité Juridique Des Organisations Internationales”, in Dupuy (ed.), Manuel sur Les Organisations Internationales (Hague Academy of International Law, 1988), pp. 33-56, at p. 43.
235 According to Article 335 TFEU “In each of the Member States, the Union shall enjoy the most
extensive legal capacity accorded to legal persons under their laws […] To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation” (emphases added); in other words, the Union has personality in the legal order of Member States, and its bodies function as its organic representative in Member States’ legal orders.
236 Indeed, “la creation des personnes de droit public n’est jamais le résultat de l’initiative privée; c’est
l’autorité publique seule qui y procède, Waline, Droit administratif (Dalloz, 2010), p. 50.
237 In this sense, mutatis mutandis, see Mazzaroli et al, op. cit., p. 151-152.
238 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C.J.
Reports, 1949, p. 174, at p. 179. Cf. also Yasseen, op. cit., p. 43: “Ce qui caractérise une organisation internationale c'est qu'elle est une association d'Etats qui fait naitre une entité distincte, indépendante des Etats qui la composent.” On the autonomy and legal personality of the EU (before the Lisbon reform), see also Dehousse and Andoura, “La Personnalité Juridique de l’Union Européenne: Le Débat Qui N’existe Pas”, in Franck and Duchenne (eds.), L’action Extérieure de l’Union Européenne : Role Global, Dimensions Matérielles, Aspects Juridiques, Valeurs, pp. 229- 254, and especially pp. 239-241.
239 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion: I.C.J.
The characterisation of the EEAS as a body endowed with legal personality encounters a main logical difficulty. Is it possible to conceive an entity having a 'large' legal personality (the EU) that contains other entities having a 'small' legal personality (the EEAS)? The earlier case law of the ECJ clearly excludes this, since “only the Community has legal personality, and its institutions do not”.240 This
assertion, however, should not be interpreted literally. If legal personality is the quality through which an entity can be subject to rights and obligations, then each and any entity capable of being subject to rights and obligations should be a legal person. There is little doubt that EU institutions fall in this category and this is rendered most evident by the case of sincere cooperation: as the Court held in several instances, Union institutions are “subject to the same mutual duties of sincere cooperation which […] govern relations between the Member States and the Community institutions.”241 How could institutions be subject to duties, if they
lacked legal personality? And even more convincingly, towards whom these duties should be directed? Denying the legal personality of EU institutions would be tantamount to affirming that an entity representing the Union has a mutual duty of cooperation with another entity representing the Union…thus the Union should be under a duty to cooperate with itself! Provided that the EU's legal order foresees rights and obligations for Union institutions, it must be concluded that the 'large' personality of the EU contains the 'small' personalities of its bodies.
A closer investigation of the ECJ case law shows, in fact, that EU judicial bodies often implied the legal personality of Union institutions. The General Court, for instance, argued that a service cannot be sued because it is attached to an institutions and “it is without legal personality”.242 More generally, the ECJ and the
General Court repeatedly held that provisions that do not concern individuals directly and individually may not be challenged in a direct action “by natural or legal persons other than Community institutions and Member States”.243
Strikingly, the Court held this very opinion in one of the judgements where it allegedly denied the existence of the personality of EU institutions.244
If the above considerations suggest that EU institutions should have legal personality, they are not sufficient to demonstrate that a service, such as the EEAS, should be in the same position. As a matter of fact, the services of EU institutions do not have legal personality.245 A cursory reading of Article 1(2) of the EEAS
Decision appears to confirm this, since it asserts that the EEAS is only endowed
240 Case 7/56, 3 to 7/57, Algera and others v Common Assembly of the ECSC, [1957] ECR English
special edition p. 39, at p. 57; see also Joined cases T-177/94 and T-377/94, Henk Altmann and Margaret Casson v Commission, [1996] ECR II-2041, par. 150.
241 Case 230/81, Luxembourg v European Parliament, [1983] ECR 255, par. 37; Case
204/86 Greece v Council [1988] ECR 5323, par. 16; Case C-65/93 Parliament v Council [1995] ECR I-643, par.23.
242 Case T-309/03 Camós Grau v Commission [2006] ECR II-1173, par. 66; in this sense, see also
T-264/09 Technoprocess v Commission and Delegation of the European Union to Morocco, not published in the ECR, par. 70; case T-395/11, Elti d.o.o v Commission, not published in the ECR, par. 36.
243 Case 92/78, SpA Simmenthal v Commission, [1979] ECR 777, par. 40 (emphases added);
Altmann, cit. supra, par. 127; case C-171/00, Alain Libéros v Commission, [2002] ECR I-451, par. 32.
244 Altmann, cit. supra, par. 127. This apparent inconsistency may be explained by arguing that,
rather than excluding the legal personality of Union institutions, the ECJ excluded their capacity to enter into obligations towards thirds in their own name; this is logical, considering that the Treaties clearly affirm that only the Union is contractually and non-contractually liable towards third subjects.
245 The situation is not entirely different in the law of the Member States. In France, the ministries
lack personality, whereas in Italy their personality is debated, see inter alia Mazzaroli et al., op. cit., p. 408.
“with the legal capacity necessary to perform its tasks and attain its objectives”. Legal personality, on the contrary, is never mentioned by the Decision establishing the Service.246 In theory, such literal interpretation of Article 1(2) may only be
accepted under two alternative conditions. In the first place, the EEAS should be able to act in its own name on the legal level, in the areas where it is autonomous, without being able to be subject to rights and obligations. However, this is obviously impossible: once a person’s capacity to enter into legal relations is established, such capacity presupposes the ability of that person of being subject to rights and obligations.247 Alternatively, the EEAS' should be able to participate in
legal relations without yet having become a party to them,248 but only as a
representative of the HR. This argument cannot be accepted, either, given the EEAS’ administrative autonomy and its consequent capacity to act on its own. It must be concluded, therefore, that the EEAS, like EU institutions, has legal personality because it enjoys a certain autonomy from the HR.
Our view, which derives the legal personality of the EEAS from its autonomy, is reinforced by the recent case law of the General Court. In the Elti case (2012), a company governed by Slovenian law tried to challenge an act allegedly adopted by the Delegation of the EU to Montenegro. Union Delegations, after the creation of the EEAS, have an apparently double nature: on the one hand, they represent the EU abroad (Article 221(2) TFEU), while, on the other hand, they are departments of the EEAS.249 This twofold nature of Delegations was found to be problematic in the
Elti case. Both the applicant and the defendant accepted that EU's bodies locus standi derives from their legal personality and that the latter is a consequence of their 'autonomy' or 'independence'. While the applicant asserted that Delegations are "independent players having legal personality"250, the Delegation held that it
did not enjoy "the status of independent body" and did not act as such in the circumstances of the case. Although the EEAS formally did not participate in the proceedings, it inevitably shared the Delegation's view, for the simple reason that the latter is part of the former. The Court supported the view of the Delegation, by holding that it "is merely a division of [the EEAS], whereas the latter is clearly designated as an independent body of the European Union".251 This led the Court to
conclude that Delegations are attached to the EEAS and are dependent on it, and therefore they have no legal personality (and no locus standi). It is only logical to suppose, a contrario, that since the EEAS is "independent" is should have legal personality.
Why, then, did the EEAS Decision fail to mention the EEAS’ personality? Arguably, the Council formulated Article 1(2) of the EEAS Decision in a manner that was politically acceptable for the Parliament and the Commission. The former was
246 Such reading of Article 1(2) of the EEAS Decision may appear to be further reinforced by the fact
that, when the legislator establishes a body endowed with legal personality it generally confers this quality in an explicit manner. On the legal personality of the typical entities set up through secondary legislation, that is to say EU agencies, see Chiti, “An Important Part of the EU’s Institutional Machinery: Features, Problems and Perspectives of European Agencies”, 46 Common Market Law Review (2009): 1395-1442.
247 De Quadros, Droit de l’Union Européenne: droit constitutionnel et administratif de l’Union
Européenne (Bruylant, 2008), p. 51.
248 Cf., mutatis mutandis, Smith, op. cit, p. 283.
249 EEAS Decision, Article 1(4): "The EEAS shall be made up of a central administration and of the
Union Delegations". The implications of this duality in respect of institutional balance are investigated in chapter 4.
250 Elti, cit. supra, para 33. 251 Id., para 35 (emphasis added).
particularly vocal in calling for the EEAS to be “incorporated, in organisational and budgetary terms, in the Commission's staff structure”.252 The lack of an explicit
recognition of the EEAS’ legal personality may have been functional to reduce the apparent ‘distinctiveness’ of the EEAS, in order to appease the Parliament.253
The acknowledgement of the legal personality of the EEAS has symbolic importance, but it ultimately holds scarce relevance for the determination of the Service's position in the architecture of the external action. Legal personality, indeed, does not imply full legal capacity. All legal persons, including Union bodies, have limited legal capacity, instrumentally to the performance of their functions, according to the already cited principle of specialty.254 The EEAS makes no
exception to the rule, as testified by the latter of Article 1(2) of the EEAS Decision, which, somewhat tautologically, states that the Service has the legal capacity necessary to perform its tasks. Therefore, the remainder of this chapter seeks to elucidate the limits of the legal capacity of the EEAS.