Some questions to the candidate High Representative for external relations (Federica Mogherini)

By Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini) will  questioned in the next two days by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm her in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.

The following are suggested questions on institutional issues, although of course MEPs should also ask questions on the substance of EU foreign policy.


1 External Internal Security Policy

In your written answer you claim the need of a consistent and global approach to external and internal security. However, legally these two dimensions have been artificially separated in the Treaties by a disconnection clause (art.40 of TEU) [1] according to which the external security will remain intergovernmental. This means that consensus between the 28 Member States will remain the main rule, there are no legislative powers and the Court of Justice has no full judicial oversight. Bearing in mind these flaws of the EU external security policy (also from the point of view of the democracy principle and of the rule of law) would not be better to achieve some of your goals by building them on the external dimension of “internal” policies (such as protection of borders, migration, judicial and police cooperation)? If so qualified majority will be the rule and external agreements will be approved by the EP (as already happened with some EU-US agreements) and EU acts will be under the control of the Court of justice…

2.Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)

On a joint proposal of your predecessor and of the Commission on 24 June 2014 the Council adopted thearrangements for the implementation by the Union of the solidarity clause (art 222 TFEU)  to be activated  if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The text has been adopted without associating the EP and moreover it does not foresee any structured information of the European Parliament on the way in which threats are defined and monitored, not even in the case that such an event occurs. However even if the Treaty does not impose a requirement to provide this information nothing would had prevented the Council from  foreseeing it on its own initiative also because it would be bizarre that the members of the EP discover a terrorist attack from the press rather than from institutional channels. Will you propose an amendment to that Decision by recognising an adequate space for the EP?

3.Global Approach to Migration and mobility partnership as a binding act

As you rightly say in your written answer, EU development policy and international agreements could be the answer to address the root causes of displacement. However the Global Approach of Migration and the mobility partnership are only diplomatic instruments and are meaningless if not framed as full international agreements. Should they be transformed into legal binding acts (both for third countries and the EU and its Member States) and be accompanied by formal EU agreements with the relevant UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in third countries?

4 Agreements on the exchange of confidential information with third countries

Since 2000 the Council of the European Union has concluded dozens of international agreements dealing with the exchange of confidential information with third states and international organizations. However, notwithstanding the entry into force of the Lisbon Treaty and of art 218(10) of the TFEU which requires that the European Parliament should be “immediately and fully informed” during the negotiations this never happened.
Even worse these agreements follow the same model (originally defined for the EU-NATO agreement) according to which the Council concludes the agreement on behalf of the European Union by granting to the other contracting party the right of vetoing the transmission of the classified information to any other third party, including the European Parliament.
Do you think that in compliance with the democratic principle inside the EU and the principle of loyal cooperation after the Lisbon Treaty these agreements should be amended?

5 Art 9 of Regulation 1049/2001 and future revision of the Agreement on the exchange of classified information

Art.9 of Regulation 1049/2001 frames in a very concise way the treatment of classified information as “confidential”, “secret” and “top secret”. However there is not yet a definition of the criteria to be followed for the classification/declassification. As limits to fundamental rights should be founded on law and not on internal organisational rules (the so called EUCI rules) will you propose a revision of article 9 of Regulation 1049/01 ?

The revision of the agreement on exchange of confidential information with the Council in the domains formerly covered by the second pillar is underway. Will you accept an EP request for declassification in case after examination a document appears to be overclassified ?

6.International negotiations and provisional application

In principle the mandate for negotiations for an international agreement should indicate the envisaged legal base (see the CITES judgment of the CJEU) but this has not been the case for the ACTA agreement, for the TTIP and currently for the EU-USA umbrella agreement on data protection. Do you agree that this is an essential element for the legality of the mandate even if the legal basis could be updated on the basis of the result of the negotiations?

The signature of an international agreement not covering exclusively the CFSP requires the consent of the European Parliament. In case of mixed agreements (such for external trade) the provisional application could be foreseen and the EP will not have the chance to delay the application without rejecting the agreement itself.
Do you not consider that it would be more wise to submit to the EP two different draft Decisions covering respectively the agreement and its provisional application?

7.Consular Protection

Foreseen by the Maastricht Treaty the right to consular protection is still the “cinderella” of EU citizens’ rights, because of Member States’ reluctance to adopt even the Commission proposal to establish a solidarity mechanism in this area. Will you try to convince the MS that it is even in their interest to adopt the Commission proposal?

[1]Article 40 (ex Article 47 TEU)
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

[2] The model agreement state “The EU institutions and entities to which this Agreement applies shall be: the European Council, the Council of the European Union (hereafter ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereafter ‘the EEAS’) and the European Commission.  For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU”.

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