Institutional competence and the common foreign and security policy of the European Union

Introduction The European Union (EU) is a unique legal system. This is so notwithstanding the fact that the comment, indeed perhaps a criticism, has been made that lawyers tend to categorise the EU as a sui generis legal system ‘without further explanation’. In the case of the EU, we see an intriguing model of security regulation positioned, as the title of this series collection states, at the intersection of international and public law. The legislative measures of the EU are embedded directly (in the case of Regulations), or indirectly (in the case of Directives), in the legal systems of its Member States. Jurisprudentially, the preliminary ruling mechanism, and the doctrines of supremacy and direct effect, combine to embed the rulings of the Court of Justice of the European Union (‘the Court’) in the legal systems of the Member States. By virtue of this unique legal structure, therefore, the Member States’ national and regional policies are synthesised into a unique form of regulation that, to use a (by now) rather clichéd term, lies ‘beyond the state’. In other words, this form of regulation is one developed and administered, not by states exercising unfettered sovereignty either unilaterally or in the context of a multilateral organisation, but rather by states exercising more limited sovereignty, together with the EU institutions to which those states have transferred part of their sovereignty. Acting together, the Member States and the EU jointly exercise a ‘blended’ sovereignty. The purpose of this chapter is to map the landscape of security regulation under the Common Foreign and Security Policy and to explore the way in which the competences of the EU and its Member States engage with each other in this policy area. This chapter does not, however, consider this institutional evolution as the ‘constitutionalisation’ of Europe, upon which voluminous literature exists and continues to grow. The focus of this chapter is rather on explaining the concept of security within the EU; the way in which legislative competence in this policy area is shared between the EU institutions and the Member States; and the way in which the EU and the Member States engage with the rest of the world in this area.