Commissioner for the Mediterranean Dubravka Šuica attended the inaugural meeting of the Board of Peace (BoP) in Washington. Her presence triggered significant criticism from several Member States and European Parliament groups, considering that she did not have a mandate to take part in such a politically contested initiative. The European Commission, on the other hand, defended her participation on the ground that the EU has a direct interest in the reconstruction of Gaza. As the biggest external provider of assistance to Gaza, it is deemed important to present the EU’s perspective without taking any formal role in the BoP.

The controversy surrounding Commissioner Šuica’s presence in Washington illustrates – once again – the challenges of EU external representation. Apart from the political discussion whether it is opportune to take part in the controversial Board of Peace, her participation raises significant questions of EU law. Can the European Commissioner for the Mediterranean represent the Union on this matter? Is participation as a passive observer possible without a mandate from the Council?  What do the relevant EU Treaty provisions and the case law of the Court of Justice of the European Union say about this question?

Whereas the EU’s external action inherently requires a form of pragmatism and voluntarism, Commissioner Šuica’s attendance at the Board of Peace is problematic at different levels. It increases the legitimacy of a highly contested international organisation on an issue that, arguably, goes beyond the Commission’s powers of external representation. Moreover, the questionable compliance between the Charter of the BoP and the EU’s obligations under Article 21 TEU are a matter of concern.

The Board of Peace: A Contested International Organisation

The BoP is an initiative of American President Donald Trump, launched in the framework of his “Comprehensive Plan to End the Gaza Conflict”. It is mentioned in United Nations Security Council Resolution 2803 (2025) as “a transitional administration with international legal personality that will set the framework, and coordinate funding for, the redevelopment of Gaza”. In the margins of the Davos Economic Forum, President Trump organised a formal signing ceremony of the Charter of the Board of Peace. Representatives from some twenty countries participated in the signing event, including the Prime Ministers of Bulgaria and Hungary as the only EU Member States. The White House had also included Belgium on the list of countries endorsing the BoP Charter, but this turned out to be a mistake. Apparently, someone had confused Belgium with Belarus. In any event, Belgian Prime Minister Prévot quickly clarified the issue with a clear statement that “as many European countries, we have reservations to the proposal.” Belgium preferred “a common and coordinated European response”, a position that was at that time followed by most EU Member States and the European Commission, which had received an invitation to take part in the BoP Charter signing ceremony in Davos.

The European External Action Service (EEAS) identified significant legal concerns with the BoP Charter. In particular, the almost unlimited powers granted to Donald Trump as the organisation’s “inaugural chairman” and his presentation of the BoP as a potential alternative to the United Nations cannot easily be reconciled with the EU’s constitutional mandate. In accordance with Article 3 (5) and Article 21 TEU, the EU’s external action must be strictly based upon respect for the principles of the United Nations Charter.

Significantly, United Nations Security Council Resolution 2803 (2025) gives some legitimacy to the BoP initiative. The December 2025 European Council conclusions explicitly welcomed the adoption of this resolution and the establishment of a BoP. The conclusions even mention that the EU “will actively engage with partners on the next steps”. The main problem, however, emerged when Donald Trump revealed the Charter of the BoP. At that time, it became clear that the ambitions and working methods of the BoP went beyond the mandate authorised by the United Nations Security Council. European Council President Costa expressed this concern after the informal European Council meeting of 22 January 2026.

It quickly turned out that the EU Member States were divided on their position towards the BoP. Where some members, such as France, Germany and Spain, explicitly rejected the offer to attend the first inaugural meeting in Washington, twelve member states finally attended as observers, whereas only Hungary and Bulgaria joined as full members of the board. For the Union, Commissioner Šuica took part in talks related to the implementation of the peace plan in Gaza and the post-war reconstruction of the region.

A Matter of Common Foreign and Security Policy?

Whereas the European Commission is the “default” institution responsible for the external representation of the European Union (Art. 17 (1) TEU), specific rules apply with respect to matters falling within the scope of the Common Foreign and Security Policy (CFSP). In this field, the High Representative represents the Union with the support of the EEAS (Article 27 (2) and (3) TEU). The Court of Justice confirmed this division of tasks in its Gabon judgment on the signature of international agreements. Hence, the question arises whether the participation in the inaugural meeting of the BoP falls within the scope of the CFSP (and thus belongs to the High Representative and the EEAS) or to other fields of EU external action (and thus belongs to the Commission and its services).

Drawing a precise borderline between CFSP and non-CFSP external action is a difficult exercise. The European Commission stresses the EU’s role as a major donor of humanitarian aid and key actor in the post-war reconstruction of Gaza. Humanitarian aid (Art. 214 TFEU), development cooperation (Art. 208 TFEU) and assistance to third countries (Art. 212 TFEU) fall outside the scope of the CFSP and may, therefore, provide an explanation for sending Commissioner Šuica to Washington. However, this interpretation of the Commission’s role may well be contested. The Charter of the BoP clearly proceeds from a broad security and foreign policy logic. Its self-declared mission is “to promote stability, restore dependable and lawful governance, and secure enduring peace in areas affected or threatened by conflict.”  Moreover, its more specific mandate under UN Security Council Regulation 2083 (2025) is part of a comprehensive plan to end the Gaza conflict. Taking into account this broader security context, it seems more logical that the High Representative and the EEAS, rather than the European Commissioner for the Mediterranean, would express the Union’s position on this matter. At the very least, respect for the principle of consistency in the EU’s external action (Art. 21(3) TEU) presupposes close cooperation between the various institutions involved. Based upon the available public information on this matter, that does not seem to have happened before the decision was taken to send Commissioner Šuica as the EU’s representative.

The Question of Inter-Institutional Balance and Sincere Cooperation

Apart from the question of whether Commissioner Šuica was the appropriate person to speak on behalf of the Union, her contested participation touches upon the inter-institutional balance in the field of EU external action. Could she legally represent the Union without a specific mandate from the Council? This issue relates to the distinction between the task of external representation, on the one hand, and actual policy-making, on the other hand. The former belongs to the Commission (apart from the field of CFSP, as explained earlier), the latter to the Council. In the Swiss MoU case, the Court of Justice shed light on this distinction. The crucial criterion is the requirement of an “assessment of interests”. When such an assessment is required in view of the strategic guidelines laid down by the European Council and the principles and objectives of the Union’s external action laid down in Article 21 (1) and (2) TEU, the Commission can only represent the Union upon the Council’s prior approval.

Even though Commissioner Šuica’s attendance at the BoP meeting in Washington is of a different nature than the issue at stake in the Swiss MoU case, which concerned the Commission’s signature of a non-binding agreement, the “assessment of interests” test is a relevant point of reference. Proceeding from this logic, a pure confirmation of an established position squarely falls within the EU’s external representation powers of the Commission (at least for issues outside the scope of the CFSP). Whenever an assessment of interests is at stake, a prior approval of the Council is necessary.

It seems that the Commission sees the participation of Commissioner Šuica as part of its external representation powers and as an expression of the established EU position on the role of the BoP in the reconstruction of Gaza. This position could be derived from the December 2025 European Council conclusions and the Council conclusions on the Middle East Peace Process. The core issue, however, is that this position is based upon the envisaged role of the BoP as foreseen under UN Security Council Resolution 2803 (2025). It has been brought to the attention of the EU Member States that the Charter of the BoP goes well beyond the scope and mandate foreseen under this resolution. Arguably, the question whether under such circumstances participation in the BoP is appropriate in view of the principles and objectives of the Union’s external action laid down in Article 21 (1) and (2) TEU requires an assessment of interests within the Council.

It is true that the Commission’s participation does not bind the Union and is limited in scope, but the fact remains that this action has an impact on the reputation and credibility of the European Union at the international stage. As can be derived from the Court’s case law, this constitutes a distinct legal interest protected by the duty of sincere cooperation. This duty not only applies to the Member States but also to the EU institutions (Art. 13(2) TEU). Given the questions surrounding the compatibility of the BoP Charter with the EU’s constitutional principles, the Commission’s unilateral action is difficult to defend. At the very least, a consultation of the Council could have been expected. On the basis of the publicly available information, this does not seem to have happened.

The episode is part of a broader trend where the European Commission increasingly pursues a form of realpolitik at the international level. This is difficult to reconcile with the text and spirit of the EU Treaties. The Commission’s assertive approach and broad interpretation of its external representative role create tensions with the Member States and other institutional actors. This is not new. It suffices to recall the Commission President’s statements at the start of the Israel-Hamas war. The question of who speaks on behalf of the Union and how this affects the Union’s reputation and credibility at the international stage cannot be ignored. It deserves an open and transparent debate, with full respect for the EU’s constitutional principles.