23 October 2023

Who Speaks on Behalf of the European Union?

What the Chaotic Reactions of the EU to the Israel-Hamas War Reveal About the State of European Foreign Policy

“It’s a cacophony. It’s ridiculous”. This is how an EU diplomat described the flow of EU statements following the outbreak of the war between Israel and Hamas. The divergent reactions reveal the existence of institutional tensions about the Union’s external representation, which undermine the coherence and credibility of the EU’s external action. First, there was the announcement on social media by the European Commissioner for Neighbourhood, Oliver Várhelyi, that all payments to the Palestinians would be suspended immediately and that all new budget proposals had been postponed until further notice. A few hours later, his colleague responsible for crisis management, Janez Lenarčič, countered by stating that “humanitarian aid to Palestinians in need will continue as long as needed.” Later that evening, as an act of damage control, the European Commission issued a press release announcing “an urgent review of the EU’s assistance to Palestine” in order to avoid that such funding may be used by terrorist organizations. Significantly, it was explicitly mentioned that this review does not concern humanitarian assistance and that it would be coordinated with the Member States. Both elements make sense from a legal point of view. First, humanitarian aid is a separate policy area which is not subject to the conditionality approach of the EU’s other funding schemes. Second, the review of financial assistance requires the involvement of the Member States through the comitology procedures as foreseen under Article 45 of the Neighbourhood and Development Cooperation Regulation (see also here). Unfortunately, this crucial legal background was totally ignored in Commissioner’s Várhelyi initial communication.

Apart from the disastrous communication regarding the revision of assistance to Palestine, the visit of European Commission President von der Leyen and European Parliament President Metsola also triggered a lot of criticism. In a public statement, von der Leyen stressed Israel’s right and even duty to defend itself and its citizens, without mentioning the important caveat that this should happen “in accordance with international humanitarian law”. Only after she faced significant political backlash for her blunt position, she issued a  new statement, clarifying that the right of self-defense cannot be disconnected from the principles of international law. Moreover, a clear distinction was now made between “the Hamas terrorists” and “innocent civilians in Gaza”. This brought her position more in line with that of the Member States who issued their own statement as members of the European Council. Both European Council President Charles Michel and High Representative for Foreign Affairs and Security Policy Josep Borrell used this opportunity to recall that foreign policy issues are to be determined by the European Council and the Council – a clear message to the presidents of the European Commission and the European Parliament.

Not a new problem

The question of who can speak on behalf of the European Union on the international stage is a classic one. It goes back to the famous quote of former American Secretary of State, Henry Kissinger, who asked whom to call to know the position of Europe during the Cold War period. Despite the ambitions of the Lisbon Treaty to strengthen the coherence of the EU’s external action, the institutional challenges in relation to the Union’s external representation continue to exist. This was notably exemplified in 2012  when the EU received the Nobel Prize in 2012. After some internal discussions, a pragmatic solution was found in the sense that both European Commission President Barroso and European Council President Van Rompuy delivered speeches, and European Parliament President Schulz joined them to receive the Peace Prize medal. When former American President Trump visited Brussels and he was welcomed by both European Council President Tusk and Commission President Juncker, the latter jokingly explained that the Union has two presidents and that “there is one too much” (pointing at Tusk). In recent years, the tensions between the current Presidents of the European Commission (Ursula von der Leyen) and the European Council (Charles Michel) are well known. This was painfully illustrated with the infamous ‘sofagate’ diplomatic incident on the occasion of their visit to Turkish President Erdogan in April 2021. There was also a lot of symbolism in the reactions after the terrorist attacks against Israel. Whereas the Israeli flag was projected onto the building of the European Commission – despite requests from Belgian Prime Minister De Croo not to do this in order to avoid potential turmoil in Brussels –, the buildings of the Council were only illuminated in a more neutral white colour. This illustrated once again divisions amongst EU institutions in the immediate aftermath of Hamas’ terrorist attacks and highlighted difficulties to provide a coherent message in the EU’s external action.

What do the EU Treaties say?

The issue of EU external representation cannot be disconnected from the division of competences as foreseen in the EU Treaties. In this respect, Article 24 TEU explicitly defines that “the common foreign and security policy [CFSP] is subject to specific rules and procedures”. In essence, this implies that the CFSP is defined by the European Council and the Council on the basis of unanimity amongst the Member States where the ‘supranational’ institutions such as the European Commission, the European Parliament and the Court of Justice of the EU play a more limited role in comparison to other areas of EU competence. The special status of the CFSP, which is also reflected in Article 40 TEU, has implications for the question of who can speak on behalf of the EU.

At the highest political level of heads of state or government, there is a division of tasks between the President of the European Council and the President of the European Commission. For matters falling within the scope of CFSP, the President of the European Council shall ensure the external representation of the Union (art. 15, para. 6 TEU); for all other EU policies, this is a task for the European Commission (art. 17, para 1 TEU). In practice, it is difficult to draw a clear line between the CFSP and the other policy fields (such as humanitarian aid, trade etc.), which explains why both Presidents jointly represent the Union at high-level international meetings.

At the political level of ministers of foreign affairs, representation on behalf of the EU is carried out by the ‘High Representative for foreign affairs and security policy’ (art. 27 TEU). The High Representative also serves as Vice-President of the European Commission, which is deemed to safeguard the consistency of the EU’s external action (Article 21, para. 3 TEU). The other members of the European Commission represent the Union at ministerial level for matters that fall within the scope of their portfolio. They are expected to adhere to the code of conduct, implying amongst others that they “shall act collegially” and that they “shall not act or express themselves, through whatever medium, in a manner which adversely affects the public perception of their independence, their integrity or the dignity of their office”.

The gap between theory and practice

The cascade of statements in reaction to the events in the Middle East highlight a discrepancy between the theory of the EU Treaties and the practice on the field. With his statements about the end of EU assistance to Palestine, Commissioner Várhelyi arguably undermined the credibility of the European Commission and, by extension, the European Union. More than 70 Members of the European Parliament (MEPs), therefore, call for his resignation. The actions of Commission President von der Leyen are also disputable, as has been voiced by several EU staff members. The war between Israel and Hamas concerns issues of foreign and security policy. Whether one likes it or not, this is an area where the Commission has a more limited role – also with respect to external representation. A certain restraint or, at the very least, closer coordination with the Member States and the European External Action Service could have been expected. The sometimes contradictory statements and inter-institutional tensions undermine the coherence and credibility of the EU’s external action. It is, once again, an occasion to reflect about the way the EU presents itself to the outside world.

An earlier version of this text was published (in Dutch) at: https://www.knack.be/nieuws/wereld/europa/wie-spreekt-in-naam-van-de-europese-unie/

SUGGESTED CITATION  van Elsuwege, Peter: Who Speaks on Behalf of the European Union?: What the Chaotic Reactions of the EU to the Israel-Hamas War Reveal About the State of European Foreign Policy, VerfBlog, 2023/10/23, https://verfassungsblog.de/who-speaks-on-behalf-of-the-european-union/, DOI: 10.59704/4a469bf8f6e465d1.

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