‘High’ indicates something that surpasses everything else: high command, high treason, high society, High Court… In language that is now obsolete, the higher chamber of a bicameral parliament is made up of persons of distinction, then representatives of infranational entities, whilst the lower chamber represents the people and is set in place by universal suffrage. Primary law of the European Union does not use the adjective ‘high’, with just two exceptions.
The High Authority was the uppermost institution of the ECSC. For the two Communities that followed it, this title was dropped in favour of ‘Commission’, which was less redolent of supranationality. This was a semantic error, as the word ‘commission’ just means a charge, instruction, command or a ‘body of people charged with a particular functional task, especially an investigative, judicial, regulatory or administrative one’ (OED), for instance within a Parliament’, whereas the European Commission is an authority in its own right.
In the other exemption, the Treaty of Amsterdam instituted the position of High Representative for Common Foreign and Security Policy (CFSP), which would be combined with the role of Secretary General of the Council, in other words a high-ranking official. Javier Solana was appointed to fill this role in June 1999 and held it for ten years. The authors of the constitutional treaty renamed this position ‘foreign affairs minister of the EU’ (art. I-28), a term which the negotiators of the Lisbon Treaty gave the red-pen treatment in favour of the title ‘High Representative of the Union for Foreign Affairs and Security Policy’.
However, many of the innovations contained within the constitutional treaty innovations were kept. This High Representative (HR) replaces the minister of foreign affairs of the member state holding the six-monthly Presidency of the Council to convene and preside over the meetings of this configuration of the Council, a situation that was unprecedented. The person holding the role is therefore ‘above’ the 28 foreign ministers, particularly as they are no longer invited to attend meetings of the European Council, unlike the HR (art. 15 TEU).
Additionally, the HR is automatically made a Vice-President of the Commission, which loses the position of Commissioner for External Relations (RELEX); it loses responsibility for services concerning this area, restructured and rebranded as the European External Action Service (EEAS), which is made up of, as well as Commission officials, Council officials and national diplomats. This service obviously includes the delegations of the EU throughout the world and all supporting budgetary resources.
The HR is responsible, upstream, for participating in the drafting of the common foreign and security policy by the European Council and, downstream, for executing this policy with national and EU resources (art. 26 TEU). This is why, with the agreement of the President of the Commission, he or she is appointed by qualified majority of the European Council, which can also terminate his or her tenure by the same procedure (art. 18 TEU). The HR’s initial legitimacy stems directly from the European Council, but as a member of a future Commission, he or she must, like all the other candidate Commissioners, win the vote of approval of the European Parliament.
The Lisbon Treaty, which entered into force on 1 December 2009, splits the HR off from the administration of the Council and intrusts the role to the Commission. However, the organisation and functioning of the EEAS are laid down by decision of the Council (art. 27 TEU). As Vice-President of the Commission, the HR is bound by the obligation of collegiality, unless he or she is acting as a representative of the Council, and must regularly consult the Parliament (art. 36 TEU). The incumbent has his or her own right of initiative, but within the Commission, the external competences for trade, enlargement, neighbourhood, development and humanitarian aid come under the remits of other members, which are not hierarchically under the HR’s authority.
The TEU lays great emphasis on the representative role of the HR: he or she shall ‘represent the Union for matters relating to the common foreign and security policy. He [or she] shall conduct political dialogue with third parties on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences’ (art. 27). This mission therefore assumes very considerable communication skills, coming as it does where politics and diplomacy meet, and an ability to respond rapidly to current events, wherever they occur. Furthermore, holding the presidency of a formation of the Council for which unanimity is standard (although qualified majority voting is theoretically possible under certain conditions and increasingly called for by the Commission) calls for the ability to forge a consensus in an area in which national reflexes continue to be powerful and where speed is a huge factor in its efficiency.
This role, which is quite without precedent and has sometimes been described as ‘impossible’, is located on the crossroads between the Community tradition and inter-governmental logic; the former holds administrative resources and is involved in the actions of the Council; the latter keeps its hand in for dynamism and decision-making. Both boast a stock of powerful contacts throughout the world and it is in their interests to sing to them from the same hymn sheet. (To be continued).
Renaud Denuit