LEGAL BASIS CONFLICTS REGARDING EU EXTERNAL ACTIONS : Upholding the key properties of the CFSP and the AFSJ provisions when negotiating and concluding international agreements

Abstract: Since the competence provided in the CFSP and the AFSJ areas in certain situation can overlap, issues have arisen in the recent case law and literature concerning the choice of legal basis. The provisions of the two policy areas concern important international areas and the institutional balance, which is based on what legal basis is chosen, leads to a number of institutional consequences such as division of power between the Member states and the Union’s institutions. The idea behind this paper is to display an ample and just picture of a complicated situation in order to highlight the issues at hand that have arisen due to the complexness of the legal framework. If one of the policy areas are chosen as the correct legal basis, different rules in the treaty applies, which leads to different distribution of power since different institutions in EU play different roles depending on legal basis. The purpose of this work is therefore to analyse the external dimension of the AFSJ and the CFSP rules and examine how the correct legal basis can be determined by the legislator at the same time as the Member States and the EU’s ability to fulfil their objectives and goals is not undermined.