Borrell accuses Commission of treaty breach over foreign policy and defence

Josep Borrell does not mince words. The Spaniard who ran the European External Action Service for five years says the European Commission has wandered into territory the treaties reserve for member states and the EU's diplomatic arm, creating what he calls "quite a mess" in the bloc's foreign policy machinery. His intervention, given in a long interview with POLITICO, is the first time a former high representative has publicly accused the Commission of breaching the legal boundary between external action and common foreign and security policy.

The treaty line the Commission is accused of crossing

The argument rests on the Treaty on European Union. Article 17 says the Commission "shall ensure the Union's external representation" but adds a critical qualifier: "with the exception of the common foreign and security policy." That exception is not decorative. The common foreign and security policy (CFSP) is governed by Title V of the treaty, where the High Representative, acting on behalf of the Council, conducts political dialogue and represents the Union's position. The Commission's role is limited to the external dimension of sectoral policies, trade, development, neighbourhood, enlargement, where it negotiates on the basis of mandates from the Council.

Borrell draws a sharp distinction. "Certainly the Commission has policies that have an external dimension," he said. "But this is one thing, and another thing is to pretend to set and define the position of the Union in the war against Iran, or on the Israel-Palestine conflict and other Middle East conflicts. This is not external relations. This is external policy." In his reading, if the Commission wants a common position on a geopolitical crisis, it must go to the Council, where national governments hold the competence. The Commission, he insists, represents only itself.

Israel visit exposes the operational confusion

The clearest illustration Borrell offers happened in late June 2026. Israel's foreign minister, Gideon Sa'ar, had just declared Kaja Kallas persona non grata after reports that she compared Israel's treatment of Palestinians to apartheid-era South Africa. Days later, Mediterranean Commissioner Dubravka Šuica travelled to Jerusalem and met Israeli officials. Borrell is scathing: "With which authority a commissioner goes to Israel, to say that the EU and Israel love each other, and agree and celebrate the role of Israel on peace and stability, when at the same time the high representative of the EU for foreign policy is banned by Israel?"

The episode is more than diplomatic discourtesy. It signals that the Commission is willing to conduct its own political dialogue with a third country on a core CFSP issue, the Middle East peace process, while the designated EU foreign policy chief is excluded. For Borrell, this is the Commission "overreaching and stepping on the EEAS's toes." The Commission did not respond to a request for comment on the criticism.

Defence commissioner mandate mirrors High Representative's role

The same tension now extends to defence. In 2024 von der Leyen created a defence portfolio and appointed former Lithuanian prime minister Andrius Kubilius as the first Commissioner for Defence and Space. His mission letter tasks him with building a "European Defence Union." Borrell sees a direct collision with the treaty. The Common Security and Defence Policy (CSDP), the EU's framework for crisis management and military missions, falls under the High Representative's authority, assisted by the EEAS and the EU Military Staff.

"In theory, Kubilius is 'only a commissioner for the defense industry,' which is in line with the Commission's powers over policies such as market regulation," Borrell said. "But apparently that's not the case," referring to the European Defence Union mandate. "This is the task that the treaty gives to the high representative." He argues that once an institutional structure for a European Defence Union is built, conflict with the existing CSDP architecture becomes unavoidable. "The system has to be clarified."

A pattern of bypassing the High Representative

Borrell traces the pattern back to 2021, when von der Leyen and then-US president Joe Biden launched the EU-US Trade and Technology Council. The American side was chaired by Secretary of State Antony Blinken. On the EU side, the High Representative was not even a member. "From the US side it was chaired by the Secretary of State. On the side of the European Union, the high representative was not even a member," Borrell recalled. The TTC covers export controls, investment screening, and technology standards, areas with direct security implications, yet the EU's top diplomat was sidelined.

The personal dynamic compounded the structural problem. Borrell, a Socialist, frequently criticised Israel's conduct in Gaza, accusing it of genocide and "carrying out the largest ethnic-cleansing operation since the end of the Second World War." Von der Leyen, a German conservative, was seen as far closer to the Israeli government. "It was not easy, but we tried to manage it," Borrell said of their working relationship. Kallas, his successor since December 2024, has already encountered the same friction: banned by Israel while a commissioner visits days later.

Member states guard their competence jealously

The Commission's expansion is not happening in a vacuum. National capitals, particularly Paris and Berlin, have their own ambitions for a more muscular European foreign and defence policy. In 2024 France and Germany pushed a joint initiative to "make EU foreign policy great, somehow," as one official put it, seeking to strengthen the Council's strategic steer. But they have also resisted any supranationalisation of defence. The European Defence Fund and the Permanent Structured Cooperation (PESCO) remain intergovernmental tools. The Commission's role is limited to industrial policy, research funding, and market integration.

Borrell's intervention reflects a wider unease among member states. If the Commission becomes a parallel diplomatic actor, the Council's unity, already fragile on issues from China to the Middle East, could fracture further. The High Representative's legitimacy derives from the mandate given by the 27. A commissioner answering only to the Commission president has no such mandate on CFSP matters.

Why the distinction matters for EU credibility

How the overlap grew under von der Leyen

What happens next: Kallas, the Council, and a possible clarification

Borrell's parting shot captures the stakes. "The right thing to do is that defence policy is an intergovernmental policy. Because this is reality. The Commission cannot pretend to be a shadow Pentagon." Whether the Commission, the Council, and the EEAS can untangle the overlap without a treaty revision, which no capital wants, will shape the EU's ability to act on the world stage for years to come.