Attacking or Defending? Jurisdiction of the Court of Justice in the EU's Common Foreign and Security Policy

Graham Butler*

*Corresponding author for this work

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The Union’s external competence is fragmented, as are the powers of the institutional bodies involved in external relations. Despite the Union being depillarised after the Treaty of Lisbon coming into force, the ‘specific rules and procedures’ of the Common Foreign and Security Policy (CFSP) remained, and as a policy, is at the forefront of the Union’s external relations on both legal and political levels. The Court of Justice of the European Union (‘the Court’) has been instrumental in the consistent development of the external relations of the EU, yet the Court itself is in a peculiar situation when it comes to CFSP, with an express limitation seen for the Court by the Treaties.

This article seeks to answer the question: to what extent has the Court neglected its Treaty-mandate to shy away from CFSP, and contrastingly, what efforts have the Court made to ensure that the specific characteristics of CFSP are protected? No specific CFSP objectives exist any longer, and instead, a common set of external objectives are identified for the Union as a whole, covering both CFSP and non-CFSP. With the Treaties not being precise on the exact limits of what constitutes CFSP, or the Court’s jurisdiction, it is inevitable that the Court would be placed in a position where it is to rule on its limited remit, and the extent of this perceived boundary within the current Treaties. External relations are an important part of the Court’s work, and cases arise from both preliminary references and direct actions. CFSP cases however, within this grouping of external relations, are a much smaller number, and a number of recent CFSP cases have personified the legal basis dilemma for the Court. The problems arise when the Court is asked to decide whether a particular agreement is ‘principally’ CFSP or not, where it is to rule on the limit of how far CFSP can be stretched. This is the real power that the Court retains, as it can annul the internal legal measures giving effect to international agreements that the Union has concluded.

At the heart of this article is an attempt to find to what extent the Court has both simultaneously confronted and safeguarded the legal nature of CFSP through an ‘attack’ and ‘defend’ model. To begin with, a brief overview is provided of the unique legal nature of CFSP that is central to understanding the Court’s jurisdictional dynamics in this field, given CFSP’s unique legal characteristics laid out in the Treaties. Second, the Court’s exact competences in CFSP are discussed by teasing out the wording of the Treaties and the rationale for these limited arrays of capabilities, given there was once a time when what was permissible under the legal nature CFSP was nearly unlimited, but have been substantially curbed as other non-CFSP external relations competences have been developed and acquired. In the third instance, the approach the Court has taken to CFSP in the case law is analysed given the Court’s competence in the limited circumstances that it is permitted. Fourthly and finally, some conclusions can be drawn on the continuing predicament that the Court finds itself in when dealing with CFSP. These constitutional limits placed on the Court as an institution, and CFSP as a policy, make for an ideal depiction of the challenges faced for the Union’s legal order when the two interact with one another. By proposing an ‘attacking’ and ‘defending’ paradigm using cases from recent years, the Court’s inherent jurisdictional dilemma in CFSP will be exposed.
Original languageEnglish
JournalEuroparättslig Tidskrift
Issue number4
Pages (from-to)671-684
Number of pages14
Publication statusPublished - Dec 2016
Externally publishedYes
EventSwedish Network for European Legal Studies - European Law Days Workshop 2015: Svenska Nätverket för Europarättsforskning - Europarättsdagar 2015 - Umeå University, Umeå, Sweden
Duration: 20. Aug 201521. Aug 2015


WorkshopSwedish Network for European Legal Studies - European Law Days Workshop 2015
LocationUmeå University


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