A Deconstruction of the Jurisdiction of the CJEU in CFSP Matters – Enlightenment at the End of the Tunnel?

Abstract

The jurisdiction of the Court of Justice of the European Union (CJEU) in matters that relate to the Common Foreign and Security Policy (CFSP) has been contentious ever since the CJEU`s Opinion 2/13 on the EU’s ECHR draft-accession-agreement. Against the backdrop of the CJEU’s recent case-law, where the CJEU has been ever expanding its jurisdictional reach in CFSP matters and some recent proposals in the wake of renewed efforts for an ECHR-accession the present paper suggests to take another look at the constitutional structures of the CFSP in order to overcome the hurdles set out in Opinion 2/13. The CFSP, as is well known, is a policy field in its own right, structured along intergovernmental lines. Since the responsibility for the implementation of the CFSP`s remains largely with the member states it is little wonder that the CFSP has often been viewed as a policy field with little repercussions for the individual. The involvement of the EU in overseas mission within the context of a Common Defence and Security Policy, nevertheless, seems particularly problematic. This – from the point of view of a possible ECHR accession – is all the more so, as the ECtHR has been expanding its jurisdiction in the context of extraterritorial military missions, whereas the CJEU purportedly still lacks jurisdiction in this field. To overcome this dilemma the paper not only suggests to reassess the very nature of the competences the EU can assume within the CFSP and how this translates into actions attributable to the EU under the ECHR but, moreover, also proposes to think anew about how the CJEU’s jurisdiction can be broadened to matters that relate to but are not a part of the CFSP.