EU Security Policies and the Pillar Structure: A Legal Analysis

Abstract

Politico-institutional factors influence the choice of legal basis provisions and legal basis litigation. This is particularly true in the area of security policies where, due to their cross-pillar or inter-pillar nature, the ‘choice of legal basis' often entails a ‘choice of pillar’. This chapter analyses the legal rules governing the relationships between pillars in the context of security policies, and assesses the impact of politico-institutional factors in this respect. The analysis shows that the pillar structure is liable to widen the margin of discretion that political institutions enjoy as to the choice of legal basis and instruments. The rules on inter-pillar relationships are, in their interpretation and application, subject to a certain degree of flexibility. In some cases, the Council and the member states try to preserve national prerogatives and, therefore, to limit the scope of EC competences and the role of supranational institutions. In others, they resort to flexible interpretations of legal rules for bringing security issues within the first pillar. However, the article points out that the discretion enjoyed by political institutions (especially the Council) is not unlimited. While issues concerning the ‘choice of pillar’ have not emerged so far in the context of Common Foreign Security Policy–Police and Judicial Cooperation in Criminal Matters relationships, the situation is likely to change due to some elements stemming from the SEGI case law. The main limitation, in any case, flows from Article 47 EU. This provision seems to enshrine a prevalence of the first pillar over the others. However, the effectiveness of such constraints depends in the end on the European Court of Justice (ECJ), which, representing a judicial body aware of political concerns, tends to play a well-balanced role.