Legal Obstacles to Comprehensive EU External Security Action

Abstract

Despite the unification of the EU legal order, the merger of external action objectives and the creation of hybrid coordination structures, the dichotomy between the CFSP and non-CFSP categories of EU external action has been maintained in the Lisbon Treaty. This article considers the legal implications of this dichotomy in the sphere of EU external security provision. It will be argued that the specificity of CFSP instruments, Member State preferences for a legal basis that provides them with veto power in decision-making procedures, the absence of judicial review from the realm of CFSP, and the two-way 'non-contamination clause' of Article 40 TEU effectively stand in the way of 'mixing' EU foreign policy measures in the field of external security action and thus hinder a comprehensive approach to conflict prevention, crisis management and peacebuilding. New inter-institutional clashes over the choice of the proper legal basis in EU external security action have already been brought before the ECJ. This article argues that, in view of the Lisbon Treaty's merger of EU foreign policy objectives and revised non-contamination clause, the objectives-based 'centre of gravity' approach developed by the Court in its jurisprudence will have to be recalibrated in order to reconcile the quest for the proper legal basis in one of the EU Treaties and the comprehensive approach to EU security provision.