Abstract
The article provides an analysis of the case law of the Court of Justice of the European Union on the interpretation of Articles 24 TEU, first paragraph, second subparagraph, and 275 TFEU governing the question of the Court’s jurisdiction in the field of the Common Foreign and Security Policy (CFSP). The article first describes the background of those provisions as they resulted from the Convention on the Future of Europe and the 2003-4 and 2007 Intergovernmental Conferences and then compares the Court’s understanding of its jurisdiction to the drafting history of the provisions concerned. The main conclusion of the study of the case law suggests that the Court views its jurisdiction over the CFSP more broadly than the jurisdiction envisaged by the drafters of the Treaties. In particular, the Court both interprets the exclusion from its jurisdiction of acts based on the Treaty’s CFSP provisions in a narrow fashion and is prepared to review the legality of CFSP acts not only through direct actions but also through references for a preliminary ruling. However, the article argues that the provision of adequate legal protection in the field of the CFSP necessarily requires both the Court of Justice and domestic courts of the Member States to play their respective roles.
Highlights
When setting up the initial treaty-architecture for the European Union’s Common Foreign and Security Policy, the drafters of the Maastricht Treaty created a structure of governance that included virtually no mechanisms of judicial control by the Court of Justice of the European Union: Article of the Treaty on European Union categorically excluded the CFSP from the Court’s jurisdiction, the sole exception being the control of the application of Article TEU
The basis for the above change of paradigm – from the categorical exclusion at Maastricht to the incremental development post-Lisbon – was laid down by the drafters of the Treaties at the Convention on the Future of Europe and the 2003 and 2007 Intergovernmental Conferences: the result is enshrined in the final sentence of the second subparagraph of paragraph 1 of Article 24 TEU and Article 275 TFEU that provide, respectively, as follows: Article 24, paragraph 1, second subparagraph, TEU: The common foreign and security policy is subject to specific rules and procedures
The combined reading of Article 24 TEU, paragraph 1, second subparagraph, and the second paragraph of Article 275 TFEU excludes the jurisdiction of the Court of Justice with respect of ‘the provisions relating to the common foreign and security policy’ as well as with respect to ‘acts adopted on the basis of those provisions’
Summary
When setting up the initial treaty-architecture for the European Union’s Common Foreign and Security Policy (hereafter ‘CFSP’), the drafters of the Maastricht Treaty created a structure of governance that included virtually no mechanisms of judicial control by the Court of Justice of the European Union (hereafter ‘CJEU’): Article of the Treaty on European Union (hereafter ‘TEU’) categorically excluded the CFSP from the Court’s jurisdiction, the sole exception being the control of the application of Article TEU. The basis for the above change of paradigm – from the categorical exclusion at Maastricht to the incremental development post-Lisbon – was laid down by the drafters of the Treaties at the Convention on the Future of Europe and the 2003 and 2007 Intergovernmental Conferences: the result is enshrined in the final sentence of the second subparagraph of paragraph 1 of Article 24 TEU and Article 275 TFEU that provide, respectively, as follows: Article 24, paragraph 1, second subparagraph, TEU: The common foreign and security policy is subject to specific rules and procedures It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. This is followed by an analysis of the second paragraph of Article 275 TFEU whereby the Court’s jurisdiction within the CFSP is again re-established (Section 3). an overall assessment will be made of the case law (Section 4).
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