Common Foreign and Security Policy: The Consequences of the Court's Extended Jurisdiction

• Published date: 01 July 2016
• Date: 01 July 2016
• DOI: http://doi.org/10.1111/eulj.12183

Common Foreign and Security Policy: The

Consequences of the Court’s Extended

Jurisdiction

Christina Eckes*

Abstract: Despite the expl icit exclusion of its jurisdi ction, the Court of Justice of the

European Union exercise s judicial control over C ommon Foreign and Securi ty Policy

(CFSP). This article exam ines and explains how the Cou rt’s extended jurisdict ion

contributes to the jurid if‌ication, judicialisat ion and constitutionalisa tion of the EU’s

compound CFSP structure s. It f‌irst lays the groundwor k by explaining the link be tween

constitutionalisation and democratic legitimation and setting outthe Court’s formal jurisdic-

tion over CFSP under Article 40 Tre aty on European Union and Articl es 218(11) and

275(2) Treatyon the Functioning of the EuropeanUnion. The centre pieceof the article then

identif‌ies how the Court’s jurisdiction has expanded since the entry into force of the Lisbon

Treaty, points at additional ‘substantive’avenues of judicial review on the basis of access

to information and access to justice, and analyses the effects of the Court of Justice of the

European Union’s extended jurisdiction for CFSP.

I Introduction

As is well-known, the Court’s jurisdiction over the Common Foreign and Security Policy

(CFSP) is excluded by Article 24(1)2 Treaty on EU (TEU) and Article 275(1) Treaty on

the Functioning of the EU (TFEU). These provisions ‘introduce a derogation from the

rule of the general jurisdiction which Article 19 TEU confers on the Court to ensure that

in the interpretation and application of the Treaties the law is observed, and they must,

therefore,be interpreted narrowly’.

11

This paper examines the exceptionsto the exception,

i.e. where the EU Courts nonetheless exercise jurisdiction, and the consequences of the

Court’s jurisdiction over CFSP.

In Opinion 2/13 onthe EU’s accession to the European Convention on Human Rights

(ECHR), delivered on 18 December 2014, the Court conf‌ined itself to stating that f‌irstly,

‘the Court has not yet had the opportunity to def‌ine the extent to which its jurisdiction is

limited in CFSP matters […]’,

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and that secondly, ‘it is suff‌icient to declare that, as EU

law now stands, certain acts adopted in the context of the CFSP fall outside the ambit

* Professor of European Law, Amsterda m Centre for European Law and Governance , University of

Amsterdam. I would like to thank Nik de Boer, Marija Bartl, the participants of the ARENA seminar in

Oslo on 3 February 2015, the members of the project The Architecture of Postnational Rulemaking at the

University of Amsterdam, as well as the anonymous reviewersand the editor of the European Law Journal

for their helpful comments on earli er drafts. I am further grateful for the generous funding of the Dutch

Science Foundation (NWO).All remaining errors are ofcourse my own.

1

Case C-658/11, Parliament v. Council (Piracy Agreement), ECLI:EU:C:2014:2025,para. 70.

2

Opinion 2/13EU Accession to the ECHR,ECLI:EU:C:2014:2454,para. 251 [emphasis added].

European LawJournal, Vol. 22, No. 4, July 2016, pp. 492–518.

© 2016 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK

and 350 Main Street, Malden,MA 02148, USA

of judicial review by the Court of Justice’.

3

In particular, the Court’sinterpretation,that

(only) ‘certain acts adopted in the co ntext of CFSP’are exclude d, is an invitation to

speculate under which circumstances the Court would exercise jurisdiction over CFSP.

In Opinion 2/13itself, the Court exercisedjurisdiction over the draft accession agreement,

which also covers matters of CFSP, without expressing any hesitation. However, it then

interpreted its own juri sdiction in the context of CFSP more narrowly than the

Commission. Indeed, the Court’s limited jurisdiction over CFSP was one of the reasons

why the Court found the draft agreement contrary to EU law.

This paper addresses two interrelated questions. Firstly, it examines whether and how

the jurisdiction of the CJEU has expanded beyond its prima facie limits in the Treaties.

Secondly, after identifying such expansions, the paper addresses the consequences of the

Court’s jurisdiction for CFSP. It argues that the CJEU has exercised a form of

constitutional review over CFSP that has s trengthened the frame work conditions for

democratic deliberation. The Court’s extended review has not depoliticise d CFSP but

rather contributed to its democratic legitimacy.

Section II brief‌ly conceptual ises constitutional isation and links it to demo cratic

legitimacy. The section further highlights th e relevant particulari ties of CFSP and the

relevance of the CJEU’sjurisdiction over CFSP. Section III introducesthe Court’sformal

jurisdictionover CFSP as it is set out in the European Treaties.Section IV then turns to the

practice. It contextua lly examines the Court’s j urisdiction in the post -Lisbon setting,

considering how recent case-law and Trea ty changes have led to an e xpansion of the

Court’s jurisdiction. Section V identif‌ies two additional righ ts-based entry points for

judicial review: the rig ht of access to informatio n and access to justice. B oth existed

pre-Lisbon, but both have recently gr own in importance. They may allow for dir ect

actions, preliminary rulings and action for damages (Articles 263, 267 and 340 TFEU).

Section VI ref‌lects on the consequences of the extended judicial review of the CJEU for

the constitutionalisation and democratic legitimacy of CFSP.

II Terminological Clarif‌ication and Relevance

A Constitutionalisation and Democratic Legitimacy

Extended judicial revi ew by the CJEU over CFSP may have differen t consequences.

Prima facie, it seems to increase the relevance of law in the f‌ield of CFSP, strengthen the

Court’s ability to inf‌luence and potent ially annul decision s of the national execut ives

and allow individuals to challenge the EU’s foreign policy. To disentangle the potential

consequences of the CJEU’s jurisdiction over CFSP, inclu ding for its democratic

legitimacy, a distinction should be made between juridif‌ication (proliferation of law),

judicialisation (expansion of judicial power) and constitutionalisation.

‘Constitutionalisin g’in the EU context regularly refers to developing and applying

common EU norms and principles. It essentially equates constitutionalisation with EU

legal integration

4

and makes no distinction b etween the proliferat ion of EU law and

constitutionalisat ion of the European legal sphere . This perspective remain s

3

Ibid, para.252 [emphasis added].

4

B. Rittbergerand F. Schimmelfennig speakof a, ‘Deepening of European LegalIntegration’,‘Explainingthe

Constitutionalizationof the European Union’,(2006)13Journal of EuropeanPublic Policy, 1148–1167. For

a critical analysis of different unders tandings of constitutionalis ation: C. Möllers, ‘Pouvoir

Constituant-Constitution-Constitutionalisation’,in A. von Bogdandyand J. Bast (eds.), Principlesof European

Constitutional Law (Hart Publishing, 2010), 169–204.

European Law Journal Volume 22

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