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

Published date01 July 2016
Date01 July 2016
AuthorChristina Eckes
DOIhttp://doi.org/10.1111/eulj.12183
Common Foreign and Security Policy: The
Consequences of the Courts Extended
Jurisdiction
Christina Eckes*
Abstract: Despite the explicit exclusion of its jurisdiction, the Court of Justice of the
European Union exercises judicial control over Common Foreign and Security Policy
(CFSP). This article examines and explains how the Courts extended jurisdiction
contributes to the juridif‌ication, judicialisation and constitutionalisation of the EUs
compound CFSP structures. It f‌irst lays the groundwork by explaining the link between
constitutionalisation and democratic legitimation and setting outthe Courts formal jurisdic-
tion over CFSP under Article 40 Treaty on European Union and Articles 218(11) and
275(2) Treatyon the Functioning of the EuropeanUnion. The centre pieceof the article then
identif‌ies how the Courts jurisdiction has expanded since the entry into force of the Lisbon
Treaty, points at additional substantiveavenues 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 Unions extended jurisdiction for CFSP.
I Introduction
As is well-known, the Courts 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 conferson 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
Courts jurisdiction over CFSP.
In Opinion 2/13 onthe EUs accession to the European Convention on Human Rights
(ECHR), delivered on 18 December 2014, the Court conf‌ined itself to statingthat f‌irstly,
the Court has not yet had the opportunity to def‌ine the extent to which its jurisdiction is
limited in CFSP matters [],
22
and that secondly, it is suff‌icient to declare that, as EU
law now stands, certain acts adopted in the context of theCFSP fall outside the ambit
* Professor of European Law, Amsterdam 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. 492518.
© 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 Courtsinterpretation,that
(only) certain acts adopted in the context of CFSPare excluded, 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 jurisdiction in the contextof CFSP more narrowly thanthe
Commission. Indeed, the Courts 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
Courts jurisdiction for CFSP. It argues that the CJEU has exercised a form of
constitutional reviewover CFSP that has strengthened the framework conditions for
democratic deliberation. The Courts extended review has not depoliticised CFSP but
rather contributed to its democratic legitimacy.
Section II brief‌ly conceptualises constitutionalisation and links it to democratic
legitimacy. The sectionfurther highlights the relevant particularities of CFSP and the
relevance of the CJEUsjurisdiction over CFSP. Section III introducesthe Courtsformal
jurisdictionover CFSP as it is set out in the European Treaties.Section IV then turns to the
practice. It contextually examines the Courts jurisdiction in the post-Lisbon setting,
considering how recentcase-law and Treaty changes have led to an expansion of the
Courts jurisdiction. Section V identif‌ies two additional rights-based entry pointsfor
judicial review: the right of access to information and access to justice. Both existed
pre-Lisbon, but both haverecently grown in importance. They mayallow for direct
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.
IITerminological Clarif‌ication and Relevance
AConstitutionalisation and Democratic Legitimacy
Extended judicial review by the CJEU over CFSP mayhave different consequences.
Prima facie, it seems to increase the relevance of law in thef‌ield of CFSP, strengthen the
Courts ability to inf‌luence and potentially annul decisions of the national executives
and allow individuals to challenge the EUs foreign policy. To disentangle the potential
consequences of the CJEUs jurisdiction over CFSP, including for its democratic
legitimacy, a distinction should be made between juridif‌ication (proliferation of law),
judicialisation (expansion of judicial power) and constitutionalisation.
Constitutionalisingin 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 between the proliferation of EU law and
constitutionalisation of the European legal sphere. This perspective remains
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, 11481167. For
a critical analysis of different understandings of constitutionalisation: C. Möllers, Pouvoir
Constituant-Constitution-Constitutionalisation,in A. von Bogdandyand J. Bast (eds.), Principlesof European
Constitutional Law (Hart Publishing, 2010), 169204.
European Law JournalVolume 22
©2016JohnWiley&SonsLtd. 493

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