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

• Published date: 01 July 2016
• Date: 01 July 2016
• Author: Christina Eckes
• 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 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 Court’s extended jurisdiction

contributes to the juridif‌ication, judicialisation and constitutionalisation of the EU’s

compound CFSP structures. It f‌irst lays the groundwork by explaining the link between

constitutionalisation and democratic legitimation and setting outthe Court’s 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 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 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

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 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. 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 context of CFSP’are 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 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 reviewover CFSP that has strengthened the framework conditions for

democratic deliberation. The Court’s 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 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 contextually examines the Court’s jurisdiction in the post-Lisbon setting,

considering how recentcase-law and Treaty changes have led to an expansion of the

Court’s 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

Court’s ability to inf‌luence and potentially annul decisions of the national executives

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

consequences of the CJEU’s 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.

‘Constitutionalising’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 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, 1148–1167. 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), 169–204.

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