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

Published date01 July 2016
Date01 July 2016
Common Foreign and Security Policy: The
Consequences of the Courts Extended
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 rts extended jurisdict ion
contributes to the jurid if‌ication, judicialisat ion and constitutionalisa tion of the EUs
compound CFSP structure s. It f‌irst lays the groundwor k by explaining the link be tween
constitutionalisation and democratic legitimation and setting outthe Courts 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 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 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.
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 stating that f‌irstly,
the Court has not yet had the opportunity to def‌ine the extent to which its jurisdiction is
limited in CFSP matters [],
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.
Case C-658/11, Parliament v. Council (Piracy Agreement), ECLI:EU:C:2014:2025,para. 70.
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.
In particular, the Courtsinterpretation,that
(only) certain acts adopted in the co ntext of CFSPare 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 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 review over CFSP that has s trengthened the frame work conditions for
democratic deliberation. The Courts 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 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 contextua lly examines the Courts j urisdiction in the post -Lisbon setting,
considering how recent case-law and Trea ty changes have led to an e xpansion of the
Courts 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
Courts ability to inf‌luence and potent ially annul decision s of the national execut ives
and allow individuals to challenge the EUs foreign policy. To disentangle the potential
consequences of the CJEUs 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 gin the EU context regularly refers to developing and applying
common EU norms and principles. It essentially equates constitutionalisation with EU
legal integration
and makes no distinction b etween the proliferat ion of EU law and
constitutionalisat ion of the European legal sphere . This perspective remain s
Ibid, para.252 [emphasis added].
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 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), 169204.
European Law Journal Volume 22
©2016JohnWiley&SonsLtd. 493

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