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The EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.
This article demonstrates that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU's Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated. The assessment of the CSDP accountability mechanisms—the Court of Justice of the European Union, domestic courts of EU Member States, and other mechanisms at the international level—is conducted in light of the requirements laid down in Article 13 of the European Convention of Human Rights. The consequences of the insufficiency of these mechanisms for the EU's accession to the ECHR are also touched upon.
EU Opinion 2/13 on the accession of the EU to the ECHR was a landmark decision of the Court of Justice of the EU both for fundamental rights protection in the EU and the autonomy of the EU legal order. The present article argues that two approaches would have been possible, following either a discursive or an exclusive understanding of autonomy. As a thorough discussion of the Opinion shows, the Court chose the latter pathway, with detrimental consequences for the foreseeable future.
European Union – Common Foreign and Security Policy – Changes with the abolition of the pillar structure by the Lisbon Treaty – Common Security and Defence Policy – Executive order of the EU – Between supranationalism and intergovernmentalism – The role of the High Representative – Joint political leadership – The European External Action Service as an administrative infrastructure – Constitutionalisation of foreign affairs
Institutional and normative convergence – Common Foreign and Security
Policy – Pillar Structure – External Relations –
Role of the Court – Normative Consistency – EU Legal Order
– Legal Nature CFSP – Treaty of Lisbon – Legal
Instruments – Decision-Making
Second pillar v. first pillar – From Union to Community powers and vice versa – Court's jurisdiction under different headings – Jurisdiction after Lisbon – Choice of legal bases in cross-pillar situations – Dual competence? – Different combinations
UN human rights binding on states; binding on UN organs? – Sanctions mechanism as implemented in EU – Kadi and others – Ruling Court of First Instance – Relation between UN law and EC law – Human rights obligations – Exception, political question, etc. – Solange – Monism and dualism – Questions remain
The 1999 Kosovo crisis has forced the European Union to finally give concrete form to its ambitions in the sphere of the common foreign and security policy. At a time when agreement on defence issues seems out of reach, the member states' focus is on the development of a crisis management capability. It is argued that when the Union's diplomatic structures are complemented with military and civilian crisis response tools, much needed balance will be given to the Union's persona as an economic giant and a political dwarf. The article includes a number of measures which should be taken with a view to reinforcing and extending the Union's external role in this field.
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