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The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy*

Published online by Cambridge University Press:  17 January 2008

Maria-Gisella Garbagnati Ketvel
Maria-Gisella Garbagnati Ketvel
Affiliation:
Laurea in Scienze Politiche (Catholic University of Milan); MSc European Studies (London School of Economics); Doctor of Laws (University of Trieste); Visiting Fellow, BIICL.
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Extract

The purpose of this article is to consider the scope of the jurisdiction of the European Court of Justice in the field of the Common Foreign and Security Policy, as set out in the Treaty on European Union. Pursuant to Article 46 TEU, the ECJ has virtually no competence over foreign policy and security matters—although some limited scope for judicial supervision may be derived from the combined effect of this provision with Article 47 TEU, which prevents encroachment by EU law on Community competence, with respect both to reviewing the choice of legal basis and to determining any violations of EC policy-making procedures. It is submitted that the absence of judicial control over the exercise of powers by the Union and its Member States in this area of potentially sensitive action does not guarantee the preservation of the institutional balance established by the EU Treaty. It may also prove incompatible for individuals to have a legal remedy in the event of a breach of directly effective CFSP provisions.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 55 , Issue 1 , January 2006 , pp. 77 - 120
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union, Luxembourg May 1995, para 4.

2 Under Art 68 EC, the jurisdiction of the Court to rule on disputes and questions of interpretation relating to Title IV of the EC Treaty is subject to certain restrictions: only courts of last resort are required to seek a preliminary ruling (para 1); jurisdiction is excluded in case of measures connected with the removal of controls on persons on grounds of public order or internal security (para 2); and the interpretative rulings given by the Court in response to a request made by the Council, the Commission or a Member State shall be binding for any new cases or matters pending, but not affect judgments of national courts which have become res judicata (para 3). Art 68 has been of very limited use so far; see Case C-555/03, order of 10 June 2004, Warbecq (not yet reported), where the Court found that it had no jurisdiction to answer the questions referred by a national court against whose decisions there is no judicial remedy under national law (paras 11–16).

3 Art 35 TEU makes provision for the Court's jurisdiction to judge actions for annulment brought by the Member States or the Commission (para 6); to rule on disputes between Member States, and between Member States and the Commission (para 7); and to give preliminary rulings in relation to a range of measures adopted under Title VI of the EU Treaty, provided that the Member States have declared that they accept the involvement of the Court (paras 1–2). Upon acceptance, Member States retain the power to declare whether they intend to restrict the power to make preliminary references to courts against whose decisions there is no judicial remedy (para 3). In any event, the Court is prevented from reviewing the validity or proportionality of national police operations or national measures concerned with the maintenance of law and order and the safeguarding of internal security (para 5). Art 35 has already been invoked on a few occasions, see Joined Cases C-187/01 and C-385/01, Grözütok and Brügge [2003] ECR I-1345; Case C-105/03, judgment of 16 June 2005, Pupino (not yet reported) and Case C-176/03, judgment of 13 Sept 2005, Commission v Council (not yet reported).

4 Order of 7 Apr 1995, Case C-167/94 [1995] ECR I-1023, para 6.

5 Tizzano, A ‘Il ruolo della Corte della Corte di giustizia nella prospettiva dell'Unione europea’ (1994) LXXVII RDI 922, at 926 andGoogle ScholarPetit, Y ‘Commentaire à l'art L’ in V Constantinesco, R Kovar, D Simon Traité sur l'Union européenne. Commentaire article par article (Economica Paris 1995) 803, at 804.Google Scholar

6 Case 43/75, Defrenne [1976] ECR 455.

7 Case C-473/93, Commission v Luxembourg [1996] ECR I-3207, para 35.

8 Judgments of 21 Sept 2005, Case T-306/01, Yusuf and Al Barakaat and Case T-315/01, Kadi (not yet reported), para 164 of the former. See also below.

9 As M Koskenniemi explains, ‘[i]t is conventional to think of foreign and security policy as a realm of sovereign wills and national interests par excellence. If law should play a role in it, it is only as an instrument for the expression and realization of those wills and interests…providing a language and institutional arrangements that sometimes facilitate the attainment of consensus. … But in the realm of vital interests, national security, peace and war, rules cannot constrain’ (‘International Law Aspects of the Common Foreign and Security Policy’ in M Koskenniemi (ed) International Law Aspects of the European Union (Nijhoff The Hague 1998) 27, at 27–8.

10 See Collins, L ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485 andCrossRefGoogle ScholarFranck, TPolitical Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Affairs? (Princeton University Press Princeton 1992).Google Scholar

11 Denza, EThe Intergovernmental Pillars of the European Union (OUP Oxford 2002) at 312.CrossRefGoogle Scholar

12 Neuwahl, N ‘Foreign and Security Policy and the Implementation of the Requirement of ‘Consistency’ Under the Treaty on European Union’ in O'Keeffe, D and Twomey, P (eds) Legal Issues of the Maastricht Treaty (Chancery Law London 1994) 227, at 244.Google Scholar

13 Cremona, M points out, however, that in the external policy field ‘legal integration has been a legislative more than a judicial process’ (with the notable exception of the development by the Court of the doctrine of implied powers) ‘The Union as a Global Actor. Roles, Models and Identity’ (2004) 41 CML Rev 553, at 571.Google Scholar

14 Opinion of 6 Apr 1995, Case C-120/94, Commission v Hellenic Republic [1996] ECR I-1513. For an extensive assessment, C Stefanou and H Xanthaki A Legal and Political Interpretation of Articles 224 and 225 of the Treaty of Rome—The Former Yugoslav Republic of Macedonia Cases (Dartmouth and Ashgate Aldershot 1997). See also Fornasier, R ‘Quelques réflexions sur les sanctions internationales en droit communautaire’ (1996) 402 RMC, 670.Google Scholar

15 On the ‘wholly exceptional’ nature of this provision (Case C-222/84, Johnston [1986] ECR 1651, para 26) which goes beyond the public security provisio laid down by the other exceptional clauses in the EC Treaty, see P Koutrakos ‘Is Article 297 EC a ‘Reserve of Sovereignty’?’ (2000) 37 CML Rev 1339.

16 Eeckhout, PExternal Relations of the European Union (OUP Oxford 2004) at 452.Google Scholar

17 Similarly, the Advocate-General argued that there was an important political dimension to the conclusion and termination of international agreements, which did not lend itself readily to judicial review (Case C-162/96 Racke [1998] ECR I-3655, paras 76–90).

18 Order of 19 Mar 1996 [1996] ECR I-3040.

19 For example, in Commission v Portugal, the Court dismissed the argument that to require the denunciation of an international agreement by a Member State would involve a disproportionate disregard of the foreign policy interests of the latter, pointing out that such interests cannot override the obligation of a Member State to remove any incompatibilities with Community law. According to the Court, Art 307 EC already incorporates the balance between Member State and Community interest, as it allows the Member States not to apply a Community provision in order to respect the rights of third countries deriving from a prior agreement and to perform their obligations thereunder, while choosing the appropriate means of rendering it compatible with Community law (Case C-62/98 [2000] ECR I-5171, paras 44–50).

20 For a detailed analysis, see Koutrakos, PTrade, Foreign Policy & Defence in EU Constitutional Law (Hart Publishing Oxford 2001) esp. at 131–63.Google Scholar

21 Louis, V and Dony, M (eds) ‘Relations extérieures’ in Commentaire Megret (Editions de l'ULB Bruxelles 2005) at 503; Denza (n 11) 311; Koskenniemi (n 9) 30; I Macleod, ID Hendry and S Hyett The External Relations of the European Communities (Clarendon Press Oxford 1996) at 424; MR Eaton ‘Common Foreign and Security Policy’ in D O'Keeffe and P Twomey (n 12) 215, at 222.Google Scholar

22 Denza (n 11) 322.

23 Case T-174/95 [1998] ECR II-2289.

24 Council Decision 93/731/EC of 20 Dec 1993 (OJ 1993 L 340/43).

25 Para 85. The jurisdiction of the CFI to adjudicate on access to documents falling under Title VI had not been contested on a previous occasion (Case T-194/94, Carvel and Guardian Newspapers [1995] ECR II-2765).

26 Case T-14/98, Hautala v Council [1999] ECR II-2489, paras 41–2.

27 There exist, however, a few differences between the Second and Third Pillars of the EU. Foreign and security policy are common to the EU and its Member States, while there is police and judicial cooperation in criminal matters among Member States. There are also a number of notable exceptions to the purely ‘intergovernmental method’, such as Arts 23, 34, and 35 TEU. Finally, the EC Treaty itself contemplates a great variety of institutional procedures, depending on the policy-making area, all of which may be labelled as ‘Community method’.

28 Dashwood, A ‘The Relationship between the Member States and the European Community/European Union’ (2004) 41 CML Rev 335, at 365.Google Scholar

29 In the words of Jacobs AG, ‘[m]any measures of commercial policy may have a more general foreign or security policy dimension. When for example the Community concludes a trade agreement with Russia, it is obvious that that agreement cannot be dissociated from the broader political context of the relations between the European Union, its Member States, and Russia’ (Case C-124/95 Centro-Com [1997] ECR I-81, para 41).

30 These include development cooperation, environmental policy and the visa, asylum, and immigration policies.

31 Case C-124/95 (n 29) para 25.

32 Council Regulation (EC) 3381/94 of 19 Dec 1994 (OJ 1994 L 367/1).

33 Joint Action 94/942/CFSP of 19 Dec 1994 (OJ 1994 L 367/8).

34 Case C-367/89, Aimé Richardt [1991] ECR I-4621, see I Govaere and P Eeckhout ‘On Dual Use Goods and Dualist Case Law: The Aimé Richardt Judgment on Export Controls’ (1992) 29 CML Rev 941.

35 Case C-70/94, Werner and Case C-83/94, Leifer [1995] ECR I-3189 and I-3231, respectively. For a comment, see N Emiliou ‘Restrictions on Stategic Exports, Dual-Use Goods and the Common Commercial Policy’ (1997) 22 ELR 68, at 74 and P Koutrakos ‘Exports of Dual-Use Goods Under the Law of the European Union’ (1998) 23 ELR 235, at 237.

36 Council Decision 2000/9429/CFSP of 22 June 2000 (OJ 2000 L 159/218) repealing Joint Action 94/942/CFSP of 19 Dec 1994, and Council Regulation (EC) 1334/2000 of 22 June 2000 (OJ 2000 L 159/1). For a recent study, see B Weidel ‘The Community Export Control System for Dual Use Goods—A Story of Reconquering Lost Ground?’ in S Griller and B Weidel (eds) External Economic Relations and Foreign Policy in the European Union (Springer Wien New York 2002) 419.

37 A distinction has been drawn in literature between ‘horizontal’ consistency, ie between the EC external relations and the CFSP (Art 3 TEU) and ‘vertical’ consistency, ie between the Union and its Member States (Art 13 (3) TEU), see Krenzler, HG and Schneider, HC ‘The Question of Consistency’ in Regelsberger, E, De Schouteete, P, and Wessels, W (eds) Foreign Policy of the European Union: From EPC to CFSP and Beyond (Boulder 1997) 133, at 133 and Neuwahl (n 12) 235. Also, it has been noted that ‘consistency’ (as in the English version of the EU Treaty) indicates absence of contradictions, while ‘coherence’ (as in many other language versions) refers to positive connections. Clearly, the two terms have different meanings, since ‘concepts of law can be more or less coherent, but they cannot be more or less consistent—they are either consistent or not’ (C Tietje ‘The Concept of Coherence in the Treaty on European Union and the Common Foreign and Security Policy’ (1997) 2 EFAR 211, at 212–13), but both are essential to the development of an integrated external policyGoogle ScholarCremona, M ‘External Relations and External Competence’ in Craig, P and de Búrca, G (eds) The Evolution of EU Law (OUP Oxford 1999) at 169.Google Scholar

38 According to some authors, the requirement of consistency in Art 3 TEU is linked to the principle of loyal cooperation in Art 10 EC—which prevents action being taken outside the Community framework when this would harm the development of the Community—in a way that would make it binding for the Community, see RA Wessel ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1135, at 1150 and Cremona (n 37) 170.

39 Case T-306/01 and Case T-315/01 (n 8).

40 See also Art 29 TEU, which states that Police and Judicial Cooperation in Criminal Matters shall be carried out ‘without prejudice to the powers of the European Community’.

41 In this respect, Art 47 constitutes a subordination clause in the sense of the 1969 Vienna Convention on the Law of Treaties, which states that ‘[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail’ (Art 30(2).

42 Y Petit ‘Commentaire à l'article M' in Constantinesco et al (n 5) 871, at 872.

43 Since the EU Treaty does not offer any definition of what actually constitutes the acquis communautaire, the substance of the notion is rather difficult to ascertain. The traditional concept of acquis has been developed in the context of the successive accessions to the Community: new Member States must adhere to the EC founding treaties, to international agreements concluded by the Community and to Conventions stipulated under Art 293 EC, to secondary legislation and to other acts of the institutions, including measures whose legal status is unclear (eg the acts of the representatives of the Member States and other measures generally referred to as ‘soft law’: see Gialdino, C Curti ‘Some Reflections on the Acquis Communautaire’ (1995) 32 CML Rev 1089, at 1089). It extends besided to the case law of the ECJ and to the general principles of Community law.Google ScholarFor a comprehensive assessment, Weatherhill, S ‘Safeguarding the acquis communautaire’ in Heukels, T, Blokker, N, and Brus, M (eds) The European Union after Amsterdam. A Legal Analysis (Kluwer The Hague 1998) 153.Google Scholar

44 It has been noted that the principle of consistency and the requirement to safeguard the integrity of the acquis communautaire are only partially targeted to the same aspects of policy-making: whereas the former aims at ensuring material consistency (ie conformity of the substance or content of EU action), the latter may impose an automatic choice for a certain set of legal instruments—and thus extends to procedural aspects, as the choice of legal basis determines which procedures are to be followed. Once this choice has been made, consistency comes into play for the specific content of the measure, B Weidel ‘Regulation or Common Position—The Impact of the Pillar Construction on the Union's External Policy’ in Griller and Weidel (n 36) 23, at 35–6.

45 See Dashwood, A (ed) Reviewing Maastricht. Issues for the 1996 IGC (LBE Cambridge 1996) at 218; Macleod et al (n 21) 414; M Cremona ‘The Common Foreign and Security Policy of the European Union and the External Relations Power of the European Community’ in D O'Keeffe and P Twomey (n 12) 247, at 256;Google ScholarWeiler, JHH ‘Neither Unity Nor Three Pillars—The Trinity Structure of the Treaty on European Union’ in Monar, J, Ungerer, W and Wessels, W (eds) The Maastricht Treaty on European Union (European Interuniversity Press 1993) 49, at 53.Google Scholar

46 Opinion of 5 Feb 1998, paras 8–16.

47 Case C-170/96, Commission v Council [1998] ECR I-2763, paras 15–16.

48 Case C-176/03 (n 3) para 39.

49 Cases T-349/99 and T-350/99.

50 Council Decision 1999/612/CFSP of 13 Sept 1999, amending Council Decision 1999/424/CFSP, implementing Council Common Position 1999/318/CFSP concerning additional restrictive measures against the FRY (OJ 1999 L 242/32).

51 Case C-9105, pending.

52 2004/833/CFSP of 2 Dec 2004 (OJ 2004 L 359/65).

53 2002/589/CFSP of 12 July 2002 (OJ 2002 L 191/1).

54 Council Joint Action 96/197/JHA of 4 Mar 1996 (OJ 1996 L 63/8).

55 In the field of harmonization of visa policy, the Council had previously adopted Regulation (EC) 2317/95/EC of 25 Sept 1995 (OJ 1995 L 234/1) but airport transit visas had been left outside the scope of the legislation, which was subsequently annulled by the Court (Case C-392/95, Parliament v Council [1997] ECR I-3213). Since the entry into force of the Amsterdam Treaty, the visa, asylum and immigration policies have been dealt with in the framework of the EC Treaty, and are thus fully within the competence of the Community—but for the exceptions as regards the role of the Court pursuant to Art 68 EC.

56 Baratta, R ‘Overlaps between European Community Competence and European Union Foreign Policy Activity’ in Cannizzaro, E (ed) The European Union as an Actor in International Relations (Kluwer The Hague 2002) 51, at 58–9.Google Scholar

57 As was recently confirmed by the successful challenge brought by the Commission against the Council in Case C-176/03 (n 3). The Commission had argued that both the the purpose and content of Framework Decision 2003/80/JHA of 27 Jan 2003 on the protection of the environment through criminal law (OJ 2003 L 29/55) were in fact clearly a matter of EC competence. Although, as a general rule, neither criminal law nor the rules of criminal procedure fall within the competence of the Community, the latter is not prevented from taking measures which relate to the criminal law of the Member States, when it considers that the application of effective, proportionate and dissuasive criminal penalties by the national authorities is an essential measure for combating serious environmental offences. Since the contested provisions of the decision had as their main purpose the protection of the environment, the Court found that they could have been properly adopted on the legal basis of Art 175 EC. Therefore, the contested decision encroached on the powers conferred upon the Community and was annulled for being in breach of Art 47 TEU.

58 Case 314/85 [1987] ECR 4199.

59 See DM Curtin and IG Dekker ‘The EU as a ‘Layered’ International Organization: Institutional Unity in Disguise’ in Craig and de Búrca (n 37) 83, at 123.

60 Case T-333/02, Gestoras pro Amnistía and Case T-338/02, Segi orders of 7 June 2004 (not yet reported), paras 41–2 of the latter.

61 Eeckhout (n 16) 150 notes that such an approach to the relationship between Community and Union powers seems different from that taken by the Court in respect of the relationship between Community and Member States’ powers. Indeed, in Bangladesh (Joint Cases C-181/91 and C-248/91, Parliament v Council and Commission [1993] ECR I-365) the Court first established that the Community competence was concurrent, and then accepted that Member States could act, even in common, as long as the Community had not.

62 Weatherhill (n 43) 159–60. According to Eeckhout (n 16) 151, where the EC Treaty confers upon the Community powers for a specific form of foreign policy such as commercial policy and development cooperation, those powers take precedence, as lex specialis. Weidel (n 44) 49 lays out a different model, whereby matters falling into concurrent EC competence can be dealt with by EU law, as long as the Community has not enacted specific rules or occupied the field, whereas in the case of parallel or complementary competences, the decision-makers are free to make use of CFSP or PJCCM instruments, provided that EU law is compatible with EC law.

63 B Martenczuk ‘Cooperation with Developing Countries: Elements of a Community Foreign Policy’ in Griller and Weidel (n 36) 385, at 412.

64 Neuwahl (n 12) 246.

65 eg Council Joint Action 96/688/CFSP of 22 Nov 1996 (OJ 1996 L 309/7)—which sought to strengthen the anti Helms-Burton legislation adopted by the Community (Council Regulation (EC) 2271/96 of 22 Nov 1996, OJ 1996 L 309/1) following the adoption by the US of sanctions measures against Cuba, Iran and Libya—had a dual legal basis under Arts 15 and 34 TEU. The two Council Common Positions of 27 Dec 2001 relating to the fight against terrorism (2001/930/CFSP and 2001/931/CFSP, OJ 2001 L 344, at 90 and 93 respectively) also contained objectives and priorities for action by the Union in both the Second and the Third Pillar. The First Pillar aspects of the anti-terrorist legislation, however, were implemented by Council Regulation (EC) 2580/2001 of 27 Dec 2001 (OJ 2001 L 344/70). See L Benoit ‘La lutte contre le terrorisme dans le cadre du deuxième pilier: un nouveaux volet des relations extérieures de l'Union européenne’ (2002) Rev Droit Un eur 283, at 302. According to Wessel (n 38) 1148, any issues of delimitation or supremacy between the Second and the Third pillar in case of conflicting provisions would have to be solved by applying the rule that lex specialis derogat lege generali: the scope of CFSP would be limited by the activities conducted in the field of PJCCM, regardless of their potential ‘foreign policy’ nature.

66 Wessel (n 38) 1148–9 is in favour of such a possibility. Contra CWA Timmermans ‘The Uneasy Relationship between the Communities and the Second Pillar: back to the ‘Plan Fouchet’?’ (1996) 1 LIEI 61–70, at 69.

67 The procedure set out in this provision applies equally to the negotiation and conclusion of international agreements with third countries in the field of PJCCM (Art 38 TEU).

68 Opinion 2/00 [2001] ECR I-9713, paras 22–3; Case C-281/01, Commission v Council (Energy Star) [2002] ECR I-12049, para 39.

69 Opinion 1/78 [1979] ECR 2871, para 56.

70 Opinion 1/94 [1994] ECR I-5267 and Case 25/94, Commission v Council [1996] ECR I-1469.

71 The Commission noted that the application of the ratification procedure under Arts 24 and 38 to those parts of the agreement falling under Community competence would be in clear violation of EC Treaty provisions. Also, the EC-Treaty based part of a single cross-pillar agreement would require the opinion or the assent of the European Parliament, which would be contrary to the EU Treaty. As for the Court of Justice, not only was there a risk of its limited jurisdiction over the Third Pillar being extended to First Pillar issues, but a declaration of invalidity or a ruling on interpretation could affect the Third Pillar aspects of the agreement. Finally, whereas a classical mixed agreement combines matters of Community and Member State competence into a single agreement, a cross-pillar agreement confronts two treaties, each with their specific attribution of powers to the institutions (or lack thereof): this kind of mixity might lead to an adaptation of the allocation of powers of the institutions which would be in clear contravention of the EC Treaty. The document containing the statement by the Commission (Doc 9110/02 of 25 June 2002) has not been published, but a copy of the statement was made available to members of the European Convention Working Group on Legal Personality at their meeting of 26 June 2002.

72 See the minutes of the General Affairs Council held in Luxembourg on 17 June 2002 (Doc 10062/02 of 8 Oct 2002).

73 As reported by JP Kuijper in his intervention before the Working Group on Legal Personality on 26 June 2002 (Working Document No 3 of 3 July 2002. All the documents of the Convention are available on <http://european-convention.eu.int>).

74 Macleod et al (n 21) 416. See also Wessel (n 38) 1156.

75 Council Common Position 94/779/CFSP of 28 Nov 1994 on the objectives and priorities of the Union towards Ukraine (OJ 1994 L 313/1) and Council Common Position 94/697 of 24 Oct 1994 on Rwanda (OJ 1994 L 283/1).

76 As opposed to such a reference being inserted in the preamble, as suggested by Timmermans (n 66) 63.

77 Doc 5194/95 of 6 Mar 1995. The document has not been published, but access may be obtained from the Council Secretariat.

78 Wessel (n 38) 1159; Macleod et al (n 21) 355; Weiadel (n 44) 28, n 13.

79 Report to the 1996 IGC on the Operation of the Treaty on European Union, 10 May 1995, para 168.

80 Neuwahl (n 12) 245.

81 N Angelet ‘La mise en œuvre des mesures coercitives des Nations Unies dans la Communauté européenne’ (1993) RBDI 500, at 519 and P Gilsdorf ‘Les réserves de sécurité du Traité CEE à la lumière du Traité sur l'Union européenne’ (1994) RMC 17, at 22 (with respect, however, to the pre-Maastricht situation and the European Political Cooperation).

82 Case T-306/01 (n 8) paras 160–1.

83 Wessel (n 38) 1159 and Timmermans (n 66) 68.

84 Denza (n 11) 291. See also the Presidency's Progress Report on the Implementation of the Common Strategy and the Presidency's Work Plan, submitted to the Helsinki European Council, Press Release No 13860/99.

85 C Spencer ‘The EU and Common Strategies: The Revealing Case of the Mediterranean’ (2001) 6 EFAR 31, at 36.

86 For example, the EU Action Plan on Common Action for the Russian Federation on combating organized crime—which implements the EU Common Strategy on Russia, adopted on the basis of Title V—touches in principle upon all three pillars of the Union. It concerns criminal matters referred to in Title VI, but extends to issues dealt with in the Community framework, such as money laundering.

87 Hillion, C ‘Common Strategies and the Interface between E.C. External Relations and the CFSP: Lessons of the Partnership Between the E.U. and Russia’ in Dashwood, A and Hillion, C (eds) The General Law of EC External Relations (Sweet & Maxwell London 2000) 287, at 287.Google Scholar

88 Weidel (n 44) 54–55.

89 1999/414/CFSP of 4 June 1999 (OJ 1999 L 157/1), 1999/877/CFSP of 11 Dec 1999 (OJ 1993 L 331/1) and 2000/458/CFSP of 19 June 2000 (OJ 2000 L 183/5), respectively.

90 For example, the Common Strategy on Russia and the Declaration of the European Council attached to it clarify that acts adopted outside the scope of Title V of the EU Treaty shall continue to be adopted according to the appropriate decision-making procedures provided by the relevant provisions of the Treaties, including the EC Treaty and Title VI of the EU Treaty.

91 Denza (n 11) 320–21. U Everling ‘Reflections on the Structure of the European Union’ (1992) 29 CML Rev 1053, at 1063 and Neuwahl (n 12) 245 argue that the Court might even incidentally review the compatibility with EC law of the guidelines issued by the European Council, which would thus be subject to the indirect scrutiny of the ECJ. The Court, however, seems to have ruled out that possibility, see orders of 13 Jan 1995, Case C-253/94 P, Roujansky and Case C-264/94 P Bonnamy [1995] ECR I-7 and I-15, respectively.

92 OJ 2004 C 310.

93 The Constitutional Treaty can only come into force once it has been adopted by each of the signatory countries in accordance with its own constitutional procedures. Pursuant to Art IV-447, it is scheduled to come into force on 1 Nov 2006 or, failing that, on the first day of the second month following the deposit of the last instrument of ratification. A declaration annexed to it stipulates that ‘if, two years after the signature of the Treaty …four-fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council’. At the time of writing, 11 Member States had completed ratification, with a negative outcome of the referenda held in France and the Netherlands. Consequently, the European Council of 16–17 June 2005 called for a period of reflection to intensify and broaden the debate on the Constitution and agreed to alter, if necessary, the timetable for the ratification in different Member States, stating that it would come back to the matter in the first half of 2006 ‘to make an overall assessment of the national debates and agree on how to proceed (Doc SN 117/05 of 18 June 2005).

94 See Art IV-437, on the repeal of the Community and Union Treaties and Art IV-438, on the succession of a new European Union to the present one.

95 See CONV 543/03 of 7 Feb 2003 and the Final Report of 25 Mar 2003, CONV 636/03.

96 See Tizzano, A ‘The Court of Justice in the Draft Treaty establishing a Constitution for Europe’ in N Colneric et al Une Communauté de droit—Festschrift für Gil Carlos Rodríguez Iglesias (Berliner Wissentschafts-Verlag Berlin 2003) 41 andGoogle ScholarTridimas, T ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ College of Europe Research Paper no 8/2003, also published in Tridimas, T and Nebbia, P (eds) EU Law for the 21st Century: Rethinking the New Legal Order (Hart Publishing Oxford 2004) 113.Google Scholar

97 With the exception of the validity or proportionality of operations carried out by the police or other law enforcement agencies of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (Art III-377). This restriction is similar to that currently provided by Art 35 (5) in relation to Third Pillar matters (n 3) with the further qualification that such action be ‘a matter of national law’.

98 See Working Document No 10 of 12 Mar 2003 ‘Judicial control relating to the common foreign and security policy’ and the Supplementary Report of 16 Apr 2003, CONV 689/1/03.

99 On the jurisdiction of the Court pursuant to these provisions see, inter alia, H Labayle ‘Le Traité d'Amsterdam. Un espace de liberté, de securityé et de justice’ in AA VV Le Traité d'Amsterdam (Paris Dalloz 1998) 105, esp. 153–5 and 165–8; Peers, S ‘Who's Judging the Watchmen? The Judicial System in the Area of Freedom, Security and Justice’ (1998) 18 YEL 337;Google ScholarGaja, G ‘The Growing Variety of Procedures Concerning Preliminary Rulings’ in O'Keeffe, D and Bavasso, P (eds) Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley (Kluwer The Hague 2000) I, 146;Google ScholarTridimas, T ‘Knocking on Heaven's Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure’ (2003) 40 CML Rev 41; B Nascimbene ‘Community Courts in the Area of Judicial Cooperation’ (2005) 54 ICLQ 489.Google Scholar

100 Tridimas (n 96) 21.

101 Dashwood (n 28) 365–6 and E Denza ‘Lines in the Sand: Between Common Foreign Policy and Single Foreign Policy’ in Tridimas and Nebbia (n 94) 259, at 268.

102 K Lenaerts and I Maselis ‘Le systéme juridictionnel de l'Union’ in M Dony and E Bribosia (eds) Commentaire de la Constitution européenne 219, at 237, n 102.

103 Denza opines that the formalizing of the doctrine of primacy and its extension to the CFSP would cause ‘a significant shift in the balance of powers between the Union and the Member States towards the Union’ which when taken together with a number of other specific changes to the rules governing the CFSP, would be ‘sufficiently fundamental to call into question the ultimate independence of the Member States in the conduct of their foreign policy’ House of Lords European Union Committee ‘The Future Role of the European Court of Justice’ 6th Report of Session 2003–04, HL Paper 47 of 15 Mar 2004, para 39.

104 Such as Art I-16 on the CFSP, Art I-28 on the EU Minister of Foreign Affairs and Arts I-40 and 41.

105 Indeed, the current overlap between CFSP and EC external competence is likely to become even more evident than today, giving rise to an increasing number of legal questions, see S Griller ‘External Relations’ in B de Witte (ed) Ten Reflections on the Constitutional Treaty (EUI Florence 2003) 133, at 136 and Eeckhout (n 16) 151.

106 Dashwood (n 28) 364–5 and M Cremona ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) CML Rev 1347, at 1366–8.

107 Cremona (n 13) 571 deems it ‘unlikely that the inclusion in the Constitutional Treaty of specific principles and policy objectives governing all aspects of EU external action will present a basis for increased Court involvement … [as] the number of disparate objectives will lead inevitably to the recognition that the legislative institutions are entitled in each case to establish a balance between them’ —although ‘some of the over-arching principles, such as respect for international law, may perhaps be more easily applied’.

108 ibid 569.

109 Griller (n 105) 137 points to the danger that intergovernmental mechanisms might be favoured over supranational ones: if, following the elimination of the pillar structure, the European Council—whose present task is to ‘provide the Union with the necessary impetus for its development’ and to ‘define the general political guidelines thereof’ (Art 4 TEU)—were to be the guardian of the coherence of the external activities of the Union, and could enact binding decisions covering the whole field, this might prejudice all other external activities of the Union, which would appear somewhat subordinated to its overall guiding capacity.

110 To this extent only, is it then correct to regard Art III-308 as ‘the equivalent of the present Art 47 TEU’, Dashwood (n 28) 366, n 33.

111 Curiously, the need to retain a provision similar to that of Art 47 TUE in the new constitutional text was not immediately felt within the Convention, and Art III-376 was only introduced at a relatively late stage of the proceedings, on a recommendation by the Working Party of Legal Experts.

112 Tizzano, A ‘La ‘Costituzione europea’ e il sistema giurisdizionale comunitario’ (2003) 2/3 Dir Un eur 455, at 479.Google Scholar

113 When Community competence fails to have an express legal basis, its action might still be justified according to either the theleological and effet utile approach, or Art 308 EC.

114 Dashwood (n 28) 366, n 33 observes that Art III-308 provides that the ‘implementation’ of the CFSP shall not affect the Union's general competences, and vice versa, but says nothing as to how the conditions respectively governing the exercise of the two kinds of competence differ from one another.

115 ibid at 365. See also Cremona (n 106) 572, n 74.

116 Griller (n 105) 141.

117 Case C-155/91, Commission v Council (Waste Directive) [1993] ECR I-939, para 20.

118 Griller (n 105) 156.

119 Louis and Dony (n 21) 327.

120 Such actions have been brought on grounds of incompetence of the Commission to conclude an agreement (Case C-327/91, France v Commission [1994] ECR 3641, esp. paras 14–15) or because the concluding act had been adopted on an improper legal basis (Case C-360/93, Parliament v Council [1996] ECR, 1145).

121 Wessel, RAThe European Union's Foreign and Security Policy. A Legal Institutional Perspective (Kluwer The Hague 1999) at 232.Google Scholar

122 According to Curtin, DM and Dekker, IF ‘The Constitutional structure of the European Union: Some Reflections on Unity in Diversity’ in Baumont, P, Lyons, C, and Walker, N (eds) Convergence and Divergence in European Public Law (Hart Publishing Oxford 2002) 59. Union law is, in principle, directly applicable in the national legal orders of the Member States: this may be derived a contrario from Art 35 TEU, which expressly stipulates that the legal instruments of the Third Pillar ‘shall not entail direct effect’.Google Scholar

123 See Council Regulation (EC) No 1705/88 of 28 July 1988 concerning the interruption of certain economic relations with Angola in order to induce UNITA to fulfil its obligations in the peace process (OJ 1988 L 215/1).

124 See Council Regulations (EC) No 1294/1999 of 15 June 1999 concerning a freeze of funds and a ban on investment in relation to the Federal Republic of Yugoslavia (OJ 1999 L 153/63) and 2488/2000 of 10 Nov 2000 maintaining a freeze of funds in relation to Mr Milosevic and those persons associated with him (OJ 2000 L 287/19).

125 Case T-306/01 (n 8) para 115.

126 Case T-306/01 (n 8) para 160.

127 See Cases T-362/04, Minin; T-299/04, Selmani; T-253/04, Kongra-Gel; T-49/04, Hassan; T-327/03, Al Aqsa; T-253/02, Ayadi; T-228/02, Organization des Modjahedines du Peuple d'Iran and T-318/01, Othman.

128 Council Common Position 2002/402/CFSP (OJ 2002 L 139/4) and Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures against Osama bin Laden, the Al-Qaeda network and the Taliban and repealing Council Regulation (EC) 467/2001 of 6 Mar 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139/9).

129 See n 65 above. Cases T-362/04, Minin; T-253/04, Aydar; T-299/04, Selmani; T-327/08, Al-Aqsa; T-47/03, Sison; T-228/02, Organisation des Modjaneclines du Peuple d'Iran. See also Cases 354/04 Gesturas pro Amnistía and C-355/04, Segi and Case C-229/05, PKK and KNK.

130 See Arts 5 and 6 of Council Regulation (EC) 2580/2001 (n 69) and Art 2 of Council Regulation (EC) 881/2002 (n 128). With respect to the former, an application for interim relief was dismissed on the grounds that the condition of urgency was not fulfilled, the applicant having failed to demonstrate that the possibility of obtaining an authorization by national authorities under these provisions, and the domestic remedies available to him under national domestic law against decisions taken by national authorities pursuant to these provisions, would not enable him to avoid serious and irreparable damage (Case T-47/03, Sison [2003] ECR II-2047, para 39.

131 A Sanctions Committee, composed of all the members of the Security Council, has the task of maintaining an updated list of both the individuals and entities concerned, and the financial resources to be frozen, based on information provided by the States and regional organizations. On the basis of amendments by the Committee, the Commission regularly reviews the list annexed to the Community regulations. In Bosphorus, Jacobs AG emphasized the importance of UNSC Sanctions Committees, but declined to regard the opinion of the relevant committee as binding in that particular case, because such an effect was not provided for by the relevant provisions of the resolution (Case C-84/95 [1996] ECR I-3953, para 46).

132 The Security Council has, however, developed a practice of calling on Non-Member States and on international organizations to comply with its resolutions, see S Bohr ‘Sanctions by the United Nations Security Council and the European Community’ (1993) 4 EJIL 256, at 262–3.

133 Judgment of the ICJ of 26 Nov 1984, Nicaragua [1984] ICJ Rep 392, para 107 and order of the ICJ of 14 Apr 1992, Lockerbie [1992] ICJ Rep 113, para 39.

134 According to JP Puissochet, the Court has made it clear that it tends to regard UNSC resolutions more as guidance for the interpretation of Community measures, rather then as legally binding provisions ‘The Court of Justice and international action by the European Community: The example of the embargo against former Yugoslavia’ (1997) 20 Fordham International Law Journal, 1557 at 1570. In fact, the Court has simply avoided to adress the issue directly. For example, in Greece v Council, it declined to examine an alleged breach of a UNSC resolution, on the ground that it was completely extraneous to the case before it (Case 204/86 [1988] ECR 5323, paras 27–8). In Bosphorus (n 131) Jacobs AG was of the opinion that the question, though interesting, did not fall to be decided (para 35). In Centro-Com the ECJ held that it was for national courts to determine whether national measures contrary to Art 113 (now 133) EC could be justified under Art 234 (now 307) EC, if they were necessary to ensure that the Member State concerned performed its obligations under the UN Charter and a UNSC resolution (n 29).

135 See F Naud ‘L'embargo: une valse à trois temps. Nations unies, Union européenne et Etats membres’ (1997) RMC, 404, 25; A Sam-Simenot ‘Les conflits de compétence entre la Communauté européenne et les Etats-membres dans le domaine des sanctions economiques edictées par le Conseil de sécurité de l'ONU (à propos de l'arrêt C-124–95 du 14 janvier 1997 de la Cour de justice des Communautés européennes)’ (1998) Receuil Dalloz, 9, 83; Lenaerts, K and De Smijter, E ‘The United Nations and the European Union: Living apart together’ in Wellens, K (ed) International Law: Theory and Practice (Kluwer The Hague 1998) 439, at 447–8; Eeckhout (n 16) 436–44; Wessel (n 38) 1161–2.Google Scholar

136 See, by analogy, the question whether the Community is bound by the General Agreement on Tariffs and Trade (GATT), Joined Cases 21/72 to 24/72, International Fruit [1972] ECR 1219, para 11.

137 See Case T-184/95, Dorsch Consult [1998] ECR II-667, para 74 in respect of a trade embargo imposed by a UNSC resolution.

138 See Case C-286/90, Poulsen and Diva Navigation [1992] ECR I-6019, para 9 and Case C-162/96 Roche (n 17) para 46.

139 Case T-306/01 and Case T-315/01 (n 8).

140 See n 82 above.

141 Orakhelashvili, A ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16 EJIL 59, at 86–8;Google ScholarMartencaule, B ‘The Security Council, The International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 EJIL 517, at 525–8 andGoogle ScholarBernhardt, R ‘Ultra Vires Activities of International Organisations’ in Makarczyk, J (ed) Theory of International Law at the 21st Century (Kluwer The Hague 1996) 599, at 606–7.Google Scholar

142 For a commentary on the judgments see MG Garbagnati Ketvel ‘The Court of First Instance and the Protection of Human Rights in the Fight Against Terrorism: A Case of Bravery or Recklessness?’ European Law Reporter.

143 See also Eeckhout (n 16) 464.

144 Vitsentzatos, M ‘The EU as an International Actor: What Role for the European Courts?’ paper presented at the BIICL conference on EU External Relations and the Constitutional Conventionheld on 10 Mar 2003.Google Scholar

145 Curtin and Dekker (n 122) note that a CFSP measure could play a role in domestic proceedings if the national court allowed it to have direct effect, or whenever its indirect effect would be accepted, in the sense that ‘all national authorities have the obligation to interpret national legislation and other measures as much as possible in the light of the wording and purpose of valid Union law’.

146 Case T-333/02 and Case T-338/02 (n 60).

147 Council Common Position 2001/931/CFSP of 27 Dec 2001 on the application of specific measures to combat terrorism (n 65).

148 See also orders of 15 Feb 2005, Case T-206/02, KNK and Case T-229/02, PKK & KNK (not yet reported).

149 23 May 2002, Applications 6422/02 and 9915/02, Segi and Gestoras Pro-Amnestia & Others v the Fifteen Member States of the European Union, ECHR 2002-V.

150 The applicant had argued before the Irish Supreme Court that the impoundment in Ireland of an aircraft it had leased from the national airline of former Yugoslavia was contrary to its right to peaceful enjoyment of property and to its freedom to pursue a commercial activity. Asked for a preliminary reference, the ECJ held in Bosphorus that any measure imposing sanctions had, ‘by definition’, consequences which affected the rights of persons who were not responsible for the situation which had led to the adoption of sanctions. Moreover, the importance of the aims pursued by the regulation could justify ‘negative consequences, even of a substantial nature, for some operators’. The contested measure, therefore, could not be regarded as disproportionate, ‘as compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war and to the massive violations of human rights’ in the former Yugoslavia (n 133, paras 21–6). For a critical evaluation of this approach, see I Canor ‘Can Two Walk Together, Except They Be Agreed?—The Relationship Between International Law and European Law: The Incorporation of United Nations Sanctions Against Yugoslavia Into European Community Law Through the Perspective of the European Court of Justice’ (1998) 35 CML Rev 137; a more positive appraisal is given by Koutrakos (n 20) 137 and Eeckhout (n 16) 447. In abidance with the ruling of the ECJ, the national court had little choice but to uphold the contested measure. Bosphorus then brought an application in Strasbourg against the Irish State.

151 Art 1 ECHR. Also, Art 307 EC confirms that the obligations of the Member States under the Convention remain unaffected by Community law. See ECommHR, decision of 9 Feb 1990, Application 13258/87, M & Co v FRG, DR 64, 144/51 and ECtHR, judgment of 18 Feb 1999, Appication 24833/94, Matthews v United Kingdom, ECHR (1999) I, 251/Rep 1999-I, 251, para 32.

152 The Court takes care to specify that any such findings of equivalence could not be final and would be susceptible to review in the light of any relevant change in the protection of fundamental rights (para 156).

153 30 June 2005, Application 45036/98 (not yet reported) paras 153–65.

154 See the concurring opinion of Judge Ress.

155 Lenaerts and Maselis (n 102) 236.

156 The Draft Constitution prepared by the European Convention did not appear to confer jurisdiction upon the Court over CFSP acts adopted prior to the restrictive measures. Art III-282 (2) stated that the legality may be challenged, of restrictive measures against natural or legal persons adopted by the Council ‘on the basis of Article III-224’ (the equivalent of Art III-322). This seemed redundant, given that the Court already has all forms of jurisdiction over First Pillar measures adopted pursuant to Arts 301 and/or 60 EC. Also, an express grant of jurisdiction where the measures are taken against natural or legal persons seemed to suggest that there was no jurisdiction where the sanctions are taken against countries: as a result, the Court's jurisdiction under the Constitution would have been more limited than presently exists under the Treaties. See House of Lords European Union Committee, 6th Report of Session 2003–04 (n 103) paras 104–6.

157 See A Ward ‘The Draft EU Constitution and Private Party Access to Judicial Review of EU Measures’ in Tridimas and Nebbia (n 96) 209.

158 Tridimas (n 96) 22.

159 Reported by Vitsentzatos (n 144).

160 See Council Joint Actions 2004/570/CFSP of 12 July 2004 (OJ 2004 L 252/10) on the EU military operation in Bosnia and Herzegovina (EUFOR — Anthea); 2002/210/CFSP of 11 Mar 2002 (OJ 2002 L 70/01) on the EU Police Mission in Bosnia (EUPM); 2003/681/CFSP of 15 Dec 2003 (OJ 2003 L 249/66) on the EU Police Mission in Macedonia (PROXIMA) and 2004/847/CFSP of 9 Dec 2004 (OJ 2004 L 367/30) on the EU Police Mission in Kinshasa.

161 Case T-201/99 [2000] ECR II-4005.

162 The expression is by E Sharpston, evidence submitted to the House of Lords European Union Committee (n 103) para 96.

163 For example, one could envisage the European Parliament bringing a case in connection with the powers it enjoys under the Interinstitutional Agreement of 6 May 1999 on budgetary discipline and improvement of the budgetary procedure (OJ 1999 C 172). See Neuwahl (n 12) 245 and Wessel (n 123) 225.

164 See Art 1–9 of the Constitutional Treaty. Fundamental rights are protected as general principles of EC law and, although the Court has not yet made reference to the EU Charter of Fundamental Rights, its Advocate Generals have repeatedly stated that the document—despite not having a legally binding effect similar to that of primary law—nonetheless gives an indication on the fundamental rights guaranteed by the Community legal order: see the Opinions of Advocate Generals Léger (10 July 2001, Case C-353/99P, Hautala [2001] ECR I-9565/9567, paras 82 and 83); Tizzano (8 Feb 2001, Case C-173/99, BECTU [2001] ECR I-4881/4883, para 28); Misho (20 Sept 2001, Joint Cases C-20/00 and C-64/00, Booker Aquaculture & Hydro Seafood [2003] ECR I-741, para 126); Poiares Maduro (29 June 2004, Case C-181/03 P, Nardore, not yet reported, para 51); Kokott (14 Oct 2004, Joint Cases C-387/02, C-391/02 and C-403/02, Berlusconi, not yet reported).

165 See the Decisions of 10 Mar 2004, Application 56672/00, Senator Lines v the Fifteen Member States of the European Union, ECHR 2004-IV and of 13 Jan 2005, Application 62023/00, Emesa Sugar v The Netherlands (not yet reported).

166 As noted by Louis and Dony (n 119) 594, ‘[e]mpêcher le juge de connâitre des actes relevant d'un secteur capital de l'action de la puissance publique est d'une autre époque: cette attitude est fondée sur une distinction surannée entre actes de haute politique et relations économiques internationales et elle cadre mal avec les principes et valeurs par ailleurs affichés.’