Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
pp. 1023263X2198824
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
Vol 28 (3) ◽  
pp. 356-370
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

The Long Walk to Strasbourg: About the Insufficient Judicial Protection in Some Areas of the Common Foreign and Security Policy before the European Union’s Accession to the ECHR

2018 ◽  
Vol 17 (2) ◽  
pp. 393-414
Author(s):  
José M. Cortés-Martín
Keyword(s):  
Human Rights ◽  
Security Policy ◽  
Case Law ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Foreign And Security Policy ◽  
Judicial Protection ◽  
Judicial Remedies ◽  
The Eu

Abstract It is likely that the European Court of Justice’s (ECJ) objection in Opinion 2/13 regarding the absence of judicial remedies in certain Common Foreign and Security Policy (CFSP) areas can hardly be accommodated in a future revised Accession Project to the European Convention on Human Rights (ECHR). This is basically due to obstacles to proceeding with reform of the EU Treaties or establishing an ECHR reservation clause. However, as a matter of fact, the exact dimension of this problem seems to be quite relative. First of all, this is because recent ECJ case-law is gradually eroding the Court’s lack of competence, in particular, after Rosneft. Next, this is because, in those cases where there is still an absence of effective judicial protection, national courts – as EU ordinary courts – could fill this gap. Finally, this gap could also be filled by creating accountability mechanisms in the area of human rights within the framework of Common Security and Defence Policy (CSDP) missions.

scholarly journals JUDICIAL REVIEW IN THE EU'S COMMON FOREIGN AND SECURITY POLICY

2017 ◽  
Vol 67 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Panos Koutrakos
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Recent Case ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Foreign And Security Policy

AbstractThe 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.

scholarly journals Restrictive measures - sanctions compliance, implementation and judicial review challenges in the common foreign and security policy of the European Union

ERA Forum ◽  
2021 ◽  
Vol 22 (1) ◽  
pp. 159-181
Author(s):  
Nadia Zelyova
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
The European Union ◽  
Comprehensive Overview ◽  
Legal Evolution ◽  
Foreign And Security Policy ◽  
The Common ◽  
Restrictive Measures ◽  
The Eu

AbstractThis article provides a comprehensive overview of EU restrictive measures applicable within the EU, the competences and legal evolution which lead to the implementation of Common Foreign and Security Policy restrictive measures (CFSP sanctions), and considers procedural issues, developments in the latest case law, and the challenges of securing compliance with EU sanctions, which reach beyond the territory of the EU.

Courts

2018 ◽  
Author(s):  
Paul Craig
Keyword(s):  
Judicial Review ◽  
Necessary Condition ◽  
Judicial Control ◽  
National Courts ◽  
The Eu ◽  
The Way

The preceding chapter considered the foundations of judicial review in the EU. The discussion now turns to the EU Courts. The way in which the principles of review have developed has been affected by the jurisdictional divide between the CJEU and GC, and between these Courts and national courts. It will be argued that a necessary condition for an effective regime of judicial control is the existence of a rational judicial architecture, embracing the CJEU, GC, national courts, and agency boards of appeal.

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

2006 ◽  
Vol 55 (1) ◽  
pp. 77-120 ◽  
Author(s):  
Maria-Gisella Garbagnati Ketvel
Keyword(s):  
Security Policy ◽  
European Court Of Justice ◽  
Judicial Control ◽  
Court Of Justice ◽  
Legal Remedy ◽  
European Court ◽  
Foreign And Security Policy ◽  
The Common ◽  
Limited Scope ◽  
The Eu

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.

scholarly journals Where is the EU (going): three perspectives and three Integration issues

2017 ◽  
Vol 3 (1) ◽  
pp. 78-89
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Security Policy ◽  
Legal Framework ◽  
Global Strategy ◽  
Legal Order ◽  
Special Procedure ◽  
Foreign And Security Policy ◽  
Integration Project ◽  
The Relationship ◽  
Fundamental Values ◽  
The Eu

The present text, assuming that the option of carrying on the European integration project, as well the option of Portugal to take part in it, are still fully valid, addresses the question “where are going (now)”on the basis of three actual and relevant issues regarding the survival of the EU which concern both the relationship between the EU and International Relations and the relationship between EU legal order and national legal orders, in particular the Portuguese legal order: the new Global Strategy for the EU’s Foreign and Security Policy, the new legal framework to protect EU’s fundamental values, especially the rule of law, and its recent application to a member State, as well as the functioning of the special procedure on excessive budgetary deficit which led to the application of “zero”sanctions to Portugal – enouncing some questions related to such topics as well as with the interrogation on the trend towards a “centralization” at the EU level that such topics may illustrate.

Common Foreign and Security Policy

2021 ◽  
pp. 359-420
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
Security Policy ◽  
Case Law ◽  
International Agreements ◽  
Recent Case ◽  
Historical Evolution ◽  
Mutual Assistance ◽  
Defence Policy ◽  
Foreign And Security Policy ◽  
The Common ◽  
The Eu

This chapter provides an overview of the historical evolution and the post-Lisbon institutional and legal characteristics of the Common Foreign and Security Policy (CFSP), including the Common Security and Defence Policy (CSDP). Specific attention is paid to the specificity and sui generis nature of the CFSP as an EU competence and to the instruments at the disposal of the EU under this policy. The limited but growing jurisdiction of the Court of Justice in CFSP is illustrated with recent case law. The legal and institutional underpinnings of the CSDP are discussed, as well as its post-Lisbon dynamics, notably operations, international agreements, permanent structured cooperation, and mutual assistance.

scholarly journals The PSPP Judgment of the Bundesverfassungsgericht and the Slovenian Constitutional System

2021 ◽  
Vol 2 (1) ◽  
pp. 93-118
Author(s):  
Marjan Kos
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Constitutional Review ◽  
National Courts ◽  
High Standards ◽  
Constitutional System ◽  
First Time ◽  
The Relationship ◽  
Very High ◽  
The Eu

The BVerfG’s judgment on the PSPP marks another important part of the EU constitutional mosaic. It was the first time that the court declared an EU act ultra vires. Intense academic commentary ensued, mostly adopting a critical attitude towards the judgment. However, a summary rejection of the underlying idea of an exceptional national constitutional review of EU acts does not seem warranted. Unconditional primacy has been disputed by different national courts for some time now, and on two occasions, national apex courts already declared EU acts ultra vires. Considering its inherent diversity, the EU should be able to accommodate legitimate national constitutional concerns. A common frame of reference, possibly provided by Art. 4(2) TEU, could facilitate such accommodation if very high standards of violation were adopted by national courts, which would also respect the principle of loyal cooperation. In this regard, EU law also marks red lines when it comes to its fundamental principles, limiting the possibility of abuse. The Slovenian Constitution introduces EU law through Art. 3a, adopted for the purpose of accession to the EU. The Slovenian Constitutional Court's case law is generally very EU-friendly, and it could be marked by cooperative vagueness, echoing the doctrines of the CJEU. A clear answer regarding the relationship between national (constitutional) law and EU law is lacking in its jurisprudence. The court explicitly left the question of absolute primacy open. The substantive preconditions for the transfer of sovereign rights in Art. 3a, namely, respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law, have been interpreted in different ways in academia. However, considering the inalienable right to self-determination, in exceptional cases of serious encroachment on fundamental constitutional values, the SCC would probably adopt its version of the BVerfG’s doctrines.

Protecting the Rule of Law in the EU Legal Order: A Constitutional Role for the Court of Justice

2020 ◽  
Vol 16 (1) ◽  
pp. 8-32
Author(s):  
Peter Van Elsuwege ◽  
Femke Gremmelprez
Keyword(s):  
Rule Of Law ◽  
Security Policy ◽  
Case Law ◽  
Legal Order ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
Foreign And Security Policy ◽  
Scope Of Application ◽  
The Eu

The rule of law as one of the core constitutional values of the EU legal order – The rule of law in the case law of the Court of Justice of the European Union – Jurisdiction of the Court on the basis of a combined reading of Articles 2 and 19 TEU – Protecting the rule of law in the Common Foreign and Security Policy – Protecting the rule of law in the member states in order to safeguard the structure and functioning of the EU legal order – Limits to the scope of application of EU law

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