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.

What Questions Can Be Referred?

2021 ◽  
pp. 89-140
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Security Policy ◽  
National Court ◽  
International Agreements ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
European Court ◽  
Foreign And Security Policy

Chapter 4 examines which questions can be referred for a preliminary ruling. The European Court of Justice has jurisdiction to give preliminary rulings on the interpretation of the Treaties, and on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union. It does not have jurisdiction to rule on the interpretation or validity of international law or national laws, and it is prevented from giving a binding ruling on the facts that are put before a national court. Chapter 4 explains the reference to ‘the Treaties’ as well as the meanings of ‘acts’, ‘institutions, bodies, offices or agencies’, and ‘validity’. This examination includes police and judicial cooperation, common foreign and security policy, the Euratom Treaty and the ECSC Treaty, and it includes preliminary references concerning international agreements. The chapter also examines the extent to which the Court of Justice can give its opinion on the facts or the content of national law in connection with a reference for a preliminary ruling or on questions that concern circumstances that arise before a Member State’s accession to the European Union or where the preliminary ruling is rendered after a Member State’s withdrawal from the Union (eg Brexit).

Article 275 TFEU

2019 ◽  
Author(s):  
Bernhard Schima
Keyword(s):  
European Union ◽  
Security Policy ◽  
The European Union ◽  
Court Of Justice ◽  
Foreign And Security Policy ◽  
The Common

The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.

The European Court of Justice, More than a Teleological Court

1999 ◽  
Vol 2 ◽  
pp. 373-398 ◽  
Author(s):  
Albertina Albors Llorens
Keyword(s):  
European Court Of Justice ◽  
Common Denominator ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Texts ◽  
The Media ◽  
The Common ◽  
Ec Law

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

scholarly journals Case Report on C-411/10, N.S. and C-493/10, M.E. and Others, 21 December 2011

2012 ◽  
Vol 14 (2) ◽  
pp. 223-238 ◽  
Author(s):  
Sophie Lieven
Keyword(s):  
Human Rights ◽  
Case Report ◽  
European Court Of Justice ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Common European Asylum System ◽  
Protection Of Human Rights ◽  
The Common ◽  
The Eu

Abstract The European Court of Justice clarified through this judgment the way in which the overloading of a Member States’ asylum system affects the EU arrangements for determining the Member State responsible for asylum applications lodged in the EU and thereby drastically reduced the possibility granted to Member States to transfer asylum applicants. The Member States now have an obligation to verify that no serious risk of violation of the Charter rights of the applicant exits in the receiving country before being allowed to transfer the person. The practical consequences of this ruling are still uncertain but further cooperation between Member States should be able to enhance the level of protection of human rights within the Common European Asylum System.

scholarly journals Made in Luxembourg: The fabrication of the law on jurisdiction of the court of justice of the European Union in the field of the Common Foreign and Security Policy

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Security Policy ◽  
Legal Protection ◽  
Case Law ◽  
The European Union ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Foreign And Security Policy ◽  
History Of ◽  
The Common

The article provides an analysis of the case law of the Court of Justice of the European Union on the interpretation of Articles 24 TEU, first paragraph, second subparagraph, and 275 TFEU governing the question of the Court’s jurisdiction in the field of the Common Foreign and Security Policy (CFSP). The article first describes the background of those provisions as they resulted from the Convention on the Future of Europe and the 2003-4 and 2007 Intergovernmental Conferences and then compares the Court’s understanding of its jurisdiction to the drafting history of the provisions concerned. The main conclusion of the study of the case law suggests that the Court views its jurisdiction over the CFSP more broadly than the jurisdiction envisaged by the drafters of the Treaties. In particular, the Court both interprets the exclusion from its jurisdiction of acts based on the Treaty’s CFSP provisions in a narrow fashion and is prepared to review the legality of CFSP acts not only through direct actions but also through references for a preliminary ruling. However, the article argues that the provision of adequate legal protection in the field of the CFSP necessarily requires both the Court of Justice and domestic courts of the Member States to play their respective roles.

Supranational Differentiation and Enhanced Cooperation

2018 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Political Legitimacy ◽  
Legal Order ◽  
European Court Of Justice ◽  
European Law ◽  
Legal Basis ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
The Common ◽  
Uniform Composition

The ‘unity dogma’ has long characterized European law discourse. In many of its landmark judgments, the European Court of Justice had recourse to the ‘unity argument’—such as in Costa v ENEL, where the Court stated that ‘the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty’. Unilateral national deviations could not be tolerated without the common rules ‘being deprived of their character as Community law and without the legal basis of the Community itself being called into question’. Other expressions of the ‘unity dogma’ include the principle of non-discrimination or the uniform composition of EU institutions. This contribution demonstrates that the asymmetric non-participation of some Member States in selected policy areas can be embedded into the supranational legal order. The main danger seems to be a structural weakening of political legitimacy.

Contemporary Challenges to EU Legality

2021 ◽  
Keyword(s):  
International Law ◽  
Sovereign Debt ◽  
Security Policy ◽  
Debt Crisis ◽  
Theoretical Perspective ◽  
The European Union ◽  
Court Of Justice ◽  
Cast Doubt ◽  
Foreign And Security Policy ◽  
The Common

This volume explores contemporary challenges to EU legality, including actions or activities that cast doubt on, or sit uncomfortably with, the premises, principles, and norms that underpin the EU’s legal order as proclaimed by the Treaties and the authoritative judgments of the Court of Justice of the European Union (CJEU). These premises, principles, and norms range from the precisely formulated to the noticeably vague. The book develops a broader theoretical perspective as well as delving into a range of substantive areas including the Common Foreign and Security Policy (CFSP), the EU’s relationship with international law, migration, human rights, the sovereign debt crisis, and Brexit.

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