“Effective Judicial Review Is of the Essence of the Rule of Law”: Challenging Common Foreign and Security Policy Measures Before the Court of Justice

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Table of Contents: I. Introduction. – II. The legal framework. – III. Limiting the Court’s jurisdiction. – IV. The Exception: judicial review of CFSP acts. – V. Grounds for and intensity of review. – VI. Conclusion.

Abstract: This Article discusses the role of the Court of Justice in reviewing acts adopted under the Common Foreign and Security Policy (CFSP), seeking to determine to what extent the “exceptionalism” of the CFSP, its characterisation as a field of executive action largely shielded from judicial scrutiny, is an accurate assessment. The Court’s role is constrained in two ways. First, although the CFSP has been integrated into the overall legal structures of EU external relations by the Lisbon Treaty, it is still subject to “specific rules and procedures” (Art. 24, para. 1, TEU) and among these specific rules are limitations on the jurisdiction of the Court of Justice. Second, is the self-restraint of the Court itself when reviewing acts adopted within the framework of external policies in which the decision-making institutions have a wide discretion; this self-restraint is not specific to the CFSP but the CFSP is a clear case of broad policy discretion. Despite these constraints we are seeing a growing number of cases in which the Court is asked to assess the legality of CFSP acts. The Article will address three main questions: 1) What is the scope of the limitation to judicial review in the CFSP? 2) What is the scope of the Treaty-based exceptions to this limitation? 3) Does the degree and intensity of judicial scrutiny of CFSP acts demonstrate a particular judicial reticence with respect to CFSP?

Keywords: Common Foreign and Security Policy – judicial review – rule of law – validity – interpretation – restrictive measures.

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European Papers, Vol. 2, 2017, No 2, pp. 671-697
ISSN
2499-8249 - doi: 10.15166/2499-8249/173

* Professor of European Law, European University Institute, Florence, marise.cremona@eui.eu.

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