Table of Contents: I. Introduction. – II. Mandatory respect for EU fundamental rights in CFSP. – II.1. CFSP as distinct framework embedded in the EU legal order. – II.2. Horizontal obligation to respect fundamental rights in the EU. – II.3. Mainstreaming fundamental rights in CFSP decision-making. – III. Derogatory enforcement of EU fundamental rights in CFSP. – III.1. Limited ECJ jurisdiction in CFSP: an exception to the rule. – III.2. Broad exercise of limited ECJ jurisdiction. – IV. Complementary national enforcement of EU fundamental rights in CFSP. – IV.1. Member States’ courts as EU courts. – IV.2. Practical implications of Member States’ courts involvement in reviewing CFSP. – V. Concluding remarks.
Abstract: This paper examines how fundamental rights are protected in the specific context of the EU Common Foreign and Security Policy, against the backdrop of the European Court of Justice’s Opinion 2/13 on the EU accession to the ECHR. As any area of EU law, the CFSP must be implemented in compliance with EU fundamental rights. The jurisdiction of the European Court of Justice plays a critical if limited part in ensuring such compliance, which Member States’ judiciaries complement, acting as “guardians of (the) legal order and the judicial system of the (EU)”. Such a mixed judicial control over the CFSP derives from the Court’s established case law, as well as from the Treaty of Lisbon, and the deeper integration of the CFSP in the EU legal order that it envisages.
Keywords: European Union – foreign and security policy – fundamental rights – Court of Justice – national courts – preliminary reference – European integration.
* Professor of European Law, Universities of Oslo, Gothenburg and Leiden, email@example.com.