H v. Council: Strengthening the Rule of Law in the Sphere of the CFSP, One Step at a Time

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Table of Contents: I. Introduction. – II. A complete system of judicial protection, also in the sphere of the CFSP? – III. In search of the limits of the jurisdictional carve-out: in defence of the ECJ’s incremental approach. – IV. Looking forward: towards a comprehensive approach. – IV.1. A reading of Art. 275 TFEU focused on the nature of the plea rather than the nature of the contested act. – IV.2. A narrow interpretation of the phrase “certain decisions as provided for by the second paragraph of Article 275 [TFEU]” in Art. 24, para. 1, TEU. – IV.3. A broad interpretation of “restrictive measures” in Art. 275 TFEU.

Abstract: In its judgment in the case of H v. Council et al., the Grand Chamber of the ECJ recognised the jurisdiction of the CJEU to assess the validity under EU law of a decision by the Chief of Personnel of the European Union Police Mission in Bosnia-Herzegovina (EUPM) to redeploy an Italian magistrate, seconded to the EUPM in Sarajevo, to the post of Criminal Justice Adviser in another location in that country. The question was salient in light of the jurisdictional carve-out in the sphere of the Common Foreign and Security Policy (CFSP) provided for in Art. 24, para. 1, TEU and Art. 275 TFEU. Before the Court, the parties had advanced diverging interpretations of these provisions aimed at recognising or ruling out the CJEU’s jurisdiction. The ECJ took an alternative path, relying on Art. 270 TFEU on jurisdiction over staff management disputes to confirm its jurisdiction in the case at bar. This Insight contextualises the Court’s ruling by pointing to the deficiencies in the system of judicial protection in the sphere of the CFSP. In addition, it argues in favour of a broad reading of the exceptions to the exclusion of the CJEU’s jurisdiction in the sphere of the CFSP. In support of this argument, the Insight assesses the arguments in this direction advanced by the appellant and the European Commission.

Keywords: EU external relations – Common Foreign and Security Policy (CFSP) – rule of law – complete system of judicial protection – Art. 275 TFEU and Art. 24, para. 1, TEU – autonomy of EU law.

European Papers, Vol. 1, 2016, No 3, European Forum, Insight of 9 December 2016, pp. 1041-1053
2499-8249 - doi: 10.15166/2499-8249/90

* PhD Candidate, Institute for European Law, University of Leuven, and Michigan Grotius Research Scholar, University of Michigan Law School, thomas.verellen@kuleuven.be.



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