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

Abstract

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.

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