How Far is Far Enough? EC Law and the Organisation of the Armed Forces after Dory
| Author | Panos Koutrakos |
| DOI | http://doi.org/10.1111/1468-2230.6605004 |
| Published date | 01 September 2003 |
| Date | 01 September 2003 |
How Far is Far Enough? EC Law and the
Organisation of the Armed Forces after Dory
Panos Koutrakos
n
Introduction
Military might constitutes a necessary prerequisite for the ability of sovereign
states to defend their essential interests, let alone territorial integrity. As the armed
forces are intrinsically linked to the core of national sovereignty, their legal
regulation seeks to strike the balance between multifarious and often conflicting
interests which may pertain to the legal position of individuals, social attitudes to
the military and the exercise of the state’s sovereign powers. This process, fraught
with legal problems within national legal orders, is even more complex within the
context of the European Union. On the one hand, there is a considerable body of
Community law in areas which might appear relevant to the armed-forces, such as
employment; the supremacy of the relevant EC rules
1
and their potential for direct
effect
2
within the national legal order may reduce the scope of powers exercised by
the Member States in regulating their military. On the other hand, defence falls
within the powers of the Member States which exercise them in their capacity as
fully sovereign subjects of international law,
3
to a certain extent within the
so-called ‘second pillar’ of the European Union. This legal framework, entitled
‘Common Foreign and Security Policy’, is regulated under Title V of the Treaty on
European Union (TEU) and is, essentially, intergovernmental in nature.
4
In legal
terms, this set of rules, whilst sharing a ‘single institutional framework’ with the
EC,
5
shares none of the distinctive normative qualities of EC law and, most
importantly, is expressly excluded from the scope of the jurisdiction of the
European Court of Justice.
6
In the light of the above, the questions raised by the legal regulation of the
armed forces have considerable constitutional significance: is EC law to apply at
all? If so, should it apply to all relevant areas of activities? Is there a limit to what
it may achieve? Is the link between the armed forces and the core of national
sovereignty to affect the intensity of judicial supervision by the Court of Justice?
In the light of the recent judgment of the Court in Case C-186/01 Dory,
7
this
article aims at addressing some of these questions and revisiting the answers
already given to the remaining ones.
n
Reader in European Law, University of Birmingham.
1 Case 6/64 Flaminio Costa vENEL [1964] ECR 585.
2 Case 26/62 NV. Algemeine Transporten Expeditie Onderneming van Gend en Loos vNederlandse
Administratie der Belastingen [1963] ECR 1.
3 Art. 297 EC recognises the right of Member States to deviate from the entire scope of EC law
under specific circumstances of extreme seriousness: see P. Koutrakos, ‘Is Article 297 EC a
‘‘reserve of sovereignty’’?’ (2000) 37 CMLRev 1339.
4 See E. Denza, The Intergovernmental Pillars of the European Union (Oxford: OUP, 2002)
chs 1 and 5.
5 Art. 3 TEU.
6 Art. 46 TEU.
7 Case C-186/01 Alexander Dory vGermany, judgment delivered by the Full Court on 11 March
2003, nyr.
rThe Modern Law Review Limited 2003 (MLR 66:5, September). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 759
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