May Member States’ courts act as catalysts of normalization of the European Union’s Common Foreign and Security Policy?

Published date01 June 2021
AuthorLuigi Lonardo
DOI10.1177/1023263X20982582
Date01 June 2021
Subject MatterArticles
Article
May Member States’ courts
act as catalysts of normalization
of the European Union’s Common
Foreign and Security Policy?
Luigi Lonardo*
Abstract
This article considers whether national courts may act as catalyst of normalization of Common
Foreign and Security Policy, in cases on the merits of which prima facie the Court of Justice of the
European Union (CJEU) does not have jurisdiction. First, regardless of the exact scope of the
CJEU’s jurisdiction, this contribution surveys arguments in favour (the principle of conferral and of
effective judicial protection, expression of the value of the rule of law) and against (the notion of
autonomy and consistency of EU law) the jurisdiction of national courts. It concludes in favour
of the former option. Second, it considers whether national courts may act as agents of ‘nor-
malization’ of CFSP, where this word means the application of general rules of EU law to this policy
even in the absence of express literal provision in the Treaty. It argues that national courts may act
as catalyst for the normalization of this policy in so far as they can, through the preliminary ruling
procedure, give an opportunity to the CJEU to rule on (at least some) CFSP acts.
Keywords
CFSP, CJEU, EU law, external relations, judicial review
1. Introduction
Among other aspects of constitutional distinctive ness,
1
Common Foreign and Security Policy
(CFSP) is subtracted, in principle, from the jurisdiction of the Court of Justice of the European
* University College Cork, College of Business and Law, Cork, Ireland
Corresponding author:
Luigi Lonardo, University College Cork College of Business and Law, College Road, Cork, Ireland.
E-mail: luigi.lonardo@hotmail.com
1. P. Koutrakos, ‘Judicial Review in the EU’s Common Foreign and Security Policy’, 67 International and Comparative
Law Quarterly (2018), p. 3.
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(3) 287–303
ªThe Author(s) 2021
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DOI: 10.1177/1023263X20982582
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Union (CJEU or ‘the Court’),
2
and so are acts adopted pursuant to its provisions (Article 24 TEU),
3
with the exceptions provided for in Article 275 TFEU.
4
The extent of the Court’s jurisdiction over CFSP provisions and acts is not yet sharply defined.
Several cases decided by the Court
5
and a wealth of academic commentaries
6
have not removed all
ambiguity. By way of illustration, in Rosneft the Court has declined jurisdiction over CFSP
decisions setting up restrictive measures consisting of provisions of general applications;
7
while
a literal reading of Article 275(2) TFEU seems not to confer jurisdiction to the CJEU on damages
actions stemming from CFSP Decisions,
8
the Court has recently reached the opposite conclusion.
9
The jurisdiction of national courts over CFSP measures is instead a topic that has been approached
by legal academia only relatively recently,
10
and this contribution seeks to reflect on the role of
2. The lack of the Court’s jurisdiction is ‘the most significant of these specific rules’ of CFSP, according to M. Cremona,
‘The Position of CFSP/CSDP in the EU’s Constitutional Architecture’, in S. Blockmans and P. Koutrakos (eds),
Research Handbook on the EU’s Common Foreign and Security Policy (Edward Elgar, 2018), p. 10.
3. There are two exceptions: the CJEU has jurisdiction to monitor the ‘boundaries’ of CFSP (Article 40 TEU) and to
review restrictive measures in actions brought by individuals (Article 275 TFEU).
4. Significantly, judicial review of the CJEU is limited not only in CFSP but also in matters of internal security (Article
276 TFEU), as discussed below. In the pre-Lisbon setting, limited jurisdiction obtained in what was then the third pillar,
Justice and Home Affairs (JHA). The Court was empowered by Article 68 TEC to give preliminary rulings on the
validity or interpretation of Community acts based on JHA but only on questions arising in a case pending before a
court or tribunal ‘against whose decision there is no judicial remedy under national law’. In that case, the power of
national courts was unaffected, indeed, ‘[t]his limitation of preliminary reference power to final courts was seen as a
means of ensuring that asylum cases would not flood the Court, given their prevalence in many judicial bodies at the
national level’ (M. Garlick, ‘The Common European Asylum System and the European Court of Justice New Jur-
isdiction and New Challenges’, in E. Guild, S. Carrera, A. Eggenschwiler (eds.), The Area Of Freedom, Security And
Justice Ten Years On Successes And Future Challenges Under The Stockholm Programme (Centre for European Policy
Studies, 2010), p. 52.
5. Case C-402/05 P Kadi and Al Barakaat International Foundation v. Council and Commission, EU:C:2008:461; Case
C-348/12 P Manufacturing Support & Procurement Kala Naft v. Council, EU:C:2013:776; Case C-439/13 P Elitaliana
SpA v. EULEX Kosovo, EU: C:2015:753; Case C-455/14 P H v. Council and Commission, EU:C:2016:569; Case C-72/
15 Rosneft, EU:C:2017:236; Case T-286/15 KF v. The European Union Satellite Centre EU:T:2018:718.
6. Recent contributions include C. Eckes, ‘Common Foreign and Security Policy: the Consequences of the Court’s
Extended Jurisdiction’ 22 European Law Journal (2016), p. 492; Ramses A. Wessel, ‘Lex Imperfecta: Law and
Integration in European Foreign and Security Policy’ 1 European Papers (2016), p. 439; S. Poli, ‘The Common
Foreign Security Policy after Rosneft: Still Imperfect but Gradually Subject to the Rule of Law’, 54 Common Market
Law Review (2017), p. 1799; G. Butler, ‘The Coming of Age of the Court’s Jurisdiction in the Common Foreign and
Security Policy’, 13 European Constitutional Law Review (2017), p. 673; M. Cremona, ‘‘‘Effective Judicial Review Is
of the Essence of the Rule of Law’’: Challenging Common Foreign and Security Policy Measures Before the Court of
Justice’ 2 European Papers (2017), p. 671; P. Van Elsuwege, ‘A. Court of Justice Upholding the Rule of Law in the
Common Foreign and Security Policy: H v. Council’, 54 Common Market Law Review (2017), p. 841; Charlotte
Beaucillon, ‘Opening up the Horizon: The ECJ’s New Take on Country Sanctions’, 55 Common Market Law Review
(2018), p. 387.
7. Para. 96–99, on which see J. Wouters and T. Ramopoulos, ‘The Institutional Structure’, in R. Schu
¨tze and T. Tridimas
(eds.), Oxford Principles of European Union Law (OUP, 2018), p. 1067, 1105.
8. See also View of Advocate General Kokott on Opinion 2/13, EU:C:2014:2475.
9. Case C-134/19 P Bank Refah Kargaran, EU:C:2020:793.
10. C. Hillion, ‘Decentralised Integration? Fundamental Rights Protection in the EU Common Foreign and Security
Policy’, 1 European Papers (2016), p. 61; P. Koutrakos, 67 International and Comparative Law Quarterly (2018); G.
Butler, ‘Implementing a Complete System of Legal Remedies in EU Foreign Affairs Law’, 24 Columbia Journal of
European Law (2018), p. 637; C. Hillion and R.A. Wessel, ‘‘‘The Good, the Bad and the Ugly’’: Three Levels of
Judicial Control over the CFSP’, in S. Blockmans and P. Koutrakos (eds.), Research Handbook on the EU’s Common
288 Maastricht Journal of European and Comparative Law 28(3)

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