Judicial Control of CFSP in the Constitution: A Cherry Worth Picking?

Yearbook of European Law, pp. 363-394, 2006

31 Pages Posted: 5 Feb 2013

See all articles by Alicia Hinarejos

Alicia Hinarejos

McGill University, Faculty of Law

Date Written: 2006


The intergovernmental pillars of the European Union are areas in continuous evolution. Furthermore, this evolution seems to be towards a more institutionalized co-operation. This is especially obvious within the third pillar, where Pupino, for example, seems to be part of a slow trend of approximation to the logic of the Community pillar. Although less pronounced, the same slow shift of perspective can be said to be taking place in the realm of the second pillar or Common Foreign and Security Policy (CFSP).

That is arguably why the governments of the Member States were ready to scrap the intergovernmental label, currently attached to both pillars, in the Constitutional Treaty. The necessary political will appears to be there for the CFSP, the main focus of this article, to move into the next phase: one which will necessarily entail less intergovernmentalism and ‘more’ community method — with judicial oversight as one of its central elements. It is therefore necessary to ask ourselves about the specific role the European Court of Justice should be given.

It is with this question in mind that we should approach the changes envisaged by the Constitutional Treaty (hereinafter CT). Even if this document is politically dead, it is the measure of how far the Member States were willing to go in changing the nature of the second pillar and its judicial control. It is foreseeable that a more or less obvious process of cherry-picking will take place in the future; the Member States and institutions, unable to see the CT ratified, will understandably seek to otherwise implement or bring about some of its reforms, if at all possible: those which allegedly deserve to be cherry-picked.

This article will consider the role that the ECJ was given within Common Foreign and Security Policy (CFSP) in the Constitution, to decide whether it is good enough to be cherry-picked in the future. Is this the solution we want, or should we set out to find different, more suitable arrangements if the jurisdiction of the ECJ in matters of CFSP is to be reformed in the future?

With this in mind, I will examine the changes in the nature of the measures adopted under the CSFP envisaged by the CT (from intergovernmental to Union measures). Consequently, I will turn to the very restricted judicial control foreseen in this area. The jurisdiction of the ECJ is still excluded, save for some exceptions. This article will consider the scope of these exceptions to determine how far-reaching they are, and thus what kind of part they allow the ECJ to play.

Keywords: EC Law, EU Law, Common Foreign and Security Policy, Intergovernmental Pillars, Second Pillar, Judicial Control, European Court of Justice, Constitutional Treaty, CFSP

JEL Classification: K00, K30, K33

Suggested Citation

Hinarejos, Alicia, Judicial Control of CFSP in the Constitution: A Cherry Worth Picking? (2006). Yearbook of European Law, pp. 363-394, 2006, Available at SSRN: https://ssrn.com/abstract=2211683

Alicia Hinarejos (Contact Author)

McGill University, Faculty of Law ( email )

3644 Peel Street
Montreal, Quebec H3A 1W9

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