Hard Cases: Proportionality in Light of Geopolitical Considerations

Actas de las XXVII Jornadas “Repensar la Unión Europea: Gobernanza, seguridad, mercado interior y ciudadanía” (Forthcoming)

26 Pages Posted: 15 Jun 2019

See all articles by Ciarán Burke

Ciarán Burke

University of Jena - Friedrich Schiller Universität

Alexandra Molitorisova

University of Bayreuth, Faculty of Life Sciences; Masaryk University - Faculty of Law

Date Written: June 2019

Abstract

The assessment of proportionality entails examining the relationship between aims and chosen means. The means must be chosen in such a way so to achieve the stated aim, and cannot go beyond what is strictly necessary. In the domain of the CFSP, the policy aims are wide-ranging, and post-Lisbon, accentuated constitutionally: the EU shall operate as a cohesive force in international relations, which contributes to, inter alia, peace, security, the protection of human rights and the strict observance of international law. The use of restrictive measures has become one of the principal means to pursue the EU’s strategic interests and objectives as identified by the European Council. The CFSP is a political domain, in which the Council enjoys a broad discretion: in determining the purpose of restrictive measures, in determining persons and entities that are subject to these measures and in making political, economic and social choices to meet the objective it chooses. Also for this reason, the role of the CJEU is limited and characterised by non-interventionism with the policy objectives. Observance of the procedural framework and the limits of the EU’s competences in the CFSP matters, a compatibility review per Article 40 TEU led by identification of the applicable legal basis of a CFSP act, together with review of legality of targeted sanctions, remain the sole CJEU’s agenda in this domain. By reviewing the Rosneft judgment, the article opens with the question of the CJEU’s jurisdiction over CFSP acts. It then proceeds to argue that the legal framework of the CFSP area a priori undermines any proportionality assessment of sectoral targeting, as attempted by the CJEU in Rosneft, i.e. restrictive measures against individuals and entities falling within Article 215(1) TFEU, interruption or reduction of economic and financial relations with third countries. Frustration of the proportionality assessment is provoked by the impossibility of sufficiently specifying the pursued goal (per the CJEU, stating the reasons for the imposition of measures by describing the general situation and the general objectives is sufficient), and the impossibility of asssessing, whether economic pressure exercised on the chosen sectors is effective to achieve the stated goal. These factors lead to overreliance on the Council’s assertions in the judicial review of sectoral targeting. As a result, there is an open-ended ceiling to the economic or financial means chosen to achieve a CFSP goal (however broadly determined), unless such means amount to either an abuse of powers or to incompatibility with Article 40 TEU.

Keywords: proportionality, political question, CFSP

Suggested Citation

Burke, Ciarán and Molitorisová, Alexandra, Hard Cases: Proportionality in Light of Geopolitical Considerations (June 2019). Actas de las XXVII Jornadas “Repensar la Unión Europea: Gobernanza, seguridad, mercado interior y ciudadanía” (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3399014 or http://dx.doi.org/10.2139/ssrn.3399014

Ciarán Burke

University of Jena - Friedrich Schiller Universität ( email )

Furstengraben 1
Jena, Thuringa 07743
Germany

Alexandra Molitorisová (Contact Author)

University of Bayreuth, Faculty of Life Sciences ( email )

Masaryk University - Faculty of Law ( email )

Veveri 70
Brno, 61180
Czech Republic

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