By Thomas Verellen
The Court of Justice of the EU (CJEU) recently added a new chapter to the long-running chain-novel on the relationship between the Common Foreign and Security Policy (CFSP) and other areas of EU external action. In its judgment of 14 June 2016, the Court’s Grand Chamber answered questions on the choice of legal basis (CFSP versus AFSJ) of a Council decision concluding a transfer agreement between the EU and Tanzania, and on the meaning of Article 218(10) TFEU on the sharing of information by the Council with the Parliament as it pertains to treaty-making in the CFSP.
The ruling is interesting, as it is perhaps indicative of a relaxed, rather pragmatic, approach to the politically thorny question of the CFSP’s scope, as well as revealing of a principled effort by the Court to further embed the CFSP into the EU legal order. In this sense, the Court’s approach in Somali Pirates II is structurally similar to the one undertaken in the recent case of H v Council on the scope of the CJEU’s jurisdiction in CFSP-disputes.
In the following post, I briefly develop both aspects of this equation – pragmatism with regard to the scope of the CFSP versus principle with regard to the reach of EU constitutional principles into the CFSP – and I conclude with a brief reflection on the normative issue of whether the Court stays within its role as a judicial body, where I suggest the CJEU’s approach fits squarely within its duty to say what the law is. Before proceeding any further, however, a few words of background are in order. Continue reading