'Effective judicial review is of the essence of the rule of law' : challenging Common Foreign and Security Policy measures before the Court of Justice

Posted in e-Journal European Papers 24.11.2017This article discusses the role of the Court of Justice in reviewing acts adopted under the Common Foreign and Security Policy, seeking to determine to what extent the “exceptionalism” of the CFSP, its characterisation as a field of executive action largely shielded from judicial scrutiny, is an accurate assessment. The Court’s role is constrained in two ways. First, although the CFSP has been integrated into the overall legal structures of EU external relations by the Lisbon Treaty, it is still subject to “specific rules and procedures” (Art. 24, para. 1, TEU) and among these specific rules are limitations on the jurisdiction of the Court of Justice. Second, is the self-restraint of the Court itself when reviewing acts adopted within the framework of external policies in which the decision-making institutions have a wide discretion; this self-restraint is not specific to the CFSP but the CFSP is a clear case of broad policy discretion. Despite these constraints we are seeing a growing number of cases in which the Court is asked to assess the legality of CFSP acts. The article addresses three main questions: 1) What is the scope of the limitation to judicial review in the CFSP? 2) What is the scope of the Treaty-based exceptions to this limitation? 3) Does the degree and intensity of judicial scrutiny of CFSP acts demonstrate a particular judicial reticence with respect to CFSP

Justice and Home Affairs in a Globalised World: Ambitions and Reality in the tale of the EU-US SWIFT Agreement

The EU's policy on Justice and Home Affairs has as its objective the establishment of the Union as 'an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States'. How does this essentially internal objective translate into international action? How does the Union respond, in an internal policy field, to external challenges? This paper will assess the ambitions and the reality of the external dimension of the EU's policy of Justice and Home Affairs from two perspectives. The first is the close link between internal and external objectives and policies, and the implications for both EU competence and policy priorities. The second is the progressive constitutionalisation of the JHA field, its transformation from inter-governmental cooperation into a policy domain subject to the political and judicial accountability of ordinary legislative procedures. The paper is structured around a case study of the negotiation, renegotiation and eventual conclusion of the EU-US Agreement on the transfer of financial messaging data for the purpose of combating terrorism (the 'SWIFT' Agreement), and in particular the interplay thereby revealed between (i) different regulatory approaches to data protection in the context of international commercial transactions and the needs of private commercial undertakings; (ii) different (EU) institutional actors in the context of international action against terrorism where the EU needs to be seen as an effective actor and partner of the US; and (iii) the needs of public security and the need to provide against the risk of breaches of individual rights of data protection and privacy through the misuse of security-based powers.political science; security/internal; competences; accountability; legislative procedure

Introduction : the new frontiers of EU administrative law and the scope of our inquiry

European Papers posted in e-Journal 24.11.2017This article introduces our study into the operation of administrative law in EU external relations by introducing its general themes and fields of study. It starts by characterising the EU as a global actor and by illustrating how EU administrative law has developed in general, and in the area of external relations in particular. It then moves to examine the instrumental role that administrative law plays in advancing the EU’s external policy objectives, and the difficulties involved, following from the general way in which many of these objectives have been defined. Building on Bovens’ definition of accountability, we lay down a main framework for studying accountability in this context, and its different dimensions studied in the individual articles: legal, political, financial, administrative and social. This article then provides a general comparison of administrative action in the area of external action, building on general typologies of EU administrative action, with a view to laying the ground for an examination of the extent to which external relations is special. Finally, it closes with a brief introduction to one of the key themes in this Special Section: the scope of institutional discretion, and its link to the overall accountability of EU action in this area

Structural principles and their role in EU external relations law

Published: 24 December 2016The nature of the Treaty provisions on EU external action, with a set of open-ended policy objectives and fewer policy-directed legal obligations on the Member States, has left much to the agenda-setting of the political institutions. The Court of Justice emphasises the need for the institutions to retain their discretion, their room for manoeuvre; it is non-interventionist, tending to take those choices at face value without seeking to define or shape them. Instead it has taken on another role: it ensures that the institutions act within their powers, and that the Member States do not obstruct the formation and implementation of Union policy. It is in fact engaged in establishing and protecting an institutional space within which policy may be formed, in which the different actors understand and work within their respective roles. The principles which have been drawn from the Treaties and elaborated by the Court to establish this institutional space are identified here as ‘structural principles’. They include the duty of sincere cooperation, the principles of conferral and institutional balance, mutual solidarity, subsidiarity, and the principle of autonomy. By identifying and developing these principles, which by their nature are flexible and capable of evolution, the Court of Justice exercises a formidable role in the governance of EU external action despite its hands-off approach to substantive policy choice. This paper seeks to explore further the nature of these structural principles as legal norms. It first offers an explanation for the importance of structural principles in the EU s external relations by exploring the nature of EU external relations powers. Second it begins an enquiry into the nature of structural principles: what does it mean to say that they are principles, that they are structural, and that they operate within external relations? Third, it offers a tentative typology of structural principles and some ideas on the ways in which they may complement and operate in tension with each other

Integration, membership and the EU neighbourhood

Available online: December 2022This article addresses the operation of integration both inside and outside the EU and the ways in which the EU’s internal integration, built upon foundations of common values, mutual trust and solidarity, interacts with integration in the EU’s neighbourhood, built – according to Article 8 TEU – on the EU’s values and good neighbourliness. Can we identify not only the rights and privileges but also the character of EU membership by reflecting on ‘integration without membership’ in its neighbourhood? The paper reflects from both an internal and external perspective, first, on the continuing evolution of the principles governing the EU’s relations with its neighbours, and second, on how these might throw light on the legal principles at the heart of EU membership. The focus is on two central principles – mutual trust and conditionality – and the ways in which they structure both internal (intra-EU) and external (neighbourhood) relationships of integration

The impact of Brexit on the careers of EUI law graduates

Published online: 29 Mar 2019This paper raises some questions about the possible impact of the UK leaving the European Union on the career pathways of mobile and internationally oriented PhD graduates interested in an academic career in law, with particular reference to the specific case of the European University Institute (EUI). It first addresses some of the reasons for the popularity of the UK academic job market as a destination for EUI law graduates and then considers the potential impact of Brexit on these factors. While a number of factors have made the UK an attractive market for these highly mobile young scholars, their mobility means that should the balance shift, other countries may replace the UK as top choice

Common commercial policy and the determination of exclusivity : opinion 1/75 (local cost standard)

Published online: 3 May 2022On 14 July 1975, the European Commission submitted a request for an Opinion of the Court on the compatibility of an ‘envisaged agreement’ with the EEC Treaty, in accordance with what was then the second subparagraph of Article 228(1) EEC (now, as amended, Article 218(11) TFEU). The agreement was a draft ‘Understanding’, negotiated within the OECD, on a local cost standard for export credit schemes. Opinion 1/75, handed down barely four months later in November 1975, represented a number of ‘firsts’: it was the first time that this prior compatibility (Opinion) procedure for international agreements had been used; it was the first case in which the Court assessed the scope of the Community’s treaty-making powers in the field of trade; and in this ruling, the Court first decided that the conclusion of international agreements in the field of trade policy (the Common Commercial Policy, CCP) was an exclusive Community competence. Indeed, for the first time, the Court clearly separated the issues of existence and exclusivity of external competence. However, the case is not only an important historical marker: several of its dicta are still regularly cited and the underlying rationale of Opinion 1/75 is still current, visible in contemporary debates on trade policy, on exclusivity and on the function of the Opinion procedure itself