The legal framework for the CFSP was firstly enshrined in the Maastricht Treaty on European Union of 1992. The reform of the CFSP, done by the Lisbon Treaty in 2007, changed it significantly. The Lisbon Treaty abolished the three-pillar structure of the EU. The Union became a single legal order with a legal personality, under which the CFSP became one of the EU’s policies.
The specific nature of the policy is evident in the limited nature of the CJEU’s jurisdiction. The Court of Justice. The Court of Justice is seen as a motor of European integration and MS decided to significantly limit its competence in the field of CFSP. Pursuant to Article 24(1) TEU, the CJEU has no jurisdiction over these provisions, with the exception of its jurisdiction to review compliance with Article 40 TEU and to review the legality of certain decisions provided for in Article 275(2) TEU. This means that the CJEU’s jurisdiction is almost entirely excluded in this area, so that legal instruments adopted under the CFSP are practically beyond judicial control . It cannot, therefore, interpret primary law in this field by way of a preliminary ruling, nor can it review the legality of CFSP decisions. However, the case law of the CJEU emphasises that the CJEU will have jurisdiction to give a preliminary ruling under Article 267 TfEU on the validity of an act adopted on the basis of CFSP legislation, provided that the request for a preliminary ruling concerns either a review of the compatibility of that decision with Article 40 TEU or a review of the legality of restrictive measures adopted against natural or legal persons (Article 275 TfEU) . On the other hand, the CJEU’s competence to give preliminary rulings on the interpretation of laws created in the area of CFSP appears to be excluded. Also excluded is a proceeding against a Member State under Article 258 TfUE with a complaint for failure to comply with CFSP obligations under the TEU .
However, the current Treaties provide for the CJEU’s competence to rule on CFSP matter in two situations, set out in Articles 40 TEU and 275 TfUE.
Firstly, the CJEU has jurisdiction to monitor compliance with Article 40 TEU. Under Article 40 TEU, the implementation of the CFSP is without prejudice to the application of the procedures and powers of the institutions provided for in the Treaties for the exercise of EU competence. Conversely, the implementation of EU policies is without prejudice to the application of the procedures and powers of the institutions provided for in the Treaties for the exercise of the EU’s CFSP competences.
Under this jurisdiction, the CJEU acts as the ‘guardian of the borders’ between the CFSP and other EU policies and actions (in particular the so-called ‘external actions of the Union’ set out in Articles 206-216 TfUE) . Article 40 TEU statutes the distinctiveness of two regimes – the ordinary EU regime (EU policies and actions of a supranational nature, including external actions such as HRH or humanitarian aid) and the CFSP. Article 40 TEU emphasises that the Union’s competences under the CFSP, and under other provisions of the TfEU relating to Union policies and actions, are not mutually exclusive but complementary, each with its own scope of application and pursuing different objectives .
The CJEU, under Article 40 TEU, has no general competence to assess the legality of acts adopted under the CFSP, and the only objection it may consider is the inappropriateness of the legal basis i.e., that the act should have been adopted under procedures applicable to Union policies and activities other than the CFSP . This means that an action alleging an infringement of Article 40 TEU may be brought under Article 263 TfEU by the three categories of entities specified in that provision (including, inter alia, natural, or legal persons). The CJEU has emphasised on several occasions that, based on Article 40 TEU, it is obliged to ensure that decisions adopted in the field of the CFSP do not encroach on the competences which the provisions of the TfEU confer on the EU in the field of policies other than the CFSP .
Secondly, the CJEU has the competence to review the legality of decisions providing for restrictive measures against natural or legal persons , adopted by the Council (Article 275 ak. 2 TfUE). It should be emphasised that the right of individuals to bring direct actions against decisions providing for restrictive measures against them is an important novelty introduced by the Lisbon Treaty. Interestingly, the CJEU has developed a jurisprudence whereby Article 24(1) TEU refers to Article 275(2) TfUE not to define the type of procedure by which the Court may review the legality of certain decisions, but to define the type of decisions whose legality may be reviewed by the Court in the context of any procedure for such review of legality . The review of the legality of acts of the Union takes place under two complementary procedures, set out in Article 263 TfUE (the so-called action for annulment), on the one hand, and Article 267 TfUE (the question for a preliminary ruling), on the other. Both procedures establish a complete system of legal remedies and procedures to ensure the review of the legality of Union acts, entrusting it to the Union Courts. Inherent in that complete system of legal remedies and procedures is the right of individuals to challenge the legality of Union acts either by bringing an action under Article 263 TfEU or by raising a plea of their invalidity before a national court and having the national court, which has no jurisdiction to declare such invalidity itself, submit a question to the Court of Justice for a preliminary ruling in that regard . Interpreting Article 275(2) TfEU narrowly and excluding the possibility for the courts of the Member States to refer to the CJEU for a review of the validity of a Council decision taken in the field of CFSP would be contrary to the structure of the system of effective judicial protection established by the Treaties .
Thus, Article 275 TfEU provides the Court with a basis for reviewing the legality of decisions providing for restrictive measures against natural or legal persons in a twofold procedure i.e., that set out in Article 263 TfEU (individual action for annulment) and in Article 267 TfEU (question for a preliminary ruling). An individual action under Article 275 ak. 2 TfUE will only be admissible if two conditions are cumulatively met:
- the contested decision will provide for restrictive measures against the applicant,
- the applicant will be directly and individually concerned by the contested decision .
The jurisdiction of the CJEU concerns decisions adopted by the Council. It does not therefore cover acts of the European Council. Nor are all Council decisions subject to CJEU review, but only those that „provide for restrictive measures against natural or legal persons”. Article 275 TfUE primarily concerns decisions imposing so-called ‘smart sanctions’, consisting, inter alia, of freezing the funds of persons linked to terrorists. The application of such sanctions usually takes place in two stages. First, a unanimous CFSP decision of the Council providing for the possibility of imposing sanctions is taken. This is then implemented by the Council, which, on the basis of Article 215 TfUE, issues the necessary acts imposing restrictive measures against natural or legal persons. In doing so, the Council acts by qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission. The European Parliament shall be informed of the adoption of the act.
The procedure indicated in Article 275 TfUE for the CJEU to review Council decisions concerns decisions taken in the first stage. By contrast, the implementing measures imposing these restrictions adopted by the Council on the basis of Article 215 TfUE take the form of an ordinary act of EU law adopted on a basis other than the CFSP. As such, they are subject to full review by the CJEU.
However, not all decisions issued under the CFSP and imposing restrictive measures can become the subject of a complaint under Article 275 ak. 2 TfUE. The condition for challenging these acts before the EU courts is their individual nature . Thus, if the restrictive measures provided for in the decision are of a general nature, as they apply to objectively defined situations and to categories of persons and entities indicated in a general and abstract manner, such a decision cannot be regarded as providing for restrictive measures against natural or legal persons within the meaning of Article 275 ak.2 TfUE. It is irrelevant in this regard that the applicant challenged the provision only insofar as it concerned him.
Excluded from Article 275 TfEU are all other means of challenging such an act, including actions brought by the EU institutions and Member States under Article 263 TfEU, or a question for a preliminary ruling by national courts concerning the legality of such an act (under Article 267 TfEU).
It is problematic whether the CJEU has the competence to give an opinion on the compatibility of international agreements on the basis of Article 37 TEU with the Treaties . According to Article 218(11) TfUE, a Member State, the European Parliament, the Council, or the Commission may obtain the opinion of the CJEU on the compatibility of an envisaged agreement with the Treaties. The competence of the CJEU to give such an opinion is of course not in doubt in the case of international agreements concerning external action regulated by the TfUE. It is problematic when the envisaged agreement relates exclusively or mainly to the CFSP. On the one hand, Article 218(11) TfUE is part of the uniform procedure for the conclusion of international agreements by the EU, which also applies to the CFSP, which would argue in favour of giving the CJEU competence to give an opinion on the compatibility of such an agreement with the Treaties. On the other hand, Article 218(11) TfUE also confers competence to request the CJEU to give an opinion also to the European Commission and the European Parliament, which are generally excluded from the CFSP area. It is interesting that Article 218 TfUE does not confer any power on the High Representative in this regard. The Court has not yet had the opportunity to rule on the admissibility of issuing such an opinion.
Taking into account the systematics of Article 218 TfUE, the view has to be expressed that the CJEU has the competence to give an opinion on draft international agreements which exclusively or predominantly concern the CFSP. Moreover, a request for such an opinion may come from all entities identified in Article 218(11) TfUE. What is unclear is the scope of such a request. According to established CJEU case law, a request for an opinion may concern the substantive or formal validity of an agreement in the light of the Treaty, and the CJEU’s ruling on the compatibility of a proposed agreement with the Treaties may depend not only on substantive law provisions, but also on provisions concerning competence, procedure or the institutional organisation of the EU . The CJEU’s opinion may relate in particular to the division of competences between the EU and the Member States in the area of CFSP.
The request for an opinion must also relate to a proposed agreement and not to an agreement already concluded and binding on the EU. In its opinion of 4.10.1979 1/78, the Court clarified that a request for an opinion is possible when the subject matter of the agreement is sufficiently specified, even if the text of the agreement is not yet fully drafted and the way is open for alternatives.
