Butler publication in Europarättslig Tidskrift on the Court of Justice – University of Copenhagen

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07 November 2016

Butler publication in Europarättslig Tidskrift on the Court of Justice

Graham Butler at Centre for Comparative and European Constitutional StudiesFaculty of Law has published a new article in Volume 19, Issue 4 of Europarättslig Tidskrift (Swedish European Law Journal) on the jurisdiction of the Court of Justice of the European Union in the Common Foreign and Security Policy (CFSP).

The article, ‘Attacking or Defending?’ seeks to answer to what extent has the Court neglected its Treaty-mandate to shy away from CFSP, and contrastingly, what efforts have the Court made to ensure that the specific characteristics of CFSP are protected? With the Treaties not being precise on the exact limits of what constitutes CFSP, or the Court’s jurisdiction, it is inevitable that the Court would be placed in a position where it is to rule on its limited remit, and the extent of this perceived boundary within the current Treaties. The problems arise when the Court is asked to decide whether a particular agreement is ‘principally’ CFSP or not, where it is to rule on the limit of how far CFSP can be stretched.

At the heart of this article is an attempt to find to what extent the Court has both simultaneously confronted and safeguarded the legal nature of CFSP through an attack and defend model. To begin with, a brief overview is provided of the unique legal nature of CFSP that is central to understanding the Court’s jurisdictional dynamics in this field, given CFSP’s unique legal characteristics laid out in the Treaties. Second, the Court’s exact competences in CFSP are discussed by teasing out the wording of the Treaties and the rationale for these limited arrays of capabilities, given there was once a time when what was permissible under the legal nature CFSP was nearly unlimited, but have been substantially curbed as other non-CFSP external relations competences have been developed and acquired. In the third instance, the approach the Court has taken to CFSP in the case law is analysed given the Court’s competence in the limited circumstances that it is permitted. Fourthly and finally, some conclusions can be drawn on the continuing predicament that the Court finds itself in when dealing with CFSP.

These constitutional limits placed on the Court as an institution, and CFSP as a policy, make for an ideal depiction of the challenges faced for the Union’s legal order when the two interact with one another. By proposing an ‘attacking’ and ‘defending’ paradigm using cases from recent years, the Court’s inherent contradiction in CFSP will be exposed.

You can read more, and access the article, ‘Attacking or Defending? Jurisdiction of the Court of Justice in the EU's Common Foreign and Security Policy’ published in Europarättslig Tidskrift (Swedish European Law Journal), (2016) Volume 19, Issue 4, here.

For more on Graham Butler’s research, see his profile at the Faculty of Law, University of Copenhagen here.