Department of Law

Graham Butler

Implementing a Complete System of Legal Remedies in EU Foreign Affairs Law

Research output: Contribution to journal/Conference contribution in journal/Contribution to newspaperJournal articleResearchpeer-review

This article seeks to broaden the understanding of how a “complete system of legal remedies”—a thirty-year-old doctrine of European Union (“EU”) law—continues to shape the manner in which judicial review is conducted in EU foreign affairs law. The EU legal order encompasses the Union’s Common Foreign and Security Policy (“CFSP”). The primary law since the Treaty of Maastricht has included the Union’s foreign affairs for the purposes of formulation, decision-making, and execution. Yet, access to justice, the availability of remedies, and judicial review in the law of CFSP, to date, has not been fully conferred upon the Court of Justice of the European Union (“CJEU”).

The EU’s legal foundation—the treaties—envisages only a minimal role for the CJEU, reflecting the desire of the EU Member States, acting in the Council, to retain maximal political control over the shaping and execution of EU foreign affairs. Recent years have seen the CJEU deliver a number of expansive jurisdictional judgments that have changed the understanding of judicial review in EU foreign affairs. The CJEU’s rulings in Eulex Kosovo, H v. Council, and, as of 2017, Rosneft, have all expanded the Court’s jurisdiction so that it can adjudicate on issues relating to EU foreign affairs. In these latest judgments, the Court appears to be delivering upon its promise of ensuring the Union and its treaties form a “complete system of legal remedies,” which it originally proclaimed in its landmark Les Vert doctrine.

The reviewability of EU legal acts adopted upon a CFSP legal basis is uncertain, with no categorical standard for if, when, and how judicial review is conducted. Questions thus arise as to how far the CJEU will be willing to go to implement a “complete system of legal remedies” in EU foreign affairs. Through a critique of the Court’s jurisprudence, analyzing its flexible approach to the jurisdiction of the European courts—emphasizing access to justice and effective judicial protection—the implications of the Court’s assertion of jurisdiction begin to come to light, using the Rosneft judgment as a prime example. The Article makes three key assertions. Firstly, it contends that Rosneft may lead to forumshopping in cases based on EU foreign affairs law. Secondly, it maintains that there is still an important role for national courts in EU law, but not necessarily in EU foreign affairs law. Thirdly, it argues that as the CJEU begins to decide matters that may impinge upon political questions, it is likely the Court will soon have to develop and invoke an explicit political question doctrine in respect of EU foreign affairs.
Original languageEnglish
JournalColumbia Journal of European Law
Volume24
Issue number3
Pages (from-to)637-676
ISSN1076-6715
Publication statusPublished - Nov 2018

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