The European Court of Justice and External Relations Law by Marise Cremona & Anne Thies

Author:Marise Cremona & Anne Thies
Language: eng
Format: epub
ISBN: 9781849468329
Publisher: Bloomsbury Publishing Plc
Published: 2014-03-15T16:00:00+00:00

(i)The Internal Dimension of EU Foreign Affairs

With regard to the internal dimension of EU foreign affairs, the legal context for action seems in principle to be similar to the one for EU domestic affairs: the EU institutions need to comply with principles for the protection of individuals when adopting legislative measures, policies, strategies or positions regarding EU foreign affairs. Arguably this is also true with regard to the EU’s Common Foreign and Security Policy (CFSP): even though the ECJ’s jurisdiction to review EU conduct in that area is limited, it has been authorised to review the ‘legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council’.43 Whatever the precise reach of this jurisdiction, it is suggested here that in the light of the EU’s nature as a law-bound entity, which derives its powers from the Member States, and its Member States’ interest in the EU’s compliance with the rule of law, the reach of general principles in substance should be assessed independently from the scope of the ECJ’s jurisdiction.

The ECJ has reviewed EU legislative measures, which implemented the EU Member States’ international legal obligations, in the light of general principles.44 Moreover, the Court alluded to the EU’s possible obligation to provide compensation on the basis of EU general principles to individuals, who suffer from the consequences of a continued breach by the EU of an EU international legal obligation.45 The Court has thus acknowledged the applicability of EU general principles for the protection of individuals also where their enforcement might hinder the effective implementation of external policies,46 or increase the ‘costs’ of foreign affairs undertaken in the public interest.47

What deserves further attention, however, is the extent to which the ECJ recognises the international dimension or context of the contested EU conduct/ measure to be shaping the scope of protection under EU general principles that are invoked by applicants before the Court. In the assessment of EU legislation, which had been adopted on the basis of UN Security Council resolutions, the ECJ took account of the ‘importance of the aims pursued’ when identifying the scope of protection of the EU fundamental right to property (in the form of a general principle48) in Kadi I.49 Also in the context of the internal market, the ECJ has held that the right to property does ‘not constitute [an] absolute prerogative, but must be viewed in relation to [its] social function’ and that restrictions, ‘particularly in the context of a common organisation of the market’, can be justified, ‘provided that [they] in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed’.50

What distinguishes the situation in Kadi I from a purely internal situation is that ‘important aims’ were not only not related to the common organisation of the market, but also set neither by the EU nor its Member States. The

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