The divergences of jurisdictional control among European States raise the stakes for a democratic control of the use of force. The law, on which the democratic legitimacy of the European States is based, establishes the control exercised by the courts under the guarantee of democratic control. Domestic law submits to Constitutional Courts this role of guardian of democracy. They act as protectors of the rule of law and fundamental rights. Yet, the use of force faces fundamental freedoms, particularly in the fight against terrorism. In this context, this paper aims to identify that the higher the activism, the jurisdiction and the legitimacy of Constitutional Courts’ decisions into domestic law, the more the democratic control of the use of force is realized by the judiciary. It argues that for this reason, the judicial review, but also the democratic control, can differ between European States.
As part of the CSDP development, these issues come up against limited powers of the ECJ in monitoring the use of force. The comprehensive approach provides the will to identify a large general-purpose strategy, sometimes where a joint civil/military response is used; it requires a high degree of convergence of state behavior in subjects affected by global security. This raises again the control of internal/external actions of the EU and Member States: what perspective to the control exercised by the Court in the context of a strong jurisdictional control by national courts?
This research is based on a comparative analysis of methods, conduct and control procedures of the use of force by the Constitutional Courts themselves and facing the ECJ’s jurisdiction. It allows to explain the behavior of Constitutional Courts with regards to the ECJ’s jurisdiction on Justice and Home Affairs policy although it remains open as part of the internal/external combination in the fight against terrorism.
