The Judicial Control of Foreign Policy: towards a normalisation of CFSP in the EU legal order?

The scope of the jurisdiction of the Court of Justice of the EU (CJEU) to exercise judicial review of the Common Foreign and Security Policy (CFSP) is a field that has remained unexplored until a few years ago. Unsurprisingly, no specific role was entrusted to the EU Courts when the CFSP was established in the Maastricht Treaty. It was considered that foreign policy decisions could not be subject to judicial control because they affect very sensitive issues from a political perspective. This situation has gradually changed as the CFSP has broadened its objectives and the decisions taken under CFSP have had negative implications for fundamental rights. The main objective of this contribution is to analyse the implications of the case-law of the CJEU for the judicial review of CFSP and, in general, for the EU legal system as a whole. It thus asks whether and, if so, to what extend remains any gaps in the Court’s control of CFPS acts. First, the scope of judicial review of the CFSP, as set out in the Treaties, will be examined. Secondly, attention will be devoted to study the main judgments of the CJEU and the GC in relation to the scope of judicial review of the CFSP. Both EU Courts have been called to intervene on several occasions in recent years to resolve issues of significant relevance for the legal and political configuration of the CFSP. Finally, the interpretation adopted by both the CJEU and Advocate General in KS/KD and Neves 77 will be analysed. The two judgments have profound constitutional implications for the EU legal order, as they confirm that the scope of the CJEU’s jurisdiction in CFSP is not as limited as envisaged under Articles 24(1) TEU and 275(2) TFEU. What is even more relevant, CFSP and CSDP should no longer be considered an obstacle to the EU accession to the ECHR, since legal avenues exist to provide redress for human rights breaches arising in those fields.