The role of the European Court of Justice in the field of common foreign and security policy after the Treaty of Lisbon: new challenges for the future

The purpose of this chapter is to show the increasing importance of the role of the European Court of Justice (ECJ) in the field of Common Foreign and Security Policy (CFSP) after the entry into force of the Treaty of Lisbon. Although the Treaties expressly exclude the jurisdiction of the ECJ in this area, certain changes brought about by the Treaty in this field could significantly enhance its role in shaping the European foreign policy. The chapter is divided in three substantive parts. The first part will briefly analyse the general rule in the Treaty of the lack of the jurisdiction of the ECJ in the field of CFSP and the reasons for this. Whereas the sensitivity of the area and the willingness of the Member States to keep their sovereignty in this field is a legitimate reason for the lack of jurisdiction, it is less clear why the Court does not have jurisdiction to rule on actions for annulment for the breach of essential procedural requirements in the adoption of CFSP acts as well on questions of compatibility of CFSP acts with human rights. The second part will deal with the questions of delimitation between pillars/areas. Pre-Lisbon, the first pillar had absolute preference over the second and third pillar. Lisbon changes this approach: not only shall the implementation of the CFSP not affect the exercise of the Union competences under the Treaty on the Functioning of the European Union (TFEU), but the implementation of these policies shall not affect the exercise of the Union competences under CFSP. The third part will discuss restrictive measures. In this field, the Treaty now distinguishes between three types of restrictive measures: measures intended to prevent and combat terrorism, measures against third countries and restrictive measures against natural or legal persons. The review of the latter is subjected to the jurisdiction of the ECJ, which is a novelty under the Treaty. It will be analysed how this new exception to the non-jurisdiction rule could influence cases such as Kadi and Al Barakaat.