Legality in EU Common Foreign and Security Policy

Abstract

To some it may not be self-evident to discuss questions of legality in the context of the EU’s Common Foreign and Security Policy (CFSP). In early studies in particular, CFSP was perceived and presented as ‘political’ rather than ‘legal’.1 Even today, the treaties indicate that any review of the legality of CFSP decisions is limited to “certain decisions” (Art. 24(1) TEU). Any general review of legality on the basis of Article 263 TFEU thus seems to have been excluded for CFSP.2 Limitations to the enforcement of legality in the area of CFSP, however, do not allow for the conclusion that legality, as such, should be measured or approached differently in CFSP than in other parts of the Union’s legal order. The ‘normalisation’ of CFSP has been analysed quite extensively over the past years,3 and has pointed to a shift away from intergovernmentalism, even in a sensitive policy domain as the Common Security and Defence Policy (CSDP).4 Its further integration into the Union’s legal order has brought about new questions related to