Coping with distinctiveness

: common foreign and security policy in EU law

Abstract

The constitutional status of Common Foreign and Security Policy (CFSP) in European Union (EU) constitutional law is fundamentally ambiguous. Legal scholarship on EU’s external relations has identified that the policy is subject to both an integrationist trend and a distinctiveness trend: while it is part of the Union’s legal order and subject to certain provisions of general application, CFSP is nonetheless governed by ‘specific rules and procedures’ (Article 24 Treaty on the European Union).

This thesis considers whether EU institutions have emphasised one trend or the other; in what cases; with what results; and what may be possible explanations for the institutions’ choices. The analysis is conducted focussing on four issues that are associated with CFSP’s constitutional distinctiveness: the search for the boundaries of the policy; the decision-making procedures; the effect of CFSP acts; and the absence, in principle, of judicial review.

It is possible to identify, in institutional behaviour, both a trend toward normalisation and one toward distinction of CFSP. The mix between the two trends is present in the behaviour of most institutions. The most interesting consequence of this behaviour, however, is a peculiar distinction, if implicit, that may be read into the Court’s case law: a distinction between ‘high politics’ aspects of CFSP, left in the hands of Member States, and other aspects of CFSP, subject to EU law proper because they can affect individual rights. The aspects of CFSP that cannot affect individual rights have been marginalised, in the sense that their scope of application has been shrunk and their effects reduced.

Possible explanations are proposed for the behaviour of institutions, and for the choice of Member States to retain the constitutional ambiguity of CFSP. The analytical framework proposed by the thesis to this effect blends theories of EU integration, legal theory, and classic works of political thought.

Date of Award	1 Jun 2020
Original language	English
Awarding Institution	King's College London
Supervisor	Takis Tridimas (Supervisor) & Holger Hestermeyer (Supervisor)