Christina Eckes argued that the Lisbon Treaty has altered the legal foundation of the European Union in such a way that the Court of Justice of the European Union (CJEU) has served to constitutionalise the CFSP. All instances of constitutionalisation, she argued, necessitates a form of Europeanisation.
Furthermore, Eckes explored two avenues where the court has extended its judicial control, namely by the means of institutional prerogatives and consistency obligations or through fundamental rights. Firstly, she explained how Article 40 TEU has significantly changed the structural jurisdiction of the Court, which in turn has had implications for the institutional prerogatives and consistency obligations in the CFSP. Changes in the Union’s consistency obligations have for instance created space for the High Representative and European External Action Service (EEAS) to define what consistency in CFSP entails.
Secondly, she demonstrated that Article 40 TEU has created a basis upon which the principles of sincere cooperation and national identity also extend to the CFSP. Lastly, she provided examples of case law where the court has relied on the fundamental rights of access to information and access to justice, in order to extend its jurisdiction into CFSP matters. Eckes provided examples of how rulings based on these fundamental rights have granted EU institutions access to CFSP documents and how the court has extended its jurisdiction to apply to cases concerning the protection of individual rights.
By the means of this analysis, Eckes concluded that the Lisbon Treaty has not isolated the CFSP from the rest of EU, rather it has done the exact opposite by constitutionalising and thereby also Europeanising the CFSP.
The discussion that followed the presentation was focused on questions of clarification concerning the definition of, and relationship between, the terms constitutionalisation and Europeanisation and the rationale supporting the paper’s case-selection.
By Tine E. J. Brøgger
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