Abstract
The Chapter analyses the possible consequences of a binding EU Charter of Fundamental Rights on the functioning of the Common Foreign and Security Policy. The Charter will of course represent a limit to the traditional discretionary power reserved to the EU Council in this field of law. Moreover, the reform has provided for a legal remedy that individuals can activate. It is submitted that the combination of these two innovations should permit a more extensive and effective protection of fundamental rights when dealing with sensitive issues such as the fight against terrorism. This undoubtedly represents a major turning point in the evolution of the EU legal order which will force the amendment of the much criticized practice concerning restrictive measures against individuals, one of the most common ‘CFSP tools’ in contrasting terrorism. The new mechanisms applicable to the CFSP are bound to characterize all future developments in this area.
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Notes
- 1.
Amongst the various commentaries on the Reform Treaty, see S. Griller and J. Ziller, The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty? (Springer, 2008) and M. Dougan M., ‘The Treaty of Lisbon 2007: winning minds, not hearts’, (2008) 45 Common Market Law Review 617.
- 2.
[2007] OJ C 303/1. For an exhaustive overview of the legal doctrine on the subject-matter, see in this volume G. Di Federico, Chapter 2’.
- 3.
See Case T-306/01 Yusuf and Al Barakaat [2005] ECR II-3533; Case T-315/01 Kadi [2005] ECR II-3649 and Joined cases C-402 and 415/05 P Kadi and Al Barakaat [2008] ECR I-6351.
- 4.
As pointed out by G. Strozzi, ‘Prime considerazioni sul Trattato di Lisbona’, 2008, online: http://www.sudineuropa.net the Charter amounts to a treaty with the same legal value as the TEU.
- 5.
It has been argued that compared with the collocation it had in the Constitutional Treaty, the Charter might be perceived as “less important”. By contrast, some authors have suggested that being placed outside the treaties the Charter acquires more visibility to the advantage of all Europeans. See J. Ziller, Il nuovo Trattato europeo (Bologna, 2007), at 135; L.S. Rossi, ‘I diritti fondamentali nel Trattato di Lisbona’, 2007, online: http://www.europeanrights.eu.
- 6.
See House of Lords, EU Committee, Tenth Report of Session 2007–2008, The Treaty of Lisbon: an impact assessment, Vol. I, (London, 2007–2008), at 98.
- 7.
On the possible consequences of such an accession, see in this volume the contribution by G. Di Federico, n. 2 above.
- 8.
See A. Aust, Modern Treaty Law and Practice (Cambridge University Press, 2007) at 419.
- 9.
See U. Villani, ‘La riforma di Lisbona’, 2008, online: http://www.sudineuropa.net.
- 10.
This view appears to be shared, amongst others, by the House of Lords that stated: “there is just one organization, the Union” (House of Lords n. 6 above, at 19).
- 11.
For example, Sir Jacobs reckons that “a patchwork system (…) widely regarded as opaque, incoherent and generally unsatisfactory” (House of Lords, n. 6 above, at 19) will be removed. This opinion is shared by M. Dony, Après la reforme de Lisbonne – Les nouveaux traités européens (Éditions de l’Université de Bruxelles, 2008) at XIII, who insists on the disruption of the three pillar structure.
- 12.
Dashwood argues that: “…the result of the Reform Treaty would be to create a two-pillar structure” (House of Lords, n. 6 above, at 181).
- 13.
See new Art. 11 TEU. With reference to the possible “future scenarios” for the CFSP/ESDP provisions (and their implementation), see R. Whitman and A. Junicos ‘The Lisbon Treaty and the Foreign, Security and Defence Policy: Reforms, Implementation and the Consequences of (non-)Ratification’ (2009) European Foreign Affairs Review 25.
- 14.
Case T-228/02 Organisation des Modjahedines [2006] ECR II-4665.
- 15.
See n. 3 above.
- 16.
As to the former, see B. Conforti, Le sanzioni CEE contro l’Argentina e la loro legittimità alla luce del diritto comunitario, in N. Ronzitti, La questione delle Falkland-Malvinas nel diritto internazionale (Giuffré, 1984). The latter stem from the Declaration by the European Council of Madrid, 27 June 1989. See generally European Commission, Sanctions or restrictive measures in force (measures adopted in the framework of the CFSP), online: http://ec.europa.eu/external_relations/cfsp/sanctions/measures.htm.
- 17.
European Union Council, Basic Principles on the Use of Restrictive Measures (Sanctions)” of 7 June 2004, doc. 10198/1/04.
- 18.
Ibid.
- 19.
For example, the Member States – if so required by the EU act – will have to impose an embargo or provide for a visa ban against individuals. This obligation derives from the principle of loyal cooperation which is inherent to the EU legal order (see Case C-105/03 Pupino [2005] ECR I-5185, para 42). With particular reference to the CFSP, this principle is specifically invoked in Art. 11 TEU. See also Council of the European Union, Update of the EU Best Practices for the effective implementation of restrictive measures, Brussels, 24 April 2008, doc 8666/1/08.
- 20.
See Guidelines on implementation and evaluation of the restrictive measures in the framework of CFSP of December 2003 (online: http://register.consilium.eu.int/pdf/en/05/st15/st15114.en05.pdf). The version of this document dated 2 December 2005 includes a sort of vademecum to follow in drafting CFSP acts and EC regulations.
- 21.
Amongst the possible sanctions: embargo, suspension of political contacts and freezing of funds.
- 22.
The aim is to exercise an effective pressure on the targeted regimes while containing the economic and social repercussions that such measures can produce. See M. Garhagnati Ketvel, ‘The jurisdiction of the European Court of Justice in respect of the Common Foreign and Security Policy’ (2006) International and Comparative Law Quarterly 107.
- 23.
Common Position 2000/696/CFSP, [2000] OJ L 287/1.
- 24.
Common Position 2004/487/CFSP and EC Regulation 872/2004, [2004] OJ L 162, and following modifications.
- 25.
Common Position 2006/318/CFSP, [2006] OJ L 116 and EC Regulation 194/2008, [2008] OJ L 66, and following modifications.
- 26.
Common Position 2007/140/CFSP, [2007] OJ L 61 and EC Regulation, [2007] 423/2007.
- 27.
As occurred, for example, with the daughter (and her husband) of the dead former Burmese Prime Minister Soe Win, n. 25 above.
- 28.
See Guidelines on implementation and evaluation of the restrictive measures in the framework of CFSP, n. 20 above.
- 29.
See the 2005 version of the Guidelines on implementation and evaluation of the restrictive measures in the framework of CFSP, n. 20 above, p. 7. The document refers only to children, but this criterion should apply also to other relatives.
- 30.
In the case of Burma, the Common Positions refers to the deterioration of the internal situation and the only indication concerning relatives concerns children under 18, who in principle should not be targeted.
- 31.
See Case T-181/08 Tay ZA, pending. Here, an individual – Mr. Tay ZA – has claimed to annul EC Regulation 194/2008, [2008] OJ L 66/1, repealing EC Regulation 817/2006, which lists him amongst the targeted persons in the context of the sanctions against Burma without specifying the reasons for this, thereby violating his right to property, to a fair hearing and to an effective judicial protection.
- 32.
Case T-362/04 Minin [2007] ECR II-2003, para 101. Mr. Minin was listed as an associated person in the framework of Common Position 2004/487/CFSP, [2004] OJ L 162/116 concerning restrictive measures against Liberia, in particular its former President Taylor and other associated persons and entities. The CFSP act transposed into EU law the list drawn up by the Sanctions Committee created by the UNSC Resolution 1521 (2003). Amongst the sanctions there was the freezing of funds, established by EC Regulation 872/2004, [2004] OJ L 162/32. The applicant was listed (see EC Regulation 1149/2004, [2004] OJ L 222/17) because the subject had been deemed to finance the former President Taylor.
- 33.
[1997] OJ L 81/1.
- 34.
The list included three persons (the deputy Chief of the Mostar Police and two officers) deemed to be responsible for shooting some Muslims that went to the cemetery to visit the graves of their dead relatives.
- 35.
The International Police Task Force (UN) and the local police have carried out the necessary investigations in order to arrest and proceed against persons deemed to have committed war crimes (OHR Bulletin 37, 18 February 1997, online: http://www.ohr.int/). The IPTF handed in a report (26 March 1997), indicating three individuals “identified” as authors of the shooting against escaping persons (OHR Bulletin 38, 26 February 1997; OHR Bulletin 42, 29 March 1997).
- 36.
[2004] OJ L 39/19 amended by Common Position 2009/116/CFSP, [2009] OJ L 40/56.
- 37.
L. Gradoni, ‘L’Alto rappresentante per la Bosnia-Erzegovina davanti alla Corte europea dei diritti dell’uomo’ (2008) 3 Rivista di diritto internazionale 621.
- 38.
Regarding measures against Macedonians, see Cases T-349/99 Miskovic and T-350/99 Karic. Here, the claimants argued that the Council lacked competence to order visa bans in the domain of CFSP. Unfortunately, the CFI did not render a judgement in these cases as the applications were dismissed after the revision Council Decision 1999/612/CFSP.
- 39.
The jurisdiction of the Court in the domain of CFSP is limited under Arts. 46 and 47 TEU. The ECJ was nevertheless competent to ensure that acts of the CFSP did not encroach upon the powers conferred by the EC Treaty to the Community. The first judgement on an hypothetical ‘trespassing’ of the CFSP in the competences of the Community was handed down on 20 May 2008. See Case C-91/05 ECOWAS [2008] ECR I-3651, where the Court found that the Council had infringed Art. 47 TEU by adopting a decision in the domain of the CFSP, instead of a first pillar act (since the provision fell within the development cooperation policy) and therefore annulled the contested measure (see, in particular, paras 75–78). See further C. Hillion, R.A. Wessel, ‘Competence distribution in EU external relations after ECOWAS: Clarification or continued fuzziness?’ (2009) 46 Common Market Law Rev. 551 at 556 and L. Paladini, ‘I conflitti fra i pilastri dell’Unione europea e le prospettive del Trattato di Lisbona’ (2010) Il Diritto dell’Unione Europea, (forthcoming).
- 40.
[2001] OJ L 344/93. Common Position 2001/931/CFSP was adopted to implement UNSC resolution 1373 (2001) and subsequently amended by Common Position 2009/468/CFSP, [2009] OJ L 151/45. See also Common Position 2001/930/CFSP, adopted on the same day.
- 41.
[2001] OJ L 139/4. The Common Position was adopted to implement UNSC resolutions 1267 (1999) and 1390 (2002).
- 42.
See EC Regulation 2580/2001, [2001] OJ L 344/70 and EC Regulation 881/2002, [2002] OJ L 139/9, respectively.
- 43.
See Art. 1 of the Common Position.
- 44.
Art. 7 of EC Regulation 881/2002 entitled the Commission to amend the list in accordance with the indications provided by the UNSC or the ‘1267 Committee’. This has occurred 114 times, the last of which in 2009 (see EC Regulation 954/2009, [2009] OJ L 269/20). The 101st amendment was necessary to comply with the judgements in the Kadi and Al Barakaat appeal cases. Having confirmed the measures against Mr. Kadi, EC Regulation 1190/2008, [2008] OJ L 322/25 is the object of case T-85/09, Kadi, pending before the GC.
- 45.
See G. Armone, Terrorismo, listing e diritti umani, 2007, online: http://www.europeanrights.eu.
- 46.
For the purposes of the procedure “competent authority” shall mean a judicial authority or an equivalent competent authority.
- 47.
See Common Position 2007/448/CFSP, [2007] OJ L 169/69 and 2007/871/CFSP, [2007] OJ L 340/109.
- 48.
- 49.
Case T-228/02 Organisation des Modjahedines, n. 14 above and Case T-229/02 PKK [2008] ECR II-45, paras 57 ff.
- 50.
Pursuant to the 2007 guidelines (n. 48 above, at 4): “For the purpose of the review, the CP 931 Working Party carries out a thorough assessment as to whether the grounds for each listing are still valid. It takes into account all relevant considerations, including the person’s, group’s or entity’s past record of involvement in terrorist acts, the current status of the group or entity and the perceived future intentions of the person, group or entity” (italics added).
- 51.
- 52.
Joined cases C-402 and 415/05 P, Kadi and Al Barakaat, n. 3 above, AG Poiares Maduro, para 51.
- 53.
J. Almquist, ‘A human rights critique of European judicial review: Counter-terrorism sanctions’ (2008) International and Comparative Law Quarterly 309.
- 54.
The Basic Principles of 2004, n. 17 above, specify that sanctions against non-State actors will be adopted “in full respect of human rights and the rule of law”. Regarding the Guidelines, n. 20 above, the document confirms that “(t)he introduction and implementation of restrictive measures must always be in accordance with international law. They must respect human rights and fundamental freedoms, in particular due process and the right to effective remedy. The measures must always be proportionate to their objective”; “As indicated above, the restrictive measures should, in particular, be drafted in light of the obligation under Art. 6(2) TEU for the EU to respect fundamental rights, as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the Member States, as general principles of Community law” (5 ff.).
- 55.
See R. Bin, Democrazia e Terrorismo, 2006, online: http://www.forumcostituzionale.it. The original version is: “Che la sfida del terrorismo internazionale causi una seria minaccia per la tutela dei diritti costituzionali è affermazione corrente. Una prima osservazione mi sembra però indispensabile. Né il terrorismo, né la sua dimensione “internazionale”, né la politica di restrizione dei diritti di libertà in nome della difesa della sicurezza dello Stato sono fenomeni nuovi, tutt’altro”.
- 56.
This was the position adopted by the Commission (and by the United Kingdom) in the Kadi appeal, n. 3 above, para 35. More precisely, as reported by Advocate general Poiares Maduro in his opinion on the case, the Commission held that: “when the risks to public security are believed to be extraordinarily high, the pressure is particularly strong to take measures that disregard individual rights, especially in respect of individuals who have little or no access to the political process”.
- 57.
Joined cases C-402 and 415/05 P Kadi and Al Barakaat, n. 3 above, para 34.
- 58.
Cf. Case T-299/04 Selmani [2005] ECR II-20, and Case T-228/02 Organisation des Modjahedines, n. 14 above.
- 59.
Case C-355/04 P Segi [2007] ECR I-1657; Case C-354/04 P Gestoras Pro Amnistía [2007] ECR I-1579.
- 60.
Case T-253/04 Kongra-Gel [2008] ECR II-46.
- 61.
Case T-206/02 KNK [2005] ECR II-523 and Case C-354/04 P, Gestoras, n. 59 above.
- 62.
Case T-253/04 Kongra-Gel, n. 60 above.
- 63.
Case T-49/04 Hassan [2006] ECR II-52.
- 64.
Case T-253/02 Ayadi [2006] ECR II-2139.
- 65.
Cf. Case T-318/01 Othman [2009] nyr, with regard to the breach of Arts. 3, 8 ECHR, and Case T-47/03 Sison [2007] ECR II-73, with regard to the breach of Arts. 6, 7, 10, 11 ECHR and of its Protocol no. 1.
- 66.
Joined cases T-37 and 323/07 El Morabit [2009] nyr, making reference to both the ECHR (Art. 6) and the Charter (Arts. 47 and 48).
- 67.
The following cases are currently pending before the CFI/GC: Case T-135/06 Al-Faqih; Case 136/06 Sanabel Relief Agency; Case T-137/06 Abdrabbah; Case T-138/06 Nasuf; Case T-49/07 Fahas; Case T-76/07 El Fatmi; T-348/07 Al-Aqsa; T-409/08 El Fatmi; T-85/09, Kadi (for the annulment of the Regulation adopted after the ECJ appeals judgements in the Kadi and Al Bakaraat Foundation cases and confirming the restrictive measures). The following cases are also pending, but they concern restrictive measures against individuals ‘in the wake’ of sanctions against States: Case T-181/08 Tay ZA (Burma); Case T-121/09 Al Shanfari (Zimbabwe); Case T-145/09, Bredenkamp (Zimbabwe). In all these cases applicants have contested the infringement of their fundamental rights. In the similar and recently decided Case T-390/08 Melli Bank (Iran), the CFI, whilst acknowledging the Kadi appeal judgment, dismissed the action considering, inter alia, that “given the primary importance of maintaining international peace and security, the disadvantages caused are not inordinate in relation to the ends sought, especially because, first, those restrictions concern only part of the applicant’s assets and, secondly, Arts. 9 and 10 of Regulation No 423/2007 provide for certain exceptions allowing the entities affected by fund-freezing measures to meet essential expenditure” (para 71).
- 68.
The following cases are currently pending before the Court of Justice: Case C-399/06 P Hassan; Case C-403/06 P Ayadi; Case C-576/08 P OMPI; Case C-27/09 P France v OMPI. The latter two cases are appeals against, respectively, the CFI judgements in the cases T-256/07 and T-284/08, n. 74 below). It should also be mentioned that the House of Lords has recently submitted a preliminary reference to the ECJ (Case C-340/08, M (FC) e a.).
- 69.
Joined Cases C-402/05P and C-415/05, Kadi and Al Barakaat, n. 3 above.
- 70.
Case T-306/01 Yusuf and Al Barakaat and Case T-315/01, Kadi, n. 3 above.
- 71.
The legal literature on these judgements is extensive. Ample references can be found in L. Paladini, Le misure restrittive adottate nell’ambito della PESC: prassi e giurisprudenza, (2009) Il Diritto dell’Unione europea 365.
- 72.
Case T-253/02 Ayadi, n. 64 above and Case T-49/04 Hassan, n. 63 above. The CFI has confirmed the position expressed in Yusuf and Kadi but, with regard to the de-listing, added that “the Member States are bound, in accordance with Art. 6 EU, to respect the fundamental rights of the persons involved, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law”.
- 73.
Case T-47/03 Sison, n. 65 above and Case T-327/03 Al-Aqsa [2007] ECR II-79. For a review of these judgements, see A. Johnston, ‘Freezing terrorist assets again: walking a tightrope over thin ice?’ (2008) 67 The Cambridge Law Journal 31.
- 74.
Case T-229/02 PKK, n. 49 above, para 69 and Case T-253/04, Kongra-Gel, n. 60 above, para 103.
- 75.
Case T-256/07 OMPI [2009] nyr, and Case T-284/08, OMPI [2009] nyr.
- 76.
Case C-229/05 P PKK and KNK [2007] ECR I-439.
- 77.
Case T-206/02 KNK, n. 61 above.
- 78.
Ibid., paras 76 ff. The 3 April 2008 the CFI, relying on the arguments used in OMPI (Case T-228/02, n. 14 above) annulled the Council Decision in so far as it concerned the applicant. The CFI has recognized (para 69) that “In the present case, as a result of the absence of any reasoning expressly appearing in the contested decision or provided immediately thereafter, the applicant was not placed in a position in which it is able to understand, clearly and unequivocally, the reasoning by which the Council considered that the conditions laid down in Art. 1(4) of Common Position 2001/931 and in Art. 2(3) of the contested regulation had been satisfied in the circumstances of the case”.
- 79.
See Case C-355/04 P Segi and Case C-354/04 P Gestoras Pro Amnistía, n. 59 above, para 51.
- 80.
Listing related to Common Position 2001/931/CFSP, n. 40 above.
- 81.
Paras 53 ff. The Court has stated that: “The right to make a reference to the Court of Justice for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties”. Amongst the latter, the Common Positions adopted within the Third Pillar, which could be the object of an action for the annulment under Art. 35 TEU.
- 82.
Case C-117/06 Möllendorf [2007] ECR I-8361.
- 83.
It should be recalled that, notwithstanding the permissive approach adopted in Ayadi and Hassan (n. 63 and n. 64 above), the previous case-law had only recognized the protection of fundamental rights guaranteed under the category of jus cogens.
- 84.
Case C-117/06 Möllendorf, n. 82 above, para 78.
- 85.
Joined cases C-402 and 415/05 P Kadi and Al Barakaat, n. 3 above.
- 86.
See n. 52 above, para 31.
- 87.
Ibid., paras 283 and 284. More precisely, in his opinion concerning the Kadi appeal, AG Poiares Maduro stressed that in the Bosphorus judgement the Court accepted as self-evident what AG Jacobs had felt useful to spell out, i.e. that the respect of fundamental rights is a necessary condition for the legality of Community acts, n. 49 above, para 27.
- 88.
Ibid., paras 281and 285.
- 89.
Case 6/64 Costa v Enel [1964] ECR 585. For further considerations on the matter see C. Eckes, ‘Test Case for the resilience of the EU’s constitutional foundations’, (2009) 15 European Public Law 351, at 375 and A. Gattini, (2009) Common Market Law Rev. 213 at 224.
- 90.
Joined cases C-402 and 415/05 P, Kadi and Al Barakaat, n. 3 above, para 299. It should also be noted that the ECJ insists on the fact that “the review of lawfulness […] to be ensured by the Community judicature applies to the Community act intended to give effect to the international agreement at issue, and not to the latter as such” (para 286). Moreover, with specific reference to the contested EC Regulation, the Court observes that it “is intended to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations” concluding that: “it is not, therefore, for the Community judicature, under the exclusive jurisdiction provided for by Art. 220 EC, to review the lawfulness of such a resolution adopted by an international body, even if that review were to be limited to examination of the compatibility of that resolution with jus cogens” (para 287).
- 91.
Ibid., paras 301 and 302.
- 92.
Ibid., para 326.
- 93.
Case T-318/01 Othman, n. 65 above.
- 94.
In this sense, the revision of the listing procedure related to Common Position 2001/931/CFSP can be considered as a sort of self-incrimination on the part of the EU.
- 95.
Arts. 47 to 50 CFR.
- 96.
Art. 17 CFR.
- 97.
In addition, it is recognized in the EU documents (e.g. the “Basic Principles”, n. 17 above) and by the case-law, most notably the OMPI judgement (n. 14 above).
- 98.
The breach of the principle of proportionality has been invoked in several cases. See e.g. Case T-229/02 PKK and KNK, n. 76 above; Case T-327/03 Al-Aqsa, n. 67 above; Case T-47/03 Sison, n. 65 above; Case T-253/02 Ayadi, n. 63 above; Case T-49/04 Hassan, n. 64 above; Case T-299/04 Selmani, n. 58 above. Amongst the pending cases before the CFI see Cases T-135/06 Al-Faqih, T-137/06, Abdrabbah, T-363/07 Hamdi and T-181/08 Tay ZA, n. 67 above.
- 99.
Case C-355/04 P Segi and Case C-354/04 P Gestoras Pro Amnistía, n. 59 above, para 51.
- 100.
Joined cases C-402 and 415/05 P, Kadi and Al Barakaat, n. 3 above, paras 374 ff. The Commission, empowered to amend EC Regulation 881/2002 according to Art. 7, adopted EC Regulation 1190/2008 in line with the ECJ’s position, but confirming Mr. Kadi and Al Barakaat in the list of the individuals affected by restrictive measures (see n. 44 above).
- 101.
See Section 6.1 above.
- 102.
See D. Curtin, R. van Ooik, ‘The sting is always in the tail: The personal scope of application of the EU Charter of Fundamental Rights’ (2001) Maastricht Journal of European and Comparative Law 102. This was true since the first proclamation of the Charter.
- 103.
According to Judge Wathelet (quoted by H. Bribosia, Perspectives des droits fondamentaux et de la citoyennete européenne, in G. Amato and others (ed.), Genesis and destiny of the European Constitution: Commentary on the Treaty establishing a Constitution for Europe in the light of the travaux préparatoires and future prospects (Bruylant, 2007) at 998) the Charter was binding for the Institutions since the first proclamation on the basis of the Latin brocard patere legem quam ipse fecisti, being an interinstitutional agreement. In the opinion of A.J. Menéndez (Some elements of a theory of European fundamental rights, in E.O. Eriksen, A.J. Menéndez (eds.), Arguing fundamental Rights (Springer, 2006) at 161) the Charter has legal value and legal force as confirmed by the practice of the Institutions. This position is well founded although the restrictive measures adopted under the second Pillar seem to indicate that the Charter is not perceived to be compulsory in the domain of CFSP.
- 104.
See D. Thym, ‘Charter of Fundamental Rights: Competition or consistency of human rights protection in Europe?’ (2003) The Finnish yearbook of international law 11, who underlined how jurisdictional remedies in CFSP would have been necessary with a binding Charter.
- 105.
This is one of the provisions that escaped the aforementioned iconoclastic fury (see n. 9 above). In relation to the jurisdiction of the Court in the domain of CFSP, see the Discussion circle organized by the ECJ (doc. 10, Circle 1, 12 March 2003).
- 106.
Pursuant to Art. 275 TFEU: “The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions”.
- 107.
See L.S. Rossi, ‘I diritti fondamentali nel Trattato di Lisbona’, n. 5 above.
- 108.
Since the first proclamation of the Charter, Curtin and van Ooik, n. 102 above, at 111, stressed the lack of judicial review over acts falling within the (former) Second and Third Pillar.
- 109.
The provision appeared in Art. III-376 (2) of the Constitutional Treaty. Cf. M. Garbagnati Ketvel, n. 22 above, at 116; M. Cremona, ‘The Union’s external action: constitutional perspectives’, in Amato et al. (ed.), Genesis and destiny of the European Constitution: commentary on the Treaty establishing a Constitution for Europe in the light of the travaux préparatoires and future prospects (Bruylant, 2007) at 1200.
- 110.
For example, depriving individuals of the possibility to be informed in due time about the measures taken by the Council and therefore allowing them to contest the latter in court. Cf. Joined cases C-402 and 415/05 P, Kadi and Al Barakaat, n. 3 above, paras 349 ff.
- 111.
The same will be true for the infringement of the new Art. 39 TEU. This provision inserts a new legal basis for the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall in the domain of CFSP. It follows that the protection of fundamental rights will be enhanced for individuals targeted by restrictive measures. On the impact of a binding Charter on the Protection of personal data within the Area of Freedom Security and Justice, see further in this volume V. Bazzocchi, Chapter 10.
- 112.
House of Lords, n. 6 above, at 97.
- 113.
Based on the Segi and Gestoras case law, n. 59 above, individuals could benefit from a more extensive judicial protection if they were entitled to activate a non contractual liability claim against the EU (See M. Cremona, n. 109 above, at 1204 with reference to the Constitutional Treaty).
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Paladini, L. (2011). The European Charter of Fundamental Rights After Lisbon: A “Timid” Trojan Horse in the Domain of the Common Foreign and Security Policy?. In: Giacomo, D. (eds) The EU Charter of Fundamental Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 8. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0156-4_14
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