CYIL 2012

DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… incidental. The CFSP would thus still constitute the proper legal basis, without infringing the development cooperation contained in the TFEU. VI. Conclusion Several options have been proposed by commentators, e.g. regarding CFSP as lex generalis used in situations when there are no specific policies in TEU or TFEU, which could be used as lex specialis , or considering the potential involvement of the European Parliament in the legislative procedure as an additional criterion for choosing the legal basis. No doubt the requirement of consistency of the Union’s external policies, stipulated in Art. 21(3) TEU, must also be taken into account. But despite all the efforts to reconcile the CFSP with other external policies, we still can expect tensions and potential conflicts between the institutions in implementing the new framework for EU external action under the Treaty of Lisbon. So where does Art. 40 TEU actually leave us? Currently we are left restlessly waiting at the gates of justice in Luxembourg, since the CJEU is dealing with this matter in the pending case C-658/11 Parliament v. Council . The Court thus has an excellent opportunity to give us much needed guidance on the application of Art. 40 TEU, which will be of crucial importance for all future activities of the Council in the framework of the CFSP.

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