CYIL 2012

DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… However, the distinction between CFSP measures and measures under other Union external policies is still of crucial importance, since special procedures (including the general requirement of unanimity, subject to exceptions) are applicable in the area of the CFSP ( cf. Art. 23 ff. TEU). Whereas prior to the Treaty of Lisbon there was a hierarchical relationship between the Community (1 st pillar) policies and the CFSP (2 nd pillar) and the former was given precedence, the new Art. 40 TEU has changed this relationship. Now both the CFSP and other Union policies are on an equal footing and shall not be mutually affected – i.e. Union policies under the TFEU are protected from interference by CFSP measures, but equal protection is also provided vice versa for the CFSP. Nevertheless, there is a remaining fundamental question underlying the application of Art. 40 TEU: what should the criteria be for identifying the correct legal basis for acts falling under either the CFSP or other Union external policies? The strict criteria set out by the Court of Justice of the EU (hereinafter the “CJEU”) in the case C-91/05 Commission v. Council (‘ECOWAS’) 5 (distinction between the main and secondary/incidental objective of the measure) were useful in the pre Lisbon state of affairs, but will be difficult to apply in a situation where the Union has a single set of objectives for its external action. II. The nature of CFSP competence Despite the fact that the Treaty of Lisbon provided the Union with a comprehensive catalogue of categories and areas of competence, 6 the nature of the CFSP remains slightly ambiguous. This ambiguity stems from the wording and placement of Art. 2(4) TFEU, which plainly states: “The Union shall have competence , in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy , including the progressive framing of a common defence policy.” (emphasis added) In contrast to other categories of Union competences, the precise nature of CFSP competence (whether it is exclusive/shared/supporting, coordinating or supplementary) is not explicitly spelled-out. Nevertheless, there is a general agreement among commentators that CFSP competence cannot be of exclusive nature. 7 In my view, we could use an analogy with a shared parallel competence, which by definition cannot become an exclusive competence upon its exercise by the Union, i.e. the pre emption effect does not apply. 8 Or we can simply label the CFSP as “a special type of 5 C-91/05 European Commission v. Council of the European Union [2008] ECR I-3651. 6 Title I (Categories and Areas of Union Competence), Art. 2-6 TFEU. 7 See e.g. Eeckhout, P.: The EU’s Common Foreign and Security Policy after Lisbon: From Pillar Talk to Constitutionalism , In: Biondi, A., Eeckhout, P., Ripley, S.: EU Law After Lisbon , Oxford University Press, 2012, p. 268. 8 This is also the case of the external competence e.g. in the field of environment ( cf. Art. 191(4) TFEU) or development cooperation ( cf. Art. 209(2) TFEU). According to P. Van Elsuwege, CFSP competence

5