CYIL 2012

EMIL RUFFER CYIL 3 ȍ2012Ȏ competence”, due to its solitary standing in Art. 2(4) TFEU and on account of the wording of Art. 24(1) TEU, which emphasizes that the CFSP is subject to “ specific rules and procedures” . 9 Suffice it to say at this point that the ambiguities related to the CFSP only start with its specific nature. They further extend to its scope 10 and its interplay with other Union external policies, which we shall try to explore below. III. CFSP before the Treaty of Lisbon – feeling slightly inferior? In the pre-Lisbon days of the (supranational) Community, the (intergovernmental) European Union and the metaphor of the “Greek Temple” pillar structure – introduced into the discourse to bring some sense into the complex constitutional arrangement – the CFSP seemed to be one of the “unequal” pillars. This relationship was based on the wording of Art. 47 (pre-Lisbon) TEU, whose possible interpretation pointed in the direction that precedence (or supremacy) was to be given to Community policies: “ Subject to the provisions amending the Treaty establishing the European Economic Community with a view to establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them. ” (emphasis added) The CFSP in this understanding was a “residual” policy (at least in legal terms), whose provisions could have been used as a legal basis only if a Community legal basis under the Treaty establishing the European Community ( hereinafter the “TEC”) was nowhere to be found. However, it should be pointed out that the above reading of the hierarchical relationship between the Community and the CFSP pillars offers a somewhat simplified and distorted picture. As A. Dashwood has argued, in a very persuasive manner, “the CFSP competence embraces all areas of a foreign, security and defence policy” and given the broad scope of the attribution of competence in Art. 11(1) and 17(1) (pre-Lisbon) TEU, “[i]t cannot have been intention of the authors of the TEU to allow the scope and effectiveness of the CFSP, as explicitly there defined, to be restricted by Article 47, above all when considerations of the security of the might be regarded as “a non-defined, sui generis category of competences (...), which is not subject to pre-emption.” See Van Elsuwege, P.: EU External Action After The Collapse Of The Pillar Structure: In Search Of A New Balance Between Delimitation And Consistency , CML Rev. 47, 2010, p. 991. 9 Cremona, M.: The Two (or Three) Treaty Solution: The New Treaty Structure of the EU , In: op. cit. supra in note 7, p. 50. 10 In Art. 24(1), first subparagraph, TFEU frames the scope of the CFSP in fairly generous terms, as a sort of ‘mother of all external competences’: “ The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security , including the progressive framing of a common defence policy that might lead to a common defence. ” (emphasis added).

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