CYIL 2012

DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… Union, or of international peace and security, are in play.” 11 The relationship between the Community and CFSP competencies should have been, therefore, more of a complementary nature instead of a strict hierarchy and guided by the principle of consistency of the Union’s external activities. 12 Despite the above well argued concept presented by A. Dashwood, the relationship established in the case-law of the CJEU and confirmed in its judgement in ‘ECOWAS’ case offered a slightly different picture. The Court rather inclined to see the Community and the CFSP as “watertight compartments in the EU vessel” 13 and stated: “ Contrary to what is submitted by the United Kingdom Government, a measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty within the meaning of Article 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevents or limits the exercise by the Community of its competences . It is apparent from the case-law of the Court that, if it is established that the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, have as their main purpose the implementation of a policy conferred by the EC Treaty on the Community, and if they could properly have been adopted on the basis of the EC Treaty, the Court must find that those provisions infringe Article 47 EU .” 14 In light of this interpretation of Art. 47 (pre-Lisbon) TEU, in which this provision served as a guardian of Community policies, the correct legal basis was to be established according to the aim and content of the proposed measure. The CJEU could thus use the standard “centre of gravity” test, based on the distinction between the main and secondary/incidental objective of the measure: “If examination of a measure reveals that it pursues a twofold aim or that it has a twofold component and if one of those is identifiable as the main one, whereas the other is merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component. ” 15 11 Dashwood, A.: Article 47 TEU and the relationship between first and second pillar competences , In: Dashwood, A., Maresceau, M. (eds.): Law and Practice of EU External Relations , Cambridge University Press 2008, p. 75. 12 Ibid., p. 71-72. 13 Eeckhout, P.: External Relations of the European Union: Legal and Constitutional Foundations , Oxford University Press, 2004, p. 146. 14 C-91/05 Commission v. Council , para. 60 (emphasis added). The Court only confirmed its previous statements in case C-176/03 Commission v Council [2005] ECR I-7879, paras. 51 and 53, and case C-440/05 Commission v Council [2007] ECR I-9097, paras. 69 to 74. 15 Ibid., para. 77 (emphasis added). The CJEU also quotes its relevant previous jurisprudence to this effect, i.e. case C-211/01 Commission v Council [2003] ECR I-8913, para. 39; case C-338/01 Commission v Council [2004] ECR I-4829, para. 55, and case C-94/03 Commission v Council [2006] ECR I-1, para. 35; and with regard to the application of Art. 47 (pre-Lisbon) TEU, case C-176/03 Commission v Council , paras. 51 to 53, and case C-440/05 Commission v Council, paras. 71 to 73).

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