CYIL 2012

EMIL RUFFER CYIL 3 ȍ2012Ȏ This approach enabled the CJEU to analyse a measure from the perspective of its main aim (objective) and corresponding content and consequently establish the correct legal basis. Even though the whole approach as well as the concrete assessment by the CJEU in certain cases could be rightly criticised ( ECOWAS case being surely one of them), 16 the Court followed clearly established criteria and provided the necessary level of legal certainty for Union institutions. But with the Treaty of Lisbon, “Things Have Changed”. 17 IV. “Constitutional reshuffle” – CFSP under the Treaty of Lisbon The Treaty of Lisbon fundamentally changed the relationship between the CFSP and other Union policies, since it introduced a mutual “non-affectation” clause, which removed the previous hierarchical relationship charged in favour of Community policies. As already implied above, there is a perfectly legitimate reason behind this constitutional change, since the Union has acquired a single legal personality with a single set of aims and objectives, and on top of that one of the imperatives of the Treaty of Lisbon was to achieve a coherence of external action. However, this much advertised and no doubt much desired coherence and unity of external action might be difficult to achieve, given the very nature of the CFSP as a “hidden” pillar which has not been completely dismantled, and is still subject to special rules and procedures. So how much comfort does this new architecture for the 21 st century offer? IV.1 Art. 40 TEU – equality without delimitation? Art. 40 TEU outlines the mutual “non-affectation” clause in the following terms: “ The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this [CFSP] Chapter. ” What is clear from the wording of Art. 40 TEU is the equality of both the CFSP and other Union policies, which reflect the same (equal) legal force of both founding Treaties – TEU and TFEU. 18 What is rather unclear are the criteria for distinguishing between the CFSP and other EU policies. 16 See e.g. Heliskoski, J.: Small Arms and Light Weapons Within the Union’s Pillar Structure: An Analysis of Article 47 of the EU Treaty , E. L. Rev. 2008, 33(6), 898-912. 17 A brilliant Bob Dylan song from the “Wonder Boys” original soundtrack, released as a single on Columbia Records label on 1 May 2000. 18 Art. 1(3) TEU.

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