CYIL 2012

DELIMITATION BETWEEN THE COMMON FOREIGN AND SECURITY POLICY COMPETENCE… The criteria set out by the Court in ECOWAS case will be of hardly any help, since the “centre of gravity” test (focused on main and ancillary objectives of a certain measure) cannot be used effectively in a context of the common set of aims and objectives of the Union’s external action. 19 In a situation where we allocate the main objective of a measure (e.g. to “ preserve peace, prevent conflicts and strengthen international security ” within the meaning of Art. 21(2)(c) TEU), but at the same time we identify another component of the measure which is not merely incidental (e.g. to “ foster the sustainable economic, social and environmental development of developing countries ” within the meaning of Art. 21(2)(d), thus falling under the development cooperation under Art. 208 TFEU), we face the inevitable dilemma: which legal basis should take precedence? 20 Consequently, we find ourselves in a somewhat paradoxical situation, where the Court should presently also determine whether a measure adopted under one of the Union’s polices in TFEU does not encroach upon the CFSP, thereby protecting this specific area, but cannot rely on any strict criteria to this end. 21 Nevertheless, some guidelines or a set of criteria will be needed, regarding the extent of the powers of the EU institutions for the exercise of the Union’s competences under the CFSP. Moreover, any choice of a CFSP provision(s) as a legal basis “ must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure ”. 22 The search for the relevant criteria can thus begin. IV.2 In search of lost criteria at the imaginary boundary In theory, we could consider the CFSP as a lex generalis for the Union’s external action which should be, as a rule, used as a legal basis unless there is a specific competence under other Union policies ( lex specialis ). However, as J. Heliskoski rightly pointed out, such distinction will not help in situations where only part of the measure falls under the CFSP and the remaining part under other Union policies. 23 This absence of clear and precise criteria in such situations can result in a further blurring of a boundary between the CFSP and other Union policies, which would in turn diminish the legal certainty and predictability of the Union’s external action. 19 For a more detailed account, see Van Elsuwege, op. cit. supra in note 8, p. 1003-1004. 20 In the “pre-Lisbon” setting, the answer given by the CJEU was not so clear cut either: the TEC competence precluded the measure from being taken under the CFSP, due to (former) Art. 47 TEU (C-91/05 Commission v. Council , paras. 108-109), but the Court remained silent on whether the TEC legal basis should have been preferred for adoption of such measure. 21 This ironic result of the Treaty of Lisbon is also highlighted by De Baere, G.: Constitutional Principles of EU External Relations , Oxford University Press, 2008, p. 299. 22 Case C-176/03 Commission v Council , para. 45. 23 Heliskoski, J., op. cit. supra in note 16, p. 911. According to this author, the solution could be only division of the measure into two independent parts – a CFSP act and an act under other Treaty policies. The same suggestion is made by P. Eeckhout, but he also points out that “in the case of an act with a single content and a dual purpose”, splitting such act in two might not be workable in practice. See Eeckhout, op. cit. supra in note 7, p. 276.

9