Remedying constitutional heresies: the charter, damages and jurisdiction in the common foreign and security policy

This contribution analyses the intersection between the CFSP and fundamental rights. In particular, my focus is on judicial protection as an essential tool to ensure protection of any fundamental right. We will start by analysing the case law of the Court in relation to its own jurisdiction in CFSP matters (Section 2). We will then consider cognate case law in relation to the EU institutions’ duties to respect the Treaties and the Charter whenever they act (Section 3), and assess the potential implication of this case law for the area of CFSP (Section 4). We will then argue that the European Council, the Council and the High Representative have a positive duty to ensure that any CFSP act is fundamental rights compliant, which means also ensuring that there is no gap in judicial protection arising from action in the CFSP. For this reason, I argue that: (i) any CFSP instrument should include a national jurisdictional clause, clearly allocating responsibility to one or more jurisdictions for the purposes of judicial review, hence ensuring the rule of law, both in terms of access to judicial redress and legal certainty; and (ii) an action for damages against the Council can be brought for failure to ensure the protection of fundamental rights when adopting a CFSP instrument.