18.1.4.1. General Considerations
The Court of Justicehas, under Article 46 EU, no jurisdiction under Title V: Acts adopted under the second pillar are not subject to judicial review by the Court of Justice. The exclusion of the Court of Justice is related to the political nature of the second pillar, Common Foreign and Security Policy (CFSP), and is not unusual. Foreign affairs and especially defence and security matters are in most countries considered not to be the busi- ness of the courts; even democratic control frequently suffers in these areas.127It is an area characterised by judicial deference to political deci- sions.
Will there be a role for the national courts? If national courts should be confronted with acts adopted in the context of CFSP, they will be on their own. The Court of Justice cannot be seized or asked for judicial assistance.128
127See also JW de Zwaan, ‘Community Dimensions of the Second Pillar’, in T Heukels, N Blokker and M Brus (eds), The European Union After Amsterdam (Kluwer, Deventer 1998) 179, at 188.
128The CFI has assumed jurisdiction to rule on public access to measures adopted under Title V, on grounds that Decision 93/731 on public access to Council documents applies to all Council documents regardless their contents. The fact that the Court does not have jurisdiction under Art. L of the EU Treaty (now Art. 46 EU) to assess the lawfulness of acts falling within Title V does not exclude its jurisdiction to rule on public access to those acts, Case T–14/98 Hautala v Council[1999] ECR II-2489; see, in the context of Title VI, Case T–174/95 Svenska Journalistfửrbundet v Council [1998] ECR II-2289.
18.1.4.2. Internal Effects of CFSP Acts
Acts which may be adopted in the framework of the ‘second pillar’, are joint actions,129common positions,130common strategies131and system- atic co-operation.132In contrast to what the Treaty says about decisions and framework decisions in the context of the third pillar, no special pro- vision is made with respect to the direct effect of these measures. The Court cannot express itself on the issue, nor on that of supremacy. It would appear that these questions will have to be decided by the national courts on the basis of the usual principles of international law, such as pacta sunt servanda and so forth. However, it may well be that many national courts will decline jurisdiction to decide cases in the area of CFSP, or that they will apply avoidance techniques so as not to answer difficult questions, such as acte du gouvernement, political question, separation of powers and the like.
18.1.4.3. CFPS and Foto-Frost
The Foto-Frostprinciple cannot, as such, apply in the context of the second pillar, given the exclusion of the Court of Justice. The prohibition on the national courts to pronounce themselves on the lawfulness of Community law was based on the exclusive competence of the Court of Justice to rule on their validity. Since the Court of Justice has no jurisdiction at all in the second pillar and cannot rule on the validity of acts adopted in the sec- ond pillar, that cannot be the ground for excluding the national courts’
competence.
Nonetheless, legal issues may arise, for instance in relation to funda- mental rights. Perhaps unexpectedly, it is the Human Rights Court that has been asked about judicial protection in the context of the second pillar.133In the light of the fight against terrorism in the aftermath of 9-11, the Council of the European Union adopted two common positions under the second
129Art. 14 EU.
130Art. 15 EU.
131Art. 13 EU.
132Art. 16 EU.
133European Court of Human Rights, admissibility decision of 23 May 2002, Segi and Gestoras Pro Amnistia and others v Germany, Austria, Belgium, Denmark, Spain, Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, the United Kingdom and Sweden, available on www. echr.coe.int.
134Council common position 2001/930/CFSP of 27 December 2001 on combating terrorism, OJ 2001, L 344/90, contained statements of principle on the fight against terrorism and contained measures to be adopted by the Union and the Member States, and urged the Member States to accede to a number of international treaties against terrorism. Council common position 2001/ 931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism, OJ 2001 L 344/93 instructed the Community to adopt measures concerning the freezing of funds, and ordered the Member States to afford each other the widest possible assistance in preventing and combating terrorist acts.
pillar.134In December 2001 and February 2002 the activities of the organ- isations Segi and Gestoras Pro-Amnistia, which figured in the list annexed to Common position 2001/931/CFSP, were prohibited by court order, on the grounds that they were linked to the Basque terrorist move- ment ETA. Eleven members of Segi were placed in custody. Before the Strasbourg Court, the applicant associations brought a case against all 15 Member States of the Union, alleging infringements of several Convention rights. They stated that their rights had been infringed as they had not been able to challenge before the Court of Justice the meas- ures adopted by the 15 Member States in the framework of these common positions.
The Court held that it did not have to rule on the question whether the applicants had exhausted all legal remedies under Union law, such as the action in damages or even the action for annulment, in the light of the judgment Jégo-Quéré that had been handed down by the Court of First Instance only a few days before:135the complaints were in any case inad- missible, since the applicants could not be considered direct victims of the Common positions. Common position 2001/930/CFSP was not directly applicable and merely urged the Union and the Member State to adopt measures against terrorism. The measure could not serve as a legal basis for criminal or administrative actions adopted against private persons.
Common position 2001/931/CFSP did not concern the applicants directly either. Articles 2 and 3 were addressed to the Community, which had sub- sequently adopted Council regulation 2580/2001 of 27 December 2001.
However, this regulation did not concern the applicants either; to the extent that it did, they could seize the Court of Justice. Article 4 of the Common position was addressed to the Member States and was intended to improve co-operation in the fight against terrorism, in the context of Title VI of the EU Treaty. To that end, the Member States could fully exploit their existing powers in accordance with acts of the Union and other international agreements binding on the Member States. The Strasbourg Court stated that Article 4 of the Common position could serve as a legal basis for concrete measures liable to affect the applicants, especially in the context of police co-operation and Europol. However, the provision did not add any new powers that could be used to the detri- ment of the applicants. It only contained an obligation for Member States to co-operate, which did not address private individuals or affect them directly.
The Court of Human Rights added that concrete measures implement- ing the Common positions would be susceptible to judicial review in each
135It is striking that the Strasbourg Court reacted so swiftly to a revolutionary judgment of the CFI intended to reverse a longstanding position of the ECJ The judgment was soon
‘reversed’ by the ECJ in Uniún de Pequeủos Agricultores. The remark of the Strasbourg Court seemingly contained an approval of the position of the CFI.
legal order concerned, whether national or international. The fact that the organisations figured on the list annexed to the position might be embar- rassing, but was not sufficient to justify an application of the Convention.
Consequently, the Court did not consider the applicants victims of a vio- lation of the Convention as is required under Article 34 ECHR, and declared the complaints inadmissible.
The Court of Human Rights thus seemed to start from the premise that Common positions do not, by nature, affect individuals directly, and require further implementation before they take effect. Accordingly, it is not the Common position itself that is to be regarded as directly infring- ing the rights of individuals, but rather the national or Community meas- ures implementing them. These should however be open to judicial review either before the national or the European Courts as the case may be; the Common positions themselves must not.
Segi and Gestoras Pro Amnistia did however bring actions before the Court of First Instance, seeking compensation for the damage allegedly suffered as a result of their name having been included in the list of ter- rorist groups pursuant to Common position 2001/931/CFSP. In support of their arguments, the applicants claimed that the Common position was vitiated by a number of irregularities, among them breach of fundamen- tal rights and principles as protected by the ECHR and the Charter of Fundamental Rights, the right to the presumption of innocence and the right to a proper hearing in so far as there was no means of challenging the common position through the courts, and several other fundamental rights.136 The cases are still pending, but given that the Luxembourg Courts have no jurisdiction in the second pillar, it is not very likely that the applicants will be awarded damages.137
18.2. THE NATIONAL PERSPECTIVE
In several Member States the constitutional court or a court having con- stitutional jurisdiction has announced that it does retain the right to review the constitutionality of secondary law, either directly, or indirectly, through the national implementation or application. The German Bundesverfassungsgericht and the Italian Corte costituzionale have announced that they have reserved this power to themselves since the nineteen seventies in the Solangeand Frontinicases and their progeny, in
136See pending cases T–333/02 Gestoras Pro Amnistía association and others v Counciland T–338/02 Segi association and others v Council.
137In Case T–228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council, pend- ing, the applicants sought annulment of several decisions, among which two common positions updating the Common position 2001/931/CFSP, arguing that the measures infringed their fundamental rights by including them in the lists. The CFI does not how- ever have jurisdiction.
the area of fundamental rights. The principles enunciated in those cases still exist, even if they have been somewhat adjusted overtime. While these cases were and are the subject of fierce criticism, as being nationalist and hostile to the uniformity of Community law, their merit has been that they have played a part in the development of a fundamental rights case law of the Court of Justice. Indeed, with these cases, the Italian and German con- stitutional courts have contributed to exposing the lack of fundamental rights protection in the project of European integration.138And as a conse- quence, one may assume that their case law has contributed to convincing the Court of Justice to fill the gap in fundamental rights protection under the Treaties, and to actually enforce these principles against the Community institutions, as it did for instance in the T Portbanana cases.
It is no coincidence that it is the area of fundamental rights where the constitutional courts reserve control functions. The area of fundamental rights is their single most significant domain, the area that they consider to be their chief responsibility. While the German and Italian court accepted that Community law might infringe on certain constitutional principles, such as the division of powers between the State organs and the exercise of the legislative, executive and judicial function, fundamen- tal rights are sacred. More recently, other courts have joined the Italian and German courts and have refused to hand over ultimate responsibility for fundamental rights. The president of the Belgian Arbitragehof was reported stating that secondary Community law would not escape review of its constitutionality, be it indirectly through the national implementa- tion, as long as there was no European Court which would effectively ensure the respect of the fundamental rights as it exists in the national sys- tems. As long as that was not the case and in the absence of a catalogue of fundamental rights, he said, ‘il me paraợt que la limitation du respect des droits fondamentaux est encore justifiable’.139 The analogy with the Solange case
138That is at least common perception. In contrast Everling, a former German ECJ Judge wrote: ‘This is historically not correct since the relevant jurisdiction began long before. Above all it is certainly an odd supposition that the personalities who were or are judges of the Court of Justice are squinting timidly at the judgment of a German or other national court and that they can be influenced by pressures of national institutions. According to the author’s experience, the judges are never impressed if national courts even of the highest level threaten to ignore their obli- gations under the Treaty. But of course, they are highly interested in their opinions and they are always ready to be convinced by better arguments’, U Everling, ‘The Maastricht Judgment of the German Federal Constitutional Court and its Significance for the Development of the European Union’, YEL, 1994, 1, at 14–15.
139M Melchior, in Diritto comunitario europeo e diritto nazionale, (Milano, Giuffrè, 1997), 233, at 236; It must be stressed however, that the position of the president of the Arbitragehof did not coincide with the view of the procureur généralof the Cour de cassationwho in his 1992 mercuriale enounced the superiority of all treaties over the national Constitution, J Velu, ‘Contrôle de constitutionnalité et contrôle de compatibilité avec les traités’, JT, 1992, 729 and 749; In addition, the case in which the Belgian Conseil d’Etatawarded precedence to the interpretation of the Treaty by the ECJ over the Constitution, concerned funda- mental rights, namely Art. 8 of the Constitution on Belgian nationality and Art. 10 (prin- ciple of equality); see Conseil d’Etat, 5 November 1996, Orfinger v Etat belge, JT, 1997, 253.
law of the Bundesverfassungsgerichtis obvious. The Danish Hứjesteretalso retains the right for Danish courts to control the respect for fundamental rights by the Community institutions, but it follows a different reasoning.
In its decision on the constitutionality of the Treaty of Maastricht, the Hứjesteretannounced that the Danish courts could not be deprived of their right to try questions as to whether a Community act which is upheld by the Court of Justice exceeds the limits for the surrender of sovereignty under the Act of Accession. ‘Therefore, Danish courts must rule that an EC act is inapplicable in Denmark if the extraordinary situation should arise that with the required certainty it can be established that an EC act which has been upheld by the Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Act of Accession’. This is a varia- tion of the German Maastricht Urteilwith respect to Kompetenz Kompetenz, but for the Danish courts the same reasoning applies to conflicts with Danish fundamental rights. The Hứjesteretheld that ‘Section 20 of the Danish Constitution does not permit that an international organisation is entrusted with the issuance of acts of law or the making of decisions that are contrary to provi- sions in the Constitution, including its rights of freedom. Indeed, the authorities of Realm have themselves no such power’.140It therefore seems that should the Community act in conflict with Danish constitutionally-protected funda- mental rights, it is considered to be acting ultra vires, and as a consequence, the Danish courts must hold such act to be inapplicable in Denmark.
The second area of contention between the Bundesverfassungsgericht and the Court of Justice is precisely that of Kompetenz-Kompetenz. In the Brunner decision, the Bundesverfassungsgericht announced that it would control whether specific Community measures were ultra vires. If they were, they would be inapplicable in Germany. The decision conflicts with the principle of supremacy and with the exclusive jurisdiction of the Court of Justice to review the validity of Community law.141
Before making a cross-national appraisal, it may be useful to examine the positions of various national courts on their jurisdiction to review sec- ondary law on a country by country basis.