Rule of Law in the European Union's Foreign Policy Limits to Judicial Review

Abstract

In most constitutional systems, political institutions are left a large margin of discretion as regards substantial foreign policy decisions and courts tend to not get involved. Substantial foreign policy decisions are regarded as part of “high politics”, dealing with questions that are generally conceived as “political questions”, which are not within law’s province or within the court’s jurisdiction. This train of thought has given rise to the doctrine of political question, a legal doctrine established by the US Supreme Court that, in essence, labels some questions as non-justiciable and thus not possible for a court to decide on. This doctrine is far from uncontroversial as it might lead to a judicial abdication at the detriment of rule of law as, according to several constitutional theories, access to judicial review is one of the cornerstones in the principle of rule of law. The possibility of access to an independent judiciary and of judicial review is an essential aspect of the rule of law. The principle of rule of law was introduced in the EU legal order with Article 6 (1) of the Amsterdam TEU and can now be found in Article 2 TEU. According to Article 21 TEU, the European Union shall in its action on the international scene be guided by the principles which have inspired its own creation, one of these principles being the rule of law as provided for in Article 2 TEU. Furthermore, one of the objectives of the European Union’s external action is to promote the values that founded the European Union, among them the respect for rule of law. The aim of the thesis is to investigate the rule of law in the EU foreign policy by looking at the submission of EU public authorities to judicial review. To achieve this the author attempts to answer the research questions: Is the access to legal review in EU foreign policy more limited in the former second and third pillars than in the former first pillar?; and, is there a doctrine of political question present in the European court’s case law that constitutes judicial abdication at the detriment of rule of law? The method used in the thesis is traditional legal methodology and the material analyzed is primary law and case law from the European Courts. In the thesis it is concluded that the limits to judicial review are indeed problematic from a rule of law perspective. It is also concluded that the extent of the problem is hard to estimate due to the fuzzy boundary between CFSP and non-CFSP decisions. Furthermore it is concluded that there exists no systematic doctrine of political question that further limits the access to legal review. Finally, the author argues that while the limits to judicial review are similar to those in most constitutional systems, it can also be argued that the EU should try to lead by example, especially as one of the aims of the EU foreign policy is to export the values that inspired its creation, among them the principle of rule of law.