Judicial review by the Court of Justice of the European Union of restrictive measures adopted in the field of the CFSP

The balance between effectiveness and legality

Abstract

This contribution analyses various issues arising from the judicial review exercised by the Court of Justice of the European Union, in particular the General Court, in relation to restrictive measures adopted by the European Union in the framework of its Common Foreign and Security Policy. As a consequence of the requirements stemming from the principle of the rule of law (Article 2 TEU) and the right to effective judicial protection (Article 47 of the Charter of Fundamental Rights of the EU), the Court’s case law has accepted, firstly, that preliminary rulings and actions for damages are also available in this field, in addition to the main procedural instruments provided for by the founding treaties (actions for annulment and objections of illegality). Secondly, case law has required that the basic procedural guarantees be respected, in particular the requirement of sufficient evidence. However, given the peculiarities of the subject matter and the margin of appreciation enjoyed by the Council, the case law has also recognised the existence of material and procedural particularities in the review of legality exercised by the Court. In any event, the rights of the defence (entitlement to disclosure of evidence, access to the file, the right to be heard and the right to periodic review) play a key role in the review of the legality of restrictive measures. In short, this is a complex matter in which case law seeks to strike a balance between the effectiveness of the Union’s Common Foreign and Security Policy, as provided for in the founding treaties, and the requirement for legality of the measures.