An Assessment of the Reasoning by Implied Hierarchy in the Case Law of the Court of Justice in Common Foreign and Security Policy
Year: 2026
Type: book-chapter
Abstract: As a general rule, all acts of EU institutions are subject to judicial review, but in the field of Common Foreign and Security Policy, the EU Treaties limit the involvement of the judiciary. Conceptually and practically, this is an awkward exception in a system based on the rule of law. It is therefore important to understand the precise contours of the Court’s jurisdiction in this area. The Court has done its best to deliver justice in CFSP, but the case law is still partly inconsistent, developing, and difficult to rationalize. This chapter argues that the Court has tried to manage the uncertainty through a reasoning by implied hierarchy, which is characteristic of its case law at least since Mangold, whereby a provision is interpreted in the light of (higher-ranking) principles of Union law (this is the ‘hierarchy’), and whereby a lower-ranking norm gives expression to a higher-ranking norm (this link between norms is the ‘implied’ part, because it is not stated in the Treaties). The chapter also provides a normative assessment of such reasoning. The case law is still better than it could have been, because, as a result of the CJEU’s judgments, fundamental rights are more protected—at least procedurally—than they were before. But the Court should justify more convincingly why systematic and teleological interpretations are preferred to literal interpretations.
Source: Oxford University Press eBooks
Author: Luigi Lonardo
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
OpenAlex ID: W7147289503