Constitutional Law of the EU’s Common Foreign and Security Policy

The Common Foreign and Security Policy (CFSP) of the European Union is a highly exceptional component of the EU legal order. This constitutionalised foreign policy regime, with legal, diplomatic, and political DNA woven throughout its fabric, is a distinct sub-system of law on the outermost sphere of European supranationalism. When contrasted against other Union policies, it is immediately clear that EU foreign policy has a special decision-making mechanism, making it highly exceptional.

In the now depillarised framework of the EU treaties, issues of institutional division arise from the legacy of the former pillar system. This is due to the reality that of prime concern in EU external relations is the question of 'who decides?' By engaging a number of legal themes that cut across foreign affairs exceptionalism, executive prerogatives, parliamentary accountability, judicial review, and the constitutionalisation of European integration, the book lays bare how EU foreign affairs have become highly legalised, leading to ever-greater coherence in how Europe exerts itself on the global stage.

In this first monograph dedicated exclusively to the law of the EU's Common Foreign and Security Policy in modern times, the author argues that the legal framework for EU foreign affairs must adapt in a changing world so as to ensure the EU treaties can cater for a more assertive Europe in the wider world.

Cited in Opinion of Advocate General Evgeni Tanchev, Case C-730/18 P, SC v Eulex Kosovo,ECLI:EU:C:2020:176, Court of Justice of the European Union (First Chamber), 5 March 2020; and, Opinion of Advocate General Gerard Hogan, Case C-134/19 P, Bank Refah Kargaran v Council of the European Union, ECLI:EU:C:2020:396, Court of Justice of the European Union (Grand Chamber), 28 May 2020.

1. The Constitutionalised Regime of the Common Foreign and Security Policy
1.1. Introduction
1.2. Approach
1.3. Conclusion
2. The History of the Common Foreign and Security Policy
2.1. Introduction
2.2. Formative Days, Pillarisation, and Modern Times
2.3. The Divide between CFSP Matters and Non-CFSP Matters
2.4. Conclusion
3. The EU Legal Order and the Common Foreign and Security Policy
3.1. Introduction
3.2. Non-parliamentary and Judicial Actors
3.3. Choice of Legal Basis and the Centre of Gravity
3.4. Contestation
3.5. Conclusion
4. The European Parliament and the Common Foreign and Security Policy
4.1. Introduction
4.2. A Tale of History
4.3. Soft Legal Powers in CFSP Matters
4.4. Stronger Legal Powers in CFSP Matters
4.5. Taking CFSP Matters to the Court
4.6. The Parliament in Context
4.7. The Future of the Parliament in CFSP Matters
4.8. Conclusion
5. The Court of Justice and the Common Foreign and Security Policy
5.1. Introduction
5.2. Situating CFSP Matters
5.3. A Constrained Court?
5.4. Questioning Jurisdiction
5.5. Lingering Questions
5.6. Political Questions
5.7. A Changing Border
5.8. Conclusion
6. Other Issues and the Common Foreign and Security Policy
6.1. Introduction
6.2. Governance, Values, and the Rule of Law
6.3. Democracy and Participatory Parliaments
6.4. Legitimacy
6.5. Accountability
6.6. Conclusion
7. The Future of the Common Foreign and Security Policy
7.1. Introduction
7.2. Reform of EU Foreign Policy Law
7.3. Abandoning the CFSP Legal Basis
7.4. The Steps Forward
7.5. Conclusion

“Graham Butler's book is certainly...the most comprehensive monograph on this topic…[and]…will be essential reading for many years to come.” –  Ramses A Wessel, Professor of European Law, University of Groningen, the Netherlands, European Law Review

“[T]he book is an impressive account of the literature and of the cases on a topic of great relevance to statesmen and to scholars.” –  Eileen Denza, Former Legal Counsellor, Foreign and Commonwealth Office, London, Common Market Law Review

“Butler offers an in-detail account … underlying the evolution and the status quo of CFSP law … contextuali[sing] the CFSP evolution with regard to the key themes, parsing the evolution of European integration. [A] must-read for anyone interested in EU external relations law, including academics, EU and member states' diplomats, policy-makers and legal practitioners, and students.” –  Maryna Rabinovych, University of Hamburg, Journal of Common Market Studies

“Graham Butler shows in this book … how foreign and security policy is very slowly but gradually being incorporated into the EU's general legal-constitutional system. The subject has hardly been researched in monograph form before, and thus, the book represents a significant research achievement.” –  Pär Hallström, Professor Emeritus of Law, Umeå University, Europarättslig Tidskrift

“To speak of the CFSP's integration within the EU legal order in terms of 'destiny' has a distinct Whig view of history flavour to it, one that, one expects, would have made the late Pescatore proud … the book has much to be commended for and most certainly is a valuable contribution to the legal literature on the CFSP.” –  Thomas Verellen, Assistant Professor of EU Law, Utrecht University, American Journal of Comparative Law