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The interactions between the European Court of Justice and the legislature in the European Union's external relations

Koutrakos, P. & De Baere, G. (2012). The interactions between the European Court of Justice and the legislature in the European Union's external relations. In: The Judiciary, the Legislature and the EU Internal Market. (pp. 243-273). Cambridge: Cambridge University Press.


This chapter explores the relationship between the judiciary and the legislature within the external relations of the European Union. It does so from two angles: on the one hand, it focuses on the interactions between the Court of Justice of the European Union (CJEU) and the drafters of the Treaties, the Union’s primary law, and, on the other hand, it examines the interactions between the Court and the legislature proper, that is the institutions which adopt secondary legislation. In the context of the Union’s external relations, this broad understanding of the term ‘legislature’ is necessary: the very genesis of this area of law owes its existence to the Court’s creativity against the paucity of references to external action in primary law; as for the central position of external relations in the current constitutional arrangements, it is due to the gradual adjustment of the Treaties to the evolving legal landscape as shaped by case law. The analysis is structured in two parts. The first part examines the interactions between the judiciary and the masters of the Treaties and analyses the manner in which the CJEU’s construction of the common commercial policy (CCP) and the Treaty drafters’ reactions to that construction have moulded that policy into the bedrock of EU external relations that it is today. It also assesses how the CJEU reacted to the sparseness of explicit external relations competences in the original Treaty establishing the European Economic Community (EEC) by devising a doctrine of implied competences, which has been codified in the Treaty on the Functioning of the European Union (TFEU) after Lisbon. The second part focuses on three specific areas of EU external relations (investment, aviation, civil justice) and examines the procedural frameworks which the legislature has introduced (or suggested) in response to the Court’s case law on competence. It explores the implications of the legislature’s responses for the management of the external competence of the Union, and the challenges these raise for both the Union and the Member States.

Publication Type: Book Section
Additional Information: Reprinted with permission.
Subjects: K Law > KZ Law of Nations
Departments: The City Law School > Academic Programmes
The City Law School > Institute for the Study of European Laws
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