Law and Foreign Policy Before the Court: Some Hidden Perils of Rosneft

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 547-561 | Article | (Table of Contents) I. Introduction. - II. Background to the dispute and the questions referred. - III. Jurisdiction: The criticism. - IV. The Court and preliminary rulings. - IV.1. Law. - IV.2. Politics. - V. Conclusion. | (Abstract) The landmark decision of the Court of Justice in Rosneft (judgment of 28 March 2017, case C-72/15) has been mostly praised by academic commentators for opening the doors of preliminary rulings in the Common Foreign and Security Policy (CFSP), and for upholding the rule of law in that area. While this Article mostly welcomes the momentous pro-integrationist implications of the mechanism of preliminary ruling through the immediacy of dialogue between Member States' and EU Courts, it also criticises the decision in Rosneft. In particular, it argues that the Court's reasoning to establish jurisdiction over a restrictive measure perpetuates a line of case law that hides risks, both for the judicial protection of individuals, and for the institutional balance and the separation of powers. By such critique, this Article partially departs from mainstream scholarship, which sees in Rosneft a positive development for the respect for the rule of law in CFSP. While that progress is entirely commendable, this Article elaborates upon and criticises other potential consequences of the Court's decision on what constitutes a reviewable act pursuant to Art. 275 TFEU.

Keywords

• common foreign and security policy
• rosneft
• restrictive measures
• integration
• jurisdiction
• preliminary ruling