2011 年 2011 巻 31 号 p. 127-147
The Treaty of Lisbon amends the Treaty on European Union and the Treaty establishing the European Community. The articles about external relations were also amended by the Treaty of Lisbon.
Before the Treaty of Lisbon, there was not much research about the Common Foreign and Security Policy (CFSP) from a legal aspect. The CFSP was mainly based on intergovernmental cooperation and the European Court of Justice was not responsible for that area. This paper will analyze the CFSP from the point of view of law. Some researchers comment that the structure of the CFSP is still based on the intergovernmental cooperation and there are no big changes in this area. However, this article tries to show the positive aspects of the changes in the area of the CFSP owing to the Treaty of Lisbon.
This paper is divided into two main parts. The first part points out that external relations now have a unified framework and how meaningful the express international personality of the EU is. It also refers to the special character of the CFSP.
The second part of this paper bases itself on the first part and analyzes the EU competences in the area of the CFSP from the following four points.
First, this paper treats the character of competence. The competence of the CFSP is not exclusive, shared, or complementary, but sui generis. It is certain that the Member States transferred certain competence to the EU.
Second, in this paper, the following points are shown by examining related articles about CFSP measures. The first one relates a form of measures. The second point relates to the decision-making. The decision-making in the CFSP differs from that in the other policies. The third one relates to the binding measures. It is discussed whether the binding measures of the CFSP mean only the binding character of international law. The last point is how the CFSP’s measures can be implemented properly by the Member States without control by the ECJ.
Third, this paper shows the interference between the CFSP and other policies. Specifically, the key article (the new article 40 TEU) is discussed.
Fourth, in this paper, guarantee of individual rights is taken into consideration from the rule of law.