On the 12th of February 2024, the Court of Appeal of The Hague ruled that the Netherlands is under an obligation to cease the export of F-35 parts to Israel given the existence of a clear threat of International Humanitarian Law (IHL) violations by the latter in Gaza. This appeal, brought by three NGOs, represents yet another example of the growing civil society engagement with States’ military export policies.2 In this case, the applicants contested the Netherlands’ practice of issuing licenses for weapons on the basis of, inter alia, Council Common Position 2008/944/ CFSP (the ‘Common Position’), a legal instrument setting common rules governing control of exports of military technology and equipment referred to in the EU Common Military List. This contribution assesses a legal question raised by the State in the context of these proceedings, i.e., whether the Common Position may be invoked before a national court or whether it has direct effect. Although this question was not answered by the Court of Appeal – as discussed below – this author takes the view that it may in principle be answered affirmatively. The Common Foreign and Security Policy (‘CFSP’) – the policy context within which the instrument was adopted – may be governed by special rules, but these do not necessarily prejudice the possibility to invoke CFSP norms before national courts if these are binding and can affect the normative framework of a given case.
The Common Foreign and Security Policy (‘CFSP’) may be governed by special rules, but these do not necessarily prejudice the possibility to invoke CFSP norms before national courts
1. Lecturer in EU law, VU Amsterdam; PhD Candidate, Centre of European Law, King’s College London. a.i.carrozzini@vu.nl.
2. Exports to Saudi Arabia, for example, have come under scrutiny before, specifically, the UK High Court of Justice; the Belgian Conseil d’Etat; and an Italian court
As anticipated, the question of direct effect was not decisive in this case: reliance on the Common Position could be made indirectly, given that the applicable national instrument – the Strategic Goods Decree (BSG) – subjects the granting of licenses to compliance with international obligations (Arts. 5(4) and 11(3) BSG) and thus, to the Common position and the Arms Trade Treaty (ATT) (paras. 5.30-5.34 of the Judgment). The reasoning of the Court of Appeal is consistent with the duty of conform interpretation, which mandates that national law must interpreted as far as possible in light of EU Law. Why should direct effect be discussed then? Simply put, because the duty of conform interpretation has limits, and notably cannot lead to a contra legem reading of national law. And States may fail to adopt implementing measures, or may do so in a way that forecloses a conform interpretation. A quick review of the 25th Annual Report on compliance with Common Position 2008/944/CFSP reveals this is not an unfounded concern: according to this instrument, twenty Member States (‘MS’) have not updated their implementing measures since the last amendment of this instrument (2019);3 for some, implementation information is even missing or revealing partially overlapping measures.4 There is, in other words, potential for an uneven application of the rules set within the Common Position, a potential which has sadly been underlined by
Understanding whether direct effect is possible could improve consistency in this field, not the least because any incompatibility between a national measure and a CFSP norm cannot be resolved by a national judge via the principle of primacy where that norm does not possess direct effect
3. Twenty-Fifth Annual Report according to Article 8(2) of Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment, Doc. No. 16605/23, pp. 52-61.
4. E.g. Malta, Slovenia.
targeted studies.5 Understanding whether direct effect is possible could improve consistency in this field, not the least because any incompatibility between a national measure and a CFSP norm cannot be resolved by a national judge via the principle of primacy where that norm does not possess direct effect.6 The fact that, at present, some Member States are taking steps to amend laws applicable to weapons export regulation and decrease transparency7 is evidence, in my opinion, of the critical need for increased oversight in this field. In this light, and given that the instrument provides an obligation on MSs to consider license denials issued by other MS (Art. 4), it seems worth elaborating on the question whether legal persons in other MS may rely on such an instrument directly.
The starting point of this discussion is that the Common Position is a pre-Lisbon instrument with a CFSP legal basis (Art. 15 Nice TEU, now Art. 29 TEU)8, and the question whether CFSP norms have direct effect is tendentially answered in the negative. This assessment pertains to the view that the CFSP is ‘lex imperfecta’9: it is subject to special rules and procedures, which influence (and limit) the type of acts and remedies available in this field (Art. 24 TEU). Most importantly, the adoption of acts which produce effects upon individuals – to the exclusion of restrictive measures10 – has been contested.11
However, direct effect is neither a ‘rule’ applicable to the CFSP, nor a ‘special procedure’. To the contrary, it concerns the ability to invoke before national courts provisions of EU law which are sufficiently clear, precise and unconditional. It is as such a concept which is concerned with the legal effects of that particular act (or provision thereof), not the circumstances or procedures leading to its adoption. Further, direct effect is a judgemade concept which is neither foreseen nor precluded (as such) by the Treaties. A prater legem interpretation supports, if anything, the opposite conclusion in relation to the CFSP, as judicial review is only limited before the Court of Justice (Art. 24 TEU); Member States are still under an obligation to ensure effective legal protection “in the fields covered by Union law” (Art. 19 TEU).
5. M. Bromley, ‘The Review of the EU Common Position on Arms Exports: Prospects for Strengthened Controls’ SIPRI Nonproliferation paper No. 7, 2012, p. 7.
6. Judgment of the Court (Grand Chamber) of 24 June 2019, Poplawski, (Case C-573/17, EU:C:2019:530, paras. 59-64).
7. Rete Italiana Pace e Disarmo ‘Il Senato approva modifica peggiorativa della legge su export di armi: mobilitazione di Rete Pace Disarmo in vista del passaggio alla Camera’, 22 February 2024. See also A. Carrozzini, ‘Cosí Chi Vende Armi Stará Piú Sereno’, 17 March 2024.
8. The provision currently empowers the Council to adopt decisions (and no longer common positions) defining the Union’s approach to a particular matter.
9. Advocate General Wahl’s Opinion of 7 April 2016 in H v Council (Case C-455/14 P, EU:C:2016:212, point 38).
10. On the possibility of direct effect for restrictive measures, see R. Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ 43(2) Common Market Law Review, 2006, p. 378; C. Eckes, ‘The CFSP and Other EU Policies: A Difference in Nature?’ 20(4) European Foreign Affairs Review, 2015, pp. 539-540.
11. Opinion in H v Council, point 37.
The special status of the CFSP cannot be a reason to discount direct effect a priori: if the CFSP norm is a rule capable of affecting the outcome of the case, it can be invoked, provided that it is sufficiently clear, precise and unconditional
Most importantly, provisions do not need to address individuals or expressly confer rights to have direct effect (subjective direct effect). To the contrary, direct effect has equally been granted to EU law provisions because they are capable of being invoked (objective direct effect).12 Building on this, De Witte13 and Prechal14 argued that direct effect is, simply put, ‘the obligation of a court or another authority to apply the relevant provision of [EU] law, either as a norm which governs the case or as a standard for legal review.’ This last criterion, in turn, can be achieved by the express conferral of rights, but also the insertion of an obligation on MS as to particular conduct.15
Thus, the special status of the CFSP cannot be a reason to discount direct effect a priori: if the CFSP norm is a rule capable of affecting the outcome of the case, it can be invoked, provided that it is sufficiently clear, precise and unconditional. This conclusion in my view can be in principle extended to the Common Position as well, as it is a binding instrument (1); and consolidates a set of rules the evasion of which would not be reconcilable with the unconditional character of the obligations pending on MS (2). Both aspects are elaborated upon below.
2008/944/CFSP is binding
Common Position 2008/944/CFSP is a binding instrument, and this can be derived from its drafting history, legal basis and content. From a historical viewpoint, Common Positions are a legacy of Maastricht, representing one of the two instruments of EU external action foreseen by Art. J.1 Maastricht TEU. In this original legal context, they were intended to constrain MS conduct. To this end, Art. J.2 Maastricht TEU provided an obligation on MS to conform their national policies to these instruments and to uphold them when participating in international fora, obligation extending even to their diplomatic missions (Art. J.6). At present, the Council no longer uses Common Positions as a fullyfledged instrument, adopting decisions formulating these instead (cf. Art. 25 TEU, listing ‘positions to be taken by the Union’)16. The Common Position’s corresponding legal basis in the Lisbon Treaty corroborates this, providing for the adoption of decisions formulating the Union’s position.17 But this change
12. Judgment of the Court of 24 October 1996, Kraaijeveld (C-72/95, EU:C:1996:404, para. 56).
13. B. De Witte, ‘Direct Effect, Primacy, and the Nature of the Legal Order’, in Craig & De Burca (eds) The Evolution of EU Law, Oxford University Press, 2021, p. 194.
14. S. Prechal, ‘Does Direct Effect Still Matter?’ 37 Common Market Law Review, 2000, p. 1048.
15. Judgment of the Court 19 September 2000, Linster (C-287/98, EU:C:2000:468, para. 32).
16. Article 25(b)II.
17. Article 29 TEU.
does not prejudice the binding nature of this instrument. As discussed above, Common Positions were binding pre-Lisbon, and this has been confirmed by the Court of Justice too.18
The content of the act supports this view: first, the instrument imposes a duty on MS to examine licenses against the criteria set in art. 2 (Art. 1). Second, Art. 4 imposes a duty to notify of and take into account other MS’ license denials. Third, Art. 7 sets that Member States are to work in the CFSP framework to ‘maximize the effectiveness of the Common Position’. Fourth, they are under a duty to ensure that national legislation enables the control of exports of items mentioned on the EU common military list.
In short, Common Position 2008/944/CFSP is a binding legal instrument, a conclusion that the Council itself underlines.19 What remains to be ascertained for the purpose of direct is whether it can entail rules which are sufficiently clear, precise and unconditional.
V. On whether the Common Position contains ‘rules’
Option 1 – It may but it should not (a Segi situation)
Common Position
2008/944/CFSP is a binding legal instrument, a conclusion that the Council itself underlines. What remains to be ascertained for the purpose of direct is whether it can entail rules which are sufficiently clear, precise and unconditional
One could argue that Common Positions may have direct effect, but they should not. This is a view that arguably flows from Segi and Gestoras pro Amnistia. These (pre-Lisbon) cases concerned the indirect review via a preliminary ruling of three Common Positions adopted on the basis of Arts. 15 and 34 Nice TEU (2nd and 3rd Pillar, respectively). They were, as such, particular acts, not subject to review by the Court pursuant to Art. 35 (Nice) TEU. While finding that Common Positions addressed MSs, and thus were not intended to ‘produce legal effects upon third parties in themselves, the Court stressed that it retained power to review those measures if they produced effects via a preliminary ruling and, potentially to review their legality’.20 One could thus say that as a CFSP act, the Common Position is intended to set rules for cooperation among MSs, but not to affect the legal situation of individuals. If for any reason it does so, it would entail a misuse of powers by the Council which the Court would have jurisdiction to review and correct, e.g., via a preliminary ruling. But even this view does not preclude direct effect, for the Court clearly said in Van Duyn that acts which may be subject to a preliminary reference, must evidently be capable of being invoked before national courts. And as Segi provides, CFSP acts producing effects upon third parties must be reviewed by the Court via, e.g., a preliminary ruling, to potentially correct this mistake. Now this would entail that the Common Position has a reparatory direct effect, subordinate
18. Judgment of the Court of 27 February 2007, Segi and Others v Council, (C-355/04 P, EU:C:2007:116, para. 52).
19. Council Conclusions on the review of Council Common Position 2008/944/CFSP of 8 December 2008 on the control of arms exports (ST 11718/19 INIT + COR 1), 16 September 2019, para 4.
20. Judgment of the Court of Justice, Segi, paras 54-55.
Even a conservative reading of the Treaties cannot preclude the reviewability of CFSP norms before national courts
to the need to ensure observance of the law. Nonetheless, it ought to be invoked for this control to take place. In other words, even a conservative reading of the Treaties cannot preclude the reviewability of CFSP norms before national courts.
Option 2 – It does (a Mangold situation)
An alternative view to the above is that the provisions of Common Position 2008/944/CFSP can constitute rules capable of being invoked because they concretise the general principle of respect for international law. This is admittedly a view consisting of a number of considerations which deserve further commentary. In view of the space limit, I will limit myself to providing the following observations.
The notion of ‘general principle’ describes ‘those principles of law extrapolated from the common constitutional traditions of the Member States, which define the limits of public power and seek to protect the individual’.21 The ‘general international law principle of respect for contractual commitments’22 (pacta sunt servanda, Art. 26 VCLT) is a ‘fundamental principle of any legal order’ and, therefore, one such general principle.23 Further, the EU is bound, in the exercise of its powers, to observe international law in its entirety.24 Given this recurring jurisprudence concerning the effects of international law on the EU and MSs alike, it seems possible to me that respect for international commitments, in accordance with Arts. 21 and 3(5) TEU, could form part of the general principles of Union law.
21. T. Tridimas, ‘The General Principles of EU Law and the Europeanisation of National Laws’ 13(2) Review of European Administrative Law, 2020, p. 9.
22. Judgment of the Court of 6 October 2020, Commission v Hungary (C-66/18, EU:C:2020:792, para. 92).
23. Judgment of the Court of 25 May 2004, Distilleria Palma v Commission, (Case T-154/01, EU:T:2004:154, para 45); Judgment of the Court of 16 June 1998, Racke (C-162/96, EU:C:1998:293, para. 49).
24. Judgment of the Court of 27 February 2018, Western Sahara Campaign UK (C-266/16, EU:C:2018:118, para. 47).
It is worth noting that special position afforded to the CFSP by Art. 24 TEU does not limit the applicability of general principles of EU law25, as the provision speaks of rules and procedures alone and, as Wessel points out, provides that the CFSP is to be ‘[..] implemented within the framework of the principles and objectives of its external action’.26 The Common Position is a Union instrument, adopted on a CFSP legal basis and obliging MS to ‘work within the CFSP framework’ (Art. 7). Moreover, the Common Position makes express reference in its preamble to the Arms Trade Treaty27 (to which all MS are parties), as well as to the 2030 UNGA Agenda for Sustainable Development (Recital 5). The substantive provisions reiterate this context, invoking compliance with specific international instruments and standards (Art. 2). Finally, the Council itself has underlined that ‘a responsible arms trade policy makes [an essential contribution] to the maintenance of international peace and security and respect for Human Rights and International Humanitarian law’.28
Against this background, it appears from the preamble and substantive content of the Common Position that this instrument has the clear intent to provide rules concretising the international commitments binding on the MS in regulating arms export. By analogy to Mangold, the effectiveness of this commitment would be prejudiced if it could not be invoked on account of its CFSP content, because it intends to provide the required rule/standard rule applicable to the assessment of licenses for items falling on the EU Common Military list. In an objective way, the Common Position could thus have direct effect.
VI. On the notion of sufficiently clear, precise and unconditional rule
Finally, a given provision must also meet specific textual criteria. This is an assessment which is difficult to determine a priori given that it depends on the particular provision under examination. Suffice to say, it is evident that the attribution of discretion to Member States (which the Commission Position does as well, e.g. Art. 4(2)) does not prejudice the ability to invoke a provision (Kraijeveld, Linster, AMS).
The question of direct effect of CFSP norms remains moot, yet the analysis shows that some of the considerations thus far advanced against this possibility rely on a partial understanding of both direct effect and the juridical status of CFSP norms. Common Position 2008/944/CFSP may be posited to be akin to an ‘international law decision’, thus not intending to produce rights and duties on individuals. But its provisions also look like rules, consolidate rules and are applied like rules. And thus maybe they are rules, even if adopted on a CFSP basis. The fact that some Member States allegedly apply the Common Position directly to military export assessment cases
25. C. Hillion, ‘A Powerless Court? The European Court of Justice and the EU Common Foreign and Security Policy’, p. 27.
26. R Wessel, ‘General Principles in EU Common Foreign and Security Policy’ In K. Ziegler, P. Neuvonen, & V. Moreno-Lax (eds.), Research Handbook on General Principles in EU Law: Constructing Legal Orders in Europe, Edward Elgar, 2022, p. 611.
27. Council Decision (CFSP) 2019/1560 of 16 September 2019 amending Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment, OJ 2019 L 239, Recitals 3-4.
28. Council Conclusions on the review of Council Common Position, para 2.
in my view demonstrates just that.29 The two options formulated to discuss this idea serve as specific examples of possible ways of revisiting our understanding of the spectrum of enforceability of instruments in the CFSP. As such, they may hopefully help debate the extent to which resistance to judicial enforcement of CFSP norms should take place. Irrespective of which is favoured, it is argued that direct effect will still depend on whether the given provision is sufficiently clear, precise and unconditional – an admittedly difficult finding in relation to CFSP norms.
29. Specifically, France and Malta. See 25th Annual Report, pp. 55, 58.
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