From Search to Discovery of the Political Question Doctrine in EU Law

This article examines the discovery of the political question doctrine within the EU legal order as it relates to the Common Foreign and Security Policy (CFSP), which includes the Common Security and Defence Policy (CSDP). The CFSP has long presented a constitutional anomaly, marked by explicit jurisdictional limitations placed on the Court of Justice of the European Union (CJEU) by the EU Treaties and a deliberate separation from the EU’s ordinary decision-making procedure. Against this backdrop, the article explores how the political question doctrine has emerged as a pragmatic judicial response to the tension between the desire of the Member States to keep the CJEU out of the EU’s foreign, security, and defence policies; whilst also balancing a core principle of EU law, which is to ensure effective judicial protection. The article analyses the political question doctrine, as now discovered in the case-law, and whether it provides a structured framework for distinguishing between acts and omissions within the CFSP that are reviewable by the CJEU; and those that are not, based on whether they are “directly related” to “political” or “strategic” choices. The article also considers the implications of the political question doctrine for the EU’s external relations, including the EU’s ambition to accede to the European Convention on Human Rights (ECHR).