Jurisdiction, legislation, and creative interpretations in the Opinion of AG Wathelet in C-72/15 Rosneft

The frequent legal challenges to the European Union’s economic sanctions regimes have resulted in several judgments chiseling out key issues of EU law. Case C-72/15 Rosneft, which will be decided in the coming months, provides the European Court of Justice (ECJ) yet another opportunity to do so. In particular, the Rosneft case invites the ECJ to clarify its jurisdiction and power of judicial review over decisions taken by the Council under the Common Foreign and Security Policy (CFSP) – in the context of a reference for preliminary ruling.

The recently-released Opinion of Advocate General Wathelet in the Rosneft case was therefore eagerly awaited, and in this blog post we will examine two aspects of it. First, we will discuss his conclusion that the ECJ has jurisdiction to review the legality of CFSP decisions by way of preliminary ruling. Second, we have some remarks on his rather swift and somewhat formalistic argument for why CFSP decisions can never be regarded as “legislative acts” – regardless of how they are formulated.

Does the ECJ have jurisdiction over CFSP decisions in preliminary ruling cases?

The jurisdiction of the ECJ over CFSP acts is a complex topic, which AG Wathelet nevertheless manages to summarize it in an eloquent manner in paras 36–75 of his Opinion. For the present purposes it is sufficient to reiterate two points: First, that the jurisdiction of the ECJ over CFSP acts is excluded by the similarly worded TEU article 24(1) second subparagraph and TFEU article 275(1) (the so-called “carve-out” provisions). Second, that TEU article 24(1) second subparagraph i.f. and TFEU article 275(2) contain similarly worded “claw-back” provisions that re-establishes jurisdiction in certain cases.

The scope of this “claw-back” is the key jurisdictional question in the Rosneft case. CFSP sanctions regimes have a peculiar structure. They are enacted through the use of two separate legal instruments ...

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