EU–EC External Competences after the Small Arms Judgment

Abstract: On 20 May 2008, the Court of Justice handed down its long–awaited judgment in the Small Arms case (C–91/05). Two issues are addressed in this initial essay. First, three different approaches to the relationship between the Community and the Union as captured in Article 47 TEU are proposed, and it is argued that an overly strict interpretation of the ‘non–affectation clause’ could render the CFSP nugatory, whereas an exceedingly unrestricted interpretation could open up an escape route from the legal principles applicable to the Member States in their relationship with the Community. Second, the court’s judgment is assessed in the light of the various options and their underlying rationales. In the final paragraphs, the article concludes that the ECJ’s approach to the two CFSP instruments before it is incongruent, and therefore does not settle the dust that had been stirred up by this cross–pillar conflict. Noting the importance of this case, this contribution is the opening part of a diptych. Whereas this article discusses the case in the context of the post–Nice Treaty framework, a follow–up contribution will assess the case’s importance should the Lisbon Treaty be ratified.