The Small Arms Judgment in an Age of Constitutional Turmoil

Abstract: On 20 May 2008, the Court of Justice handed down its long-awaited judgment in the Small Arms case (C-91/05). Previously this author has argued that from the perspective of the current post-Nice Treaty framework, the ECJ has rendered a judgment that is neither legally coherent nor conducive to dynamism in foreign policy conduct. It was concluded that the ECJ’s bifurcated treatment of the two CFSP instruments at issue has failed to settle the dust that had been stirred up by this cross-pillar conflict. In this article it is argued that the Lisbon Treaty would rectify this situation by obsoleting the Court’s interpretation of Article 47 TEU, and putting in place the legal equality of the Union’s CFSP and its other external policies. This would erase the Court’s hierarchical approach to the ‘non-affectation clause’, but maintain the Grand Chamber’s construction that was arguably more conducive to finding the legal equilibrium between the CFSP and other EU external action such as development, while maintaining sufficient flexibility in formulating external policy.