Draft Reform Treaty Article 1, point 27

Article 11 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following two paragraphs:

"1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.

Commentary: This provision sets out the scope of CFSP in the same terms as are already used in the existing Treaty. It reiterates that all areas of foreign policy and matters relating to the Union's security continue to fall within the intergovernmental provisions of CFSP. CFSP continues to be defined and implemented in accordance with the EU Treaty and as such is kept distinct from other EU policies which are contained in the Treaty on the Functioning on the European Union. The distinct character of CFSP is reinforced against encroachment by non-CFSP matters by the improved provisions of Article 25 (formerly Article 47).

The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise[1]. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor the compliance with Article 25 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 240a of the Treaty on the Functioning of the European Union.

Commentary: This new overarching provision sets out explicitly the distinctive legal and procedural character of CFSP. It sets out the separate framework within which the CFSP is carried out, emphasising its distinctive intergovernmental nature and the fact that there is limited Commission and EP participation. In particular it is clear that legislative acts can not be adopted, and that ECJ jurisdiction is excluded other than in two defined areas.

Draft Reform Treaty Article 2, point 223

The following two new Articles 240a and 240b shall be inserted:

"Article 240a

The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 25 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

Commentary: The powers of the Court are listed in the Treaty on the Functioning of the European Union. This provision makes absolutely clear that the ECJ will have no jurisdiction over either provisions relating to CFSP or any acts based on such provisions.

There are only two specific exceptions.

The reference to Article 25 TEU relates to the power of the Court to adjudicate, as now, on the boundary between the CFSP and the Treaty on European Union and other Union policies contained in the Treaty on the Functioning of the European Union (TOFU).

However, in contrast to the existing provision (Article 47 TEU) which simply provides that nothing in the EU Treaty shall affect matters in the EC Treaty, the new Article 25 TEU also explicitly provides that the implementation of policies under the Treaty on the Functioning on the European Union shall not affect the procedures and extent of the powers of institutions provided for under CFSP. The Court must therefore protect the distinct character of CFSP against encroachment from non-CFSP provisions.

Article 230 allows individuals and groups, in limited circumstances, to challenge legal acts which affect them directly. i.e. The ECJ is currently is already able to review Community regulations imposing sanctions on individuals and groups under the TEC (and has done so on a number of occasions) - sanctions that will have followed from a CFSP decision. This judicial protection of individuals' rights is reinforced by allowing those directly affected to seek review of a CFSP Council Decision listing them as a target for sanctions.

Draft Reform Treaty Declaration 30 concerning the common foreign and security policy

The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.

The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.

It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.

Commentary: This Declaration confirms that nothing in the provisions relating to CFSP affect Member States' own responsibilities in relation to foreign policy.

Draft Reform Treaty Declaration 31 concerning the common foreign and security policy

In addition to the specific rules and procedures referred to in paragraph 1 of Article 11 of the Treaty on European Union, the Conference underlines that the provisions covering the Common Foreign and Security Policy including in relation to the High Representative of the Union for Foreign Affairs and Security Policy and the External Action Service will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State's membership of the Security Council of the UN.

The Conference also notes that the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament.

The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.

Commentary: This Declaration reaffirms that the CFSP does not interfere with Member States powers in the o conduct of their own independent foreign policies nor affect their national diplomatic services, membership of international organisations, including the UN Security Council, or relations with third countries. It also confirms the limited role of the Commission and European Parliament.

[1] The cases in which the Council or the European Council may act by QMV when

taking decisions in CFSP are set out in Article 17 ( 2 ),Article 28 ( 3 )TEU, Article 30

( 2 ) and Article 31 ( 2 ) and ( 3 ) as amended by the Reform Treaty, Article 1,Point

34 ),Point 46) and Point 49 )