JUDICIALIZATION AND THE ROLE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION IN EU EXTERNAL HUMAN RIGHTS POLICY

Abstract

This article examines the growing judicialization of fundamental rights protection in the European Union’s external action. Once largely confined to the political and diplomatic sphere, this domain has increasingly come under legal scrutiny, with the Court of Justice of the European Union (CJEU) playing a central role in shaping and constraining EU policy through judicial review. This development raises broader constitutional questions concerning the balance between political discretion and judicial oversight, the limits of EU competences, and the relationship between the EU legal order and the European Convention on Human Rights (ECHR), particularly in areas such as the Common Foreign and Security Policy (CFSP), which has traditionally been shielded from judicial control. Adopting a doctrinal methodology, the article analyses key strands of CJEU case law in light of the principles of autonomy and effective judicial protection, situating these developments within the EU’s constitutional framework on external action and fundamental rights. It traces how the Court has progressively expanded its role through a series of incremental steps, including narrowing the CFSP jurisdictional exception, extending rights protection beyond EU territory, and developing remedial avenues such as damages liability, while also engaging with the implications of EU accession to the ECHR. The article argues that judicialization has become a significant, though uneven, mechanism for integrating fundamental rights into EU external action. While judicial protection is relatively well developed in areas directly affecting individuals, such as restrictive measures, it remains more limited in fields marked by broad political discretion. The analysis thus highlights both the expanding role of the Court and the structural constraints that continue to shape judicial oversight in this domain.