Commission Proposal to Ban Russian Gas Further Blurs Trade and Security Competences
On 17 June 2025, the European Commision adopted a legislative proposal to ban Russian gas imports into the EU. The proposal had a dual legal basis: Article 207 TFEU, concerning trade policy, and Article 194(2) TFEU, concerning energy policy. This was odd, considering that earlier efforts to reduce the import of Russian oil and coal were based on neither of these two TFEU provisions, but rather on Article 29 TEU, which concerns the EU’s Common Foreign and Security Policy (CFSP) (see here and here).
It was odd, because all of these initiatives seem quite similar both in terms of their aims (reduce energy dependencies on Russia and thereby protect the security of the EU and its Member States) and their content (reduce imports). These similarities have constitutional significance, as it is long-standing case law of the Court of Justice of the EU (CJEU) that the choice of legal basis must rest on objective factors amenable to amenable to judicial review. The choice has to be based on the aim and content of the measure; not on any other—more subjective—factors such as the voting rules in one procedure that may be perceived as more attractive than those applicable to the other procedure.
Perhaps not coincidentally, the voting rules in the Council required by Article 29 TEU on the one hand, and Articles 207 and 194(2) TFEU on the other, are quite different. The former requires unanimity among the Member States; the latter (merely) a qualified majority. Under the qualified majority voting rule, a legislative proposal can be adopted even if, say, Hungary and Slovakia vote against the measure. This would obviously not be possible under the unanimity rule. (Even if, as we learned not too long ago, a toilet visit by a prime minister allows the remaining parties in the room to reach unanimity.)
Blurring trade and security competences
As Viktor Szép and Lukas Schaupp explain on Verfassungsblog, this is not an isolated occurrence. The Anti-Coercion Instrument (ACI)—discussed here—can also be understood as part of a trend to move away from CFSP measures that affect trade, to measures adopted on the TFEU’s trade policy legal basis, Article 207 TFEU, even if those measures pursue security-related objectives, as the ACI clearly does.
This trend raises constitutional questions. As Szép and Schaupp also make clear, the EU Treaties as interpreted by the CJEU rely on the premise that any measure can only be based on one legal basis. To be sure, a measure may have multiple components, requiring multiple legal bases, yet the principle remains: each such component can be adopted on the basis of only one legal basis.
Yet, here we have two sets of measures with a similar content—a gas import ban on one hand, and a coal and oil import ban on the other—with similar objectives—protecting EU security, adopted on different legal bases.
The legacy of the Lisbon Treaty
If a case were brought against a future gas ban adopted on the basis of Article 207 TFEU, the CJEU would have to come to terms with the broader trend towards a blurring of the boundaries between CFSP and the TFEU competences, including trade policy. That trade measures pursue security objectives seems, in and by itself, not problematic. Article 207 TFEU as redrafted by the Lisbon Treaty framers mandates that the EU conduct its trade policy ‘in the context of the principles and objectives of the Union's external action’. These objectives include the safeguarding of the EU’s security, as per Article 21(2)(a) TEU.
At the same time, however, the Lisbon Treaty framers abolished the CFSP-specific set of objectives, which in pre-Lisbon times allowed the CJEU to review whether measures had correctly been adopted on the basis of a CFSP legal basis. With both trade and CFSP meausures not having any clear limits, the rule laid down in Article 40 TEU that the CFSP should not affect—or ‘contaminate’—TFEU competences and vice-versa, seems increasingly fanciful.
What would the CJEU do?
While the problem has been discussed in the literature (see e.g. Luigi Lonardo’s 2018 contribution here), the CJEU has not yet had to resolve it. When an annulment action against a gas ban based on Article 207 TFEU does make its way to Luxembourg, my guess would be that the Court would uphold the validity of the regulation by engaging in judicial minimalism: in terms of content, the gas ban does clearly ‘have direct and immediate effects’ on trade, and in terms of its objectives, it ‘essentially intend to promote, facilitate or govern such trade’ in the meaning of Opinion 2/15. (‘Governing’ trade may involve reducing or banning it.)
The fact that the measure aims to protect the EU’s security does not stand in the way of this assessment, as mentioned above. A broader reflection on how such a conclusion can be squared with earlier CFSP-based oil and coal bans should not be expected in the framework of an annulment action, however.
One consequence of such a conclusion would however be that the EU’s other sectoral sanctions—i.e. sanctions that restrict trade—would themselves become vulnerable to annulment: if a gas ban can be adopted on the basis of Article 207 TFEU, then arguably a coal or oil ban needs to be adopted on that legal basis as well.
This would raise the question of what purpose Article 215 TFEU would still serve. This provision enables the Council to adopt a regulation to implement CFSP sanctions that ‘provide for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries.’ Would it follow that Article 215 TFEU has become redundant because the CFSP decision that is needed to allow the Council to adopt a regulation on that basis has itself become incompatible with the Treaties? This would be an interesting turn of events, raising complicated methodological questions: Can the CJEU read one set of Treaty provisions—Articles 207 TFEU and 29 TEU—in such a way that the effet utile of another provision—Article 215 TFEU—is significantly reduced?
Is the choice of legal basis still based on objective factors?
I don’t expect it will come to that, however. More likely is, I think, the prospect of there not being any CJEU litigation at all. No Member State has challenged the ACI, against which similar criticisms could be mounted. If a case were to be brought, and the CJEU were to uphold a gas ban adopted on the basis of Article 207 TFEU, the bargaining position of Member States such as Hungary and Slovakia in the Council would be weakened to an even greater extent than if both the ACI and the proposed gas ban were left unchallenged. Ambiguity works in favour of those who benefit from the orthodox position, which (thus far) remains that security-related economic sanctions are adopted on the basis of a CFSP legal basis. This consideration may make it less atractive for Member States such as Hungary or Slovakia to bring an action.
Be that as it may, the boundary between the CFSP and the EU’s trade competence does continue to blurr, raising systemic questions about the continued relevance of the CJEU’s theory that the choice of legal basis is an objective matter ultimately to be settled by the CJEU itself. As the EU legislature continues on its path of squeezing and stretching the Lisbon Treaty text to respond to crises and challenges that cannot be left unadressed, support for a more flexible approach may grow.
Perhaps the end-point could be an approach similar in spirit to that maintained by Canada’s Supreme Court. Canada’s federal system has historically been one of dual federalism: each issue falls within the exclusive jurisdiction of only one level of government—provincial or federal. Yet in practice, both the federal and provincial legislatures can occasionally legislate on the same issues, provided they each do so from a constitutionally valid angle. This doctrine, known as the double-aspect doctrine, is part of the Canadian Supreme Court’s flexible approach to federalism. Perhaps it is time for the CJEU to more openly embrace a flexible approach to choice of legal basis issues as well.
