AG Ćapeta’s Opinion in Neves 77 Solutions: A Political Question Doctrine in EU Law?

In an earlier blog post, I criticized Advocate General Ćapeta’s opinion in KS and KD for its failure to take seriously the principle of conferral and the Treaty text. In this post, I look more closely at AG Ćapeta’s opinion in Neves 77 Solutions, in which she further developed and applied the suggestion she had made in KS and KD that, by adopting Articles 24 TEU and 275 TFEU, the Treaty framers intended to introduce a political question doctrine into EU law. I think it is both unlikely that the Court will embrace the AG’s suggestion and believe it would be undesirable to do so.

I start by looking at the AG’s discussion of a possible political question doctrine in KS and KD; I then turn to Neves 77 Solutions, in which the AG applies the doctrine; and I finish with a reflection on the likelihood and desirability of the Court endorsing a political question doctrine in EU law.

Introducing a political question doctrine: KS and KD

KS and KD concerns the question of whether the CJEU had jurisdiction to award damages allegedly caused by the EU rule of law mission in Kosovo. Mid-way her opinion, AG Ćapeta said the following:

In the light of the principle of the separation of powers (referred to as the principle of institutional balance in the European Union), which is an important part of the rule of law and the principle of democracy, it is not the prerogative of courts to replace policy choices made by competent political institutions (para. 114).

As a counterpoint to this first point, she added:

That being said, in constitutional democracies, policy choices are not unlimited. In a Union based on the rule of law, it could not have been the intention of the authors of the Treaties to allow for breaches of fundamental rights in the CFSP. As the breach of a fundamental right cannot be a policy choice, the EU Courts must be able to control whether that limit was crossed (para. 115).

It necessarily followed that, in the AG’s view, ‘the EU Courts’ jurisdiction to review any CFSP measure, including a political or strategic one, in order to ensure its conformity with fundamental rights cannot be excluded by Article 24(1) TEU and Article 275 TFEU’ (para. 116).

This line of reasoning finds its normative basis in what the AG understands to have been the intention of the Treaty framers. It led the AG to read the second paragraph of Article 275 TFEU not as a limited list of ‘claw-backs’, but as a non-exhaustive list of instances in which the CJEU does have jurisdiction despite the limitations imposed on that jurisdiction by the first paragraph of the same provision. This would explain how, for example, the CJEU was able to conclude that it did have jurisdiction to rule on a request for a preliminary ruling on the validity of a CFSP decision imposing restrictive measures, as it did in Rosneft.

Indeed, through its reliance on an overarching theory according to which the limits on the CJEU’s jurisdiction should be understood as an attempt by the Treaty framers to prevent the CJEU from second-guessing policy choices made by the Council in the CFSP, the AG was able to cast aside objections based on the text of the second paragraph of Article 275 TFEU—a provision that only grants the CJEU jurisdiction

to monitor compliance with Article 40 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 263 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.

In a world in which the second paragraph of Article 275 TFEU serves merely illustrative purposes, it is not problematic to conclude that the CJEU has jurisdiction to award damages for harm caused by CSDP missions.

Applying the political question doctrine in Neves 77 Solutions

In Neves 77 Solutions, the CJEU was faced with the following question: does the CJEU have jurisdiction to respond to a request for a preliminary ruling on the interpretation rather than the validity of a CFSP decision imposing restrictive measures? At issue was a CFSP decision that imposed export restrictions on certain dual-use items. The CFSP decision had not been implemented by means of a Council regulation on the basis of Article 215 TFEU. As a consequence, the limits on the jurisdiction of the CJEU within the CFSP came into play.

Somewhat surprisingly given the AG’s reasoning in KS and KD, the AG advised that ‘Article 24(1) TEU and Article 275 TFEU indeed exclude the Court’s jurisdiction to interpret provisions of CFSP measures in order to clarify their meaning.’ ‘Such an interpretation’, she continued

is consistent with the purpose of the limitation of jurisdiction set out in those two Treaty provisions. By those provisions, the authors of the Treaties essentially sought to exclude the Court from policy-making in the CFSP. If the Court can choose between several possible meanings of a legal rule, it necessarily influences the policy choice made by the author(s) of that legal rule. (paras 70-71).

In other words, the AG advised the Court to rule that it does not have jurisdiction to interpret CFSP decisions imposing restrictive measures in the framework of preliminary ruling proceedings. Such jurisdiction is excluded because such interpretative questions would constitute political questions. As such, they fall within the remit of the political institutions (here: the Council), not the EU courts.

By contrast, as the AG had explained in KS and KD, preliminary ruling requests on the validity of CFSP decisions imposing restrictive measures do fall within the Court’s jurisdiction because validity questions involve the compatibility of the CFSP with fundamental rights, and the framers could in no case have wanted the EU to be able to adopt decisions that violate fundamental rights.

The AG was aware of the somewhat uncomfortable difference in treatment between interpreting decisions on the one hand, and assessing their validity on the other. However, there is no contradiction, she argued, as it is possible to do the latter without engaging in the former. As she put it: ‘[N]o such contradiction arises if one accepts that, in carrying out a review of lawfulness, the Court is bound by the meaning attributed to the reviewed measure by its author, which submits it either as a party in a direct action before the Court or as a participant in the preliminary ruling procedure’ (para. 72).

As a consequence, the AG advised the Court to rule that it does not have jurisdiction to interpret CFSP decisions imposing restrictive measures.

Questioning the political question doctrine

I think it is both unlikely that the Court will endorse the AG’s suggestion to introduce a political question doctrine in EU law, and undesirable for the Court to do so.

It is unlikely, given the Court’s refusal to embrace a similar line of argument advanced by the Commission in H v Council. That case was an action for annulment and compensation of a decision to redeploy a national staff member seconded to the EU police mission in Bosnia to a regional office. The Commission had argued before the Court that the decision to redeploy the staff member constituted an ‘act of sovereign policy’, which for that reason fell outside of the Court’s jurisdiction. The distinction between acts of sovereign policy on the one hand, and acts of implementation on the other, was established by the Treaty framers, the Commission considered.

The Court did not adopt the distinction. Instead, it qualified the decision as an act of staff management subject to the EU’s staff regulations. For that reason, the Court did have jurisdiction, the CJEU concluded.

The ‘acts of sovereign policy’ theory finds its origin in the French actes du gouvernement doctrine. As is the case for the US-inspired political question doctrine known from US Supreme Court cases such as Baker v Carr, it aims to insulate decisions by the executive from judicial review due to their alleged ‘political’ or ‘sovereign’ nature.

Had the Court of Justice wished to embrace such a theory, H v Council offered it an opportunity to do so. That it did not is, I think, telling. It may suggest that the Court of Justice is not willing to accept a theory that has as its very raison d'être the limitation of judicial review. Stronger still, the Court’s oft-repeated claim that ‘the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law’ (see e.g. here) arguably does not make a political question doctrine an attractive proposition to the Court.

That said, introducing a political question doctrine in EU law is not desirable, either. As Hersch Lauterpacht put it in a different, albeit closely related, context: every international dispute is by its very nature political. However, as he added: ‘it is equally easy to show that international disputes are, irrespective of their gravity, disputes of a legal character in the sense that, so long as the rule of law is recognized, they are capable of an answer by the application of legal rules.’

In her opinion in KS and KD, the AG already made clear that in a Union governed by the rule of law decisions that infringe fundamental rights cannot escape judicial review, and thus cannot constitute ‘political questions’. If this is true (as I believe it is), it is difficult to see how a question on the meaning of a CFSP decision can be deemed ‘political’ (and thus outside of the scope of CJEU jurisdiction) whereas a question on the validity of that same decision should be deemed ‘legal’ (and thus within the scope of CJEU jurisdiction).

Indeed, the two types of questions are indissociably linked, with the former (interpretation) being a prerequisite for the latter (validity assessment). To say that the Court can assess the validity of a norm, while refraining from interpreting it, makes little sense as a court cannot avoid interpreting, even if it claims to be deferring to an interpretation offered by another institution. As Ronald Dworkin put it: legal analysis is interpretation all the way down.

Even questions of interpretation that do not obviously involve reading a norm of secondary law in light of higher law remain quintessentially legal questions. Rosneft makes this point clear in a manner that does not require a detour to Hart or Dworkin: where a norm of EU law lacks clarity, it violates the principle of legal certainty (see para. 195). This allows both the referring court and the CJEU to reformulate questions of interpretation as validity questions. This, in turn, reveals how artificial the distinction between questions on the validity of norms and questions on their interpretation is.

Conclusion

What does all of this mean for the Court’s jurisdiction to interpret CFSP decisions on restrictive measures in the framework of preliminary ruling requests?

In my view, as the AG also proposes, the Court should rule that it lacks such jurisdiction. Contrary to the approach followed by the AG, however, my conclusion would be based on Article 275 TFEU, read in light of the principle of conferral. In such a reading, as a general rule, the Court does not have jurisdiction within the CFSP. Only in the limited list of instances in the second paragraph of Article 275 TFEU does the Court have jurisdiction. Jurisdiction to respond to preliminary ruling requests on the interpretation of CFSP decisions are not listed in that paragraph. As a consequence, the Court does not have jurisdiction.

Such an approach upholds the rule of law, even if it leads to the conclusion that the CJEU lacks jurisdiction. However, the task of upholding the rule of law falls not only to the CJEU, but also to the national courts. As Lauterpacht made clear: the rule of law applies even in the absence of a world court with compulsory jurisdiction. In the same spirit, there is law beyond the Kirchberg. There is a certain irony here: commitment to the rule of law leads to the conclusion that the court has no jurisdiction. This is, as I mentioned in my previous post, regrettable. But to fix this, the Treaties should be amended, not interpreted away.