AG Ćapeta’s Opinion in KS and KD: Reading Away the Treaty Text?
The jurisdiction of the Court of Justice of the EU (CJEU) is limited in the foreign policy sphere. The EU Treaty, Article 24(1), expressly provides that the CJEU shall not have jurisdiction with respect to the Treaty provisions concerning the Common Foreign and Security Policy (CFSP), with the exception of two issues: one concerning the institutional balance and whether or not a given measure should have been adopted on a CFSP legal basis, and one concerning the possibility to review the legality of restrictive measures. The TFEU elaborates the point further. Its Article 275 reads:
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 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.
The lack of CJEU jurisdiction over parts of the EU’s CFSP activities sits uncomfortably with many EU lawyers. It seems to run counter the proposition that the EU Treaties put in place a “complete system” of EU remedies and procedures. A lack of CJEU jurisdiction means that national courts need to fill the gap. They may do so, but they may also be unwilling or unable to do so. Moreover, even if national courts do take up the baton, there is no guarantee that EU law will be interpreted and applied uniformly across the EU.
The AG’s opinion in KS and KD
On November 23, 2023, Advocate General Ćapeta advised the Court in the appeal procedure brought against an order of the General Court in the case of KS and KD. The case is making its way through the CJEU’s judicial process along with another CFSP-related case, Neves 77 Solutions, on which AG Ćapeta advised on the same day. I may get back to this second case on a later occasion.
KS and KD is about the family members of KS and KD, who had disappeared in the aftermath of the Kosovo conflict. The EU Rule of Law Mission in Kosovo should allegedly have investigated the disappearances, but it hadn’t done so—at least not properly, the applicants argued. For this reason, KS and KD claimed damages.
Do the EU courts have jurisdiction to hear KS and KD’s claims? Over two years ago, the General Court had concluded they did not, because of the abovementioned limits on the CJEU’s jurisdiction within the CFSP. AG Ćapeta disagreed with the General Court, and advised the Court of Justice to accept jurisdiction. In support of her argument, the AG advanced both structural and textual arguments.
In terms of structure, she argued that the constitutional principles of the rule of law and the principle of judicial protection require us to interpret the abovementioned limitations on the EU courts’ jurisdiction narrowly: as a general rule, the EU courts do have jurisdiction; no jurisdiction is the exception, and the cases in which this occurs thus have to be interpreted narrowly (para. 90). Stronger still, the AG contended that “the rule of law in the EU legal order requires that the EU Courts ensure the lawfulness of the actions of EU institutions and bodies when they implement that policy [i.e. the CFSP].” (para. 83, emphasis added)
In terms of text, the AG nearly read away the restrictions on the CJEU’s jurisdiction to be found in the second paragraph of Article 275 TFEU, quoted earlier.
In the AG’s opinion, the second paragraph of Article 275 TFEU should not be understood as introducing two clearly defined exceptions to the general exclusion of CJEU jurisdiction within the CFSP, but rather “as a provision that informs the interpretation of the scope of the jurisdictional limitation under Article 24(1) TEU and the first paragraph of Article 275 TFEU” (para. 127). And she added the far-reaching claim that: “[I]f read in the light of Article 24(1) TEU, which refers more generally to the judicial review of certain measures, the second paragraph of Article 275 TFEU may be construed as ensuring that there is no limitation on judicial review of all those CFSP measures which restrict the rights of individuals” (para. 132)
As a consequence, the AG advised the Court to accept jurisdiction, because the case concerned the protection of the rights of individuals, i.e. KD and KS.
The significance of the principle of conferral
The AG’s opinion is lengthy and complex. It is impossible to discuss it in full in a blogpost (for Graham Butler’s first analysis of the opinion, see here; for a presentation of the issues that predates the opinion, see here). There is however one concern I have that I would like to express here: the AG relies on constitutional principles, in particular the rule of law, the principle of effective judicial protection and the requirement to uphold human rights, to argue that the EU courts have jurisdiction. However, contrary to AG Ćapeta’s contention, the “rule of law” is not a constitutional principle that allocates powers to specific institutions. When it comes to the allocation of powers, the principle of conferral is the relevant principle.
The principle of conferral operates both vertically, between the EU and the Member States, and horizontally, between the EU institutions, to set the institutional balance. Concerning the latter, Article 13(2) TEU states that “[e]ach institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.” In the preceding paragraph of Article 13 TEU, the Court of Justice is listed as one of these institutions. This makes clear that the CJEU, too, is bound by the principle of conferral. Indeed, as the current president of the Court of Justice put it in a 2007 contribution: “By virtue of the principle of conferred or attributed competences, the Court of Justice of the European Communities exercises only the jurisdiction conferred on it by the Treaties.”
And then there is Article 19(1) TEU, often cited by the Court as somehow introducing a presumption—arguably at odds with the principle of conferral—that the CJEU has jurisdiction. Indeed, in earlier case law the Court held that Article 19(1) TEU requires that the exceptions to the CJEU’s jurisdiction listed in the abovementioned Article 24 TEU and 275 TFEU have to be interpreted restrictively.
However, there is also Article 19(3) TEU, which reads:
The Court of Justice of the European Union shall, in accordance with the Treaties: (a) rule on actions brought by a Member State, an institution or a natural or legal person; (b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions; (c) rule in other cases provided for in the Treaties.
The key phrase is “in accordance with the Treaties”, which include the TFEU. The TFEU further elaborates the powers and responsibilities of the CJEU, in the same way as it does so for the other EU institutions, which also have general provisions dedicated to them in the TEU followed by more detailed competence conferring rules in the TFEU. As for the CJEU, the relevant bits of the TFEU can be found in section 5 of chapter 1 (“The Institutions”), of Title 1 (“Institutional Provisions”), of Part Six (“Institutional and Financial Provisions”). There we find the direct and indirect pathways to Luxembourg, including the action for annulment, the preliminary reference procedure, the action for damages and so forth. It is also where we find Article 275 TFEU, mentioned earlier, which restricts the powers of the CJEU within the CFSP.
Reading away the Treaty text?
This setup of the Treaties makes clear that the principle of conferral, which is also a constitutional principle, puts limits on the jurisdiction of the EU courts. It requires that we take seriously the restrictions on the CJEU’s jurisdiction within the CFSP, even if we think these limitations are a mistake. It seems clear to me that doing so means to accept, however begrudgingly, that the EU courts at present do not have jurisdiction to rule on actions for damages for harm caused by the EU in the context of CSDP missions. Such actions are not included among the two exceptions to the limitation on the CJEU’s jurisdiction. Because the acts at issue are “acts adopted on the basis of the [CFSP] provisions” of the Treaties (they were, after all, omissions of a CSDP mission), the CJEU does not have jurisdiction, and it is thus up to the national courts to offer relief, however impractical that may be.
To read the limitations of Article 275 TFEU away in the name of the rule of law is problematic. To be clear, there are many sound practical, moral and even political reasons to extend the jurisdiction of the CJEU in the CFSP (think of the EU’s accession to the ECHR, which hinges on the CJEU expanding its jurisdiction in the CFSP). But in order to do so in compliance with the rule of law, the Treaties should be amended, not read away.
