KS and KD, on the Jurisdiction of the CJEU within the CFSP: Taking Conferral Seriously?

The Grand Chamber of the Court of Justice delivered its judgment on the cases of KS and KD, and Neves 77 Solutions on September 10th, 2024. Both cases addressed the scope of the CJEU’s jurisdiction within the Common Foreign and Security Policy (CFSP). In this blog post, I offer some initial impressions and reflections. My main point: the judgment seems paradoxical. The Court stresses its adherence to the principle of conferral, yet by narrowing the jurisdictional carve-out to vague "political or strategic" decisions, it grants itself the authority to determine jurisdiction limits case by case.

In earlier blog posts (see here and here), I have been very critical of the approach taken by Advocate General Ćapeta in her opinions in these two cases, arguing that she failed to properly take into account the principle of conferral in her analysis of the CJEU’s jurisdiction. The Court’s earlier case law on this issue, in particular its judgments in Rosneft and Bank Refah Kargaran, was, in my view, misguided. In these instances, the Court extended the Treaty language to its limits in order to conclude that it had jurisdiction. In so doing, the Court disregarded the important role played by national courts in enforcing EU law and providing relief to litigants.

I was thus very much looking forward to these judgments. In this post, I offer a first assessment of the judgment in KS and KD. I leave Neves 77 Solutions to another occasion. For more information on the factual background of KS and KD, see my earlier post.

AG Ćapeta: Proposing a Rights-Friendly Political Question Doctrine

In her opinion in KS and KD, the AG argued that constitutional principles – in particular the rule of law – required that the Court conclude that it had jurisdiction to award damages for harm caused by the EU’s EUlex Kosovo mission. Article 24 TEU and Article 275 TFEU, containing the limits on the CJEU’s jurisdiction within the CFSP, had to be read in light of those principles. In particular, the AG advised the Court to rule that the so-called “carve-out” pertaining to the CFSP was not so narrow as to exclude actions for damages for breaches of fundamental rights by the European Union, even if they (allegedly) occur in the area of the CFSP.

AG Ćapeta offered a justification for this position: she understood the “carve-out” to be a form of political question doctrine that insulates strategic and political decisions from judicial review. However, in the AG’s opinion, this EU-style political question doctrine had an important limit: it could not go as far as to protect the EU against challenges brought on the basis of fundamental rights violations. For:

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).

For the appellants KS and KD, this would mean that the CJEU has jurisdiction to award damages, because the case was a fundamental rights case. Because it was, the case fell outside of the jurisdictional carve-out, and the Court would have jurisdiction.

The Court: Introducing a Political Question Doctrine, Minus the Fundamental Rights Safeguard

Over to the Court’s judgment. It both follows and diverges from the AG. It follows the AG in that, for the first time, the Court explicitly endorses something of a political question doctrine according to which the jurisdictional carve-out is understood to exclude from the CJEU’s jurisdiction those measures that are considered “political or strategic”. It diverges from the AG, however, in that it does not consider that the Court has jurisdiction whenever a plea is brought based on an alleged infringement of a fundamental right. In the Court’s view, then, breaching fundamental rights does seem to be a viable policy choice at least in some instances.

On the former point, the Court offers very little of an explanation. It refers to earlier case law, in particular Elitaliana, H v Council and SatCen, as if the point that the carve out only covers “political or strategic” decisions had already been decided in those cases. That is hardly the case, however. In none of these cases did the Court make the point that the carve-out was intended by the Treaty framers to cover political and strategic decisions. Rather, in these cases the Court merely concluded, without offering any real explanation, that the carve-out could not be so extensive as to cover staff management or procurement decisions. To have the Court refer back to these earlier cases to back up the point that the carve-out covers strategic and political decisions is not a persuasive justification. One could even argue that it is no justification at all, raising the question of whether the Court is meeting its obligation to properly motivate its decisions.

On the latter point, the Court’s approach leaves much to be desired. The General Court’s order had the advantage of being clear: the CJEU lacked jurisdiction because an action to award damages for harm caused by CSDP missions did not fall within either of the two claw-backs, which meant that it fell within the carve-out. The General Court considered its hands to be tied – as, I believe, they were.

The Court of Justice now grants itself the power to determine on a case-by-case basis whether a decision taken by the executive in the framework of a CSDP mission is sufficiently “political or strategic” to be insulated against judicial review, or whether it is sufficiently mundane to be susceptible to judicial review. This is problematic not only because of its very weak grounding in the Treaties (see above), but also because there is no reason to believe that high-profile, political or strategic decisions are any less likely to infringe fundamental rights as compared to mere acts of implementation.

Adopting such an unclear and flexible concept to establish jurisdiction is arguably itself at odds with the rule of law. From this perspective, AG Ćapeta’s proposal to introduce a political question doctrine “light” that could never cover fundamental rights cases, was the better option, even if that approach failed to take seriously the principle of conferral.

Taking Conferral Seriously?

As I had argued back in November 2023, the General Court’s categorical approach of rejecting jurisdiction because the Treaty text made clear that the CJEU does not have jurisdiction to award damages for harm caused by CSDP missions is the correct approach as it takes seriously the principle of conferral. The outcome may have been morally fraught, but the appropriate remedy was political, not judicial, as it was for the Member States to amend Article 24 TEU and Article 275 TFEU and do away with the limitations on the CJEU’s jurisdiction within the CFSP.

With the Court’s judgment in KS and KD, we now have an arrangement whereby the Court can regulate the extent of its own jurisdiction. KS and KD were lucky in that the Court also ruled that several aspects of the CSDP mission’s actions were not “political or strategic”, meaning that the door for damages remains open. Other applicants may not be that lucky.

That said, the real problem with the judgment in KS and KD lies elsewhere. (After all, if the CJEU lacks jurisdiction, Member State courts can and should step up.) In KS and KD, the Court emphasizes the importance of the principle of conferral and it dismisses the structural arguments advanced by several parties (and the AG) that the rule of law and the principle of effective judicial protection require that the Court expand its jurisdiction. As the Court points out:

[T]he claim that the acts or omissions which are the subject of an action brought by an individual infringe that individual’s fundamental rights is not in itself sufficient for the Court of Justice of the European Union to declare that it has jurisdiction to hear and determine that action … otherwise, the last sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU would be deprived of their effectiveness in part and the principles of conferral and of institutional balance infringed.

This is, of course, correct. Yet at the same time the Court takes it upon itself to determine the limits of its own jurisdiction in CFSP-related cases. This is hardly a court that takes conferral seriously.