The Final Episode of a (Never-Ending) Series? CFSP Damages Claims and the ECHR Accession

It seems to be a never-ending series with countless episodes: the puzzle of the EU’s accession to the European Convention on Human Rights (ECHR) remains on the EU’s agenda. It continues to be there not least because of the constitutional imperative under Article 6 TEU, which was inserted in the Treaty of Lisbon in 2007. However, finding this missing tile to accession is also crucial to enhance fundamental rights protection more broadly (see for example article by Tobias Lock).

This blogpost looks at a specific season of the accession series: the Common Foreign Security Policy (CFSP) area and the CJEU’s jurisdiction. What gave rise to choosing this particular focus is the Court’s judgment on 10 September 2024 in the Joined Cases C‑29/22P and C‑44/22P KS and KD and the preceding Opinion of Advocate General Ćapeta on the matter. The AG underscored that the CJEU’s jurisdiction for damages claims in the CFSP area potentially resolves the EU’s struggles with the ECHR accession (para. 147, Opinion). She raises this point as CFSP remains the only unresolved issue in the new ECHR accession negotiations ('46+1' Group meetings). Irrespective of the judgment’s outcome, the case has certainly reignited the discussion on potential solutions for the ECHR accession struggle. As Christian Breitler's blog post already underlined in different words: the CJEU’s current case law is undeniably relevant for the ECHR accession. Hence, I am aware that I am not the first author to write about this specific season of the ECHR accession. However, this blog post provides novel insights, as I take the argument of Sara Notario – which was posted on this blog - one step further. In essence, I argue that the jurisdiction of the CJEU for damages claims in the CFSP area does not entirely pave the way towards ECHR accession. Whilst Sara Notario came to a similar conclusion, she argued that jurisdiction for damages claims in the CFSP area at least resolves the problems for the ECHR accession as regards damages claims in the CFSP area. As logical as this seems, I do not believe that this will be the case. In this blog post, I will show why jurisdiction for damages claims in the CFSP area is not even the final episode in the current season. But before we jump to conclusions, we must go back to the pilot episode: the issue at stake.

The Pilot Episode: Opinion 2/13

In Opinion 2/13, the ECJ pointed to several incompatibilities of the envisaged agreement for the EU’s accession to the ECHR. These incompatibilities all boil down to the point that the EU is an autonomous legal order, which the ECJ is keen to protect and preserve. The issue regarding the CFSP area is that the EU’s autonomous legal order and the Court’s authority would be endangered if an external court could exclusively rule on the EU’s conduct (Opinion 2/13, para. 251). The ECHR accession would result in precisely this exclusive jurisdiction for the European Court of Human Rights (ECtHR). But let us push the rewind button one more time: why would the CFSP area open the doors for such exclusive jurisdiction in case of accession?

Essentially, the Court of Justice of the European Union (CJEU) has been largely excluded by the EU treatymakers from adjudicating cases in the CFSP area, as can be seen from the Initial Contributions by the Commission (page 14, Article Y10) and Articles on the Court of Justice and the High Court (pages 27-28, Article 240A). This exclusion is laid down in Articles 275 TFEU and 24(1) TEU. Only certain exceptions are apparent from these Articles, which refer to Article 40 TEU and Article 263(3) TFEU. Put simply, the CJEU can adjudicate cases where a CFSP provision affects a TFEU provision or vice-versa (Article 40 TEU). Furthermore, it has jurisdiction to rule on actions for annulment of restrictive measures adopted under Article 29 TEU (Article 263(4) TFEU).

Jurisdiction over restrictive measures has been further expanded to other types of procedures by the CJEU’s case law, i.e., to preliminary rulings (see C-72/15 Rosneft) and actions for damages (see C-134/19P Bank Refah Kargaran). Apart from that, the CJEU’s case law reveals two other exceptions to the ban of jurisdiction in the CFSP area. Firstly, the award of public contracts (C-439-13P Elitaliana) and staff management (see C-466/14P H,  C-14/19P SatCen and C-283/20 Eulex Kosovo) in the interest of budgetary expenditure. Secondly, the procedure under Article 218 TFEU falls under the CJEU’s scrutiny in order to preserve the institutional balance (see C-658/11 Mauritius Agreement, para. 73). Consequently, the CJEU’s jurisdiction in the CFSP area is limited, subject to certain exceptions. Thus, acceding to the ECHR would mean allowing the EU’s actions to be judged by an external court.

The New Season: Provisional Agreement of the ‘46+1’ Group

Despite the drama unfolding in the pilot episode, the EU remains obliged to accede to the ECHR under Article 6 TEU. Therefore, after Opinion 2/13, new accession agreements were drafted in the '46+1' Group meetings. Nearly all incompatibilities that were pointed out by the ECJ have been resolved. The only remaining unresolved issue concerns the CFSP area. The negotiations ended with the imperative that the EU should solve this problem ‘internally’ (18^th meeting, para. 7). According to Breitler and AG Ćapeta’s Opinion for that matter, such an internal solution might be just around the corner with the Court’s most recent judgment: KS and KD.

The Plot Twist: Jurisdiction for Damages Claims in the CFSP Area

With the expansion of the EU’s external action, such as the delivery of weapons to Ukraine, the question of jurisdiction in the CFSP area has gained even more significance. Currently, individuals who have suffered as a result of EU actions in the CFSP area cannot seek redress from the CJEU (save for individually restrictive measures, such as individually tailored sanctions as in C-402/05P and C-415/05P Kadi, paras 281 & 303-305). However, without the EU’s accession to the ECHR, they also cannot be remedied by the ECtHR. This leaves individuals in a legal limbo, and is in tension with the obligation for EU action to be subject to judicial review, in accordance with the rule of law under Article 2 TEU on which the EU is based (see C-872/19P Venezuela, para. 48, and C-583/11P Inuit, para. 91). This also applies in the CFSP area, apparent from the combined reading of Articles 21(1) and 23 TEU. Furthermore, the rights under the Charter of Fundamental Rights of the EU (CFR) apply in any situation governed by EU law. Hence, the applicants have the right to effective judicial protection under Article 47 CFR.

The subsequent question arises whether national courts could fill this gap in legal protection. According to Article 19(1) TEU, national courts are also Union courts. Moreover, the CJEU itself has held that national courts have an active role to play under Article 274 TFEU in upholding effective judicial protection enshrined as a right in Article 47 CFR (see C-354/04P Gestoras Pro Amnistía, para. 55 and C-355/04P Segi, para. 56).

As regards the role of national courts in the context of ECHR accession, AG Kokott already ascribed a prominent role to national courts, potentially filling in the role of the CJEU (para. 96 of her view in the opinion procedure 2/13). Additionally, the 6^th meeting of the new Accession Negotiations returned to the possibility of national courts’ jurisdiction as a solution for the CFSP issue (item 10, 37 of the meeting document). Specifically, regarding the most recent case (KS and KD, which was still pending at the time), Eleanor Spaventa recommended that national courts should be the ones adjudicating damages claims in the CFSP area based on several arguments discussed below. AG Wahl (para. 49) and former AG Bobek (para. 108) claimed that due to the exclusion of the CJEU’s jurisdiction in the CFSP area, national courts retain jurisdiction based on the principle of conferral (Article 5 TEU). Furthermore, AG Wahl underlined that judgments of national courts would not compromise the CJEU’s autonomy, as they would not have erga omnes effect (para. 103). And, if there nevertheless would arise any doubt about the uniformity of EU law, a preliminary ruling procedure under Article 267 TFEU must be initiated, as highlighted by AG Wahl (para. 35), Spaventa, and the Court itself in C-355/04P Segi (para. 52). There is thus quite some support for the role of national courts in the CFSP area.

However, putting these arguments in the context of the CFSP area – and specifically tailoring them to damages claims – there are insurmountable obstacles on the road to national courts as the saviours of the EU’s accession to the ECHR. Firstly, uniformity cannot realistically be sustained in the CFSP area. Preliminary rulings remain largely excluded from the CJEU’s jurisdiction (see C-355/04P Segi and the Opinion of AG Wahl), specifically if they do not concern questions on the legality of individually restrictive measures (see C-72/15 Rosneft, para. 81). Secondly, as regards damages claims, AG Ćapeta correctly points to the complication of choosing the responsible national court to adjudicate a case arising from fundamental rights breaches outside the Union (para. 137). Lastly, but most importantly, damages claims regarding the EU’s liability for its external actions are essentially based on non-contractual liability (see Article 340 TFEU) as a substantive requirement. According to Article 268 TFEU, the CJEU retains exclusive jurisdiction for such non-contractual liability claims vis-à-vis the EU. Additionally, the CJEU’s case law clearly excludes national courts’ jurisdiction from disputes regarding non-contractual liability of the European Union (KS and KD, para. 90; Case 101/78 Granaria, para. 26; C-758/19 OH, para. 22). Hence, the role of national courts for damages claims is fundamentally different from their role in other procedures and renders them unsuitable for adjudicating them. Any other conclusion would risk an incoherent interpretation of EU law and go against Article 268 TFEU. Thus, as national courts cannot function as Union courts in this specific instance, and since no non-EU court can rule on the EU’s conduct, only the CJEU can handle damages claims arising from non-restrictive measures. However, in the CFSP area, the issue remains that the CJEU stays largely excluded from adjudicating such cases. More specifically – spoiler alert – in KS and KS, the ECJ held that being the only eligible court to rule on damages claims vis-à-vis the European Union cannot extend its jurisdiction onto damages claims in the CFSP area (para. 91).

In the most recent episode in KS and KD, the Court has not extended its jurisdiction in the CFSP area to damages claims per se. Nevertheless, it has partially – and in its own way – followed the AG’s Opinion, leading to the CJEU’s jurisdiction for damages claims in the CFSP area for non-restrictive measures in specific situations. Before commenting on this brand-new episode, let us look at what the trailer for this episode promises first, namely the AG’s Opinion on the case.

AG Ćapeta offered a revolutionary interpretation of the CJEU’s jurisdiction for damages claims based on fundamental rights. In the case at hand, the applicants had suffered from the insufficient investigation of the disappearance and killing of family members as a consequence of the EU’s omissions in an external action. AG Ćapeta argued that the CJEU should find that it has jurisdiction for damages claims, not only considering effective judicial protection, but also in light of fundamental rights breaches. Whilst the CFSP area retains a specific nature due to the EU actors’ political discretion therein, AG Ćapeta suggested an alternative way of interpreting the substantive requirements in this area. She proposed that the CJEU’s interpretation of the lawfulness of acts should be limited to their conformity with fundamental rights. Hence, as she also concluded in her Opinion on C-351/22 Neves 77, the interpretation of restrictive measures would remain excluded (para. 70). Against this background, the CJEU would not be able to interpret the measure itself, but simply pronounce the lawfulness of the act in light of fundamental rights. In her view, such an interpretation would safeguard the political sensitivity in the CFSP area whilst upholding fundamental rights obligations.

This is exactly where the ECJ rewatched the promising trailer twice and lived up to the spectator’s expectations following the AG’s Opinion. Hence, it took note of the possibility for jurisdiction which preserves the political choice or strategic choices of the EU legislator (KS and KD, para. 117). In other words, the CJEU has jurisdiction for acts that are not directly linked to the interpretation or implementation of a political choice in the CFSP area. As regards the case at hand, the ECJ held that “[…] the absence of both […] remedial action [for the breaches of fundamental rights found by the review panel] and a legally sound review of that case concern the failure to adopt individual measures relating to the particular situations of KS and KD and are not directly related to the political or strategic choices made in the context of the CFSP” (para. 133). This means that the CJEU has jurisdiction to hear damages claims brought by applicants regarding their deprivation of effective legal review of the damages caused by the EU, as – like in KS and KD – they might not be directly linked to a political decision in the CFSP area. Essentially, this can be seen as a light version of the conformity check proposed by the AG. Seeing that some of the AG’s propositions appear in the Court’s judgment in one way or another, we shall also pay attention to one other point raised in her Opinion: the judgment’s potential impact on the ECHR accession. Could this ruling serve as an internal solution for the CFSP issue?

The Disappointing Truth: Why Jurisdiction for Damages Claims in the CFSP Area does not end the ECHR-Accession Series

Whilst I – and seemingly also the ECJ in KS and KD – believe that certain elements of the Opinion of AG Ćapeta are relevant to the enhanced protection of fundamental rights, it unfortunately cannot pave the way for accession to the ECHR.

As already pointed out by Sara Notario, finding to have jurisdiction for damages claims in the CFSP area, arising not only from restrictive measures but also from fundamental rights breaches, would cover only a part of the CFSP area. Notario specifically points to the interpretation of CFSP acts, which would not be covered by AG Ćapeta’s conformity check. Furthermore, she notes the lack of review of CFSP acts’ conformity with other acts in the CFSP area. In addition, as Notario also acknowledged, there are many other procedures in the CFSP area that would still struggle with the problem of an external court ruling exclusively on the EU’s conduct. I certainly agree in that regard: jurisdiction for damages claims does not resolve the ECHR accession problem because a large part of the CFSP area would still face the autonomy problem.

However, I disagree with Notario in that the CJEU’s jurisdiction for damages claims in the CFSP area would resolve the autonomy problem for damages claims. In other words, I argue that claiming jurisdiction would not even relieve damages claims as a procedure from the CJEU’s critique regarding the CFSP area in Opinion 2/13. To substantiate my argument, I will compare the CJEU’s damages claims with the ECHR’s damages claims to determine whether they substitute each other. This allows us to see whether there are any gaps that still leave the doors open for an exclusive review by the ECtHR.

In essence, damages claims play inherently different roles in the two legal orders. EU damages claims, enshrined in Articles 268 TFEU and 340 TFEU, are autonomous acts (see C-134/19P Bank Refah Kargaran, para. 33). Hence, they are not dependent on another procedure and complete the ‘complete system of legal remedies’ (see C-50/00 P UPA, para. 40). In contrast, the ECHR’s damages claims, called ‘just satisfaction claims’, are incidental acts (see para. 1, Rules of the Court 2022). This means that the award of damages in the ECHR’s legal order always goes hand in hand with declaring the act in question as a violation of the ECHR (see para. 2, Rules of the Court 2022). Thus, the award of damages implies the illegality of an act in the ECHR’s legal order. This is the same in the EU’s legal order. The three conditions for damages claims in the EU are the conferral of rights on individuals, a sufficiently serious breach thereof, and a causal link between the breach and the harm (see C-352/98P Bergaderm, paras. 42 & 44). This means that harm must be linked to a breach, which indicates that granting damages is tantamount to declaring an act unlawful. The idea of awarding damages for lawful acts was rejected by the Court itself (see C-12/13P and C-13/13P Buono, para. 43 and C-120/06P and 121/06P FIAMM, para. 184). Therefore, while the nature of damages claims in the EU’s legal order is autonomous, the award of damages implies the pronunciation of illegality. Consequently, awarding damages requires the existence of an illegal act in both legal orders. For the ECHR accession, this means that by awarding damages, the CJEU is already pronouncing an act as illegal – pre-empting the need for the ECtHR to rule on the legality of the act. It would resolve the issue of a non-EU court exclusively ruling on the EU’s conduct, which was raised by the ECJ in Opinion 2/13.

However, let us not jump to conclusions just yet. Although the legal implications of damages claims in the two legal orders are similar as regards the illegality of the underlying act, their scope is different. In essence, the ECtHR distinguishes between different forms of harm (see paras. 7-8, Practice Direction 2007). These different forms of harm are accompanied by different substantive and procedural requirements. For example, for pecuniary damages, also potential harm can be compensated (see again paras. 7-8, Practice Direction 2007). Furthermore, non-material harm demands a lower standard of proof than material harm (see para. 10, Rules of the Court 2022). The EU’s legal order does not require different substantive requirements or procedural requirements for different forms of harm. In fact, the EU does not differentiate between different forms of harm in the first place. Looking at the differentiation by the ECHR’s legal order, a crucial difference in the scope of the two actions appears. EU damages claims do not foresee the award of damages for potential harm (see Summary Action for Damages and para. 112, Moosdijk). Hence, it is unclear what would happen in the scenario of potential harm arising from an EU act. Such a form of ‘satisfactory claim’ cannot be substituted by an EU damages claim, as the requirements for damages (see C-352/98P Bergaderm above) remain the same – not foreseeing the award of damages for potential harm. Therefore, only the ECtHR could rule on such potential harm arising from the EU’s conduct. The issue raised by the ECJ in Opinion 2/13, regarding a non-EU court’s judgment over EU actions would remain for such a scenario. Hence, the CJEU’s jurisdiction for damages claims in the CFSP area cannot pre-empt all damages claims which could be raised before the ECtHR.

This means that while the CJEU’s jurisdiction for damages claims in the CFSP area certainly increases the protection for fundamental rights – especially before an accession to the ECHR – it does not have any significant impact on the ECHR accession itself. Firstly, agreeing with Sara Notario, there would still be acts left in the CFSP area, which are not shielded from the exclusive jurisdiction of a non-EU court. Furthermore, even damages claims themselves cannot entirely be made untouchable by a non-EU court’s jurisdiction, as ECHR damages claims have a broader scope than EU damages claims.

The Ending We Must Hope For

Where does this leave us? It shows that even though the ECJ followed the suggestion of AG Ćapeta in its own way, the judgment is not the final episode of the ECHR accession series, nor does it provide the missing tile in the accession puzzle. What then will be the final episode? As I have pointed out above, the CJEU has purposefully been excluded from adjudicating cases in the CFSP area. Thereafter, extensively grabbing back the CJEU’s jurisdiction through case law, seems to be against the will of the Treatymakers. This means, put in the ECJ’s own words, in KS and KD: “[the imperative to accede to the ECHR] cannot be interpreted as having the effect of extending the jurisdiction of the Court of Justice of the European Union in relation to the CFSP” (para. 82). However, if the CJEU’s jurisdiction is not expanded, how can an accession be compatible with Opinion 2/13, ensuring that a non-EU court does not exclusively rule on the EU’s conduct? The whole situation indeed seems like a never-ending dilemma. I believe, however, that there is a solution for it. The dilemma is not whether accession is possible or not, as it remains a constitutional imperative. The dilemma is rather that one of the two parties must leave their stubbornness behind to reach the final episode. In other words, either the Treatymakers must change the Treaties and thus relinquish its wish to exclude the CJEU’s jurisdiction from the CFSP area. Or the CJEU must accept that an accession can also take place without endangering the EU’s autonomous legal order, even if an external court rules on the EU’s conduct in the CFSP area.

[DISCLAIMER] This post does neither reflect the Styrian government's opinion nor the Austrian government's opinion and is attributed to the author independently.