An EU external relations political question doctrine that suffers no human rights exception: Joined cases C-29/22 P and C-44/22 P KS and KD on the Court’s jurisdiction in CFSP matters

10 September 2024 was a big day for competition lawyers: the Court of Justice delivered two long awaited judgments in mega cases Commission v Ireland (Apple) and Google Shopping, concerning respectively a staggering 13 billion euros of illegal State aid and a 2.4-billion euro fine on Google for abuse of dominant position.

Sandwiched between those two heavyweight rulings, the Court pronounced an equally awaited judgment – albeit by the smaller community of external relations lawyers – in the KS and KD v Council case. Commentators expected it to be a landmark judgment, placing significant weight on it to decisively settle the question of the extent of the CJEU’s jurisdiction in matters of Common Foreign and Security Policy (CFSP).

Indeed, the Treaty of Lisbon integrated the CFSP into the constitutional design of the EU, yet it remains a policy area governed by special rules and procedures. Importantly, the CJEU does not enjoy full jurisdiction. Articles 24 TEU and 275 TFEU limit the Court’s jurisdiction in essence to 1) monitoring compliance with Article 40 TEU (the mutual non-affectation clause, and thus the principle of institutional balance) and 2) to reviewing the legality of restrictive measures by means of actions for annulment (under Article 263(4) TFEU). In its previous case law (discussed in more detail here), the Court has however interpreted the CFSP exception to its jurisdiction narrowly, and the exception to that exception broadly, in the name of effective judicial protection: the judicial review of sanctions is possible not only via the annulment action but also through the preliminary reference procedure (Rosneft). It has also confirmed that it will hear a claim for damages should an individual be injured following the imposition of sanctions (Bank Refah). Further, the Court will decline jurisdiction only if the challenged measure both has a legal basis in the CFSP (ergo, the procedural legal basis under Article 218(6) TFEU can be reviewed, per Mauritius) and relates, substantively, as an act of foreign policy, to the exercise of the CFSP and is not merely set ‘in the context of the CFSP’, relating in substance to other policies: public procurement (Elitaliana), staff management (H v Council) or budget expenditures (SatCen).

KS and KD was the first opportunity for the Court to decide whether the CJEU could hear claims for damages not related to restrictive measures – more particularly on account of human rights breaches by a Common Security and Defence Policy (CSDP) Mission, and thus firmly relating on the substance to the exercise of the CFSP.

The blog post will first explain and then discuss the judgment of the Court. While ultimately significantly extending its jurisdiction, the Court has done so in a rather convoluted manner.

Facts and antecedents of the case

The case (explained in more detail here) is set in the aftermath of the conflict in Kosovo. In 2008, the EU set up a civilian mission, EULEX Kosovo, charged with assisting the Kosovar judiciary to reinforce its effectiveness and independence, strengthening the rule of law. Among its missions are the investigation, prosecution, adjudication of war crimes and enforcement of the relevant judgments. The EU further set up a Human Rights Review Panel responsible for examining complaints of human rights breaches committed by EULEX Kosovo. The Panel can find breaches but has no enforcement powers – it can only make non-binding recommendations for remedial action to the Head of Mission. Two Kosovar women, KS and KD, filed complaints with the Review Panel for lack of proper investigation by EULEX Kosovo into the abduction, killing and disappearance of their family members. The Review Panel indeed found the violation of several human rights breaches:

• the insufficient investigation of the disappearance and killing of their family members due to the lack of necessary resources and appropriate personnel;

• the absence of legal aid for qualifying applicants in proceedings before the review panel and the establishment of that panel without enforcement or remedy powers;

• the failure to remediate the found human rights breaches;

• the misuse or abuse of executive power by the Council and the EEAS by their assertion in a letter sent to KS and KD that EULEX Kosovo had investigated to the best of their abilities;

• the removal of EULEX Kosovo’s executive mandate while breaches remained extant; and

• the misuse or abuse of executive or public power for failing to ensure that their case be subject to legally sound review by the mission and/or specialized prosecutors.

Subsequent recommendations were however barely followed up. After multiple failed attempts to obtain justice, KS and KD brought an action for damages before the General Court in 2020 against the Council, the Commission and the EEAS, on account of the aforementioned fundamental rights breaches. The General Court held that it manifestly lacked jurisdiction to hear the action on the ground that all the acts and omissions complained of, related directly to the definition and implementation of the CFSP. KS and KD appealed the decision. Interestingly, the Commission did as well, supported by no less than seven Member States, arguing equally – if not more – ferociously than the two appellants  for the recognition of the jurisdiction of the CJEU.

In November 2023, Advocate General Ćapeta delivered her Opinion (discussed here, here and here). She discarded a literal interpretation of Articles 24 TEU and 275 TFEU read in isolation and proposed a teleological and systemic interpretation of the Treaties. AG Ćapeta argued that the limitation of the CJEU’s jurisdiction was meant to remove foreign policy choices from judicial oversight. However, she argued, even such limitation must be read in light of the constitutional framework of the Treaties, including the respect of the rule of law and fundamental rights. Such an interpretation of the limitation to the CJEU’s jurisdiction dictates that fundamental rights violations could never constitute legitimate foreign policy choices. Thus, AG Ćapeta concluded that the review of alleged fundamental rights breaches can never be excluded from the jurisdiction of the Court.

The judgment of the Court

The Court did not entirely follow the AG. First, the Court swiftly and decisively rejected the argument that actions brought for fundamental rights breaches could, in and of themselves, justify the jurisdiction of the Court. Further, the Court also rejected that a teleological interpretation of Articles 24 TEU and 275 TFEU – read in light of Articles 2, 3(5), 6, 19, 21 and 23 TEU, Article 47 of the Charter of Fundamental Rights and Articles 6(1) and 13 ECHR – could have the effect of conferring jurisdiction on the Court where the Treaties exclude it (para. 71). Such an interpretation would undermine the effectiveness of the ‘special rules and procedures’ governing CFSP and the exceptions contained therein (para. 73).  The Court recalled that, while the respect for the rule of law and fundamental rights apply to the CFSP, so do the principles of conferral and institutional balance (para. 72), which do not allow the Court to assume jurisdiction where the Treaties exclude it. Referring inter alia to case law of the ECtHR, the Court decided that limitations of jurisdiction are not incompatible with the rights to effective judicial protection and fair trial, if those limitations ‘cannot be detached from the conduct by that State of its international relations’ (para. 78, quoting H.F. et al. v France, para. 281).

However, the Court did not dismiss the case just yet. Instead, it devised a two-step approach to ascertain jurisdiction in CFSP matters, also clarifying the relation between the different strands of its case law. First, the Court must verify whether the situation at issue falls within the exceptions provided for in Articles 24 TEU and 275 TFEU, as interpreted in Rosneft and Bank Refah, where jurisdiction is expressly allowed (para. 115). As a second step, should the facts not fall within the textual exceptions, it must examine whether it can establish jurisdiction on the basis that the situation at issue is not directly related to a political or strategic choice made by the institutions in the context of the CFSP (para. 116).

Political or strategic choices are, according to the Court, ‘acts or omissions directly related to the conduct, definition or implementation of the CFSP, and especially the CSDP, that is to say, in particular the identification of the European Union’s strategic interests and the definition of both the actions to be taken and the positions to be adopted by the European Union as well as of the general guidelines of the CFSP, within the meaning of Articles 24 to 26, 28, 29, 37, 38, 42 and 43 TEU’ (para. 118) (emphases added). The Court considered that this interpretation was consistent both with the wording, the context and the aim of Articles 24 TEU and 275 TEU, ‘since it enables the effectiveness of the provisions to be preserved, without, however, unduly prejudicing the right to an effective remedy’ (para. 119).

Proceeding then to a case-by-case analysis of each act or omission that the applicants claimed to have violated their fundamental rights, the Court distinguished three different types among them. Some constituted political or strategic choices ‘directly related’ to the CFSP: the decision to allocate resources to the mission and the decision to remove its executive mandate (paras 126, 136). These fall outside the CJEU’s jurisdiction. Others constituted simple acts of ‘day-to-day’ or ‘administrative’ management: the choice of personnel employed in the mission, the decision adopting ‘procedural rules’ establishing the review panel and its powers (paras 128, 131). Finally, some more constituted a ‘failure to adopt individual measures’ (para. 133), comprising the failure to follow up on the breaches and ensuring that the applicants’ case was subject to sound review. The two latter categories of acts and omissions did not directly relate, according to the Court, to political or strategic choices in the context of the CFSP and thus fall within the ambit of the CJEU’s jurisdiction. The Court set aside the judgment of the GC, and referred it back for a ruling on the admissibility and merits of these two categories of acts and omissions.

Discussion and wider implications: can human rights violations be strategic choices?

The consequences of this judgment should not be understated. KS and KD introduces (almost explicitly) a political question doctrine into EU external relations law: the Court seems to extend its jurisdiction to any act or omission in the context of the CFSP, as long as it does not constitute a political or strategic choice. While not shying away from a political question test, the Court presents it as following the same line of reasoning  of Elitaliana, H and SatCen, as if non-political or non-strategic choices are merely set in the context of the CFSP, and do not relate substantively to the exercise of the CFSP. Yet, these cases critically required another, non-CFSP act to be interpreted for the Court to assume jurisdiction. KS and KD does away with this requirement. Rather unhelpfully, however, the Court gives little to no guidance on the criteria to determine what constitutes such a political or strategic choice. In its judgment, the Grand Chamber embraced a case-by-case approach, and barely justified why it categorized the claims as the one or the other. What can be inferred from the categorization is that the Court seems to understand political choices quite narrowly. For instance, intuitively, it would make sense for the choice not to confer enforcement powers to the Human Rights Review Panel to be a political one. Yet, the Court held at paragraph 131:

the EULEX Kosovo mission was established to assist the Kosovo institutions (…), ensuring that those institutions are free from political interference and adhering to internationally recognised standards and European best practices. Thus, the decision whether or not to make the acts and omissions of that mission subject to a review mechanism meeting those standards does not directly relate to the political or strategic choices concerning that mission, but only to an aspect of its administrative management. 

This seems to open the door to a slew of case law. The Court found AG Ćapeta’s Opinion to be contrary to the letter of Treaties, yet it offered instead a test that potentially offers more avenues for jurisdiction to the Court, without the guarantee of legal certainty.

Most glaringly, the Court refuses to address as such the core argument raised by the appellants, the intervening Member States in support of the Commission (para. 102), and by the AG: can a human rights breach be a strategic unchecked choice in CFSP? The Court seems to indicate here that it can: the Human Rights Review Panel set up by the Union itself found the lack of resources allocated to the mission to be a human rights breach, yet the Court regarded that the resources made available to a CSDP mission, on the basis of the first subparagraph of Article 28(1) TEU are a strategic choice, outside of the ambit of its review (para. 126). Notwithstanding a control by Strasbourg, could the Council decide more sinisterly that human rights compliance should take the backseat in favour of efficiency in the fight against terrorism, or to ensure the bloc’s security against attacks of its enemies, without any internal judicial oversight? Intuition says that the Court searched for a compromise that would not flat-out disregard the exceptions provided for in the Treaties but would still allow KS and KD to have their day in court. Yet by doing so, the Court has offered a test that satisfies neither the principles of conferral and institutional balance (unlike the judgment claims to do) nor, more crucially, the framework of the Treaties that provides for the respect of the rule of law, the protection of fundamental rights, and especially the right to effective judicial protection.

What is certain is that the Court will not be able to sustain another expansive interpretation of the provisions of the Treaty without rendering them fully meaningless, so perhaps it is time to push the proverbial nuclear button, and start seriously considering a Treaty modification.