By Davide Genini
On 10 September 2024, the European Court of Justice (ECJ) delivered a landmark judgment in KS and KD v Council. This blog post explores the ECJ’s judicial authority over CFSP matters in light of this pivotal decision, highlighting its potential impact on the broader European integration process. It argues that by extending its jurisdiction in CFSP via the political question doctrine, the Court has made a significant step towards deeper EU integration, though the challenges this poses should not be underestimated.
I. Introduction
In response to human rights violations that occurred during the execution of EULEX Kosovo in 1999, KS and KD sought to establish non-contractual liability for breaches of the European Convention on Human Rights (ECHR) by filing a complaint with the General Court. However, in 2021, the General Court dismissed the action due to a lack of jurisdiction, based on a strict interpretation of the CFSP’s “specific rules and procedures” under Article 24(1) TEU.
In 2023, Advocate General Ćapeta challenged this decision, proposing a broader interpretation of the CFSP. She argued that the rule of law and human rights are integral to the EU’s constitutional framework, including within the CFSP, and should not be excluded from the ECJ’s jurisdiction. Following the Lisbon Treaty’s abandonment of the three-pillar structure, the CFSP has been fully integrated into the EU’s general framework. Consequently, there is no valid reason to exempt the CFSP from the application of fundamental EU constitutional principles – including the rule of law and human rights – which apply transversely to all EU policies, as outlined in Article 21 TEU. Accordingly, the EU Court holds judicial authority over all CFSP decisions, including political or strategic decisions, as it must ensure their conformity with the constitutional principles of EU law. However, a contrario, the limitations of CFSP jurisdiction lie in the fact that, once the EU Court verifies that a CFSP act does not breach constitutional rights, it has no further jurisdiction over the act and cannot interpret it or review its conformity with CFSP rules. Building on this teleological reasoning, Advocate General Ćapeta concluded that the General Court failed to recognize that the limitations on CFSP jurisdiction set out in s Article 24(1) TEU and 275 TFEU are exceptions, not the norm; they must be interpreted narrowly, regardless of the specific factual context.
II. The European Court of Justice: The Rise of a Political Question Doctrine
In light of the Advocate General’s Opinion, the ECJ reversed the General Court’s judgment, referring the case back for a ruling on the admissibility and merits of most claims brought by KS and KD. However, the ECJ’s reasoning diverged from the Advocate General’s on several critical points.
First, the Court rejected the Advocate General’s assertion that acts or omissions leading to human rights violations automatically justify extending its jurisdiction over the CFSP beyond the strict limits set by Articles 24 TEU and 275 TFEU. Second, the ECJ declined to adopt a broad teleological interpretation of these provisions in conjunction with Article 47 of the EU Charter of Fundamental Rights, Articles 6(1) and 13 of the European Convention on Human Rights (ECHR), and other EU principles, including Articles 2, 3(5), 6, 19, 21(1), and 23 TEU. Third, the Court ruled out exercising exclusive jurisdiction over non-contractual liability claims under Article 340 TFEU, emphasizing that Articles 24 TEU and 275 TFEU act as leges speciales – specific provisions that restrict the ECJ’s authority in CFSP matters.
Instead, the ECJ adopted the Advocate General’s proposal to apply the political question doctrine to CFSP cases. The Court defined political or strategic choices as acts or omissions directly linked to the conduct, definition, or implementation of the CFSP and CSDP, including decisions on the EU’s strategic interests, actions, positions, and general guidelines as laid out in Articles 24 to 26, 28, 29, 37, 38, 42, and 43 TEU. It is worth noting that, while the ECJ has outlined this interpretation of what constitutes a political question in CFSP, the Court’s definition remains insufficiently clear. Consequently, the ECJ is likely to continue offering its own singular interpretations of whether an issue falls within or outside the scope of the political question doctrine.
Additionally, the ECJ categorized CFSP-related acts and omissions into three types. The first involves purely political or strategic decisions – such as resource allocation or the removal of a CFSP mission’s mandate – where the Court has no jurisdiction. The second encompasses “day-to-day” or administrative decisions, including personnel management or procedural rules for review panels, over which the ECJ retains jurisdiction. Lastly, the third category concerns failures to adopt individual measures, such as not addressing identified breaches or instances of power abuse, which also fall within the Court’s jurisdiction since they are not directly related to political or strategic CFSP decisions.
III. The Political Question Doctrine and the CFSP Integration Process
KS and KD v Council represents a significant development in the EU’s approach to the CFSP and its broader external relations law. By introducing the political question doctrine into the CFSP, the ECJ has expanded its jurisdiction beyond the strictly limited exceptions previously outlined in Articles 24(1) TEU and 275 TFEU. The Court now claims authority over CFSP acts or omissions that do not carry a direct political or strategic nature. However, unlike the broader interpretation advocated by the Advocate General, the ECJ’s application of the political question doctrine does not include a blanket protection for fundamental rights.
This case is not the first time the ECJ has extended its jurisdiction in CFSP matters. Previous case law has progressively allowed the Court to intervene in CFSP issues, notably through its review of restrictive measures via the preliminary reference procedure, as seen in Rosneft and Bank Refah. Additionally, even when there is a formal CFSP legal basis to a dispute, the ECJ has exercised jurisdiction over issues substantively connected to other EU policies, such as international agreements (Mauritius), public procurement (Elitaliana), staff management (H v Council), and budget expenditures (SatCen). However, only H v Council and SatCen marked a true legal departure, directly challenging the notion of the CFSP’s judicial exceptionalism within the EU legal order. Both cases pertained to the deployment of an EU CSDP mission, substantively expanding jurisdiction over a strictu sensu CFSP policy beyond those explicitly outlined in the Treaties – namely, restrictive measures and monitoring compliance under Article 40 TEU. The outcomes of the remaining cases were predominantly shaped by the constitutional architecture of the EU Treaties.
KS and KD v Council not only continues the trajectory of these earlier cases, but also comes at a critical moment for the EU as the war in Ukraine, which erupted on 24 February 2022, has catalyzed a more centralized and assertive EU role in foreign and security policy. The EU has taken unprecedented steps to address security concerns, including supplying lethal weapons to third countries and strengthening its defense capabilities. The establishment of a Commissioner for Defence and Space further symbolizes the Commission’s growing role in defense.
In this evolving landscape, the KS and KD judgment consolidates the ECJ’s role in the CFSP, reinforcing the principle of effective remedy and promoting greater coherence between the CFSP and the EU’s other internal and external policies. It also strengthens the notion of a single EU legal order, as outlined in Article 21(3) TEU.
IV. Challenges
While the KS and KD v Council ruling marked advancements in the integration of the CFSP into the broader EU legal order, several limitations remain.
Firstly, the ECJ’s introduction of an ill-defined notion of “political or strategic” acts or omissions within the CFSP raises concerns about legal certainty. The ambiguity of this concept could create difficulties in determining the Court’s jurisdiction, especially in borderline cases between political and legal decisions. Comparatively, U.S. federal courts have faced similar challenges in applying the political question doctrine. Notably, several U.S. lower courts have continued to apply the multifactor test elaborated by the Supreme Court in Baker v. Carr without considering the narrower interpretation provided in Zivotofsky v. Clinton, resulting in a lack of judicial uniformity. Similarly, the ECJ’s case-by-case approach risks fostering uncertainty. For instance, while the lack of enforcement powers for the Human Rights Review Panel might initially appear to be a political decision, the ECJ clarified it as administrative, thus falling within its jurisdiction.
Secondly, the ECJ’s stance on extending jurisdiction over human rights violations within the CFSP remains ambiguous. Unlike the Advocate General, the Court did not automatically extend its jurisdiction to cases involving breaches of fundamental rights. It determined, for instance, that the underfunding of the EULEX Kosovo mission, which was claimed to have caused human rights violations, amounted to a strategic decision beyond its judicial reach. This cautious approach contrasts with recent proposals to enhance CFSP integration, such as shifting from unanimity to Qualified Majority Voting (QMV) on human rights decisions.
Thirdly, the ECJ missed an opportunity to further recognize the role national courts could play in CFSP matters. In previous cases such as Segi, Gestoras Pro Amnistía, and H v Council, the ECJ emphasized the importance of national courts as integral parts of the EU’s judiciary system. However, the lack of clear guidance on how national courts can step in when the ECJ’s jurisdiction is limited leaves a gap in the protection of fundamental rights. A potential solution could be incorporating forum loci clauses, as was done with the Irini operation, where jurisdiction was allocated to the courts of the flag State of the vessel. This approach could serve as a model for addressing future jurisdictional uncertainties in CFSP matters.
V. Conclusion
The KS and KD v Council case marks a crucial decision for the future of the CFSP with significant implications. The ECJ has continued to “normalize” the CFSP within the broader EU legal framework, aligning with the dismantling of the former three-pillar structure established by the 2009 Lisbon Treaty. The war in Ukraine has further accelerated the shift toward a more supranational approach, allowing the European Commission to play a proactive role in shaping security policy. In this context, the KS and KD judgment represents a notable advancement toward deeper integration of the CFSP.
While the trajectory of the KS and KD ruling contributes positively toward integration, the court’s ruling in this case introduces new challenges for this process. The ambiguous definition of the political question doctrine, combined with the ECJ’s restrictive interpretation of human rights violations within the CFSP, risks undermining the progress. Notably, the EU legal order, founded on the rule of law, cannot afford to leave breaches of democracy and fundamental freedoms unaccountable. In light of the jurisdictional gaps in CFSP oversight, the Council should consider introducing a forum loci clause in all its CFSP decisions to ensure proper judicial review. The most effective way to address these shortcomings is through treaty reform. Amending the EU Treaties would guarantee comprehensive judicial protection and accountability for human rights violations across all areas of EU policy.
Davide Genini is a PhD Candidate in EU Law and Government at Dublin City University, specializing in European Security Law. He is also a researcher at the Brexit Institute and the Dublin European Law Institute. Previously, he served as a policy advisor at NATO and conducted research at Bocconi University. He has a number of peer-reviewed publications that focus on the EU’s Common Foreign and Security Policy, defense finance, defense industrial law, security threats, and broader issues surrounding EU integration and its future.