Doing too much and too little: The CJEU’s approach to judicial review of fundamental rights breaches in the CFSP after KD and KS

On 10 September 2024, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its judgment in the joint cases KD and KS v Council and Others. The case is significant as it further expands the jurisdiction of the CJEU in the field of the Common Foreign and Security Policy (CFSP) despite the explicit exclusion of the CFSP from the Court’s jurisdiction under Article 24(1) of the Treaty on the European Union (TEU) and Article 275 of the Treaty on the Functioning of the European Union (TFEU). Despite the Court’s proactive expansion of its own jurisdiction, the judgment does not aim to provide a comprehensive solution to the issue of legal accountability for fundamental rights breaches in the context of the CFSP. It therefore seems to be doing too much – expanding the Court’s jurisdiction beyond the limits of its previous case law –, and too little – leaving open the question of how accountability can be established for other types of fundamental rights breaches committed in the context of the CFSP.

The alleged human rights breaches by EULEX Kosovo and the case before the General Court

In 2008, the EU established EULEX Kosovo, a civilian mission aimed at assisting criminal justice institutions in Kosovo. The case concerns the complaints of two individuals, KD and KS, before the mission’s internal Human Rights Review Panel. Both individuals alleged EULEX had breached several European Convention of Human Rights (ECHR) provisions by failing to conduct an effective investigation into their husbands’ disappearance and (in the case of KD) abduction and killing during the Kosovo conflict. The review panel found in their favour and made recommendations to the Head of the Mission for remedial action. In response to a follow-up complaint, it found that the Head of Mission had failed to implement the recommendations and had prematurely closed the cases.

EULEX was established under EU law, within the framework of the EU’s CFSP. The applicants were therefore able to bring their case to the first instance of the CJEU, the General Court. In their application, they sought to establish the liability of the Council, Commission and European External Action Service for several claims arising from the alleged fundamental rights breaches committed by EULEX. In essence, their claims were based on the inaction of the institutions to ensure legal redress was provided after the review panel’s findings and on the establishment of the mission without the power to provide legal remedies.

Articles 24(1) TEU and 275 TFEU establish that the general jurisdiction of the CJEU for the interpretation and application of the Treaties shall not apply with respect to matters concerning the CFSP. The Articles allow for two exceptions to said exclusion. Firstly, they permit the Court to assess an act’s compliance with Article 40 TEU, which aims to prevent the passing of CFSP acts under the auspices of another policy area to circumvent the specific procedures of the CFSP (and vice versa). Secondly, the Court is allowed to review actions for annulment concerning restrictive measures (or sanctions). This gives individuals the option to challenge the legality of EU sanctions directed against them. In the Order by the General Court of 10 November 2021, the General Court noted the exclusion of the CFSP from its jurisdiction and held that none of the exceptions applied to the case of KD and KS. It therefore found that it “manifestly lacked jurisdiction to hear and decide the case” and dismissed the action (KD and KS, paras 14-32).

The Grand Chamber judgment

In her Opinion on the case (23 November 2023), Advocate General (AG) Ćapeta called on the Grand Chamber to overrule the Order of the General Court by introducing a general exception for fundamental rights claims from the CFSP exclusion (for Verellen’s analysis of her opinion, see here). Her opinion is interesting since it effectively does away with the Treaty exclusion by relying on the constitutional principles of the rule of law and the protection of human rights under Article 2 TEU. According to the AG, the exclusion of the CFSP from the Court’s jurisdiction is aimed at safeguarding the political and strategic choices of the Member States. However, the rule of law necessitates the EU and its Member States be subject to judicial review (AG Ćapeta, Opinion KD and KS, para 80-82). Since respect for human rights is a necessary precondition for EU acts, she concluded that the exclusion cannot apply in cases against alleged fundamental rights breaches. The AG thereby significantly limits the scope of the CFSP exclusion, arguing that, as an exception to the Court’s general jurisdiction, it must be interpreted narrowly (AG Ćapeta, Opinion KD and KS, para 90).

The Grand Chamber took a more nuanced approach, refusing to introduce a general exception for fundamental rights claims. While it agreed with the AG on the importance of adhering to the constitutional principles, it rejected the argument that they are necessarily in conflict with the CFSP exclusion. Instead, it stressed the principles of conferral and institutional balance, which allow the EU institutions only to act within the competences conferred onto it by the Treaties (KS and KD para 70-80). It therefore generally upheld the exclusion of the CFSP from its jurisdiction also in relation to fundamental rights claims.

The Grand Chamber did, however, expand the Court’s jurisdiction in the CFSP by holding that some of the alleged acts fall under its jurisdiction. It therefore drew on the AG’s distinction between acts or omissions related to the political or strategic choices and those not related. In relation to the former, it held that they do not fall under the Court’s jurisdiction whereas the latter do (KD and KS, para 116-117). It therefore adopted parts of the AG’s reasoning without, however, allowing for a general exception for fundamental rights claims. Instead, the approach proposed by the Grand Chamber necessitates an assessment of whether the act or omission underlying the claim can be considered related to political or strategic decisions, irrespective of whether it allegedly breaches fundamental rights. This distinction allowed the Grand Chamber to differentiate between those acts that are part of the high politics of the Member States, and as such fall under the exception for CFSP acts, and those that merely occur in the context of such policies but whose content is administrative in nature. Despite taking a more cautious stance than the AG, the Court’s reasoning nevertheless stretched the Treaty text, as will be shown below.

The Grand Chamber did not give any examples of what types of acts or omissions might fall under these categories. The only available guidance is therefore the Court’s classification of the acts and omissions in question in the case. It found two of the acts to be directly related to political or strategic decisions, namely EULEX’s choice not to conduct an effective investigation because of a lack of resources and the decision to remove the mission’s executive mandate. According to the Grand Chamber, these acts therefore did not fall under the Court’s jurisdiction. On the other hand, it found that several of the acts and omissions were indeed not directly related to political or strategic decisions, such as the lack of personnel as reason for the mission’s insufficient investigation, the establishment of the review panel without the power to provide legal aid and enforce its findings, the mission’s failure to take remedial action, the Council’s assertions that the mission had done its best, and the failure to ensure that KD’s case, which concerned war crimes, was subject to legally sound review by EULEX or the Kosovo Specialist Chamber (KD and KS, para 167). The Grand Chamber therefore ruled that the General Court did indeed err in law when finding that it did not have jurisdiction over these acts and omissions. By referring the case back to the General Court, the Grand Chamber paved the way for an analysis of the facts of the case.

Doing too much: Further expansion of the Court’s jurisdiction

On the one hand, the judgment presents another example of the Court’s expansive interpretation of its own jurisdiction. The distinction of CFSP acts based on their relation to political or strategic decisions is not formally set out in the Treaties. Article 24 clearly excludes CFSP acts from the Court’s jurisdiction and only accounts for the two exceptions laid down above. Similarly, the Court’s case law, such as Elitaliana, H v Council, and SatCen, does not establish such a rule. Instead, the paragraphs of these judgments cited by the Grand Chamber as authority for the distinction (KD and KS, para 116), merely argue that the limitation of Articles 24(1) TEU and 275 TFEU is not absolute and allows for exceptions. It is therefore unclear what exactly the introduction of this distinction is legally based on.

In broadening the Court’s jurisdiction, the judgment aligns with prior CJEU case law that has extended the Court’s authority beyond the two Treaty exceptions. In Elitaliana, H v Council and SatCen, the Court kept narrowing the exclusion of CFSP acts by adding types of decisions that it considered as falling under its jurisdiction (first public procurement, then staff management). Since the expansion of the Court’s jurisdiction enables judicial review of a wider variety of issues, it seems to serve the goal of increasing legal accountability in the CFSP. Nevertheless, these judgments have been criticised in the literature for creating a creeping supranationalism and legal uncertainty. In KD and KS, the Court continues the trend of “doing too much” by adding another category of acts to the repertoire of cases it considers within its jurisdiction. In doing so, the Grand Chamber fails to clearly set out which acts it considers related to strategic or political choices beyond the concrete examples of the case. The judgment therefore raises new questions for applicants contemplating an application at the Court.

Doing too little: No conclusive answer to the question of CFSP accountability

Nevertheless, the judgement is not aimed at solving the question of accountability for fundamental rights breaches committed in the context of the CFSP. The tension between the EU’s constitutional principles and the explicit exclusion of the CFSP from judicial review is not easily resolved. Establishing full jurisdiction over fundamental rights cases in the CFSP would admittedly have stretched the Treaty text and would have invited much more severe criticism of the Court’s activism. On the other hand, scholars have highlighted the risks of entirely excluding the CFSP from judicial review at the EU level.

The EU is based on the idea that the EU courts and domestic courts work together to form a coherent system of legal remedies. It is therefore sometimes suggested that domestic courts might be able to adjudicate claims against CFSP acts where the EU courts cannot. However, as scholars have demonstrated, pursuing claims at the domestic level presents significant challenges. Domestic courts lack the competence to interpret EU law (Foto-Frost) and it remains unclear whether they are allowed to ask for preliminary reference procedures in cases for which the CJEU does not have jurisdiction. While they are able to review the acts of their own governments in EU missions, and indeed have done so (see VG Köln, 11.11.2011, 25 K 4280/09), the acts of EU missions themselves escape their scrutiny.

Shifting accountability to the international level is similarly difficult. It has been argued that EU missions could be attributable to the EU as de facto organs and therefore lead to its international responsibility under the ILC’s Draft articles on the responsibility of international organizations. However, the international responsibility of the EU is complicated by the fact that neither individuals nor international organisations currently have standing before the ICJ. The ECtHR likewise does not constitute an appropriate forum due to the non-accession of the EU to the ECHR which means that cases cannot be directed against the Union itself (for Krommendjik’s analysis of renewed prospects for accession after KD and KS, see here). Accordingly, the debate over international accountability currently remains hypothetical.

Scholars have therefore argued that there might be an accountability gap for fundamental rights breaches committed in the context of the CFSP (see Johansen 2016 or de Coninck 2023). KS and KD does not close this gap. The Court seems to have tried to strike a balance between ensuring accountability for fundamental rights breaches while honouring the Treaty text. However, those acts related to strategic or political issues still fall outside the Court’s jurisdiction. Thus, despite its expansive interpretation of its own jurisdiction, the problems of ensuring accountability persist in these cases.

What’s next

It will be interesting to see where the CJEU goes from here. With the Treaty text clearly outlining the general exclusion of CFSP activities from the Court’s review, there seems to be a limit to how far the Court can stretch its jurisdiction. Nevertheless, the judgment is evidence of the Court’s commitment to further expanding its jurisdiction. It might therefore find further exceptions in future cases. It will likewise be interesting to see how the Court applies the distinction between acts related to the political or strategic decisions and those not related in future cases.

From an accountability perspective, the question remains how accountability can be ensured for acts or omissions directly related to political or strategic decisions within the CFSP in light of the problems facing claims at the international and domestic levels. The drafters’ intention of retaining intergovernmentalism in EU foreign relations should be taken seriously. As a core state power, Member States have long been more protective of their sovereignty in questions of foreign policy than in other areas of EU law. By tying decision-making to the Council and excluding the CFSP from the review of the CJEU, the Member States aimed to ensure that they would stay in charge of foreign policy decisions.

However, one should not underestimate the danger of creating a loophole for accountability where fundamental rights breaches are committed in the context of EU missions. This is especially problematic in light of the renewed political interest in expanding EU military cooperation sparked by recent changes in the international security landscape. Since shifting accountability to the international or domestic level might not be effective, the role of mission-specific mechanisms, such as EULEX’s Human Rights Review Panel, could be revisited. As evident from the current case, however, their effectiveness in ensuring judicial protection hinges on their establishment with the power to provide legal redress and enforce their rulings.