Bridging the CFSP Gap
How the CJEU Further Integrates Foreign Policy Jurisdiction into the EU Legal Framework
The Court of Justice of the European Union (CJEU) interprets its Common Foreign and Security Policy (CFSP) jurisdiction in light of the objectives set by the Lisbon Treaty, thereby integrating part and parcel of the CFSP into the rest of the European Union acquis. This aligns the CFSP with the general principles and constitutional rules set in the Treaty. As the Court advances the integration of CFSP jurisdiction within the broader EU legal order, the judgements of 10 September 2024 in Neves 77 Solutions and KS and KD v Council and Others serve as landmark ruling for the future of judicial review in CFSP.
The Court’s interpretation of its CFSP jurisdiction
In the EU legal order, the CFSP’s role is nuanced. The CFSP is integrated into the EU external relations framework and it is subject to “specific rules and procedures,” amongst others, that limit the CJEU’s jurisdiction. Under Article 24(1) Treaty on the European Union (TEU) and Article 275 Treaty on the Functioning of the European Union (TFEU), the Court’s jurisdiction is excluded in CFSP matters. There are two exceptions to this jurisdictional carve-out, acting as clawbacks. First, the CJEU ensures reciprocal non-encroachment between CFSP and other Union policies pursuant to Article 40 TEU. Moreover, the Court reviews the legality of certain decisions, namely restrictive measures (sanctions), as per the second paragraph of Article 275 TFEU.
Prima facie, the Court’s jurisdiction is limited in CFSP matters. However, the Court interprets the CFSP carve-out provisions, Article 24(1) TEU and Article 275 TFEU, as a derogation from its general jurisdiction under Article 19 TEU, as established in Mauritius (para. 70). This prompts the Court to adopt a restrictive interpretation of the CFSP carve-out. For example, as Article 275 TFEU limits jurisdiction for acts based on CFSP provisions, the Court nevertheless asserts jurisdiction for acts in CFSP contexts. To assert jurisdiction over such acts, the Court relies on constitutional principles like the rule of law and transparency, as evident in cases involving staff management, procurement, and restrictive measures (e.g. H v. Council, Elitaliana, and Bank Refah Kargaran).
By adopting a narrow interpretation of the restrictions in Article 24(1) TEU and Article 275 TFEU, the Court has asserted its jurisdiction over certain CFSP decisions. This approach contributes to the normalization of the CFSP by extending the Court’s oversight beyond the strict limits set by the Lisbon Treaty. In Bank Refah Kargaran, the Court extended its jurisdiction to award damages for restrictive measures, despite Article 275 TFEU being limited to the legality review of sanctions (paras 33-36, para 72). Similarly, in Rosneft, the Court departed from the strict interpretation of Articles 24(1) TEU and 275 TFEU by allowing preliminary reference procedures to review the legality of restrictive measures (para. 75). This expanded the Court’s jurisdiction beyond direct actions for annulment, which the Lisbon Treaty explicitly identifies as the sole avenue for challenging the legality of targeted sanctions (para. 70). Therefore, the Court ensures the CFSP operates consistently with the general legal framework of the EU.
Evidently, the CJEU has shaped the scope of its CFSP jurisdiction through case law. However, the precise boundaries of the Court’s jurisdiction remain undelineated – in Opinion 2/13 (para. 251), the CJEU revealed that “the Court has not yet had the opportunity to define the extent to which its jurisdiction is limited in CFSP matters.”
New opportunities to define CFSP jurisdiction: Neves 77 Solutions and KS and KD v Council and Others
In the recent landmark cases Neves 77 Solutions and KS and KD v Council and Others, issued on 10 September 2024, the ECJ answered novel questions on the scope of CJEU’s CFSP jurisdiction, marking a crucial step toward defining the Opinion 2/13 borders of judicial review in CFSP that further facilitates CFSP normalization.
To begin, in Neves 77 Solutions, the Court revealed the scope of the CFSP claw-back, establishing that preliminary references concerning the interpretation of CFSP decisions on restrictive measures fall within its jurisdiction (para. 61). The case concerned a fine imposed by the Romanian National Tax Administration Agency on Neves 77 Solutions for facilitating a transaction involving Russian-manufactured radio sets, in violation of restrictive measures imposed by Decision 2014/512/CFSP, leading the Romanian Appellate Court to refer the interpretation of this decision to the CJEU (para. 2).
Despite the limitations outlined in Article 24(1) TEU and Article 275 TFEU, the Court asserted its jurisdiction in Neves 77 Solutions by relying on Article 215 TFEU, which directly connects CFSP decisions to the imposition of economic sanctions (para. 39). These sanctions, implemented through EU regulations affecting individuals and economic operators, require judicial oversight to ensure compliance with EU law and to protect fundamental rights (para. 36). The Court emphasized that its jurisdiction extends to cases where CFSP decisions form the basis for national sanctions, ensuring uniform application and judicial protection across the EU (para. 42). The Court reasoned, with the aim of maintaining the rule of law, that it can address questions on the interpretation of CFSP-related measures.
This route differs from AG Ćapeta’s Opinion in Neves 77 Solutions, where the AG acknowledged that, while the Court cannot interpret the general provisions of a CFSP Decision, it retains the authority to interpret EU fundamental rights and principles in order to assess the legality of national measures implementing CFSP decisions (para. 70). Instead, Neves 77 Solutions parallels Rosneft, where the Court asserted jurisdiction over preliminary references to review the legality of restrictive measures to ensure uniform application of EU law and maintain legal certainty across Member States.
KS and KD v Council and Others
The KS and KD v Council and Others case involved an action for damages brought by two individuals who alleged that the EU Rule of Law Mission in Kosovo had inadequately investigated crimes affecting their families, claiming a violation of their fundamental rights (para. 14). The General Court, adhering to a strict interpretation of Articles 24(1) TEU and 275 TFEU, denied jurisdiction to review or award damages related to strategic decisions made under the Common Security and Defence Policy (CSDP) (para. 17). This decision prompted an appeal to the CJEU to clarify the extent of judicial protection available in CFSP matters and address whether such cases fall within the Court’s purview (para. 37).
In her Opinion, AG Ćapeta contended that the GC erred in rejecting jurisdiction, concluding that EU courts are competent to hear damages claims from individuals alleging breaches of fundamental rights linked to CFSP measures (para. 69). This view aligns Bank Refah Kargaran, which affirmed the Court’s jurisdiction within the CFSP for damage claims from sanctions. AG Ćapeta’s position reflects the Court’s practice of deriving CFSP jurisdiction from fundamental EU principles.
Departing from AG Ćapeta’s position, the Court asserted jurisdiction by focusing on reviewing the legality of CFSP acts and omissions unrelated to political or strategic choices, such as the daily management of missions like Eulex Kosovo (para. 157). The Court emphasized that fundamental principles, including the rule of law and the right to an effective remedy, are applicable even to CFSP matters, enabling judicial review of administrative decisions and management aspects (para. 131). Consequently, the Court overruled the General Court’s dismissal. In establishing jurisdiction to review non-strategic CFSP decisions affecting fundamental rights, the Court introduced a political question doctrine, akin to the U.S. tradition in foreign policy case law. This exclusion to review “political or strategic” choices within the CFSP reflects an intention to respect the political discretion inherent in the EU’s external actions.
The Court reinforces CFSP normalization
As the Lisbon Treaty transformed the CFSP from a largely intergovernmental system governed under public international law into an integrated element of the Union’s framework, the CFSP is no longer isolated from the EU’s constitutional architecture. This mandates a purposive interpretation of the EU Treaties relating to Court’s jurisdictional authority in the field. Particularly, interpretations of Article 24 TEU and Article 275 TFEU are obliged to align with EU constitutional principles, as derived from the combined reading of Article 2 TEU, defining Union values, and Articles 21 and 23 TEU. This equality of CFSP with other EU policies underscores that the protection of fundamental rights must be upheld across all policy areas, including foreign policy.
The Court reinforces CFSP normalization in the Neves 77 Solutions and KS and KD through broadening judicial oversight in line with the Lisbon Treaty. In Neves 77 Solutions, the CJEU extended its jurisdiction to interpret CFSP measures through the preliminary reference procedure, thereby subjecting the certain areas of CFSP to the same judicial procedure as other areas of EU law. Similarly, in KS and KD, the Court affirmed that fundamental rights protections apply even to non-strategic elements of CFSP missions, thereby integrating CFSP more comprehensively into the EU’s legal framework. The Court’s interpretation represents a necessary evolution of EU law, aligning the CFSP more closely with the legal structures and values that underpin the Union as a whole.
In clarifying the scope of the CFSP claw-back and carve-out provisions, the Court fulfills its mandate to interpret the Treaties in light of their overall objectives. This upholds the Court’s mandate to apply and interpret CFSP provisions in the Treaties, allowing it to navigate situations where it clarifies the boundaries between political or strategic decisions and legal rights. In distinguishing political and strategic decisions from other measures, the Court does not inherently violate the conferral principle in respect to its jurisdiction as it respects the balance between political discretion and legal oversight.
Concluding remarks
To conclude, in my mind, the Court’s approach in Neves 77 and KS and KD respects the principle of conferral by recognizing and preserving the politically sensitive aspects of the CFSP. At the same time, it integrates the CFSP into the broader EU legal framework where it is necessary to protect fundamental rights and uphold the rule of law. This normalization of the CFSP enhances legal certainty by clearly defining the scope of judicial review in foreign policy matters, thus addressing the jurisdictional gap highlighted in Opinion 2/13. As a result, the CJEU’s actions do not overstep its jurisdiction but instead reinforce the coherence and integrity of EU law across all policy areas.
