A Political Question Doctrine for the CFSP

On 10 September 2024, the Court of Justice of the EU (CJEU or the Court) issued its judgment in the joined cases of KS and KD, addressing the scope of its jurisdiction within the Common Foreign and Security Policy (CFSP). Specifically, the Court was tasked with determining its jurisdiction over an action for damages related to alleged harm caused by a Common Security and Defence Policy (CSDP) rule of law mission. The Court asserted its jurisdiction in so far as the harm-causing conduct did not relate to “political or strategic” choices made in the context of the CFSP. I criticize the Court’s reliance on such an ill-defined concept to delineate the boundaries of its jurisdiction and argue that removing the limitations on the CJEU’s jurisdiction within the CFSP would require a reform of the Treaties.

Background of the case

The case involved an action for damages against the EU’s rule of law mission in Kosovo, Eulex Kosovo, by KS and KD, relatives of individuals who disappeared during Kosovo’s 1998-1999 conflict. They argued that Eulex Kosovo failed to adequately investigate these disappearances and sought damages from the CJEU and UK courts.

KS and KD is an important case because it continues a trend where the CJEU is asked to clarify the boundaries of its jurisdiction within the CFSP. This case follows the Bank Refah Kargaran decision, where the Court determined it has the authority to grant damages for harm caused by unlawful restrictive measures.

Within the CFSP, the CJEU’s jurisdiction is limited. Article 24 TEU states:

The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions [on the CFSP], with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.

Article 275 TFEU adds:

The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the [CFSP] nor with respect to acts adopted on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

These limitations on the jurisdiction of the CJEU do not sit well with several stakeholders, including with (some) Advocates General at the CJEU (see e.g. here and here). This is understandable. The Lisbon Treaty integrated the CFSP within the EU legal order. Constitutional principles developed within the Community legal system now apply to the CFSP as well. This means, inter alia, that the axiom introduced in Les Verts that the Treaties set up a “complete system of legal remedies and procedures” ought to apply as much to the CFSP as it does to other EU policy areas.

The CJEU’s limited jurisdiction within the CFSP is thus seen as an anomaly needing resolution. The CJEU highlighted this in Opinion 2/13 on the draft EU-ECHR accession agreement, identifying it as a major hurdle. Although this should not affect the Court’s ruling in KS and KD, it was clearly a concern for many parties involved in the case.

AG Ćapeta: a political question doctrine with a fundamental rights safeguard

Against this backdrop, the CJEU was asked by KS and KD to award them damages. The General Court (GC) had declared that it lacked jurisdiction, citing the abovementioned Treaty provisions. KS and KD appealed. Advocate General (AG) Ćapeta advised the Court to rule that it has the necessary jurisdiction.

The AG’s interpretation was based on structural reasoning. She viewed the aforementioned limitations through the lens of the structural principles of EU law, which have applied to the CFSP since the Lisbon Treaty came into effect. Key among these were the rule of law and the principle of effective judicial protection set out in Article 47 of the Charter.

The AG understood the limitations as a form of “political question doctrine” for the EU, intending to exclude from the Court’s jurisdiction “strategic or political” questions. Comparatively, in the US, the political question doctrine is a principle that federal courts will not decide issues that are constitutionally committed to the executive or legislative branches.

However, the AG also added an important safeguard. Namely, fundamental rights violations cannot be part of the “political question doctrine”. Accordingly, the AG advised the Court to accept jurisdiction in the cases of KS and KD.

The Court: a political question doctrine without a fundamental rights safeguard

The Court agreed with the AG, but only in part. On the one hand, the Court rejected the structural arguments advanced by the AG as well as by the Commission and a number of Member States. The rule of law or the requirement of effective judicial protection cannot expand the Court’s jurisdiction, as the Court, like all other EU institutions, is bound by the principle of conferral.

On the other hand, the Court did embrace the AG’s suggestion of an EU political question doctrine, concluding that “political or strategic” decisions made within the framework of the CFSP fall outside the CJEU’s jurisdiction. The lack of legal reasoning that the Court provides on this key point is striking, and problematic, as I have argued elsewhere.

Finally, the Court disagreed with the AG’s view that fundamental rights issues are never outside of the Court’s jurisdiction. Instead, it assessed whether Eulex Kosovo’s actions, claimed by KS and KD to cause injury, were directly linked to “political or strategic” choices. Fortunately for KS and KD, not all respective actions in this case were seen as political or strategic.

In search of “political or strategic” decisions

The Court chose a different approach from the one advised by the AG. The latter suggested the Court’s jurisdiction in any fundamental rights cases involving the CFSP. The Court’s theory is, at least potentially, much more restrictive. The time will show, however, how narrowly the Court will interpret the concept of “strategic or political” choices.

This will undoubtedly lead to further case law, requiring the Court to grapple with a question that has no obvious legal answer. It seems that whether an issue is considered “political or strategic” often lies in the eyes of the beholder. In the US, where the political question doctrine originates, it remains notoriously difficult for federal courts to apply it. The same is likely true for the CJEU.

Taking conferral seriously?

Not only will it be difficult for the CJEU to distinguish “political or strategic” choices from other measures, but the fact that the Court takes it upon itself to do so can also be at odds with the principle of conferral. As mentioned, the Court emphasized the significance of the conferral principle. This stands in marked contrast to earlier case law, such as Bank Refah Kargaran or Rosneft, in which the conferral principle was not mentioned at all.

Yet, by concept as “strategic or political” decisions, the Court fails to articulate clear and easily applicable limits to its own jurisdiction. This is itself at odds with the conferral principle and, arguably with the requirement of legal certainty. In so doing, the Court fails to take seriously the text of Articles 24 TEU and 275 TFEU, as mentioned earlier. Moreover, it leaves individuals in the dark on the crucial question of whether they can turn to the General Court in search of relief, or whether they should take their chances before a Member State court.

In praise of the General Court

Ultimately, I find the approach taken by the General Court the most viable. It is more strictly following the narrow interpretation of the text of the Treaties and thus categorically rejects the Court’s jurisdiction. This may have been bad news for the applicants, but at least it conveyed a clear message – the applicants should search for remedies in their national jurisdictions.

This is not to say that the limits on the CJEU’s jurisdiction are desirable. They are not. In a Union governed by the rule of law, entire policy areas should not be immunized against judicial review. However, resolving this issue requires Treaty reform, and thus deliberation among democratically elected governments, ideally agreeing that the CJEU should have comprehensive jurisdiction within the CFSP.

In the meantime, as other Advocates-General have reminded the Court, the EU judiciary includes both the CJEU and the courts of the Member States. Hence, as per Article 19(1) TEU, “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”