Escaping Jurisdictional Blackholes

Foreign policy is a field where national governments enjoy significant discretion – yet in a constitutional system where checks and balances are in place, such discretion is not unfettered, it is subjected to some minimal guarantees. This is an essential part of our post-war constitutional settlement and regardless of the shifting consensus as to where the boundaries lie between legitimate executive action and the rights of individuals, the only way we can guarantee checks and balances is for courts to review executive and even legislative action against the agreed rules of the game, be those constitutional, EU, or international norms. Yet, when the EU acts in the field of Common Foreign and Security Policy, matters are not so straight forward, since the jurisdiction of the European Court of Justice is excluded with the exception of restrictive measures against individuals and companies (i.e. sanctions). But there is a lot more going on with the EU foreign policy than just sanctions – take for instance the increasing connection between migration and securitization of borders, which has led the EU to anchor some operations in the Common Foreign and Security Policy rather than in Migration Policy, where there is full jurisdiction of the Court. This means that individuals might find that their fundamental rights are violated, and yet have no remedies available. With low chances of a Treaty revision to remedy the problem, the question is what can be done about this.

In a recent opinion, AG Ćapeta has suggested that the solution rests with asserting the possibility of establishing the non-contractual liability of the EU for breach of fundamental rights in CFSP cases, regardless of whether the measure imposes restrictions. Whereas this is a very welcomed development, one that I have also advocated, it is not in it itself sufficient to guarantee effective judicial protection; rather, it is argued, the Council also has a positive duty stemming from the Charter to include a jurisdictional clause in all CFSP measures indicating the national court which has jurisdiction in those cases. A failure to include such a clause would be a violation of Article 47 Charter and also give rise to the non-contractual liability of the EU. In this way, national European Union courts would be able to assert jurisdiction and assess the compatibility of CFSP acts with the Charter of Fundamental Rights. Furthermore, national courts would be able to make a preliminary reference on the scope of those rights; the involvement of national European Union courts would also help in removing the objection to accession to the ECHR, and, if there was a clear ex ante jurisdictional choice, the issue of exhaustion for the purposes of the ECHR would be straightforward.

The Opinion of AG Ćapeta

The Court of Justice’s jurisdiction in relation to the Common Foreign and Security Policy is limited to assessing the compliance with Article 40 TEU, which is to say to police the boundaries between the CFSP and other EU competences; and to review the legality of restrictive measures adopted against natural or legal persons. The exemption of the Court’s jurisdiction has given rise to two, related, problems: first of all, as the action of the EU in the field of CFSP expanded, so did the potential for such action to affect individuals and their fundamental rights, even lacking “restrictive measures”. Secondly, the lack of jurisdiction of the Court in the CFSP has become a stumbling block to EU accession to the ECHR, given the objection of the Court of Justice to the fact that the European Court of Human Rights would have jurisdiction over violation of the Convention in relation to CFSP measures, even when the Court of Justice has none.

With this said, in recent years, the Court has expanded its jurisdiction in the field of CFSP in three group of cases: employment in EU missions (e.g. H v Council, Sat Cen); preliminary rulings and actions for damages in relation to restrictive measures (Rosneft and Bank Rafah); and cases in which there is an issue of interpretation of a provision over which the Court has jurisdiction, even though the case also relates to the CFSP (e.g. Mauritius,¹⁾ Elitaliana). Yet, only the first group constitutes a partial departure from the limitation of the Court’s jurisdiction, the latter two groups being constitutionally coherent with the Treaties.

Non-contractual Liability in the KS and KD Case

However, at present a case is pending, KS and KD, where the claimants brought an action for the non-contractual liability of the EU in relation to the failure of Eulex Kosovo, a civilian mission established through a CFSP decision in the aftermath of the Kosovo war, to properly investigate alleged murders and disappearances as per its aims, hence allegedly violating the claimants’ fundamental rights. The case raised new issues since it does not pertain to one of the three above mentioned categories and it finds itself at odds with the specification in Bank Rafah that, in CFSP, actions for the non-contractual liability of the EU are only admissible in relation to restrictive measures over which the Court has jurisdiction. The reason for this caveat is that for non-contractual liability to arise, the act must be unlawful – and within the CFSP the Court has jurisdiction only over restrictive measures. Consistently with Bank Rafah, the General Court declined jurisdiction.

AG Ćapeta, by contrast, ventured onto a more ambitious interpretative path of the provisions at stake, explicitly linking the issue of jurisdiction of the Court to the stalemate in relation to Accession to the ECHR. After recalling the existing case law, the AG sought to give a constitutional reading of the limitation to the jurisdiction of the Court in the field of CFSP. Consistently with what argued by many scholars, and by the Court itself, she stressed the significance of the inclusion of the CFSP in the EU constitutional framework, so that the principles underpinning the EU constitutional system as a whole, and more specifically those enunciated in Article 2 TEU, form part of the constitutional identity of the EU which applies also to the CFSP. The Kadi I and Ledra Advertising rulings, also support that view, given that they established the principle according to which the EU institutions are always bound by fundamental rights, even when they are implementing mandatory international law; or when they are altogether acting outside the scope of EU law.

The key issue for the case in the words of the AG, is the choice between adhering to the Treaties, or establishing the jurisdiction necessary to ensure the protection of fundamental rights, without however modifying the Treaties. Here, to ensure these two conflicting aims Ms Ćapeta proposes a novel solution – whereas the Court cannot interpret CFSP provisions or acts based on those provisions, it is open to the Court to hear actions for damages for breach of fundamental rights. Since in order to assess compatibility with fundamental rights of a given provision, that provision would have to be “interpreted”, the EU Courts must “defer to the explanation of the meaning of a certain policy choice offered by its author, and assess whether the choice thus understood exceeds the limit allowed by the Charter”. And if more than one interpretation is possible, but all are compatible with fundamental rights, the Court cannot make a choice and the uniformity in CFSP law cannot be ensured. Hence, the solution suggested in the case would achieve two policy objectives – the protection of fundamental rights, a constitutional imperative; and accession to the ECHR, a constitutional obligation ex Article 6(2) TEU.

The solution proposed by AG Ćapeta would ensure at least some judicial oversight of CFSP measures liable to have an effect on individual rights, and it also would go someway in solving the impasse in relation to Accession to the ECHR. It should be noted, however, that the supervisory role of the Court would be limited to action for damages, so that the illegality of the measure would be declared only indirectly and not erga omnes. Nonetheless, I would argue that the duty of loyal co-operation between the institutions as well as the duty for all the EU institutions and bodies to respect the Charter, imposes on the Council a duty to rectify the measure found to be inconsistent with the Charter, even when this finding is indirect and the result of a compensatory claim.

The High Bar for Actions for Damages

A more serious problem, however, is that in order to succeed, actions for damages must fulfil stringent conditions and that the bar of what is to be qualified as “unlawful” action for the purposes of Article 340 TFEU, is higher that the mere illegality of a measure. Furthermore, the link of causation might also be very difficult to establish. It is thus to be questioned whether limiting the available remedies to a compensatory action might be qualified as an “effective remedy” for the purposes of Article 47 Charter. For these reasons, as I argued elsewhere, until the Treaties are modified to confer full jurisdiction to the Court of Justice, national courts should assert their role as European Union courts, and protect Charter rights when the Court of Justice has no jurisdiction, harnessing the full potential of procedural tools at their disposal, including declaring the incompatibility with the Charter of action undertaken in the field (or based on the authority) of CFSP; engaging the combination of Charter and national constitutional provisions, and where possible engaging the domestic constitutional court as well as the Court of Justice through preliminary rulings in relation to the interpretation of the Charter.

The Role of National Courts

After all, in Gestoras Pro Amnistía and Segi, cases about listing terrorist organizations in a Common Position, the Court, in refusing jurisdiction, pointed at the active role that the national courts must play in guaranteeing the right to effective judicial protection in the EU legal order. Thus, Member States and national courts and tribunals, have a duty where necessary to interpret their national procedural rules in a way that allows a challenge to the “lawfulness of any decision or other national measure relating to the drawing up of an act of the European Union or to its application to them and to seek compensation for any loss suffered.”

True, it might not always be so straightforward to determine which national court would have jurisdiction, especially when, as it was the case in KD and KS, the alleged breach of fundamental rights has taken place outside the territory of the EU. Indeed, it is also this difficulty that led AG Ćapeta to exclude the effectiveness of the role of national courts. However, in my opinion, this problem could be addressed by recognising, as the Court did in Chrysostomides, that the EU institutions have an active duty to ensure that their action does not lead to an infringement of the Charter. This includes an active duty to ensure that individuals have access to effective remedies, i.e. a court which has clear and pre-established jurisdiction. In this respect, inspiration should be taken from the Decision establishing operation Irini²⁾ which, in relation to GDPR issues, contains an express allocation of jurisdiction to the courts of the State of the flag.

It is submitted then that any CFSP decision which does not entail restrictive measures should contain such a jurisdictional clause, not only as a matter of best regulatory practice, but as a matter of constitutional duty, since both the Council, like all the EU institutions, and the High Representative, like all EU bodies, have an active duty to ensure that the Charter is complied with. And this duty constrains and direct political discretion when legislating. Since Article 47 Charter can only be effective if there is a clear path to access to a court, failure to include such a jurisdictional provision might also engage the non-contractual liability of the Council / High Representative for failure to respect the Charter, albeit again the issue of causation might make such a possibility more theoretical than real.

The Solution

The EU is based on the rule of law and should not, and cannot, tolerate that its instruments have the effect of creating a jurisdictional blackhole, leaving individuals without recourse to judicial protection. For this reason, the Council and High Representative for foreign Affairs must ensure that Common Foreign and Security Policy do not deprive individuals of their rights, and must, as a matter of EU constitutional law, include in all instruments a jurisdictional clause indicating the national court responsible to ensure effective judicial protection. In this way, the combination of compensatory claims together with the active engagement of national courts, as European Union courts tasked with the protection of Charter rights, would help in solving the problem created by the exclusion of an entire field of action from the jurisdiction of the Court. Furthermore, and as argued by AG Kokott in Opinion 2/13, entrusting national court with the protection of fundamental rights in the field of CFSP would go a long way in clearing up the path to accession of the EU to the ECHR.