Luigi Lonardo, PhD student, King’s College London

Article 24(1) of the Treaty on the European Union states that the Common Foreign and Security Policy (CFSP) operates under distinct rules and procedures, explicitly stating that the Court of Justice of the European Union (CJEU) holds no jurisdiction over these provisions.

Legal experts are debating whether “the CJEU shall not have jurisdiction” implies a degree of jurisdiction. AG Wahl articulated this question: Does the exclusion of CJEU jurisdiction encompass all CFSP actions or only specific categories? (Case C‑455/14 P H v Council and Commission AG Opinion, Par 52).

This question carries significant constitutional weight, as its answer clarifies which EU foreign policy actions are exempt from judicial review by the Court, an issue yet to be adjudicated. While Article 19 of the Treaty on European Union (TEU) grants the Court jurisdiction to ensure adherence to the law in the Treaties’ interpretation and application, Article 24 carves out an exception. The scope of this exception remains undefined. In Case C- 658/11, the Court stated that this exception, being a departure from a general rule, “must be interpreted narrowly” (par 70). In Opinion 2/13 (regarding ECHR accession), the Court simply concluded that “as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice” (par 252), without further elaboration. Adding complexity, Article 24 TEU also includes an exception to this exception: the Court retains jurisdiction to oversee compliance with Article 40 TEU (distinguishing foreign policy from other EU measures) and review the legality of sanctions.

So, when does the CJEU possess jurisdiction? Two cases offer potential insights: H v Council and Commission, decided in July, and the pending Rosneft case.

H v Council

In H, an Italian magistrate sought the annulment of a decision made by the Head of an EU Mission established under CFSP at the General Court (Order in H v Council and Others, T‑271/10). The contested decision involved transferring H, a seconded Legal Officer of the EU Police Mission in Sarajevo, to a Prosecutor role in a different regional office within the same country. The General Court (GC) determined it lacked jurisdiction and dismissed the action. The GC reasoned that the exclusion of jurisdiction under Art 24(1) TEU has only two exceptions: monitoring compliance with Article 40 TEU (separating CFSP and non-CFSP external actions) and reviewing the legality of sanctions under Article 275 TFEU’s second paragraph.

The General Court believed the appellant’s situation did not qualify for either exception to the rule that EU Courts lack jurisdiction in CFSP matters. The contested decisions were deemed to have been made by the Head of Mission using powers delegated by Italian authorities. Consequently, it concluded that Italian courts should review the decisions’ legality and hear the damages claim. It added that if the competent Italian court found the decisions unlawful, it could make that determination and act accordingly, even regarding the decisions’ existence.

The applicant appealed to the European Court of Justice (ECJ). Applicant, Council, and Commission sought to overturn the GC’s order for different reasons, briefly outlined below, concerning the extent of the Court’s jurisdiction in CFSP matters.

The Applicant’s Position

The Applicant argued that the Court’s jurisdictional exclusion doesn’t cover administrative measures (like the decision in this case) but only actions outlined in Article 25 TEU: general guidelines, decisions on EU actions and positions (and their implementation), and acts of systemic Member State cooperation.

The Council’s Position

Paragraph 32 of the Advocate General’s opinion states that the Council sees two legal errors in the order under appeal. First, the Head of Mission, in deciding to relocate H, exercised powers delegated not by the Member State of origin but by the Council, the competent EU institution. Second, the national court lacks the power to annul the challenged act. However, the Council believes these errors don’t invalidate the General Court’s conclusion.

The Commission’s Position

The Commission argued that the Court’s jurisdictional exclusion applies solely to acts expressing “sovereign foreign policy.” This allows the Court to review the legality of (a) implementing acts or (b) acts within the CFSP framework when the alleged invalidity arises from a potential infringement of non-CFSP provisions. However, the Commission believed the contested decision wasn’t an implementing act.

The Court’s Findings

The Court, unsurprisingly, reversed the GC’s order, stating that a decision being a CFSP measure doesn’t automatically exclude the EU judicature’s jurisdiction (par 43).

The Court interpreted the jurisdictional exclusion narrowly. It systematically reviewed the general provisions of EU law (Article 2) and CFSP (Articles 21 and 23 TEU) to highlight that the EU is founded on values like equality and the rule of law ( Segi and Others v Council; Opinion 2/13). It asserted that “The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (Schrems)” (par 41).

In this case, the Court considered the Head of Mission’s decision subject to legal scrutiny because Article 270 TFEU grants the EU judicature jurisdiction over actions brought by EU staff seconded to the EUPM. These staff members remain bound by Staff Regulations during secondment and thus fall under the EU judicature’s jurisdiction according to Article 91 of those regulations (H’s secondment by a Member State was deemed analogous). The Head of Mission’s decision was considered “staff management.”

Therefore, the Court concluded, “the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is laid down in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission” (par 55).

The ECJ concluded that “[the] jurisdiction stems, respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union” (par 58). The case was referred back to the GC.

Rosneft

A similar question arises in Rosneft, the first request for a preliminary ruling on a CFSP act, currently before the Court. The case involves a Russian gas company, Rosneft, contesting sectoral measures (not targeted sanctions) that prevent EU individuals and entities from engaging in contracts with certain Russian state-owned companies and banks or providing them access to financial markets.

A central issue is admissibility, discussed at the hearing and in paragraphs 32-76 of AG Wathelet’s opinion.

The AG believes the measure is reviewable if it fulfills two cumulative conditions: (a) it relates to Articles 23 to 46 TEU (foreign policy rules) and/or EU acts based on these provisions; and (b) its content falls within the scope of CFSP implementation.

Wathelet derives the first condition from the understanding that the last sentence of Article 24(1) TEU’s second subparagraph excludes the Court’s jurisdiction only “with respect to these provisions,” referencing Chapter 2 of Title V of the EU Treaty, titled “Specific provisions on the common foreign and security policy,” which includes Article 24.

The AG opines that the Court should have jurisdiction to hear annulment actions and preliminary rulings on decisions imposing restrictive measures on individuals or entities adopted by the Council under Chapter 2 of Title V of the EU Treaty, but not on regulations implementing them. For the AG, the Court has jurisdiction, but the challenged decision, being directly addressed to Rosneft, isn’t invalid. The extensive opinion explains this reasoning, but this analysis focuses on the jurisdiction question.

Comment

Judicial Protection and Uniform Interpretation of EU Law

The ECJ’s decision in H is positive, preventing the potential weakening of fundamental rights protection that could arise if national courts monitored CFSP decisions without a centralized mechanism. If national courts had jurisdiction where the CJEU didn’t, it could lead to divergent and potentially conflicting interpretations of the same CFSP measure.

Uniform interpretation of EU law would be further ensured if the Court affirmed its jurisdiction over preliminary rulings (as AG Walthelet suggests in paras 61-62 of his opinion in Rosneft). The significance of judicial dialogue between the CJEU and national courts is well-established in case law (Opinion 1/09; CILFIT; Adeneler; Kamberaj). Furthermore, the absence of CJEU jurisdiction over preliminary rulings would contradict Article 267’s third paragraph and the CILFIT doctrine.

The prohibition of judicial dialogue and cooperation between national and EU courts in CFSP matters might violate the right to an effective remedy enshrined in Article 47 of the EU Charter of Fundamental Rights. Article 47 establishes what has been described as a “composite, coherent, and autonomous” standard of EU judicial protection. According to Article 19(1) TEU, national courts must provide sufficient remedies to ensure effective legal protection in areas covered by Union law, as defined by the CJEU (which holds final interpretive authority over the Treaties). Excluding the Court’s jurisdiction entirely from a domain like CFSP would significantly hinder the system of judicial protection (see, similarly,  Gestoras Pro Amnistía and Others v Council par 53; Segi and Others v Council par 53).

While national courts have discretion in requesting preliminary rulings and framing questions, entirely eliminating the possibility for an applicant (or national court) to make such a request might contradict Article 47 of the Charter, especially if one accepts the Council’s argument in its H appeal that national courts can’t annul CFSP decisions. This would create a legal void in annulling the provision (unlike C-583-11 Inuit, where alternative legal remedies allowed for a restrictive rule on judicial remedies).

Political Questions Doctrine

The optimal approach seems to be that only inherently political CFSP acts are exempt from the Court’s substantial judicial review, although the Court should retain oversight over compliance with the Treaty’s procedural rules and fundamental human rights. This mirrors the Commission’s position in H, arguing that only sovereign acts of foreign policy are beyond the Court’s scrutiny, without addressing formal control.

In H, the Court seemingly concluded that any other reason for its jurisdiction supersedes Article 24’s exclusion. This interpretation of the Court’s powers is overly broad.

In Manufacturing Support & Procurement Kala Naft v Council, the CJEU ruled it lacks jurisdiction over CFSP provisions that aren’t restrictive measures against individuals or entities under Article 275 TFEU, a result potentially echoed in Rosneft (par 85 AG opinion).

For these reasons, the Court should accept the request for a preliminary ruling in Rosneft but clearly distinguish between: (a) purely political and diplomatically sensitive acts of sovereign foreign policy; and (b) all other CFSP decisions, implementing acts, and general provisions.

Regarding (a), which should be assessed case-by-case based on their content, the Court should acknowledge its lack of judicial review power. These acts, determined through a “substance over form” rule (see Les Verts par 27; AG Wathelet seems to adopt this position in paras 49-50 of his opinion in Rosneft; see also Gestoras Pro Amnistía and Others v Council par 54; Elitaliana v Eulex Kosovo par 48-49), will have too indirect an effect on individuals (based on current case law on Article 263(4) TFEU).

These acts’ discretionary nature warrants deference from courts to the political actors who made them. This “political question doctrine” is present in many jurisdictions (see par 52 AG Opinion in Rosneft) as deference to “actes de gouvernement.” The Commission proposed this in its Rosneft submissions. The “political question doctrine” reflects courts’ reluctance to review inherently political issues best left to the decision-maker’s discretion and ultimately non-justiciable.

In the landmark case Baker v Carr, the US Supreme Court determined that a question is inherently political if it exhibits characteristics like “a textually demonstrable constitutional commitment of the issue to a coordinate political department” or “an unusual need for unquestioning adherence to a political decision already made.” While some foreign policy decisions clearly require adherence (e.g., the ECJ couldn’t easily rule that the EU cannot prohibit commerce with certain Russian companies involved in Crimea), the retention of CFSP provisions in the TEU, the preference for intergovernmental institutions in this domain, the limited role of the European Parliament in decision-making, and the exclusion of the Court’s jurisdiction all point towards a strong constitutional preference for CFSP matters to be resolved solely by political bodies. The ECJ could adopt this doctrine in its Rosneft decision.

Conversely, for category (b), including the “staff management” decision in H, the Court should exercise its power of judicial review.

Barnard & Peers: chapter 24

Art credit: The Economist, Peter Schrank