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‘Normalising’ the Common Foreign and Security Policy: Human Rights, Political Questions, and the Court of Justice’s Jurisdiction

ECJ (Grand Chamber) 10 September 2024, Joined Cases C-29/22 P & C-44/22 P, KS and KD

Published online by Cambridge University Press:  18 December 2025

Thomas Kleinlein Open the ORCID record for Thomas Kleinlein [Opens in a new window]
Thomas Kleinlein*
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Kiel University, Germany, email: tkleinlein@wsi.uni-kiel.de
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Case Note
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European Constitutional Law Review , First View , pp. 1 - 20
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Introduction

The boundaries of the European Court of Justice’s jurisdiction in common foreign and security matters have remained unresolved for over a decade. The Grand Chamber judgment in the case of KS and KD now establishes the Court’s jurisdiction over acts or omissions ‘not directly related’ to ‘political or strategic choices’, thereby extending it to certain aspects of an action for damages allegedly caused by acts and omissions within the remit of an EU civilian mission. This case note situates KS and KD in relation to previous case law and the broader context of EU accession to the ECHR and presents and critically analyses the main reasons of the Court.

The case was brought before the Court of Justice on appeal. The appellants sought to set aside the order of the General Court that it was manifestly lacking jurisdiction to hear and determine their action for damages under Article 268 in conjunction with Article 340(2) TFEU.Footnote 1 By that action, KS and KD claimed compensation for the damage allegedly suffered as a result of various acts and omissions of the Council of the European Union, the European Commission and the European External Action Service in the implementation of Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (Eulex Kosovo).Footnote 2 Eulex Kosovo was established in 2008 as a Common Security and Defence Policy (CSDP) civilian mission to support rule of law institutions in Kosovo. Its purpose was, inter alia, to investigate, prosecute and adjudicate serious crimes committed in the course of the Kosovo conflict and to enforce the relevant judgments.

KS and KD are surviving relatives of victims of war crimes. The acts and omissions in question related to investigations carried out during the Eulex Kosovo mission into the torture, disappearance and killing of members of their family in Pristina, Kosovo, in 1999. Both KS and KD filed complaints to the mission’s independent Human Rights Review Panel. While it has no enforcement powers, the Panel can make non-binding recommendations for remedial action by the Head of Mission. Before the Panel, KS and KD alleged that Eulex Kosovo had violated several provisions of the ECHR and the Charter of Fundamental Rights by failing to conduct an effective investigation into these war crimes. In decisions of 2015 and 2016 respectively, the Panel found violations of the applicants’ rights under Articles 2, 3, 8 and 13 of the ECHR and made recommendations for remedial action to the Head of Mission. In response to a follow-up complaint, the Panel found that the Head of Mission had not implemented the recommendations and had closed the cases prematurely.

As the recommendations had not been properly followed up and no remedial action had been taken, KS brought an action against the Council, the Commission and the European External Action Service before the General Court for the ‘annulment or amendment’ of Joint Action 2008/124/CFSP and the subsequent measures amending it in 2017. The action raised an infringement of Article 47 of the Charter and of Article 13 of the ECHR, and sought to establish ‘non-contractual liability’ based on the infringement of Articles 2, 3, 6, 13 and 14 of the ECHR.Footnote 3 In December 2017, the General Court dismissed the case for manifest lack of jurisdiction.Footnote 4 No appeal was lodged against this order.

In 2018, KS and KD, along with other individuals, brought an action before the High Court of Justice (England & Wales), which held that it had no jurisdiction to hear the claim. This was mainly due to the lacking incorporation of the provisions of the Common Foreign and Security Policy (CFSP) into UK domestic law.Footnote 5 KS and KD then turned (back) to the European Court of Justice. In their action in 2020 before the General Court, they requested compensation for damages suffered as a result of the breach of their fundamental rights, attributable to the Council, the Commission and the European External Action Service, jointly or severally. They alleged a violation of Articles 2 and 3 of the ECHR and corresponding Articles 2 and 4 of the Charter for insufficient investigation of war crimes, a violation of Articles 6(1) and 13 of the ECHR and of Article 47 of the Charter for the lack of provisions for legal aid in proceedings before the Review Panel, the failure to take remedial action and the misuse or abuse of executive power.Footnote 6

Treaty provisions and groups of case law on jurisdiction in CFSP matters

The jurisdiction of the Court of Justice of the European Union in CFSP matters is, as a general rule, excluded by Article 24(1) sub. 2 TEU and Article 275(1) TFEU. According to the last sentence of Article 24(1) sub. 2 TEU, the Court does not have jurisdiction with respect to provisions relating to the CFSP. Article 275(1) TFEU states that the Court shall not have jurisdiction with respect to the provisions relating to the CFSP nor with respect to acts based on those provisions. The main reason for this ‘carve-out’Footnote 7 was the fear of judicial entanglement on the part of (some) member states. It was justified with the politico-diplomatic character of the CFSP legal acts, which seemingly have no direct impact on individuals.Footnote 8 A related argument builds on the (distorted) idea that the intergovernmental framework of the CFSP mirrors the dominance of national executives in foreign affairs.Footnote 9 The limitation of the EU Court’s jurisdiction can thus be understood as a kind of codified ‘political question doctrine’, which states that that certain ‘political’ issues should not be decided by a judge.Footnote 10 Notwithstanding the first sentence of Article 24(1) sub. 2 TEU, which states that the CFSP is subject to specific rules and procedures (including the rules on jurisdiction), this limitation obviously creates an exception to the integration of the CFSP into the EU legal order through the Lisbon Treaty. After Lisbon, the constitutional principles developed within the Community legal framework also apply to the CFSP. If there were no explicit limitation of jurisdiction, the axiom introduced in Les Verts that the Treaties set up a ‘complete system of legal remedies and procedures’Footnote 11 would also apply to the CFSP.Footnote 12

The treaties also expressly provide for (counter-)exceptions to the Court’s limitation of jurisdiction, as a ‘clawback’.Footnote 13 First, according to the last sentence of Article 24(1) TEU, the Court has jurisdiction to monitor compliance with Article 40 TEU, i.e. to ensure mutual non-interference between the implementation of the CFSP and the implementation of other Union policies. Second, Article 24(1) TEU grants jurisdiction to review the legality of certain decisions as provided for by Article 275(2) TEU. Article 275(2) TFEU establishes the jurisdiction of the Court to rule on proceedings, brought in accordance with the conditions laid down in Article 263(4) TFEU, reviewing the legality of decisions providing for ‘restrictive measures against natural or legal persons’ adopted by the Council in the framework of the CFSP, i.e. sanctions.

The Court of Justice categorises the final sentence of Article 24(1) sub. 2 TEU and Article 275(1) TFEU as introducing a derogation from the general jurisdiction which Article 19 TEU confers on it. As exceptions, these provisions must be interpreted restrictively.Footnote 14 To explain this understanding, the Court has also referred to the fundamental values of the EU legal order, essentially the rule of law, the principle of effective judicial protection and the protection of human rights. By virtue of Articles 21 and 23 TEU, these principles also apply to the CFSP.Footnote 15

Through incremental steps, the Court has sought to extend its jurisdiction in CFSP matters beyond the ‘prima facie limits’Footnote 16 under Article 24(1) TEU and Article 275 TFEU.Footnote 17 The relevant cases either concern procedures pertaining to restrictive measures or cases of a cross-policy nature.Footnote 18 The Court has established its jurisdiction over ‘restrictive measures against natural or legal persons’ for proceedings other than direct actions for annulment based on Article 263(4) TFEU (the only type of proceedings expressly referred to in Article 275 TFEU), namely preliminary reference procedures to review the legality of individual restrictive measures (in the Rosneft case)Footnote 19 and disputes relating to compensation for damage allegedly suffered as a result of restrictive measures (in the Bank Refah case).Footnote 20

Moreover, it is established case law that, where an EU act relates to the CFSP, or is adopted in a ‘CFSP context’, but is also based on a (procedural or substantive) legal basis beyond the CFSP, the EU Court has jurisdiction to review compliance with the relevant provisions beyond the CFSP. As for the adoption of an international agreement under the CFSP, jurisdiction is not excluded for the interpretation and application of Article 218 TFEU, a procedural provision for the negotiation and conclusion of treaties, which, as such, does not fall within the CFSP.Footnote 21 The Elitaliana, H and SatCen judgments provide examples of ‘dual-content decisions’Footnote 22 concerning different aspects of EU missions, namely public procurementFootnote 23 and staff management.Footnote 24 These judgments have been criticised for their methodological approach, since the Treaty provisions do not distinguish between politico-strategic choices and theatre-level decisions but codify the former (CFSP decisions) while remaining silent on the latter (derivative acts).Footnote 25 Critics have also warned of creeping supranationalism and legal uncertainty.Footnote 26

In (comparative) foreign relations law, the term ‘normalisation’ is commonly used to describe an approach in which courts increasingly treat foreign relations issues as if they were ordinary domestic policy issues, subject to judicial review and governed by the usual principles of the separation of powers.Footnote 27 According to this terminology, the judgments in question have to some extent ‘normalised’ the CFSP, thus advancing the ‘constitutional normalisation’ brought about by the Lisbon Treaty.Footnote 28 Falling into none of the above-mentioned categories, the KS and KD case was the first opportunity for the Court to decide whether it could hear claims for damages not related to individual restrictive measures but to alleged human rights violations committed by a CSDP mission, and thus issues which, in substance, firmly relate to the exercise of the CFSP.Footnote 29

Accession to the ECHR as the ‘broader context’

It is clear, not least from the Advocate General’s Opinion and member states’ interventions in KS and KD, that the accession of the EU to the ECHR is part of the ‘broader context’ of the case.Footnote 30 In its Opinion 2/13, the Court stated that it ‘has not yet had the opportunity to define the extent to which its jurisdiction is limited in CFSP matters’.Footnote 31 The Court found that the draft Accession Treaty, as proposed at the time, was incompatible with several features of the EU legal order, the autonomy of which the Court is determined to protect and preserve. In particular, the Court argued that certain acts, actions or omissions performed in the context of the CFSP fell outside the ambit of judicial review by the EU Court. By contrast, the European Court of Human Rights could rule on the compatibility of certain CFSP acts or omissions. This (de facto) exclusive jurisdiction of an international court outside the institutional and judicial framework of the EU to carry out a judicial review of acts, actions or omissions on the part of the EU was incompatible with the Treaties.Footnote 32

While all of the above cases were decided after Opinion 2/13, contributing to a narrowing of the jurisdictional gap in CFSP matters, the exact limits of the Court’s jurisdiction in this area have remained unclear.Footnote 33 Some authors argue that the EU Court has jurisdiction over claims for damages in CFSP matters based on alleged violations of fundamental rights.Footnote 34 However, others take the opposite view.Footnote 35 A revised Agreement on the Accession of the European Union to the ECHR has been negotiated.Footnote 36 As Advocate General Tamara Ćapeta pointed out,Footnote 37 it was agreed in the so-called ’46+1’ accession negotiationsFootnote 38 that the scope of the EU Court’s jurisdiction in the CFSP – the only remaining issue – would be resolved ‘internally’ by the European Union.Footnote 39

Order of the General Court and Opinion of the Advocate General

The General Court’s order of 10 November 2021 in KS and KD did not yet provide that ‘internal’ solution. Given the outlier status of this case compared to the existing groups of cases, it is not surprising that the court dismissed the action on the grounds of manifest lack of jurisdiction.Footnote 40 In particular, the General Court distinguished the Elitaliana, H and Bank Refah precedents. According to the General Court, none of the explicit or contingent exceptions to the exclusion of jurisdiction in CFSP matters applied.Footnote 41 In addition, the General Court recalled established case law and, in particular, the Carvalho judgment. It follows from this that the provisions relating to the jurisdiction of the EU Court must be interpreted in the light of the fundamental right to effective judicial protection. However, such an interpretation must not lead to the conditions expressly laid down in the Treaties being set aside.Footnote 42 The order prompted an appeal to the Court of Justice by KS and KD (Case C-29/22 P) and by the European Commission (Case C-44/22 P) to clarify the extent of judicial protection available in CFSP matters and address whether such cases fall within the jurisdiction of the Court.

Advocate General 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 exclusion of jurisdiction in CFSP matters. According to the Advocate General, Article 24(1) TEU and Article 275 TFEU must be interpreted, in a teleological and systemic manner, as not limiting the jurisdiction of the Court of Justice to hear an action for damages brought by individuals based on an alleged violation of fundamental rights by any type of measure taken in the framework of the CFSP. She argued that this novel solution follows from the constitutional principles of the EU legal order, namely the rule of law, which includes the right to effective judicial protection, and the principle requiring respect for fundamental rights in all EU policies. The constitutional role of the Court of Justice deriving from those principles can only be limited in exceptional cases. Even a narrow interpretation of Article 24(1) TEU and Article 275(1) TFEU must not run counter to the purpose of the jurisdictional limitation embedded in the Treaties. If that purpose is to protect political choices in the CFSP from interference by the Court of Justice, this could not justify an interpretation that includes actions for damages caused by alleged breaches of fundamental rights in this jurisdictional limitation.Footnote 43 The Advocate General did not rule out the possibility that there may be certain strategic choices in which the Court of Justice can indeed not interfere, such as the decision on whether or not to deploy a mission in a certain part of the world. However, the Court of Justice must be able to review whether a mission is designed and implemented so that it does not disproportionately interfere with human rights. In this regard, the Advocate General proposes a variable degree of deference to the reasons given by the Council or other competent bodies.Footnote 44

Remarkably, for the Advocate General, it follows from the limitation of the Court’s jurisdiction that, even when ruling on the conformity of an act or omission with general principles of EU law and fundamental rights, the Court of Justice cannot review the conformity of these acts with the CFSP provisions of the Treaties. Nor can they interpret those primary CFSP rules or the CFSP acts adopted on their basis. This is certainly a distinction that is difficult to maintain in practice. Accordingly, the Advocate General acknowledges that the Court of Justice, when reviewing the lawfulness of CFSP acts in the light of fundamental rights, cannot entirely avoid interpreting CFSP rules, as this is a precondition for assessing their conformity with those rights. She therefore suggests that the Court of Justice 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’.Footnote 45

Judgment of the Grand Chamber

In its judgment, the Grand Chamber first considered the interpretation of Article 24(1) sub. 2 TEU, Article 275(1) TFEU and the respective case law.Footnote 46 It recalled that these provisions introduce a derogation from the rule of the general jurisdiction of the Court of Justice laid down in Article 19 TEU and must therefore be interpreted narrowlyFootnote 47 (para. 62). In the present case, it was common ground that the relevant acts and omissions did not concern the monitoring of compliance with Article 40 TEU or the review of individual restrictive measures (para. 64). The Court went on to point out that the inclusion of the CFSP in the EU constitutional framework means that the basic principles of the EU legal order also apply in the context of that policy. These include, in particular, respect for the rule of law and fundamental rights. These values are expressed in Article 2 TEU and, more concretely, in Article 19 TEU, which provide that both EU and member state authorities are subject to judicial review (para. 68).

Second, for the Court, the limitation of its jurisdiction under Article 24(1) sub. 2 TEU is compatible both with Article 47 of the Charter and with Articles 6 and 13 of the ECHR (para. 69 ff). As the Court has already held,Footnote 48 Article 47 of the Charter could not confer jurisdiction on the Court where the Treaties exclude it, nor was it intended to alter the system of judicial review laid down by the Treaties (para. 71). Jurisdiction of the Court could also not follow from Article 298(1) TFEU and Article 41 of the Charter (para. 95). In this context, the Court recalled that the principles of conferral and institutional balance also apply in the area of the CFSP (para. 77). The Court must ensure that the interpretation it gives to Article 47 of the Charter guarantees a level of protection that does not fall below the level of protection established in Article 6(1) and Article 13 of the ECHR, as interpreted by the European Court of Human Rights. However, Article 6(1) of the ECHR could be subject to legitimate restrictions (para. 77 ff).

Accordingly, neither the last sentence of Article 24(1) sub. 2 TEU and Article 275 TFEU, read in the light of the Charter, the ECHR, and Articles 2, 3(5), 6, 19, 21, 23 TEU, nor the plea alleging breach of fundamental rights in themselves could justify a finding that the Court had jurisdiction to hear the action brought by KS and KD (para. 81). Furthermore, the jurisdiction of the Court could not be inferred from an interpretation of Article 24(1) TEU and Article 275(2) TFEU in the light of the first sentence of Article 6(2) TEU on EU accession to the ECHR. Under the first sentence of Article 2 of Protocol (No. 8)Footnote 49 ‘the agreement [relating to that accession] shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions’. Accordingly, for the Court, Article 6(2) TEU could not be interpreted as having the effect of extending the jurisdiction of the Court of Justice over the CFSP (para. 82).

As regards the appellants’ claim that the judgment in Bank Refah Footnote 50 was misapplied,Footnote 51 the Court of Justice held that, unlike KS and KD, that judgment concerned individual restrictive measures, and it was the individual nature of those measures which, in accordance with the second paragraph of Article 275(2) TFEU, permits access to the Court of Justice (para. 86). Furthermore, neither the exclusive nature of the jurisdiction provided by Articles 268 and 340 TFEU nor the independent nature of an action to establish non-contractual liability of the EU could have the effect of extending the limits of the jurisdiction conferred on that institution by the Treaties. Rather, the last sentence of Article 24(1) sub. 2 TEU and Article 275 TFEU are leges speciales in relation to Articles 268 and 340 TFEU with regard to actions relating to the CFSP (para. 91). As for the meaning of the Carvalho judgment,Footnote 52 the Court held that an interpretation of the Treaty provisions on the EU Court’s jurisdiction in the light of the fundamental right to effective judicial protection cannot have the effect of setting aside the conditions expressly laid down in the TFEU (para. 93 ff).

However, it was ‘apparent’ for the Court from its Elitaliana, H and SatCen judgmentsFootnote 53 that jurisdiction may be based on the fact that the relevant acts and omissions were ‘not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the Union in the context of the CFSP, and in particular the CSDP’ (para. 116). The Court also considered this to be consistent with the wording, the ‘context’, the objective and the effectiveness of Article 24(1) sub. 2 TEU and Article 275(2) TFEU, without unduly prejudicing the right to an effective remedy (paras. 115 ff, 119). Conversely, jurisdiction is excluded in particular with regard to the ‘identification of the European Union’s strategic interests and the definition of both the actions to be taken and the positions to be adopted by the European Union as well as of the general guidelines of the CFSP, within the meaning of Articles 24 to 26, 28, 29, 37, 38, 42 and 43 TEU’ (para. 118).

Based on this general approach, the Court must carry out a specific analysis of whether the act or omission underlying the claim can be considered to be related to political or strategic decisions in order to determine its jurisdiction (para. 121). In KS and KD, two of the acts were ‘directly related’ to political or strategic decisions, namely the allocation of resources to the mission and the termination of its executive mandate. By contrast, the provision of sufficient staff was not directly related to political or strategic questions, but rather an ‘act of day-to-day management’. Moreover, the absence of provisions for legal aid in proceedings before the review panel, its lack of enforcement powers and the lack of remedies – aspects of procedure and administrative management – were not directly related to political or strategic choices. Finally, the lack of remedial action and legally sound review concern the failure to adopt individual measures relating to the particular situations of KS and KD and is also not directly related to political or strategic choices (paras. 126–136). The Grand Chamber therefore held that the General Court had indeed erred 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 (para. 167).

However, in its order of 25 September 2025, the General Court dismissed the action on the grounds of manifest inadmissibility, non-attributability of alleged omissions to the defendants and manifest lack of foundation in law.Footnote 54 The order is based on the Court’s rulingFootnote 55 that the Eulex Kosovo mission, since 15 June 2014, is responsible, in principle, for all the obligations linked to the implementation of its mandate, including those which arose before that date. As to the alleged absence of investigations into the disappearance of the applicants’ relatives due to a lack of appropriate staff, the General Court found that the respective failures come within the exclusive responsibility of the Eulex mission as part of its day-to-day management, and cannot be attributed to the Council, the Commission or the European External Action Service. Despite the absence of provisions for legal aid, enforcement powers of the review panel and a remedy, the availability of judicial remedies before the Court of Justice of the European Union ensures compliance with the right to an effective remedy. The General Court also rejected the applicants’ other arguments as either inadmissible or manifestly lacking any foundation in law, including those alleging that the Council had a power to issue instructions and that the Council and the European External Action Service had misused or abused executive power.

Accordingly, the applicants essentially lost in terms of attribution at the General Court what they had gained in the appeals procedure in terms of jurisdiction over acts ‘not directly related’ to ‘political or strategic choices’. In the view of the General Court, the applicants had to be regarded as having withdrawn their request for a preliminary ruling on whether the Eulex Kosovo mission should be added as a defendant.

A new approach to jurisdiction in Common Foreign and Security Matters

KS and KD is the first judgment affirming jurisdiction over actions for damages allegedly caused by EU civilian missions or military operations,Footnote 56 albeit with limitations. What the court presents here as ‘apparent’ is in fact a new approach, with far-reaching implications. With over 40 missions and operations across the globe launched since 2003 and 21 ongoing missions and operations under the Common Security and Defence Policy,Footnote 57 the scope of the Court of Justice’s jurisdiction in common foreign and security matters is an important question.Footnote 58 Given the expansion of EU external action, such as the supply of arms to Ukraine,Footnote 59 the question has gained even more significance.Footnote 60 Its practical relevance is also underlined by the increasing connection between migration and securitisation of borders, which has led the EU to anchor some operations in the CFSP rather than in migration policy, where the Court has full jurisdiction.Footnote 61

The Court delineated its jurisdiction by distinguishing between acts and omissions directly related to political and strategic choices, and other acts and omissions. Here, the Grand Chamber seems to adopt a distinction suggested by the Council and the European External Action Service,Footnote 62 rejecting the Advocate General’s proposal of a general exception for fundamental rights claims. Referring to the (alleged) effect of an act or omission on the fundamental rights of individuals as the decisive criterion would have meant a step towards legal certainty. This, in turn, would have been thwarted to a certain extent by the gradual deference also suggested by the Advocate General, the downside of which lies in its potentially negative effect on legal certainty and the predictability of judgments. In any case, the Advocate General’s approach – in contrast to that of the Grand Chamber – would definitely have closed the jurisdictional gap that has proven to be an obstacle to ECHR accession.

The Commission suggested a different approach in Opinion 2/13: distinguishing between CFSP acts with binding legal effects and those without. In so far as the former are capable of violating fundamental rights, they qualify as ‘restrictive measures against natural or legal persons’ within the meaning of Article 275(2) TFEU and are subject to the Court of Justice’s jurisdiction. Additionally, the Commission argued that acts without binding legal effects could still be the subject of an action for damages under Article 340 TFEU, since the first paragraph of Article 275(1) TFEU does not exclude such an action, in the Commission’s view.Footnote 63 However, this approach leads to different interpretations of the term ‘restrictive measures’ in Articles 275(2) and 215 TFEU, which is undesirable from the perspective of coherence and certainty.Footnote 64

The different approaches to delineation are combined with different modes of reasoning. First, one can focus on the single term individual ‘restrictive measure’ and interpret it extensively, essentially considering any effect on individual rights as such a measure. Second, Advocate General Ćapeta upheld the principle established by the Court in Les Verts, namely that the Treaties establish a ‘complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions’.Footnote 65 The Grand Chamber took a third approach, balancing several constitutional principles.Footnote 66 While the Grand Chamber generally agreed with the Advocate General on the importance of adhering to the constitutional principles, it rejected the argument that they are necessarily in conflict with the exclusion of jurisdiction related to the CFSP. In addition to the right to an effective remedy and judicial review in accordance with the rule of law, the Grand Chamber stressed the principles of conferral and institutional balance, which allow the EU institutions to act only within the competences conferred upon them by the Treaties.Footnote 67 This emphasis stands in contrast to earlier case law, in which these principles were not mentioned.Footnote 68 Ironically, by extending its own jurisdiction – thereby going beyond the wording of the Treaties, despite claims to the contrary – the Court also stretched the principle of conferral.Footnote 69

The distinction between ‘acts and omissions directly related to strategic and political choices’ and other measures of the CFSP makes sense if one assumes that the authors of the Treaties were unaware that CFSP measures are not always highly political.Footnote 70 Otherwise, one would have to assume that the authors of the Treaties themselves struck the balance with the ‘specific rules and procedures’ (Article 24(1) sub. 2 TEU) regarding the Court’s jurisdiction. The Court’s legal reasoning on this key point is striking in its swiftness.Footnote 71 Its reliance on the Elitaliana, H and SatCen judgments suggests that non-political or non-strategic decisions have no substantive relation to the exercise of the CFSP. In these cases, however, the interpretation of another, non-CFSP act was crucial for the Court to assume jurisdiction. Basically, the cases ‘only’ establish that an act may have a CFSP character but that its essence may relate to circumstances falling within the jurisdiction of the European Court of Justice.

The KS and KD judgment abandons this requirementFootnote 72 by reinterpreting these cases as also containing the general rule for when the Court does not have jurisdiction.Footnote 73 For the first time, the Court moved beyond its incremental approach.Footnote 74 Rather than just adding another category the repertoire of cases it considers within its jurisdiction,Footnote 75 it changed its general approach and established a new general rule. Commentators have aptly described this approach as a political question doctrine in all but name.Footnote 76 While none of the cases cited by the Court even mention the words ‘political’ or ‘strategic’, the criticism voiced against themFootnote 77 suggests that a similar rationale might underpin them. Still, deriving a political question doctrine from these judgments seems to skip several steps in the argumentation. In the SatCen case, Advocate General Bobek’s Opinion tackled the question of whether all CFSP acts have a political character, and in this context addressed the political question doctrine itself.Footnote 78 However, in its subsequent judgment, the Court of Justice did not address these considerations.Footnote 79 The Court’s approach in KS and KD is therefore definitely innovative. The Court has previously used the concept of direct effect for a similar, but reverse purpose. In certain foreign policy issues, especially when assessing the compatibility of EU acts with World Trade Organization law, it has refrained from exercising its jurisdiction to allow for political manoeuvring by World Trade Organization parties.Footnote 80 This was a step in the opposite direction: the Court refrained from exercising its jurisdiction. By contrast, it extended its jurisdiction over CFSP matters with a narrow reading of the exception to its jurisdiction in KS and KD.

Practicability of the distinction

‘[A]cts and omissions directly related to strategic and political choices’ is obviously a ‘vague formula’Footnote 81 in need of further clarification. It is based on the opposition of ‘high politics’ on the one hand and ‘administrative’Footnote 82 decisions and acts of ‘day-to-day management’Footnote 83 on the other. It remains to be seen how the Court will apply this distinction in future cases. The Court ruled that the decision not to confer enforcement powers to the Human Rights Review Panel is not directly related to the political or strategic choices concerning the mission. Rather, it is related to an aspect of its administrative management.Footnote 84 Accordingly, the category of political choices appears rather narrow.Footnote 85 At the same time, however, the allocation of resources was considered as being directly related to political or strategic choices. Since most things cost money, this makes the category wide.

In its intervention, the French government argued that the distinction was unworkable.Footnote 86 Indeed, in the United States, the political question doctrine remains notoriously difficult for federal courts to apply.Footnote 87 The Grand Chamber confined itself to classifying the acts and omissions at issue in the case, provided little justification for these classifications and gave no further examples of acts or omissions that might fall within these categories. This approach creates legal uncertainty, at least for the time being.Footnote 88 Qualifying the allocation of resources as a political decision, as opposed to personnel recruitment, is at least debatable.Footnote 89 The judgment, therefore, raises new questions for applicants contemplating an application to the Court.Footnote 90

Two pending cases demonstrate the difficulties in applying the distinction between acts and omissions directly related to strategic and political choices and other acts or omissions. Case C-883/24 was brought to the Court by an action of the European Parliament for (partial) annulment of Council Decision (CFSP) 2024/2643 of 8 October 2024 concerning restrictive measures in view of Russia’s destabilising activities. The Parliament is challenging Article 4(1) of the decision, which provides for a Council decision ‘by unanimity’ to establish and amend the list’ of natural and legal persons, entities and bodies.Footnote 91 The case may be decided along the Rosneft and Bank Refah line of cases. Yet, the Court may also hold that the procedural decision to decide ‘by unanimity’ is not an act ‘directly related to strategic and political choices’ ‘in the context of the CFSP’. The reason may be less that the voting rule is technical but rather that its political character here is domestic and not in the context of the CFSP. According to the Court’s KS and KD formula, therefore, the Court could exercise jurisdiction over CFSP matters in this case, despite fundamental rights and the right to an effective remedy not being at stake. In Case T-457/24, Hungary as the applicant is seeking the annulment of the decision adopted on 21 June 2024 by the European Peace Facility Committee on the allocation of amounts to assistance measures for the supply of military support to the Ukrainian armed forces, subject to the conditions laid down in Council Decision (CFSP) 2024/1471 of 21 May 2024. This should be a case about an act directly related to strategic and political choices.Footnote 92

On a positive note, the formula ‘acts and omissions directly related to strategic and political choices’ gives the Court sufficient leeway to define the boundary on a case-by-case basis, as necessitated by the factual and legal circumstances arising out of litigation.Footnote 93 Applying the formula to specific examples requires separating between two elements in it, namely ‘strategic and political choices’ and the direct relationship of the relevant acts and omissions to those choices. Treaty provisions such as Articles 26, 38 sub. 3 TEU may provide guidance on which choices are ‘strategic’. It can be assumed that the decisions of the European Council, the Council and the Political and Security Committee mentioned here are excluded from judicial review. In this context, it is difficult to make a meaningful distinction between ‘strategic’ and ‘political’ decisions.Footnote 94

It can be assumed that, before qualifying an act as directly related to the political or strategic choices, the Court will consider whether it directly affects the rights of individuals. First, this follows from the assumption explained above that the exception to jurisdiction in CFSP matters is based on the rationale that political and diplomatic actions do not directly impact on individuals. Second, the right to an effective remedy, which is the decisive factor for limiting the reach of the exception to jurisdiction, must be taken into account in these cases. It is more speculative to expect that the EU’s decision regarding the deployment of a mission,Footnote 95 the appointment of a special envoy, the establishment of the Permanent Structured Cooperation or a common defence are of a ‘political or strategic’ nature. In certain situations, the very decision to deploy or not to deploy a mission, or to sanction or not to sanction a country may violate fundamental rights or other binding international law. Moreover, the decisions in question may contain other provisions directly affecting the fundamental rights of individuals, which should be subject to judicial review according to established case law.Footnote 96

The second element in the Court’s formula, the notion of a ‘direct’ relationship between an act or omission and a strategic or political choice, adds to the ambiguity. The KS and KD judgment gives no general guidance on this criterion. One might imagine that a decision that relates ‘directly’ to a strategic or political decision would not depend on intermediate steps.Footnote 97 In its judgment, the Court determined that the resources made available to a CFSP mission, based on the first subparagraph of Article 28(1) TEU, are directly related to the political or strategic choices made within the framework of the CFSP.Footnote 98

The remaining jurisdictional gap and cooperation with domestic courts

As shown, the formula for the jurisdiction of the Court of Justice found in KS and KD is not without problems in terms of its underlying reasoning and practical applicability. Furthermore, given that the right to an effective remedy is central to the Court’s argument, it is inconsistent that the Court’s jurisdiction in CFSP matters can be established under the formula even if the right to an effective remedy is not affected, whilst a jurisdictional gap remains for breaches of fundamental rights committed in the context of the CFSP.Footnote 99 In view of this, some have pointed to the EU’s dual system of legal protection, suggesting that national courts could adjudicate claims against CFSP acts where the EU Court lacks jurisdiction.Footnote 100 The Court itself has held that national courts play an active role under Article 274 TFEU in upholding the right to effective judicial protection.Footnote 101 However, pursuing claims at the domestic level presents significant challenges,Footnote 102 as demonstrated by the KS and KD case. There are many practical barriers to accessing national courts for such claims. For instance, it is unclear which court of which member state should hear a claim against measures taken by an EU mission established in a third country. When member states are responsible for the implementation of individual restrictive measures, natural or legal persons may plead the invalidity of the respective EU act before the national courts. National courts might consider requesting a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU.Footnote 103 However, preliminary rulings, so far, have been largely excluded from the Court’s jurisdiction if they do not address the legality of individual restrictive measures.Footnote 104 In the future, preliminary references could provide an opportunity for the Court to clarify the criterion of ‘acts and omissions directly related to strategic and political choices’. However, the Treaties stipulate that the EU Court has exclusive jurisdiction over actions for damages. National courts cannot rule on non-contractual liability for damage allegedly caused by EU institutions and bodies in any area falling within the scope of EU law (Articles 268 and 340(2) TFEU).Footnote 105

Eleanor Spaventa argues that the European Council, the Council and the High Representative have a positive duty stemming from the Charter of Fundamental Rights to include a jurisdictional clause in all CFSP measures. This clause would indicate the national court with jurisdiction over those cases. Failure to include such a clause would violate Article 47 of the Charter and also give rise to the EU’s non-contractual liability. This would allow courts to assert jurisdiction and assess the compatibility of CFSP acts with the Charter.Footnote 106 Revising mission-specific mechanisms, such as the Eulex Human Rights Review Panel, could also bridge the accountability gap by increasing their effectiveness in ensuring legal protection and empowering them to grant remedies and enforce their decisions.Footnote 107

In any case, the Court seems optimistic that the remaining jurisdictional gap will not prevent the EU from acceding to the ECHR.Footnote 108 The Court of Justice recalls that the European Court of Human Rights exercises restraint in matters of international relations, not considering it to be its role to interfere with the institutional balance between the executive branch and national courts. This institutional balance may be reflected in a constitutional limitation of the jurisdiction of courts in respect of acts that are inextricably linked to conduct in international relations.Footnote 109 The Court of Justice therefore apparently assumes that the European Court of Human Rights will not rule on the compatibility of CFSP acts or omissions directly related to political or strategic choices. While the exact scope and direction of the Court’s jurisdiction in terms of ‘normalisation’ of the CFSP remains to be seen after the KS and KD judgment, the remaining jurisdictional gap could no longer constitute a legal obstacle to accession to the ECHR.Footnote 110

References

1 General Court 10 November 2021, Case T-771/20, KS and KD v Council and Others.

2 Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, 4 February 2008.

3 General Court 14 December 2017, Case T-840/16, KS v Council and Others, para. 1.

4 Ibid., paras. 16-17.

5 Tomanović et al. v the European Union et al. [2019] EWHC 263 (QB) para. 78; cp S.Ø. Johansen, ‘Suing the European Union in the UK’, 4 European Papers (2019) p. 345 at p. 348.

6 Case T-771/20, supra n. 1, para. 22.

7 AG Wathelet, 31 May 2016, Opinion in Case C-72/15, PJSC Rosneft Oil Company v Her Majesty’s Treasury and Others, paras. 39-50.

8 See ibid., para. 52.

9 In this sense, also ibid., para. 52 (fn. 26); for a summary of these arguments, C. Moser, Accountability in EU Security and Defence (Oxford University Press 2020) p. 184, with further references.

10 Cf P. van Elsuwege, ‘Judicial Review and the Common Foreign and Security Policy’, 58 Common Market Law Review (2021) p. 1731 at p. 1739; L. Lonardo, ‘The Political Question Doctrine as Applied to Common Foreign and Security Policy’, 22 European Foreign Affairs Review (2017) p. 571; AG Ćapeta, 23 November 2023, Opinion in Joined Cases C-29/22 P & C-44/22 P, KS and KD v Council and Others, para. 113.

11 ECJ 23 April 1986, Case C-294/83, Parti écologiste ‘Les Verts’ v European Parliament, para. 23.

12 T. Verellen, ‘A Political Question Doctrine for the CFSP’, Verfassungsblog, 24 September 2024, p. 2, https://verfassungsblog.de/political-question-doctrine/, visited 24 November 2025.

13 Opinion in Case C-72/15, supra n. 7, paras. 51-76.

14 ECJ 24 June 2014, Case C-658/11, European Parliament v Council of the European Union (Mauritius), para. 70; ECJ 19 July 2016, Case C-455/14 P, H v Council of the European Union and Others, para. 40; ECJ 28 March 2017, Case C-72/15, PJSC Rosneft Oil Company v Her Majesty’s Treasury and Others, para. 74; ECJ 25 June 2020, Case C-439/13 P, Elitaliana SpA v Eulex Kosovo, para. 42; ECJ 25 June 2020, Case C-14/19 P, European Union Satellite Centre v KF, para. 66; ECJ 6 October 2020, Case C-134/19 P, Bank Refah Kargaran v Council of the European Union, para. 32.

15 H v Council of the European Union and Others, supra n. 14, paras. 41, 58; Rosneft Oil, supra n. 14, paras. 72-75, 81; Bank Refah Kargaran, supra n. 14, paras. 34-36.

16 C. Eckes, ‘Common Foreign and Security Policy: The Consequences of the Court’s Extended Jurisdiction’, 22 European Law Journal (2016) p. 492 at p. 493.

17 On this case law, see C. Hillion, ‘A Powerless Court?’, in M. Cremona and A. Thies (eds.), The European Court of Justice and External Relations Law (Hart Publishing 2014); G. Butler, ‘The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy’, 13 EuConst (2017) p. 673; P. Koutrakos, ‘Judicial Review in the EU’s Common Foreign and Security Policy’, 67 International and Comparative Law Quarterly (2017) p. 1; J. Heliskoski, ‘Made in Luxembourg’, 2 Europe and the World (2018); van Elsuwege, supra n. 10; S. Poli, ‘The Right to Effective Judicial Protection with Respect to Acts Imposing Restrictive Measures and its Transformative Force for the Common Foreign and Security Policy’, 59 Common Market Law Review (2022) p. 1045.

18 Van Elsuwege, supra n. 10, p. 1752; Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, paras. 53-69; ‘Editorial Comments’, 61 Common Market Law Review (2024) p. 1455 at p. 1459.

19 Rosneft Oil, supra n. 14, para. 106; see also ECJ 10 September 2024, Case C-351/22, Neves 77 Solutions SRL v Agenţia Naţională de Administrare Fiscală – Direcţia Generală Antifraudă Fiscală, para. 39.

20 Bank Refah Kargaran, supra n. 14, paras. 43-44.

21 European Parliament v Council of the European Union (Mauritius), supra n. 14, para. 73.

22 AG Bobek, 19 March 2020, Opinion in Case C-14/19 P, European Union Satellite Centre v KF, para. 56.

23 E.g. Case C-439/13 P, supra n. 14, para. 49.

24 H v Council of the European Union and Others, supra n. 14, para. 55; Case C-14/19 P, supra n. 14, para. 66.

25 Moser, supra n. 9, p. 215.

26 Cf ibid., p. 208.

27 G. Sitaraman and I. Wuerth, ‘The Normalization of Foreign Relations Law’, 128 Harvard Law Review (2015) p. 1897 at p. 1901.

28 K. Chawla, ‘Bridging the CFSP Gap’, Versassungsblog, 15 October 2024, https://verfassungsblog.de/bridging-the-cfsp-gap/, visited 24 November 2025.

29 A. Navasartian Havani, ‘An EU External Relations Political Question Doctrine that Suffers No Human Rights Exception’, European Law Blog, 25 September 2024, https://www.europeanlawblog.eu/pub/kwd8041a/release/2, visited 24 November 2025, p. 3; see also E. Spaventa, ‘Escaping Jurisdictional Blackholes’, Versassungsblog, 15 December 2023, p. 2, https://verfassungsblog.de/escaping-jurisdictional-blackholes/, visited 24 November 2025.

30 Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, paras. 4, 24-26, 147-151.

31 ECJ 18 December 2014, Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para. 251.

32 Ibid., paras. 252, 254, 256; see A. Łazowski and R.A. Wessel, ‘When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR’, 16 German Law Journal (2015) p. 179 at p. 200-203.

33 Chawla, supra n. 28.

34 Hillion, supra n. 17, p. 66-69; Eckes, supra n. 16, p. 510-511; cf Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, para. 51.

35 G. Butler, Constitutional Law of the EU’s Common Foreign and Security Policy (Hart Publishing 2019) p. 185-188; C.M. Carrasco, ‘Human Rights in the EU’s Common Security and Defence Policy’, in J. Wouters et al. (eds.), The European Union and Human Rights (Oxford University Press 2020) p. 429; S.Ø. Johansen, The Human Rights Accountability Mechanisms of International Organizations (Cambridge University Press 2020) p. 143-144; Poli, supra n. 17, p. 1057.

36 Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, 16 February 2023.

37 Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, paras. 4, 24-26.

38 ‘EU accession to the ECHR (‘46+1’ Group)’, https://www.coe.int/en/web/human-rights-intergovernmental-cooperation/accession-of-the-european-union-to-the-european-convention-on-human-rights, visited 24 November 2025.

39 Council of Europe, Meeting Report, 18th Meeting of the CDDH Ad Hoc Negotiation Group on the Accession of the European Union to the European Convention on Human Rights, 46+1(2023)R18, 17 March 2023, para. 7; Council of Europe, Steering Committee for Human Rights, Interim Report to the Committee of Ministers, CDDH(2023)R EXTRA ADDENDUM, 4 April 2023, para. 8; see J. Krommendijk, ‘EU Accession to the ECHR’, in M. Fink (ed.), Redressing Fundamental Rights Violations by the EU (Cambridge University Press 2024) p. 201-204.

40 Case T-771/20, supra n. 1, para. 42.

41 Ibid., paras. 31-39; see Case T-840/16, supra n. 3, paras. 12-13.

42 Case T-771/20, supra n. 1, para. 41, citing ECJ 25 March 2021, Case C-565/19 P, Armando Carvalho and Others v European Parliament and Council of the European Union, paras. 69-78.

43 Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, paras. 154-155.

44 Ibid., paras. 118-119.

45 Ibid., para. 122.

46 ECJ 10 September 2024, Joined Cases C-29/22 P & C-44/22 P, KS and KD v Council and Others, p. 60-84.

47 Cp. the case law cited supra n. 14.

48 Rosneft Oil, supra n. 14, para. 74.

49 Protocol (No. 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, 26 October 2012.

50 Bank Refah, supra n. 14.

51 Joined Cases C-29/22 P & C-44/22 P, supra n. 46, paras. 85-92.

52 Case C-565/19 P, supra n. 42, paras. 69, 78.

53 Case C-439/13 P, supra n. 14, para. 49; ECJ 1 March 2016, Case C-440/14 P, National Iranian Oil Company v Council, para. 55; Case C-14/19 P, supra n. 14, para. 66.

54 GC 25 September2025, Case T-771/20 RENV, KS and KD v Council and Others.

55 ECJ 24 February 2022, Case C-283/20, Eulex Kosovo, para. 48.

56 L. Lonardo, ‘How the Court Tries to Deliver Justice in Common Foreign and Security Policy’, 9 European Papers (2024) p. 830 at p. 830-831.

57 European External Action Service, ‘Missions and Operations’, https://www.eeas.europa.eu/eeas/missions-and-operations_en, visited 24 November 2025.

58 See also Lonardo, supra n. 56, p. 831.

59 European Parliamentary Research Service, Russia’s War on Ukraine: Bilateral Delivery of Weapons and Military Sid to Ukraine, PE 729.431, May 2022.

60 L. Gobiet, ‘The Final Episode of a (Never-Ending) Series?’, European Law Blog, 25 September 2024, p. 3, https://www.europeanlawblog.eu/pub/edrqzitg/release/3, visited 24 November 2025.

61 Spaventa, supra n. 29, p. 1.

62 Cf Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, paras. 109, 112.

63 Opinion 2/13, supra n. 31, para. 99; see also the Commission’s position in Rosneft, Opinion in Case C-72/15, supra n. 7, p. 81.

64 Eckes, supra n. 16, p. 509.

65 Case C-294/83, supra n. 11, para. 23; see also ECJ 25 July 2002, Case C-50/00 P, Unión de Pequeños Agricultores v Council of the European Union, para. 40.

66 Lonardo, supra n. 56, p. 831.

67 Joined Cases C-29/22 P & C-44/22 P, supra n. 46, paras. 68, 72, 119.

68 Verellen, supra n. 12, p. 3.

69 A. Blaschke, ‘Zwischen Fortschritt und Widerspruch beim Grundrechtsschutz in der GASP’, https://jean-monnet-saar.eu/?p=301478, visited 24 November 2025.

70 Lonardo, supra n. 56, p. 832.

71 See, among others, S.Ø. Johansen, ‘The (Im)possibility of a CFSP “Internal Solution”’, 9 European Papers (2024) p. 783 at p. 796.

72 Navasartian Havani, supra n. 29, p. 6.

73 Lonardo, supra n. 56, p. 839.

74 Cp. S. Vandenbosch, ‘The Political Question Doctrine Under Close Control’, Verfassungsblog, 30 October 2024, p. 3, https://verfassungsblog.de/the-political-question-doctrine-under-close-control/, visited 24 November 2025.

75 Contra L. Schubert, ‘Doing Too Much and Too Little. The CJEUs Approach to Judicial Review of Fundamental Rights Breaches in the CFSP after KS and KD’, EJIL: Talk!, 30 October 2024, p. 4, https://www.ejiltalk.org/doing-too-much-and-too-little-the-cjeus-approach-to-judicial-review-of-fundamental-rights-breaches-in-the-cfsp-after-kd-and-ks/, visited 24 November 2025.

76 Navasartian Havani, supra n. 29, p. 6; D. Sarmiento and S. Iglesias Sánchez, ‘KS and Neves 77: Paving the Way to the EU’s Accession to the ECHR’, EU Law Live, https://eulawlive.com/insight-ks-and-neves-77-paving-the-way-to-the-eus-accession-to-the-echr/, visited 24 November 2025; Vandenbosch, supra n. 72, p. 4.

77 Supra n. 25.

78 Opinion in Case C-14/19 P, supra n. 22, paras. 74-79.

79 Case C-14/19 P, supra n. 14.

80 See, e.g., ECJ 12 December 1972, Joined Cases 21 to 24-72, International Fruit Company NV and others v Produktschap voor Groenten en Fruit, paras. 18, 27; ECJ 1 March 2005, Case C-377/02, Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau (BIRB), paras. 37-40; C-440/14 P, supra n. 53, paras. 77-78; see also AG Ćapeta, 13 July 2023, Opinion in Case C-382/21 P, European Union Intellectual Property Office v The KaiKai Company Jaeger Wichmann GbR, p. 59-64; cf. Blaschke, supra n. 69, p. 4-5.

81 Lonardo, supra n. 56, p. 832.

82 Joined Cases C-29/22 P & C-44/22 P, supra n. 46, para. 131.

83 Ibid., para. 127.

84 Ibid., para. 131.

85 Navasartian Havani, supra n. 29, p. 6.

86 Cf Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, para. 110.

87 Verellen, supra n. 12, p. 3; A. Silke, Deference to the Executive? (Nomos 2024) p. 275-279.

88 Blaschke, supra n. 69, p. 5; Navasartian Havani, supra n. 29, p. 6.

89 Blaschke, supra n. 69.

90 Schubert, supra n. 75, p. 4.

91 Official Journal of the European Union, Action brought on 19 December 2024 – European Parliament v Council of the European Union (Case C-883/24), C/2025/899, 17 February 2025.

92 Official Journal of the European Union, Action brought on 30 August 2024 – Hungary v Council and European Peace Facility Committee (Case T-457/24), C/2024/6266, 28 October 2024.

93 Lonardo, supra n. 56, p. 843.

94 Ibid., p. 841-842.

95 On this, see Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, para. 118.

96 Lonardo, supra n. 56, p. 841-843 (including fn. 81).

97 Ibid., p. 843.

98 Joined Cases C-29/22 P & C-44/22 P, supra n. 46, para. 126.

99 On this, see also Gobiet, supra n. 60.

100 AG Kokott, 13 June 2014, Opinion procedure 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, paras. 95-96; Spaventa, supra n. 29; for the similar position of the French government in KS and KD appeals, see Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, p. 134.

101 ECJ 27 February 2007, Case C-354/04 P, Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v Council of the European Union, para. 56; ECJ 27 February 2007, Case C-355/04 P, Segi, Araitz Zubimendi Izaga and Aritza Galarraga v Council of the European Union, para. 56.

102 Johansen, supra n. 35, p. 85-90; J. de Coninck, ‘Effective Remedies for Human Rights Violations in EU CSDP Military Missions: Smoke and Mirrors in Human Rights Adjudication?’, 24 German Law Journal (2023) p. 342; C. Moser, ‘Loin de l’Union, loin des juges?’, in L.K. Jaber et al. (eds.), Rechtsweggarantie im vergleichenden Verwaltungsrecht (Springer 2021); for hurdles to national courts actually adjudicating cases related to EU security and defence, see Moser, supra n. 9, p. 186-191.

103 AG Wahl, 7 April 2016, Opinion in Case C-455/14 P, H v Council and Commission, para. 35; on the application of the Foto-Frost principle to the CFSP, see Johansen, supra n. 5, 353-355.

104 Rosneft Oil, supra n. 14, para. 81; Gobiet, supra n. 60, p. 4.

105 Opinion in Joined Cases C-29/22 P & C-44/22 P, supra n. 10, paras. 137-139, 143.

106 Spaventa, supra n. 29, p. 1; E. Spaventa, ‘Remedying Constitutional Heresies’, in K.A. Armstrong et al. (eds.), EU External Relations and the Power of Law (Hart Publishing 2024).

107 Schubert, supra n. 75, p. 5.

108 For a sceptical view, see Johansen, supra n. 71, p. 797.

109 ECtHR (Grand Chamber) 14 September 2022, Nos. 24384/19 and 44234/20, H.F. and Others v France, para. 281; ECtHR (Grand Chamber),14 December 2006, No. 1398/03, Markovic and Others v Italy, para. 114, including Concurring Opinion of Judge Bratza Joined by Judge Rozakis, paras. 7-8, but also Dissenting Opinion of Judge Zagrebelsky Joined by Judges Zupančič, Jungwiert, Tsatsa-Nikolovska, Ugrekhelidze, Kovler and Davíd Thór Björgvinsson, 49-50; cf Joined Cases C-29/22 P & C-44/22 P, supra n. 46, paras. 78, 80.

110 Chawla, supra n. 28; J. Krommendijk, ‘One Step Closer After KS and KD’, REAL Law Blog, 1 October 2024, p. 6, https://realaw.blog/2024/10/01/one-step-closer-after-ks-and-kd-eu-accession-to-the-echr-by-jasper-krommendijk/, visited 24 November 2025; Sarmiento and Iglesias Sánchez, supra n. 76.