The Court of Justice and EU Foreign Policy: what jurisdiction should it have?

Luigi Lonardo, PhD student, King’s College London

The second paragraph of Article 24(1) Treaty on the European Union explains that “the Common Foreign and Security Policy (CFSP) is subject to specific rules and procedures”, and ends with the rather explicit sentence “the Court of Justice of the European Union shall not have jurisdiction with respect to these provisions”.

Lawyers are currently discussing whether the sentence “the CJEU shall not have jurisdiction” means “the Court has some jurisdiction”. Seriously. AG Wahl elegantly phrased it this way: “The main question could be framed as follows: does the exclusion from the CJEU’s jurisdiction cover, in principle, all CFSP acts or only certain categories of CFSP acts?” (Case C‑455/14 P H v Council and Commission AG Opinion, Par 52).

The question is of fundamental constitutional importance because an answer will enable lawyers to understand with clarity what EU foreign policy acts are excluded from the Court’s judicial review – a legal issue that the Court has not yet had the opportunity to adjudicate upon. While Art 19 TEU confers on the Court jurisdiction to ensure that in the interpretation and application of the Treaties the law is observed, Article 24, as recalled, introduces an exception. The scope of this exception, however, has not been fixed. In Case C- 658/11 the Court said that the exception “must be interpreted narrowly” because it introduces an exception from a general rule (par 70). In Opinion 2/13 (on ECHR accession), it only concluded, without further specification, 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). To further complicate the issue, however, Article 24 TEU also introduces an exception to the exception: the Court has jurisdiction to monitor compliance with Article 40 TEU (the division between foreign policy and other EU measures) and to review the legality of sanctions.

So, when does the Court of Justice of the European Union (CJEU) have jurisdiction? Two cases may offer guidance with respect to this issue. One case, H v Council and Commission, was decided by the Court in July, and another, Rosneft, is currently pending.

H v Council

In H, an Italian magistrate sought annulment, before the General Court (Order in H v Council and Others, T‑271/10), of the decision of a Head of an EU Mission established under CFSP. The contested decision concerned the transfer of H, a seconded Legal Officer of the EU Police Mission in Sarajevo, to the post of Prosecutor in another regional office of the same country. The General Court (GC) held that it lacked jurisdiction to hear the complaint and therefore found that the action was inadmissible. The GC reasoned that the exclusion of jurisdiction under Art 24(1) TEU only encounters two exceptions: monitoring compliance with Article 40 TEU (ie the division of competence between CFSP and non-CFSP external measures) and the review of the legality of sanctions under the second paragraph of Article 275 TFEU.

The General Court took the view that the appellant’s situation did not fall under one of the exceptions to the general rule that EU Courts do not have jurisdiction in CFSP matters (it was not, therefore, one of the two “exceptions to the exception”). The General Court considered that the contested decisions were adopted by the Head of Mission pursuant to powers that had been delegated to him by the Italian authorities. It thus concluded that it was for Italian courts to review the legality of the contested decisions and to hear the action for damages. It finally added that, should the Italian court having jurisdiction consider the contested decisions unlawful, it could make that finding and draw the necessary conclusions, even with respect to the very existence of those decisions.

The applicant appealed the decision before the ECJ. Applicant, Council, and Commission all wanted to set aside the GC’s order, albeit each for different reasons, which will be briefly outlined below with regards to the issue of the extent of the Court’s jurisdiction on CFSP matters.

The position of the Applicant

The Applicant took the view that the exclusion of the Court’s jurisdiction does not cover merely administrative measures (such as the decision at stake in the present case) but only the acts provided for in Article 25 TEU: general guidelines, decisions on actions and positions to be taken by the EU (and implementation thereof), and acts of systemic cooperation between Member States

The position of the Council

Par 32 of the Advocate General opinion explains that “The Council is of the view that the statement of reasons in the order under appeal does contain two legal errors. First, in deciding to relocate H, the Head of Mission did not exercise powers delegated to him by the Member State of origin, but by the competent EU institution (the Council itself). Second, the national court hearing the case does not have the power to annul the act challenged. Nevertheless, those errors do not — in the opinion of the Council — invalidate the conclusion reached by the General Court”

The position of the Commission

The Commission argued that the Court lacks jurisdiction only on acts that are “expression of sovereign foreign policy”, thus leaving the Court empowered, for example, to review the lawfulness of (a) acts of implementation, or (b) adopted in the framework of the CFSP when the alleged invalidity stems from a possible infringement of non-CFSP provisions. The Commission took the view, nonetheless, that the contested decision was not an implementing act.

The findings of the Court

Somewhat unsurprisingly, the Court reversed the order of the GC and found that the circumstance that the decision was a CFSP measure “does not necessarily lead to the jurisdiction of the EU judicature being excluded” (par 43).

The Court interpreted the exclusion of jurisdiction very narrowly. It gave a systematic reading of the general provisions of EU law (Article 2) and of CFSP (Articles 21 and 23 TEU) to recall that the EU is founded, in particular, on the values of equality and the rule of law ( Segi and Others v Council; Opinion 2/13). It stated 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 the current case, the Court considered that the decision of the Head of Mission was subject to legal scrutiny because under Article 270 TFEU the EU judicature has jurisdiction to rule on all actions brought by EU staff members having been seconded to the EUPM. They remain subject to the Staff Regulations during the period of their secondment to the EUPM and, therefore, fall within the jurisdiction of the EU judicature, in accordance with Article 91 of those regulations (even though H was seconded by a Member State, the two situations were considered similar). The decision of the Head of Mission was considered to be merely “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). It therefore referred the case back to the GC.

Rosneft

A similar question recurs in Rosneft, the first request ever for a preliminary ruling on a CFSP act, currently pending before the Court. The case stems from a Russian gas company, Rosneft, challenging sectorial measures (not target sanctions) prohibiting EU natural or legal persons, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.

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

The AG believes that the measure can be reviewed if it meets these cumulative two conditions: if (a) it relates to Articles 23 to 46 TEU (the foreign policy rules) and or EU acts adopted on the basis of those provisions; and if (b) its substantive content also falls within the sphere of CFSP implementation.

The first condition is derived, for Wathelet, from the consideration that the last sentence of the second subparagraph of Article 24(1) TEU excludes the Court’s jurisdiction only ‘with respect to these provisions’, and the reference thus made is to Chapter 2 of Title V of the EU Treaty, entitled ‘Specific provisions on the common foreign and security policy’, of which Article 24 forms part.

In the AG’s opinion, in particular, the court should have jurisdiction to hear actions for annulment and preliminary rulings on 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 EU Treaty – and not, therefore, regulations implementing them. For the AG, therefore, the Court has jurisdiction, but the challenged decision, to the extent that it is directly addressed to Rosneft, is not invalid. The very long opinion explains in detail why, but here we limit the scope of the analysis to the question on jurisdiction.

Comment

Judicial protection and uniformity of interpretation of EU law

The decision of the ECJ in H should be welcomed because it avoids the potential deterioration of the protection of fundamental rights which would derive from each national court being able to monitor CFSP decisions in the absence of a centralised mechanism. If national Courts had jurisdiction when the CJEU does not, this might lead to diverging and potentially even conflicting interpretations of the same CFSP measure.

Uniformity of interpretation of EU law would be further guaranteed if the Court affirmed jurisdiction to hear requests for preliminary rulings (and AG Walthelet in paras 61-62 of his opinion in Rosneft suggests that the Court can rule on CFSP preliminary rulings). The importance of judicial dialogue between the CJEU and national courts has been repeatedly affirmed in the Court’s case law (Opinion 1/09; CILFIT; Adeneler; Kamberaj). Moreover, absence of the Court jurisdiction to hear on preliminary rulings would be at issue with the third paragraph of Article 267 and the CILFIT doctrine.

The prohibition of judicial dialogue and cooperation between national and EU courts in CFSP may very well be a breach of the right to effective judicial remedy as enshrined in Article 47 EU Charter of Fundamental Rights. Article 47 Charter creates what has been described as a “composite, coherent, and autonomous” standard of EU judicial protection. Pursuant to Article 19(1) TEU, national Courts shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, with the standard set and as determined by the CJEU (which has the final saying on interpretation and application of the Treaties). Completely excluding the Court’s jurisdiction from an area of EU law such as CFSP would seriously hinder the system of judicial protection (see to a similar effect  Gestoras Pro Amnistía and Others v Council par 53; Segi and Others v Council par 53).

Even though it is left to the discretion of national courts to decide whether to make a reference for a preliminary ruling as well as the questions to be referred, completely ruling out the opportunity for an applicant (or the national court) to make such a request may indeed be against Article 47 Charter. All the more so if one accepted the reading proposed by the Council in its appeal in H, that is, that the national court does not have the power to annul the CFSP decision. This would leave a legal vacuum in the annulment of the provision (unlike what happened in C-583-11 Inuit, where the Court found that existence of alternative legal remedies allowed for a restrictive rule on judicial remedy).

Political questions doctrine

The preferable option seems to be that only genuinely political acts of CFSP cannot be subject to the Court’s substantial judicial review, although the Court should be able to monitor compliance with the procedural rules of the Treaty and compliance with fundamental human rights. This position is very similar to that expressed by the Commission in H, where it said that only sovereign acts of foreign policy cannot be scrutinised by the Court – without saying anything of formal control.

In H, the Court seemed to conclude that if there was any other reason for the which the Court should have jurisdiction, that reason takes precedence over the exclusion of Article 24, and then the Court does have jurisdiction. This is too broad an understanding of the Court’s powers.

In its judgment in Manufacturing Support & Procurement Kala Naft v Council, the CJEU ruled that it does not have jurisdiction on a CFSP provision which is not a restrictive measure against natural or legal persons pursuant to Article 275 TFEU, and the substantial result might be similar in Rosneft (par 85 AG opinion).

For the reasons explained above, the Court should accept the request on the preliminary ruling in Rosneft, but should then take the opportunity to draw a clear distinction: on one hand, (a) EU acts which are purely political and diplomatically sensitive acts of sovereign foreign policy; on the other hand, (b) all remaining CFSP decisions, all acts of implementation, and provisions of general application.

On (a), which I submit should be assessed on a case by case basis and on their substantial content: the Court should recognise it lacks power of judicial review. Those acts, determined with a “substance over form” rule (see Les Verts par 27; AG Wathelet seems to be taking 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 (as the case law on Article 263(4) TFEU now stands)

Such acts also have such a discretionary content that courts should defer to the decision of the political actors who adopted them. The latter element, which American constitutional lawyers refer to as the “political question doctrine” is present in many jurisdiction (see par 52 AG Opinion in Rosneft): deference toward the so called “actes de gouvernement”. The Commission proposed this thesis in its written submission and at the oral hearing in Rosneft. The “political question doctrine” is the attitude of courts not to review issues which are inherently political, are best left to the discretion of the actor who took the decision, and are ultimately non-justiciable.

In the leading case on the issue, Baker v Carr, the US Supreme Court held that a question is eminently political if it presents some characteristics such as “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 in some cases involving foreign policy decisions the need for adherence to a political decision is evident (ie the ECJ could hardly decide that the EU cannot prohibit commerce with certain Russian companies involved in Crimea at all), arguably the retention of CFSP provisions in the TEU, the preference for intergovernmental institutions in that domain, the scant role of the European Parliament in the decision-making process, not to mention the exclusion of the Court’s jurisdiction, all militate in favour of a strong constitutional preference for CFSP to be resolved by purely political departments. The doctrine could very well be embraced for the first time by the ECJ in deciding Rosneft.

On the other hand, as regards category (b), which includes the case of the “decision on staff management” in H, the Court should exercise its powers of judicial review.

Barnard & Peers: chapter 24

Art credit: The Economist, Peter Schrank