Following the KS and KD judgment of the Grand Chamber of the CJEU of 10 September 2024, accession of the EU to the ECHR becomes an ever more realistic prospect. The CJEU extended its jurisdiction in relation to the Common Foreign and Security Policy (CFSP) by determining that it can assess the legality of acts or omission coming under the CFSP that are not directly related to political or strategic choices. It can thus hear claims for damages caused by CFSP measures as regards possible breaches of fundamental rights related to day-to-day management and procedural aspects of such CFSP acts. This judgment paves the way for a decision from the side of the EU on the so-called Basket 4 related to the CFSP, the only remaining issue in the negotiations about the EU’s accession to the ECHR (cf. Sarmiento and Iglesias 2024).

This post explains why KS and KD facilitates accession, after providing a short chronological sketch of the accession talks. It will also address the benefits of accession. Given the limited length of this post, the more procedural aspects related to the EU’s accession to the ECHR such as admissibility, the prior involvement and co-respondent mechanism will not be addressed. Interested readers can consult my chapter in the forthcoming volume edited by Melanie Fink ‘Redressing Fundamental Rights Violations by the EU’ (CUP 2024).

From closed doors to closed ranks

After some strenuous years, negotiations started again in 2020 and have unfolded relatively smoothly, partly facilitated by Russia’s recent exclusion from the Council of Europe. Since 2020, thirteen negotiation meetings of the 46+1 group at the Council of Europe level haven taken place with a total of forty-four days of discussions. The 46 + 1 Group reached a deal on 17 March 2023, prior to the Summit of Heads of State and Government of the Council of Europe in Reykjavik in May 2023. The current accession agreement addresses all the flaws spotted by the CJEU in Opinion 2/13, except for the CFSP (cf. Sarmiento 2024, p. 3). The 47 negotiators reserved the CFSP in ‘Basket 4’ to the end of the negotiations, as a matter to be decided by the EU.

Accession will close more than forty years of discussion. This discussion was first launched at the end of the 1970s in the good old days of the European Communities. Accession and its advantages and consequences have been among the ‘favourite topics of discussion’ of academics (Jacqué 2011). It is well known that the CJEU closed the door for accession twice with its Opinion 2/94 and Opinion 2/13. Especially the latter opinion from December 2014 has been criticised. Ithas been described as a ‘problematic attitude of ‘European exceptionalism’’ and reflective of ‘an overconfident belief that the EU under the Court’s own stewardship, has risen above the political and institutional defects that typically generate fundamental rights infringements’ (Isiksel 2016). The relative ease with which the negotiators reached a deal is perhaps surprising because it was long thought that accession would be difficult or of limited added value following Opinion 2/13 (Krommendijk 2018).

Closing the jurisdictional gap in CFSP

The CJEU’s concerns in relation to the CFSP were arguably the most controversial aspect of Opinion 2/13  (e.g. Łazowski and Wessel 2015). The Accession Agreement (AA) of 2013 that was thwarted by the CJEU did not provide for any specific arrangements in relation to the CFSP. The Agreement simply empowered the ECtHR to review the compatibility with the ECHR of acts, actions or omissions performed in the context of the CFSP. This was problematic for the CJEU since it would give the ECtHR jurisdiction in a policy area in which the CJEU itself does not have jurisdiction. Its jurisdiction is clearly circumscribed in the Treaties, partly because of the special and intergovernmental nature of the CFSP area. Article 24 TEU stipulates that the CJEU shall not have jurisdiction in relation to the CFSP with two exceptions. First, the CJEU can monitor compliance with Article 40(1) TEU and make sure that the implementation of the CFSP does not affect the application of the procedures and the extent of the powers of the institutions in relation to other EU competences. In practice this boils down to ensuring that the correct legal basis is used in the adoption of EU secondary law and that the correct corresponding decision-making procedures are used. Second, the CJEU is able to review the legality of decisions providing for restrictive measures against natural or legal persons following Article 275 TFEU. Given the clearly circumscribed and limited jurisdiction, the CJEU concluded in Opinion 2/13 that entrusting exclusive review to a non-EU body ‘outside the institutional and judicial framework of the EU’ fails to have regard to the ‘specific characteristics of EU law’ (paras 254-258). Given the fundamental nature of the CJEU’s criticism, it is no surprise that the CFSPwas reserved to the end of the negotiations.

The CJEU case law in relation to the CFSP since Opinion 2/13 has advanced to such an extent that the problem of limited jurisdiction has become smaller. The CJEU has stretched the two exceptions to its limited jurisdiction and has tried to minimise the effective judicial protection gap (cf. Rangel de Mesquita 2021). The rationale is that the limitations to the CJEU’s jurisdiction derogate from the rule of general jurisdiction in Article 19 TEU and must, therefore, be interpreted narrowly and in the light of the right and principle of effective judicial protection. The recent judgment in KS and KD is a perfect illustration of the latter (see especially para. 68). Sarmiento’s observation that the EU ‘is hardly a reflection of its 2013 self’ is thus particularly pertinent in relation to the CJEU’s jurisdiction in relation to the CFSP.

The CJEU has, for example, provided a strict interpretation of the acts excluded from review in Article 275 TFEU. According to the CJEU this does not includes measures adopted by Eulex Kosovo  such as the awarding of a public contract giving rise to expenditures for the EU budget. In H the CJEU also accepted jurisdiction to assess the action for annulment in relation to a decision of the Chief of Personnel of the EU Policy Mission in Bosnia and Herzegovina to redeploy an Italian national seconded to another office. The CJEU has also accepted the possibility of preliminary references in relation to the validity of CFSP acts in Rosneft. In addition, the CJEU allowed non-contractual liability claims in relation to individual CFSP restrictive measures adopted on the basis of Chapter 2 of Title V TEU in Bank Refah Kargaran.

The CJEU builds on this previous case law in KS and KD involving close family members of individuals who disappeared or were killed in Kosovo in 1999. KS and KDbrought a case against the Council, the Commission, and the European External Action Service (EEAS) for the mishandling of recommendations of the EU Human Rights Review Panel established to investigate and prosecute war crimes committed during the war in Kosovo in 1999. The General Court dismissed the action for lack of jurisdiction ‘to review the legality of such acts or omissions, which relate to strategic choices and decisions concerning the mandate of a crisis management mission set up under the CSDP, which is an integral part of the CFSP, nor can it award damages to applicants who claim to have suffered harm as a result of those acts or omissions’ (para. 27). It held that the action does not concern restrictive measures in the sense of Article 275 TFEU or compliance with Article 40 TEU. The General Court also distinguished the case from the CJEU’s public procurement (Elitaliana) and staff management (H) cases.

The current Grand Chamber judgment is noteworthy because the CJEU followed the General Court’s assessment in relation to most aspects. The CJEU goes at great lengths to make clear that it cannot extend the limits of its jurisdiction (paras. 60-96). It points to, amongst other things, the principles of conferral and of institutional balance (para. 72). Especially interesting considering the focus of this blogpost is the CJEU’s assessment of this limitation in the light of Articles 6(1) and 13 ECHR and the case law of the ECtHR. It concludes that the limitation is not incompatible with the non-absolute right to an effective remedy and subsequently relies on the ECtHR judgment in Markovic and others v. Italy and H.F. and others v. France accepting constitutional limitations of jurisdictions of national courts in relation to state conduct in international relations (para. 78). It also rejects the argument of the Commission that Article 6(2) TEU obliging the EU to accede to the ECHR requires an extended jurisdiction (para. 82).

How then does the CJEU solve this intricate puzzle and move beyond the exclusion of jurisdiction? The CJEU builds on the suggestion of the Council and the EEAS to distinguish between political or strategic decisions, on the one hand, and merely administrative CFSP measures, on the other hand (see AG Opinion, para. 112). The CJEU accepts that it has jurisdiction to assess the legality and interpret the latter. In doing so, the CJEU does not go as far as AG Ćapeta and various intervening Member States who also accepted fundamental rights review in relation to political or strategic decisions, albeit in a deferential way (para. 102; AG Opinion, para. 120). After introducing this dichotomy, the CJEU meticulously carried out ‘a specific analysis of each of the acts and omissions’ to determine whether they are political or strategic choices or ‘day-to-day management’ acts, ‘purely procedural rules’, ‘administrative management’ (paras. 121-137). In the end, it concludes that issues related to, amongst other things, the absence of legal aid, remedial action and legally sound review are not directly related to political and strategic choices and, hence, subject to review by the CJEU despite its limited jurisdiction. The CJEU thus comes up with an elegant solution, albeit somewhat surprising and arguably not sufficiently reasoned considering the 37 preceding paragraphs in which the CJEU actually cautions against stretching the limits of its jurisdiction.

KS and KD facilitates the accession of the EU to the ECHR, as AG Ćapeta also noted explicitly in her Opinion (para. 150). This also holds true for another Grand Chamber judgment rendered on the same day: Neves 77 Solutions. The CJEU confirmed that it has jurisdiction to interpret a measure of general scope of a CFSP decision which should have been implemented in a regulation and which forms the basis for a national sanction (for a more extensive analysis, see Sarmiento and Iglesias 2024). The problem spotted by the CJEU in Opinion 2/13 has become more limited with these two judgments. The CJEU has not entirely closed the gap, because acts, actions, or omissions performed in the context of the CFSP are still excluded from review if they relate to political or strategic choices. Nonetheless, the ever smaller exclusion seems to be in conformity with the EC(t)HR, at least according to the CJEU itself (paras. 77-80). This judgment could thus be seen as a clear message to Strasbourg: we expect you to go along with our approach. KS and KD also provides a useful stepping stone for the CJEU itself enabling it to approve the new accession agreement in a future Opinion.

Closing the deal on the CFSP Basket 4

The EU negotiators seem to have waited for the CJEU’s judgment in KS and KD. Since March 2023 very little had happened. How will the negotiators close the deal on Basket 4? The last solution that was proposed by the EU during the negotiations was a reattribution mechanism. The proposed Article 4a re-attributes CFSP acts to EU Member States: an ‘act, measure or omission shall be attributed to one or more member States of the European Union […] if the European Union has designated that member State or those member States of the European Union as responsible for that act, measure or omission by means of a reasoned declaration’. An earlier version of the explanatory report mentions in relation to this proposal that the decision whether an act, action, or omission falls within the scope of the CFSP is a matter of internal EU law ‘which can only be decided definitively’ by the CJEU. The ECtHR shall accept this ‘final determination’ (paras. 26b-c).

While this proposal seems logical from the perspective of Opinion 2/13, several observations can be made. First, the Member State(s) designated will become respondent(s) in the case of re-attribution of conduct and the action shall be deemed to be directed against the designated Member State(s) instead of the EU (see also Draft explanatory report, para, 26a). This also has implications for the applicant(s) if they have not exhausted remedies ‘in at least one member State jurisdiction’. The proceedings before the ECtHR are to be stayed in order to allow the applicant to pursue domestic remedies in the designated Member State(s), if those remedies are still available. Second, one also wonders how this re-attribution mechanism applies to civilian missions that have an accepted distinct legal capacity under EU law as ‘subsidiary organs’ of the EU. From the perspective of the ECtHR and especially its Behrami and Saramati case law, conduct of subsidiary organs of international organisations is attributable to the organisation. Re-attribution to the EU Member States seems only logical when they instead of the EU maintain ‘effective control’. According to Hillion and Wessel there is a (rebuttable) presumption in favour of attributing wrongful conduct of such missions to the EU, rather than to the contributing EU Member States. In the earlier mentioned KS and KD case, the English High Court also followed this logic and determined in an obiter dictum that the case would most likely fall within the CJEU’s exclusive jurisdiction, agreeing with the submissions of the intervening European Commission that the ‘nature of the claim is not itself concerned with a sovereign policy choice made by the Member States’. Third, it is unclear whether it is acceptable for non-EU contracting parties to the ECHR. These parties have been critical about the proposal (Meeting report, paras. 37-39).

The re-attribution proposal seems especially illogical in the light of KS and KD. It would imply that also non-political and non-strategic CFSP choices at the level of the EU are attributed to the Member States. KS and KD obfuscates this fiction and makes it possible to attribute all choices to the EU with the expectation that the ECtHR follows the CJEU and accepts the treaty limitations to jurisdiction in relation to political and strategic choices in line with its previous case law. It is thus expected that the EU adopts a declaration in relation to the CFSP in line with the KS and KD judgment. Such a declaration instead of a specific provision has already been contemplated.

Close to the heart: the benefits of accession

It is to be hoped that a workable solution can be found for Basket 4. In my forthcoming chapter I sketch the positive consequences of the accession of the EU to the ECHR from the perspective of fundamental rights accountability and effective judicial protection vis-à-vis the EU. Accession fills a current protection gap in two ways: it enables complaints against the EU (currently declared inadmissible by the ECtHR) as well as against EU Member States when they implement EU law and have no margin of discretion (currently shielded from scrutiny on the basis of the rebuttable Bosphorus presumption). Accession may also finally provide an answer to the outstanding question whether the notorious locus standi requirements of direct and individual concern are in line with the demands of Strasbourg. Ever since the 1963 Plaumann judgment, the CJEU requires natural or legal persons to show that an EU act ‘affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons’. It is not unthinkable that the ECtHR is critical, considering previous hints in the case law (e.g. Posti and Rahko v Finland, para. 53) or dissenting opinions (Judge Ress, para. 1). AG Jacobs, the General Court and several commentators (e.g. Craig) argued for a relaxation of the CJEU’s interpretation of individual concern because they were of the opinion that a strict reading violates Article 6 and/or Article 13 ECHR. The Aarhus Compliance Committee likewise determined, albeit only with respect to environmental matters, that the standing requirements are too severe to comply with the Aarhus Convention. It is interesting that the ECtHR referred to the strict locus standi case law (including  Carvalho) in KlimaSeniorinnen in which it broadened access for associations in climate cases. After accession, the ECtHR gets in theory the last word and could solve a conflict between case law of both courts. This will contribute to the coherence of the two legal systems and reduce the likelihood of conflicts between the two orders.

While the Grand Chamber judgments facilitate a deal on Basket 4, actual accession will not happen overnight. The CJEU, the Parliamentary Assembly, and the ECtHR still need to give their opinions. At least there is a clear prospect after KS and KD and Neves 77 Solutions that we can finally close the door on this seemingly never-ending sage of accession.

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Posted by Jasper Krommendijk, Professor of Human Rights Law and Director of the Research Centre for State and Law (SteR) at Radboud University Nijmegen