Introduction
The Grand Chamber’s judgment in KS and KD, Joined Cases C-29/22 P and C-44/22 P, before the Court of Justice of the European Union (CJEU) (for a recap of the facts and key arguments, see here) has attracted considerable academic attention, particularly because of its implications for the constitutional limits of judicial review under the European Union’s Common Foreign Security Policy (CFSP). Far less attention, however, has been paid to its practical implications for litigants seeking judicial protection against acts adopted in the CFSP field. In KS and KD, the Court of Justice left considerable scope for subsequent case law to determine where the line should be drawn between non-reviewable acts “directly related to political or strategic choices” and acts that remain amenable to judicial review.
The ambiguity surrounding the precise boundaries of judicial review in the CFSP has significant practical consequences. The Council, Common Security and Defence Policy (CSDP) missions and other actors may invoke KS and KD to challenge the CJEU’s jurisdiction, potentially preventing claimants from obtaining judicial review altogether. Thus, while KS and KD may have strengthened judicial protection in the CFSP, the uncertainty surrounding the scope of the Court’s jurisdiction provides defendants with a means for resisting judicial review by characterising contested measures as political or strategic choices.
By leaving the boundaries of jurisdiction unclear, KS and KD places a disproportionate burden on litigants, who risk investing considerable time and resources in bringing proceedings only to find that the Court considers the contested measure to constitute a “political or strategic choice” falling outside its jurisdiction.
Individuals should be able to assess with reasonable confidence, before commencing proceedings, whether the act they seek to challenge is amenable to judicial review. Yet KS and KD leaves the limits of the Court’s jurisdiction unclear. The burden of this uncertainty falls primarily on litigants, rather than EU institutions and bodies. Defendants can raise jurisdictional objections as part of their litigation strategy, arguing that the impugned measure falls within the protected sphere identified in KS and KD. Even where those objections ultimately fail, they increase the complexity, duration and expense of proceedings for litigants.
This blog post explores how a clearer distinction can be drawn between reviewable and non-reviewable acts and proposes that the CJEU rethink KS and KD when defining the boundaries of judicial review in the CFSP context in order to address the consequences which arise out of the currently applicable “directly related to political or strategic choices” test.
Post-KS and KD case law
Most recently, KS and KD has been applied in the General Court’s Grand Chamber judgment in Hungary v European Peace Facility (EPF) and Council, Case 457/24 on 9 September 2026. This case concerned a decision taken within the CFSP framework of the EPF including the correct application of Article 31 TEU. Before that, it was applied in the non-contractual liability case of DM and DN v EUBAM Libya, Case T-198/24, on 10 September 2025 and prior to this in the Court of Justice’s preliminary reference ruling in Tartisai, Case C-238/24, on 10 April 2025. In none of these cases did the EU Courts provide further guidance on the distinction established in KS and KD between reviewable and non-reviewable acts. Moreover, the cases were relatively straightforward in terms of the jurisdictional question. DM and DN concerned alleged harm arising from the activities of private security personnel protecting staff of EUBAM Libya, while Tartisai concerned the allowances and costs related to seconded staff in the EU Police Mission in Afghanistan. The cases either concerned matters closely connected with the administration or management of EU mission staff (DM and DN and Tartisai) or involved provisions and decision-making mechanisms specific to the CFSP framework (Hungary v EPF and Council). None of these cases required the Court to confront a difficult borderline case involving the distinction between an administrative act that can be reviewed and an act directly related to political or strategic choices.
Fundamental Rights as “Red Lines” (Advocate General Ćapeta)
In her Opinion in KS and KD Advocate General Ćapeta took the view that even if Articles 24(1) TEU and 275 TFEU exclude judicial review of political and strategic choices in CFSP they do not shield fundamental rights violations from judicial scrutiny.
Her line of reasoning was constitutional: EU institutions and bodies remain bound by fundamental rights even when acting in the CFSP. A violation of a fundamental right cannot itself be a political or strategic choice. In her view the EU Courts should therefore have jurisdiction over damages actions alleging that a CFSP measure breached fundamental rights.
Had the Grand Chamber followed the Advocate General this would have created a significant exception to the CFSP jurisdictional exclusion – one grounded not in the type of CFSP measure at issue, but in fundamental rights, which constitute constitutional limits that bind the Union even in foreign policy.
“Directly related to political or strategic choices” or not? (Grand Chamber)
In KS and KD the Grand Chamber did not adopt Advocate General Ćapeta’s view that fundamental rights violations can never fall within the CFSP exclusion. It held that the EU Courts do have jurisdiction over CFSP acts and omissions that are not “directly related to political or strategic choices”. This includes, in principle, acts concerning the operational and administrative implementation of CFSP measures, such as the management of EU missions (paras. 131 and 157 of the judgment).
The Court’s approach deliberately leaves room for judicial interpretation, discretion, and case-by-case adaptation to the specific facts of future disputes. Rather than providing a comprehensive definition of what constitutes a “political or strategic choice”, the Court used the case’s facts to contrast non-reviewable strategic decisions with reviewable operational ones (see para. 126 to 136 of the judgment), failing to establish a clear-cut distinction between the two. Furthermore, the Court’s reliance on the phrase “directly related to” introduces further ambiguity. This ambiguity invites EU defendants to protect day-to-day administrative operation acts from judicial review by framing them as strategic choices.
What means “directly related to”?
As noted here one possible way of giving substance to the criterion “directly related to” is to focus on the presence or absence of intermediate steps. On this approach, a decision relates “directly” to a political or strategic choice where it “allows or forbids or defines or implements” that choice “without further intermediate steps”. By contrast, a decision only “indirectly” relates to a political or strategic choice where it follows, as a second step, from a decision that itself “directly related to” the underlying political or strategic choice. As one subsequent analysis puts it one might imagine that a decision that relates ‘directly’ to a strategic or political choice would not depend on intermediate steps.
However, this distinction does not provide a sufficiently practical test. The absence of intermediate steps might be a useful starting point, but it does not answer the more difficult questions of which steps should count as relevant, or how to classify measures that form part of a chain of interconnected decisions.
Can the legality of the act be reviewed without assessing the underlying political or strategic choice?
A clearer way to draw the line is to ask whether reviewing the legality of the contested act would require the Court to second-guess the underlying political or strategic choice. On this view, an act is “directly related to” a political or strategic choice where judicial review would necessarily require the Court to assess that choice itself and, in substance substitute its own assessment for that of the political or strategic decision-maker.
The key question is whether the Court can assess the legality of the contested act by applying legal standards to the act itself, without examining the merits or the correctness of the underlying political or strategic choice. If it can, the act should be regarded as “indirectly related to” that choice and, in principle, remain open to judicial review. If it cannot – because assessing its legality necessarily requires the Court to assess the correctness of the underlying political or strategic choice – the act should be regarded as “directly related to” that choice.
The approach shifts the focus from the stated purpose of the measure (the Council contends that it serves a strategic interest) to the nature of the judicial inquiry required to assess its legality. A connection to a political or strategic decision should not, in itself, exclude judicial review. What matters is whether reviewing the legality of that act would require the Court to assess the substance or merits of the strategic decision itself.
The test thus distinguishes between reviewing the legality of an implementing measure and reviewing the underlying political or strategic choice. It offers a more workable way for determining which acts remain subject to judicial review and which fall outside the Court’s jurisdiction.
For example, the decision to remove Eulex Kosovo’s executive mandate by Decision 2018/856 may constitute a political or strategic choice (see para. 136 of KS and KD). However, a subsequent failure to take remedial action in response to findings by its Human Rights Review Panel that Eulex Kosovo had breached fundamental rights by failing to conduct effective investigations (see para.133 of KS and KD) should, in principle, remain open to judicial review, provided that the legality of the omission can be assessed by applying the relevant legal standards without requiring the Court to assess the merits of the decision to remove Eulex Kosovo’s executive mandate.
The decisive question is not whether the contested measure is connected to a political or strategic choice, but whether reviewing its legality would require the Court to assess the merits of the underlying political or strategic choice.
Specific CFSP provisions – Hungary v EPF
The case Hungary v EPF and Council (Case T-457/24) illustrates a possible difficulty for the Court to accept the proposed test. In that case, the General Court (Grand Chamber) applied the test established in KS and KD, finding that the contested decision was “directly related to political or strategic choices” and therefore fell outside the jurisdiction of the EU judicature.
The dispute concerned a decision of the European Peace Facility (EPF) Committee allocating the first instalment of extraordinary revenues from frozen Russian assets to support the Ukrainian Armed Forces. Hungary argued that, because it had constructively abstained when the underlying Council decision was adopted, the EFP had unlawfully prevented it from participating in the subsequent vote. Its single plea relied, in particular, on Article 31 (1) TEU, a CFSP-specific Treaty provision which governs voting procedures in the CFSP (para. 75 of the Judgment).
Under the proposed test, the question would be whether the Court can determine the legality of the contested decision, by reviewing whether Article 31 (1) TEU had been correctly applied without the need to assess the correctness of the underlying political or strategic choice, i.e., the allocation of EPF funds for military support to Ukraine. The answer is yes, the issue before the Court was not whether the funds should be used to support Ukraine, but whether Hungary had been unlawfully excluded from the subsequent vote in breach of its right to vote. Hence under the proposed test the Court would have jurisdiction.
The difficulty, however, is that Article 31 (1) TEU is not a generally applicable EU procedural rule that happens to have been used in the CFSP context. Rather, it is a CFSP-specific Treaty provision rule governing voting procedures within the CFSP framework. Article 31 TEU is contained in Chapter 2 of Title V of the EU Treaty, relating to ‘specific provisions on the [CFSP]’ (see in this respect also para. 75 of the judgment “In the present case, Hungary has not raised any plea in law relating to the interpretation or application of a provision that does not fall within the CFSP, since the single plea in law concerns Article 31(1) TEU and Article 11(8) and (14) of Decision 2021/509”). On this view, because it is a CFSP-specific Treaty provision the Court declined to exercise jurisdiction based on Article 24 (1) TEU (see para. 76 of the Judgment).
In order that the proposed test is acceptable to the Court taking into account Hungary v EPF the proposed test might need to exclude cases in which the Court would have to judicially review the correct application of CFSP-specific Treaty provisions like Article 31 TEU, even if in such cases it does not need to assess the correctness of the underlying political or strategic choice.
Conclusion
Future case law must draw a clearer and more workable line between political or strategic choices and their implementation. KS and KD shows the Court’s willingness to develop this distinction within the existing Treaty framework, but the boundary remains insufficiently precise, in particular to the detriment of individual claimants like KS and KD.
The challenge is to make that boundary more precise and predictable, allowing effective judicial review where necessary to protect the rule of law, while respecting the limits of the Court’s jurisdiction under the Treaties. The key question should be simple: can the Court assess whether EU law has been respected without reviewing the wisdom or merits of the underlying foreign policy choice? If so, judicial review should remain possible, unless that review necessarily entails interpreting or applying a CFSP-specific Treaty provision whose review the Court might consider to be excluded by Article 24 (1) TEU and Article 275 TFEU.
Posted by Antje Kunst (Barrister, Rechtsanwältin, Garden Court North Chambers)