Prof. Giegerich’s article “The Rule of Law, Fundamental Rights, the EU’s Common Foreign and Security Policy and the ECHR: Quartet of Constant Dissonance?”, Zeitschrift für Europarechtliche Studien 27/4 (2024), p. 590 – 633, has just gone online. It is freely accessible here.
On p. 629 f., Prof. Giegerich comes to these conclusions (footnotes omitted):
“Summarising the existing ECJ rulings on the jurisdictional carve-out in Art. 24(1) subparagraph 2 last sentence TEU and Art. 275(1) TFEU with its two claw-backs in Art. 275(2) TFEU, the ECJ has jurisdiction over CFSP acts in the following instances: actions for annulment pursuant to Art. 263(4) TFEU against a CFSP act imposing restrictive measures on natural or legal persons (Art. 275(2) TFEU); preliminary rulings pursuant to Art. 267 TFEU on the validity of such a CFSP act requested by a national court (Rosneft); actions for annulment pursuant to Art. 263(2) or (4) TFEU where the illegality of the CFSP act results from non-CFSP provisions of the Treaties (Mauritius) or secondary law provisions on public procurement (Elitaliana); actions for annulment pursuant to Art. 263(4) TFEU against acts of staff management in the context of civilian missions within the CSDP (H v. Council; SatCen); actions brought by natural or legal persons pursuant to Art. 268, 340(2) TFEU for compensation of damage caused by an annulled CFSP act imposing restrictive measures (Bank Refah Kargaran); preliminary rulings pursuant to Art. 267 TFEU on the interpretation of a CFSP decision where the Council failed to implement that decision by a regulation based on Art. 215(1) TFEU (that would have been covered by Art. 267 TFEU), contrary to its primary-law obligation (Neves 77 Solutions SRL); action for damages pursuant to Art. 268, 340(2) TFEU for breach of fundamental rights enshrined in the ECHR and the CFR, unless the grounds invoked for the claim of violation of fundamental rights are directly related to political or strategic choices made within the framework of the CFSP (KS and KD).
All in all, these cases considerably extend the EU Courts’ jurisdiction into the CFSP area beyond the expressly stipulated claw-backs. On the other hand, they do not completely eliminate the jurisdictional carve-out, which could only be done through a Treaty revision in the ordinary revision procedure. They do not even ensure that the EU Courts have jurisdiction in all cases in which a CFSP act arguably violates fundamental rights. Accordingly, the ECJ’s declaration in Opinion 2/13 remains true “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.” Since the major part of the CFSP thus remains off limits to the EU Courts, the obvious tension between Art. 24(1) subparagraph 2 last sentence TEU and Art. 275 TFEU and the rule of law and human rights values in Art. 2 TEU will continue for the foreseeable future. The EU Courts will in particular be prevented from reviewing the compatibility of CFSP acts (other than restrictive measures against natural or legal persons) with the rules of public international law. This is bad news from the perspective of Art. 2 TEU and the EU’s standing as a global rule of law champion, but the defect in the Treaties caused by the jurisdictional carve-out can only be fully rectified by a Treaty revision.
Coming back to the quartet and dissonance metaphors, the EU accession to the ECHR, if permitted by the ECJ in the opinion procedure under Art. 218(11) TFEU that is to be expected, will end much of the dissonance between the EU and the Convention system. But if the ECJ’s permission is not based on acceptance of a general fundamental rights exception to the jurisdictional carve-out, which is uncertain, the quartet of dissonance between the rule of law, fundamental rights, the CFSP and the ECHR will continue. This is because the exclusion of the EU courts’ jurisdiction with regard to some fundamental rights and most non-fundamental rights illegalities in the CFSP will largely remain in place, in obvious tension with Art. 6(1), 13 ECHR. The national courts cannot fill this jurisdictional gap without creating new tensions with the unity of the EU legal order (Foto-Frost). In other words: The jurisdictional carve-out remains a rule-of-law contaminant that must be eliminated by Treaty revision as soon as possible.”
