Wagner, Lorin-Johannes

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A deconstruction of the jurisdictionof the CJEU in CFSP matters –enlightenment at the end of the tunnel?(Part 1)Gastautor 2020-12-01T10:08:44v onLORIN-JOHANNES WAGNERThe judgement of the CJEU in the case Bank Refah has risen to someprominence lately (see here and here) – and rightly so. The “clarification” thatthe CJEU under Art 275 para 2 TFEU has not only jurisdiction to hear actionsfor annulment (Art 263 TFEU) but – in principle – has also jurisdiction to hearan action for damages (Art 268 and 340 TFEU) caused by the adoption of aCommon Foreign and Security Policy (CFSP) decisions installing restrictivemeasures against a natural or legal person is just the latest piece of thepuzzle in finding the true realm of the CJEU’s jurisdiction in CFSP matters.Ever since its infamous Opinion 2/13, in which the CJEU “teasered” that“the Court has not yet had the opportunity to define the extent to which itsjurisdiction is limited in CFSP matters” European lawyers have been eagerlyawaiting enlightenment on how to overcome the seemingly insurmountableobstacle that there could be no accession of the EU to the ECHR if the ECtHRjurisdiction is wider than the CJEU’s – supposedly – limited jurisdiction inCFSP matters.Previously on the CFSP Case LawOn the substance, the Bank Refah judgment, relating to damages allegedly incurredby an Iranian Bank sanctioned in the wake of the EU’s attempt to hamper Iran’snuclear activities, follows in the footsteps of Rosneft (discussed here and here),Elitaliana, H (discussed here and here) and SatCen. The CJEU’s expansionarytendencies with regard to the scope and the available proceedings that can be- 1 -instigated against CFSP acts indeed seems reflective of an evolving realization thatthe entanglement of EU institutions in the coordination and shaping of CFSP mustgo hand in hand with a complete system of legal remedies and procedures. In fact,ever since the Kadi-saga that ultimately brought about the changes to the Treatiesprovided for in Art 275 para 2 TFEU the case law of the CJEU seems to be drivenby the understanding that the CFSP, after all, is part of EU law and thus subjectto the guiding principle that the EU as a whole is a community based on the ruleof law (see e.g. AG Bobek in SatCen). Relying on this overarching constitutionalconception, it seems only forthright that the limitations to the CJEU’s jurisdiction setout in Art 275 TFEU ought to be interpreted narrowly.The ultimate question of whether or not any CFSP matter that touches uponindividual rights is subject to some sort of judicial review by the CJEU, however,has not been answered definitely. So far, the case law merely provides either foran extension of proceedings that can be instigated against CFSP acts that and arereviewable under Art 275 para 2 TFEU – i.e. “restrictive measures against naturalor legal persons” –  (Rosneft and Bank Refah) or the legal review of actions thatwhile adopted within the realm of the CFSP are not covered by Art 275 para 2 TFEUbut are by their substance – in the words of AG Bobek – “normal administrativeacts”. These latter cases (Elitaliana, H, SatCen) relate to internal issues such asprocurement procedures and staff regulations that are in principle indistinguishablefrom acts taken in other, integrated policy fields of the EU.Addressing the elephant in the roomYet, the decisions and actions taken within the CFSP, arguably, go beyond thesetypes of reviewable acts. Schmalenbach in a recent contribution to the Festschriftfür Hubert Isak has indeed pointed out that the EU’s civilian and military overseasmissions established within the context of the CFSP and the Common Security andDefence Policy (CSDP) in particular are problematic. From the point of view of theEU’s accession to the ECHR they, in her words, indeed have to be viewed as the“proverbial elephant in the courtroom during the proceedings of 2/13”. WhiletheECtHR has been ever-expanding its jurisdictional reach against extraterritorialhuman rights violations in the context of military missions (discussed here) theCJEU’s jurisdiction is, despite its expansionary CFSP case law – purportedly – stillinsufficient to adjudicate in these cases. The limited jurisdiction of the CJEU in thesematters thus bodes ill for the prospect of an EU accession to the ECHR, premised onthe concept of a congruent jurisdictional reach.To overcome this comparatively insufficient human rights jurisdiction severalideas have been floated, including the (politically and/or legally) rather hopelesssuggestions of attaching a CFSP specific reservation to the EU’s ECHR accessiontreaty, limiting the ECtHR’s jurisdiction, or, conversely, amending the EU Treatiesthemselves, in order to establish a planetary jurisdiction for the CJEU also within theCFSP. A subtler and at least prima facie more promising idea proposes to create ameachnism for the re-attribution of human rights responsibilities to all or any memberstate. By enshrining such an attribution-clause in a decision establishing an EUoversea missions any respective violation of the ECHR, so the thinking goes, would- 2 -fall on the “willing” member state(s). However, Schmalenbach has rejected any suchcircumventive approach. And undeniably, the argument that any EU-internal clause,establishing that all or any member state are to be held responsible for humanrights violations committed within the context of CDSP overseas missions cannotoverwrite the external rules of attribution as derived from Art 7 ILC Draft Articles onthe Responsibility of International Organizations (see on the issue attribution in thecontext of the ECHR also the ECtHR’s judgment in Jaloud/Netherlands; and thediscussion here), seems impeccable.That said, there is also another way to – possibly – overcome these jurisdictionalincongruences. And indeed, the only thing required is to unravel certain believesabout the very nature of the CFSP.The second part of this blogpost can be found here. I am very grateful to LisaKirchengast for her support and her most valuable input. Zitiervorschlag: Lorin-Johannes Wagner, A deconstruction of the jurisdiction ofthe CJEU in CFSP matters – enlightenment at the end of the tunnel? (Part 1),JuWissBlog Nr. 133/2020 v. 1.12.2020, https://www.juwiss.de/133-2020/.- 3 -

A deconstruction of the jurisdiction of the CJEU in CFSP matters: enlightenment at the end of the tunnel? (Part 1)

A deconstruction of the jurisdictionof the CJEU in CFSP matters –enlightenment at the end of the tunnel?(Part 2)Gastautor 2020-12-01T10:10:48vonLORIN-JOHANNES WAGNERThe first part of this blogpost can be found here.Unraveling constitutional sentiments – a paradox of limitedcompetences and expansionary jurisdictionThe CFSP, as is well known, is a policy field in its own right that is still structuredalong intergovernmental lines. The EU thereby provides the institutional resourcesfor the coordination and formation of a CFSP. In his commentary on Art 23 TEUKaufmann-Bühler, quite pointedly, observed that the structures of the CFSP aresomething akin to a form of “Organleihe” (organs on loan), where member statesdraw on the organs and institutions of the EU, but are ultimately (commonly)responsible for the implementation of the policies. Given this structural set up, it islittle wonder that the CFSP has in general been viewed with the underlying sentimentthat the implementation of the CFSP should not be of direct concern for individuals.If we now address the question of the CJEU’s jurisdiction from the very premise thatthe CFSP is a policy field where member states utilize EU institutions and organsto the benefit of establishing a CFSP, we must not forget that also this utilizationis limited by the principle of conferral. The actions of EU organs and institutionswithin the CFSP thus cannot go beyond the competences set out in the Treaties.The very question of what the competences are that have been conferred to the EUwithin the realm of the CFSP is however notoriously difficult to answer. The Treatyprovisions are vague and the CJEU’s case law has been focused on demarking the- 1 -lines between the integrated external policies and the CFSP – not least because ofthe limited jurisdiction of the CJEU – telling us very little about the vertical dimensionand the limits of the CFSP.Nevertheless, a closer look at the Treaties underscores that although the “Union’scompetence in matters of common foreign and security policy shall cover all areasof foreign policy and all questions relating to the Union’s security, including theprogressive framing of a common defence policy that might lead to a commondefence” which in turn “shall provide the Union with an operational capacity drawingon civilian and military assets”, the EU in operational terms is reliant on “usingcapabilities provided by the Member State”. This, by the way, is also accentuatedby most commentators – including Schmalenbach – who hold that the politicaland strategic control over overseas missions by the EU does not amount to aneffective chain of command and control, allowing for the attribution of human rightsviolations to the EU under the terms of Art 7 ILC Draft Articles on the Responsibilityof International Organizations.The caveat that actions in the context of EU missions are not eo ipso attributable tothe EU, moreover, is also highlighted by the case of EUNVFOR Pirates. Even thoughthe EU’s institutions in this case were entrusted with the exercise of operationaland tactical control, a German administrative court found that the member statesretained a wide margin of discretion at theatre level and thus the capture, detentionand transfer of suspects undertaken by a German navy vessel was attributable toGermany rather than to the EU.In light of this, one might indeed wonder whether the Treaties don’t just actuallyprovide a framework to set up the strategic and operational platform for thedevelopment of a CFSP and CSDP in particular but in fact do not confercompetences to the EU, its institutions and organs to assume operational commandand control at theatre level. If that is the case, then de jure there is no room foran involvement of EU institutions and organs in actions or omissions that couldgive rise to an attribution of human rights violations to the EU under the ECtHR’sJaloud case law (discussed here), requiring “full command” at theatre level. Verymuch in line with the underlying sentiment that the CFSP is not a policy field thatis of direct concern for the individual, the CFSP hence is – constitutionally – to bereconstructed as a policy field in which the EU’s institutions and organs are limited toa set of actions that are in principle not capable of producing human rights violationsattributable to the EU. Or in other words any respective – de facto – involvementof the EU in human rights violations within the context of CSDP overseas missionsis committed outside the scope of the CFSP (strictu sensu). This implies that thejurisdictional limits set out in Art 24 TEU and Art 275 TFEU – which, after all, areto be interpreted restrictively (Bank Refah) – are not applicable either. Rather, theCJEU would be called to adjudicate based on the very logic of Ledra, dictating thatthe EU, its organs and institutions cannot escape the human rights obligation spelledout in the Charter, even if and when they act outside the scope of the Treaties.Paradoxically, the argument that the EU, its institutions and organs are limited intheir competences they can assume within the CFSP thus infers an “extension” of- 2 -the CJEU’s jurisdiction to actions and omissions that relate to the CFSP in a widersense.“Rest assured that we will soon come out at a very real outcome”As a side note, it might be added that any such action or omission of the EU in thewider context of the CFSP must not necessarily be considered ultra vires, since it isquite possible that a decision by which an overseas mission is established providesfor the operational command and control for the EU. Any such provision while fallingoutside the scope of the CFSP strictu sensu could still provide a valid legal basisfor the respective EU institutions and organs, as the member states are entitled,in areas which do not fall under the exclusive competence of the Union, to entrusttasks to the institutions, outside the framework of the Treaties (see i.a. Parliament vCouncil and Commission; Pringle). The CFSP in this sense is to be deconstructedas an intergovernmental and hybrid policy field where member states cannot onlydraw on the EU’s institutions and organs within the framework set out in the Treatiesbut can also utilize the EU’s institutions and organs by way of intergovernmental sideaccords enshrined within CFSP decisions. The differentiation between the formerand the latter in practice, arguably, is not only obfuscated by the very vagueness ofthe aims and competences of the CFSP but also by the fact that without an explicitjurisdictional competence for the CJEU to adjudicate on the vertical dimension ofthe EU’s CFSP competences. Hence, on the forefront the CFSP can be regarded asboth, a policy field within the constitutional context of EU law as well as a policy fieldof international coordination between the member states. In short: EU law and intra-EU international law mired together.That said, as a consequence of the suggested human rights jurisdiction of theCJEU in matters that relate to the utilization of EU institutions and organs beyondthe constitutional scope of the CFSP, the CJEU would also assume an implicitjurisdiction to delineate more clearly on what is part of the EU’s CFSP strictu sensuand what is part of the member states’ CFSP in a wider sense.From the point of view of the EU’s envisioned ECHR-accession, the purportedunderstanding ultimately infers that the seemingly insurmountable obstacle ofincongruent human rights jurisdictions in the field of the CFSP may – to lean onand mixmatch an overcome CFSP-metaphor – vaporize like a drop of pastis pouredon a hot surface: A distant smell of anis may be there but the essence is all gone.Where an act within the context of the CFSP is attributable to the EU under theECHR, there is also an explicit or implicit human rights jurisdiction for the CJEU.Whether any such jurisdiction for the CJEU is adequate to substantially addresshuman rights violations in the CFSP and in the context of the EU’s CDSP civilianand military overseas missions in particular is quite another question – and goingby recent experience in the not all too dissimilar field of the EU’s external bordercontrol through Frontex you may be forgiven to have doubts. What remains withregard to an envisioned ECHR accession, nevertheless, is the surmountableobstacle to ensure that the CJEU’s tentative jurisdiction is effectuated through a priorinvolvement procedure in cases that have proceeded to ECtHR in spite of the CJEUhaving not been able make its mark.- 3 -And while the question of whether or not one is drawn to this epiphany of anessence-less pastis-experience is certainly a question of taste. In jurisdictional termsit is a question of the evolving predilections of the gourmets at Kirchberg.I am very grateful to Lisa Kirchengast for her support and her most valuable input. Zitiervorschlag: Lorin-Johannes Wagner, A deconstruction of the jurisdiction ofthe CJEU in CFSP matters – enlightenment at the end of the tunnel? (Part 2),JuWissBlog Nr. 134/2020 v. 1.12.2020, https://www.juwiss.de/134-2020/.- 4 -

A deconstruction of the jurisdiction of the CJEU in CFSP matters: enlightenment at the end of the tunnel? (Part 2)

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A deconstruction of the jurisdiction of the CJEU in CFSP matters: enlightenment at the end of the tunnel? (Part 1)

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