The CJEU’s Review of Hybrid Acts in an Era of Rising Dissent Toward Non-Majoritarian Institutions

Table of Contents: 1. Introduction – 2. Hybrid acts: The ESMT and EU-Turkey statement – 2.1. The CJEU’s jurisdiction with respect to the ESMT – 2.2. The CJEU’s jurisdiction with respect to the EU-Turkey statement – 3. Thinking about criteria to distinguish between member state and EU institutional action in hybrid agreements 4. Conclusion: questions of judicial competence in times of polarization and dissensus.

Abstract: This article examines how hybrid arrangements – international agreements formally concluded by Member States of the EU but operationally dependent on EU institutions – create accountability gaps when excluded from the jurisdiction of the CJEU. The ESMT and the EU-Turkey Statement illustrate divergent approaches of the CJEU towards its jurisdiction of hybrid acts: in Ledra Advertising and Chrysostomides, the Court accepted jurisdiction over damages claims against EU institutions, while in the EU–Turkey Statement cases, the General Court declined jurisdiction despite clear EU involvement. Building on and expanding existing scholarship, this article develops functional criteria to determine when a hybrid act should fall within, and when it should lie outside, the Court’s jurisdiction. Establishing such criteria is vital in a climate of growing dissensus toward non-majoritarian institutions like the CJEU – a dissensus exacerbated by authoritarian tendencies in some Member States, where judicial independence and EU oversight are increasingly under pressure. This article is part of a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.

Keywords: hybrid acts – EU jurisdiction – judicial remedies – ESMT – EU-Turkey Statement – CFSP.

1.   Introduction

Over the last decade, in response to repeated crises, Member States of the European Union (‘EU’) have often resorted to forms of ‘constitutional creativity’[1] or legal engineering – creating cooperative intergovernmental frameworks outside the Treaties that are closely intertwined with EU institutional structures. Such arrangements, while are formally grounded in international law, often rely on the resources, expertise, or participation of EU institutions and bodies, thereby blurring the boundary between EU Member State and Union action. The European Stability Mechanism Treaty (ESMT), established in response to the euro crisis, exemplifies this hybridity: an international agreement grounded in national constitutional law, yet reliant on the European Commission and the European Central Bank (ECB) for the negotiation, implementation, and oversight of the treaty.[2] The EU-Turkey Statement, concluded to manage migration flows, shows similar features. Though formally presented as an agreement between Member States and Turkey, it depends on EU institutions as well as EU funding mechanisms and coordination structures to operate in practice.[3]

A central problem with these hybrid (or cooperative) Member State arrangements – where national and EU actions become intertwined – is that the role of EU institutions is often obscured and lacks transparency.[4] Frequently, it is unclear who the true authors of the act are. This ambiguity is problematic not only because it makes it harder for citizens to identify who is accountable for a decision – whether international and domestic constitutional actors or EU institutions and bodies. It also poses challenges by circumventing the ordinary system of EU legal remedies, which forms the central focus of this article. Precisely because hybrid acts cannot be clearly attributed exclusively to either the Member States or EU institutions, they often fall between the jurisdictions of national and European courts, leaving individuals and legal entities affected by their implementation without effective judicial recourse.[5]

This article examines the ESMT and the EU-Turkey Statement as two illustrative examples of hybrid acts with ambiguous jurisdiction. Both constitute formally intergovernmental agreements that are nevertheless institutionally and operationally linked to the EU. Yet the Court of Justice of the European Union (CJEU) responded to them in sharply different ways as concerns its own jurisdiction to review them. In the ESMT context, the Court of Justice accepted, with respect to damages actions, to review certain conduct of EU institutions carried out under the framework.[6] By contrast, in the challenge to the EU-Turkey Statement, the General Court declined jurisdiction altogether, treating the measure as solely attributable to Member States.[7] The starkly divergent decisions of the CJEU regarding its jurisdiction in these two cases grounded in similarly hybrid agreements raise a fundamental question: according to what criteria should the CJEU determine whether a Member State hybrid act that extensively relies on EU institutions ought to be attributed exclusively to the Member States – thereby falling outside the Court’s jurisdiction – or jointly to the Member States and the EU institutions – thereby triggering CJEU oversight? 

This question, crystallized by the CJEU’s refusal to review the EU-Turkey Statement in contrast with its decision regarding the ESM Treaty, defines the core inquiry of this article. To develop criteria for this distinction, I draw on and expand scholarship that takes inspiration from the CJEU’s case law on its limited jurisdiction in the Common Foreign and Security Policy (CFSP) to analyse jurisdiction over hybrid acts.[8] While CFSP measures are formally situated within the EU legal order – unlike hybrid arrangements – the Court’s jurisprudence nevertheless provides valuable guidance on the conditions under which Member State acts that make significant use of EU institutions should properly fall within the scope of CJEU review.

Developing such criteria is essential. This is not only because hybrid decision-making mechanisms can be used strategically by Member States to bypass accountability standards and, more importantly, to circumvent the proper legal procedures within the EU framework. Establishing clear criteria is also crucial in a climate of growing dissent toward non-majoritarian institutions – most notably the CJEU – where authoritarian tendencies in some Member States threaten judicial independence and seek to insulate executive action from supranational oversight.[9] By clarifying when hybrid arrangements fall within the scope of EU judicial review, such criteria do not merely close gaps in legal protection; they reaffirm the Union’s foundational commitment to accountability, transparency, and the rule of law at a moment when these values are increasingly contested.[10]

The argument proceeds as follows: Section 2 examines the ESMT as the first example of a hybrid arrangement, illustrating how the CJEU has addressed the question of its jurisdiction over the treaty in light of the involvement of EU institutions. It then turns to the EU-Turkey Statement, highlighting how, despite comparable institutional entanglement with EU institutions, the General Court declined jurisdiction and thereby left a substantial gap in judicial protection. Section 3 draws on the case-law of the CJEU with respect to CFSP matters to develop functional criteria and suggest their adaptation to the hybrid context as a possible framework for determining when hybrid acts should fall within the scope of EU judicial review. Section 4 concludes by showing how these criteria clarify the legal boundaries of hybrid measures and the reach of judicial competence while situating this analysis within the wider debate on the role of non-majoritarian institutions in times of political contestation.

2.   Hybrid acts: The ESMT and EU-Turkey Statement 

Decisions made collectively by the Member States of the EU differ from those adopted by the Council or the European Council, as the former are attributable directly to the Member States themselves, while the latter are decisions made within the framework of the European Union’s institutional system.[11] When acting together outside the EU legal system, Member States choose to align their national policies or jointly commit to a unified course of action in areas where the EU has no formal competence. In such case, Member States act as sovereign states under international law, meaning that the constitutional basis for their action rests entirely in national law. However, as already hinted upon in the introduction, collective actions cannot always be so easily delineated from action of EU institutions and EU law. The reason for this is that at times, decisions taken collectively by the Member States are closely intertwined with the functioning of the EU or directly linked to EU policies and initiatives. This overlap often creates confusion over who is the true author and responsible for a decision. 

Hybrid (or collective) acts of Member States take various forms and exhibit differing degrees of legal and institutional entanglement to EU institutions.[12] At the weakest end of the spectrum of EU institutional entanglement are acts that involve EU institutions only marginally, with any connection to the EU deriving primarily from their political implications. The 2000 Haider Declaration is one such case.[13] When Jörg Haider’s far-right Freedom Party (FPÖ) joined Austria’s governing coalition, the Belgian government addressed a note to the then-Portuguese Presidency of the Council, urging coordinated action by all EU Member States. Acting on their behalf, the Portuguese Presidency of the Council announced diplomatic sanctions against Austria, including the suspension of bilateral political contacts and the downgrading of official communications.[14] Although the declaration was issued under the Council Presidency’s name, its authority came from a collective political agreement among Member States. 

At the opposite end of the hybridity spectrum are agreements that explicitly and substantially incorporate EU law and institutions to achieve their objectives. Prominent examples include the European Stability Mechanism Treaty and the EU-Turkey Statement, both of which will be examined in more detail below to assess the degree of EU institutional involvement and the legal and political implications for the Union, especially with respect to the jurisdiction of the CJEU to review the involvement of EU institutions in these international acts.

2.1.  The CJEU’s jurisdiction with respect to the ESMT

During the European debt crisis, eurozone Member States created the European Stability Mechanism Treaty as a permanent financial firewall for countries in economic distress.[15] Armed with a lending capacity of 700 billion euros, the ESMT can provide substantial financial assistance – yet never without strings attached. Any Member State seeking financial support must agree to far-reaching structural reforms, ensuring that assistance is tied to fiscal and economic discipline. 

Although the ESMT is formally an intergovernmental body with its own legal personality, it operates in close cooperation with EU institutions – most notably the European Commission and ECB.[16] The governance of the ESM rests exclusively with its Board of Governors (finance ministers of the euro area) and Board of Directors (Article 5(f)), yet the Commission and the ECB are far from mere spectators. Under the ESMT, they hold seats at the table as observers (Article 5(3) and 6(2) ESMT) and are given a decisive operational role in designing and policing the conditions attached to the granting of financial assistance. 

The process of granting financial help unfolds as follows. When a Member State requests assistance, the Board of Governors gives, under Article 13(1) ESMT, a mandate to the European Commission – working closely with the ECB – to assess the scale of the problem: Does the instability threaten the euro area’s financial stability? Is the public debt sustainable? What level of support is actually needed? If the answer points toward intervention, Articles 5(6)(g) and 13(3) ESMT assigns the Board of Governors the responsibility to mandate the European Commission and ECB to negotiate a Memorandum of Understanding (MoU) with the requesting state, spelling out in detail the economic reforms it must implement in return for receiving ESM funding. The European Commission then signs the MoU on behalf of the ESM on the basis of Articles 13(4) ESMT, giving formal effect to what is essentially a jointly crafted rescue blueprint. Once agreed, the MoU is not left to gather dust. Article 13(7) ESMT entrusts the European Commission, again in tandem with the ECB and, where possible, the IMF, to monitor compliance with its conditions, producing reports that directly influence the release of each tranche of aid.[17]

In short, while the European Commission and ECB sit outside the ESM’s formal decision-making hierarchy, their fingerprints are on every stage of the process, from initial diagnosis to the enforcement of economic reforms, making them indispensable actors in the ESM’s operations.

The deep involvement of the European Commission and the ECB in the design, negotiation, and enforcement of MoUs has raised significant legal questions.[18] The key issue is who bears legal responsibility if harm results from the implementation of an MoU: the ESM and the Member States as its authors, or the EU acting through its institutions? And would the CJEU have jurisdiction to decide on such matters given the intergovernmental nature of the ESMT? The CJEU was asked to decide on such questions in several cases, such as in Ledra Advertising[19] and Chrysostomides.[20]

Ledra Advertising concerned several Cypriot nationals that incurred substantial financial losses as a direct consequence of measures implemented under the Memorandum of Understanding (MoU) agreed upon by the Cypriot authorities and the European Commission. With their proceedings before the CJEU, the plaintiffs did not only inquiry, under 263 TFEU, the annulment of two instruments they deemed illegal – the MoU and the Eurogroup statement concerned with the restriction of the Cypriot banking sector. They also requested financial compensation under Article 268 and 340 TFEU from the EU institutions. The claimants contended that the true architects of the deposit ‘haircut’ imposed in Cyprus that let to their enormous financial losses (and hence to a violation of their right to property enshrined in Article 17 of the Charter of Fundamental Rights of the EU) was not the ESM but the European Commission and the ECB.[21]

Yet could the CJEU review these claims given that the ESMT is an international agreement the authors of which are Member States? The Court of Justice decided that it could – at least in part – exercise jurisdiction. It refused jurisdiction in the annulment claims under 263 TFEU, arguing that the MoUs adopted under the ESM are not EU acts and therefore could not be subject to annulment review by the CJEU.[22] However, the Court believed that potentially unlawful conduct by the Commission in connection with the adoption of the MoUs could be litigated against before it in damages claims under Article 268 and 340 TFEU. [23] It decided that the European Commission could be explicitly held responsible for its involvement in negotiating and concluding an MoU on behalf of the ESM. As the Commission acts as a as Guardian of the Treaties, and can be asked to 'refrain from signing a memorandum […] whose consistency with EU law it doubts'.[24] The Court hence distinguished between annulment actions under Article 263 TFEU – which did not fall under its jurisdiction – and actions under Article 268 and 340 TFEU – which fell under its jurisdiction,[25] a decision which was praised as an important step toward narrowing the gap in judicial review of hybrid Member State acts.[26]

In the Chrysostomides case, which came up in the same context of Cypriot debt restructuring in the EU related to the ESMT and which also concerned a damage claim under Article 340 TFEU, the CJEU also accepted jurisdiction. However, different from Ledra Advertising, here the institution that was litigated against, namely the Eurogroup, was not held responsible. The Court of Justice decided that the Eurogroup was not an EU institution noting that Eurogroup decisions are given effect through other EU institutions, like the Council, the ECB or the Commission against which legal actions could be brought.[27]

Both cases – Ledra Advertising and Chrysostomides – hence arose from complex legal arrangements adopted by Member States during the financial crisis, often in close coordination with EU institutions. And in both cases, the Court accepted jurisdiction to accept liability claims against EU institutions involved in such acts or at least clarified the conditions under which it would do so. The Court hence seems willing to accept jurisdiction in cases against hybrid Member State agreements that substantially draw from and are interlinked with EU institutions and bodies. However, as clearly emanates from Ledra Advertising and Chrysostomides, the Court only seem willing to do this with respect to damages, and not annulment, actions.

It is against this backdrop that the EU-Turkey Statement (hereinafter ‘the Statement’) and the cases it has generated before the CJEU are especially worth looking at. Notably, although the Statement, like the ESMT, drew heavily on the involvement of EU institutions in its negotiation, conclusion, and implementation, the CJEU reached a markedly different conclusion regarding EU institutional responsibility and hence its own jurisdiction than it did in cases concerning the ESMT. The remaining analysis is an attempt to better understand why the Court of Justice decided the case so differently and to consider, by taking scholarly input and the Court’s most recent case-law into account, how such a failure could be avoided in the future.

2.2.  The CJEU’s jurisdiction with respect to the EU-Turkey Statement

The EU-Turkey Statement was adopted by the Member States of the EU together with Turkey on 18 March 2016.[28] The agreement provided for the return of new irregular migrants from Greece to Turkey in return for financial support for Turkey and a promise to accelerate the customs union and visa liberation program with Turkey. Civil society organizations and human rights NGOs were especially worried about the deal and, throughout the years, published several reports revealing the grave and dehumanizing circumstances under which migrants were sent back to Turkey.[29] Leading academics were especially torn about the legal soundness of the act.[30]

The General Court,[31] and the Court of Justice on appeal,[32] refused to review the legality of the EU-Turkey Statement due to the inadmissibility of the legal action. As the agreement was regarded as emanating from actions of EU Member States acting collectively and not from the engagement of EU institutions, bodies, offices or agencies, the General Court renounced its jurisdiction to review the legality of the act. Yet given the stark involvement of EU institutions in the negotiation, conclusion, and implementation of the Statement, this was a surprising decision.[33]

It is worth at this point to trace the coming about of the Statement and the participation of EU institutions in the process: the EU-Turkey Statement had its roots in the 2015 EU-Turkey ‘Joint Action Plan’, which was negotiated by the European Commission in order for the EU and Turkey to work more closely together in response to the crisis caused by the war in Syria.[34] In many ways, the Joint Action Plan is very similar to the later agreement known as the EU-Turkey Statement, a first version of which was adopted on November 2015 by the Heads of State or Government of the EU with Turkey.[35]

A couple months later, on 7 March 2016, as the situation in Syria worsened and migration pressures increased, the EU Heads of State of Government met together with Turkey adopted a new version of the EU-Turkey Statement.[36] At that meeting – which was held in the institutional context of the European Council – the members agreed that starting from 10 March 2016 onwards, all new irregular migrants arriving in Greece would be returned to Turkey. In return, Turkey was promised between 3 and 6 billion euros paid out through the EU Refugee Facility that was set up by the Commission.[37] Furthermore, a 'one-for-one' resettlement scheme was agreed upon (where one Syrian refugee from Turkey would be relocated to the EU for every irregular migrant sent back to Turkey), and progress was made on updating the customs union and easing visa requirements for Turkish citizens.[38] During the meeting, it was also decided that the European Council President would finalize the details of the arrangement with Turkey ahead of the next European Council meeting.[39]

On 18 March 2016, the revised EU-Turkey Statement (which was the ‘Statement’ ultimately contested before the CJEU) was made public via a Press Release –on the website of the Council and European Council.[40] At the same day, European Commission President Juncker appointed Maarten Verwey (Director-General of the Structural Reform Support Service) as the EU Coordinator to implement the ‘Statement’ in which, in the words of Junker, 'the Commission will coordinate and organize together with Member States and Agencies the necessary support structures to implement it effectively'.[41] Junker clarified that Maarten Verwey, who was at that time already stationed in Greece helping with the day-to-day-management of the refugee crises 'will organize the work and coordinate the dispatching of the 4,000 staff members that will be needed from Greece, Member States, the European Asylum Support Office (EASO) and FRONTEX including workers, interpreters, judges, return officers, and security offers'.[42]

Yet the European Commission was not only central in the implementation of the Statement but also acted as the key anchor for the financial structure established under the Statement through which financial support was sent to Turkey.

To enable the disbursement of funds to Turkey, the Head of State set up an EU Refugee Facility administered by the European Commission. The Facility was created through two legal acts: a Common Understanding between the Member States and the Commission[43], and a formal Commission Decision[44] drawing on the EU’s competences in development cooperation and humanitarian aid.[45] Together, these instruments not only defined the Facility’s funding sources – namely the EU budget and Member State contributions – but also established a Steering Committee composed of one representative from each Member State and two from the Commission.[46] The Committee was tasked with providing strategic guidance on the Facility’s activities, as well as with the ongoing monitoring and assessment of related actions. In certain areas, the Commission was even granted a veto right to ensure that measures taken under the Facility complied with Union budgetary rules. [47]

The actions of EU Member States and EU institutions were hence deeply interconnected across several key dimensions of the Statement. The European Council provided the institutional framework for meetings with Turkish representatives and worked closely with Turkey to finalize the Statement. The European Commission and its staff were not only the prime negotiators of the Joint Action Plan that served as the Statement’s legal foundation. They were equally central in the implementation of the Statement, notably through the appointment of Maarten Verwey as the EU’s coordinating manager in Greece, tasked with overseeing operations on the ground. Also striking is the European Commission’s involvement with respect to the financial dimension of the Statement – not only with respect of the design and administration of the funding mechanisms but also its legal formalization further underscoring the Commission’s pivotal role in the overall execution of the Statement.

Despite this clear involvement of EU institutions and actors in the negotiation and implementation of the EU-Turkey Statement, the General Court ruled that the agreement originated primarily from the Member States acting collectively and therefore fell outside its jurisdiction. The General Court’s reasoning was largely based on formalistic criteria. It focused, for example, on how the meetings between the Heads of State or Government and Turkey were scheduled and publicly communicated – specifically noting that the participants were identified as national leaders, not as representatives of the EU or its institutions.[48] On this basis it ultimately concluded that the Statement ‘cannot be regarded as a measure adopted by the European Council, or, moreover, by any other institution, body, office or agency of the European Union’,[49] but rather as an agreement of Member States, which the General Court does not have the competence to review. 

How can the CJEU’s divergent approach to its own jurisdiction in this case, as compared to Ledra Advertising and Chrysostomides, be explained? In all three instances, EU institutions were deeply involved in the negotiation, conclusion, and implementation of hybrid agreements. Why, then, did the CJEU reach such markedly different conclusions regarding its own jurisdiction in the EU-Turkey Statement cases? One might be tempted to attribute this divergence to the procedural posture of the respective challenges. While the CJEU accepted jurisdiction in the damages claims against EU institutions in the Ledra Advertisingand Chrysostomides judgements, the EU-Turkey Statement was contested through an annulment action, for which the CJEU had explicitly excluded jurisdiction in Ledra Advertising. Yet the divergence between the ESMT case law and the EU–Turkey Statement litigation cannot be satisfactorily explained by the procedural distinction alone.

The deeper difference between the cases lies in how the Court approaches the question of whether the conduct at issue can be attributed to EU institutions at all. In the ESMT context, the Court does not limit itself to scrutinizing the formal status of the MoU as an act of an international organisation. Instead, it looks beyond form to substance: it examines the concrete role of the European Commission and the ECB in negotiating, concluding, and monitoring the instrument, and emphasises that these institutions remain bound by EU law when acting in that capacity. By contrast, in the EU–Turkey Statement cases, the General Court closes off that route at an early stage. It does not reach the question of institutional involvement, because it denies from the outset that there is any EU act and EU-attributable conduct at all. Attribution thus fails on essentially formal grounds relating to authorship and presentation. This approach has been widely criticized in the literature,[50] not least because, by relying on formal criteria alone, the General Court avoids engaging with the more substantive question of when the involvement of EU institutions is sufficiently decisive to justify attribution and, consequently, to trigger the jurisdiction of the CJEU.

3.   Thinking About Criteria to Distinguish Between Member State and EU Institutional Action in Hybrid Agreements

These shortcomings highlight the pressing need for principled criteria to guide the attribution of hybrid acts and to avoid creating a judicial accountability gap. E. Spaventa has sought to develop such criteria, warning that without them the Union and its Member States are effectively handed a ‘blank cheque’ to escape judicial review through hybrid acts. [51] To this end, she persuasively contrasts the General Court’s decision on the EU-Turkey Statement with the CJEU’s case-law in CFSP matters. Although distinct in legal character, she shows how this jurisprudence offers useful benchmarks for determining whether a hybrid act should be attributed exclusively to the Member States, thereby foreclosing judicial review, or jointly to the Member States and EU institutions, thereby triggering the CJEU’s jurisdiction. In what follows, I outline Spaventa’s argument and suggest that its persuasiveness could be reinforced by engaging with more recent CFSP jurisprudence, which crystallizes the lines of jurisprudence she discusses.

Although CFSP acts differ from hybrid cooperative arrangements between Member States in that they are formally situated within the EU legal order, they nonetheless raise jurisdictional questions that are structurally similar to those posed by hybrid acts. This is due to the deliberate curtailment of the CJEU’s jurisdiction in CFSP matters under Article 24(1) TEU (second subparagraph) and Article 275(1) TFEU, which establish a carve-out from the Court’s general jurisdiction under Article 19(1) TEU. That carve-out, to be construed restrictively, is offset only by two narrowly framed exceptions: review of the delimitation between CFSP and other Union competences (Article 40 TEU) and review of restrictive measures directed at individuals or entities (Article 275(2) TFEU). Over the years, the CJEU’s restricted jurisdiction over the CFSP has generated a line of case-law in which the Court has consistently underscored that the carve-out from its general jurisdiction under Article 19(1) TEU must be interpreted narrowly, in light of the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights. 

Spaventa acknowledges that the Court’s teleological reliance on Article 47 of the Charter to expand its limited jurisdiction in CFSP matters is unlikely to be replicated in cases such as the ones concerned with the EU-Turkey Statement. The difference 'rests in the fact that the Court will use Article 47 CFR for a purposive interpretation of its jurisdiction when the Treaties confer some jurisdiction upon it, but it will not rely on that Article to establish jurisdiction where it finds none'.[52] She nonetheless criticizes the General Court’s decision on the ground that it was taken without any substantive criteria guiding the analysis. Referring to CFSP case law (including H v Council[53], SatCen[54], and Elitaliana[55]), she argues that, in determining whether an act emanates from Member States solely or also from EU institutions, the General Court should have considered factors such as: whether an EU institution participated in the formulation of the act; whether the act adopted commits funds from the EU budget; and whether the act triggers action at EU level.[56] In such cases, 'even if one adheres to the artificial separation between the European Council/Council and the collective action of the Member States',[57] the act in question should be classified as one engaging EU institutions to such an extent that the CJEU’s jurisdiction is activated in order to allow EU institutions to be held accountable.

Yet the criteria she proposes remain in need of further refinement. Mere EU institutional participation, the involvement of EU funds, or the triggering of EU-level measures may not, in themselves, suffice to ground jurisdiction with the CJEU. As the Jörg Haider affair illustrates, EU institutions may be involved in a largely passive or procedural capacity, without exercising any decisive authority. What ultimately proves decisive is not simply the fact of institutional participation, budgetary resources, or the subsequent activation of Union measures, but rather the nature of the EU’s institutional, budgetary, or operational involvement-factors capable of transforming a measure that might otherwise appear purely attributable to Member States into one that is, at least in part, attributable also to the Union. The Court’s more recent case law, most notably KS and KD, can deepen Spaventa’s analysis. 

The KS and KD ruling[58] concerned an action for damages against EULEX Kosovo brought by relatives of individuals who disappeared during the 1998–99 conflict. The applicants sought compensation from the Council, Commission, and European External Action Service, alleging EULEX’s failure to conduct diligent investigations into torture, disappearances, and killings.[59]The General Court dismissed the claim for manifest lack of jurisdiction, reasoning that the acts in question were ‘strategic’ and ‘political’ in nature and thus excluded from judicial review under Article 24(1) TEU and Article 275 TFEU.[60]

The Court of Justice took a different approach, establishing a novel two-step test to determine jurisdiction in CFSP matters. [61]First, it must be assessed whether the case falls within one of the two narrow exceptions expressly provided in Article 24(1) TEU and Article 275(2) TFEU (concerning delimitation of competences and restrictive measures). If not, the second step requires examining whether the contested acts directly relate to the European Union’s ‘political and strategic choices’ in the context of the CFSP.[62]Because, so the logic of the Court of Justice, if the contested CFSP acts are directly related to political and strategic choices, it has no jurisdiction to assess their legality.[63] Where they do not, and instead concern matters of ‘day-to-day’ or ‘administrative management’, the CJEU retains jurisdiction.

Applying this framework to the facts of the KS and KD case, the Court of Justice distinguished between strategic/political and administrative/day-to-day measures within the contested EULEX mission. More precisely, it deemed decisions on funding allocations[64] and the mission’s executive mandate[65] as political and strategic and thus immune from the CJEU’s jurisdiction. By contrast, it characterized staffing decisions, legal aid rules, or enforcement procedures as administrative matters and matters of day-to-day management therefore reviewable by the Court.[66]

The KS and KD ruling has been compared to the United States’ ‘political questions doctrine’[67]. I believe this analogy to be of limited accuracy, as it fails to capture the institutional particularities of the CFSP. In the U.S., the doctrine excludes from judicial review matters deemed more appropriately resolved by the executive or legislative branches. Yet in the CFSP context, the distribution of authority is decisively shaped by Member State prerogatives. While the CFSP constitutes an integral part of Union law and policy[68], the Treaty framework nevertheless still preserves Member State control: legislative acts are excluded, unanimity remains the default, the roles of the Parliament and Commission are circumscribed, and the CJEU’s jurisdiction is restricted. Consequently, the Council, acting as the collective of Member States, occupies a central position, ensuring that the ‘political’ and ‘strategic’ core of CFSP reflects to a large part Member State interests in foreign and security policy.

The central issue crystallizes at this point. Drawing on the CFSP case law, Spaventa argues that the attribution of hybrid acts to the Union requires consideration of several indicators such as the participation of EU institutions in negotiations, the commitment of EU financial resources, and the triggering of EU-level measures. The Court of Justice’s reasoning in KS and KD allows us to nuance these criteria by underscoring that the decisive question is not the mere presence of these elements, but their qualitative nature. Where institutional participation, funding, or follow-up actions are political and strategic in character, jurisdiction must be excluded to protect Member State prerogatives. Conversely, where such involvement is administrative or managerial in substance, Union responsibility is engaged, thereby bringing the act within the CJEU’s jurisdiction and ensuring accountability. 

It bears emphasizing at this point that a central element of the EU-Turkey Statement was the commitment of up to six billion euros to support Turkey in managing the return of irregular migrants. Although the financial pledges were made by the Member States, drawing on both national contributions and the EU budget, the responsibility for administering and disbursing these funds was entrusted to the European Commission. The Commission also sat on a Steering Committee tasked with overseeing, monitoring, and evaluating the Facility, and even held a veto power to ensure compliance with EU budgetary rules. The question, therefore, is how to classify this involvement? Spaventa’s criterion of EU budgetary participation, while relevant, is not by itself sufficient to establish the kind of institutional involvement that would automatically trigger CJEU jurisdiction, since decisions on the source and amount of funding can be regarded as ‘political and strategic’ choices falling within the prerogatives of the Member States. This interpretation is reinforced by KS and KD, where the Court held that the allocation of financial resources to a CFSP mission – even when drawn from the EU budget – stemmed from political and strategic choices beyond its jurisdiction.[69] Yet the Commission’s pronounced role in the management and administration of the Facility appears distinct from such strategic determinations. As they were operational responsibilities they could reasonably be construed as falling within the CJEU’s scope of judicial review, thereby opening the possibility of holding the Commission accountable for its conduct in implementing the Statement.

Another aspect that was particularly striking about the EU-Turkey Statement is the European Commission’s active role in implementing and managing – alongside Member States and EU agencies such as Frontex – the return of irregular migrants from Greece to Turkey. Notably, Maartan Verwey was appointed as the EU Coordinator to oversee the operational aspects of the arrangement, including the organization and coordination of approximately 4,000 personnel, ranging from case workers and interpreters to judges, return officers, and security staff. This raises another key question: wouldn’t such involvement by a European Commission representative amount to staff and operational management decisions – precisely the kind of ‘day-to-day management’ actions that, in KS and KD, the Court of Justice distinguished from the ‘political and strategic choices’ of CFSP missions, and thus held to be subject to judicial review? If so, once again, it suggests that certain aspects of implementing the EU-Turkey Statement, even within an intergovernmental framework, could in fact fall within the CJEU’s jurisdiction.

4.   Conclusion: questions of judicial competence in time of polarization and dissensus

This article has shown that the CJEU is prepared, at least in damages actions, to hold EU institutions accountable when they exercise substantive responsibilities within formally hybrid arrangements. In Ledra Advertising and Chrysostomides, the Court recognized, among other things, the Commission’s continuing duty – even outside the EU legal order – to ensure compliance with EU law, thereby confirming that institutional involvement can ground judicial review despite the external legal form of the act. The EU-Turkey Statement presented a parallel situation, marked by extensive EU engagement in negotiation, financing, and implementation. Yet the General Court, adopting a formalistic view of authorship, declined jurisdiction altogether, overlooking the operational role of EU institutions that in the ESM context had sufficed to trigger judicial review. This divergence underscores the absence of clear substantive criteria allowing for the attribution of hybrid acts to EU institutions and, consequently, for defining the scope of judicial protection through the CJEU.

This article built on scholarship that draws from the case law of the CJEU in CFSP matters to address the jurisdictional gap with respect to hybrid acts but expands this approach by incorporating more recent developments in the field. On the basis of the KS and KD judgement, it developed a functional distinction that shields ‘political and strategic’ choices from review while permitting challenges to involvement that can be classified as ‘day-to-day management’ or ‘administrative’ actions. Applied to hybrid arrangements, this framework would exclude review of aspects attributable to Member States’ core political and strategic choices, yet allow scrutiny of budgetary administration, operational coordination, and staff management undertaken by EU institutions within cooperative frameworks. Such a criteria-based method would not only close protection gaps and align judicial oversight with the substantive realities of institutional involvement but also reinforce the legitimacy of judicial review in sensitive policy areas.

This is particularly important in the current political climate. Across Europe, political polarization has hardened into a structural form of societal dissensus-one that unsettles the very foundations of law, public authority, and institutional legitimacy. This dissensus is compounded by the resurgence of authoritarian tendencies in some Member States, where judicial independence is deliberately weakened and EU oversight is openly resisted. In such a climate, specialized non-majoritarian institutions such as courts become especially vulnerable. The CJEU, once regarded as a stabilizing force in the Union’s constitutional order, is now frequently accused of overstepping its role, overriding national democratic choices, and undermining constitutional identities. It has thus become a focal point of political contestation, with its legitimacy and authority under sustained challenge.

In this environment, clarifying the boundary between the ‘political’ and ‘strategic’ core of decision-making and matters subject to judicial oversight is essential. The criteria developed here – rooted in both hybrid acts and CFSP case-law – provide a principled and transparent framework for making that distinction. While they may require adjustment in broader constitutional settings, they offer a valuable analytical starting point for safeguarding the credibility of judicial review while preserving democratic legitimacy. Applied consistently, such an approach can help define the appropriate scope and limits of judicial intervention in politically sensitive contexts and reaffirm the enduring role of non-majoritarian institutions in times of deepening dissensus and authoritarian challenge.