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Table of Contents: I. Introduction – II. The main options considered by the negotiators – II.1. Introduction – II.2. A “reattribution mechanism” to ensure that EU Member States are exclusively responsible for CFSP conduct outside the scope of CJEU jurisdiction – II.3. An “interpretative declaration” to extend the CJEU’s jurisdiction over the CFSP – III. Extension by interpretation – without a declaration – as the way forward? – IV. What would work: formally extending the jurisdiction of the CJEU
Abstract: There is one obstacle to the EU’s accession to the ECHR that the negotiators were unable to overcome in the revised DAA: the CJEU’s limited jurisdiction over the Union’s Common Foreign and Security Policy (CFSP). Carving out CFSP cases from the ECtHR’s jurisdiction was taken off the table already during the first round of DAA negotiations back in 2010–2013. During the renegotiations the parties made several attempts at drafting a DAA provision that would otherwise solve the issue. Ultimately, the EU side conceded and promised to resolve it internally. After abandoning the idea of an interpretative declaration that would “clarify” that the CJEU has jurisdiction over human rights violations in the CFSP area, the EU side were hoping that the KS and KD case would magically solve the issue for them. However, while KS and KD does provide some answers, serious questions remain. This could force the EU side to find a proper solution to the CFSP issue.
Keywords: EU accession to the ECHR – Common Foreign and Security Policy (CFSP) – Court of Justice of the European Union (CJEU) – Opinion 2/13 – judicial protection – political questions doctrine.
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European Papers, Vol. 9, 2024, No 2, pp. 783-800
ISSN 2499-8249 - doi: 10.15166/2499-8249/783
* Associate Professor, University of Oslo, s.o.johansen@jus.uio.no.
