European Papers (Nov 2024)
How the Court Tries to Deliver Justice in Common Foreign and Security Policy, Where the Need for Judicial Protection Clashes with the Principles of Conferral and Institutional Balance. Joined Cases C-29/22 P and C-44/22 P KS and KD
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 830-844 | European Forum Insight of 29 November 2024 | (Table of Contents) I. Introduction. - II. The factual and legal context. - III. The judgment of the European Court of Justice. - IV. Analysis. - iv.1. Acrobatic but Defensible Reasoning: the role of Precedent and of the Treaties. - iv.2. What is a political or strategic choice?. - V. Conclusion | (Abstract) KS and KD is a judgment where the European Court of Justice finds it has jurisdiction to hear actions for damages caused by the European Union’s (EU) civilian missions or military operations. It is the first time that this has happened. Although not entirely surprising, the finding of jurisdiction contributes to a growing line of case law that has proved controversial as it is in tension with a literal reading of the Trea-ties, which severely limit the Court’s jurisdiction in this domain. This Insight shows how the case law of the Court on Common Foreign and Security Policy (CFSP) seeks to strike a balance between the princi-ples of conferral and of institutional balance, on the one hand, and of effective judicial protection, on the other hand. The need to find such a balance is made difficult by the peculiar structure of the powers of the Court under the Treaties, which contrasts with the reality of an increased need for judicial protec-tion in the field of foreign policy. The outcome, in KS and KD is a judgment that is in tension with the wording of the Treaties, but which is nonetheless a welcome result as it delivers some justice, and it is in line with the case law on EU CFSP. The Insight also discusses what remains outside the Court’s jurisdic-tion, namely foreign policy decisions “directly relating to political or strategic choices”.
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