What the European Court of Human Rights and the Court of Justice of the European Union Tell Us About the Changing Contours of Judicial Review in Europe
What is law? What is politics? Can we make a solid distinction between the two at all? If so, whose task is it to police their separation? The political question doctrine is definitely one of the most radical manners of addressing these questions.
The doctrine exists in several States under different labels (e.g. atto politico in Italy, actes de gouvernement in France or Acts of State and royal prerogative in the United Kingdom). Broadly defined, it means that courts decline to adjudicate matters they consider too political. In other words, it provides judicial immunity to some decisions due to their alleged political nature. Determining the core nature of an act is hence subject to judicial interpretation. Indeed, the judiciary decides what is a political issue deprived of judicial review, and what is a legal one. Therefore, the political question doctrine enables the judiciary to delineate the limits of its functions based on a distinction between law and politics as two distinct concepts (see Saunier).
Although the political question doctrine raises much controversy in the literature (Henkin ; Melleray), European courts have rarely explicitly addressed the matter. In September 2022, however, the European Court of Human Rights (hereafter ECtHR) addressed the issue in the Grand Chamber case H.F. and Others v France. Similarly, in September 2024, the Grand Chamber of the European Court of Justice (hereafter ECJ) delivered its long-awaited judgment on the topic in KS and KD v Council and Others.
This blogpost offers a comparative analysis of these two cases. Although they differ in many ways, I will focus on whether the two Courts recognize the political question doctrine as legally valid. In doing so, I will briefly touch upon the relevance of non-judicial accountability mechanisms as possible alternative to fully-fledged judicial control. This topic is central to this blog symposium since security and defence belong to the core of high politics and therefore form a suitable area to apply the political question doctrine. While such a doctrine acknowledges the need for a different division of labour between the judiciary and the so-called political powers when political or strategic issues are at stake, the case-law under review might suggest that other accountability avenues should be made available as compensatory mechanisms.
H.F. and Others v France in Strasbourg
In H.F. and Others v France, the Grand Chamber of the ECtHR addressed the French authorities’ refusal to repatriate women of French nationality having previously joined the so-called Islamic State (ISIS) and their children living under dreadful conditions in the Al Hol and Roj camps in north-eastern Syria since the defeat of the terrorist organization. The applicants, who are relatives of these women and children, never received a reply to their request for repatriation from the French authorities. Consequently, they contested the tacit refusal of the authorities before French national courts (see here). However, the judiciary dismissed the case, arguing that it lacked jurisdiction given the théorie des actes de gouvernement, the French version of the political question doctrine (see Hardt and Jadot and Goubault-Larrecq).
The ECtHR was asked whether the French courts should have declared themselves competent to hear the case. In its past (and scarce) case law, the ECtHR had been lenient towards the political question doctrine (see Tauira and 18 Others v France, 1995; Balmer-Schafroth and Others v Switzerland, 1997;Markovic and Others v Italy, 2006). However, this time, it condemned France for failing to provide an effective remedy. Although the Court acknowledged that its task was not ‘to interfere with the institutional balance between the executive and the courts of the respondent State, or to make a general assessment of the situations in which the domestic courts refuse to entertain jurisdiction’, it also stated that ‘the jurisdictional immunity invoked by the domestic courts [. . .] deprived [the applicants] of any possibility of meaningfully challenging the grounds relied upon by those authorities and of verifying that those grounds were not arbitrary’ (§§ 181–182).
Importantly, though, the Court did not require that the case be heard by a judge. Instead, the Strasbourg Court required that the individuals concerned should have had access to some form of independent review capable of ensuring that the decision-making process was surrounded by appropriate safeguards against arbitrariness. In the present case, it remains to be seen whether such alternative review mechanisms exist and can live up to the expectations, something that the French authorities fail to demonstrate, as the latest review by the Committee of Ministers of the Council of Europe indicates.
KS and KD v Council and Others in Luxembourg
KS and KD lost family members in 1999, in the aftermath of the Kosovo conflict. EULEX Kosovo, a civilian EU mission deployed under the intergovernmental Common Security and Defence Policy (CSDP), did not investigate the disappearance and probable killing of the family members, despite its executive mandate to investigate crimes related to the conflict. Therefore, KS and KD brought an action seeking compensation for the damage the EU institutions allegedly caused them by breaching their fundamental rights.
The General Court dismissed KS and KD’s action for non-contractual liability of the EU due to a manifest lack of jurisdiction based on Art. 24(1) TEU and 275(1) TFEU. These two provisions exclude most Common and Foreign Security Policy (CFSP) measures from the Court’s jurisdiction. Their precise meaning and scope have been the subject of a broad interpretation flowing from an array of case-law on the topic (see Van Elsuwege). However, action for damages against the EU outside the context of restrictive measures has never been handled (see Opinion of the Advocate General, § 49).
In her Opinion prior to the judgment on appeal, Advocate General Ćapeta held that the EU courts should have jurisdiction to review any CFSP measure, including a political or strategic one, to ensure its conformity with fundamental rights (see Spaventa). The ECJ did not go as far as the Advocate General suggested. It made clear that in the field of CFSP, ‘the claim that the acts or omissions [. . .] infringe individual’s fundamental rights is not in itself sufficient for the Court [. . .] to declare that it has jurisdiction’ (§ 73). Ruling differently would not only upset the wording, aim and effectiveness of the relevant treaty provisions, but also the principles of conferral and of institutional balance (§§ 72–73; see also Verellen).
Therefore, the Court stated that it lacked jurisdiction to ‘assess the legality of, or interpret, acts or omissions directly related to the conduct, definition or implementation of the CFSP, and especially the CSDP’ (§ 118). More precisely, political or strategic issues related to the definition and implementation of the CFSP fall outside the ECJ’s scope of review (§ 120). For the first time, the Court went beyond its incremental approach in favour of an ever-broader judicial review in the field of CFSP (see Moser and Rittberger) and set limits to its own jurisdiction. Although it could rightly be argued that these limits go beyond what is provided for in the Treaties, this is something the Court was not keen to do before (even in the Neves 77 Solutions case, delivered on the same day, the Court followed its general line of expanding its adjudicatory power).
Furthermore, in response to the Council’s appeal to establish ‘a suitable criterion’ (§ 107), the ECJ embraced a principled approach and offered a two-step method to help delimit its jurisdiction in relation to the CFSP. First, it is necessary to determine whether the situation falls within the ambit of Art. 24(1) TEU and 275(2) TFEU. If so, the ECJ does have jurisdiction. If not, and this is novel, this does not mean that the situation is excluded from the scope of judicial review. A second step has to be taken that requires to ‘assess whether [. . .] the jurisdiction of the Court [. . .] may be based on the fact that the acts and omissions at issue are not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the Union in the context of the CFSP, and in particular the CSDP’ (§§ 115–116).
The question remains: what is behind the words ‘political or strategic choices’? To flesh out its new concept, the Court applied the test it designed to the facts of the case. Decisions on the resources made available to a CFSP mission (§ 126) and decisions to remove the executive mandate of a CFSP mission (§ 137) pertain both to political and strategic choices. Consequently, the ECJ manifestly lacks jurisdiction to hear claims related to them. By contrast, the choice of personnel employed by a CSDP mission (§§ 127–128), the organisational settings pertaining to the Human Rights Review Panel (§§ 131–133) and the provisions for legal aid (see §§ 129–130) constitute acts of day-to-day management rather than non-reviewable political or strategic choices. Consequently, the ECJ overturned the order of the General Court in so far as the latter held that it manifestly lacked jurisdiction on these issues.
Whether such a distinction between political and strategic choices on the one hand and purely administrative or procedural rules on the other hand works in practice remains to be seen on a case-by case approach (see Navasartian Havani).
Ubi jus, ibi remedium?
In the two cases discussed, the ECtHR and the ECJ (partly) dismissed the arguments prohibiting judicial adjudication on the basis of the political nature of the contested actions, acts or omissions under review. However, they left the door open to the political question doctrine as a valid judicial technique for the future.
Without a shadow of a doubt, the two apex Courts in Europe consider that human rights shall be protected across the board, even in unique and highly controversial contexts, such as the repatriation of women involved in jihadism, or in the field of CFSP, where the Member States, in their capacity as masters of the Treaties, have deliberately left more room for maneuver to the Council. In the words of Advocate General Ćapeta, ‘the breach of a fundamental right cannot be a policy choice’ (§ 115).
Nevertheless, such a principle does not confer upon the judiciary a monopoly on assessing respect for human rights. Although it is the main branch in charge of the task, it can be ill-equipped to do so in certain circumstances, especially when high politics-related stakes are involved. Both Courts acknowledged this.
The ECtHR relies on a distinction between judicial immunities, such as the political question doctrine, and respect for human rights. Channels beyond judicial review are also relevant to ensuring respect for human rights on a daily basis. Claims commissions, arbitral tribunals, inquiry committees, or national human rights agencies are cases in point here. The judiciary and these independent accountability mechanisms share responsibility for securing fundamental rights.
In line with its previous case-law (see Butler and Lonardo), the ECJ does not recognize explicitly the existence of a political question doctrine in the EU’s legal order, despite that the Advocate General refers to such a doctrine in her Opinion (§ 113). Nevertheless, when the Court states that depending on the type of decisions whose legality is contested, the ECJ may (or may not) have jurisdiction to review the case (§ 92), it seems to refer to the political question doctrine in all but name (on this, see Sarmiento and Iglesias). References to the ECtHR case law such as H.F. v France and Markovic and Others v Italy also point to the same direction (§ 78).
For the rest, the ECJ does not build on the same rationale as the ECtHR in that it does not make the lack of judicial review conditional on the availability of other accountability mechanisms. It does discuss the existence of the Human Rights Review Panel set up under the EULEX Kosovo mission. However, the Court did so due to the specific facts of the case and did not address how such alternative review mechanisms could work as compensatory mechanisms in the absence of ECJ jurisdiction.
Yet, the ECJ does not operate in an accountability vacuum. Although often disregarded, a range of alternative review mechanisms exists within the CFSP framework. There can be little doubt that they are no substitute for a thorough review by the ECJ (see e.g. Moser and Johansen, 205–206). Notwithstanding, as the ECtHR invites, they could be considered as complementary, provided that they offer enough guarantees to the claimants in terms of independence and impartiality, available remedies and means of enforcement. As the ECJ has referred the case back to the General Court, there is still hope that the latter will shed some light on the minimum standards required in this respect. It would be a perfect way to reconcile the requirements pertaining to the specificities of the EU judicial order, the wording of the Treaties regarding the scope of judicial review in the CFSP, and the promise that the EU accede to the ECHR – a consideration that turned out to be prominent during the hearings before the ECJ (see Breitler; Butler).
