Effective judicial protection in the CFSP after KS and KD

Abstract

This paper critically examines the evolving landscape of effective judicial protection within the European Union’s Common Foreign and Security Policy (CFSP) following the case of KS and KD. While the right to effective judicial protection is enshrined in Article 47 of the Charter of Fundamental Rights and Article 19(1) TEU, the CFSP remains a constitutional anomaly due to explicit jurisdictional carve-outs laid out in Articles 24 TEU and 275 TFEU, which restrict the jurisdiction of the Court of Justice of the European Union (CJE]U). The paper argues that, although the CJEU consistently claims to enhance individual remedies, its case law reveals a primary commitment to preserving the structural coherence and uniformity of EU law, sometimes paradoxically at the expense of legal certainty. From this vantage point, the case law of the Court, culminating in KS and KD, has failed to take seriously the important role that Member State courts could play in ensuring effective judicial protection in the CFSP. Meanwhile, KS and KD may just mark the beginning of a new line of case law, with the CJEU facing pressure to adapt EU non-contractual liability rules so they can function as human rights remedies. Whether the Court will achieve this remains unresolved.