The (Im)possibility of a CFSP “Internal Solution”

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.