Op-Ed: “The Evolutionary Role of the Court of Justice in Defence Matters: Administrative or not Administrative, that is the Question”

This Op-Ed is part of the EU Law Live symposium on the EU’s Defence Union, which has featured Op-Eds by Ramses Wessel, Ulla Neegaard, Steven Blockmans, and Stefania Rutigliano. More Op-Eds on this topic will follow soon on EU Law Live.

Once limited to the strict boundaries of executives’ offices, the actions undertaken by the Union and its Member States in the Common Security and Defence Policy (‘CSDP’) are progressively permeating the premises of the salles d’audience ‘tucked away in the fairyland Duchy of Luxembourg’. While this development might be read as one of the direct consequences of the ‘progressive framing of a Common Defence Policy’ that is currently galloping in the EU, the emergence of a defence component in the case law of the Court of Justice of the EU (‘CJEU’; also referred to as ‘the Court’) is worth noticing for two main reasons.

First, from a backward-looking perspective, it can contribute to understanding the role of the CJEU in the CSDP as not being marginal anymore. Then, from a forward-looking perspective, it can provide us with the necessary elements to carefully consider the incoming lines of cases in which the CJEU will be increasingly brought to adjudicate on issues relating to defence, especially after the delivery of its judgment in the KS and KD case (KS and KD v. Council and Others, C-29/22 P and C-44/22 P).

How to Overcome the Jurisdictional Impasse in the Common Foreign and Security Policy (‘CFSP’): The Formulation of a Test

On 10 September 2024, the Court of Justice delivered, on appeal, an eagerly awaited judgment in the KS and KD case, which represents a watershed moment for the CFSP-related litigation. Briefly put (see here, here for a commentary on the case and here and here for a commentary on the Advocate General’s Opinion), this case concerned an action for extra-contractual responsibility, based on Articles 268 and 340(2) TFEU, lodged by Kosovar nationals against the EU Council, the European Commission and the European External Action Service (‘EEAS’). The applicants sought compensation for damages allegedly caused by acts and omissions infringing upon their fundamental rights that took place in the context of the rule of law civilian mission deployed in Kosovo, Eulex Kosovo.

Drawing upon its previous case law, the Court of Justice declared the action admissible despite the rather strict Treaty prescriptions limiting its competence in CFSP matters (Articles 24(1) TEU and Article 275 TFEU). It did so by developing a two-step test (referred here as the ‘KS and KD test’). First, the Court will determine whether the situation at hand falls within the two cases provided for in the relevant Treaty provisions mentioned above: the respect of the mutual non-affectation clause (Article 40 TEU) and the legality review of restrictive measures of individual application, pursuant to Article 263(4) TFEU. If this is not the case, the Court will then assess whether the acts and omissions at issue ‘are not directly linked to the political or strategic choices’ (KS and KD v. Council and Others, C-29/22 P and C-44/22 P, para. 128). When this condition is fulfilled, the Court can establish its jurisdiction to assess their legality or to interpret them (para. 117).

After annulling the decision of the General Court, which at first instance had rejected the action as inadmissible for manifest lack of jurisdiction (KS and KD v. Council and Others, T-771/20), the Court of Justice referred back the case back to the General Court, in accordance with Article 61 of the Statute of the Court of Justice of the European Union. On 26 September 2025, the General Court delivered its order in the renvoi procedure, in which it established its jurisdiction but declared the action inadmissible on other grounds (KS and KD v. Council and Others, T-771/20 RENV).

On the basis of the KS and KD test, acts relating to administrative decisions, such as decisions concerning staff management, will fall within the realm of the Court’s review. The administrative nature of acts, decisions and omissions in the implementation of the CSDP seems therefore one guiding factor for further defining the jurisdictional boundaries of the CJEU in CFSP matters. Yet, the delimitation line between acts directly related to the political or strategic choices, on the one hand, and acts that would indeed fall within the purview of the Court’ s jurisdiction, on the other hand, is far from being settled and will be subject to further elucidations in the case law.

A Wind of Change in the Court’s Docket: The Emergence of Cases Related to Defence Matters

While the role of the Court of Justice in CFSP matters has been traditionally conceived as a marginal one, the institutional developments in European defence might contribute to proving this underlying premise less correct. Adding up to the Court’s adjudicatory power concerning ‘essential security interests’ as provided in Article 346 TFEU (see, for instance, Commission v. Italy, C-337/05; and, Insinööritoimisto InsTiimi, C-615/10), new and emerging cases concerning defence issues seem propelling an evolutionary role of the Union judiciary in this field.

Set in the context of public procurement rules, the General Court delivered on the same day (18 September 2024) two judgments respectively in cases Safran Aircraft Engines v. Commission (T-617/22) and Institut Jožef Stefan v. Commission (T-134/23). Both cases concerned actions based on Article 263 TFEU brought by a coordinator of a consortium of industry partners (respectively, Safran Aircraft Engines, coordinator of the ALPES consortium, and Institut Jožef Stefan, coordinator of the PANDORA consortium) against the decisions of the European Commission rejecting their grant proposal in the context of the European Defence Fund (‘EDF’) – one of the new EU funding programmes within the 2021-2027 Multiannual Financial Framework. Both actions were dismissed by the General Court (see also Fincantieri NexTech v. Commission, T-1191/23, currently pending).

Similarly, the case Airbus Defence and Space and Marlink Events v. EDA (T-105/24) concerns a direct action brought by two private companies against the decisions adopted by the European Defence Agency (‘EDA’) rejecting their proposal, submitted in the context of a tender procedure, for the provision of bands satellite communications and related services. The applicants also claim for damages suffered as a result of the contested decisions. The oral hearing was held on September 3^rd, 2025, and the case is currently pending before the General Court.

Another pending case concerns measures having military and defence implications adopted in the context of the European Peace Facility (‘EPF’). The EPF is an off-budget instrument instituted by the Council, pursuant to Article 41(2) TEU, in light of the need to provide financial contribution to common projects having military or defence implications. The EPF relies on two pillars: the provision of military assistance measures to third countries, regional and international organisations, on the one hand, and the financing of common costs related to ongoing military missions and operations on the other hand (EPF Council Decision (CFSP) 2021/509). It is exactly a decision adopted by its governing body, the Facility Committee, concerning the allocation of amounts to assistance measures for the supply of military support to the Ukrainian Armed Forces that is the object of the action for annulment currently pending before the General Court in the case Hungary v. Council and Comité de la facilité européenne pour la paix (T-457/24).

Furthermore, the interpretative power of the Court in the context of the preliminary ruling procedure, pursuant to Article 267 TFEU, is being progressively unfolded in cases that lie at the intersection between other fields covered by Union law, such as public procurement rules, and defence matters. In Mara (C-769/23), currently pending, the Court of Justice is called upon to provide clarifications on the conditions for the award of a contract for the provision of labour services related, inter alia, to the loading, unloading and transport of munitions and explosives, in light of the principles of establishment and freedom to provide services of Union law. Moreover, in Flugzeugherstellerin (C-538/25), the Federal Administrative Court in Austria seeks guidance by the Court of Justice on the interpretation of the Dual-Use Regulation (EU) 2021/821 examining a prohibition of the export of items relating to aircraft for pilot training to a third country on the ground of human rights considerations. The case is currently pending before the Court of Justice. Finally, two other requests for preliminary ruling are also pending, in which the Consiglio di Stato (Italy) seeks guidance on the interpretation of the Equality Directive 2000/78 and the EU Charter of Fundamental Rights to assess a national law introducing compulsory vaccination for a member of the military (Ministero della Difesa, C-522/24; Ministero della Difesa II, C-386/25).

Concluding Remarks: The Lingering Question of Jurisdiction

As the emerging lines of cases presented above show, a new trajectory is being crafted into the Court’s case law for cases relating, but not limited to, defence issues. The Court of Justice is progressively called upon to rule on direct actions concerning the decisions adopted by novel bodies (such as the EDA) and instruments set up in the framework of the CSDP (for example, the EDF and the EPF), in light of Union budgetary and public procurement rules. In the context of the preliminary ruling procedure, the Court of Justice will be increasingly brought to adjudicate on defence issues interrelated with other matters, such as social policy, the freedom of establishment and to provide services, as well as the Common Commercial Policy (especially, in relation to exports of military goods to third countries).

For cases concerning internal market rules and social policy, the jurisdiction of the CJEU appears to be following the general rule foreseen in Article 19 TEU: namely, to ‘ensure that in the interpretation and application of the Treaties the law is observed’. However, the emergence of matters that lie at the intersection between eminent political choices and administrative matters, as evidenced in the EPF case presented above, raises the question of how to discern effectively those that are directly related to the political or strategic choices from the ones that could indeed fall within the remit of the Court’s jurisdiction. Such a question will leave us on the qui vive until further clarification by the CJEU itself on a case-by-case basis