Maastricht Journal of European and Comparative Law

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.

Article 1 EEA establishes a ‘homogeneous European Economic Area’ that entails ‘the free movement of persons’. Nationals of the EEA EFTA States are afforded rights of movement and residence, regardless of whether they are economically active. The CJEU has characterized the legal status of EEA nationals as ‘objectively comparable’ with that of EU citizens. Differences between the rights protection afforded in the EEA EFTA pillar and the EU pillar will constitute discrimination. EU secondary legislation that pursues the aim of the fullest possible realization of the free movement of persons falls within the scope of Article 1 EEA and shall be implemented through Articles 98 and 102 EEA. The detailed regulation provided for by such measures makes Article 1(2)b EEA sufficiently precise and unconditional to be relied upon before courts. It affords EEA EFTA nationals a primary, written and individual right to free movement that is homogeneous with Article 21.1 TFEU.

Recently, the promotion of large-scale deployment of electricity storage technologies has become an essential component of EU policies, as it is deemed crucial to the advancement of the green transition. Photovoltaic and wind generation are intermittent and cannot consistently meet electricity demand; hence, these technologies can store electricity during periods of excess generation and release it into the electricity system when needed, while also contributing to its security and reliability. Many Member States have implemented support schemes targeting these technologies to overcome investment barriers and foster their development. The study investigates these support schemes and the manner in which state aid rules address electricity storage. Then, it analyzes the Italian scheme for the promotion of electricity storage, which is regarded as highly innovative and is hence attracting significant international attention. It will be questioned whether the scheme constitutes state aid, despite being notified and approved as such, or whether it could have been considered as providing compensation for the performance of a service of general economic interest in line with the Altmark conditions.

Both awaited and criticized, the Court of Justice's judgment in Commission v. Malta reflects a broader disquiet surrounding citizenship and its delicate task of sorting the ‘us’ and ‘them’. Amid this disquiet, the judgment delivers a seemingly straightforward message: money cannot ground the bonds of citizenship. The message however rests on shaky foundations. The Court deploys a vast array of concepts but leaves many underused or overstretched. In the haste to conclude that the Maltese investor citizenship scheme is in breach of the Treaties, the judgment ultimately misses two opportunities: first, to engage with the value of agency in the construction of citizenship; and second, to clarify how the relationship between citizenship and mobility has evolved in the penumbra of European citizenship.