Photo credit: Sharon Hahn Darlin, via Wikimedia Commons
Advocate General (‘AG’) Ćapeta delivered her Opinion in Joined Cases C‑29/22 P and C‑44/22, KS and KD, on 23 November 2023. She proposed that individuals may bring an action for damages against the EU before the EU Courts based on alleged breaches of fundamental rights in the implementation of an EU Common Security and Defence Policy (‘CSDP’) mission, Eulex Kosovo, and, related to the investigations that were carried out, during that mission, into the disappearance and killing of the applicants’ family members in 1999 in Pristina (Kosovo).
In this case before the Grand Chamber, the main question is to what extent there is a limitation on the jurisdiction of the EU Courts in the Common Foreign and Security Policy (‘CFSP’), which includes CSDP missions, provided for by provisions of the EU treaties, and whether the Court of Justice of the European Union (CJEU) has jurisdiction to hear actions for damages allegedly caused by breaches of fundamental rights committed in the implementation of the Eulex Kosovo. This was a novel question before the Court.
The case concerns two individuals, KS and KD, who lost their direct family members in 1999 in the aftermath of the Kosovo conflict. Their murders and disappearances remain unsolved. In 2008, Eulex Kosovo was established as a CSDP mission, and one of its tasks was inter alia to investigate such crimes.
This blog post concludes that in sensitive cases like the case of KS and KD involving an EU body, Eulex Kosovo, which carries out executive functions vis-à-vis individuals, it is imperative that EU Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of individuals whose family members' disappearances were not adequately investigated by the European Union.
Human Rights Review Panel to review complaints against Eulex Kosovo
The executive mandate of Eulex Kosovo, acting in part like a state, made it necessary to establish a body to review fundamental rights breaches by the mission. A year after Eulex Kosovo became operational, the Council established a Human Rights Review Panel (‘HRRP’) to review complaints of alleged human rights violations committed by Eulex Kosovo in the performance of its executive mandate. The HRRP’s findings and recommendations were non-binding, and the Panel could not adopt a recommendation of monetary compensation.
Regarding KS, the HRRP determined that Eulex Kosovo had breached her rights under the ECHR by failing to conduct an effective investigation into the disappearance of her husband. Concerning KD, the HRRP concluded that Eulex Kosovo's inquiry into the abduction and killing of her husband and son was inadequate, leading to a violation of her rights under the ECHR.
In both cases, the HRRP made several (non-binding) recommendations to the Head of Mission of Eulex Kosovo. In the follow-up to the implementation of its recommendations, the HRRP essentially declared that the Head of Mission had only in part implemented its recommendations, but nonetheless decided to close the cases.
Decision to establish a review panel lacking the authority to enforce its rulings
Before the EU General Court in Case T-771/20, the case under appeal before the Court of Justice, the applicants contended that their action, brought on account of a breach of fundamental human rights, pertained to matters of a policy or strategic nature. In other words, they were related to defining Eulex Kosovo’s activities, priorities, and resources; as well as to the decision to establish a review panel lacking the authority to enforce its rulings or offer redress for identified breaches.
In the applicants’ view, the breaches of their fundamental rights arose from a lack of prioritisation, or a lack of the necessary resources, or appropriate personnel to enable Eulex Kosovo to carry out its executive mandate and thus fulfil the EU’s legal obligations. The breaches did not arise from malfunctions on the part of Eulex Kosovo, in those particular cases (para. 23 of the Order of the EU General Court in Case T-771/20).
The General Court held that it did not have jurisdiction ‘to review the legality of such acts or omissions, which relate to strategic choices and decisions concerning the mandate of a crisis management mission set up under the CSDP, which is an integral part of the CFSP, nor can it award damages to applicants who claim to have suffered harm as a result of those acts or omissions’ (para. 27 of the Order of the EU General Court).
Effective judicial protection requires review of CFSP decisions
AG Ćapeta in KS and KD, on appeal at the Court of Justice, observed that the inclusion of the CFSP in the EU constitutional framework means that the basic principles of the EU legal order apply to all activities of the EU undertaken within that policy, including in the area of the CFSP. The rule of law in the EU legal order required that the EU Courts ensure the lawfulness of the actions of EU institutions and bodies when they implement the CFSP (para. 83 of the Opinion).
To ensure the effective judicial protection of individuals who claim that their fundamental rights have been infringed by EU institutions or bodies in the exercise of the CFSP, the EU Courts must, in principle, have jurisdiction to hear such claims (para. 84 of the Opinion).
AG Ćapeta found that the provisions in the EU Treaties excluding the CFSP from the jurisdiction of the EU Courts can and should be interpreted as not applying to actions for damages for the alleged breach of fundamental rights resulting from a CFSP measure (para. 93 of the Opinion).
She considered that the EU Courts must interpret the EU Treaties in conformity with the principle of effective judicial protection. In this respect, she relied on the Opinion of AG Bobek in SatCen v KF, (Case C‑14/19 P, EU:C:2020:220), para. 69): ‘…Article 47 of the Charter does not allow the Court to rewrite the Treaties, but it does require the Court to interpret the existing provisions so that they can achieve their full potential to provide judicial protection to anyone concerned by acts of EU institutions and bodies’ (paras. 100 and 101 of the Opinion).
Judicial review of strategic decisions related to EU international missions
AG Ćapeta noted that there are strategic decisions over which the EU Courts lack jurisdiction. She elaborated on this in greater length in her Opinion in Neves 77 Solutions (delivered on the same day). Specifically, the EU Courts could not evaluate whether the EU should establish a mission in a particular part of the world. However, once a political decision to involve the EU in a specific country or conflict is made, the EU Courts must have the authority to scrutinise whether the implementation of such a decision is designed and executed in a manner that interferes disproportionately with human rights (para. 118 of the Opinion).
In respect of the broad approach AG Ćapeta took, she clarified that some of those strategic decisions require more deference to the reasons put by the Council or other responsible body. The availability of funding for a particular mission might affect the rights of individuals whose family members’ disappearances were inadequately investigated. She then pointed out that the EU Courts must weigh such considerations against the broader financial and staff capacity of the EU, which manages missions globally and faces decisions on resource allocation. However, in her view, this did not entirely preclude the jurisdiction of EU Courts; instead, questions of deference and the intensity of scrutiny arise after jurisdiction is established (para. 119 of the Opinion).
Political and strategic decisions can never be in breach of fundamental rights
In situations where political or strategic decisions have the potential to violate fundamental rights, according to AG Ćapeta, the EU Courts should have the capacity to consider an individual's complaint. In this respect, the AG pointed out that the EU Courts are likely to show deference to the Council's reasons when assessing whether these decisions constitute a breach of fundamental rights (para. 120 of the Opinion). In light of her reflections, AG Ćapeta found that EU institutions and bodies are always bound by fundamental rights, and the choice to infringe those rights is not an available political or strategic choice, including in the area of the CFSP. There is a limit imposed on political and strategic decisions, as they can never be in breach of fundamental rights (para. 124 of the Opinion).
The accountability of EU international missions, like CSDP missions, has long been a concern. For the CJEU to decline jurisdiction for an action for damages brought by individuals based on an alleged breach of fundamental rights by the EU on the basis that EU law limits the jurisdiction of the EU Courts is problematic, especially considering this concern of lack of accountability. As a whole therefore, the Opinion of AG Ćapeta is a step in the right direction.
The case of KS and KD was also, previously, before a UK court and it was of the view that it did not have jurisdiction itself, given that in its view, the jurisdiction lay with the EU Court. To leave individuals in these type of cases without a judicial remedy, i.e. a national court and the EU Courts declining jurisdiction, is not acceptable. The essential entitlement to judicial protection for individuals affected by acts of EU institutions and bodies underscores the imperative to assert jurisdiction in these cases, just like the Court did in SatCen v KF.
Especially in sensitive cases like the case of KS and KD involving an EU body, Eulex Kosovo, which performs executive functions vis-à-vis individuals, it is crucial that EU Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of persons whose family members’ disappearances were not successfully investigated. AG Ćapeta correctly finds that only exceptionally, the constitutional role of the EU Courts can be limited.
EU law should be read as requiring respect for fundamental rights in all EU policies, and that it must be adhered to, and subject to judicial review. To assume jurisdiction in KS and KD-like cases ensures, in the words of AG Ćapeta, that CFSP decisions affecting individuals do not cross ‘red lines’ imposed by fundamental rights.
Comments were gratefully received from Prof. Graham Butler who has published an excellent analysis on the Opinion: https://eulawlive.com/op-ed-jurisdiction-of-the-eu-courts-in-the-common-foreign-and-security-policy-reflections-on-the-opinions-of-ag-capeta-in-ks-and-kd-and-neves-77-solutions-by-graham-butler/
*Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP) and takes instructions from individuals challenging a wide range of decisions including EU employment cases to EU and UN sanctions before the EU courts and international bodies.
She was Counsel for KF before the Court of Justice of the European Union in Case C-14/19 P (SatCen v KF) and worked as a senior lawyer for the UN Mission in Kosovo.