Bringing a claim of compensation for harm suffered as a result of alleged psychological harassment by the Head of Mission and his Deputy before the EU Courts: Montanari v Eucap Sahel Niger (Case T-371/22)

 

 

 

Antje Kunst*

* Antje Kunst is an international lawyer and barrister of a UK based Chambers, specialised in EU and international public law, human rights and litigation. She is admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters including in staff disputes with EU missions and agencies before the EU Courts. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.

Photo credit: European Commission, via Wikimedia Commons

 

Introduction

On 17 July 2024 in Montanari v Eucap Sahel Niger (Case T-371/22)** the General Court ruled it has jurisdiction regarding a claim for compensation brought by a former staff seconded by a member state to Eucap Sahel Niger, an EU Mission established under the Common Foreign Security Policy (CFSP). This ruling on jurisdiction is  based on an important Grand Chamber judgment H v Council et al,  Case C- 455/14 ECLI:EU:C:2016:569.

Related to the substance of the case the General Court applied by analogy provisions of the EU Staff Regulations  to the dispute. EU Staff Regulations are not applicable to EU staff seconded by a member state to an EU Mission. Applying the EU Staff Regulations in analogy was based on the principle of equal treatment. In this respect the General Court followed its own case law, as established in H v Council in Case T-271/10 RENV II ECLI:EU:T:2020:548.

There is hardly any case law by the General Court regarding actions against EU missions by seconded staff from member states. Consequently, its judgment in Montanari holds significant importance, considering also that the majority of personnel in EU missions are seconded by member states.

The Montanari case represents yet another instance where the General Court had to address multiple jurisdictional and admissibility issues, despite well-established case law on certain aspects. Nonetheless, the General Court's detailed response to the defendant's plea of lack of jurisdiction and the pleas of inadmissibility will undoubtedly be useful for future similar cases brought by seconded staff to EU missions.

The clarifications by the General Court will hopefully dissuade EU missions from raising such pleas in the future, allowing the Court to focus its judicial review on substantive matters, as it regularly does in EU civil service cases brought under Article 270 TFEU. Ultimately, this would allow the EU judiciary to deliver judgments in these types of cases more swiftly, which are EU civil service type staff disputes, resulting in faster dispute resolution for the parties and reduced litigation costs for the applicants.

The Montanari case offers valuable insights into how the General Court will address the merits of similar cases in the future, including which set of rules it will apply and how it will interpret those rules in relation to seconded staff. This may include staff’s fundamental rights under the Charter, the Code of Conduct applicable to all staff serving in EU missions, seconded or contracted, the operational plan of EU missions (‘OPLAN’) and provisions of the EU Staff Regulations (see the reference to these rules in para. 209 of the Judgment).

Further the General Court’s judgment makes clear that it will apply the case-law specific to the EU civil service having similar staff disputes to staff seconded to EU Missions (see para. 224 of the Judgment).

It is highly desirable for the General Court's judicial review process to eventually align closely with its review of cases brought by civil service litigation pursuant to Article 270 TFEU. Such alignment would ensure consistency, predictability, and fairness in the adjudication of disputes involving staff seconded by member states, thereby strengthening the legal framework governing EU missions.

The unsuccessful plea of lack of jurisdiction – no complaint relating to the secondment

Eucap Sahel Niger argued that the General Court does not have jurisdiction to hear the action because the applicant performed the duties of political adviser within the Mission as an expert seconded by the Italian Ministry of Foreign Affairs, in accordance with Article 7(2) of Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger. This provision foresees that it is for the seconding Member State to respond to any complaint relating to the secondment to an EU Mission, and for complainants to bring any action against the Member State. But the applicant’s complaint did not relate to his secondment as such – so the position was similar to that of H, the applicant in the Grand Chamber case H v Council et al, who was a former seconded member of staff of the EU Police Mission in Bosnia who was complaining about her subsequent redeployment after being seconded.

The applicant’s complaint in the case at hand was about alleged psychological harassment by the Mission’s leadership, which is a matter for the EU Courts. The problem was that for staff seconded to EU missions, there was no legal basis for the EU Courts to review staff management acts of EU missions – like Article 270 TFEU, which would otherwise apply to staff under the EU Staff Regulations.

The Grand Chamber Judgment in H v Council et al recognized that H, a prosecutor and her colleagues seconded to EU missions, faced a gap of judicial protection. The Court of Justice rightly decided to step in to close this gap to ensure a “complete system of legal remedies and procedures”. It determined that it has jurisdiction for actions by seconded staff challenging acts of EU missions pursuant to Article 263 TFEU and seeking compensation based on Article 268 and 340 TFEU from them, taking into account its role under Article 19(1) TEU to ensure that ‘the law is observed’ and the fundamental right of effective judicial protection pursuant to Article 47 of the Charter of Fundamental Rights. This guaranteed that the acts of EU missions involving seconded staff do not escape judicial review and ensuring compliance with EU law.

After 2016 no seconded staff to an EU Mission has ever brought a complaint based on the Grand Chamber’s important ruling, Mr. Montanari is the first applicant. However, the landmark ruling of the Grand Chamber has been applied by analogy in subsequent cases (e.g., SatCen v KF, Case C‑14/19 P, ECLI:EU:C:2020:492 and discussed extensively in literature as for example here and here.

In the case at hand the General Court delved into the Mission’s jurisdictional arguments but dismissed them based on the H v Council et al judgment, accepting jurisdiction pursuant to Articles 263, and 268 and 340 TFEU, ‘taking into account Article 19(1) TEU and Article 47 of the Charter’ (see paras. 40-55 of the  Judgment).

Furthermore, it dismissed the Mission’s position that the national courts, here the Italian courts, have jurisdiction.  It agreed with the applicant that his claim before the EU Court was not about his secondment by the Italian Government but about alleged misconduct by the EU mission, alleged psychological harassment by the Mission’s leadership. That is why as in H’s case national courts do not have jurisdiction.

Legal interest for annulment of rejection of request for compensation

The applicant sought under Articles 268 and 340 TFEU compensation for alleged damage resulting from psychological harassment and violations of the right to good administration and the duty to have regard to the welfare of officials.  Equally he sought the annulment of the Mission's decision rejecting his claim for compensation based on Article 263 TFEU.

The General Court clarified, based on its case law, that claims seeking annulment of the refusal of an EU body to grant compensation which a claimant also asserts under Articles 268 TFEU and 340 TFEU, must be dismissed as inadmissible. That is why the Court held that the applicant had not justified a legal interest in seeking, in addition to his claims for compensation, the annulment of the Mission's decision rejecting his claim for compensation. Accordingly, the application for annulment was dismissed as inadmissible. (paras. 58-66 of the Judgment)

Unsuccessful plea of inadmissibility that certain acts are not attributable to the Mission

Mr. Montanari alleged not only that the EU Mission took decisions in relation to him which constituted psychological harassment, but also that the Mission's Civilian Operations Commander (see explanations on his or her role here) had breached the right to good administration and the duty to have regard for the welfare of officials when dealing with his reports of psychological harassment which he had made against the Head and Deputy Head of Mission. The Mission’s response to this was that Mr. Montanari had complained of actions or inactions of the Civil Operations Commander which were not attributable to it.

The General Court rejected this and found that the applicant was right to bring his action for damages against the Mission also regarding the failings of the Civilian Operations Commander.

This is a correct finding as the Civilian Operations Commander exercises command and control of the Mission at the strategic level, and he ensures at theatre level the proper and effective implementation of the Council's decisions and those of the Political and Security Committee (PSC), see also here.

Additionally, the Code of Conduct applicable to seconded staff across EU missions establishes a specific complaint mechanism directed to the Civilian Operations Commander for allegations of misconduct against a Head of Mission and their Deputy. In this context, it can be said that the actions or inactions of the Civilian Operations Commander effectively represent the actions and inactions of the Mission itself. (see paras. 67-87 of the Judgment)

Applicability of EU Staff Regulations to disputes between secondees and EU missions

After having concluded that the claim for compensation was admissible, the General Court went on to review in an elaborate manner the merits of the claim, examining in detail the applicant’s allegations of psychological harassment and the failings of the mission in this regard. (see paras.111-321 of the Judgement)

The General Court emphasized importantly that staff seconded to EU Missions by Member States, although not governed by the EU Staff Regulations pursuant to Article 270 TFEU, are nonetheless subject to the same rules as those applicable to staff seconded by the EU institutions, i.e. the EU Staff Regulations. (para. 117 of the Judgment).  It rightly ruled that the applicant must benefit from the same level and the same rules of protection against psychological harassment.

‘By virtue of the principle of equal treatment, the General Court is required to apply to the applicant's situation, by analogy, the provisions of the Staff Regulations relating to psychological harassment and the functional protection of officials and temporary or contract staff and the case-law based on those provisions’ (Para. 125 of the Judgement)

Also for the duty to have regard for the welfare of officials  the General Court reiterated that

‘the principle of equal treatment requires application by analogy to the case of national staff seconded to a body or agency such as a Mission of certain provisions of the Staff Regulations and the case-law specific to the matter of the European Union civil service, where such staff are placed in a situation comparable to that of staff subject to the Staff Regulations and the difference in situation between the two cannot objectively justify the former not benefiting from the same level and rules of protection as the latter when carrying out their duties in the theatre of operations.’ (Para. 224 of the Judgement)

Following a thorough examination of the facts, reviewing the alleged infringements of Montanari’s rights as set out inter alia in the EU Staff Regulations and the EU Charter (e.g., related to psychological harassment), taking into account the OPLAN and the Code of Conduct in light of its settled case law on EU staff cases, the General Court partially ruled in favour of the applicant. It determined the matter as it would have done in a typical EU civil service case, awarding him €6,000 for non-material damages.

Conclusion

The Montanari Judgment serves as a critical reminder to the highest levels of the European Union (EU) Missions, including the Civilian Operations Commander that there is a court before they can, and should, be held accountable for any actions or inactions that contravene EU law. It highlights the EU judiciary's role in ensuring compliance and accountability within EU Missions.

Moreover, the Montanari Judgment opens the door for the potential judicial review of any staff misconduct by or against a seconded staff member as set out in the Code of Conduct whilst in the performance of their duties in the ‘theatre of operations’. Such case law ensures that EU Missions and their staff operate within the bounds of EU law, reinforcing the principles of transparency and accountability that are fundamental to the effective functioning of EU missions.

**Citations of findings of the General Court are unofficial translations.

 

Only one bite at the cherry: Appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court under the specific remedy to set aside its own default judgment is not permitted: Eulex Kosovo v SC (Case C-785/22 P)

 

 

Antje Kunst*

* Antje Kunst is an international lawyer and barrister of Pavocat Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to the CFSP, including employment cases. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union. She was Counsel for SC in the Eulex Kosovo case.

Photo credit: George Chernilevsky, via Wikimedia Commons

 

Introduction

On 18 January 2024 in Eulex Kosovo v SC (Case C-785/22 P), a case that has been before the EU courts since 2017, the Court of Justice ruled that an appeal against a default judgment of the General Court is inadmissible before the Court of Justice if dual proceedings are brought to both EU courts. In other words, appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court to set aside its own default judgment, is not permitted.

Until now, there was no case law on this precise type of situation, and hence, the Court of Justice’s judgment is highly significant for EU procedural law as a gap in the case law has now been closed.

Previously in October 2022, the General Court issued a default judgment in Case T-242/17 RENV, in favour of SC – a former member of contract staff of the EU Rule of Law Mission in Kosovo (Eulex Kosovo) – following the failure of Eulex Kosovo to file a defence, in this case.  The failure to file a defence occurred in referral proceedings after a successful appeal before the Court of Justice in Case C-730/18 SC v Eulex Kosovo, at a time the case was already ongoing for four years.

In November and December 2022, Eulex Kosovo filed not only for that default judgment of the General Court under Article 166 of the Rules of Procedure of the General Court (RPGC) to be set aside by the General Court itself,  but also brought appeal proceedings against that default judgment of the General Court to the Court of Justice, with the consequence that not only the General Court but also the Court of Justice became seized of the same subject matter. As a result, SC had to defend against not only an opposition in proceedings before the General Court, but also an appeal in proceedings before the Court of Justice.

Default judgment which is the subject of an application to set it aside is not a final decision

The judgment by the Court of Justice in Case C-785/22 P clarifies that it followed from its own Statute that an appeal is admissible only against a final decision of the General Court, with respect to which no other legal remedies remain open (para. 29 of the judgment). It also clarified that ‘[s]ince the exercise of such a remedy has the effect of re-opening the proceedings before the General Court, a default judgment which has been the subject of an application to set it aside cannot be regarded as a final decision, within the meaning of Article 56 of its Statute’. Consequently, it followed that an appeal brought against a default judgment which is the subject of an application to set it aside is inadmissible (paras. 31 and 32 of the judgment).

To have two bites at the cherry is not permitted

In an entirely other case, Advocate General (AG) Emiliou delivered an Opinion on the same day, i.e. in Case C-766/21 P, Parliament v Axa Assurances Luxembourg and Others stating that ‘[p]ermitting the use of two legal remedies in parallel would be tantamount to allowing a defendant in default to have two bites at the cherry – or, to continue with the metaphor, to ride two trains at the same time’. The AG added to allow this would be against the principle of equality of arms asking the correct question: ‘how could it be permissible for a party, which had failed to participate at first instance, to nonetheless have the possibility to pursue one remedy before the General Court, and another remedy before the Court of Justice, both ultimately seeking the same outcome?’ (Para. 108, Opinion of Advocate General Emiliou, Case C‑766/21 P, European Parliament v Axa Assurances Luxembourg SA, Bâloise Assurances Luxembourg SA, La Luxembourgeoise SA, Nationale-Nederlanden Schadeverzekering Maatschappij NV, ECLI:EU:C:2024:63).

The AG in that case made another important point, in that allowing parallel proceedings could cause confusion as to the suitable remedy in a particular case and contribute to the escalation of costs for any party involved in parallel procedures (para. 109 of his Opinion).

Appeal may be admissible against a default judgment if the opposition is late

The Court of Justice in Case C-785/22 P, Eulex Kosovo v SC nonetheless stated that an appeal against a default judgment may be admissible before it if the party has not asked for the General Court to set aside its own judgment within the prescribed time limit of one month pursuant to Article 166 RPGC.

Whilst this was not the situation in Eulex Kosovo v SC, given that a request was made in time by the defendant to the General Court for itself to set aside its default judgment, the Court of Justice did state that if such a situation were to arise, such an appeal would be inadmissible during the time the default judgment is not yet final, but could be regularised, i.e. upon expiry of that time limit (para. 33 of the judgment) ‘if that legal remedy has not be exercised’. Thus, according to the Court of Justice, there is an exception to the rule if the party does not comply with the time limit to file an opposition or does not file an opposition at all, it can appeal the default judgment, once it is final, before the Court of Justice.

Unhealthy choice of legal remedies

To leave a choice of remedies to the defendant, i.e. either to pursue an application to set aside a default judgment based on Article 166 RPGC before the General Court, or an appeal against such a judgment before the Court of Justice, is problematic. It is even more problematic to allow an appeal, when the defendant does not manage to file an opposition within the stipulated time limit of the specific legal remedy under Article 166 RPGC, i.e. one month.

Specific remedy in Article 166 RPGC

In view of the considerations, AG Emiliou, fully aware of the Court’s reasoning in Case C-785/22 P, Eulex Kosovo v SC (see para. 102 of his Opinion), in his Opinion in Case  C‑766/21 P, Parliament v Axa Assurances Luxembourg and Others is entirely correct in stating that a defendant in default cannot lodge an appeal against a first-instance decision because of the requirement to make use of the specific remedy set out in Article 166 RPGC. ‘The two procedural avenues are […] not only alternatives and mutually exclusive, but also not interchangeable. […] to lodge an appeal, a party must fulfil the formal requirements outlined in Article 56 of the Statute, in essence, mandating participation at first instance. […] a defendant in default does not fulfil that criterion. Any attempt to bring a successful appeal would seem futile.’ (See paras. 101, 103 and 104 of the Opinion of AG Emiliou).

An appeal against a default judgment before the Court of Justice will regularly unduly prolong proceedings before the EU courts, with a possible referral back to the General Court due to the incomplete provisional appraisal of the facts, within the procedure for default judgments inaudita altera parte. The consequences for applicants will be an unreasonable length of adjudication of their cases before the CJEU, and of course, escalating their costs.

In order to avoid that defendants more often fail to file a defence in the initial proceedings, despite being requested to do so, the tight time limit of one month of the specific remedy set out in Article 166 RPGC must be adhered to by defendants. There should not be available another train which can be taken later, i.e. an appeal of the default judgment after two months, if the train to the General Court is missed to use the metaphor of AG Emiliou. The Court of Justice is not the correct forum to set aside a default judgment as it is bound to address points of law only. It must be left to the General Court to conduct the adversarial procedure in which the principle audi alteram partem is respected with a complete appraisal of the facts after it has not in the default procedure. (see also paras. 106 and 107 of the Opinion of AG Emiliou).

In the end, the view of Advocate General Emiliou can only be agreed with, in that ‘the procedural avenue permitting a defendant in default to submit an application to have set aside a judgment by default before the General Court is the most appropriate (rectius, the only) course of action that such a party may use in such circumstances.’

There is only one train and if missed, there is no other train.

The Council must swiftly implement a legal framework akin to the CEOS for staff employed in CSDP missions: Reflections on the Jenkinson litigation (Case C-46/22 P)

 

Antje Kunst*

Photo credit: Jan-Tore Egge, via Wikimedia Commons

Introduction

The Court of Justice of the European Union in its judgment in Jenkinson v Council and others ( Case C-46/22 P) of 18 January 2024 dismissed the appeal brought by Mr. Jenkinson, an Irish national, which has implications for thousands of staff serving in international missions of the EU (EU missions) under the EU’s Common Foreign and Security Policy (CFSP) in third states.

Mr. Jenkinson’s defeat before the Court of Justice is not a victory for the defendants: the Council, the Commission, the European External Action Service, and Eulex Kosovo. It is clearly not in their interest that the General Court’s findings in the judgement under appeal, Case T‑602/15 RENV have been upheld. Also, it is a shame that the Court of Justice did not express any views on one of the main claims in this litigation regarding the Council’s failure to introduce a legal regime comparable to the Conditions of Employment of Other Servants of the European Union ("CEOS").

Instead, the Court of Justice held the related arguments were inadmissible or unsubstantiated, without offering any views by passing on the merits of those arguments. This is a missed opportunity, also taking into account that the General Court in Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20), has already made certain findings in this regard.

Applicability of Private International Law (Rome I Regulation)

Jenkinson’s claim was that the EU did not envisage that private international law, i.e., an EU Regulation on the law applicable to contractual obligations (the Rome I Regulation) would be applicable to public law contracts such as those at issue in the case. (para. 79 of the Judgment) The Court of Justice disagreed: ‘since the General Court was seised pursuant to an arbitration clause under Article 272 TFEU’, it was necessary in the absence of any choice of the parties of the applicable national substantive law for the Court to identify it (para. 88 of the Judgment).

The Court of Justice held that the General Court was correct in taking recourse to the Rome I Regulation, to do so. It did not interfere with the General Court’s determination that Irish law was the applicable national substantive law governing Mr. Jenkinson’s claim for a requalification of the series of fixed-term contracts, and that based on Irish law, Mr. Jenkinson’s claim was dismissed (see paras. 123 -163 pp. of the Judgment)

Application of various national laws to staff working for the same employer

Only towards the end of the Judgment the Court of Justice acknowledged that the application of various national laws might, in practice, result for members of Eulex Kosovo’s contract staff being treated differently as regards the rights conferred on them and the obligations imposed on them in a given situation. (para. 262 of the Judgment)

However, it followed from the contractual nature of the relationships that, in the absence of a common European regime applicable to the members of Eulex Kosovo’s staff, the substantive rules intended to supplement the contractual terms are derived from a national law which will have been identified under the rules of private international law. (para. 267 of the Judgment)

It concluded that Mr Jenkinson had failed to show that, in the circumstances of the present case, the application of different substantive rules of national law to the members of Eulex Kosovo’s international staff constituted a breach of the principle of non-discrimination. (para. 271 of the Judgment)

It is surprising that the Court of Justice, unlike the General Court, expressed concerns about that similar disputes of contract staff working in EU missions will be decided differently depending on what the identified national law prescribes but then did not draw any consequences from this.

In this respect Stephan Marquardt, Eszter Orgovan (Counsels for the EEAS in Case C-46/22) and Emmanuelle Raoult (Counsel for Eulex Kosovo in Case C-46/22) stated, albeit in their personal capacity, in a recent academic contribution on the Jenkinson case:

“Having recourse to the applicable national law … carries the risk of diverging outcomes of similar disputes, notably regarding possible claims for damages, where the conditions for such claims may differ from one legislation to the other.”

(See Stephan Marquardt, Eszter Orgovan and Emmanuelle Raoult, in The European Union's Contribution to International Peace and Security, Chapter 6: ‘The Legal and Institutional Nature of EU Civilian Crisis Management Missions in the Light of the Case Law of the Court of Justice of the European Union’).

This is a legitimate concern that the defendants have, and here, was to the detriment of Mr. Jenkinson. Had the national law of another state (e.g., another Member State, or third state) applied, the requalification claim of a series of fixed-term contracts to a permanent contract might have succeeded, and the outcome in a similar action would be different. Not only that, a claim for damages might have succeeded too.

Other similar cases pending

Different outcomes could happen in future case, including pending cases, which are currently stayed and concern similar actions involving members of the international staff of Eulex Kosovo: BL and BM v Council and Others (T‑204/19); QP and Others v Council and Others (T‑183/21); and RI and Others v Council and Others (T‑190/21). In relation to a different mission there is the case of Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20). Different outcomes could also occur in future similar litigation, given that it is likely not Irish law will apply in those cases. This could also lead to irreconcilable judgments.

Claim of failure to adopt a legal regime comparable to the CEOS

In his initial application stretching back to 2017, Mr. Jenkinson sought compensation on the basis that the Council, Commission, and the EEAS failed to comply with their obligations, including to recruit him under a legal regime comparable to the CEOS. 

In his appeal in Case C-46/22 Jenkinson argued that the General Court infringed Article 336 TFEU by holding that the Council had lawfully delegated to the Head of Eulex Kosovo the power to adopt the conditions of employment of international civilian staff. (Article 336 TFEU provides ‘The European Parliament and the Council shall, acting by means of regulations in accordance with the ordinary legislative procedure and after consulting the other institutions concerned, lay down the Staff Regulations of Officials of the European Union and the Conditions of Employment of other servants of the Union.’)

The infringement of Article 336 TFEU also resulted from the fact, that the conditions of employment of international civilian staff were laid down in the contracts between the Head of Eulex Kosovo and the members of that mission's staff, whereas they ought to and should have, instead, been decided by the Council. According to Mr. Jenkinson, it was for the Council to adopt conditions of employment for international civilian staff similar to those contained in the CEOS (para. 65 of the Judgment)

The Court of Justice noted that Mr. Jenkinson, before the General Court, had made submissions regarding the non-existence of a framework similar to the CEOS for hiring staff for those missions. The Court of Justice then took issue with the fact that Mr. Jenkinson had not sought a declaration from the General Court that there had been an infringement of Article 336 TFEU through the failure to adopt, on the basis of that article, a legal regime applicable to employment situations such as that of Mr Jenkinson (para. 71 of the Judgement). Arguably, he should have.

In this context, the Court of Justice rejected Mr. Jenkinson’s complaint in the appeal, that the application of the substantive national law applicable to his contractual relationship constituted an infringement of Article 336 TFEU by reason of the absence of a legal framework adopted on the basis of that article. According to the Court of Justice, because the complaint was not raised before the General Court, it was consequently found both inadmissible and unfounded (paras. 72, 73 and 90 of the Judgment).

This is significant, as any contract staff working in an EU mission in a similar future action could make submissions the Court of Justice considered were missing and seek such declarations.

Plea of Illegality regarding Joint Action 2008/124 establishing the Eulex Kosovo

The Court of Justice also rejected Mr. Jenkinson’s arguments regarding a plea of Illegality pursuant to Article 277 TFEU, specifically that Article 9 (3) and Article 10(3) of Joint Action 2008/124 infringes Article 336 TFEU (paras. 38, 46 and 47 of the Judgment). Those provisions state that Eulex Kosovo may also recruit international civilian staff, as required, on a contractual basis and that the conditions of employment and the rights and obligations of such staff are to be laid down in the contracts between Eulex Kosovo and the members of staff.

The Court of Justice referred to the General Court’s finding, that, even supposing that the appellant had in fact raised a plea of illegality against Joint Action 2008/124, on the basis of Article 277 TFEU, it had to be held that that plea was not substantiated. The Court of Justice did not interfere with the General Court’s finding.

The plea of illegality regarding Joint Action 2008/124 could be further substantiated in future litigation before the General Court in a similar action with the consequence that the Court of Justice would have to examine the alleged unlawfulness and whether there is an infringement of Article 336 TFEU.

National law vs EU staff law resolving the dispute

Mr. Jenkinson further argued that the application of national law by the General Court would be contrary to the principle of non-discrimination in that it entails three instances of unequal treatment:

-          first, Mr. Jenkinson being treated differently to the servants of the European Union whose conditions of employment are to be determined exclusively by the Council and the Parliament pursuant to Article 336 TFEU.

-          second, the servants of the European Union, such as Mr Jenkinson, and national workers governed by private law being treated the same,

-          third, international staff of different nationalities working for the same employer under the same conditions and circumstances being treated in a discriminatory manner.

 (see para.  95 of the Judgment).  

Again, this complaint was rejected by the Court of Justice as a new complaint and rejected as inadmissible as it was not raised before the General Court, and the Court of Justice did not make any findings on the substance in this regard (para. 106 of the Judgment).

Also, this very compelling discrimination argument, in particular regarding international staff working for the same employer (i.e., international staff to whom the EU Staff regulations apply and international staff to whom national law applies), could be raised by applicants in future litigation before the General Court.

Conclusion

The fact that the Court of Justice has not interfered with the General Court applying national substantive law to the dispute is highly problematic for the Council and the EEAS for the reasons set out in the above-mentioned academic publication. In the future therefore, it is wholly unpredictable how the national substantive law would govern other similar disputes for staff in EU missions. This bears considerable financial risks for the defendants. It also bears risks of future litigation in which fundamental rights concerns will be raised, in particular a breach of the principle of equal treatment and the prohibition of discrimination.

The Court of Justice refrained from ruling that the Council’s failure to adopt a legal regime for staff in the EU missions comparable to the CEOS is unlawful which would have obliged the Council to act. Notwithstanding, the ruling shows that it is no longer acceptable to keep the status quo. The financial risks associated with future similar litigation, and the related uncertainties of the outcomes under the case law of Jenkinson, should be compelling reasons for the Council, the decision-maker within the CFSP, to act.  Also, what the Council back in 2008 establishing Eulex Kosovo might not have been able to reach a consensus on might be acceptable,16 years later.

This would be in accordance with the view expressed in an academic article, the President of the General Court, Marc van der Woude recently:

In light of the cases that have appeared before the CJEU in this area, that, “the precise scope of the protection to which employees are entitled in a community of law, still needs to be defined. Preferably, it should be aligned on the level of protection to which EU staff regularly employed by the EU institutions can already aspire.”

(See, M. van der Woude, ‘The European Union’s Engagement With Questions of Strategic Autonomy and Security: Do EU Courts Have a Role to Play?’, (2023), European Foreign Affairs Review, Volume 28, Issue 4, pp. 311–322).

 

*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.

 

Foreign policy sanctions and criminal law harmonisation

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Pierre Blaché, via Wikicommons

*This blog post draws upon and updates research for the 5th edition of EU Justice and Home Affairs Law (OUP, 2023)

Late last year, the EU Member States and the European Parliament agreed upon a Directive to harmonise criminal law as regards EU foreign policy sanctions.  (Update: the Directive was officially adopted in April 2024, and published in the EU Official Journal afterwards) This followed barely a year after the EU Council adopted a decision to extend EU criminal law competence to cover those sanctions. This blog post updates a previous post that discussed both the 2022 decision on competence and the initial Commission proposal for a Directive that has now been agreed in principle.

The Decision extending competence

As noted in the previous post – and discussed in more detail there – the 2022 Decision extending EU competence was the first use of the EU’s power to extend the list of crimes which it had competence to harmonise, as set out in Article 83 of the Treaty on the Functioning of the European Union (TFEU). The previous list of crimes was: ‘terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime’.

That competence involves not only the ‘definition of criminal offences’ but also ‘sanctions’, ie the length of jail terms and/or other sanctions that can be imposed as part of the criminal law. However, these are ‘minimum rules’ – meaning that Member States can add to them as part of their criminal law.

Since the Treaty of Lisbon entered into force in 2009, the EU has adopted Directives regarding most of the ten Eurocrimes, in most cases replacing older forms of EU law adopted before the Treaty of Lisbon entered into force. The exceptions are arms trafficking, corruption, and organized crime – although there are pre-Lisbon EU laws concerning the latter two crimes, a proposal from 2023 to update the law regarding corruption, and other EU legislation concerning firearms that falls short of adopting criminal sanctions for arms trafficking. In any event, as we shall see, some arms trafficking will fall within the scope of the newly agreed EU Directive on criminal law and EU foreign policy sanctions.

The legal context: EU foreign policy sanctions

As discussed in more detail in the previous blog post, there is a body of EU law already in this field, based on the EU’s powers to adopt Decisions on foreign policy sanctions (along with other foreign policy issues) on the basis of Article 29 of the Treaty of European Union (TEU), alongside Article 215 TFEU, which provides for most of those foreign policy sanctions to be paralleled in the form of ordinary EU law (in practice, Regulations).

Although Article 215 provides for qualified majority voting of Member States in the Council, the effective rule is actually unanimity, for that is the rule which applies in the foreign policy provisions of the TEU (with marginal exceptions) to the adoption of the EU foreign policy measures which the Article 215 legislation gives effect to.  The Commission proposed a few years ago to drop unanimity here, but Member States didn’t bite. (They would have to agree unanimously to change the voting rule).

Over the years, there have been a lot of EU foreign policy sanctions and a lot of litigation – mostly direct challenges to the validity of the sanctions measures by the persons or companies (or even the States) concerned by them in the EU General Court. That Court’s judgments can be appealed to the CJEU; and national courts have occasionally asked the CJEU about the interpretation or validity of sanctions decisions too. (Although in general the CJEU has no jurisdiction over EU foreign policy measures – an exception which the Court has been slowly eroding for awhile – as an exception to the exception, the CJEU has its normal jurisdiction over foreign policy sanctions: see Article 275 TFEU).

The details of the Decision

A key point about the Decision extending EU competence is that it applies only to the breach of EU foreign policy sanctions. So the Decision does not give the EU power to harmonize criminal law as regards the breach of purely national foreign policy sanctions. The recently agreed Directive respects this distinction, applying only to EU sanctions.

However, the competence – and the recently agreed Directive – are not limited to breach of EU foreign policy sanctions relating to the Russian invasion of Ukraine, even though that invasion was the reason why the Decision and the Directive were adopted and agreed. In fact, the Commission proposal for the Decision noted that the EU has forty sanctions regimes, applying not only to countries but also ‘targeting proliferation and use of chemical weapons, cyberattacks, human rights violations and terrorism’. (For more details, see the Council website, especially its sanctions map). The anti-terrorism sanctions have been around for awhile, attracting high profile litigation such as cases involving Mr Kadi or Hamas; the human rights sanctions are fairly new, but will sometimes cross over with other sanctions – see, for instance, the sanctions against Putin’s erstwhile allies, the Wagner Group, for human rights breaches (along with links to other EU sanction measures).

In terms of the type of sanctions covered, the preamble to the Decision, as well as the recently agreed Directive, also makes clear that this is broad, applying not only to economic sanctions such as restrictions on trade or financial relations, but to bans on entry into the territory (which are also already given effect to by listing the sanctioned people in the Schengen Information System) and to arms embargoes. 

The agreed Directive

Basic rules

The recently agreed Directive has similarities to other Directives in this area – see, for instance, the Directive on harmonization of criminal law as regards terrorism. But there are also some new elements compared to other Directives; and in any event, it is the EU’s first foray into adopting criminal law relating to EU foreign policy sanctions.

It should be stressed that (as the preamble to the Decision confirms) the Directive will not make breaches of EU foreign policy sanctions criminal for the first time in most Member States. Just as with issues like terrorism and drug trafficking, these were already crimes in most national laws before EU law came along. But the details of the national laws probably differed more before the EU got involved; the point of the EU’s involvement is to harmonize the national laws somewhat. 

Member States will have to apply the Directive one year after its formal adoption (update: the deadline in the published Directive is 20 May 2025). This is longer than the six months proposed by the Commission, but less than the two year deadline usually applicable to Member States applying Directives.  

As noted already, just like the Decision on competence, the Directive will not be limited just to sanctions against Russia, but will apply to EU foreign policy sanctions across the board.

Denmark has an opt out of EU criminal law adopted after the Treaty of Lisbon, while Ireland opted in.

Definition of crimes

The agreed Directive will require Member States to criminalize nine types of breach of EU sanctions, which can be summarised as: making funds available to sanctioned persons; failing to freeze funds of sanctioned persons; enabling the entry or transit of a person covered by an entry ban deriving from EU sanctions (in effect, an immigration law offence that might overlap with the pre-existing EU law on facilitation of illegal entry and residence – itself subject to a recent proposed replacement); entering into transactions with sanctioned entities; trading in goods or services covered by EU sanctions; providing financial services despite an EU law sanction; providing other services banned by sanctions law; circumvention of sanctions; or abusing exceptions to the sanctions laws.

Member States will have an option (not in the Commission proposal) to exempt from criminalisation breaches involving sums less than €10k, although where multiple such minor breaches are linked, Member States must accumulate them so that they might reach the €10k threshold that way. (This threshold does not apply to entry bans, presumably because a financial threshold is irrelevant)

In every case, an intentional breach will have to be criminalized; and in one case (trade in arms or dual use goods subject to sanctions), ‘serious negligence’ resulting in the breach will have to be criminalized too. The Commission had proposed that ‘serious negligence’ should be criminalised in most cases.   

There is a novel clause on the position of lawyers advising those accused of sanctions breaches, which differs somewhat from the Commission’s proposal:

Nothing in paragraph 1 shall be understood as imposing an obligation on legal professionals to report information that they receive from, or obtain on, one of their clients, in the course of ascertaining the legal position of their client, or performing the task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings

There is also an exemption for goods or services provided for persons in need or humanitarian aid, although usually EU sanctions law has its own exceptions for those cases anyway.

Inchoate offences of incitement and (in most cases) attempts are also criminalized, as is aiding and abetting.

Penalties

Member States will have to provide for a maximum possible penalty of at least five years for most of the main offences (not the inchoate offences), and one year for most of the rest of the main offences – subject to a threshold of €100,000 being involved (which can again be satisfied by a linked series of offences). No financial threshold will apply in two cases: breaches of entry bans and trade in sanctioned arms or dual use goods. Furthermore, a three year maximum possible penalty applies to breaches of entry bans.

More generally, as regards the commission of any of the offences defined by the Directive, Member States will be obliged to provide for additional penalties, such as fines, withdrawal of permits, and even (a novelty for EU criminal law) a temporary ban on running for office.

Legal persons are subject to liability, too, and must be subject to penalties such as shutting down the business or withdrawal of its licences. This is a longer list than usually provided for in EU criminal law Directives. The Directive will go further than usual in specifying the amount of possible fines, including basing them on annual turnover (a method previously applied in non-criminal areas of EU law, such as competition law and the GDPR).

Criminal liability must be aggravated in certain cases (such as organized crime, breach of duty by a public official or a professional, obstruction of justice, or prior convictions in this field), and mitigated in others (where the offender ‘flips’ on his or her criminal associates).

Other provisions

Criminal jurisdiction would apply, as usual under EU criminal law Directives, to acts committed on the territory, on a ship or aircraft with a national flag, or by nationals. Member States will have an option to apply liability to habitual residents.

Unusually, there will be rules on limitation periods, ie when Member States would be out of time to bring a prosecution or enforce a sentence. In most cases the limitation period would be five years, with a possibility for derogation to at least three years where the period can be interrupted by specified acts. Previously Member States have only agreed to regulate this issue via EU law as regards fraud against the EU budget (although the agreed Directive on environmental crime contains limitation rules, and the proposal on violence against women would also address this point).

Finally, there would be links to other EU law (besides, obviously, the sanctions laws themselves). The proposal would link up with EU criminal law on money laundering and confiscation (the latter now also being amended), plus there is a novel link to the EU legislation on whistleblowers: that law must also apply to protect those in a company or organization who tip off the authorities about breaches of sanctions. Conversely, there is no proposed amendment of the law on the European Arrest Warrant – even though breach of EU foreign policy sanctions is not on the list of crimes where the dual criminality condition for extradition must be waived. However, prosecution or sentences for sanctions breaches will sometimes fall within areas where dual criminality has to be waived (like terrorism or organized crime); and the dual criminality condition is more likely to be met as a result of the harmonization Directive anyway (it may even be met already, simply by virtue of the foreign policy sanctions measures themselves). 

Comments

It is hard to assess the likely impact of the Directive, for several reasons.

First of all, it is difficult to see what impact the Directive will have in practice without more detail on what changes would be made to national law as a consequence of its adoption. As noted already, while the Directive will bring about some harmonisation, Member States already have some criminal laws on the books in this field.

Secondly, a key issue with criminal law – just as with non-criminal forms of regulation of conduct – is that its effectiveness depends upon the resources and expertise necessary to investigate and bring prosecutions. On this point, the prospect of extending competence to the European Public Prosecutor’s Office (EPPO) to include breaches of EU foreign policy sanctions was raised by the German and French justice ministers. This would be important but has not been raised again since the Directive was proposed. (Extensions of EPPO competence need unanimous agreement of Member States, although some Member States have opted out of the EPPO; the Commission’s proposal to extend its competence to terrorism has not been agreed so far).

An extension of EU competence might be seen as an EU power-grab, but it is notable that it is an exception: over fourteen years after the Lisbon Treaty came into force, it is the only such extension of competence to date. By contrast, as noted above, Member States have not yet agreed an earlier proposal to extend the list of Eurocrimes to cover hate speech and hate crimes, or agreed the proposal to drop unanimous voting for some foreign policy measures; nor have they agreed to drop unanimity in a number of other areas which the Commission proposed years ago.  

It is striking to see some novel points (for EU criminal law) in this Directive: the specific rule on lawyers; the penalty of a ban on running for office (obviously relevant because politicians might be tempted to, and be in a position to, breach the sanctions); the more detailed regulation of financial penalties a la other areas of (non-criminal) EU law; the obstruction of justice point; and the link with the whistleblowers law. It is only the second time that the EU has agreed to regulate limitation periods (although the revised environmental crime directive, also including similar provisions, was agreed essentially simultaneously).

It is also significant to see the singling out of arms trade in breach of sanctions for stricter treatment in several respects, given the EU’s reluctance to regulate this issue as a Eurocrime to date. In the context of foreign policy sanctions, it makes sense to treat the arms trade more seriously, given its more direct contribution to the death and injury which the EU sanctions aim to end.

The extension of competence is also best understood as part of the EU’s response to the Russian invasion of Ukraine – which has also prompted developments as regards the start (in principle) of accession negotiations, the use of EU defence powers, and the first-ever use of the long-dormant temporary protection Directive. By itself, the extension of EU competence and the use of those criminal law powers will not end the invasion – and, as noted already, the agreed Directive applies to other EU sanctions too. Nor does it address the criticism that that those sanctions are too little and too late. But it may make some contribution to the effective implementation of those sanctions which have been established to oppose the invasion, and in any event it sends a political message that the EU is stepping up their enforcement.

The son of a leading businessperson under the Russian sanctions framework before the CJEU: Ongoing relevance of the Tay-Za case law

 

 By Antje Kunst*

Photo credit: Alvegaspar, via Wikicommons media

Many challenges before the EU General Court of listings or re-listings of Russian oligarchs and their immediate family members have been unsuccessful in recent past. 

However, on 29 November 2023, a second de-listing application of Alexander Pumpyanskiy before the EU General Court was successful (Case T‑734/22 Pumpyanskiy v Council, ECLI:EU:T:2023:761 only available in French). This came after a first application was unsuccessful (Case T-291/22 Pumpyanskiy v Council, EU:T:2023:499 only available in French).

Alexander Pumpyanskiy is the son of Dmitry Pumpyanskiy, a Russian billionaire and founder of TMK, a leading producer of pipes for the oil and gas industry in Russia.  Sinara Group is a Russian investment company. Dimitry, the primary target of the designation criteria, and his wife have separate cases before the Court.

Introduction

The basis for Mr. Pumpyanskiy’s initial listing stemmed from his association with his father, Dmitry, through their roles in TMK and the Sinara Group. He was also said to provide support to and benefit from the government of Russia. In his first case the Court held that the positions in the two companies ‘undoubtedly gave him a power of influence and responsibilities within those undertakings’. His family relationship and business ties with his father were sufficient to show that he was associated with him.

Regarding his re-listings in Case T-734/22, after periodic reviews, the EU General Court found that the criterion of association was no longer fulfilled as the applicant had resigned from his positions within the Sinara group and TMK on 9 March 2022 following his initial listing. The only remaining connection to his father was his familial tie, which the Court deemed insufficient for an association in this particular context. Furthermore, the General Court ruled that his former roles were insufficient evidence to demonstrate ongoing ‘support for the government’. The Court only dismissed his request for damages

This ruling from the General Court within the context of Russian sanctions offers valuable insights into the Court's approach in how it will address future challenges of listings or re-listings by immediate family members of leading Russian businesspersons.  It also appears that the Prigozhina case, the case of the mother of the late Chef of the Wagner Group Yevgeni Prigozhin (Case T-212/22, Prigozhina v Council, EU:T:2023:104) continues to be important case law on which the Court will rely regarding applications of immediate family members of Russian oligarchs.

Ceasing of business relationship with primary target

In the case at hand the Court recalled that the applicant's name was initially listed on the grounds that he was related to his father, by reason of their family relationship and their business relationship, i.e., their respective activities within the TMK company and the Sinara group.

The General Court found that since the applicant had ceased his functions on 9 March 2022, i.e., six months before the adoption of the first maintenance measures, one year before the adoption of the second and one and a half years before the adoption of the third, such past functions, could not, by reason of the length of time, justify, on their own, the maintenance of the measures. The past functions alone were deemed insufficient to establish a link of association with his father within the meaning of the criterion (g). (para. 61 of the Judgment)

Mere family relationship insufficient

The General Court determined that, at the time of the applicant's re-listing, there was no evidence of ‘economic or capital ties’ or ‘common interests’ between the applicant and his father which are necessary for fulfilling the criterion of association. Relying on its case law of Tay Za v Council (C-376/10 P, ECLI:EU:C:2012:138) regarding associated family members the listing was effectively grounded solely on the family tie between him and his father which was considered insufficient.

Ongoing relevance of Tay Za case law

The Court accepted the Council’s argument that the sanctions framework was different in the present case than in the Tay Za case related to the regime of Myanmar, however it considered that notwithstanding that, the case-law of Tay Za could be applied mutatis mutandis, to the applicant's situation. (paras. 62 to 64 of the Judgment)

This underscores the ongoing relevance of the Tay Za case law, also within the context of Russian sanctions. It appears to enable sons and daughters who have been listed under the criterion associated with leading businesspersons operating in Russia to be successful with their challenges of their listings or re-listings when resigning from company positions in which the primary sanctioned individual is or was involved.

Without association no risk of circumvention established

The General Court found that the Council had not established a risk of circumvention making the exact same findings as in the Prigozhina case on the ground that there was no association. (see paras. 54, 68-71 of the Judgment)

The General Court like in Prigozhina accepted that there was a ‘non-negligible risk’ that individuals providing support to the government, e.g., leading businesspersons, might exert pressure on individuals associated with them, e.g., their family members, in order to circumvent the effect of the measures imposed on them. (see para. 105 of Prigozhina case) However in the case at hand association to a leading businessperson had not been established.

In the Syrian sanctions framework it was expressly provided for ‘leading businesspersons operating in Syria’ and ‘members of the Assad or Makhlouf families’ and ‘persons associated with them’. The familial connection with these families might be adequate to include individuals' names on the lists using the criterion of 'association with members of these families.' (para. 70 of the Judgment) In Pumpyanskiy's case, the relevant legal framework did not include 'members of certain families' among the listing criteria.

The importance of being up-to-date

As in other sanctions cases in which applicants succeeded with their de-listing applications, the Court made clear how important an up-to-date statement of reasons and up-to-date evidence is. In the court proceedings the Council relied, to justify the re-listings, on matters on which it did not rely when it adopted the contested measures. Regarding the Council’s claim that the applicant continued to be involved in TMK’s foreign subsidiaries after resigning from his company roles the Court ruled that this assertion was absent from the statement of reasons. Some evidence the Council provided post-dated the contested measures and was therefore dismissed. (see paras. 74 and 76, 77 of the Judgment). Other evidence was not regarded as sufficiently concrete and precise.

Material or financial support to the Government of Russia

The Court also found that the Council could not assume, merely because the applicant was chairman and a member of the board of directors of the Sinara group or a member of the board of directors of the TMK company when his name was initially entered on the lists at issue, that he could be classified as a natural person who provides material or financial support to the Government of Russia, even several months after leaving such functions. That would lead to the applicant's situation being frozen and to the periodic review exercise being deprived of any useful effect. (para. 85 of the Judgment)

In line with previous case law the General Court held that the ceasing of exercising functions within a structure did not in itself imply that former functions in companies were irrelevant, as past activities could influence behaviour. However, taken in isolation, a person's former functions could not justify the listing. If the Council intended to rely on past activities, it needed to provide serious and corroborating evidence in support of its view that the applicant maintained links with the companies in question on the date on which the contested measures were adopted. (para. 87 of the Judgment)

Conclusion

In this case the Council failed to convincingly prove that the applicant maintained ties with his father and the companies in question after stepping down from his roles in those companies at the time of his initial listing. In future similar cases, the Council might be able to furnish convincing up-to-date evidence and establish that the family member in question remained connected to the primary targeted individual by for example ‘common interests’.

This case shows that there must a complete cutting off of business ties with the primary targeted individual in order to be successful before the Court and in order not to risk a further listing by the Council on the basis of association.

The Court was correct in requiring an up-to-date statement of reasons and up-to-date evidence to support a continuous involvement of the applicant in TMK, e.g., in TMK’s foreign subsidiaries. The result might be though that the Council in Pumpyanskiy's case decides to update the statement of reasons and use the evidence which post-dated the contested measures in support of a new listing. This might be then the subject of further litigation before the General Court which is already swamped with sanctions cases.

The risk of circumvention might be considered by the Council as significant in many Russian sanctions cases. However, fact remains in the absence of a presumption of circumvention by immediate family members and the Council failing to provide convincing evidence which establishes association and a risk of circumvention, immediate family members of leading businesspersons will be successful before the Court.

What role the Council’s introduction of the new listing criterion of ‘immediate family member of leading Russian businesspersons operating in Russia’ can and will in the future play in all of this remains to be seen. On this point see my previous post: ‘The risk of circumvention of EU sanctions through the immediate family of leading businesspersons and the case law of the CJEU’.

 

*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 for challenging EU and UN sanctions before the EU courts and international bodies.

Judicial control over alleged breaches of fundamental rights in the implementation of Eulex Kosovo and Advocate General’s Ćapeta's Opinion in Joined Cases C-29/22 P and C-44/22 P

 

Antje Kunst*

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).

Introduction

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).

Comment

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.