credit: Sharon Hahn Darlin, via Wikimedia Commons
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).
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.
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.
Rights Review Panel to review complaints against Eulex Kosovo
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
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.
to establish a review panel lacking the authority to enforce its rulings
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.
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).
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).
judicial protection requires review of CFSP decisions
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).
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).
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).
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).
review of strategic decisions related to EU international missions
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).
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
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
*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.