Opinion of the Advocate General — ECLI:EU:C:2023:901
Date: 2023-11-23
Language of the case: English
Procedure: Appeal - unfounded;Action for damages;Appeal - successful

Summary and consequences 154. To sum up, I consider that Article 24(1) TEU and Article 275 TFEU should be interpreted as not limiting the jurisdiction of the EU Courts to hear an action for damages brought by individuals based on an alleged breach of fundamental rights by any type of CFSP measure. 155. Such an interpretation follows from the constitutional principles of the EU legal order, principally the rule of law, which includes the right to effective judicial protection, and the principle requiring respect for fundamental rights in all EU policies. The constitutional role of the EU Courts that follows from those principles can be limited only exceptionally. That is why Article 24(1) TEU and the first paragraph of Article 275 TFEU must be interpreted narrowly. Such an interpretation, even if it is narrow, cannot run counter to the purpose of the jurisdictional limitation embedded in the Treaties. If that purpose is to protect political choices in the CFSP from interference of the EU Courts, such a purpose cannot justify an interpretation which includes actions for damages caused by alleged breaches of fundamental rights in that jurisdictional limitation. That is so because the breach of fundamental rights cannot be a political choice in the European Union, and the EU Courts must have jurisdiction to ensure that CFSP decisions do not cross ‘red lines’ imposed by fundamental rights. 156. It follows that I propose that the Court uphold the appeals brought by KS and KD and by the Commission that the General Court wrongly interpreted Article 24(1) TEU and Article 275 TFEU. The General Court therefore erred in law when it found that it lacked jurisdiction to hear the action for damages introduced by KS and KD. 157. As a consequence, the order under appeal should be set aside. 158. I do not consider that the state of the proceedings permits the Court to rule on the admissibility and the substance of the action. Those issues were not analysed by the General Court, nor have they been the subject of debate before the Court of Justice. The case should therefore be referred back to the General Court, the costs being reserved. V. Conclusion 159. In the light of the foregoing, I propose that the Court: – set aside the order of the General Court of 10 November 2021, KS and KD v Council and Others (T‑771/20, not published, EU:T:2021:798); – refer the case back to the General Court for judgment on the admissibility and the substance of the action; – reserve the decision on costs. 1 Original language: English. 2 Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX Kosovo (OJ 2008 L 42, p. 92). 3 See Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraphs 153 to 258; ‘Opinion 2/13’), in which the Court explained the reasons why the draft Treaty providing for the European Union’s accession to the ECHR as then proposed was not in conformity with the Treaties. 4 Order of 10 November 2021, KS and KD v Council and Others (T‑771/20, not published, EU:T:2021:798). 5 See, for example, United Nations Peacekeeping, UNMIK Fact Sheet, available at: https://peacekeeping.un.org/en/mission/unmik. For a detailed discussion, see further, for example, Spernbauer, M., EU peacebuilding in Kosovo and Afghanistan: Legality and accountability, Martinus Nijhoff Publishers, Leiden/Boston, 2014, in particular pp. 48 to 83. 6 Post-Lisbon, joint actions as CFSP instruments were transformed into decisions (see Article 25 and Article 28(1) TEU). 7 See Article 42(1) and Article 43(1) TEU. See further, for example, Koutrakos, P., The EU common security and defence policy, Oxford University Press, Oxford, 2013, in particular pp. 101 to 182; Naert, F., ‘European Union common security and defence policy operations’, in Nollkaemper, A., Plakokefalos, I. and Schechinger, J. (eds), The practice of shared responsibility in international law, Cambridge University Press, Cambridge, 2017, p. 669; Blockmans, S. and Koutrakos, P. (eds), Research handbook on the EU’s common and foreign security policy, Edward Elgar, Cheltenham/Northampton, 2018, in particular Part B. 8 Since 2003, the European Union has launched and run over 40 civilian and military missions and operations. Currently, there are 22 ongoing CSDP missions – 13 civilian missions and nine military missions and operations – staffed by around 4 000 persons in Europe, Africa and the Middle East. See further EEAS, Missions and Operations, Working for a stable world and a safer Europe, 31 January 2023, available at: https://www.eeas.europa.eu/eeas/missions-and-operations_en. 9 See Article 20, second paragraph, of Joint Action 2008/124. 10 See Council Decision (CFSP) 2023/1095 of 5 June 2023 amending [Joint Action 2008/124] (OJ 2023 L 146, p. 22). 11 That was provided on the basis of amendments to Joint Action 2008/124 introduced by Council Decision (CFSP) 2018/856 of 8 June 2018 (OJ 2018 L 146, p. 5); see, in particular, Article 1(1) and (2) of that decision. 12 Article 3(d) of Joint Action 2008/124. 13 The Eulex Kosovo Accountability Concept on the establishment of the Human Rights Review Panel, General Secretariat of the Council, Brussels, 29 October 2009. 14 On the work of the HRRP, see, for example, Venice Commission Opinion No 545/2009 on the existing mechanisms to review the compatibility with human rights standards of acts by UNMIK and Eulex in Kosovo, 21 December 2010; HRRP Case-Law Note on principles of human rights accountability of a rule of law mission, available at: https://hrrp.eu/Case-Law_Notes.php; Ryan J.J., ‘Holding to account’, Law Society Gazette, June 2018, available at: https://hrrp.eu/docs/www.lawsociety.ie-globalassets-documents-gazette-gazette-2018-june-2018-gazette.pdf. 15 See, in that regard, HRRP Annual Report 2022, available at: https://hrrp.eu/annual-report.php, point 1.4; HRRP Case-Law Note on the protection of substantive human rights by the Human Rights Review Panel, available at: https://hrrp.eu/Case-Law_Notes.php. 16 See, in that regard, Venice Commission Opinion, cited in footnote 14 to this Opinion, point 66; HRRP Case-Law Note on remedies for human rights violations, available at: https://hrrp.eu/Case-Law_Notes.php. 17 That advisory body was established by UNMIK Regulation No 2006/12 of 23 March 2006 (UNMIK/REG/2006/12). See further, for example, The Human Rights Advisory Panel – History and legacy – Kosovo, 2007-2016 – Final report, 30 June 2016, available at: https://unmik.unmissions.org/sites/default/files/hrap_final_report_final_version_30_june_2016.pdf. 18 See HRRP Decision of 11 November 2015, Case No 2014-32, available at: https://hrrp.eu/jurisprudence.php. 19 See HRRP Decision of 19 October 2016, Case Nos 2014-11 to 2014-17, available at: https://hrrp.eu/jurisprudence.php. 20 By Decisions of 19 October 2016 and 7 March 2017 in relation to KS, and by Decision of 7 March 2017 in relation to KD. 21 More specifically, KS requested that the General Court address a number of orders to the Council, the Commission and the EEAS, such as to provide Eulex Kosovo with a budget of EUR 29 100 000 to enable it to fulfil its executive mandate and to ensure that the Head of Mission takes measures to allow for an effective investigation to be conducted into her husband’s case and all other cases of persons who were killed or went missing after 12 June 1999. 22 KS v Council and Others (T‑840/16, EU:T:2017:938). No appeal was lodged against that order. 23 [2019] EWHC 263 (QB). 24 See Opinion 2/13, paragraph 251. 25 See the Council of Europe’s website on EU accession to the ECHR, available at: https://www.coe.int/en/web/human-rights-intergovernmental-cooperation/accession-of-the-european-union-to-the-european-convention-on-human-rights. 26 See the meeting report of the 18th Meeting of the CDDH Ad Hoc Negotiation Group (‘46 + 1’) on the Accession of the European Union to the [ECHR], 17 March 2023, point 7, available at the website cited in footnote 25 to this Opinion. On the renewed process of negotiations, see, for example, Rangel de Mesquita, M.J., ‘Judicial review of common foreign and security policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR’, Maastricht Journal of European and Comparative Law, Vol. 28(3), 2021, p. 356; Krommendijk, J., ‘EU accession to the ECHR – Completing the complete system of EU remedies?’, 2023, available at: https://ssrn.com/abstract= 4418811. 27 See Steering Committee for Human Rights, Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the [ECHR], including the revised draft accession instruments in appendix, CDDH(2023)R_Extra Addendum, 4 April 2023. 28 Judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753; ‘Elitaliana’). 29 Judgment of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569; ‘H’). 30 Judgment of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793; ‘Bank Refah’). 31 Judgment of 25 March 2021, Carvalho and Others v Parliament and Council (C‑565/19 P, not published, EU:C:2021:252; ‘Carvalho’). 32 For a discussion about the effectiveness of the remedy in damages even if the jurisdictional hurdle is overcome, see Fink, M., ‘The action for damages as a fundamental rights remedy – Holding Frontex liable’, German Law Journal, Vol. 21(3), 2020, p. 532. 33 See, for example, Butler, G., Constitutional law of the EU’s common foreign and security policy – Competence and institutions in external relations, Hart Publishing, Oxford, 2019, pp. 185 to 188; Carrasco, C.M., ‘Human rights in the EU’s common security and defence policy’, in Wouters, J., Nowak, M., Chané, A.-L. and Hachez, N. (eds), The European Union and human rights – Law and policy, Oxford University Press, Oxford, 2020, p. 408, in particular p. 429; Johansen, S.O., The human rights accountability mechanisms of international organizations, Cambridge University Press, Cambridge, 2020, pp. 143 and 144; Poli, S., ‘The right to effective judicial protection with respect to acts imposing restrictive measures and its transformative force for the common foreign and security policy’, Common Market Law Review, Vol. 59(4), 2022, p. 1045, in particular p. 1057. 34 See, for example, Hillion, C., ‘A powerless court? The European Court of Justice and the EU common foreign and security policy’, in Cremona, M. and Thies, A. (eds), The European Court of Justice and external relations law – Constitutional challenges, Hart Publishing, Oxford, 2014, p. 47, in particular pp. 66 to 69; Eckes, C, ‘Common foreign and security policy – The consequences of the Court’s extended jurisdiction’, European Law Journal, Vol. 22(4), 2016, p. 492, in particular pp. 510 and 511. 35 That case-law, therefore, reversed the position which Advocate General Kokott took in her View in Opinion 2/13, that the exclusion of jurisdiction in the CFSP is a rule with a very limited number of exceptions. See View of Advocate General Kokott in Opinion 2/13 (Accession of the European Union to the ECHR), EU:C:2014:2475, in particular points 84 and 89. 36 Judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 70; ‘Mauritius’). 37 See Elitaliana, paragraph 42, and H, paragraph 40. Instead of ‘narrowly’, the Court sometimes uses the term ‘restrictively’ (see, for example, judgment of 25 June 2020, SatCen v KF (C‑14/19 P, EU:C:2020:492, paragraph 66)), and Bank Refah, paragraph 32) or ‘strictly’ (see, for example, judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 74; ‘Rosneft’)). 38 See Rosneft, paragraphs 60 to 81. 39 See Rosneft, paragraph 70. 40 See Rosneft, in particular paragraphs 66 to 69, 76 and 78. 41 See Rosneft, in particular paragraphs 78 and 79 (referring, in particular, to the judgment of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452)). 42 See Bank Refah, paragraphs 26 to 49, in particular paragraph 33. 43 See Bank Refah, paragraphs 31 and 32. 44 See Elitaliana, paragraphs 41 to 50. 45 See H, paragraphs 39 to 60. See also judgment of 25 June 2020, SatCen v KF (C‑14/19 P, EU:C:2020:492, paragraph 66). 46 See Mauritius, paragraphs 69 to 74. 47 Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer (OJ 2011 L 254, p. 1). 48 In a similar case involving an agreement with Tanzania, the Court took a different approach and established its jurisdiction on the basis of the second paragraph of Article 275 TFEU. See judgment of 14 June 2016, Parliament v Council (C‑263/14, EU:C:2016:435, paragraph 42; ‘Tanzania’). 49 Those arguments were raised in support of the first part of KS and KD’s single ground of appeal and the Commission’s first ground of appeal. 50 See H, paragraphs 41 and 58; Rosneft, paragraphs 72 to 75 and 81; and Bank Refah, paragraphs 34 to 36. See further, for example, Hillion, C., ‘The EU external action as mandate to uphold the rule of law outside and inside the Union’, Columbia Journal of European Law, Vol. 29(2), Special Issue 2023, p. 228. 51 See Bank Refah, paragraphs 45 to 47. 52 The CFSP is still in some respects a specific policy. The institutional balance established among the EU institutions is different, with a weaker role for the Parliament and the Commission; the Council mostly decides by unanimity; and legislative acts are excluded. See, for example, Cremona, M., ‘“Effective judicial review is of the essence of the rule of law” – Challenging common foreign and security policy measures before the Court of Justice’, European Papers, Vol. 2(2), 2017, p. 671. 53 See judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 127), and of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 145). 54 Judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 232). See also judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 67). 55 See H, paragraph 41; Rosneft, paragraph 72; and Bank Refah, paragraph 35. 56 See judgment of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166, paragraph 23); see also, more recently, for example, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 281; ‘Kadi I’), and of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 54). 57 See judgment of 27 February 2018 (C‑64/16, EU:C:2018:117, paragraph 32); see also, more recently, for example, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 69). 58 See judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 32). 59 See Kadi I, paragraphs 281 to 284; see also, for example, Opinion 2/13, paragraph 169. 60 Opinion of Advocate General Poiares Maduro in Kadi v Council and Commission (C‑402/05 P, EU:C:2008:11, point 34). 61 Opinion of Advocate General Poiares Maduro in Kadi v Council and Commission (C‑402/05 P, EU:C:2008:11, point 44). 62 See judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701, in particular paragraphs 55 to 60 and 67; ‘Ledra Advertising’). 63 Thus, in paragraphs 35 to 39 of the order under appeal, the General Court considered that the present case is not about staff management, so H does not apply; it is not about public procurement, so Elitaliana does not apply; and it is not about restrictive measures, so Bank Refah does not apply. 64 Those arguments were raised in support of the first and second parts of KS and KD’s single ground of appeal and the Commission’s first and third grounds of appeal. 65 Thus, the Court found that an action for annulment could be brought against the Parliament, even if the Treaty, as it then read, did not provide for such a possibility. 66 Opinion of Advocate General Mancini in Les Verts v Parliament (294/83, not published, EU:C:1985:483, point 7; [1986] ECR 1339, in particular p. 1350). 67 See Carvalho, paragraphs 67 to 79, in particular paragraph 78 (referring to the Court’s findings in the judgments of 25 July 2002, Unión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:462, paragraph 44), and of 1 April 2004, Commission v Jégo-Quéré (C‑263/02 P, EU:C:2004:210, paragraph 36)). 68 Those arguments were raised in support of the third part of KS and KD’s single ground of appeal and the Commission’s fourth ground of appeal. 69 Opinion of Advocate General Bobek in SatCen v KF (C‑14/19 P, EU:C:2020:220, point 69). 70 See order under appeal, paragraph 41. 71 Those arguments were raised in support of the fourth part of KS and KD’s single ground of appeal and the Commission’s second ground of appeal. 72 In that respect, even if, when interpreting legislation, the Court strives to understand the legislative intention and interpret a rule accordingly, given that intention is often not clearly expressed in either the legal act or its legislative history, legislative intent itself also becomes a matter of the Court’s choice. 73 Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, point 52). 74 See, for example, Van Elsuwege, P., ‘Judicial review and the common foreign and security policy – Limits to the gap-filling role of the Court of Justice’, Common Market Law Review, Vol. 58(6), 2021, p. 1731, in particular p. 1739. See also Lonardo, L., ‘The political question doctrine as applied to common foreign and security policy’, European Foreign Affairs Review, Vol. 22(4), 2017, p. 571. 75 The Court has so far not stated whether a sort of ‘political question doctrine’ exists in EU law. Nevertheless, the Court has used the concept of direct effect for a similar purpose. In certain foreign policy issues, especially in the assessment of the compatibility of EU acts with the WTO law, it has refrained from exercising its jurisdiction of judicial review in order to account for the political room for manoeuvre left to parties to that organisation. See, for example, judgment of 12 December 1972, International Fruit Company and Others (21/72 to 24/72, EU:C:1972:115, paragraphs 18 and 27); see also my Opinion in EUIPO v The KaiKai Company Jaeger Wichmann (C‑382/21 P, EU:C:2023:576, in particular points 59 to 64). 76 For the connection between the institutional balance and the principle of democracy, see judgment of 6 September 2017, Slovakia and Hungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 160). 77 It is worth referring again to the judgment in Ledra Advertising, in which the Court considered that it can hear an action for damages even in relation to the involvement of the Commission in the adoption of an act outside of the EU legal framework (see points 87 to 89 of this Opinion). Only in that way is the Court able to control whether the Commission has crossed the ‘red line’ drawn by fundamental rights. 78 See, in that respect, Article 52(1) of the Charter. 79 See, for example, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:776, paragraphs 120 to 126), and Rosneft, paragraphs 146 to 150. 80 See, in that regard, Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, point 46), in which he considered that the reference to ‘these provisions’ in Article 24(1) TEU excludes only the Court’s power to review CFSP acts in relation to provisions of Chapter 2 of Title V of the TEU, and not in relation to any other provisions of the EU Treaty, nor in relation to the provisions of the FEU Treaty. 81 In that respect, I disagree with the position expressed by Advocate General Wathelet in his Opinion in Rosneft (C‑72/15, EU:C:2016:381, point 75) that interpretation is a narrower task than legality review. It is, of course, inevitable that the Court understands (and thus interprets) the rules whose legality it assesses. However, interpretation may be required outside of legality review in order to secure the uniform application of such rules. Interpretation is, to my mind, a broader power, as it allows the Court to make a choice between different possible meanings of the same rule. 82 See Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, in particular points 39 to 76). 83 See Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, point 42). 84 See points 67 and 68 of and footnote 48 to this Opinion. 85 See, in that respect, Cremona, cited in footnote 52 to this Opinion, p. 687, who considered that the reference in the second paragraph of Article 275 TFEU to actions for annulment ‘reflects the Kadi case-law on the need for effective judicial protection where restrictive measures are adopted against individuals’. 86 That was the position of Advocate General Kokott in her View in Opinion 2/13 (Accession of the European Union to the ECHR), EU:C:2014:2475, points 95 and 96. In the present appeals, the French Government takes a similar position. 87 See View of Advocate General Kokott in Opinion 2/13 (Accession of the European Union to the ECHR), EU:C:2014:2475, points 82 to 103. 88 See View of Advocate General Kokott in Opinion 2/13 (Accession of the European Union to the ECHR), EU:C:2014:2475, in particular points 84 and 89. I also note that, in his Opinion in H (EU:C:2016:212, points 89 to 104), Advocate General Wahl considered that jurisdiction fell to the national courts, but his analysis was based on the fact that, save for the specific exceptions expressly laid down in the Treaties, the general rule is that the EU Courts have no jurisdiction in the CFSP (see, in particular, points 53, 66 and 71); he also found that considerations based on the rule of law were irrelevant in those proceedings (see point 49). 89 See, for example, judgments of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 60), and of 15 July 2021, OH (Immunity from jurisdiction) (C‑758/19, EU:C:2021:603, paragraph 22). 90 See, for example, Gutman, K., ‘Action for damages – Court of Justice of the European Union (CJEU)’, in Ruiz Fabri, H. (ed.), Max Planck Encyclopedia of International Procedural Law, Oxford University Press, Oxford, 2019, point 4. 91 See, in that regard, Schermers, H.G. and Waelbroeck, D.F., Judicial protection in the European Union, 6th edition, Kluwer Law International, The Hague/London/New York, 2001, § 1047.