62022CJ0029_RES
Joined Cases C‑29/22 P and C‑44/22 P
KSandKD
v
Council of the European Union and Others
Judgment of the Court (Grand Chamber) of 10 September 2024
(Appeal – Common foreign and security policy (CFSP) – Joint Action 2008/124/CFSP – European Union Rule of Law Mission in Kosovo (Eulex Kosovo) – Action for damages – Damage allegedly suffered as a result of various acts and omissions by the Council of the European Union, the European Commission and the European External Action Service (EEAS) in the implementation of that joint action – Insufficient investigation of the torture, disappearance and killing of persons – Jurisdiction of the Court of Justice of the European Union to rule on that action – Last sentence of the second subparagraph of Article 24(1) TEU – Article 275 TFEU)
Common foreign and security policy – Jurisdiction of the EU judicature – Actions for damages – Actions brought concerning acts or omissions falling within the scope of that policy – Actions seeking neither to monitor compliance with Article 40 TEU nor the review of restrictive measures against natural or legal persons – Not included – Compatibility of that limitation of the Court’s jurisdiction with Article 47 of the Charter of Fundamental Rights, Articles 6 and 13 of the European Convention on Human Rights, Article 6(2) TEU and Articles 268 and 340 TFEU
(Charter of Fundamental Rights of the European Union, Arts 47, 51(1) and 52(7); Arts 2, 3(5), 5(1) and (2), 6, 13(2), 19, 21, 23, 24(1) and 40 TEU; Arts 268, 275, second para., 340 and 344 TFEU; Council Joint Action 2008/124)
(see paragraphs 62, 63, 66-73, 77-82, 85-87, 90-92, 94)
Common foreign and security policy – Jurisdiction of the EU judicature – Actions for damages – Actions brought concerning acts or omissions falling within the scope of that policy – Actions seeking neither to monitor compliance with Article 40 TEU nor the review of restrictive measures against natural or legal persons – Acts or omissions at issue not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the Union in the context of the common foreign and security policy – Included – Acts or omissions at issue directly related to such choices – Not included
(Arts 24 to 26, 28, 29, 37, 38, 42 and 43 TEU; Art. 275 TFEU; Council Joint Action 2008/124)
(see paragraphs 115-119)
Common foreign and security policy – Jurisdiction of the EU judicature – Actions for damages – Actions brought concerning acts or omissions falling within the scope of that policy – Actions seeking neither to monitor compliance with Article 40 TEU nor the review of restrictive measures against natural or legal persons – Acts or omissions at issue directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the Union in the context of the common foreign and security policy – Resources made available to an EU mission – Decision to remove the executive mandate of such a mission – Not included
(Arts 24(1), second subpara., 28(1) and 43(2) TEU; Art. 275, first para., TFEU; Council Joint Action 2008/124, Art. 3(d); Council Decision (CFSP) 2018/856)
(see paragraphs 120, 121, 124, 126, 136, 137)
Common foreign and security policy – Jurisdiction of the EU judicature – Actions for damages – Actions brought concerning acts or omissions falling within the scope of that policy – Actions seeking neither to monitor compliance with Article 40 TEU nor the review of restrictive measures against natural or legal persons – Acts or omissions at issue not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the Union – Lack of appropriate personnel of an EU mission – Breaches of human rights committed by that mission – Panel examining complaints of those human rights breaches – Absence of procedural provisions for legal aid – Absence of enforcement powers – Lack of individual measures relating to the particular situations of the applicants – Included
(Art. 24(1), second subpara., TEU; Art. 275, second para., TFEU; Council Joint Action 2008/124, Arts 1 and 2; Decision 2014/349/CFSP, Art. 15a)
(see paragraphs 120, 121, 124, 127, 128, 130, 131, 133-135, 137)
Appeal – Appeal held to be well founded in part – Judgment to be given on the substance by the appeal court – Condition – Whether the state of the proceedings permits final judgment to be given – Absence – Referral of the case back to the General Court – Definitive review of the jurisdiction to hear and determine the action by the appeal court)
(Statute of the Court of Justice, Art. 61, first para.)
(see paragraphs 159, 163-166)
Résumé
By setting aside the order in KS and KD v Council and Others of the General Court (
1
) (‘the order under appeal’), in so far as that court declared that it manifestly lacked jurisdiction to hear and determine the action brought by KS and KD on the ground that it related to political or strategic choices made in the context of the common foreign and security policy (CFSP), (
2
) the Court of Justice, sitting as the Grand Chamber, clarifies the scope of the limitation of the jurisdiction of the Courts of the European Union in relation to the CFSP, laid down in the last sentence of the second subparagraph of Article 24(1) TEU (
3
) and the first paragraph of Article 275 TFEU. (
4
) KS and KD are close family members of persons tortured, disappeared or killed in Kosovo in 1999, during the conflict that took place in that country. In 2008, by Joint Action 2008/124, (
5
) the European Union established a Rule of Law Mission in that third country, known as Eulex Kosovo, responsible, inter alia, for investigating such crimes. In 2009, on the basis of that joint action, the European Union established the Human Rights Review Panel (‘the review panel’), with responsibility, for its part, for examining complaints of human rights breaches committed by Eulex Kosovo in the implementation of its mandate.
Following complaints lodged by KS and KD, the review panel concluded, in November 2015 and October 2016, that several fundamental rights protected by the European Convention on Human Rights (‘ECHR’) had been infringed. (
6
) In March 2017, the review panel decided to close the cases concerned, while noting, in each case, only partial implementation, by the Head of Eulex Kosovo, of the recommendations which it had addressed to him.
In December 2017, by the order KS v Council and Others, (
7
) the General Court dismissed, on the ground that it manifestly lacked jurisdiction to hear and determine it, the action brought by KS against the Council of the European Union, the European Commission and the European External Action Service (EEAS), seeking in particular ‘annulment/amendment to the Joint Action 2008/124’ and to establish non-contractual liability for the breach of several provisions of the ECHR.
In November 2021, by the order under appeal, the General Court dismissed, on the same ground, the action brought by KS and KD seeking compensation for the damage they claim to have suffered as a result of various acts and omissions by the Council, the Commission and the EEAS, relating, in particular, to investigations carried out, during the Eulex Kosovo mission, into the torture, disappearance and killing of members of their families. KS and KD had in the meantime applied, in June 2021, for measures of inquiry, seeking the production of the full version of Eulex Kosovo’s Operation Plan (OPLAN), beginning from the creation of that mission in 2008.
Hearing two appeals brought by KS and KD (Case C‑29/22 P) and by the Commission (Case C‑44/22 P), respectively, the Court of Justice sets aside in part that order of the General Court and refers the case back to it for a ruling on the admissibility and, if necessary, the merits of that action.
In the order under appeal, the General Court found, inter alia, that the action brought by KS and KD arose from acts or conduct which fell within the scope of political or strategic issues connected with defining the activities, priorities and resources of Eulex Kosovo and with the decision to set up a review panel as part of that mission and that, in accordance with Joint Action 2008/124, the establishment and activities of the Eulex Kosovo mission came within the CFSP provisions of the EU Treaty. In addition, the General Court held, in essence, that, pursuant to the last sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court of Justice of the European Union did not, as a rule, have jurisdiction with respect to the provisions relating to the CFSP and acts adopted on the basis of those provisions, and that the exceptions to that principle, provided for in that first provision and in the second paragraph of Article 275 TFEU, were not applicable in the present case, on the ground that the action concerned neither restrictive measures against natural or legal persons, within the meaning of the latter provision, nor compliance with Article 40 TEU. (
8
)
Findings of the Court of Justice
Since KS and KD and the Commission have challenged the foregoing assessment, the Court examines the merits of the General Court’s interpretation of the abovementioned aspects.
The interpretation of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU
In order to interpret the provisions of the Treaties providing for the limitation of the jurisdiction of the Courts of the European Union as regards the CFSP, the Court notes, first of all, that the inclusion of that policy in the EU constitutional framework means that the basic principles of the EU legal order also apply to it. Those include, in particular, respect for the rule of law and fundamental rights, values which require, inter alia, that EU authorities be subject to judicial review.
However, in the first place, the Court notes that, in accordance with the first sentence of the second subparagraph of Article 24(1) TEU, ‘the [CFSP] is subject to specific rules and procedures’, including those limiting the jurisdiction of the Court of Justice of the European Union with respect to the provisions relating to the CFSP and the acts adopted on the basis of those provisions. Nonetheless, such a limitation of jurisdiction can be reconciled both with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and with Articles 6 and 13 ECHR.
In that regard, first, the Court has already held that Article 47 of the Charter cannot confer jurisdiction on the Court where the Treaties exclude it, nor change the system of judicial review laid down by the Treaties, to which the rules relating to the admissibility of direct actions belong. Furthermore, the principles of conferral and of institutional balance also apply in the area of the CFSP. Accordingly, the claim that the acts or omissions which are the subject of an action brought by an individual infringe that individual’s fundamental rights is not in itself sufficient for the Court of Justice of the European Union to declare that it has jurisdiction to hear and determine that action. Second, the Court must indeed ensure that the interpretation which it gives to Article 47 of the Charter, the first and second paragraphs of which correspond to Article 6(1) and Article 13 ECHR, safeguards a level of protection which does not fall below the level of protection established in those provisions of the ECHR, as interpreted by the European Court of Human Rights. However, on the one hand, the right guaranteed in Article 6(1) ECHR is not absolute and may be subject to legitimate restrictions. Nor, on the other hand, can the protection afforded by Article 13 ECHR, which guarantees the availability at national level of a remedy to enforce the substance of the ECHR rights and freedoms, be regarded as being absolute, since the context in which an alleged violation – or category of violations – occurs is capable of justifying a limitation on the conceivable remedy.
Consequently, the General Court did not err in law in holding, in essence, that neither the last sentence of the second subparagraph of Article 24(1) TEU and Article 275 TFEU, on the one hand, (
9
) nor the pleading of breaches of fundamental rights, on the other hand, justified, in themselves, a finding by that court that it had jurisdiction to hear the action brought by KS and KD. In addition, Article 6(2) TEU, which provides for the accession of the European Union to the ECHR, cannot be interpreted as having the effect of extending the jurisdiction of the Court of Justice of the European Union in relation to the CFSP, the rules applicable to that accession providing that the accession agreement is not to affect the competences of the European Union or the powers of its institutions.
In the second place, as regards more specifically the application of the last sentence of the second subparagraph of Article 24(1) TEU and Article 275 TFEU to actions to establish non-contractual liability of the European Union, governed by Articles 268 and 340 TFEU, the Court notes that neither the exclusive nature of the jurisdiction conferred on the Court of Justice of the European Union to rule on such actions nor the independent nature of that category of actions can have the effect of extending the limits of the jurisdiction conferred on that institution by the Treaties. The last sentence of the second subparagraph of Article 24(1) TEU and Article 275 TFEU, which limit the jurisdiction of the Courts of the European Union as regards the CFSP, must, so far as actions relating to the CFSP are concerned, be regarded as leges speciales in relation to Articles 268 and 340 TFEU. Accordingly, it cannot be accepted that the last sentence of the second subparagraph of Article 24(1) TEU and Article 275 TFEU do not apply to actions seeking to establish the non-contractual liability of the European Union.
In the third and last place, the Court of Justice, relying on the judgment in Carvalho and Others v Parliament and Council, (
10
) which expresses a principle of interpretation applicable to all the legal remedies provided for by the Treaties, also confirms the General Court’s interpretation of the provisions of the Treaties relating to the jurisdiction of the Courts of the European Union in the light of the fundamental right to effective judicial protection, to the effect that that fundamental right cannot have the effect of setting aside the conditions expressly laid down in the FEU Treaty.
Relation of the acts and omissions at issue to the political or strategic choices made in the context of the CFSP and concerning the definition and implementation of the CFSP
The Court recalls that, in examining the jurisdiction of the Court of Justice of the European Union to hear and determine an action concerning acts or omissions falling within the scope of the CFSP, it is necessary to ascertain, first, whether the situation at issue falls within one of the situations provided for in the last sentence of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275 TFEU, in which that jurisdiction is expressly allowed. (
11
) If that is not the case, it is necessary, second, to assess whether the jurisdiction of the Court of Justice of the European Union may be based on the fact that the acts and omissions at issue are not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the Union in the context of the CFSP, and in particular the Common Security and Defence Policy (CSDP). (
12
) Thus, while the Court of Justice of the European Union has jurisdiction to assess the legality of acts or omissions not directly related to those political or strategic choices or to interpret them, it does not have jurisdiction if those acts or omissions are directly related to those political or strategic choices. (
13
)
In that regard, the Court of Justice examines the General Court’s assessment, (
14
) carrying out a specific analysis of each of the acts and omissions falling within the CFSP, and in particular the CSDP, which are the subject of the action brought by KS and KD. (
15
)
In the present case, in the first place, it is apparent from the order under appeal that the General Court found that that action did not fall within the possible situations in which the provisions of the Treaties expressly provide that the Court of Justice of the European Union has jurisdiction in CFSP matters, which indeed is not in dispute in the present appeals. In the second place, the General Court held, in essence, that the acts and omissions referred to in that action (
16
) were directly related to that policy, having regard to their political and strategic nature and to their link with the definition and implementation of the CFSP, which is why it declared that it had no jurisdiction to hear and determine that same action.
In that regard, the Court of Justice finds, first, that the resources made available to a CFSP mission, and in particular a CSDP mission, are, as the General Court was fully entitled to hold, directly related to the political or strategic choices made within the framework of the CFSP.
By contrast, the General Court erred in law inasmuch as it held that the alleged lack of appropriate personnel fell within political or strategic issues which concern the definition and implementation of the CFSP. Indeed, the capacity of the Eulex Kosovo mission to employ staff (
17
) constitutes an act of day-to-day management forming part of the performance of that mission’s mandate. Thus, the decisions taken by Eulex Kosovo as to the choice of personnel employed by that mission are not directly linked to the political or strategic choices made by it in the context of the CFSP.
Second, the Court of Justice reaches the same conclusion of an error of law on the part of the General Court as regards the absence of provisions for legal aid in proceedings before the review panel. Indeed, that part of the action brought by KS and KD concerns the procedural rules of that panel, which are not directly related to the political or strategic choices made in the context of the CFSP.
Similarly, as regards the lack of enforcement powers conferred on the review panel or of remedies for breaches found by it to have been committed, the Court, relying on the objectives underlying the establishment of the Eulex Kosovo mission, (
18
) states that the decision whether or not to make the acts and omissions of that mission subject to a review mechanism meeting internationally recognised standards does not directly relate to the political or strategic choices concerning that mission, but only to an aspect of its administrative management.
Third, the Court states that the absence of both remedial action to remedy the breaches of fundamental rights found by the review panel and a legally sound review of the case of KD concern the failure to adopt individual measures relating to the particular situations of KS and KD and are, therefore, not directly related to the political or strategic choices made in the context of the CFSP. The same is true of the assertion of the Council and the EEAS that the Eulex Kosovo mission had done the best that it could to investigate the crimes at issue. The General Court therefore also erred in law with regard to those aspects of the action.
By contrast, fourth, the decision to remove the executive mandate of a CFSP mission, and in particular of a CSDP mission, is directly related to such political or strategic choices made in the context of the CFSP, for the purposes of Article 28(1) and Article 43(2) TEU. Accordingly, the General Court did not err in law in so far as it declared that it lacked jurisdiction to rule on the complaints concerning the removal of Eulex Kosovo’s executive mandate by Decision 2018/856. (
19
)
The action before the General Court
The Court of Justice, finding that it does not have the necessary information in order to give final judgment on the pleas of inadmissibility raised by the Council, the Commission and the EEAS or on the merits of the action brought by KS and KD, refers the case back to the General Court for a ruling on the admissibility and, if necessary, the merits of that action, as well as on the application for access to Eulex Kosovo’s OPLAN.
(
1
)	Order of 10 November 2021, KS and KD v Council and Others (T‑771/20, EU:T:2021:798).
(
2
)	The abovementioned order is set aside in so far as the action brought by KS and KD concerned, inter alia, the breach of several fundamental rights and the misuse or abuse of executive power by a body and institutions of the European Union. The appeals are dismissed as to the remainder.
(
3
)	Under that provision, ‘the Court of Justice of the European Union shall not have jurisdiction with respect to [CFSP provisions], with the exception of its jurisdiction to monitor compliance with Article 40 [TEU] and to review the legality of certain decisions as provided for by the second paragraph of Article 275 [TFEU]’.
(
4
)	As provided in Article 275 TFEU, ‘the Court of Justice of the European Union shall not have jurisdiction with respect to [CFSP] provisions nor with respect to acts adopted on the basis of those provisions. However, the Court shall have jurisdiction to monitor compliance with Article 40 [TEU] and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 [TFEU], reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V [TEU].’
(
5
)	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).
(
6
)	Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
(
7
)	Order of 14 December 2017, KS v Council and Others (T‑840/16, EU:T:2017:938).
(
8
)	Article 40 TEU provides: ‘The implementation of the [CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 [TFEU]. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’
(
9
)	Read in the light of Article 47 of the Charter, Article 6(1) and Article 13 ECHR and Article 2, Article 3(5) and Articles 6, 19, 21 and 23 TEU.
(
10
)	Judgment of 25 March 2021, Carvalho and Others v Parliament and Council (C‑565/19 P, EU:C:2021:252, paragraphs 69 and 78).
(
11
)	Judgments of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 60), and of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793, paragraph 27).
(
12
)	This is apparent from the case-law of the Court arising from paragraph 49 of the judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753); paragraph 55 of the judgment of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569); and paragraph 66 of the judgment of 25 June 2020, SatCen v KF (C‑14/19 P, EU:C:2020:492).
(
13
)	Consequently, the Court of Justice of the European Union does not have jurisdiction to assess the legality of, or interpret, acts or omissions directly related to the definition, conduct and implementation of the CFSP, and especially the CSDP, that is to say, in particular the identification of the European Union’s strategic interests and the definition of both the actions to be taken and the positions to be adopted by the European Union as well as of the general guidelines of the CFSP, within the meaning of Articles 24 to 26, 28, 29, 37, 38, 42 and 43 TEU.
(
14
)	That assessment is to be found in paragraphs 28 to 39 of the order under appeal.
(
15
)	In order to do so, the Court takes account of the fact that the aim of legal certainty does not require that the Courts of the European Union have to consider the substance of the case in order to establish whether they have jurisdiction.
(
16
)	Those acts and omissions are referred to in paragraph 20 of the judgment. In essence, they are:
the insufficient investigation of the disappearance and killing of KS and KD’s family members, owing to Eulex Kosovo’s lack of the necessary resources and appropriate personnel to perform its executive mandate;
the absence of provisions for legal aid for qualifying applicants in proceedings before the review panel and the establishment of that panel without the power to enforce its decisions or to provide a remedy for breaches found to have been committed;
the failure to take remedial action to remedy some or all of the breaches referred to in the first and second indents, despite the fact that the findings of the review panel were brought to the European Union’s attention by the Head of Eulex Kosovo;
the misuse or abuse of executive power by the Council and the EEAS, in particular by their assertions that Eulex Kosovo had done the best that it could to investigate the abduction and probable murder of the husband of KS and the murder of the husband and the son of KD;
the misuse of or failure to use executive power properly as a result of the removal of Eulex Kosovo’s executive mandate by Council Decision (CFSP) 2018/856 of 8 June 2018 amending Joint Action 2008/124 on the European Union Rule of Law Mission in Kosovo (OJ 2018 L 146, p. 5), while the breaches referred to in the first and second indents remained extant;
the misuse or abuse of executive or public power for failing to ensure that the case of KD, a prima facie well-founded war crimes case, be subject to a legally sound review by Eulex Kosovo and/or the Specialist Prosecutor’s Office for investigation and prosecution before the Kosovo Specialist Chamber.
(
17
)	That capacity is apparent from the wording of Article 15a of Joint Action 2008/124, as amended by Council Decision 2014/349/CFSP of 12 June 2014 (OJ 2014 L 174, p. 42).
(
18
)	See Articles 1 and 2 of Joint Action 2008/124.
(
19
)	That decision terminated the obligation of that mission, enshrined in Article 3(d) of Joint Action 2008/124, to ensure that certain crimes ‘are properly investigated, prosecuted, adjudicated and enforced’.