62020TO0771(01)
ORDER OF THE GENERAL COURT (Sixth Chamber)
25 September 2025 (
*1
)
(Actions for damages – Common foreign and security policy – Damage resulting from the alleged infringement of fundamental rights – Serious offences committed in Kosovo in 1999 – European Union Rule of Law Mission in Kosovo (Eulex Kosovo) – Failure to meet formal requirements – Article 76(d) of the Rules of Procedure – Manifest inadmissibility in part – Non-attributability of the alleged omissions – Action in part manifestly lacking any foundation in law)
In Case T‑771/20 RENV,
KS,
KD,
represented by P. Koutrakos, lawyer, F. Randolph KC, and J. Stojsavljevic-Savic, Solicitor,
applicants,
v
Council of the European Union, represented by P. Mahnič and S. Lejeune, acting as Agents,
European Commission, represented by M. Carpus-Carcea and Y. Marinova, acting as Agents,
and
European External Action Service (EEAS), represented by L. Havas, S. Marquardt and E. Orgován, acting as Agents,
defendants,
supported by
Czech Republic, represented by J. Vláčil, D. Czechová, K. Najmanová and O. Šváb, acting as Agents,
and by
French Republic, represented by M. de Lisi, B. Fodda, S. Royon, T. Stéhelin and B. Travard, acting as Agents,
interveners in support of the Council,
by
Kingdom of Belgium, represented by M. Jacobs and C. Pochet, acting as Agents,
by
Grand Duchy of Luxembourg, represented by A. Germeaux and T. Schell, acting as Agents,
by
Kingdom of the Netherlands, represented by M. Bulterman and J. Langer, acting as Agents,
by
Republic of Austria, represented by J. Schmoll, M. Meisel and E. Samoilova, acting as Agents,
by
Romania, represented by R. Antonie, L.-E. Baţagoi, E. Gane and L. Ghiţă, acting as Agents,
by
Republic of Finland, represented by H. Leppo and M. Pere, acting as Agents,
and by
Kingdom of Sweden, represented by H. Eklinder, F.-L. Göransson and R. Shahsavan Eriksson, acting as Agents,
interveners in support of the Commission,
THE GENERAL COURT (Sixth Chamber),
composed, during the deliberations, of M.J. Costeira (Rapporteur), President, M. Kancheva and E. Tichy-Fisslberger, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1
By their action under Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, the applicants, KS and KD, seek compensation for the damage which they claim to have suffered as a result of acts and omissions attributed to the Council of the European Union, the European Commission and the European External Action Service (EEAS) in the context of the implementation of 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) (respectively, ‘the Joint Action’ and ‘the Eulex Kosovo mission’), in particular in the context of investigations carried out during that mission into the disappearance and killing of their family members in 1999 in Pristina (Kosovo).
Background to the dispute
2
The applicants are relatives (the wives and mother) of persons tortured, killed or missing in connection with the war crimes perpetrated in Kosovo between June and July 1999.
3
According to the first paragraph of Article 2 of the Joint Action, in the version adopted on 4 February 2008, the mission statement of the Eulex Kosovo mission was to assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service, ensuring that those institutions are free from political interference and adhering to internationally recognised standards and European best practices.
4
In October 2009, in accordance with the procedure laid down in Article 12(2) of the Joint Action, the European Union established the Human Rights Review Panel (‘the review panel’), with a mandate to examine complaints of human rights violations by the Eulex Kosovo mission in the exercise of its mission statement. The review panel is an independent, external accountability body which, after reviewing those complaints, delivers a finding as to whether or not the Eulex Kosovo mission has infringed the human rights law as ensured in Kosovo. Where the panel determines that there has been an infringement, its findings may include non-binding recommendations for remedial action by the Eulex Kosovo mission.
5
On 11 March 2014, KD lodged a complaint with the review panel concerning the investigation into the abduction and murder of her husband and son.
6
On 11 June 2014, KS also lodged a complaint with the review panel concerning the investigation into the disappearance of her husband.
7
On 11 November 2015, the review panel concluded, as regards the complaint lodged by KS, that there had been an infringement of Article 2 (concerning the right to life), Article 3 (concerning the prohibition of torture), Article 8 (concerning the right to respect for private and family life) and Article 13 (concerning the right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), and made recommendations to the Head of the Eulex Kosovo mission with a view to remedial action being taken.
8
On 19 October 2016, the review panel concluded, as regards the complaint lodged by KD, that there had been an infringement of Article 2 (concerning the right to life), Article 3 (concerning the prohibition of torture) and Article 13 (concerning the right to an effective remedy) ECHR, in conjunction with Article 2 of that convention, and sent recommendations to the Head of the Eulex Kosovo mission for remedial action.
Earlier proceedings before the General Court and the Court of Justice
9
By application lodged at the Registry of the General Court on 29 December 2020 and registered as Case T‑771/20, the applicants brought an action under Article 268 TFEU seeking compensation for the damage allegedly suffered by them as a result of various acts and omissions by the Council, the Commission, the EEAS and the Eulex Kosovo mission in the context of investigations into the disappearance and killings of their family members which took place in Pristina in 1999.
10
In support of their action, the applicants alleged, inter alia:
–
a breach of Articles 2, 3 and 8 ECHR and of Articles 2 and 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’), on account of the insufficient investigation into the disappearance and killing of their family members, owing in particular to Eulex Kosovo mission’s lack of appropriate personnel to perform its executive mandate, a breach found by the review panel on 11 November 2015 in respect of KS and on 19 October 2016 in respect of KD;
–
a breach of Article 6(1) and Article 13 ECHR and of Article 47 of the Charter, owing to the absence of provisions for legal aid for qualifying applicants in proceedings before the review panel and to the fact that that panel had been established without the power to enforce its decisions and without there being any legal remedy open to the parties once breaches had been found to have been committed;
–
the failure to take remedial action to rectify 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 the mission on 29 April 2016;
–
the misuse or abuse of executive power by the Council and the EEAS on 12 October 2017 by their assertions that the Eulex Kosovo mission 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 and that the review panel was not intended to be a judicial body;
–
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 the Eulex Kosovo mission and the Specialist Prosecutor’s Office for investigation and prosecution before the Kosovo Specialist Chamber.
11
Furthermore, the applicants asked the General Court to give a preliminary ruling on whether the Eulex Kosovo mission should be added as a defendant, while at the same time claiming that the failures raised in support of their action came within the exclusive competence of the Council, the Commission and the EEAS.
12
By document of 18 May 2021, the Commission raised a plea of inadmissibility, claiming, in essence, that the failures raised in support of the action were not attributable to it.
13
By documents of 19 May 2022, the Council and the EEAS also each raised a plea of lack of jurisdiction and a plea of inadmissibility, arguing, inter alia, that the alleged acts and omissions were not attributable to them and that the application was time barred and lacked precision.
14
On 5 June 2021, the applicants applied for measures of inquiry pursuant to Article 88 of the Rules of Procedure of the General Court, seeking disclosure in full of the Operation Plan of the Eulex Kosovo mission (‘the OPLAN’) in all its versions since the creation of the mission in 2008.
15
In their observations on the request for measures of inquiry referred to in paragraph 14 above, lodged at the Court’s Registry on 23 June 2021, the Council and the EEAS opposed disclosure in full of the OPLAN, on the ground that that document was classified as ‘EU restricted’, while stating that privileged access to the annex to the OPLAN concerning the review panel could be granted.
16
By document of 23 July 2021, the applicants submitted their observations, claiming that the General Court should reject the plea of lack of jurisdiction and the plea of inadmissibility raised by the defendants.
17
By order of 10 November 2021, KS and KD v Council and Others (T‑771/20, not published, EU:T:2021:798; ‘the initial order’), the General Court upheld the pleas of lack of jurisdiction and consequently dismissed the action.
18
In paragraphs 28 to 33 of the initial order, the General Court held, in essence, that the action arose from acts or conduct concerning political or strategic issues connected with defining the activities, priorities and resources of the Eulex Kosovo mission, and the decision to set up the review panel as part of that mission, which came within the scope of the European Union’s common foreign and security policy (CFSP). In accordance with the last sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the General Court recalled that a Court of the European Union did not have jurisdiction, in principle, with respect to the provisions relating to the CFSP or acts adopted on the basis of those provisions, taking the view that the exceptions to that principle were not applicable in the circumstances of the present case.
19
The appeals brought by the applicants and the Commission against the initial order, lodged on 12 and 19 January 2022 respectively, were joined by the Court of Justice for the purposes of the oral part of the procedure and the decision closing the proceedings.
20
In parallel, in the judgment of 24 February 2022, Eulex Kosovo (C‑283/20, EU:C:2022:126), the Court of Justice, hearing a request for a preliminary ruling under Article 267 TFEU from the tribunal du travail francophone de Bruxelles (Brussels Labour Court (French-speaking), Belgium), held that Article 16(5) of Joint Action 2008/124, as amended by Council Decision 2014/349/CFSP of 12 June 2014 (OJ 2014 L 174, p. 42), according to which ‘EULEX KOSOVO shall be responsible for any claims and obligations arising from the implementation of the mandate starting from 15 June 2014, with the exception of any claims relating to serious misconduct by the Head of Mission, for which the Head of Mission shall bear the responsibility’ had to be interpreted as specifying the date from which the Eulex Kosovo mission had to be regarded as assuming responsibility for any harm and any obligation which arose or which may arise from the implementation of the mission entrusted to it, and therefore, starting from that date, as being subrogated to the rights and obligations of the person or persons previously responsible for the implementation of that mission, with the exception of obligations arising from serious misconduct by the Head of the mission, for which the Head of the mission is to bear the responsibility (judgment of 24 February 2022, Eulex Kosovo, C‑283/20, EU:C:2022:126, paragraph 41).
21
By judgment of 10 September 2024, KS and Others v Council and Others (C‑29/22 P and C‑44/22 P, EU:C:2024:725; ‘the judgment on appeal’), the Court of Justice set aside the initial order in part, in so far as the General Court had declared that it manifestly lacked jurisdiction to hear and determine the complaints referred to in paragraph 10 above.
22
Having dismissed the appeals as to the remainder, the Court of Justice held that it did not have the information necessary to give final judgment in the dispute and referred the case back to the General Court for a ruling on the admissibility and, if appropriate, on the substance of the action and on the request for measures of inquiry submitted by the applicants.
Procedure following referral of the case back to the General Court and forms of order sought by the parties
23
By a measure of organisation of procedure of 18 December 2024, the parties were requested to state their views, in particular, on what conclusions, if any, were to be drawn from the judgment of 24 February 2022, Eulex Kosovo (C‑283/20, EU:C:2022:126), as regards, inter alia, the question of the attributability of the alleged failures in the context of the action referred back to the General Court. The Commission responded to that measure of organisation of procedure on 24 January 2025. The applicants, the Council and the EEAS replied to that measure on 27 January 2025.
24
The applicants claim that the General Court should:
–
order the Council, the Commission and the EEAS, jointly or severally, to compensate them for the damage suffered as a result of the breaches of fundamental rights relied on in the present action, including the payment of interest at the rate and for such period as the General Court deems appropriate;
–
order the Council, the Commission and the EEAS to pay the costs, including those relating to the proceedings before the review panel.
25
The Council contends that the General Court should:
–
dismiss the action for lack of jurisdiction;
–
dismiss the action as inadmissible or, in the alternative, as manifestly unfounded vis-à-vis the Council;
–
order the applicants to pay the costs.
26
The Commission contends that the General Court should:
–
dismiss the application as inadmissible in so far it is directed against the Commission;
–
order the applicants to pay the costs.
27
The EEAS contends that the General Court should dismiss the action on the ground of lack of competence and, in the alternative, declare it inadmissible in so far as it is directed against the EEAS.
28
In their observations on the plea of lack of jurisdiction and the plea of inadmissibility, the applicants claim, in essence, that the General Court should reject all the pleas raised by the Council, the Commission and the EEAS.
Law
29
Under Article 126 of the Rules of Procedure of the General Court, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
30
In the present case, the Court, considering that it has sufficient information available to it from the material in the file, has decided to give a decision without taking further steps in the proceedings.
The scope of the referral back to the General Court
31
According to the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded and the case is referred back to the General Court for it to give judgment, the latter is to be bound by the decision of the Court of Justice on points of law.
32
Once the Court of Justice has set aside a judgment or order and referred the case back to the General Court, the latter is to be seised, pursuant to Article 191 of its Rules of Procedure, of the case by the judgment of the Court of Justice and must rule again on all of the forms of order and all of the pleas in law raised at first instance, apart from, first, those discontinued by the parties after referral back to the General Court and, second, those parts of the operative part of the initial decision that were not set aside by the Court of Justice and the grounds constituting the necessary basis of those parts (see, to that effect, judgments of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraphs 83 and 85, and of 25 January 2023, GEA Group v Commission, T‑640/16 RENV, not published, EU:T:2023:18, paragraphs 50 and 52 and the case-law cited).
33
In the present case, the Court of Justice upheld the initial order in part, that is to say, in so far as the General Court had declared that it manifestly lacked jurisdiction to hear and determine the complaints claiming, first, the alleged lack of necessary resources allocated to the Eulex Kosovo mission and, second, the removal of the executive mandate of that mission pursuant to Council Decision (CFSP) 2018/856 of 8 June 2018 amending Joint Action 2008/124 (OJ 2018 L 146, p. 5) (paragraphs 126 and 136 of the judgment on appeal and paragraph 2 of the operative part of that judgment).
34
Accordingly, there is no longer any need to rule on the forms of order and the pleas in law relating to the complaints referred to in paragraph 33 above.
35
As regards the other complaints in the application, as set out in paragraph 10 above, the Court of Justice set aside the initial order in so far as the General Court had declined jurisdiction on the ground that those complaints called into question acts or omissions relating to political or strategic issues which concern the definition and implementation of the CFSP (paragraphs 120, 128, 130, 131 and 135 of the judgment on appeal).
36
Therefore, the pleas of lack of jurisdiction raised before the General Court by the Council and the EEAS, based on the ground referred to in paragraph 35 above, must be rejected in so far as they relate to the complaints referred to in paragraph 10 above.
37
Furthermore, in response to the measure of organisation of procedure of 18 December 2024, the applicants stated, in essence, that the provisions of Article 16(5) of the Joint Action, as interpreted in the judgment of 24 February 2022, Eulex Kosovo (C‑283/20, EU:C:2022:126), did not mean that the Eulex Kosovo mission ought to appear as one of the defendants in the present case. It is their submission that the scope of that judgment must be strictly limited to the factual and legal context of the request for a preliminary ruling examined by the Court of Justice in that case, with the result that the capacity of that mission to be a party to legal proceedings remains limited to disputes involving administrative matters.
38
It follows from the applicants’ response to the measure of organisation of procedure of 18 December 2024 that they must be regarded as having withdrawn their request that the General Court give a preliminary ruling on whether the Eulex Kosovo mission should be added as a defendant. Accordingly, there is no longer any need to adjudicate on that request, since the General Court does not, moreover, have jurisdiction to deliver declaratory judgments (see order of 27 November 2012, H-Holding v Parliament, T‑672/11, not published, EU:T:2012:628, paragraph 20 and the case-law cited).
Preliminary observations
39
As a preliminary point, the Court notes that actions to establish non-contractual liability of the European Union must be formally brought against the institution to which the conduct that the applicant claims caused the damage in respect of which he or she seeks compensation is attributable (see, to that effect, order of 17 December 2021, Theodorakis and Theodoraki v Council, T‑495/14, not published, EU:T:2021:941, paragraph 47).
40
In that regard, the question of the identification of the institution or body responsible for representing the European Union in an action for non-contractual liability, based on Article 268 TFEU and the second paragraph of Article 340 TFEU, comes within the scope of the assessment of the admissibility of that action (see, to that effect, order of 2 February 2015, Gascogne Sack Deutschland and Gascogne v European Union, T‑577/14, not published, EU:T:2015:80, paragraph 22 and the case-law cited).
41
On the other hand, in so far as the Council, the Commission and the EEAS argue in the present case that the omissions that the applicants allege against them are not attributable to them, since they were under no obligation to act, it is clear that such a line of argument relates to an issue which concerns the lawfulness of the conduct of those institutions and that EU body and involves, therefore, an assessment of the substance of the action for damages, and not of its admissibility (see, to that effect, judgments of 8 March 2023, Sánchez-Gavito León v Council and Commission, T‑100/21, not published, EU:T:2023:109, paragraphs 83 and 84, and of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs 61 to 63).
The first complaint
42
In the context of the first complaint, the applicants claim that the lack of adequate investigations into the disappearance of their relatives, resulting from a lack of appropriate personnel in the Eulex Kosovo mission, constitutes an infringement of Articles 2, 3 and 8 ECHR and of Articles 2 and 4 of the Charter by that mission in the implementation of its executive mandate, responsibility for which must be borne jointly or severally by the Council, the Commission and the EEAS.
43
In addition, according to the applicants, the alleged infringement also stems from omissions attributable to the Council, the Commission and the EEAS, in so far as they failed to ensure that the Eulex Kosovo mission had appropriate personnel to implement its mandate in accordance with Articles 2 and 3 ECHR.
44
The Council, the Commission and the EEAS submit, inter alia, that the alleged failures are not attributable to them and that, consequently, the action should be dismissed as inadmissible.
45
In that regard, first, the Court notes that Article 16(5) of the Joint Action, as amended by Decision 2014/349, must be interpreted as meaning that, starting from 15 June 2014, it generally transfers to the Eulex Kosovo mission responsibility for any claims and obligations which have already arisen or which may arise in respect of the implementation of its mandate and, therefore, starting from that date, as subrogating that mission to the rights and obligations of the persons previously responsible for the implementation of its mandate, including ongoing litigation (see, to that effect, judgment of 24 February 2022, Eulex Kosovo, C‑283/20, EU:C:2022:126, paragraph 46).
46
Second, as regards the alleged lack of appropriate personnel, the Court of Justice held that the Eulex Kosovo mission’s capacity to employ staff was an element of its day-to-day management forming part of the implementation of its mandate. Thus, it is for the mission to ensure, within the framework of the resources made available to it, that the personnel it employs are appropriate (see, to that effect, judgment on appeal, paragraph 127).
47
It follows that the alleged lack of appropriate personnel is the result of failures in the day-to-day management of the Eulex Kosovo mission, the harmful consequences of which, assuming they are established, come within the exclusive responsibility of that mission in the implementation of its executive mandate.
48
Therefore, in so far as the applicants allege failures in human resource management by the Eulex Kosovo mission, against which the present action is not directed, the first complaint is vitiated by an error in terms of the defendant it identifies and must be rejected as manifestly inadmissible (see, to that effect, order of 17 December 2021, Theodorakis and Theodoraki v Council, T‑495/14, not published, EU:T:2021:941, paragraph 61).
49
As to the remainder, as is apparent from paragraph 127 of the judgment on appeal, it is for the Eulex Kosovo mission to ensure, within the framework of the resources made available to it, that the personnel it employs are appropriate. Accordingly, in so far as the Council, the Commission and the EEAS are alleged to have failed to do so, the first complaint must be rejected as manifestly lacking any foundation in law on the ground that the omissions alleged cannot be attributed to them.
50
Furthermore, in accordance with settled case-law, the Court also notes that the brief statement of the pleas in law which must be stated in any application, within the meaning of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and Article 76(d) of the Rules of Procedure, must specify the nature of the grounds on which the application is based. Thus, it is necessary, in particular, in order for an action before the General Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with those provisions, must appear in the application (see judgment of 13 February 2025, Commission v Carpatair andWizz Air Hungary and AITTV v Commission, C‑244/23 P to C‑246/23 P, EU:C:2025:87, paragraph 76 and the case-law cited).
51
Where the application does not meet the requirements laid down in Article 76(d) of the Rules of Procedure relating to the statement of pleas in law, the General Court is entitled to declare the action manifestly inadmissible (see, to that effect, order of 6 June 2024, Lucaccioni v Commission, T‑516/23, not published, EU:T:2024:386, paragraph 19 and the case-law cited).
52
In the light of the foregoing, the Court finds that the application does not contain any line of argument capable of substantiating the existence of the alleged obligation on the Council, the Commission and the EEAS under Articles 2, 3 and 8 ECHR, Articles 2 and 4 of the Charter, or any other principle or provision of EU law, consisting of ensuring the day-to-day management of the Eulex Kosovo mission by engaging appropriate personnel.
53
Consequently, the first complaint must in any event be rejected as manifestly inadmissible.
The second complaint
54
In the context of the second complaint, the applicants claim that the provisions of Article 6(1) and Article 13 ECHR and of Article 47 of the Charter require, first, that qualifying applicants in proceedings before the review panel have access to legal aid and, second, that they preclude that panel from being established and maintained without having the power to enforce its decisions and without the parties concerned being afforded a legal remedy once it finds an infringement.
55
The Council and the EEAS contend that the second complaint is inadmissible on the ground that the application lacks clarity and precision as regards the nature of the alleged unlawfulness. In addition, the Council, the Commission and the EEAS claim that they are not liable for the alleged failures.
56
In that regard, it should be noted that, in paragraphs 54 and 58 of the application, the applicants claimed that, by establishing and maintaining the review panel without allowing it to grant legal aid, without conferring on it the power to enforce its decisions and without providing interested parties with a remedy once infringements are found by that panel, the Council, the Commission and the EEAS had committed, jointly or severally, sufficiently serious infringements of EU law, contrary to Article 6(1) and Article 13 ECHR and Article 47 of the Charter.
57
In the light of the allegations referred to in paragraph 56 above, it is necessary to reject the pleas of inadmissibility raised by the Council and the EEAS, since it becomes apparent from them, with a sufficient degree of clarity, that the applicants are complaining that the Council, the Commission and the EEAS established the review panel without having given it sufficient powers in the light of the effective remedy and fair trial requirements, in that the findings of that committee amount to mere recommendations and are not binding or enforceable, and without having provided adequate procedural guarantees, such as the possibility of receiving legal aid or a remedy enabling the persons concerned to rely on infringements found by that panel.
58
As regards the substance of the claims referred to in paragraph 56 above, the Court recalls that compliance with the effective remedy and fair trial requirements enshrined in Article 47 of the Charter and Article 6(1) ECHR is to be assessed, in principle, in an overall manner, in the light of all the legal remedies available, in particular the judicial remedies available to the persons concerned. As regards the right to an effective remedy enshrined in Article 13 ECHR, the guarantees deriving from that right are already included in the stricter provisions of Article 6(1) ECHR (see, to that effect, judgment of 9 March 2023, Intermarché Casino Achats v Commission, C‑693/20 P, EU:C:2023:172, paragraphs 40 to 49 and the case-law cited).
59
Thus, even if the detailed rules governing recourse to the review panel do not, in themselves, satisfy the effective remedy and fair trial requirements, that fact cannot lead the Court to uphold the second complaint, in so far as actions before the Courts of the European Union constitute a legal remedy open to the applicants following the infringements found by that panel, offering them all the guarantees provided for by the provisions relied on in the context of the second complaint, in particular the possibility of claiming legal aid and the possibility of obtaining an enforceable judgment which has the force of res judicata.
60
It follows that the second complaint must be rejected as manifestly lacking any foundation in law.
The third complaint
61
The third complaint alleges a persistent failure to take remedial action capable of rectifying the infringements alleged in the context of the first two complaints, resulting in a sufficiently serious infringement of EU law.
62
In that regard, the applicants claim that the evidence which they have submitted supports the argument that the alleged infringements arise from a lack of prioritisation or a lack of adequate resources and appropriate personnel to fulfil the legal obligations of the European Union, and not from the poor functioning of the Eulex Kosovo mission in the individual cases.
63
According to the applicants, the allegation referred to in paragraph 62 above is confirmed by the letter of 29 April 2016 from the Head of the Eulex Kosovo mission to the review panel, according to which the implementation of the recommendations made by that panel falls outside the remit of that mission. It follows that the inability of the review panel to propel that mission to implement its executive mandate in accordance with the legal requirements arises from the Council’s continuing refusal to provide that panel with powers and resources which would enable it to enforce its recommendations and to provide the persons concerned with a remedy following the infringements which it finds.
64
In the applicants’ view, by 29 April 2016 at the latest, the EU institutions should have taken adequate remedial action, so as to ensure that the Eulex Kosovo mission had sufficient resources to conduct an Article 2 ECHR compliant investigation, to cease subjecting them to treatment that infringed Article 3 ECHR, and to compensate them for the infringement of their fundamental rights as found by the review panel. The remedial action at issue should have consisted, inter alia, in amending the Joint Action and the statutory basis of the review panel.
65
In their reply to the measure of organisation of procedure of 18 December 2024, the applicants stated that the infringements alleged in the context of the third complaint were attributable to the Council, the Commission and the EEAS in the light of the chain of command defined by the Joint Action, in so far as the latter had, through the Civilian Operation Commander, a power to issue instructions to the Head of the mission.
66
The Council, the Commission and the EEAS dispute that the alleged omissions can be attributed to them. The Council and the EEAS also claim that the third complaint lacks precision, arguing that there is no line of legal argument capable of justifying the claim that they have an obligation to act in connection with the recommendations made by the review panel.
67
As regards the latter point, the Council also submits that its involvement in crisis management operations takes place in terms of political control and strategic direction, without it being able to be involved in the day-to-day management of tasks entrusted to EU missions in tactical terms in the theatre of operations.
68
In the light of the arguments of the parties, the third complaint can be divided into three parts.
The first part of the third complaint, alleging that the Eulex Kosovo mission lacked adequate resources and appropriate personnel
69
In the first part of the third complaint, the applicants claim that the absence of measures capable of rectifying the infringements found by the review panel arises from the continuing refusal by the Council, the Commission and the EEAS to provide the Eulex Kosovo mission with adequate resources and appropriate personnel.
70
In that regard, first, in accordance with the findings set out in paragraph 126 of the judgment on appeal, the Court recalls that it does not have jurisdiction to rule on an action for damages seeking compensation for damage resulting from the alleged inadequacy of the resources allocated to the Eulex Kosovo mission, in so far as the decisions taken in that regard are directly related to the political or strategic choices made in the framework of the CFSP.
71
Accordingly, in accordance with what is apparent from paragraphs 33 and 34 above, there is no need to rule on the complaint alleging insufficient resources being allocated to the Eulex Kosovo mission.
72
Second, as regards the allegation that the Eulex Kosovo mission lacked appropriate personnel, in accordance with the analysis of the first complaint set out in paragraphs 45 to 49 above, the Court recalls that the alleged failures in the day-to-day management of that mission cannot be attributed to the Council, the Commission and the EEAS, in so far as they come within the implementation of the executive mandate of that mission and, as such, give rise to the exclusive responsibility of that mission, in accordance with the provisions of Article 16(5) of the Joint Action, as amended by Decision 2014/349.
73
It follows that the first part of the third complaint must be rejected as manifestly inadmissible in part, on account of the error made in identifying the defendant, and as manifestly lacking any foundation in law as to the remainder, on the ground that the alleged failures cannot be attributed to the Council, the Commission and the EEAS.
The second part of the third complaint, alleging that the Council, the Commission and the EEAS have the power to issue instructions
74
In the context of the second part of the third complaint, the applicants claim that the Council, the Commission and the EEAS failed to put an end to the infringements found by the review panel relating to investigations into the disappearance of their relatives by refusing to use their power of investigation vis-à-vis the Eulex Kosovo mission.
75
As regards the latter point, in accordance with the findings set out in paragraphs 132 and 133 of the judgment on appeal, it should be noted that the allegations based on the absence both of remedial action capable of rectifying the infringements found by the review panel and of a legally sound review of KD’s case call into question an alleged failure to adopt individual measures relating to the applicants’ individual situations.
76
In the light of the provisions of the Joint Action, and in particular Articles 7, 8, 11 and 12 thereof, the Court holds that the adoption of such individual measures falls outside the exercise of political control and strategic direction incumbent on the Council, the Commission and the EEAS through the Political and Security Committee (PSC) and the Civilian Operation Commander of the mission, in so far as, in particular, the power of investigation vested in the latter is exercised at a strategic level, and not at the theatre of operations level coming within the activities of the Head of the mission.
77
As regards the latter paragraph, it is clear from the combined provisions of Articles 2 and 3 of the Joint Action, in particular Article 3(d) and (i), in the version prior to Decision 2018/856, that the adoption of individual measures capable of rectifying the infringements of fundamental rights found by the review panel cannot be dissociated from the implementation of the Eulex Kosovo mission’s mandate, in so far as that mandate consisted, first, of ensuring that cases of war crimes and other serious crimes are properly investigated, prosecuted and adjudicated, and, second, of ensuring that the activities of the mission respect international standards concerning human rights.
78
The same conclusion must be drawn in the light of the content of the provisions of Articles 2 and 3 of the Joint Action, and in particular Article 3(a) and (e) of that Joint Action, in the version resulting from Decision 2018/856, in accordance with which the Eulex Kosovo mission is to continue, first, to monitor selected cases and trials in Kosovo’s criminal and civil justice institutions, in close coordination with other EU actors, and to monitor relevant meetings within regional cooperation on cases concerning war crimes, and, second, to ensure that all its activities respect international standards concerning human rights.
79
In the light of all the provisions of the Joint Action referred to in paragraphs 76 to 78 above, the Court rejects the applicants’ line of argument, based on the letter from the Head of the Eulex Kosovo mission of 29 April 2016, that the implementation of the recommendations of the review panel falls outside the remit of that mission.
80
That conclusion is supported by the decision of the review panel of 19 October 2016, adopted in response to the letter of 29 April 2016 referred to in paragraph 79 above, from which it is expressly clear that the implementation of its recommendations fell entirely and exclusively to the Head of the Eulex Kosovo mission, and not to other EU bodies or institutions.
81
In the light of the foregoing, the Court finds that the omissions alleged in the second part of the third complaint call into question the implementation of the executive mandate by the Eulex Kosovo mission and, as such, come within the exclusive responsibility of that mission, with the result that they cannot be attributed to the Council, the Commission and the EEAS.
82
Accordingly, the second part of the third complaint must be rejected as manifestly lacking any foundation in law.
The third part of the third complaint, alleging a lack of sufficient powers on the part of the review panel
83
In the third part of the third complaint, the applicants criticise the Council, the Commission and the EEAS for their continuing failure to endow the review panel with sufficient powers and resources, in that that panel is not in a position to enforce its decisions and in so far as no remedy is available to the interested parties once infringements are found.
84
On that point, the Court notes that the applicants do not put forward any line of argument capable of supporting the third part of the third complaint as regards the alleged insufficiency of the powers or procedural means granted to the review panel.
85
In that regard, the applicants merely submit, first, in paragraph 54(ii) and paragraph 58 of the application, that, by establishing and maintaining the review panel without powers to provide legal aid or the power to enforce its decisions or provide a remedy for the infringements found, the Council, the Commission and the EEAS infringed Article 6(1) and Article 13 ECHR and Article 47 of the Charter and, second, in paragraph 59 of the application, that, by failing to take remedial action following the findings of the review panel, the latter infringed EU law in a sufficiently serious manner.
86
Therefore, for the reasons already set out in the context of the second complaint, in paragraphs 58 and 59 above, the third part of the third complaint must be rejected as manifestly lacking any foundation in law.
The fourth complaint
87
The fourth complaint alleges misuse or abuse of executive power by the Council and the EEAS, since they stated, first, that the Eulex Kosovo mission had done the best it could to investigate the cases of the disappearance of the applicants’ relatives (‘the first statement at issue’) and, second, that the review panel was not intended to become a judicial body (‘the second statement at issue’).
88
The statements at issue are contained in the letters from the Council and the EEAS of 12 October 2017, sent in response to the applicants’ letters of 3 October, 3 November and 5 December 2016, by which the applicants asked the EU institutions, inter alia, to ensure that cases relating to the disappearance of their relatives were properly investigated and to strengthen the powers of the review panel.
89
In that context, the applicants claim that the statements at issue reflect a refusal to accede to their request for compensation and constitute a misuse or abuse of executive power.
90
The Council responds that the reply in its letter of 12 October 2017 is factual in nature and uncontroversial, arguing that the applicants have not demonstrated what type of infringement or responsibility could be attributed to it as regards the content of that letter.
91
The EEAS submits that the application does not explain how its letter of 12 October 2017 gives rise to non-contractual liability on the part of the European Union and, in general, that it does not contain any explanation as to the legal force attaching to the acts of the review panel or how those acts are binding on the institutions and body at issue in the present case.
92
The Council and the EEAS conclude from the above that the complaint must be rejected as inadmissible.
93
As a preliminary point, in accordance with the findings set out in paragraphs 132 and 133 of the judgment on appeal, it should be noted that the first statement at issue concerns an alleged failure to adopt individual measures relating to the applicants’ particular situations, much like the allegations made in the second part of the third complaint, alleging that there was no remedial action capable of rectifying the infringements of fundamental rights found by the review panel.
94
As regards the second statement at issue, the Court of Justice held, in paragraph 134 of the judgment on appeal, that it constituted a non-binding act.
95
It is in the light of those findings of the Court of Justice that the fourth complaint must be examined.
96
In the first place, in view, in particular, of the subject matter of the letters from the Council and the EEAS of 12 October 2017, as set out in the first paragraph of those letters, the Court notes that the applicants do not put forward any argument capable of demonstrating that the statements at issue could be interpreted as reflecting a refusal to grant their request for compensation, assuming that such a request, addressed specifically to that institution and body, could be inferred from the earlier documents sent by the applicants, and in particular from their letter of 3 October 2016, which they also have not sought to establish in a reasoned manner.
97
Therefore, in so far as it relates to the refusal to grant the applicants’ alleged request for compensation, the fourth complaint lacks precision and must be rejected as inadmissible.
98
In the second place, as regards the first statement at issue, it must be noted that the applicants’ written pleadings do not contain any line of argument capable of substantiating the accusations of misuse or abuse of power levelled at the Council and the EEAS.
99
In particular, it is not specified on what basis, in the light of the powers provided for by the Treaties and the provisions of the Joint Action, the Council and the EEAS would be obliged to intervene with a view to the adoption of individual investigative measures relating to the applicants’ particular situations, whereas the Council submits in that regard that its involvement in crisis management operations remains limited to the exercise of political control and strategic direction of the Eulex Kosovo mission, in accordance with the second paragraph of Article 38 TEU.
100
As regards the latter point, it should be noted that the applicants’ observations in their reply to the measure of organisation of procedure of 18 December 2024, relating to the investigative power granted to the Council and the EEAS in the context of the chain of command of the Eulex Kosovo mission, cannot compensate for the lack of precision in the application.
101
Even if the exercise of the strategic command by the Civilian Operation Commander could lead that commander to conduct the mission with a view to adopting individual measures in respect of particular situations, the applicants do not indicate on what basis the Council and the EEAS would be obliged to do so in the context of their political control and strategic direction through the PSC and the Civilian Operation Commander of the mission.
102
In the light of the foregoing, it must be held that the fourth complaint, in so far as it is based on the first statement at issue, is not substantiated and must be rejected as manifestly inadmissible.
103
In any event, even if the first statement at issue were to be regarded not as a factual assessment with no independent legal scope, as the Council submits, but as a position of a decision-making nature, reflecting the Council’s refusal and that of the EEAS to intervene with a view to adopting individual measures relating to the applicants’ particular situations, as referred to in paragraph 133 of the judgment on appeal, it must be held that such intervention falls outside the scope of the powers exercised by that institution and that body vis-à-vis the Eulex Kosovo mission.
104
As is already clear, in essence, from paragraphs 76 to 81 above, the adoption of such individual measures would be outside of the exercise of political control and strategic direction incumbent on the Council and the EEAS through the PSC and the Civilian Operation Commander.
105
It follows that the positions allegedly adopted by the Council and the EEAS, in so far as they reflect a refusal to intervene with a view to adopting individual measures relating to the applicants’ particular situations, cannot be regarded as unlawful.
106
Accordingly, the complaint relating to the first statement at issue must, in any event, be rejected as manifestly lacking any foundation in law.
107
In the third place, as regards the second assertion at issue, it must be noted that its nature as a non-binding act does not prima facie preclude it from potentially causing the European Union to incur non-contractual liability (see, to that effect, judgment of 9 February 2022, QI and Others v Commission and ECB, T‑868/16, EU:T:2022:58, paragraph 71 and the case-law cited).
108
However, even assuming that the statement at issue reflects a refusal to confer on the review panel the nature of a judicial body, it must be stated that the applicants have not in any way substantiated the claim that there is an obligation on the Council and the EEAS in that regard, which consists of establishing, at the stage of pre-litigation proceedings and prior to actions brought before the Courts of the European Union, all the guarantees deriving from the right to an effective remedy and to a fair trial.
109
Accordingly, the fourth complaint, in so far as it relates to the second statement at issue, must be rejected as manifestly inadmissible and, in any event, for the reasons already set out in paragraphs 58 and 59 above, as manifestly lacking any foundation in law.
The fifth complaint
110
In the fifth complaint, the Council, the Commission and the EEAS are alleged to have misused or abused their powers by failing to ensure that KD’s case, a prima facie well-founded war crimes case, was subject to a legally sound review by the Eulex Kosovo mission or by the Specialist Prosecutor’s Office for investigation and prosecution before the Kosovo Specialist Chamber.
111
In that regard, it is sufficient to note that the fifth complaint corresponds, in essence, to the claims raised in the second part of the third complaint, and is thus linked to the first statement at issue, as referred to in the fourth complaint.
112
Therefore, for the reasons already set out in paragraphs 76 to 81 and 103 to 106 above, the fifth complaint must be rejected as manifestly lacking any foundation in law.
113
Furthermore, it should be noted that the fifth complaint is not accompanied by any line of argument capable of enabling the General Court to assess whether the Council, the Commission and the EEAS are under an obligation to monitor specific investigations coming within the mandate of the Eulex Kosovo mission.
114
Therefore, the fifth complaint must, in any event, be rejected as manifestly inadmissible, in accordance with the case-law cited in paragraphs 50 and 51 above.
115
In the light of all the foregoing considerations, the present action must be dismissed as manifestly inadmissible in part and manifestly unfounded in part, without it being necessary to rule on the claim that the application was time barred as raised by the Council and the EEAS or on the applicants’ request for a measure of inquiry.
Costs
116
In application of Article 195 of the Rules of Procedure, in decisions given after its decision has been set aside and the case referred back to it, the General Court is to decide on the costs relating, first, to the proceedings instituted before it and, second, to the proceedings on the appeal before the Court of Justice.
117
Since, in the judgment on appeal, the Court of Justice set aside in part the initial order, referred the case back to the General Court and reserved the costs, it is for the General Court to rule, in the present order, on all the costs relating to the proceedings brought before it, including in the initial proceedings, and on the costs relating to the appeal proceedings in Cases C‑29/22 P and C‑44/22 P.
118
According to Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are, in principle, to bear their own costs.
119
In addition, under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any.
120
Lastly, in application of Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs.
121
In the present case, since the applicants, the Council and the EEAS have been unsuccessful in part in their claims before the General Court, including in the initial proceedings, and in the appeal proceedings in Cases C‑29/22 P and C‑44/22 P, each of those parties must be ordered to bear its own costs relating to all the proceedings before the General Court and before the Court of Justice, without it being necessary to rule on the costs incurred by the applicants in the proceedings before the review panel.
122
Furthermore, it is necessary to take account of the particular circumstances of the present case, including the clarification provided by the judgment of 24 February 2022, Eulex Kosovo (C‑283/20, EU:C:2022:126), after the present action was brought, and to relieve the applicants of the burden of the costs incurred by the Commission in all the proceedings before the General Court and before the Court of Justice.
123
In application of Article 138(1) of the Rules of Procedure, the Kingdom of Belgium, the Czech Republic, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, Romania, the Republic of Finland and the Kingdom of Sweden are each to bear their own costs relating to the proceedings before the General Court and before the Court of Justice.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.
The action is dismissed.
2.
KS, KD, the Council of the European Union, the European Commission, the European External Action Service (EEAS), the Kingdom of Belgium, the Czech Republic, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, Romania, the Republic of Finland and the Kingdom of Sweden shall each bear their own costs relating to the proceedings before the General Court and before the Court of Justice.
Luxembourg, 25 September 2025.
V. Di Bucci
Registrar
M. J. Costeira
President
(
*1
)	Language of the case: English.