OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 23 November 2023(1)
Joined Cases C‑29/22 P and C‑44/22 P
KS,
KD
v
Council of the European Union (C‑29/22 P)
European Commission (C‑29/22 P)
European External Action Service (EEAS) (C‑29/22 P)
and
European Commission
v
KS,
KD,
Council of the European Union (C‑44/22 P)
European External Action Service (EEAS) (C‑44/22 P)
(Appeal – Common foreign and security policy (CFSP) – Joint Action 2008/124/CFSP – European Union Rule of Law Mission in Kosovo (Eulex Kosovo) – Non-contractual liability of the European Union – Crimes committed in Kosovo in 1999 – Damage allegedly suffered by individuals in connection with the insufficient investigation into the disappearance and killing of their family members – Alleged breach of fundamental rights – Jurisdiction of the EU Courts – Articles 2, 6, 19 and 24 TEU – Articles 268, 275 and 340 TFEU)
I. Introduction
1. KS and KD lost their family members in 1999 in the aftermath of the Kosovo conflict. Those murders and disappearances were never solved. In 2008, the European Union established a civilian mission, the EU Rule of Law Mission in Kosovo (‘Eulex Kosovo’), (2) tasked, among other things, with investigating such crimes. KS and KD brought an action for damages against the European Union, alleging breach of their fundamental rights because those crimes were not properly investigated.
2. Can the EU Courts hear their claims? The General Court considered they could not. Hence, the present appeals.
3. The Court of Justice is hearing these appeals in parallel with another case, Neves 77 Solutions (C‑351/22), in which my Opinion is being delivered on the same day. That case also raises, albeit in a different context, the question of the extent of the limitation of jurisdiction of the EU Courts in the common foreign and security policy (‘CFSP’) provided for by Article 24(1) TEU and Article 275 TFEU.
4. The broader context of both sets of cases is the ongoing negotiations on the accession of the European Union to the European Convention on Human Rights (‘ECHR’). All other negotiating chapters, which were opened as a result of Opinion 2/13, (3) seem to be closed, except for one remaining issue: the scope of the EU Courts’ jurisdiction in the CFSP.
II. Background
5. This case arises from the appeals brought by two individuals, KS and KD, as well as by the European Commission, against the order of the General Court (‘the order under appeal’). (4) By that order, the General Court dismissed KS and KD’s action brought against the European Union on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU. KS and KD claimed damages for alleged breaches of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the ECHR in the implementation of the Council Joint Action that established Eulex Kosovo. The General Court held that it lacked jurisdiction to hear the action. That finding is challenged by the present appeals.
A. Events leading to the proceedings before the General Court
1. The establishment and tasks of Eulex Kosovo
6. The background to this case can be traced back to the Kosovo conflict during the years 1998 and 1999, involving Kosovan Albanians and ethnic Serbs, the latter backed by the army of the (then) Federal Republic of Yugoslavia. Between 28 March and 8 June 1999, the North Atlantic Treaty Organisation (‘NATO’) intervened by launching air strikes, after which the Yugoslav army withdrew its forces from Kosovo. Immediately thereafter, on 10 June 1999, the United Nations Security Council adopted Resolution 1244 (1999), which provided for the presence of international forces in Kosovo that are still there today. That resolution authorised the establishment in Kosovo of an international security force led by NATO known as the Kosovo Force or KFOR, as well as an international civil presence known as the United Nations Interim Administration Mission in Kosovo (‘UNMIK’).
7. UNMIK was vested with authority, similar to that of a State, over the territory and people of Kosovo, including legislative and executive powers and the administration of the judiciary. However, following the declaration of independence by the Kosovo authorities and the entry into force of a new constitution on 15 June 2008, UNMIK’s tasks were modified to focus primarily on the promotion of security, stability and respect for human rights in Kosovo. (5)
8. In 2008, the European Union established Eulex Kosovo. After its Operation Plan (‘OPLAN’) was approved, the UNMIK executive responsibilities were transferred to Eulex Kosovo.
9. Eulex Kosovo is a common security and defence policy (‘CSDP’) civilian mission established by Joint Action 2008/124. (6) The CSDP is an integral part of the CFSP, (7) under which the European Union has an operational capacity to deploy civilian and military missions and operations outside the European Union for peacekeeping, conflict prevention and strengthening international security. (8)
10. Eulex Kosovo was initially envisaged for a period of 2.5 years, (9) but has now been operating for over 15 years. Its current mandate runs until 14 June 2025. (10) However, in 2018, the European Union decided to scale down the mission and tasks of Eulex Kosovo. (11)
11. In fulfilling its mission, Eulex Kosovo was instructed to carry out a number of tasks, which included, in particular, to ‘ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced’. (12)
12. A year after Eulex Kosovo became operational, the Council established the Human Rights Review Panel (‘HRRP’) (13) to review complaints of alleged human rights violations committed by Eulex Kosovo in the performance of its executive mandate. (14)
13. The HRRP has jurisdiction to examine complaints relating to alleged human rights violations by Eulex Kosovo that have occurred since 9 December 2008. It is empowered to assess complaints under a number of international human rights instruments, but, in practice, complaints are primarily based on the ECHR. (15)
14. The HRRP has advisory functions only; its findings and recommendations are non-binding, but it may suggest remedial action to be taken by the Head of Mission. It is expressly provided, however, that the HRRP cannot recommend monetary compensation. (16)
2. Previous actions brought by KS and KD
15. KS and KD are the immediate family members of persons who disappeared or were killed in Kosovo, after the establishment of UNMIK, in June 1999. The requests made over the years by KS and KD to the relevant authorities to investigate those crimes yielded little or no response.
16. KS and KD, therefore, first lodged complaints before the Human Rights Advisory Panel (‘HRAP’), a body established to examine alleged violations of human rights by UNMIK (17) and later, with the establishment of Eulex Kosovo, before the HRRP.
17. In relation to KS, the HRRP found that Eulex Kosovo had violated her rights under the procedural limbs of Articles 2 and 3 ECHR by failing to carry out an effective investigation. It also found a violation of her family rights under Article 8 ECHR and of the right to an effective remedy under Article 13 ECHR. The HRRP made a number of recommendations to the Head of Mission. (18)
18. In relation to KD, the HRRP found that Eulex Kosovo’s investigative efforts were insufficient and resulted in the violation of her rights guaranteed by Articles 2 and 3 ECHR and by Article 13 ECHR in conjunction with Article 2 ECHR. As with KS, the HRRP made a number of recommendations to the Head of Mission. (19)
19. In the follow-up to the implementation of its recommendations, (20) the HRRP essentially declared that the Head of Mission implemented its recommendations only in part and decided to close the cases.
20. On 19 July 2017, KS brought an action against the Council, the Commission and the European External Action Service (‘EEAS’) before the General Court for the ‘annulment or amendment’ of Joint Action 2008/124 and the subsequent measures amending it, for infringement of Article 47 of the Charter and of Article 13 ECHR, and for ‘non-contractual liability’ based on the infringement of Articles 2, 3, 6, 13 and 14 ECHR. (21)
21. By order of 14 December 2017, (22) the General Court dismissed the action on the grounds, in particular, that it manifestly lacked jurisdiction to issue orders to the EU institutions and that Article 24(1) TEU and Article 275 TFEU prevented it from accepting jurisdiction for annulment of CFSP acts. The General Court did not treat that action as an action for damages.
22. The following year, on 14 June 2018, KS and KD, along with six other individuals, brought an action before the High Court of Justice (England & Wales), Queen’s Bench Division (United Kingdom). They claimed damages from the European Union, the Council and the High Representative of the Union for Foreign Affairs and Security Policy, along with Eulex Kosovo, for alleged breaches of their human rights under the Charter and the ECHR.
23. By judgment of 13 February 2019, (23) the High Court of Justice (England & Wales), Queen’s Bench Division held that it had no jurisdiction to hear the claim. In that court’s view, the Court of Justice had exclusive jurisdiction to hear that claim and grant the damages sought.
B. Broader context: accession of the European Union to the ECHR
24. As stated in the Introduction, the issue of the scope of the jurisdictional limitation of the EU Courts in the CFSP under Article 24(1) TEU and Article 275 TFEU is embedded in the broader context of the renewed negotiations on the accession of the European Union to the ECHR.
25. In Opinion 2/13, the Court found that the draft Accession Treaty as proposed at the time was inconsistent with several features of the EU legal order, as established by the Treaties. However, it had left open the question of the compatibility of that draft Accession Treaty with the relevant Treaty provisions on the CFSP. The Court considered that it had not yet had the opportunity to define the extent to which its jurisdiction is limited by Article 24(1) TEU and Article 275 TFEU. (24)
26. In order to respond to the concerns raised by that Opinion, an ad hoc negotiation group, known as the ‘46 + 1’ Group, was created. (25) In March 2023, the ‘46 + 1’ Group reached a unanimous provisional agreement on almost all issues raised by Opinion 2/13. (26) The only open topic remained the so-called basket 4, relating to the scope of the EU Courts’ jurisdiction in the CFSP. It was agreed that the European Union would resolve that issue internally and inform its negotiating partners of the solution. (27)
C. Proceedings before the General Court and the order under appeal
27. After their actions were dismissed by the United Kingdom court, KS and KD turned back to the EU Courts. On 29 December 2020, they brought an action before the General Court, requesting compensation for damages suffered as a result of the breach of their fundamental rights, attributable to the Council, the Commission and the EEAS, jointly or severally.
28. KS and KD claimed the following six violations:
– violation of Articles 2 and 3 ECHR and the corresponding Articles 2 and 4 of the Charter by Eulex Kosovo;
– violation of Article 6(1) and Article 13 ECHR and Article 47 of the Charter for failure to make provision for legal aid;
– failure to take remedial action when the findings of the HRRP were brought to the attention of the European Union by the Head of Mission of Eulex Kosovo on 29 April 2016;
– misuse or abuse of executive power by the Council and the EEAS on 12 October 2017 by the assertion that Eulex Kosovo had done its best to investigate the abduction and probable murder of KS’s husband and the murder of KD’s husband and son and that the HRRP was not intended to be a judicial body;
– misuse of or failure to use executive power properly by the removal of the executive mandate of Eulex Kosovo by Decision 2018/856, whilst the violations remained extant;
– misuse or abuse of executive power for failure to ensure that a legally sound review is conducted in the case of KS, a prima facie war crime case, by Eulex Kosovo and/or the Special Prosecutors Office for investigation and prosecution before the Kosovo Specialist Chamber.
29. On 25 March 2021, KS and KD submitted a request to add Eulex Kosovo as a defendant to the case, which was refused by the decision of the President of the Chamber of 31 March 2021.
30. On 5 June 2021, KS and KD submitted a request for measures of inquiry to obtain the production of the OPLAN, which is a classified document and which was referred to by the EEAS in its plea.
31. By the order under appeal, the General Court held that it manifestly lacked jurisdiction to hear the case.
32. First, the General Court observed that the case 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 the decision to set up a review panel as part of that mission. In accordance with Joint Action 2008/124, the establishment and activities of that mission fell within the CFSP provisions of the Treaties (paragraph 28 of the order under appeal).
33. Second, the General Court pointed out that the jurisdiction of the EU Courts in the CFSP is circumscribed by the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU. It considered that the EU Courts do not, as a rule, have jurisdiction with respect to the Treaty provisions relating to the CFSP and acts adopted on the basis of those provisions. While the Treaties expressly lay down two exceptions to that principle, neither of those exceptions – to monitor compliance with Article 40 TFEU and to review the legality of restrictive measures against natural and legal persons – applied in this case (paragraphs 29 to 33 of the order under appeal).
34. Third, the General Court distinguished this case from other cases within the CFSP context in which the Court was found to have jurisdiction, namely the judgments in Elitaliana, (28)H (29) and Bank Refah (30) (paragraphs 34 to 39 of the order under appeal).
35. Fourth, the General Court relied on the judgment in Carvalho (31) to deny the possibility to set aside the conditions expressly laid down by the Treaties solely by relying on the principle of effective judicial protection (paragraphs 40 and 41 of the order under appeal).
36. The General Court concluded that the case must be dismissed for the lack of jurisdiction without examining the pleas of inadmissibility raised by the Council, the Commission and the EEAS, or ruling on the request for measures of inquiry made by KS and KD for production of the OPLAN (paragraph 42 of the order under appeal).
D. Procedure before the Court of Justice
37. By their appeal lodged on 12 January 2022 in Case C‑29/22 P, as well as their response lodged on 2 March 2022 in Case C‑44/22 P, KS and KD request that the Court allow the action, set aside the order under appeal and grant the relief sought before the General Court or, in the alternative, allow the action and refer the case back to the General Court for final determination. KS and KD also request that the Court order the Council, the Commission and the EEAS to pay the costs.
38. By its appeal lodged on 19 January 2022 in Case C‑44/22 P, as well as by its response lodged on 1 April 2022 in Case C‑29/22 P, the Commission requests that the Court set aside the order under appeal, establish that the EU Courts have exclusive jurisdiction to hear the case, and refer the case back to the General Court to decide on the admissibility and the merits of the case. The Commission also requests that the Court reserve the costs.
39. By decision of the President of the Court of Justice of 21 March 2022, Cases C‑29/22 P and C‑44/22 P were joined for the purposes of the written and oral part of the procedure and the decision closing the proceedings.
40. In its response lodged on 4 April 2022, the Council requests that the Court dismiss the appeals and order KS and KD to pay the costs.
41. In its response lodged on 1 April 2022, the EEAS requests that the Court, should it consider that it has jurisdiction and sufficient elements to decide on the application, declare the action inadmissible in so far as it concerns the EEAS and order KS and KD to pay the costs.
42. By orders of 16 May 2022 and 12 May 2023, the President of the Court granted the French Republic and the Czech Republic leave to intervene in support of the form of order sought by the Council.
43. By orders of 27 April 2023 and 12 May 2023, the President of the Court granted the Kingdom of Belgium, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, Romania, the Republic of Finland and the Kingdom of Sweden leave to intervene in support of the form of order sought by the Commission.
44. A hearing was held on 27 June 2023 at which KS and KD, the Council, the Commission, the EEAS and those Member States presented oral arguments.
III. Analysis
45. Article 24(1) TEU and Article 275 TFEU provide for the limitation of the EU Courts’ jurisdiction in the area of the CFSP. The present case asks the Court to interpret whether that limitation covers an action for damages allegedly caused by breaches of fundamental rights committed in the implementation of the Eulex Kosovo mission.
46. The General Court concluded that it does, and thus found that it lacks jurisdiction. KS and KD, along with the Commission (together, ‘the appellants’), contest that finding of the General Court.
47. KS and KD raise a single ground of appeal, which is divided into four parts. The first part is based on misinterpretation of Article 24(1) TEU and Article 275 TFEU. The second part is based on misapplication of the judgment in Bank Refah. The third part is based on misapplication of the judgment in Carvalho. The fourth part is based on the failure to address the alleged breaches of fundamental rights and the mischaracterisation of the claim as seeking to challenge policy choices in the CFSP.
48. The Commission, supported by the Belgian, Luxembourg, Netherlands, Austrian, Romanian, Finnish and Swedish Governments, raises four grounds of appeal. The first ground is based on the misinterpretation of Article 24(1) TEU and Article 275 TFEU. The second ground is based on the failure to qualify the action as concerning alleged breaches of fundamental rights. The third ground is based on the misapplication of the judgment in Bank Refah. The fourth ground is based on the failure to establish the exclusive jurisdiction of the EU Courts and to ensure an effective remedy for the applicants.
49. In Bank Refah, the Court already found that it has jurisdiction to hear claims for damages related to restrictive measures. Outside of the context of restrictive measures, however, this is a novel question before the Court.
50. At the outset, it is important to explain that this case does not raise any substantive questions. Therefore, the Court is not asked to decide whether the omissions alleged before the General Court represent a breach of fundamental rights, and, if so, who in the European Union should be held responsible and whether the conditions to award damages are fulfilled. (32) Should the Court find the appeal to be well founded, those issues would still have to be dealt with by the General Court. The present appeal only raises the question whether the EU Courts can hear the claims for damages brought by KS and KD at all.
51. Some legal commentators seem to disagree that the EU Courts have jurisdiction in the CFSP, even if actions for damages rely on alleged breaches of fundamental rights. (33) Others argue the opposite. (34)
52. The Court’s case-law that came after Opinion 2/13 already offers many elements to answer the question raised by the present appeals. It is, therefore, appropriate to revisit those cases and identify the principles already established therein.
A. Limitation of jurisdiction in the CFSP is an exception and has to be interpreted narrowly
53. The case-law interpreting Article 24(1) TEU and Article 275 TFEU rests on the understanding that the limitation to the general jurisdiction of the EU Courts based on Article 19(1) TEU is an exception, and as such must be interpreted narrowly. (35)
54. In Mauritius, (36) the Court held that ‘the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly’. Similar wording was used in subsequent cases. (37)
55. This narrow interpretation has so far been applied in three groups of cases. They concern three types of measures that the European Union can adopt under the CFSP legal bases: (i) restrictive measures; (ii) EU missions; and (iii) international agreements.
1. Cases relating to restrictive measures
56. The first group of cases is related to restrictive measures adopted under Article 29 TEU. The second paragraph of Article 275 TFEU expressly provides that the EU Courts have jurisdiction to review the legality of restrictive measures enacted under the CFSP when the challenges are brought by individuals through actions for annulment in conformity with the fourth paragraph of Article 263 TFEU.
57. Despite the lack of an express reference in the text of the second paragraph of Article 275 TFEU, the Court has considered that it may also review the legality of restrictive measures in other types of proceedings.
58. In Rosneft, (38) the Court considered that it can assess the lawfulness of restrictive measures in preliminary ruling proceedings.
59. The Court interpreted the second paragraph of Article 275 TFEU as not referring to the type of procedure in which legality can be reviewed (in other words, only actions for annulment), but rather to the type of decision which may be reviewed (in other words, restrictive measures). (39) It recalled that Articles 263 and 267 TFEU together form part of a complete system of review of the legality of EU measures, which means that the Court can also review the validity of a restrictive measure indirectly, when such issue arises in the case pending before the national court. (40) That is so even if it is not expressly stated in Article 275 TFEU. The Court also referred to the judgment in Foto-Frost, (41) implying that the national court would be under the obligation to refer and leave the finding of invalidity of the restrictive measures to the Court.
60. In Bank Refah, (42) the Court confirmed its jurisdiction to hear an action for damages against the European Union for harm allegedly suffered by individuals as a result of restrictive measures. It explained that the action for damages is an autonomous action with its own purpose in the EU system of legal remedies.
61. The Court acknowledged that the second paragraph of Article 275 TFEU does not expressly mention the jurisdiction of the EU Courts over actions for damages. However, such lack of express wording does not preclude its jurisdiction, given that the limitations placed on it in the CFSP must be interpreted restrictively.(43)
62. It seems to follow from those cases that, despite the express mention of only actions for annulment in the second paragraph of Article 275 TFEU, individuals may challenge restrictive measures in all other types of actions available before the EU Courts to assess their legality.
2. Cases relating to EU missions
63. The second group of cases in which the Court has interpreted the limitation of its jurisdiction narrowly is related to EU missions. In those cases, the Court grounded its jurisdiction on the finding that the measure it was reviewing or interpreting was not about CFSP matters, even though it was situated in that area and based on a CFSP act.
64. In Elitaliana, (44) the Court found that the acts that were challenged related to the award of a public contract for helicopter services to a competing tenderer and gave rise to expenditure to be charged to the EU budget, subject to the EU Financial Regulation. Those acts, whose legality was challenged in actions for annulment and for damages, were adopted by Eulex Kosovo on the basis of Joint Action 2008/124. Nevertheless, the Court considered that excluding its jurisdiction in that situation simply because the acts at issue were taken in the framework of the CFSP would be too narrow a reading of the limitation of its jurisdiction in that EU policy. The Court therefore held that Article 24(1) TEU and Article 275 TFEU did not exclude its jurisdiction to interpret and apply the provisions of the EU Financial Regulation even if public procurement decisions were taken in the area of the CFSP.
65. In H, (45) the Court upheld the jurisdiction of the EU Courts to hear actions for annulment and for damages lodged by a staff member of an EU civilian mission in connection with decisions taken by the head of that mission to redeploy her to a regional post. Similarly as in Elitaliana, the Court considered that, while the EU acts at issue were set in the context of the CFSP and related to operational action under the CFSP, they did not constitute acts referred to in Article 24(1) TEU and Article 275 TFEU. Those acts essentially concerned staff management matters. Consequently, the Court’s jurisdiction to review them was not excluded.
66. It seems to follow from those cases that acts, even if adopted in the context of the CFSP and on a CFSP legal basis, do not escape the EU Courts’ jurisdiction if their lawfulness is assessed in relation to provisions of the FEU Treaty or secondary law adopted under those provisions.
3. Cases relating to international agreements
67. The final group of cases concerns the third type of measure that may be adopted within the CFSP: international agreements. In Mauritius, (46) the European Parliament sought the annulment of a CFSP decision adopted on the basis of Article 37 TEU, by which the European Union had concluded an agreement with Mauritius. (47) Although the case concerned the review of a CFSP measure, the Parliament challenged it based on errors relating to the procedure used for its adoption: Article 218 TFEU, which governs the procedure for the conclusion of international agreements in both the CFSP and other EU policies. The Court held that the scope of the jurisdictional limitation provided for in Article 24(1) TEU and Article 275 TFEU cannot go so far as to preclude the Court from interpreting and applying Article 218 TFEU even if this is for the purpose of assessing the lawfulness of a CFSP measure.
68. The main issue raised by that case was whether the CFSP legal basis was the sole substantive legal basis on which the agreement with Mauritius should have been based. Interestingly, the Court did not decide that case on the basis of the second paragraph of Article 275 TFEU, which expressly provides for the jurisdiction of the Court to monitor compliance with Article 40 TEU. Rather, the Court chose to address the question of jurisdiction by narrowing the scope of the limitation of jurisdiction itself, (48) and it based its decision on a similar logic to the one applied in Elitaliana and H, that the review of a CFSP measure is possible if carried out in the light of the FEU Treaty or secondary law.
69. Taking into consideration the foregoing case-law, I am of the view that arguments advanced by the appellants (49) that the General Court erred in law because it treated the limitation of jurisdiction in Article 24(1) TEU and Article 275 TFEU as the rule, rather than the exception, should be accepted.
B. Broader context of the Treaties
70. The Court’s understanding of the limitation imposed on its jurisdiction in the CFSP as an exception and not the rule, with the consequence that such a limitation must be construed narrowly, has its basis in EU constitutional principles.
71. To explain the narrow reading of the jurisdictional limitation in the aforementioned cases, the Court relied on the basic values of the EU legal order, essentially the rule of law, the principle of effective judicial protection and the protection of human rights. By virtue of Articles 21 and 23 TEU, those principles also apply to the CFSP. (50)
1. The CFSP in the structure of the Treaties
72. The Lisbon Treaty abandoned the pillar structure and included the CFSP in the EU constitutional regime. The exercise of CFSP competence thus also became subject to the same constitutional principles as the rest of the EU policies.
73. Article 23 TEU confirms this, by stating that the basic principles and objectives of the European Union as expressed in Chapter 1 of Title V of the TEU also apply in the CFSP.
74. In Bank Refah, (51) the Court pointed out that the structure of the Treaties has changed, and that the Lisbon Treaty has given the European Union a single legal personality in Article 47 TEU and put an end to the distinction between the former European Community and the European Union. This has resulted, in particular, in the integration of the CFSP provisions into the general framework of EU law, even if the CFSP is still subject to special rules and procedures as laid down in Article 24 TEU. (52)
75. That evolution of the CFSP, neglected in the reasoning in the order under appeal, is an important element to take into account when ruling on the extent of the limitation of jurisdiction of the EU Courts.
76. I will now turn to the broader constitutional context that enabled the Court to find that the limitation of jurisdiction in the CFSP must be interpreted narrowly. The principles developed in those cases should guide the Court in ruling on its jurisdiction in the present case.
2. The rule of law, fundamental rights and the role of the EU Courts
77. The inclusion of the CFSP in the EU constitutional framework means that the basic principles of the EU legal order also apply to all activities of the European Union undertaken within that policy. Those principles, expressed in Article 2 TEU, of which the rule of law, effective judicial protection and the protection of human rights are most relevant for the present case, form part of the constitutional identity of the European Union. (53)
78. In the Court’s words, ‘Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which … are an integral part of the very identity of the European Union as a common legal order’. (54)
79. In cases in which the Court considered it necessary to interpret the jurisdictional limitation in the CFSP narrowly, it emphasised that Articles 21 and 23 TEU, which respectively relate to EU external action generally and the CFSP in particular, apply the values expressed in Article 2 TEU to the CFSP. (55)
80. The rule of law, as a value expressed today in Article 2 TEU, requires that both EU and Member State authorities be subject to judicial review. That was expressed by the Court as long ago as the judgment in Les Verts. (56)
81. Thus, the rule of law requires that individuals deriving rights from EU law be guaranteed effective judicial protection against EU and Member State authorities. In Associação Sindical dos Juízes Portugueses, (57) the Court explained that such a requirement is given concrete expression in Article 19(1) TEU.
82. That provision bestows the task of protection of EU-based rights on the EU Courts, which they share with all Member State courts. (58) In principle, actions seeking protection against acts (or omissions) of EU institutions lie before the EU Courts, whereas individuals need to seek protection against Member State acts (or omissions) before the national courts.
83. Since the CFSP is, under the Lisbon Treaty, subject to the same basic constitutional principles, the rule of law in the EU legal order requires that the EU Courts ensure the lawfulness of the actions of EU institutions and bodies when they implement that policy.
84. In order to ensure the effective judicial protection of individuals who claim that their fundamental rights, as guaranteed by the EU legal order, have been infringed by EU institutions or bodies in the exercise of the CFSP, the EU Courts must, in principle, have jurisdiction to hear such claims.
85. As the Court recalled in Kadi I, (59) respect for human rights is a condition of the lawfulness of EU acts, and acts incompatible with human rights are not acceptable within the European Union. In that case, this resulted in the jurisdiction of the Court to hear claims by individuals that their human rights have been violated, even if EU institutions were only (mechanically) transposing their international obligations. The Court considered that an international obligation cannot prevail over the constitutional promise that the European Union, through its Courts, guarantees to individuals that EU institutions will not violate human rights.
86. In the words of Advocate General Poiares Maduro, ‘the claim that a measure is necessary for the maintenance of international peace and security cannot operate so as to silence the general principles of [EU] law and deprive individuals of their fundamental rights.’(60) That is why ‘the Court cannot … turn its back on the fundamental values that lie at the basis of the [EU] legal order and which it has [a] duty to protect’. (61)
87. More recently, in Ledra Advertising, (62) the Court made it clear that the Charter is always addressed to the EU institutions, including when they act outside the EU legal order. The fact that the Commission acted within the European Stability Mechanism (‘ESM’), which is an international arrangement created outside of the EU legal framework, did not mean that the Commission is not bound by EU fundamental rights. The result was that the EU Courts could not be precluded from hearing actions for damages against the European Union based on unlawful conduct linked to such ESM acts.
88. In the foregoing cases, the principle that conformity with fundamental rights is a condition for the lawfulness of EU measures resulted in the finding that the EU Courts have jurisdiction to hear actions brought by individuals who claim that their fundamental rights have been infringed. In Ledra Advertising, the Court could even hear an action for damages allegedly caused by an EU institution outside of the framework of EU law, by an act against which an action for annulment could not be introduced, as it was external to the European Union. Similarly, in Kadi I, an individual could ask for the annulment of an EU implementing measure, by claiming that it breaches fundamental rights, even if that individual could not challenge before the Court the measure which was being implemented, as it belonged to the UN system and not to the system of EU law.
89. A fortiori, one may therefore claim that the EU Courts must have jurisdiction to hear an action for damages brought by individuals who claim that their fundamental rights have been breached, even if that action challenges the lawfulness of an EU act in the CFSP, which, as compared to the act at issue in Ledra Advertising, is an act within the EU’s competence.
90. These basic principles of EU constitutional law, namely the rule of law, effective judicial protection and protection of human rights – which justify the Court’s judgments in which it found that the limitation of its jurisdiction in Article 24(1) TEU and Article 275 TFEU is an exception, not the rule, and has to be interpreted narrowly – were ignored by the General Court in the order under appeal. The General Court distinguished the Court of Justice’s judgments in Elitaliana, H and Bank Refah from the present case on the basis of narrow and formalistic reasoning. It essentially held that those judgments were not comparable to the situation in the present case simply because they arose in a different factual context, (63) thereby neglecting entirely the general principles that underpin those cases and are applicable in any case that requires an interpretation of the limits of the EU Courts’ jurisdiction in the CFSP.
91. Accordingly, the line of argument put forward by the appellants (64) that the General Court wrongly distinguished those cases should be accepted.
92. For that reason, the General Court failed to address the following question: how do these basic postulates of the Treaties as interpreted in the case-law impact the answer to the question raised by the present case?
C. Interpreting Article 24(1) TEU and Article 275 TFEU in the present case
1. Interpretation, not modification, of the Treaties
93. In the light of the foregoing principles, it seems evident to me that the jurisdiction of the EU Courts to hear a claim by which an individual requires protection from breaches of his or her fundamental rights cannot be excluded simply because that breach occurred in the context of the CFSP. Article 24(1) TEU and Article 275 TFEU should, accordingly, be interpreted as not applying to actions for damages for the alleged breach of fundamental rights resulting from a CFSP measure.
94. That being said, the rule of law not only empowers the EU Courts to ensure that other EU institutions and bodies abide by the law, but also binds the EU Courts themselves to follow the law.
95. The question one may therefore ask is: what does fidelity to the law require from the Court? Should it strictly abide by the wording of the Treaties which limit its jurisdiction in the CFSP, or should it give preference to EU constitutional principles and establish the jurisdiction necessary to protect fundamental rights, even if this is not expressly provided for by the wording of the Treaties?
96. In Les Verts, the Court considered that the rule of law was better served by the intervention in the wording of the Treaty. (65) As expressed by Advocate General Mancini in his Opinion in that case, ‘the obligation to observe the law takes precedence over the strict terms of the written law. Whenever required in the interests of judicial protection, the Court is prepared to correct or complete rules which limit its powers in the name of the principle which defines its mission’. (66)
97. In the order under appeal, however, the General Court considered that the case-law, as recently reiterated in Carvalho, (67) prevents it from accepting jurisdiction in the present case. The General Court explained that, although the provisions relating to the jurisdiction of the EU Courts must be interpreted in the light of the principle of effective judicial protection, this cannot have the effect of setting aside the conditions expressly laid down in the Treaties.
98. The appellants argue (68) that that case-law may be distinguished and is therefore not applicable to the present case because it relates to the conditions governing actions for annulment brought by individuals, and not to actions for damages.
99. I do not agree that that is the reason to distinguish that case-law. On the contrary, I find the Court’s reasoning in Carvalho to be applicable to the present case inasmuch as it expresses the principle that the requirement of effective judicial protection cannot on its own lead to the modification of the Treaties by the EU Courts.
100. Nevertheless, that does not prevent the EU Courts from interpreting the Treaties in conformity with the principle of effective judicial protection. To my mind, the EU Courts are even obliged to do so.
101. In his Opinion in SatCen v KF, (69) Advocate General Bobek similarly concluded: ‘Put simply, Article 47 of the Charter does not allow the Court to rewrite the Treaties, but it does require the Court to interpret the existing provisions so that they can achieve their full potential to provide judicial protection to anyone concerned by acts of EU institutions and bodies.’
102. In the order under appeal, the General Court indeed recognised the need to interpret Article 24(1) TEU and Article 275 TFEU in the light of the principle of effective judicial protection. (70) However, it failed to try to do so.
103. Therefore, the General Court left open the question whether the limitation of jurisdiction in the CFSP may be interpreted so as to ensure effective judicial protection in the present case.
104. In the context of these appeals, that is precisely the question to be asked and answered. Can the limitation of jurisdiction of the EU Courts in Article 24(1) TEU and Article 275 TFEU be interpreted so as to exclude actions for damages for breaches of fundamental rights by the European Union, even if they (allegedly) occur in the area of the CFSP?
2. The arguments of the parties and interveners
105. The appellants argue (71) that the General Court failed to consider that the claim for damages was based on an alleged breach of fundamental rights and to interpret the limitation of jurisdiction of the EU Courts in the CFSP in the light of fundamental rights and the rule of law. The Belgian, Luxembourg, Netherlands, Austrian, Romanian, Finnish and Swedish Governments, which intervened in support of the Commission, emphasise that, in the light of the European Union’s founding values and general principles of EU law, the EU Courts must have jurisdiction over actions for damages concerning alleged breaches of fundamental rights in the CFSP. Additionally, the Czech Government contends that, while it supports the Council’s position, the EU Courts have jurisdiction to scrutinise acts in the CFSP if those acts could lead to the breach of fundamental rights.
106. More specifically, the Commission submits that the present case concerns alleged violations of human rights, and that the CFSP is merely the context in which such violations occurred. Thus, the Court is faced with what is essentially ‘a human rights damages claim’ arising under EU law in relation to a CFSP measure.
107. That argument seems to rely on a similar logic to the one on which the EU Courts’ jurisdiction was based in cases such as Mauritius, Elitaliana and H. Even if the EU Courts are invited to rule on the lawfulness of a CFSP act, the situation of the present case is not covered by the jurisdictional limitation of Article 24(1) TEU and Article 275 TFEU because the lawfulness of that act depends on the interpretation of the law contained in the Charter.
108. The Commission further submits that there is no derogation under any provision of the Treaties from the jurisdiction of the EU Courts as regards alleged breaches of fundamental rights in any area of EU law, including the CFSP. Reading Article 24(1) TEU and Article 275 TFEU in a way that would deprive individuals from raising claims alleging breaches of their fundamental rights in the CFSP would jeopardise the essential characteristics of the system of judicial protection under the Treaties as interpreted by the Court.
109. The Council and the EEAS argue that the jurisdiction of the EU Courts in the present case is precluded by Article 24(1) TEU and Article 275 TFEU, and that none of the existing strands of the Court’s case-law relating to the CFSP applies. Nevertheless, the Council does not entirely exclude the EU Courts’ jurisdiction over alleged breaches of fundamental rights in the area of the CFSP, and emphasises that suitable criteria must be found to preserve the useful effect of the Treaty provisions limiting the jurisdiction of the EU Courts in the CFSP. According to the Council, there should be a clear distinction between acts implying policy choices, which are not subject to judicial control, and acts aimed at the implementation of concrete actions, which are. Those concrete actions in principle do not imply policy choices, but constitute the mere execution of those choices in the CFSP context.
110. The French Government, which intervened in support of the Council, considers, however, that the distinction between political and other CFSP decisions is not workable. According to that Member State, the Treaty provisions limiting the jurisdiction of the EU Courts in the CFSP must be interpreted according to their wording, namely that the EU Courts do not have jurisdiction over any CFSP measure but for the two exceptions set out in the second paragraph of Article 275 TFEU.
3. The purpose of the limitation of jurisdiction in the CFSP
111. I agree with the French Government and the Council that the limitation of jurisdiction of the EU Courts in the CFSP cannot be ignored and must be attributed some meaning. That brings to the fore an important issue, which is, to my mind, the key to defining the boundaries of the EU Courts’ jurisdiction in the CFSP: what is the purpose of the jurisdictional limitation?
112. The distinction suggested by the Council and the EEAS between political or strategic decisions, on the one hand, and merely administrative CFSP measures, on the other, might reflect the intention of the authors of the Treaties to keep the EU Courts away from influencing policy choices in the area of foreign relations. It is true that in most cases in which the Court is invited to interpret a rule, it can make a choice about its meaning. Even if the Court’s choice is guided by some other rules and concerns, it is still a choice. (72)
113. There are questions in which the choice must be left exclusively to the political process. Advocate General Wathelet considered in his Opinion in Rosneft that ‘the reason for the limitation of the Court’s jurisdiction in CFSP matters brought about by the “carve-out” provision is that CFSP acts are, in principle, solely intended to translate decisions of a purely political nature connected with implementation of the CFSP, in relation to which it is difficult to reconcile judicial review with the separation of powers’. (73) The limitation of jurisdiction of the EU Courts could thus be understood as a sort of codified ‘political question doctrine’. (74) The authors of the Treaties might have felt it necessary to state this expressly, as the Court was not (yet) (75) prepared to develop such a doctrine.
114. Indeed, in the light of the principle of the separation of powers (referred to as the principle of institutional balance in the European Union), which is an important part of the rule of law and the principle of democracy, (76) it is not the prerogative of courts to replace policy choices made by competent political institutions.
115. However, this is true for any area of EU law, not just for the CFSP. The EU Courts are not supposed to replace policy choices made by the EU institutions upon which the Treaties bestowed decision-making powers. That being said, in constitutional democracies, policy choices are not unlimited. In a Union based on the rule of law, it could not have been the intention of the authors of the Treaties to allow for breaches of fundamental rights in the CFSP. As the breach of a fundamental right cannot be a policy choice, the EU Courts must be able to control whether that limit was crossed. (77) Only in this way can they fulfil their mission that in the interpretation and application of the Treaties the law is observed.
116. That leads to the conclusion that the EU Courts’ jurisdiction to review any CFSP measure, including a political or strategic one, in order to ensure its conformity with fundamental rights cannot be excluded by Article 24(1) TEU and Article 275 TFEU.
117. I acknowledge that the respect for fundamental rights can be ensured in different ways, and can leave some room for policy choices. Most rights guaranteed by the Charter can be limited if such limitation serves another legitimate purpose and achieves it in a proportionate way. (78) Thus, for example, the right to protection of personal data (under Article 8 of the Charter) can be limited in order to fight international terrorism, or the right to property (under Article 17 of the Charter) can be curtailed in order to contribute to the effectiveness of sanctions introduced against a third State. The assessment of justifications as well as the appropriateness and necessity of the measures which limit certain rights might differ. In that respect, there is a reason for the deference of the EU Courts to the political choices in complex issues of international politics. The Court seems to be sensitive to that concern, as demonstrated by its case-law. (79) Nevertheless, even if one may discuss the appropriate level of scrutiny, the EU Courts cannot be excluded from their constitutional role to provide for the protection of fundamental rights when so requested by individuals.
118. I can agree that there are certain strategic choices with which the EU Courts can indeed not interfere. For example, to my mind, the EU Courts cannot assess whether the European Union should deploy a mission in a certain part of the world. That is so even if the establishment of such a mission might improve the human rights situation of people in that area. However, once the political decision to engage in a certain country or conflict is adopted, the EU Courts must be able to control whether it is designed and implemented so that it does not interfere disproportionately with human rights.
119. Some decisions in that respect require more deference to the reasons put by the Council or other responsible body. The availability of financing for a particular mission, for instance, might indeed influence the rights of persons whose family members’ disappearances were not successfully investigated. Nonetheless, the EU Courts must take into consideration the arguments about the overall financial and staff capacity of the European Union which has missions around the world and cannot second-guess the decision of how best to distribute those resources. Yet, this does not exclude the EU Courts’ jurisdiction altogether. Rather, the need for deference and the level of scrutiny are questions that arise once jurisdiction is established.
120. Consequently, I cannot agree with the Council that, in the present case, the EU Courts could assess only whether Eulex Kosovo complied with fundamental rights in the conduct of its investigations, but that the EU Courts would not have jurisdiction over the lawfulness of the Council’s decisions phasing out the executive mandate of Eulex Kosovo or the allocation of sufficient resources to Eulex Kosovo, as they entail political and strategic decisions not amenable to judicial review. If those political or strategic choices might infringe fundamental rights, the EU Courts must be able to hear such a complaint by an individual, although it is likely to be deferential to the reasons offered by the Council in its assessment as to whether those choices are in breach of fundamental rights.
4. What is excluded from the jurisdiction of the EU Courts in CFSP matters?
121. The jurisdictional limitation cannot go so far as to exclude the review of conformity of CFSP measures with fundamental rights. What, then, is the scope of that jurisdictional limitation?
122. The jurisdictional limitation covers, in my view, two issues. First, the EU Courts cannot review the conformity of CFSP acts with the CFSP provisions of the Treaties. (80) Second, the EU Courts cannot interpret those primary CFSP rules, nor the CFSP acts adopted on the basis of those rules. Of course, when carrying out a review of the lawfulness of CFSP acts in the light of fundamental rights, the EU Courts cannot entirely avoid interpreting CFSP rules, as this is a precondition to assessing their conformity with those rights. (81) In that respect, however, the EU Courts must defer to the explanation of the meaning of a certain policy choice offered by its author, and assess whether the choice thus understood exceeds the limit allowed by the Charter.
123. However, as long as the policy choice made by a CFSP measure does not exceed the limits imposed by the EU constitutional framework, the EU Courts’ involvement is excluded. If a CFSP rule can be interpreted in three possible ways (A, B or C) and none of them is in breach of fundamental rights, the EU Court cannot choose between A, B and C. That, in turn, means that the other important role which the Court has under the Treaties – to ensure the uniform interpretation and application of EU law – is missing in the area of the CFSP. If uniformity is to be secured, the Court must be given the power to make a choice between different possible interpretations of a rule. That being excluded, it must be assumed that the authors of the Treaties accepted the divergences that might occur when CFSP measures are put into practice in different Member States. The case of Neves 77 Solutions, in which my Opinion is also being delivered today, is an example of such a situation.
124. To summarise, EU institutions and bodies are always bound by fundamental rights, and the choice to infringe those rights is not an available political or strategic choice, including in the area of the CFSP. If the purpose of the jurisdictional limitation in the CFSP is to prevent the EU Courts from intervening in political and strategic decisions in the area of the CFSP, such a purpose does not require the exclusion of jurisdiction to review alleged breaches of fundamental rights. There is a limit imposed on political and strategic decisions, as they can never be in breach of fundamental rights. Article 24(1) TEU and Article 275 TFEU must, therefore, be interpreted as not preventing the EU Courts from policing such constitutional limits by hearing actions for damages brought by individuals for alleged breaches of fundamental rights by CFSP measures.
5. The second paragraph of Article 275 TFEU
125. Article 24(1) TEU and the first paragraph of Article 275 TFEU are often described as ‘carve-out’ provisions because they cut out part of the general jurisdiction of the EU Courts under Article 19 TEU. The second paragraph of Article 275 TFEU is then described as a ‘claw- back’ provision, as it brings back the excluded rule within the ambit of the jurisdiction of the EU Courts. (82)
126. If one understands the relationship between the first and second paragraphs of Article 275 TFEU in that way, logic demands that the ‘claw-back’ provision is applicable only if the ‘carve-out’ provisions excluded the jurisdiction of the EU Courts in a particular situation. I have concluded that judicial control over possible breaches of fundamental rights cannot be ‘carved out’ from the general jurisdiction of the EU Courts even if the act to be reviewed is a CFSP measure. Therefore, the ‘claw-back’ provision of the second paragraph of Article 275 TFEU would be irrelevant for establishing jurisdiction in actions for damages based on alleged breaches of fundamental rights.
127. To my mind, however, the second paragraph of Article 275 TFEU should not be interpreted as a ‘claw-back’ provision, which restores the ‘normal’ state of the EU Courts’ jurisdiction in enumerated situations. Instead, I am of the view that the second paragraph of Article 275 TFEU should be interpreted as a provision that informs the interpretation of the scope of the jurisdictional limitation under Article 24(1) TEU and the first paragraph of Article 275 TFEU.
128. As has been noted, (83) the wording of Article 24(1) TEU and of the first paragraph of Article 275 TFEU is not identical. Article 24(1) TEU excludes the jurisdiction of the EU Courts with respect to ‘these provisions’, referring to the provisions mentioned in the preceding sentences of Article 24(1) TEU. Those provisions state that, in adopting CFSP measures, the Council in principle acts unanimously, that legislative acts are excluded in the CFSP, that the CFSP is to be implemented either by the European Union or by the Member States, and that the Parliament and the Commission have special roles within the CFSP. However, Article 24(1) TEU provides that the EU Courts must be able to monitor compliance with Article 40 TEU and can review the legality of certain CFSP decisions. In that respect, Article 24(1) TEU refers to the second paragraph of Article 275 TFEU.
129. The first paragraph of Article 275 TFEU then repeats the limitation of the EU Courts’ jurisdiction already expressed in Article 24(1) TEU, but adds that that limitation applies not only to ‘these provisions’, that is to say, of Chapter 2 of Title V of the TEU, but also to acts adopted on the basis of those provisions. That limitation is, as recognised in the case-law, narrow. In that respect, the second paragraph of Article 275 TFEU explains what cannot be ‘carved out’. Unlike its first paragraph, the second paragraph of Article 275 TFEU must be interpreted broadly, as it informs the (narrow) interpretation of the scope of the ‘carve-out’.
130. The reference to Article 40 TEU in the second paragraph of Article 275 TFEU suggests that the Court must retain jurisdiction over the institutional balance provided for by the Treaties. Disputes that fall within that category are those about the proper legal basis for the adoption of a certain measure, and they are usually motivated by the difference in powers attributed to the EU institutions by those different legal bases. Examples of such a dispute are the Mauritius and Tanzania cases referred to above. (84)
131. The reference to actions for annulment in respect of restrictive measures against natural and legal persons seems relatively narrow. It can, however, be understood in a broader sense as requiring that the jurisdiction of the EU Courts cannot be limited in respect of the legality review of CFSP measures which restrict the rights of individuals.
132. A simplistic, but, to my mind, plausible explanation for including verbatim only actions for annulment brought by individuals against restrictive measures is that at the time of the adoption of the Lisbon Treaty, due to the Kadi case-law, possible breaches of individuals’ rights by restrictive measures was an obvious example. (85) Nevertheless, if read in the light of Article 24(1) TEU, which refers more generally to the judicial review of certain measures, the second paragraph of Article 275 TFEU may be construed as ensuring that there is no limitation on judicial review of all those CFSP measures which restrict the rights of individuals.
133. If the relationship between the two paragraphs of Article 275 TFEU is understood as if the second paragraph informs the interpretation of the first, the ‘red line’ for the jurisdictional limitation is the constitutional role assigned by the Treaties to the EU Courts. It concerns, first, safeguarding the institutional structure set out in the Treaties and, second, protecting the rights of individuals.
6. The possible role of national courts
134. It is clear that CFSP measures should not be in breach of the fundamental rights of individuals. It is also clear that judicial review over alleged breaches of fundamental rights must be available. It might, however, be argued that such cases do not need to be heard by the EU Courts, but may be submitted to the jurisdiction of national courts. (86)
135. According to Article 274 TFEU, disputes to which the European Union is a party are not excluded from the jurisdiction of national courts on that ground. If Article 24(1) TEU and Article 275 TFEU are interpreted as excluding the jurisdiction of the EU Courts over actions for damages based on breaches of fundamental rights allegedly caused by CFSP measures, such claims may still be heard by national courts, even if those claims are directed at EU institutions and bodies.
136. Would such a solution satisfy the requirements of effective judicial protection? In her View in Opinion 2/13, (87) Advocate General Kokott considered that it would. Her analysis, however, started from the position that the limitation of the EU Courts’ jurisdiction in Article 24(1) TEU and the first paragraph of Article 275 TFEU is the rule, and not the exception, (88) a position that has been superseded by the Court’s later case-law.
137. In my view, and this is clearly demonstrated by the present case, it is questionable whether national courts would be able to provide effective judicial protection to individuals in all situations in which EU institutions and bodies might breach their rights by CFSP measures. As indicated by the Czech and Luxembourg Governments, there are many practical barriers to access to national courts with regard to such claims. One may ask, for example, which court and of which Member State should hear a claim against measures taken by an EU mission established in a third country? KS and KD tried to introduce an action before the United Kingdom courts (in pre-Brexit times). As I explained earlier, the national court considered that the claim was not in its jurisdiction. Such a denial of jurisdiction by a national court could, however, be overcome if the Court adopts the firm position that it does not have jurisdiction.
138. That still does not resolve the issue of which national court should hear the case. The French Government suggested that it could be a court of the Member State which holds the Council presidency. There is, however, no particular justification why a court of that Member State would be in the best position to hear a case regarding the alleged breach of fundamental rights by an EU mission. Another option is that the action could be brought before the courts of any Member State. Such a solution might result in forum shopping, as claimants would look for the Member State with the most favourable procedural rules governing actions for damages.
139. As national courts would not have the possibility to submit preliminary references to the Court, the interpretation of Charter rights when applied to CFSP measures might be liable to differ. Such differences would, in the end, be resolved by the European Court of Human Rights (‘ECtHR’), to which individuals may decide to turn if they consider that their human rights were not adequately protected.
140. When faced with such practical problems with selecting the competent national court, the French Government suggested that a new common court could be established to hear cases relating to breaches of fundamental rights by CFSP measures. While the Member States may well do so, I wonder why they would be willing to bestow jurisdiction on another supranational court if they were not willing to recognise such jurisdiction for the EU Courts.
141. Finally, to recall, the present case asks whether the EU Courts can hear actions based on EU non-contractual liability for damages allegedly caused by CFSP measures.
142. The Court has already held that the EU Courts have exclusive jurisdiction to hear actions for damages based on EU non-contractual liability. (89) Such actions distinguish the European Union from international organisations which typically enjoy extensive immunity from actions for damages in court. (90) Indeed, as commentators have noted, (91) it was agreed by the authors of the Treaties that the European Union should not benefit from immunity as regards its non-contractual liability, but that the decisions should not be taken by national courts.
143. Consequently, the action for damages is envisaged by the Treaties as being exclusively in the hands of the EU Courts. National courts cannot decide about non-contractual liability for damages allegedly caused by EU institutions and bodies in any area which is within the scope of EU law.
144. Additionally, actions for damages, if left to the national courts, would be based on their own national non-contractual liability law, with different outcomes depending on the applicable national rules. National courts cannot, therefore, fill the gap and provide for the same type of remedy as could the EU Courts.
D. Potential implications for the accession of the European Union to the ECHR
145. As already explained, the present case should be placed within the broader context of the negotiations on the accession of the European Union to the ECHR. It is worth recalling that, according to Article 6(2) TEU, such accession is an obligation, and not a choice, for the European Union.
146. Nevertheless, the process of acceding to the ECHR is only possible, as demonstrated by Opinion 2/13, if it respects the specific characteristics of the EU legal order and does not affect EU competences under the Treaties.
147. If the Court accepts the proposed interpretation that Article 24(1) TEU and Article 275 TFEU must be construed as not excluding the EU Courts’ jurisdiction to hear claims for damages caused by CFSP measures as regards possible breaches of fundamental rights, what would that mean for the European Union’s future membership of the ECHR?
148. First, it would contribute to determining more clearly the limitation of jurisdiction of the EU Courts in the area of the CFSP, which is an issue that the Court left open in Opinion 2/13.
149. Second, it would clarify that, whenever a CFSP measure is challenged for one of the reasons that may also be adjudicated by the ECtHR, that is, the alleged breach of fundamental rights, the EU Courts’ jurisdiction is not limited by the ‘carve-out’ provisions of the Treaties.
150. From the point of view of the EU legal order, the proposed interpretation would satisfy the constitutional requirement to safeguard its autonomy. It would avoid a situation in which possible discrepancies between national courts as to whether CFSP measures are in breach of fundamental rights are decided upon by a court external to the EU legal order. Before a case alleging a violation of human rights could be heard by the ECtHR, it would first have to be decided by the EU Courts. A majority of Member States that intervened in the present case agreed with the vivid description introduced by the Czech Government to the effect that ‘every train that may end up in Strasbourg first needs to stop in Luxembourg’. The proposed interpretation provides for such a Luxembourg stop.
151. From the point of view of the system as established by the ECHR, the proposed interpretation would mean that, before an action brought before the ECtHR is admissible, remedies that lie before the EU Courts must be exhausted.
152. Would that significantly increase the caseload of the EU Courts?
153. I do not find that such a concern is justified. If an individual considers that there has been a breach of his or her fundamental rights, access to the EU Courts should indeed exist. It is in the interest of the EU legal order that such situations are discovered and rectified.
IV. 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.