Appeal brought on 19 January 2022 by European Commission against the order of the General Court (Ninth Chamber) delivered on 10 November 2021 in Case T-771/20, KS and KD v Council and Others

(Case C-44/22 P)

Language of the case: English

Parties

Appellant: European Commission (represented by: Y. Marinova and J. Roberti di Sarsina, Agents)

Other parties to the proceedings: KS, KD, Council of the European Union, European External Action Service (EEAS)

Form of order sought

The appellant claim that the Court should:

set aside in its entirety the order under appeal;

establish that the Union Courts have exclusive jurisdiction to hear and determine the case;

refer the case back to the General Court for decision on the admissibility and on the merits;

reserve the costs of these proceedings and the previous related proceedings.

Pleas in law and main arguments

In support of the appeal, the appellant relies on four grounds of appeal.

First ground: The General Court erred in law by i) failing to recognize the nature of the limitation to the Court’s of Justice of the European Union (CJEU) jurisdiction in Articles 24 TEU and 275 TFEU as a derogation from the general jurisdiction of the CJEU, ii) failing to interpret this derogation in a restrictive way, contrary to the CJEU settled case-law, and by iii) wrongly interpreting in this context the judgments in H ¹ , SatCen ² and Elitaliana ³ as not supporting the jurisdiction of the CJEU in the case at hand.

Second ground: The General Court erred in law by failing to properly qualify the action as an action for damages concerning alleged violations of fundamental human rights, and by failing to interpret the limitations to jurisdiction of the CJEU in the light of the human rights and rule of law requirements under EU primary law, which establish the jurisdiction of the CJEU in the case at hand.

First limb: The General Court erred in law by qualifying the acts, actions or omissions challenged by the applicants as falling within political or strategic issues connected with the Mission and concerning the definition or implementation of CFSP (European Union’s Common Foreign and Security Policy), and not as acts, actions or omissions causing a damage arising from alleged human rights violations in a CFSP context.

Second limb: The General Court erred in law by failing to interpret Articles 24 TEU and 275 TFEU in the light of the EU fundamental rights and freedoms under the Charter and the ECHR, and the EU founding values of the rule of law and respect for human rights in the Treaties (Articles 2, 3(5), 6(1) and (3), 21(2)(b) and 23 TEU, and Article 19 TEU, and Article 47 of the Charter).

Third ground: The General Court erred in law in incorrectly interpreting the judgment Bank Refah ¹ and in failing to consider the action for damages as an independent legal action for which there is no exemption from the jurisdiction of the CJEU under Articles 268 and 340, second paragraph, TFEU.

Fourth ground: The General Court erred in law by failing to ensure the autonomy of the EU legal order and by depriving the applicants of an effective remedy.

First limb: The General Court erred in law by failing to establish the exclusive jurisdiction of Union Courts to hear and determine the case at hand.

Second limb: The General Court erred in law by depriving in the case at hand the applicants of any effective remedy and effectively leaving them without any viable option to ensure protection of their fundamental rights.

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¹ Judgment of the Court of 19 July 2016, H v Council and Others, C-455/14 P, EU:C:2016:569.

¹ Judgment of the General Court of 25 October 2018, KF v SatCen, T-286/15, EU:T:2018:718; judgment of the Court of 25 June 2020, SatCen v KF, C-14/19 P, ECLI:EU:C:2020:492; order of the General Court of 10 July 2020, KF v SatCen, T-619/19, not published, EU:T:2020:337; judgment of the Court of 14 October 2021, KF v SatCen, C-464/20 P, not published, ECLI:EU:C:2021:848.

¹ Judgment of the Court of 12 November 2015, Elitaliana v Eulex Kosovo, C-439/13 P, EU:C:2015:753.

¹ Judgment of the Court of 6 October 2020, Bank Refah Kargaran v Council, C-134/19 P, EU:C:2020:793.