ORDER OF THE GENERAL COURT (Ninth Chamber)
10 November 2021 (*)
(Action for damages – Common foreign and security policy – Eulex Kosovo mission – Manifest lack of jurisdiction)
In Case T‑771/20,
KS,
KD,
represented by F. Randolph QC and J. Stojsavljevic-Savic, Solicitor,
applicants,
v
Council of the European Union, represented by A. Vitro, P. Mahnič and K. Kouri, acting as Agents,
and
European Commission, represented by Y. Marinova and J. Roberti di Sarsina, acting as Agents,
and
European External Action Service (EEAS), represented by S. Marquardt, S. Rodríguez Sánchez-Tabernero and E. Orgován, acting as Agents,
defendants,
APPLICATION under Article 268 TFEU seeking compensation for the damage allegedly suffered by the applicants as a result of various acts and omissions by the Council, the Commission and the EEAS in 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), and, in particular, during the investigations that were carried out, during that mission, into the disappearance and killing of the applicants’ family members in 1999 in Pristina (Kosovo),
THE GENERAL COURT (Ninth Chamber),
composed of M. J. Costeira (Rapporteur), President, M. Kancheva and T. Perišin, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, KS and KD, are members of the immediate family (the wives and mother) of individuals who were tortured, killed or who disappeared in war crimes which occurred in Kosovo between June and July 1999.
2 On 4 February 2008, the Council of the European Union adopted Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (OJ 2008 L 42, p. 92). The Eulex Kosovo mission is a civilian mission aimed at promoting the rule of law in Kosovo, which was launched in the framework of the European Union’s Common Security and Defence Policy (CSDP), an integral part of the European Union’s Common Foreign and Security Policy (CFSP).
3 Under the first paragraph of Article 2 of Joint Action 2008/124, in the version applicable to the facts of the case, Eulex Kosovo is 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 these institutions are free from political interference and adhering to internationally recognised standards and European best practices.
4 In accordance with Article 3(d) of Joint Action 2008/124, in the version applicable to the facts of the case, in order to fulfil the mission statement set out in Article 2 of the Joint Action, Eulex Kosovo is to ensure, in particular, 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, according to the applicable law, including, where appropriate, by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges or independently, and by measures including, as appropriate, the creation of cooperation and coordination structures between police and prosecution authorities. In addition, in accordance with Article 3(i) of Joint Action 2008/124, Eulex Kosovo is to ensure that all its activities respect international standards concerning human rights.
5 In October 2009, the European Union established a Human Rights Review Panel (‘the review panel’) with a mandate to examine complaints of human rights violations by Eulex Kosovo in the implementation of its executive mandate. The review panel is an independent, external accountability body which, after reviewing those complaints, delivers a finding as to whether or not Eulex Kosovo has violated the human rights law applicable in Kosovo. Where the panel determines that there has been a violation, its findings may include non-binding recommendations for remedial action by the Head of Mission of Eulex Kosovo.
6 On 11 June 2014, KS filed a complaint with the review panel concerning the investigation into her husband’s disappearance, and a decision was issued on 11 November 2015. The review panel found a violation of the applicant’s rights under Article 2 (right to life), Article 3 (prohibition of torture), Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and made recommendations to the Head of Mission of Eulex Kosovo for remedial action.
7 On 11 March 2014, KD filed a complaint with the review panel concerning the investigation into the abduction and killing of her husband and son, and a decision was issued on 19 October 2016. The review panel concluded that there had been a violation of Article 2 (right to life), Article 3 (prohibition of torture), and Article 13 (right to an effective remedy) of the ECHR, in conjunction with Article 2 thereof, and made recommendations to the Head of Mission of Eulex Kosovo for remedial action.
8 In 2018, considering that the recommendations had not been properly followed up and that no remedial action had been taken, the applicants brought an action before the High Court of Justice (England & Wales), Queen’s Bench Division (United Kingdom), against the European Union, represented by the European Commission under Article 335 TFEU, the Council, the High Representative of the Union for Foreign Affairs and Security Policy and Eulex Kosovo, on the ground of a failure to investigate the war crimes at issue. On 13 February 2019, that court delivered its judgment, finding that it did not have jurisdiction to hear and determine the case.
9 By two orders of 20 November 2020 in Cases T‑438/20 AJ, KD v Commission and Others, and T‑439/20 AJ, KS v Commission and Others, the President of the Ninth Chamber of the Court granted legal aid to the applicants in order to bring the present action. The action now has a new, single case number after the applicants in those cases chose to bring a joint action for damages.
10 It should be noted, moreover, that the applicants had already lodged similar applications for legal aid with the Court, one of which was dismissed by order of 21 November 2016 (Case T‑418/15 AJ, KS v Council and Others), and two of which resulted in the grant of legal aid by orders of 21 November 2016 (Case T‑266/15 AJ, KD v Council and Others) and of 27 April 2017 (Case T‑840/16 AJ, KS v Council and Others).
11 In that regard, it should also be pointed out that by application lodged at the Court on 19 July 2017 and registered under case number T‑840/16, KS had brought an action for the ‘annulment or amendment of Council Joint Action 2008/124 … and the subsequent measures amending it, for breach of Article 13 of the [ECHR] and Article 47 of the Charter of Fundamental Rights of the European Union …, and for non-contractual liability for infringement of Articles 2, 3, 6, 13 and 14 of the ECHR’. By order of 14 December 2017, KS v Council and Others (T‑840/16, not published, EU:T:2017:938), the Court held that that action had to be dismissed on the ground that it manifestly lacked jurisdiction to hear and determine it and because of manifest inadmissibility.
Procedure and forms of order sought
12 By application registered at the Court Registry on 29 December 2020, the applicants brought the present action against the Council, the Commission and the European External Action Service (EEAS).
13 On 9 February 2021, in a measure of organisation of procedure, the Court addressed a question to the Council, the Commission and the EEAS concerning its jurisdiction in the light of the last sentence of the second subparagraph of Article 24(1) TEU, requesting that they reply to that question in their responses to the action.
14 On 18 May 2021, the Commission raised a plea of inadmissibility and replied to the Court’s question.
15 On 19 May 2021, the Council and the EEAS raised a plea of lack of jurisdiction and a plea of inadmissibility and also answered the Court’s question.
16 On 5 June 2021, the applicants applied for measures of inquiry under Article 88 of the Rules of Procedure of the General Court, seeking the production of the full version of the Operation Plan (OPLAN) of the Eulex Kosovo mission, beginning from its creation in 2008, which had been referred to in the part of the EEAS’s statement of case relating to the plea of inadmissibility. The Council, the Commission and the EEAS submitted their observations on that application on 22 and 23 June 2021.
17 On 23 July 2021, the applicants lodged their observations on the plea of lack of jurisdiction and the plea of inadmissibility.
18 The applicants claim that the Court should:
– reject the plea of lack of jurisdiction and the plea of inadmissibility raised by the Council, the Commission and the EEAS;
– order the Council, the Commission and the EEAS, jointly or severally, to compensate them, in accordance with Article 340(2) TFEU (including the payment of interest at a rate and for such a period as the Court may deem appropriate) for the damage suffered as a result of the breach of their fundamental human rights as protected in this case by Articles 2, 3, 6, 8 and 13 of the ECHR and Articles 2, 4 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) as regards KS, and by Articles 2, 3, 6 and 13 of the ECHR and Articles 2, 4 and 47 of the Charter as regards KD;
– order the Council, the Commission and the EEAS to pay the costs, in accordance with Article 134 of the Rules of Procedure, which should not be limited to the amounts of legal aid granted by the Court in its orders of 20 November 2020 in Cases T‑438/20 AJ, KD v Commission and Others, and T‑439/20 AJ, KS v Commission and Others, and should include the costs of the proceedings before the review panel.
19 The Council contends that the Court should:
– dismiss the action on the ground of lack of jurisdiction;
– in the alternative, dismiss the action as inadmissible or, in any event, as manifestly unfounded in relation to the Council;
– order the applicants to pay the costs.
20 The Commission contends that the Court should:
– declare the action inadmissible in so far as it is directed against the Commission;
– order the applicants to pay the costs.
21 The EEAS contends that the Court should:
– dismiss the action on the ground of lack of jurisdiction;
– in the alternative, declare the application inadmissible in so far as it is directed against the EEAS.
Law
22 In support of their action seeking to establish non-contractual liability on the part of the Council, the Commission and the EEAS under the second paragraph of Article 340 TFEU, the applicants rely, in essence, on the following claims:
– a breach of Articles 2 and 3 of the ECHR and of the corresponding Articles 2 and 4 of the Charter, committed by the Eulex Kosovo mission on account of the insufficient investigation of the disappearance and killing of the applicants’ family members, owing to that mission’s lack of the necessary resources and 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 of the 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 establishment of that panel without the power to enforce its decisions or to provide a remedy for breaches found to have been committed;
– the failure to take remedial action to remedy some or all of the above breaches, despite the fact that the findings of the review panel had been brought to the European Union’s attention by the Head of the Eulex Kosovo mission on 29 April 2016;
– the misuse or abuse of executive power by the Council and the EEAS on 12 October 2017 by the assertion that Eulex had done its best to investigate the abduction and probable murder of KS’s husband and the murder of KD’s husband and her son and that the review panel was not intended to be a judicial body;
– the misuse of or failure to use executive power properly as a result of the removal of Eulex Kosovo’s executive mandate by Council Decision (CFSP) 2018/856 of 8 June 2018, amending Joint Action 2008/124 (OJ 2018 L 146, p. 5) while the abovementioned breaches remained extant;
– the misuse or abuse of executive or public power for failing to ensure that KD’s case, a prima facie well-founded war crimes case, be subject to a legally sound review by Eulex Kosovo or the Specialist Prosecutor’s Office for investigation and prosecution before the Kosovo Specialist Chamber.
23 In that regard, the applicants argue that the present action, brought on account of a breach of fundamental human rights, concerns policy or strategic matters connected with defining Eulex Kosovo’s activities, priorities and resources and with the decision to establish a review panel without giving it the power to provide legal aid to qualifying applicants or the power to enforce its decisions or provide a remedy for the breaches found. Those breaches arise from a lack of prioritisation or a lack of the necessary resources or appropriate personnel to enable Eulex Kosovo to carry out its executive mandate and thus fulfil the European Union’s legal obligations, and not from malfunctions on the part of the mission in those particular cases.
24 According to the applicants, those are matters which fall within the exclusive competence of the Council, the Commission and the EEAS. They are jointly or severally bound at all times to protect fundamental human rights in general in the course of their activities, and in particular as regards the applicants in relation to the disputed operations of Eulex Kosovo and the review panel in this case. However, on account of the various acts and omissions set out in paragraph 22 above, the Council, the Commission and the EEAS have committed sufficiently serious breaches of EU law.
25 In accordance with Article 130(1) of the Rules of Procedure, the Council and the EEAS have raised a plea of lack of jurisdiction and, in the alternative, a plea of inadmissibility. The Commission, for its part, has raised only a plea of inadmissibility.
26 Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, make a decision on inadmissibility or lack of jurisdiction without going to the substance of the case. In the present case, since the Council and the EEAS have applied for a decision on lack of jurisdiction, the Court, considering that it has sufficient information available to it from the material in the file, decides to rule on that application without taking further steps in the proceedings.
27 In that regard, the Council and the EEAS argue, in essence, that the Court does not have jurisdiction in the present case since the action brought by the applicants, concerning the European Union’s non-contractual liability, relates to alleged acts or omissions by the Council, the Commission and the EEAS in the field of the CFSP, over which the Court of Justice of the European Union does not have jurisdiction, in accordance with the last sentence of the second subparagraph of Article 24(1) TEU. In the light of the powers conferred on it by the Treaties, the Court of Justice of the European Union has no jurisdiction to review the legality of such acts or omissions, which relate to strategic choices and decisions concerning the mandate of a crisis management mission set up under the CSDP, which is an integral part of the CFSP, nor can it award damages to applicants who claim to have suffered harm as a result of those acts or omissions.
28 As the applicants themselves accept (see paragraph 23 above), the present action arises from acts or conduct which fall within the scope of political or strategic issues connected with defining the activities, priorities and resources of the Eulex Kosovo mission 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 come within the CFSP provisions of the EU Treaty, Title V of which deals with the European Union’s external action (foreign policy); Chapter 2 of Title V (Articles 23 to 46) contains the main provisions governing the CFSP.
29 The jurisdiction of the Court of Justice of the European Union in respect of the provisions relating to the CFSP is circumscribed by the second subparagraph of Article 24(1) TEU and by Article 275 TFEU.
30 In particular, pursuant to the last sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court of Justice of the European Union does not, as a rule, have jurisdiction with respect to the provisions relating to the CFSP and acts adopted on the basis of those provisions. However, the Treaties expressly lay down two exceptions to that principle.
31 First, both the last sentence of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275 TFEU provide that the Court of Justice of the European Union has jurisdiction to monitor compliance with Article 40 TEU.
32 Secondly, the last sentence of the second subparagraph of Article 24(1) TEU confers on the Court of Justice of the European Union jurisdiction to review the legality of certain decisions referred to in the second paragraph of Article 275 TFEU. The latter provision confers on the Court of Justice of the European Union jurisdiction to give rulings on actions, brought subject to the conditions laid down in the fourth paragraph of Article 263 TFEU, concerning the review of the legality of Council decisions, adopted on the basis of provisions relating to the CFSP, which provide for restrictive measures against natural or legal persons (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 60).
33 In that regard, the activities, priorities and resources of the Eulex Kosovo mission and the establishment of a review panel as part of that mission manifestly do not constitute restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the EU Treaty (see, to that effect, order of 14 December 2017, KS v Council and Others, T‑840/16, not published, EU:T:2017:938, paragraph 12). Furthermore, nor does the action concern compliance with Article 40 TEU. It follows that the General Court does not have jurisdiction to hear and determine the present case.
34 Moreover, contrary to the applicants’ argument, the circumstances of the present case are not comparable to those prevailing in cases within the CFSP context, but which concern provisions whose application is subject to review by the Courts of the European Union.
35 Specifically, the case at issue is not comparable to a situation in which the interested party, seconded to an entity established in the context of the CFSP, fell under the authority of the Courts of the European Union as regards the operational management of its personnel (see, to that effect, judgment of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraphs 43 to 58). The present case does not arise from acts or conduct which are purely personnel management matters, with the result that it is not comparable to disputes between an institution, body, office or agency of the European Union covered by the CFSP and one of its officials or servants, which may be brought before the Courts of the European Union pursuant to Article 270 TFEU (see, to that effect, judgment of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 95, and order of 10 July 2020, KF v SatCen, T‑619/19, not published, EU:T:2020:337, paragraphs 23 to 28).
36 Nor does the present case concern a dispute over the validity of an act adopted albeit for operational reasons by a CFSP body, but based on provisions covered by the FEU Treaty, such as an act adopted under the provisions of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), concerning public procurement (see, to that effect, judgment of 12 November 2015, Elitaliana v Eulex Kosovo, C‑439/13 P, EU:C:2015:753, paragraphs 41 to 50).
37 Moreover, contrary to the applicants’ contention, the situation in the present case is completely different from that in the recent case which gave rise to the judgment of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793).
38 In paragraph 39 of the judgment of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793), the Court of Justice affirmed the jurisdiction of the Courts of the European Union ‘in those circumstances’, that is to say in the specific situation of restrictive measures against persons and entities, adopted by the Council in the framework of the European Union’s CFSP. The Court did not address the issue of the jurisdiction of the Courts of the European Union in relation to the CFSP in general terms. Indeed, the applicant in that case was subject to restrictive measures of individual scope and the Court pointed out that the Courts of the European Union had jurisdiction to review the legality of decisions providing for such measures. The Court accordingly held that the Courts of the European Union also had jurisdiction to rule on actions for damages, under Article 268 and the second paragraph of Article 340 TFEU, resulting from restrictive measures provided for by legal acts of the CFSP, since they had jurisdiction to review the legality of the restrictive measures under Article 263 TFEU.
39 However, in the present case, the applicants have based their claim of non-contractual liability on the part of the European Union on the alleged illegal nature of acts or omissions by the Council, the Commission and the EEAS under Article 24(1) TEU, which concerns the definition and implementation of the CFSP, and not on individual restrictive measures, as in the judgment of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793). The alleged unlawful acts or omissions of the Council, the Commission and the EEAS raised in the present case do not fall within the jurisdiction of the Courts of the European Union as regards their legality and cannot, therefore, constitute a source of illegality capable of giving rise to non-contractual liability on the part of the European Union before those Courts. Consequently, Articles 263 and 265 TFEU cannot be relied on by the applicants in order to establish that the Court of Justice of the European Union has jurisdiction as regards compensation.
40 Consequently, the rules of the EU and FEU Treaties excluding the jurisdiction of the Courts of the European Union in the sphere of the CFSP (see paragraphs 30 to 32 above) preclude the General Court from accepting jurisdiction concerning acts or conduct falling within the CSFP, such as those referred to in paragraph 22 above, solely on the basis that such recognition would, as the applicants submit in their application and observations on the plea of lack of jurisdiction and plea of inadmissibility, be the only way of guaranteeing them effective judicial protection.
41 In that respect, it is necessary to recall the Court of Justice’s settled case-law that the Courts of the European Union may not, without going beyond their jurisdiction, interpret the conditions under which an individual may institute proceedings against an act of the Union in a way which has the effect of setting aside those conditions, which are expressly laid down in the FEU Treaty, even in the light of the principle of effective judicial protection. Although the provisions relating to the jurisdiction of the Courts of the European Union must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see, to that effect, judgment of 25 March 2021, Carvalho and Others v Parliament and Council, C‑565/19 P, not published, EU:C:2021:252, paragraphs 69 to 78 and the case-law cited).
42 It follows from all the foregoing considerations that the action must be dismissed since the General Court manifestly lacks jurisdiction to hear and determine it, and there is no need to examine the pleas of inadmissibility raised by the Council, the Commission and the EEAS or, moreover, to rule on the request for measures of inquiry submitted by the applicants, referred to in paragraph 16 above.
Costs
43 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Council and the Commission, in accordance with the forms of order sought by those institutions.
44 Since the EEAS did not apply for costs, it must bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1. The action is dismissed since the Court manifestly lacks jurisdiction to hear and determine it.
2. KS and KD shall bear their own costs and pay those incurred by the Council of the European Union and the European Commission.
3. The European External Action Service (EEAS) shall bear its own costs.
Luxembourg, 10 November 2021.