Sara Notario , 10 octobre 2024

In the EU legal order, the Common Foreign and Security Policy (CFSP), of which the Common Security and Defence Policy (CSDP) is an integral part (Article 42(1) TEU), is subject to specific rules and procedures (Article 24(1) TEU). Treaty prescriptions confine the competence of the Court of Justice of the EU (CJEU) to two cases: the monitoring of mutual non-encroachment between the CFSP and other TFEU policies (Article 40 TEU) and the legality of restrictive measures in annulment actions (Article 275, second paragraph, TFEU). Through evolving case law, the CJEU has interpreted the limits to its competence in CFSP matters narrowly (see, inter alia, Parliament v Council, C-658/11; Elitaliana, C-439/13 P; H v Council, C-413/18 P; Rosneft, C-72/15; Neves 77 Solutions, C-351/22; Bank Refah Kargaran, C‑134/19 P). Yet, the contours of the Court’s competence are still to be defined in CFSP matters, and in particular in the Common Security and Defence Policy.

On 10 September 2024, the Court of Justice delivered the long-awaited judgment in Joined Cases KS and KD v Conseil and Others (C-29/22 P and C-44/22 P) concerning a damages action brought by two individuals – KS and KD – for acts and omissions allegedly breaching their fundamental rights in the context of a rule of law CSDP mission in Kosovo (EULEX Kosovo).

EULEX Kosovo was established by the EU in 2008 with the aim to, inter alia, investigate into the disappearances and killings that occurred during the 1999 Kosovo conflict (Council Joint Action 2008/124/CFSP). The applicants, direct family members of victims that were kidnapped and killed, considered that the mission had not complied with its investigative mandate and decided to lodge a complaint before the Human Rights Review Panel (an accountability mechanism based in Kosovo), which recognised the violation by the mission but does not have the power to issue legally-binding decisions (HRRP Decision of 11 November 2015, Case No 2014-32; HRRP Decision of 19 October 2016, Case Nos 2014-11 to 2014-17). In light of the unsatisfactory follow-up of their cases, on 19 July 2023, KS brought an action before the General Court of the EU (T-840/16), which was dismissed for incompetence in CFSP matters. On 14 June 2018, KS and KD, with other applicants, brought the action before UK courts (at that time, still part of the EU system as Member State’s courts), which deferred the action to the CJEU (Tomanović case). KS and KD therefore decided to revert to the Luxembourg courts, again, and lodge, on 29 December 2020, a damages action (Articles 268 and 340(2) TFEU) before the General Court (GC) against the Council, the European Commission and the European External Action Service, claiming that the latter allegedly breached Articles 2 (right to life) and 3 (right to integrity) ECHR and corresponding Articles 2 and 4 of the EU Charter of Fundamental Rights (CFR), Articles 6(1) (right to a fair trial) and 13 (right to an effective remedy) ECHR and corresponding Article 47 CFR on right to effective judicial protection. They also claimed a misuse of or failure to properly exercise the EULEX mission’s executive power in the investigation into forced disappearances and killings.

At first instance, the General Court decided to dismiss the action for incompetence, in light of Treaty provisions excluding the Court’s competence in CFSP matters (T-771/20). The applicants decided to lodge an appeal seeking to have set aside the order of the GC. Considering that the action had been brought against the wrong defendant, the European Commission also introduced an appeal against KS and KD, the Council and the EEAS (C-44/22 P). The two cases were joined by a decision of the President of the Court of Justice of 21 March 2022.

In the appeal judgment, the Court of Justice recalls the teleological reading of Treaty provisions limiting its competence in CFSP matters. Rather than reading the exclusion to the Court’s jurisdiction as the rule, the Court presents these provisions as derogations from the rule of the general jurisdiction of the Court of Justice to ensure that in the interpretation and application of the Treaties the law is observed (Article 19 TEU). While recognising that the acts and omissions at stake fall outside the scope of the two derogations allowing the Court to establish its competence in the CFSP (the monitoring of Article 40 TEU and legality check of restrictive measures), the Court adopts a systemic approach considering that the CFSP is included in the constitutional framework of the EU, thus making Union general principles, such as the respect for the rule of law and human rights, applicable to this policy despite its distinct character. The concrete expression to this integration in the Union legal framework is the judicial review exercised by national and Union courts pursuant to Article 19 TEU.

However, detaching itself from Opinion of AG Ćapeta (see here), the Court does not follow the red line of fundamental rights as the perimeter of its jurisdiction in the context of the CFSP. On the contrary, the Court establishes that the General Court did not err in law in interpreting Articles 24(1) TEU and 275 TFEU, read in light of Article 47 CFR, Articles 6(1) and 13 ECHR, and Articles 2, 3(5), 6, 19, 21 and 23 TEU, and the pleading of breaches of fundamental rights, as not conferring upon that court jurisdiction to hear the action lodged by the applicants. Neither the argument, submitted by the appellants and then rejected by the Court, on a misapplication of the Bank Refah Kargaran judgment nor the exclusive nature of the Court’s jurisdiction in actions for non-contractual liability of the Union according to a settled case-law (Granaria, C-101/78; OH (Immunity from jurisdiction), C-758/19) can have the effect to extend its jurisdiction conferred by the Treaties, in accordance with the principles of institutional balance (Article 13(2) TEU) and conferral (Article 5(1) and (2) TEU).

In this light, the Court defines a novel two-step test for assessing jurisdiction in CFSP matters. The Court shall first determine whether the situation at hand falls within the two cases provided for in Articles 24(1) TEU and 275 TFEU. If this is not the case, the Court shall assess whether the acts and omissions at issue are not directly linked to the political or strategic choices of EU institutions, bodies, offices and agencies involved in the implementation of the CFSP, such as the identification of the Union’s strategic interests, the definition of actions, positions and guidelines to be adopted (Articles 24 to 26, 28, 29, 37, 38, 42 and 43 TEU). If the acts and omissions at stake are not directly linked to such choices, the Court can establish its jurisdiction to assess their legality or interpret them. Conversely, if such acts and omissions are directly linked to those choices, the Court lacks jurisdiction.

In casu, the Court establishes that the GC partially erred in law in applying this test. While the alleged lack of necessary resources to properly conduct the investigations put forward by the appellants as well as the decision to remove EULEX Kosovo’s executive mandate are directly related to the political or strategic choices made on the basis of Article 28(1) TEU, the alleged lack of appropriate personnel of EULEX Kosovo and its capacity to employ staff are acts of day-to-day management, which rest within the scope of the mission’s mandate in accordance with Decision 2014/349, and, as such, are not directly linked to political or strategic choices. The Court also considers, contrary to the GC, that the absence of provisions for legal aid in the procedural rules of the review panel, its lack of enforcement powers and the absence of remedial action and legally sound review of the applicants’ cases are not directly related to the political or strategic choices but to administrative management. Therefore, the CJEU has jurisdiction to rule on these acts and omissions, even if the latter fall within the CFSP context.

The Court has referred back the case to the GC, which will finally rule on the admissibility, and if necessary, the merits of the action on non-contractual liability of the Union in the field of the CSDP.

While the Court’s approach can be critically assessed on several issues, such as the sustainability of a principled test which relies on a blurred definition between acts and omissions that directly relate to political and strategic choices and those that are not, it is indisputable that, by suggesting a case-by-case approach, the Court adds another piece to the complex puzzle of judicial review in the CFSP, and in particular the CSDP. Other issues have been left open, such as the role of national courts in reviewing acts and omissions in the CFSP and, despite the dialogical approach adopted by the Court with references to ECHR case law in the judgment (see, in particular, ECtHR, H.F. and Others v. France, Applications nos. 24384/19 and 44234/20), the extent of the Court’s review in the broader domain of the CFSP in light of the EU accession process to the ECHR (see here and here). Institutional and political developments will contribute to allow the Court of Justice of the EU to further clarify these and other issues in future cases before it.

Reproduction autorisée avec la référence suivante : Sara Notario, Judicial review in damages actions in the Common Security and Defence Policy, actualité n° 27/2024, publiée le 9 octobre 2024, par le Centre d’études juridiques européennes, disponible sur www.ceje.ch