Opinion of Advocate General Ćapeta delivered on 23 November 2023.

• Jurisdiction: European Union
• Date: 23 November 2023
• Court: Court of Justice (European Union)

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...