Antje Kunst*

Photo credit: Sharon Hahn Darlin, via Wikimedia Commons

In a recent legal opinion, Advocate General Ćapeta addressed the question of whether individuals can sue the European Union for damages related to alleged fundamental rights violations during an EU mission. The case involved KS and KD, whose family members disappeared and were killed in Kosovo in 1999. They allege that Eulex Kosovo, an EU mission tasked with investigating such crimes, failed to adequately investigate their cases.

Jurisdictional Limits of EU Courts in Foreign and Security Policy

This case brings to light the limitations of EU court jurisdiction within the realm of Common Foreign and Security Policy (CFSP), specifically regarding CSDP missions like Eulex Kosovo. The central issue is whether the EU Court of Justice (CJEU) can hear cases concerning alleged fundamental rights infringements during such missions. This case presents a new legal challenge for the Court.

KS and KD lost family members during the Kosovo conflict, and their cases remain unsolved. Eulex Kosovo, established in 2008, was responsible for investigating these types of crimes. This post argues that in cases involving potential human rights violations by EU bodies like Eulex Kosovo, the EU courts should not shy away from their responsibility to ensure justice, particularly when individuals are seeking redress for inadequate investigations into the disappearance of their family members.

Reviewing Complaints Against Eulex Kosovo: The Human Rights Review Panel

Recognizing the need to address potential human rights violations by Eulex Kosovo, a Human Rights Review Panel (HRRP) was established. This panel reviews complaints against Eulex Kosovo but lacks the authority to enforce its decisions or award financial compensation.

The HRRP found that Eulex Kosovo violated KS’s rights by failing to effectively investigate her husband’s disappearance. Similarly, in KD’s case, the panel concluded that the investigation into the abduction and killing of her husband and son was insufficient, violating her rights.

Despite non-binding recommendations from the HRRP to the Head of Mission of Eulex Kosovo, the implementation of these recommendations was deemed partially satisfactory, and the cases were closed.

Challenging the EU General Court’s Decision

The applicants, KS and KD, argued before the EU General Court that their case, based on human rights violations, was intrinsically linked to the strategic and policy decisions of Eulex Kosovo. They contended that the lack of prioritization, resources, or qualified personnel hindered Eulex Kosovo’s ability to fulfill its mandate and uphold the EU’s legal obligations. Essentially, they argued that the violations stemmed from systemic issues rather than individual failings in their specific cases.

However, the General Court dismissed their case, claiming it lacked the jurisdiction to scrutinize strategic choices made concerning CSDP missions, which fall under the broader CFSP umbrella.

Advocate General Ćapeta’s Opinion: Upholding Effective Judicial Protection

Advocate General Ćapeta, in her opinion to the Court of Justice, argued that the fundamental principles of the EU legal order should apply to all EU activities, including CFSP and CSDP missions. She emphasized the rule of law and the EU Courts’ role in ensuring the legality of actions taken by EU bodies, even within the CFSP framework.

To guarantee effective legal protection for individuals claiming fundamental rights violations by EU institutions, particularly within the CFSP context, Ćapeta argued that EU Courts should have the jurisdiction to hear such cases.

She contended that the EU treaties’ provisions, which seemingly exclude CFSP from the jurisdiction of EU Courts, should be interpreted in a way that doesn’t restrict actions for damages in cases alleging fundamental rights violations resulting from CFSP measures.

Ćapeta stressed the importance of interpreting EU treaties in a manner consistent with the principle of effective judicial protection, citing the opinion of Advocate General Bobek in a previous case, which emphasized the Court’s duty to interpret existing provisions to ensure maximum judicial protection for those affected by the actions of EU institutions.

The Scope of Judicial Review in EU International Missions

Advocate General Ćapeta acknowledged that EU Courts do not have jurisdiction over certain strategic decisions. For instance, they cannot evaluate whether the EU should establish a mission in a particular location. However, once a decision is made to engage in a specific country or conflict, EU Courts should have the authority to review whether the implementation of such a decision infringes upon human rights.

Ćapeta clarified that while deference is given to the Council’s reasoning in certain strategic decisions, factors like funding for a mission, which can impact the quality of investigations, should be weighed against the EU’s overall capacity to manage missions globally. This consideration, however, doesn’t negate the jurisdiction of EU Courts; rather, it prompts questions about the level of scrutiny required after jurisdiction is established.

Fundamental Rights as a Limit to Political and Strategic Decisions

Advocate General Ćapeta argued that EU Courts should be able to address individual complaints when political or strategic decisions risk violating fundamental rights. She acknowledged that EU Courts might defer to the Council’s justifications, but emphasized that fundamental rights are paramount and cannot be superseded by political or strategic choices, even within the CFSP.

Accountability of EU Missions and Access to Justice

The lack of accountability of EU international missions, particularly CSDP missions, raises concerns. Denying individuals the right to seek damages for alleged fundamental rights violations based on jurisdictional limitations is problematic, especially given existing accountability issues. Advocate General Ćapeta’s opinion is a positive step towards addressing this issue.

The fact that a UK court previously ruled that it lacked jurisdiction in KS and KD’s case, suggesting the EU Court was the appropriate venue, underscores the importance of ensuring access to justice. Leaving individuals without legal recourse—with both national and EU courts declining jurisdiction—is unacceptable. Just as in a previous case (SatCen v KF), where the Court asserted jurisdiction, upholding the right to judicial protection for those impacted by the actions of EU institutions is crucial.

In cases like KS and KD’s, where potential human rights violations by an EU body like Eulex Kosovo are alleged, EU Courts should not shy away from their responsibility due to CFSP limitations. The rights of those seeking justice for inadequately investigated disappearances are at stake.

Advocate General Ćapeta rightfully argues that the EU Courts’ constitutional role should only be limited in exceptional circumstances. EU law should be interpreted as upholding fundamental rights across all EU policies, subject to judicial review. Exercising jurisdiction in cases like KS and KD’s ensures that CFSP decisions do not violate the fundamental rights of individuals, as emphasized by Advocate General Ćapeta.

Acknowledgments to Prof. Graham Butler for his insightful comments and analysis on this opinion: https://eulawlive.com/op-ed-jurisdiction-of-the-eu-courts-in-the-common-foreign-and-security-policy-reflections-on-the-opinions-of-ag-capeta-in-ks-and-kd-and-neves-77-solutions-by-graham-butler/

*Antje Kunst_ is an international lawyer specializing in the EU’s Common Foreign Security Policy (CFSP). She represents individuals challenging various decisions, including EU employment cases and EU/UN sanctions, before EU courts and international bodies. Her experience includes serving as Counsel for KF in the CJEU case C-14/19 P (SatCen v KF) and working as a senior lawyer for the UN Mission in Kosovo._