Advocate General concludes that the CJEU has jurisdiction for human rights violations in Common Foreign and Security Policy

24 Nov 2023

In Joined Cases C-29/22 P and C-44/22 P KS and KD v Council & Others, Advocate General Ćapeta concluded that the Court of Justice of the European Union (CJEU) has jurisdiction in an action for damages against the EU based on alleged breaches of fundamental rights in the EU’s Common Foreign and Security Policy (CFSP).

The case concerns two individuals who lost family members in 1999 in the aftermath of the Kosovo conflict. The murders and disappearances remained unsolved. In 2008, the EU established the EU Rule of Law Mission in Kosovo (Eulex Kosovo) tasked, amongst others, with the investigation of such crimes. Considering that Eulex Kosovo did not properly investigate the crimes involving their family members, the two individuals claimed a breach of their fundamental rights. They brought an action for damages requesting compensation before the General Court of the EU. The General Court held that it lacked jurisdiction and dismissed their action. The individuals and the EU Commission appealed the General Court’s decision.

In her Opinion, Advocate General Ćapeta concludes that EU law does not limit the jurisdiction of the EU Courts to hear an action for damages brought by individuals based on an alleged breach of fundamental rights by CFSP measure. Such an interpretation follows from the constitutional principles of the EU legal order, principally the rule of law that includes the right to effective judicial protection and the principle requiring respect for fundamental rights in all EU policies. The constitutional role of the EU Courts that follows from those principles can be limited only exceptionally. The violation of fundamental rights cannot be a political choice in the European Union, and the EU Courts must have jurisdiction to ensure that CFSP decisions do not cross ‘red lines’ imposed by fundamental rights.

Advocate General Ćapeta proposes that the Court should find that the General Court erred in law when it found that it lacked jurisdiction to hear the action for damages.

Professor Panos Koutrakos is instructed by Savic Solicitors on behalf of KS and KD and is led by Fergus Randolph KC of Brick Court Chambers.

In her Opinion, Advocate General Ćapeta refers to two books by Professor Koutrakos, namely his monograph The EU Common Security and Defence Policy (Oxford University Press, 2013) and his co-edited book Research Handbook on the EU’s Common Foreign and Security Policy (Edward Elgar, 2018).

To view a copy of the Opinion, please click here.