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The Grand Chamber of the European Court of Justice (ECJ) has handed down a landmark judgment about judicial review in the European Union’s Common Foreign and Security Policy (CFSP) in Joined Cases C-29/22 P a KS and KD v Council & Others and C-44/22 P Commission v KS and Others.
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. 7 Member States intervened in support of the appeals.
In its judgment, the ECJ Grand Chamber held that the basic principles of the EU legal order, in particular respect for the rule of law and fundamental rights, apply to the CFSP too and, therefore, both EU and Member States authorities should be subject to judicial review. It held that the Court of Justice of the European Union has jurisdiction to rule on acts and omissions that are not directly related to the political or strategic choices made by the EU in the context of the CFSP (including, in this case, insufficient investigations owing to lack of appropriate personnel; absence of provisions of legal aid; establishment of the Panel without the power to enforce its decisions or a remedy for breaches of human rights committed by Eulex Kosovo; failure by Eulex Kosovo to take remedial action, despite the findings of the Panel being brought to its attention; misuse or abuse of executive or public power).
The case has now been referred back to the General Court.
Professor Panos Koutrakos acted for KS and KD, instructed by Savic Solicitors and led by Fergus Randolph KC.
Professor Koutrakos is a leading authority on EU law and is the author, amongst others, of EU International Relations Law 2nd ed (Hart Publishing, 2015), The EU Common Security and Defence Policy (Oxford University Press, 2013) and the co-editor of Research Handbook on the EU’s Common Foreign and Security Policy (Edward Elgar, 2018).