Article 47 - Right to an effective remedy and to a fair trial
Article 2 - Right to life
Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Key facts of the case:
Appeal – Common foreign and security policy (CFSP) – Joint Action 2008/124/CFSP – European Union Rule of Law Mission in Kosovo (Eulex Kosovo) – Action for damages – Damage allegedly suffered as a result of various acts and omissions by the Council of the European Union, the European Commission and the European External Action Service (EEAS) in the implementation of that joint action – Insufficient investigation of the torture, disappearance and killing of persons – Jurisdiction of the Court of Justice of the European Union to rule on that action – Last sentence of the second subparagraph of Article 24(1) TEU – Article 275 TFEU.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby:
1. Sets aside the order of the General Court of the European Union of 10 November 2021, KS and KD v Council and Others (T‑771/20, EU:T:2021:798), to the extent that the General Court declared that it manifestly lacked jurisdiction to hear and determine the action brought by KS and KD on the ground that it related to political or strategic issues concerning the definition and implementation of the common foreign and security policy (CFSP) in so far as that action concerned:
– a breach of Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and of Articles 2 and 4 of the Charter of Fundamental Rights of the European Union, committed by the Eulex Kosovo mission, on account of the insufficient investigation of the disappearance and killing of their family members, owing to that mission’s lack of appropriate personnel to perform its executive mandate, a breach found on 11 November 2015 in respect of KS and on 19 October 2016 in respect of KD, by the Human Rights Review Panel established on the basis of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO;
– a breach of Article 6(1) and Article 13 of that convention and of Article 47 of that charter, owing to the absence of provisions for legal aid for qualifying applicants in proceedings before that review panel and to the establishment of that panel without the power to enforce its decisions or a remedy for breaches of human rights committed by Eulex Kosovo;
– the failure to take remedial action to remedy some or all of the breaches referred to in the first and second indents, despite the fact that the findings of that review panel were allegedly brought to the European Union’s attention by the Head of Eulex Kosovo on 29 April 2016;
– the misuse or abuse of executive power by the Council of the European Union and the European External Action Service on 12 October 2017 owing to their assertions that Eulex Kosovo had done the best that it could to investigate crimes of which members of the families of KS and KD were victims and that the same review panel was not intended to be a judicial body; and
– the misuse or abuse of executive or public power for failing to ensure that the case of KD, concerning a war crime, be subject to a legally sound review by Eulex Kosovo and/or the Specialist Prosecutor’s Office for investigation and prosecution before the Kosovo Specialist Chamber;
2. Dismisses the appeals in Cases C‑29/22 P and C‑44/22 P as to the remainder;
3. Refers the case back to the General Court of the European Union for a ruling on the admissibility and, if necessary, the merits of the action brought by KS and KD, as well as on their application for measures of inquiry seeking the production of the full version of the Operation Plan (OPLAN) of Eulex Kosovo, beginning from the creation of that mission;
67. Moreover, Article 51(1) of the Charter confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law (see, to that effect, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 17 and 19, and of 25 January 2024, Parchetul de pe lângă Curtea de Apel Craiova, C‑58/22, EU:C:2024:70, paragraph 40).
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70. However, such a limitation of the jurisdiction of the Court of Justice of the European Union can be reconciled both with Article 47 of the Charter and with Articles 6 and 13 ECHR.
71. In that regard, first, it should be noted, as the Court has already held in paragraph 74 of the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236), that Article 47 of the Charter cannot confer jurisdiction on the Court, where the Treaties exclude it. Nor is that article intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Court of Justice of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must – in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter – be taken into consideration for the interpretation of that Article 47 (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97).
74. Furthermore, contrary to what the appellants argued at the hearing, that assessment is not called into question by the case-law of the Court arising from paragraphs 55 to 60 and 67 of the judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701), according to which the Charter is addressed to the EU institutions, even when they act outside the EU legal framework.
77. Second, the Court must admittedly ensure that the interpretation which it gives to Article 47 of the Charter, the first and second paragraphs of which correspond to Article 6(1) and Article 13 ECHR, safeguards a level of protection which does not fall below the level of protection established in those provisions of the ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 116 to 118 and the case-law cited).
95. In the fourth and last place, it is apparent from the foregoing, and in particular from paragraph 71 above, that the Court of Justice must reject the argument by which KS and KD submit, in essence, in their response in Case C‑44/22 P, that Article 298(1) TFEU and Article 41 of the Charter support the proposition that the General Court ought to have declared that it had jurisdiction to hear and determine their case.
125. First, in support of their action, KS and KD pleaded a breach by Eulex Kosovo of Articles 2 and 3 ECHR and Articles 2 and 4 of the Charter, on account of insufficient investigation owing to that mission’s lack of the necessary resources and appropriate personnel to perform its executive mandate.
129. Second, in support of their action, KS and KD alleged a breach of Article 6(1) and Article 13 ECHR and of Article 47 of the Charter, owing to the absence of provisions for legal aid in proceedings before the review panel and of a remedy for breaches found to have been committed that would also enable that panel to enforce its decisions.
137. In the light of the foregoing considerations, the second complaint of the first part and the first complaint of the second part of the single ground of appeal in Case C‑29/22 P and the third part of the first ground of appeal and the first part of the second ground of appeal in Case C‑44/22 P must be upheld and, therefore, the order under appeal set aside to the extent that, in paragraphs 28 and 39 of that order, the General Court declared that it manifestly lacked jurisdiction to hear and determine the action brought by KS and KD on the ground that it related to political or strategic issues concerning the definition and implementation of the CFSP in so far as that action concerned:
– a breach of Articles 2 and 3 ECHR and of Articles 2 and 4 of the Charter, committed by Eulex Kosovo, on account of the insufficient investigation of the disappearance and killing of their family members, owing to that mission’s lack of appropriate personnel to perform its executive mandate, a breach found by the review panel on 11 November 2015 in respect of KS and on 19 October 2016 in respect of KD;
– a breach of Article 6(1) and Article 13 ECHR and of Article 47 of the Charter, owing to the absence of provisions for legal aid for qualifying applicants in proceedings before the review panel and to the establishment of that panel without the power to enforce its decisions or a remedy for breaches of human rights committed by Eulex Kosovo;
– the failure to take remedial action to remedy some or all of the breaches referred to in the first and second indents, despite the fact that the findings of the review panel were allegedly brought to the European Union’s attention by the Head of Eulex Kosovo on 29 April 2016;
– the misuse or abuse of executive power by the Council and the EEAS on 12 October 2017 by their assertions that Eulex Kosovo had done the best that it could to investigate the crimes at issue of which members of the families of KS and KD were victims and that the review panel was not intended to be a judicial body; and
– the misuse or abuse of executive or public power for failing to ensure that the case of KD, concerning a war crime, be subject to a legally sound review by Eulex Kosovo and/or the Specialist Prosecutor’s Office for investigation and prosecution before the Kosovo Specialist Chamber.
