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Lex imperfecta does not mean absentia lex


In an important move to ensure that judicial protection is given to those affected by the EU’s Common Foreign and Security Policy [“CFSP”], Advocate General Ćarpeta has concluded in her Opinion handed down today that individuals may bring an action for damages against the EU before the EU Courts based on alleged breaches of fundamental rights by EU CFSP measures.

Two individuals lost family members in 1999 in the aftermath of the Kosovo conflict. The murders and disappearances remained unsolved. In 2008, the European Union established a civilian mission, the EU Rule of Law Mission in Kosovo [“Eulex Kosovo”], which had, among its tasks, the investigation of such crimes.

The two individuals considered that Eulex Kosovo did not properly investigate the crimes involving their family members. As a result, they 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 dismissed their action, holding that it lacked jurisdiction to hear the case. The individuals and the EU Commission appealed the General Court’s decision.

Together with Case C-351/22 Neves 77 Solutions, in which Advocate General Ćapeta also delivered her Opinion today, these joined cases raise important questions regarding the limits of the EU Courts’ jurisdiction in the area of the CFSP set by the Treaties.

In her Opinion, Advocate General Tamara 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 any type of CFSP measure.  In particular, she found that EU institutions and bodies are always bound by fundamental rights, and the choice to infringe those rights is not an available political or strategic choice, including in the area of the CFSP. If the purpose of the jurisdictional limitation in the CFSP is to prevent the EU Courts from intervening in political and strategic decisions in the area of the CFSP, such a purpose does not require the exclusion of jurisdiction to review alleged breaches of fundamental rights. There is a limit imposed on political and strategic decisions, as they can never be in breach of fundamental rights. Article 24(1) TEU and Article 275 TFEU must, therefore, be interpreted as not preventing the EU Courts from policing such constitutional limits by hearing actions for damages brought by individuals for alleged breaches of fundamental rights by CFSP measures.

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 has therefore proposed 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 and that the case be remitted to the General Court.

Joined Cases C-29/22P and C-44/22P: KS and KD v Council & Others

The Opinion is here.

Fergus Randolph KC was instructed by Savic Solicitors on behalf of the Claimants. 

Legal aid funding was made available to the Claimants by the Court. 

The oral hearing was heard by a Grand Chamber.