Effective Remedies or Empty Promises? The General Court’s Order in KS and KD and the Limits of Judicial Protection in the Common Foreign and Security Policy

 Introduction

On 25 September 2025, the Basic Court docket introduced the KS and KD saga to a detailed, dismissing the motion for damages introduced towards the Council of the European Union, the European Exterior Motion Service (‘EEAS’), and the European Fee. This weblog put up will delve deeper into the Basic Court docket’s reasoning and argue that looking for efficient judicial safety within the Frequent Overseas and Safety Coverage (‘CFSP’) is tougher than the Basic Court docket seems to counsel, even when nationwide courts would have jurisdiction on the premise of Article 274 TFEU,  a number of procedural and substantive obstacles for candidates stay.

Background

The KS and KD case arose throughout the framework of the civilian mission EULEX Kosovo established in 2008 by the EU underneath its Frequent Safety and Protection Coverage (‘CSDP’) to assist chosen rule of legislation establishments in Kosovo. One in every of it goals was to research crimes dedicated throughout the struggle in Kosovo. The candidates in KS and KD misplaced relations within the battle and introduced an motion for damages earlier than the Basic Court docket. KS and KD thought of that EULEX Kosovo had fallen brief to correctly examine the dissapearences. The Basic Court docket dismissed the motion on procedural grounds and located that it lacked jurisdiction on the premise of Article 24(1) TEU and Article 275 TFEU which limits the jurisdiction of the Court docket of Justice within the CFSP.

 KS and KD appealed the order earlier than the Court docket of Justice stating that the Basic Court docket misinterpreted the provisions and the case legislation. The primary query introduced earlier than the Court docket of Justice was whether or not it has jurisdiction to listen to actions for damages allegedly brought on by the EU because of basic rights breaches dedicated within the context of a CSDP mission, falling underneath the CFSP. The Court docket of Justice discovered that the fitting to an efficient treatment in Articles 19(1) TEUand 47 of the Constitution, and the fitting to a good trial usually are not absolute rights and could also be restricted. It held that the requirement of efficient judicial safety, linked to the rule of legislation, can’t develop the CJEU’s jurisdiction, as it’s certain by the precept of conferral. The Court docket outlined the two-step check for when it has jurisdiction on conditions which can be outdoors these expressively offered for in Articles 24 TEU and 275 TFEU. First, the CJEU will assess whether or not the problem falls throughout the exceptions offered within the latter articles. Second, it should look at whether or not it could possibly set up jurisdiction on the premise that the problem is just not associated to a political or strategic alternative made by the establishments within the context of the CFSP.

The Basic Court docket’s Order

The Court docket of Justice put aside the Basic Court docket’s judgment and referred it again for a ruling on the deserves. Following the renvoi from the Court docket of Justice, the order from 25 September 2025 represents the closing chapter within the KS and KDdebate regarding the fitting to an efficient treatment for human rights breaches throughout the CFSP and CSDP framework. The Basic Court docket held that the EULEX Kosovo mission bore sole accountability for all obligations linked to the implementation of its mandate. The failure to supply enough personnel to research the disappearance of the candidates’ family members was thought of a part of EULEX’s day-to-day operational administration and due to this fact fell throughout the unique accountability of the mission. Therefore, it can’t be attributed to the Council, the Fee or the EEAS. The Basic Court docket acknowledged that regardless that the Human Rights Overview Panel (‘HRRP’) doesn’t have enforceable powers and doesn’t grant the events the good thing about authorized support or a treatment, the judicial treatments earlier than the Courts of the European Union enable the events to learn from their proper to an efficient treatment in accordance with Articles 47 of the Constitution and 19(1) TEU.

Regardless of the CJEU’s slim interpretation of the limitation of its jurisdiction in EU missions prior to now (see for example Elitaliana SpA v. Eulex Kosovo, H v. Council), the KS and KD judgment doesn’t present an answer to the problem of obligation for severe human rights breaches within the context of the CFSP. The scholarly dialogue (see right here, right here and right here) after the Court docket of Justice’s judgment has primarily focussed on the political questions doctrine and the CJEU’s jurisdiction within the context of the CFSP in gentle of the EU’s future accession to the ECHR. Much less consideration has been given as to if or not the fitting to an efficient treatment encompasses the fitting to redress.

As shall be demonstrated, in its order, the Basic Court docket takes a quite formalistic method in arguing that the dearth to authorized support of the HRRP, or the non-legally binding report of the HRRP have been compensated by the jurisdiction of the Courts of the European Union and the binding nature of the CJEU judgments. As an alternative of participating with the substantive necessities of an motion for damages, which might perform as a basic rights treatment, the Basic Court docket leaves candidates able the place victims of human rights violations nonetheless face vital obstacles in acquiring reduction. This raises the query of whether or not nationwide courts can fill this potential hole on the premise of Article 274 TFEU (Opinion of AG Ćapeta, para. 135). It’s argued that a number of procedural and substantive limitations stay for candidates looking for to depend on the total ensures of the fitting to an efficient treatment, leading to continued obstruction for individuals who actively search redress.

Judicial Restraint and Efficient Treatments: The CJEU’s Strategy to the CFSP

A very long time in the past in Les Verts the CJEU proclaimed, ‘a whole system of authorized treatments’ guaranteeing presumably full judicial overview towards EU acts. The appropriate to an efficient treatment, enshrined in Article 19 TEU and Article 47 of the Constitution has been typically described as a normal precept of EU legislation, and the rule of legislation, stemming from the constitutional traditions of the EU Member States. Within the case of the CFSP, the place of the CJEU for offering efficient judicial safety is difficult by the truth that, though the CFSP is built-in within the total construction of the EU exterior relations, it’s topic to particular guidelines and procedures. Regardless of this, the CJEU has repeatedly eroded its exclusion of jurisdiction within the CFSP for acts primarily based on the CFSP, resulting in a broad interpretation of the fitting to efficient judicial safety, rising from a number of instances. As for instance, Article 275 TFEU, within the Mauritius case, the CJEU held that this provision even creates a ‘derogation from the rule of the overall jurisdiction which Article 19 TEU confers on the Court docket’.

The function of the CJEU in CFSP and CSDP issues has been historically seen as marginal, however current jurisprudence exhibits elevated CJEU involvement in defence and international coverage points (see right here). With what might be known as the progressive framing of a Frequent Defence Coverage, it turns into essential to make clear how basic rights are protected in these areas. The KS and KD case illustrates the problem of imposing human rights and the rule of legislation (as required by Article 21(1) TEU) throughout the CSDP and CFSP. The query stays if this promise is successfully fulfilled within the case of the CFSP, and in concreto within the case for KS and KD. The Basic Court docket proclaimed that for KS and KD, even when the HRRP doesn’t fulfill the efficient treatment and truthful trial necessities, the Courts of the European Union represent a authorized treatment open to the candidates to make sure compliance with the fitting to an efficient treatment. In accordance with the Basic Court docket, the Courts of the European Union provide the candidates, in casu, the potential of claiming authorized support and the potential of acquiring an enforceable judgment which has the pressure of res judicata.

Obstacles to Efficient Judicial Safety earlier than nationwide courts underneath Article 19 TEU: Classes from KS and KD

Offering efficient authorized safety is tougher than the Basic Court docket appears to counsel, even in instances the place the Courts of the European Union have jurisdiction, candidates nonetheless face vital challenges in looking for redress. That is in step with what Advocate Basic (‘AG’) Ćapeta suggests in KS and KD, the place she argues that judicial overview of alleged breaches of basic rights within the context of the CFSP must be out there. In her Opinion, such instances may be submitted to nationwide courts of the EU Member States primarily based on Article 274 TFEU, which states that ‘save the place jurisdiction is conferred on the Court docket of Justice of the European Union by the Treaties, disputes to which the Union is a celebration shall not on that floor be excluded from the jurisdiction of the courts or tribunals of the Member States’. Therefore, Article 274 TFEU gives that instances falling outdoors the scope of CJEU’s jurisdiction, which is typically the case for the CFSP, disputes to which the EU is celebration usually are not excluded from the jurisdiction of nationwide courts. The nationwide courts of the EU Member States are built-in within the EU authorized system underneath Article 19 TEU, they act ‘as guardians of the authorized order and the judicial system of the European Union’ and could also be known as upon to implement EU basic rights within the CFSP context. AG Wahl and AG Kokott have each burdened that EU Member States should guarantee efficient judicial safety, significantly when the CJEU lacks direct jurisdiction, as is commonly the case in CFSP issues. In follow, nonetheless, few instances pertaining to CSDP issues attain nationwide courts. In follow, procedural and substantial hurdles considerably undermine the fitting to an efficient treatment of the candidates.

Nationwide courts typically are usually avoidant of deciding instances by which worldwide organisations, such because the EU, are concerned (see for example the pre-Brexit Tomanović case within the UK). Some jurisdictions are inclined to restrict the function of the courts in their very own jurisdiction for such instances (acte de gouvernement in France), whereas in different jurisdictions there may be inside disagreement on what ought to and shouldn’t fall underneath the acte de gouvernement resulting in authorized uncertainty. The Netherlands gives a notable instance. In 2024, the Hague Court docket of Enchantment ordered the federal government to halt exports of F-35 components to Israel. Nonetheless, in October 2025, the Dutch Supreme Court docket overturned that ruling, emphasizing judicial restraint in issues of international coverage (see right here for an English abstract). The Supreme Court docket acknowledged that civil courts ought to train nice warning in scrutinising acts of state associated to the international coverage and to nationwide or worldwide safety. Such variations throughout jurisdictions contribute to authorized uncertainty for candidates and will encourage discussion board procuring.

On the premise of Article 340 TFEU, Courts of the European Union have unique jurisdiction to listen to actions for damages primarily based on EU non-contractual legal responsibility. Article 256(1) TFEU allocates this competence to listen to actions for damages at first occasion to the Basic Court docket, with the Court docket of Justice listening to the case in attraction maters. This entails that nationwide courts can’t resolve about non-contractual legal responsibility damages brought on by the EU, its establishments and our bodies if it falls throughout the scope of EU legislation (see additionally Fee v Systran and Systran Luxembourg). This exclusivity, nonetheless, raises considerations concerning the fitting to good administration enshrined in Article 41(3) of the Constitution which established the fitting to have the EU make good any damages brought on by its servants within the efficiency of their duties. On this vein, AG Mengozzi explicitly acknowledged the fitting to reparation of damages as a basic precept of EU legislation ‘the fitting to reparation of individuals harmed by an infringement of EU legislation is a particular variation of the precept of efficient judicial safety’. In his reasoning, the provision of redress is just not merely compensatory however is important to make sure that people can acquire redress when EU establishments or Member States breach EU legislation, which is a part of efficient judicial safety (see additionally right here).

If nationwide courts have been to have jurisdiction on the premise of Article 274 TFEU, the problem of which nationwide courtroom would hear the case is just not resolved. The French Authorities prompt in its intervention in KS and KD, that it may very well be a courtroom of the Member State that holds the Council presidency at the moment (Opinion of AG Ćapeta, para. 138). There may be, nonetheless, no golden rule on which nationwide courtroom of which Member State can be best suited to listen to a case of an alleged basic rights breach within the context of the CSDP/CFSP. If all nationwide courts have jurisdiction, this could doubtlessly result in discussion board procuring, outlined as ‘unfairly exploiting jurisdictional or venue guidelines to have an effect on the end result of a case’. Candidates would be capable to choose the nationwide courtroom in gentle of things such because the anticipated receptiveness of a specific courtroom to their authorized arguments, in addition to the timeframe with which that courtroom is able to delivering a judgment. This could stringently undermine the uniform utility of EU legislation.

Even when the procedural hurdles earlier than nationwide courts may very well be surmounted, a plethora of substantive obstacles to the nationwide judiciary can even must be overcome. Protocol No. 7 on the Privileges and Immunities of the European Unionregulates the immunities and privileges of the EU intimately. Therefore, even when a nationwide courtroom have been to imagine jurisdiction primarily based on Article 274 TFEU and discover the EU answerable for a human rights violation arising within the context of a CFSP mission, it will face vital difficulties in translating the accountability right into a actuality. Because the EU advantages from enforcement immunity, nationwide courts lack enforcement powers vis-à-vis the EU. Furthermore, as noticed by some students, it stays unclear to whom the wrongful act may very well be attributed to: the Council, the Political and Safety Committee, or to the mission itself. This uncertainty is motivated by the advanced authorized standing of CFSP/CSDP missions. Whereas civilian CSDP missions similar to EULEX Kosovo and European Union Monitoring Mission in Georgia (‘EUMM Georgia’) possess authorized capability underneath EU legislation for operational functions, they don’t seem to be impartial authorized entities as this could presuppose authorized character (see additionally right here). That is demonstrated by the case Bamieh v Eulex and Others earlier than the Employment Tribunal in London, the tribunal determined that it had no territorial jurisdiction as EULEX Kosovo had no home authorized character. Consequently, it stays unsure whether or not the authorized capability of civilian missions is proscribed to Courts of the European Union or additionally extends to nationwide courts, thereby leaving the candidates in a state of authorized uncertainty.

The Incomplete “Full System”

From the above, it may be concluded that candidates alleging human rights violations within the context of the CFSP and the CSDP nonetheless have a problem to acquire reduction from the Courts of the European Union. For candidates, it’s typically extraordinarily tough to navigate the interior guidelines on the division of competences, and the institutional steadiness, so as to acquire efficient redress for human rights violations arising within the context of the CFSP and the CSDP. Furthermore, even when nationwide courts have been capable of fill this hole on the premise of Article 274 TFEU, there stay each procedural and substantive hurdles that candidates should overcome to implement their proper to an efficient treatment for basic rights breaches within the CFSP. The whole safety proclaimed in Les Verts stays a balancing train; one should contemplate what might be achieved to rework this framework right into a de facto full system of authorized treatments. The human-rights-based exception proposed by AG Ćapeta was not accepted by the CJEU judges, as an alternative each the Court docket of Justice and the Basic Court docket primarily based themselves on the rules of conferral and institutional steadiness. On the nationwide degree, sensible issues persist in imposing an applicant’s proper to efficient judicial safety. The Court docket of Justice has, inter alia in Associação Sindical dos Juízes Portugueses, repeatedly acknowledged the significance of nationwide courts as integral components of the EU’s judicial system. Nonetheless, the steering on how nationwide courts might fill the judicial treatment hole in CFSP issues is proscribed, which contributes to the persevering with deficiency within the safety of basic rights within the CFSP.

Ellen Cantraine is an Tutorial Assistant and PhD candidate on the Ghent European Regulation Institute (Ghent, Belgium). Her PhD analysis examines the usage of monetary devices to uphold the rule of legislation within the EU’s exterior relations, with a specific give attention to the CFSP/CSDP and the EU’s enlargement follow.