In a legal first, Brexit prevents High Court from clarifying if it has jurisdiction in a human rights claim against the EU.

The Kosovo victims of serious human rights abuses from two decades ago bring damages claims against the EU.

On 13 February 2019 the High Court in the case of Tomanovic v EU [2019] EWHC 263 (QB) declined jurisdiction ruling that in all probability jurisdiction will reside exclusively with the Court of Justice of the European Union.

Serious doubt attaches to this ruling after the General Court of the European Union refused jurisdiction for the claim in 2017.

The European Union lags behind developments in human rights protection established by the UK Supreme Court, for example, which guaranteed human rights protection to Iraqis in the conduct of UK foreign and security policy after the Iraq war.

According to the Treaties, the EU is not liable in its own courts for violations of fundamental human rights under the EU’s Common Foreign and Security Policy.

The European Council, leading academics and two Advocates General of the European Court of Justice are all lined up behind the argument, advanced by Becket Bedford of No5 Barristers’ Chambers with Professor Panos Koutrakos of Monckton Chambers in the Kosovo case, instructed by Savic solicitors that the national courts of the Member States must fill the fundamental human rights gap left by the Treaties.

Nicholas Khan QC acting for the European Union argued that a preliminary ruling from the Court of Justice of the European Union was required before the High Court could assume jurisdiction over the claim, given the far-reaching potential ramifications of the case.

Murray J expressed sympathy for the claimants, but declined to ask the Court of Justice for its ultimate ruling, citing worries over a hard Brexit, which may deprive the High Court of jurisdiction in domestic law even if, it exists under European law.