On 23 November 2023, delivering the opinion in a fundamental rights case testing the very limits of EU legal order, Advocate General Ćapeta cites the pre-Brexit decision in which No5’s Becket Bedford attempted to bring the EU itself to justice for breach of fundamental rights by Eulex Kosovo, the EU Rule of Law Mission from 2008. The case is seen as comparable in importance to the case of known as Kadi I.

In the English decision, the High Court ruled that the EU Courts must have sole jurisdiction to deal with human rights abuses caused by the EU, granted the position might be different otherwise.

The difficulty with the English ruling, as Becket argued at the time, was that on the face of the Treaties themselves, the jurisdiction of the EU Courts is drastically reduced in the context of the EU’s Common Foreign and Security Policy.

Moreover, as the Council and several of the Member States have argued in the test case, the Treaties do not provide terms for the EU Courts to ensure fundamental rights protection across the entire legal order and in the context of the CFSP, the opposite is true.

In her opinion, AG Ćapeta explains as a matter of principle that if the EU courts will not offer international human rights protections to the victims of the EU’s foreign acts, then, pointing to the sole example of Becket’s previous attempt to bring the EU to justice for the same misconduct of the civilian mission in Kosovo implicated in the test case, then it leaves an extraordinary hole in the constitutional order of the EU, for which the alternative of a domestic remedy in the courts of the Member States remains a poor and uncertain prospect.

The Grand Chamber in Luxembourg is now faced with a pivotal moment in the life of the EU’s supranational order where the court, in its constitutional role as the guardian of the rule of law and of the right to effective judicial protection, must decide exceptionally if the Treaties are living instruments and award itself a jurisdiction over the foreign acts of the European Union in the manner of that other European Court, the European Court of Human Rights in Strasbourg.

Read the full press release here.

[1] Joined Cases C-29/22 P and C-44/22 P | KS and KD v Council and Others

[2] Tomanovic & Ors v EU [2019] EWHC 263 (QB)

[3] Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-402/05

[4] cf R (Smith) v Secretary of State for Defence [2010] UKSC 29