Note relative à l’ordonnance du Tribunal dans l’affaire T-771/20 RENV, KS & KD

Introduction

On 25 September 2025, the Sixth chamber of the General Court issued an order in the case of KS and KD¹. The order represents the latest development in a controversy that has its origins in events that took place during the 1999 Kosovo War and which reached the General Court in 2020. Following clarifications offered by the Court of Justice on the scope of the EU courts’ jurisdiction to award damages for harm caused in the context of Common Security and Defence Policy (CSDP) missions, the General Court was now asked to rule on the merits of the case. The order is interesting among other reasons for the General Court’s treatment of the issue of attribution in the first complaint: where KS and KD had targeted the Council, the European Commission and the European External Action Service (EEAS), the General Court held they should have targeted the Eulex Kosovo mission directly. As a result, the General Court declared the first complaint inadmissible. This episode is illustrative of the complexities human rights victims continue to face when seeking relief before the EU courts for harm caused by the EU in the context of CSDP missions.

Procedural background

KS and KD are family members of residents of Kosovo who had gone missing during the hostilities that took place in Kosovo in the late 1990s. In the framework of Eulex Kosovo, the EU’s rule of law mission in Kosovo, the EU had committed to investigating the disappearances. KS and KD considered that the EU had fallen short in its efforts to do so. The case of their missing family members had been investigated by a panel established within the institutional framework of the mission.

The panel had found that several rights protected by the European Convention on Human Rights (ECHR) had indeed been violated, in particular the right to life, the prohibition of torture, the right to respect for private and family life, and the right to an effective remedy. Yet this was of little use for KS and KD, as the findings of this panel were not legally binding on Eulex Kosovo or on any other EU institution or body. No remedial action had been taken by any EU institution or body following the panel’s report.

Not satisfied with this outcome, KS and KD claimed damages before the General Court of the EU for the harm suffered as a result of the human rights violations the existence of which had been established by the panel. In an order adopted on 10 November 2021, the General Court had dismissed the application of KS and KD for lack of jurisdiction, considering that the case fell within the jurisdictional carve-out concerning the Common Foreign and Security Policy (CFSP) laid down in Article 24 of the Treaty on European Union (TEU) and Article 275(1) of the Treaty on the Functioning of the European Union (TFEU)².

KS and KD subsequently brought an appeal before the Court of Justice. By judgment of 10 September 2024, the Grand Chamber of the Court overturned the General Court’s order in part and confirmed it for the remainder³. It held that the abovementioned jurisdictional carve-out only extended to strategic and political choices, whereas other, more mundane, actions or omissions of the EU institutions and bodies involved in the CFSP did fall within the scope of the CJEU’s jurisdiction. The Court concluded it did not have the necessary information at its disposal to rule on the merits of the action. It therefore remanded the case to the General Court, whereupon on 25 September 2025 the General Court issued the order under discussion in this case note.

Questions before the General Court

The Court of Justice had settled the controversial question of the scope of the CJEU’s jurisdiction within the CFSP, and in particular with regard to actions for damages for harm caused by the institutions and bodies of the EU in the framework of missions and operations of the EU’s CSDP. Following the Court of Justice’s judgment, it is now established that the CJEU does have jurisdiction to rule on such actions, except in so far as they pertain to actions or omissions that constitute strategic or political choices.

The Court did not provide a precise definition for “strategic” or “political”, but it identified which parts of KS and KD’s damage claims were considered strategic or political, and which were not. The Court noted that complaints related to inadequate mission staffing, absence of legal aid before the human rights review panel, the non-binding nature of the panel’s report, and failure by any EU institution or body to take remedial action after the report was published did not concern political or strategic decisions. Therefore, these matters were within the EU courts’ jurisdiction. Conversely, complaints related to the amount of funding allocated to Eulex Kosovo did concern political or strategic choices, and thus fell outside of the jurisdiction of the EU courts.

On remand, the General Court was thus charged with the responsibility of ruling on the merits of KS and KD’s action for damages in so far as the action touched on the abovementioned actions and omissions that were not “strategic” or “political”. This represented the bulk of the action for damages.

KS and KD had brought an action for damages on the basis of Article 268 TFEU. They had invoked the EU’s non-contractual liability, which is provided for in Article 340 TFEU. The Court of Justice has articulated the conditions under which conduct of an EU body or institution can give rise to non-contractual liability. The conditions are threefold: the conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage pleaded⁴. These conditions are cumulative⁵. The questions before the General Court, on remand, were therefore: i. had any of the defendants – i.e. the Council, the Commission or the EEAS – committed unlawful conduct?; ii. had the applicants – i.e. KS and KD – suffered actual damage?; iii. is there a causal link between the alleged unlawful conduct and the damage?

Prior to the order of the General Court of 25 September 2025, none of these questions had been addressed yet – neither by the General Court or the Court of Justice. Thus far, the debates were limited to the scope of the CJEU’s jurisdiction within the CFSP. The order discussed in this case note is thus the first occasion in which an EU court expressed itself on the merits of the case. As will become clear, however, the admissibility of the action of KS and KD was still subject of debate, even after the Court of Justice’s judgment on the scope of the jurisdiction of the EU courts.

The Order

In its order, the three member chamber of the General Court declared all of the complaints advanced by the applicants either manifestly inadmissible or manifestly lacking any foundation in law and therefore unfounded. Because the complaints were deemed manifestly inadmissible or unfounded, the General Court considered it appropriate to adopt an order rather than a judgment. This means that the applicants have not had the opportunity to make their case before the General Court during an oral hearing.

The General Court considered several of the complaints not sufficiently substantiated. For example, with regards to the fifth complaint, alleging that the Council and the EEAS had committed misuse or abuse of powers by failing to ensure that KD’s case, a prima facie well-founded war crimes case, was subject to a legally sound review, the General Court held that the applicants had failed to substantiate on what basis the Council, Commission or EEAS were under a legal obligation to monitor specific investigations coming within the mandate of the Eulex Kosovo mission⁶.

Perhaps more striking is the General Court’s treatment of KS and KD’s first and second complaints. The second complaint concerned the alleged failure of the Council, the Commission and EEAS to protect KS and KD’s right to a fair trial and an effective remedy, as laid down in Articles 6 and 13 ECHR and the corresponding provisions of the EU Charter of Fundamental Rights, because the procedure before the human rights panel allegedly fell short of rule of law standards. Here, the General Court considered that the lack of legal aid for the applicants during the internal human rights review panel process, or the non-legally binding nature of the panel report, were compensated by the existence of legal aid during EU court proceedings and the binding nature of CJEU judgments⁷.

The first complaint concerned the question of whether the Eulex Kosovo mission was appropriately staffed to conduct the necessary investigations into the disappearance of KS and KD. Here, the General Court held the complaint to be manifestly inadmissible because, according to the General Court, the applicants had brought proceedings against the wrong parties⁸. The management of the human resources of the Eulex Kosovo mission is the exclusive responsibility of the mission itself, the General Court recalled, referring to the Court of Justice’s judgment in the Eulex Kosovo case three years prior. In that preliminary ruling, the Court had clarified that Eulex Kosovo should be the defendant in any action relating to the consequences of the implementation of the mission⁹. As a consequence, KS and KD should have brought an action against Eulex Kosovo rather than the Council, Commission or EEAS. Because of this mistake, the General Court rejected the first complaint as manifestly inadmissible¹⁰.

KS and KD can lodge another appeal before the Court of Justice. Such an appeal would be limited to points of law. At the time of writing, it is not clear whether they will make use of this possibility.

Comment

As discussed, with regards to the first complaint on the alleged infringement of the right to life and the prohibition of torture, the General Court concluded the applicants had targeted the wrong actor. While they had brought their case against the Council, the Commission and the EEAS, they should have done so against Eulex Kosovo, the General Court held, as it was Eulex Kosovo that was exclusively responsible for the mission’s human resources management.

The General Court’s answer to the first complaint draws attention to the issue of attribution. Under general international law, a state – or an international organization – can only be held responsible for harm caused by conduct that can be attributed to it. How such acts can be attributed is a complex question, and both the Articles on Responsibility of States for Internationally Wrongful Acts and the Draft Articles the Draft Articles on the Responsibility of International Organizations provide for multiple theories of attribution to tie particular conducts to a particular state or international organization¹¹.

Within the context of the EU, a multilevel polity consisting of two levels of governance: the EU and the Member States, each endowed with their own international legal personality, attribution is firstly a vertical issue. Where individuals are harmed by actions or omissions related to an EU mission, that action or omission can be attributable to either the EU or one or several Member States. In many instances, the action or omission will be attributable to the EU. This will be the case in particular where the harm is done by an EU staff member who was acting “in the performance of its functions”¹². Where the harm is done by a Member State official seconded to an EU mission, attribution becomes more complicated to assess, as the conduct of the official can only be attributed to the EU if the EU was exercising “effective control” over the Member State official¹³. As the earlier case of H v Council concerning a decision to relocate an Italian official working for the EU’s rule of law mission in Bosnia made clear, it is not always straightforward to determine whether or not the EU was indeed exercising “effective control” over the official¹⁴.

As the General Court made clear in its order, where the wrongful act can indeed be attributed to the EU, applicants face a second attribution challenge, namely that of identifying the right EU institution or body against which to bring its action. This can be challenging for applicants who may not be familiar with the nuances of the institutional balance within the EU. It is moreover particularly challenging in the CSDP context where the EU operates through ad hoc missions such as Eulex Kosovo. This raises the question of whether harmful conduct is attributable to the Council, which establishes the mission and exercises oversight over it through the Political and Security Committee (PSC), or whether harm can be attributed to the mission directly.

That the horizontal attribution of conduct can be challenging became apparent in the abovementioned  2022 Eulex Kosovo case¹⁵. Eulex Kosovo was a preliminary ruling procedure by a Belgian labour court. Eulex Kosovo staff members had challenged a set of human resources decisions made by the head of the mission. Before the Belgian court the question arose to whom the conduct could be attributed. To the head of mission? To the Council? The Commission? EEAS? The Court responded that Eulex Kosovo itself was responsible for the claims and obligations relating to the implementation of the mission entrusted to Eulex Kosovo that arose after 12 June 2014. To reach this conclusion, the Court relied heavily on a specific provision of the Council Joint Action that had established the Eulex Kosovo mission, and which expressly stated that “[Eulex Kosovo] shall be responsible for any claims and obligations arising from the implementation of the mandate starting from 15 June 2014, with the exception of any claims relating to serious misconduct by the Head of Mission, for which the Head of Mission shall bear the responsibility”. Similar clauses have been included in other Council decisions or joint actions establishing CSDP missions.

The Court’s judgment in Eulex Kosovo makes clear that KS and KD should have directed their action for damages against Eulex Kosovo directly rather than against the Council, Commission or EEAS. However, when KS and KD started the proceedings in 2015, the clarification offered by the Court in its Eulex Kosovo judgment was not yet available. Additionally, as demonstrated in the Eulex Kosovo case, multiple factors pointed to the Council as the EU institution to whom the conduct could be attributed. The fact that the Council exercises political and strategic oversight over the mission through the PSC was one such factor. The fact that the Council had created Eulex Kosovo, has the power to amend its mission, and even terminate the mission altogether, was another.

The answer to the question of whom to target in an action for damages was thus not clear-cut, and the applicants should be forgiven for not directly targeting Eulex Kosovo, whose legal status was, certainly at that time, unclear. Under current procedural rules, they did not have the possibility to rectify their mistake, moreover. Before national jurisdictions, parties often have the opportunity to force a third party to intervene in pending proceedings. This is considered appropriate for reasons of procedural economy, as it takes away the need for parties to start a new procedure, with all the delays and extra costs that come with it. Before the EU courts, however, such a possibility does not exist. EU institutions or bodies have the possibility to intervene in a pending case, but they cannot be compelled to do so¹⁶. This leaves applicants only with the option of bringing a new case, as KS and KD may be required to do.

As long as interventions in EU court proceedings remain voluntary, applicants are well-advised to cast the net as wide as possible and thus bring their actions against all EU institutions, bodies, agencies or, as in this case: missions, to which the wrongful act can potentially be attributed. This is especially relevant for CSDP missions that do not have a clause like the one included in the Eulex Kosovo mandate. However, even if such a clause exists, it is generally wise to follow this approach, since EU staff may cause harm when acting outside the specific scope of the mission’s “implementation of the mandate”. Moreover, considering that EU institutions or bodies may in their defence argue that the conduct at issue cannot be attributed to them but rather to a Member State, applicants may also need to bring parallel proceedings before national courts, which makes it even more challenging (and costly) to obtain relief.

Conclusion

The General Court’s second order in KS and KD drives home the point that it remains a daunting challenge for victims of human rights violations to obtain relief from the EU courts for the harm they have suffered, even where the EU courts do have jurisdiction. The EU’s system of judicial protection was designed as a system of administrative review centred around the action for annulment and the preliminary ruling mechanism. As long as the EU was primarily involved in the business of rule-making, this was fitting. However, as the EU develops into an actor that engages in direct administration, including in territories outside of the EU, other procedural avenues, such as the action for damages, become increasingly relevant. As KS and KD amply demonstrate, the EU courts are only beginning to deal with the questions of substance that come with holding accountable an international organization that shares responsibilities both vertically, with its Member States, and horizontally, within its own institutional framework.

¹ General Court, 25 September 2025, Case T‑771/20 RENV, KS and KD v Council and Others, ECLI:EU:T:2025:923 (the Order).

² General Court, 11 November 2021, Case T‑771/20, KS and KD v Council and Others, ECLI:EU:T:2021:798.

³ Court of Justice, 10 September 2024, Joined Cases C-29/22 P, C-44/22 P, KS and KD v Council and Others, ECLI:EU:C:2024:725.

⁴ See e.g. General Court, 6 September 2023, Case T‑600/21, WS v European Border and Coast Guard Agency (Frontex), ECLI:EU:T:2023:492, para. 52.

⁵ Ibidem, para. 53.

⁶ Paras 110-115 of the Order.

⁷ Ibidem, paras 54-60.

⁸ Ibidem, paras 42-53.

⁹ Court of Justice, 24 February 2022, Case C‑283/20, CO and Others v MJ and others (‘Eulex Kosovo’), ECLI:EU:C:2022:126.

¹⁰ Para. 48 of the Order.

¹¹ For states, see Article 4 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts 9 (ARSIWA). For international organizations, see Article 6 of the International Law Commission’s Draft Articles on the Responsibility of International Organizations (DARIO).

¹² Art. 6(1) DARIO.

¹³ Art. 7 DARIO.

¹⁴ Court of Justice, 19 July 2016, Case C-455/14 P, H v Council of the European Union and Others, ECLI:EU:C:2016:569.

¹⁵ Court of Justice, 24 February 2022, Case C‑283/20, CO and Others v MJ and Others (‘Eulex Kosovo’), ECLI:EU:C:2022:126.

¹⁶ Article 40 iuncto 53 of the Statute of the Court of Justice of the European Union.