Tomanovic & Ors v The European Union

Factual and Procedural Background

The claim arises from alleged failures to properly investigate or prosecute war crimes, inter-ethnic crimes, or other serious crimes committed against family members of the claimants during armed conflict and inter-ethnic violence in Kosovo between June 1999 and July 1999, and in one case March 2000. The claimants, eight individuals who are immediate family members of victims suspected to have been targeted due to their ethnic background, brought a claim against four defendants, including an EU Rule of Law Mission in Kosovo known as "EULEX Kosovo" ("EULEX"). The claimants discontinued their claim against EULEX shortly before the hearing, leaving the first three defendants as the focus of the proceedings.

The claimants sought a declaration that the defendants violated their human rights under the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights due to failure to investigate and prosecute the crimes, as well as damages including aggravated and exemplary damages. The defendants, represented by the European Commission, applied to set aside service of the claim form on the second and third defendants and to declare that the court had no jurisdiction over the claim against all three defendants.

Procedurally, the claim was issued on 14 June 2018, with jurisdiction challenges filed by the defendants in August 2018. The claimants had previously issued related claims, including one against the Foreign and Commonwealth Office and others, but did not pursue joinder of that claim. The claimants also pursued actions before the General Court of the European Union for legal aid in proposed actions related to similar issues, some of which were rejected as manifestly inadmissible.

Legal Issues Presented

1. Whether the English court has jurisdiction to hear claims against the first, second, and third defendants, given the nature of the claim and the legal personality of the defendants under English law.
2. Whether the Court of Justice of the European Union (CJEU) has exclusive jurisdiction over the claims, particularly regarding declaratory relief and damages for non-contractual liability under EU law.
3. Whether the exclusion of the Common Foreign and Security Policy (CFSP) provisions from the jurisdiction of the CJEU affects the availability of remedies before national courts in this case.
4. Whether the claimants are entitled to an effective remedy before a tribunal compliant with Article 47 of the Charter of Fundamental Rights of the European Union, given the alleged violations in the context of CFSP-related activities.
5. Whether it is appropriate or necessary for the English court to make a preliminary reference to the CJEU under Article 267 TFEU in the circumstances of this case.

Arguments of the Parties

Defendants' Arguments

• Only the first defendant (the EU) has legal personality under English law; the second and third defendants do not, so service on them should be set aside and no jurisdiction exists over them.
• Jurisdiction for declaratory relief lies exclusively with the CJEU; this court lacks the power to grant the relief sought against the EU.
• Exclusive jurisdiction for claims for damages against the EU for non-contractual liability resides with the CJEU.
• Even if jurisdiction is disputed, a reference to the CJEU under Article 267 TFEU should be made before this court proceeds.
• The CFSP provisions exclude CJEU jurisdiction except in narrowly defined exceptions; the claim falls within this exclusion.
• The Foto-Frost principle precludes national courts from declaring EU acts invalid to preserve uniformity and legal certainty.
• National courts' jurisdiction over CFSP matters is limited and does not extend to annulling sovereign policy decisions such as the EULEX Joint Action.
• Protocol (No 7) on Privileges and Immunities supports exclusive CJEU jurisdiction over damages claims against the EU.

Claimants' Arguments

• The claim is excluded from CJEU jurisdiction by virtue of Article 24(1) TEU and Article 275 TFEU, as it concerns alleged human rights violations in the CFSP context not covered by the exceptions.
• The claimants have a fundamental right under Article 47 of the Charter to an effective remedy before a tribunal, which national courts must provide.
• The HRRP findings demonstrate violations of the claimants' rights, and national courts must be able to hear such claims and award damages.
• The Foto-Frost principle does not apply to CFSP claims because the CJEU's jurisdiction is excluded in this area, so national courts must fill the gap.
• Claims for damages under Articles 268 and 340 TFEU should be heard by national courts when CJEU jurisdiction is excluded.
• The claimants rely on academic commentary and certain Advocate General opinions supporting their position that national courts can exercise jurisdiction in CFSP-related human rights claims.
• Protocol (No 7) on Privileges and Immunities does not confer immunity from jurisdiction, only affects enforcement of judgments.
• The claimants are not seeking to annul the EULEX Joint Action but to obtain redress for failures in its implementation that caused human rights violations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the legal personality of the defendants under English law, concluding that only the first defendant (the EU) possesses legal personality. The second and third defendants lack legal personality and therefore the English court has no jurisdiction over claims against them; service on these defendants was set aside accordingly.

Regarding jurisdiction over the first defendant, the court examined the relevant provisions of the Treaties, particularly the TEU and TFEU, and their incorporation into English law. The court noted that the CFSP provisions exclude the jurisdiction of the Court of Justice of the European Union (CJEU) except in narrowly defined exceptions, none of which apply here. The claim relates to alleged human rights violations connected to the EULEX Joint Action, a CFSP measure.

The court considered the competing principles of the Foto-Frost doctrine, which reserves to the CJEU the exclusive power to declare EU acts invalid to preserve uniformity and legal certainty, and the fundamental right to an effective remedy under Article 47 of the Charter, which requires an effective tribunal to hear claims of rights violations.

While acknowledging the claimants’ argument that national courts must provide remedies for CFSP-related human rights violations due to the exclusion of CJEU jurisdiction, the court found that the exclusion of CFSP provisions from the European Communities Act 1972 prevents the English court from exercising jurisdiction over this claim. The CFSP provisions are not incorporated into domestic law, and the claim is inextricably linked to a CFSP measure.

Even if the court were wrong on this point, the court concluded that the CJEU has exclusive jurisdiction over the claim, particularly for damages under Articles 268 and 340 TFEU, supported by relevant case law. However, the court recognized uncertainty in the authorities and that the issue could only be resolved definitively by a preliminary ruling from the CJEU under Article 267 TFEU.

The court declined to make a preliminary reference, citing several reasons: the unclear legal basis for the declaratory relief sought; the limited additional benefit of declarations beyond the findings of the Human Rights Review Panel; the enforceability issues of damages awards against the EU due to Protocol (No 7) on Privileges and Immunities; the significant use of court resources required; and the possibility that the UK might no longer be an EU Member State by the time a ruling was obtained.

In sum, the court held that it does not have jurisdiction to hear the claim due to the exclusion of CFSP provisions from domestic law and, alternatively, that the CJEU has exclusive jurisdiction. The court acknowledged the tension between the need for effective remedies and the limits imposed by the Treaties and domestic law.

Holding and Implications

The court GRANTED the application by the European Commission on behalf of the defendants, setting aside the service of the claim form on the second and third defendants and declaring that the court has no jurisdiction to hear the claim against the first, second, and third defendants.

The direct effect of this decision is that the claim cannot proceed against the defendants in the English courts. The ruling emphasizes the legal personality requirements under English law and the exclusive jurisdiction of the Court of Justice of the European Union over claims involving the EU, particularly in the context of CFSP-related acts. The court recognized the difficulty created by the exclusion of CFSP provisions from domestic law and the conflict between established EU legal principles and fundamental rights protections. No new precedent was established beyond the application of existing principles to these facts, and the court declined to make a preliminary reference to clarify the jurisdictional issues further.