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ACCOUNTABILITY MECHANISMS FOR HUMAN RIGHTS VIOLATIONS BY CSDP MISSIONS: AVAILABLE AND SUFFICIENT?

  • Stian Øby Johansen (a1)
Abstract
Abstract

This article demonstrates that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU's Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated. The assessment of the CSDP accountability mechanisms—the Court of Justice of the European Union, domestic courts of EU Member States, and other mechanisms at the international level—is conducted in light of the requirements laid down in Article 13 of the European Convention of Human Rights. The consequences of the insufficiency of these mechanisms for the EU's accession to the ECHR are also touched upon.

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1 Thanks to Frederik Naert, Christophe Hillion, Luca Pantaleo, Graham Butler, Geir Ulfstein, Sofie A E Høgestøl, Sondre Torp Helmersen, my colleagues at the Centre for European Law, and the anonymous reviewers for helpful comments on earlier drafts of this article.

2 Although the original EU treaties were silent on the matter, the Court of Justice recognized that respect for human rights were a part of ‘the general principles of Community law’ in Case 29/69 Stauder v City of Ulm [1969]. See, for further details, Búrca G de, ‘The Evolution of EU Human Rights Law’ in Craig P and Búrca G de (eds), The Evolution of EU Law (2nd edn, OUP 2011) 475–80.

3 TEU art 2.

4 References to the CJEU in the following also refer, where appropriate, to its predecessor, the Court of Justice of the European Communities.

5 In EU terminology known as ‘restrictive measures against natural or legal persons’, see TFEU art 275(2).

6 An overview of the case law is found in Eeckhout P, EU External Relations Law (2nd edn, OUP 2011) 511–28.

7 Some potential accountability gaps may nevertheless remain, eg in cases where individuals are negatively affected by general (non-targeted) sanctions. See Eckes C, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76 MLR 254 , 283.

8 TEU art 42(1).

9 TEU art 23, which refers back to, inter alia, TEU art 21(1).

10 Attached as Appendix I to CDDH 47+1 Ad Hoc Negotiation Group, ‘Final report to the CDDH’ (5 April 2013) CoE Doc 47+1(2013)008 <http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1%282013%29008rev2_EN.pdf>.

11 CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] paras 249–258.

12 ibid, para 252.

13 ibid, para 255.

14 ibid, para 254.

15 ibid, para 257.

16 ibid, para 258. The CJEU also found the DAA incompatible with the treaties on four other, independent grounds: (1) that the DAA is liable adversely to affect the specific characteristics and the autonomy of EU law, (2) that the DAA is liable to affect TFEU art 344, (3) that the DAA does not lay down arrangements for the operation of the co-respondent mechanism that enable the specific characteristics of Union law to be preserved, and (4) that the DAA does not lay down arrangements for the prior involvement of the CJEU that enable the specific characteristics of Union law to be preserved.

17 See eg Naert F, International Law Aspects of the EU's Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Intersentia 2010) Pt III; Evans MD and Koutrakos P (eds), The International Responsibility of the European Union: European and International Perspectives (Hart 2013) (edited collection); Gosalbo-Bono R and Boelaert S, ‘The European Union's Comprehensive Approach to Combating Piracy at Sea: Legal Aspects’ in Skordas A and Koutrakos P (eds), The Law and Practice of Piracy at Sea: European and International Perspectives (Hart 2014), particularly 104–32; D Thym, ‘Transfer Agreements for Pirates Concluded by the EU – a Case Study of the Human Rights Accountability of the Common Security and Defence Policy’ in Skordas and Koutrakos ibid.

18 Among the works cited in the previous footnote accountability mechanisms are briefly discussed in Evans and Koutrakos (n 17) 331–2; Gosalbo-Bono and Boelaert (n 17) 161–4; Thym (n 17) 179–81. In the scholarship on other international organization there is also a bias towards substantive issues, although there are some authors that write quite extensively on mechanisms. See eg Wouters J et al. (eds), Accountability for Human Rights Violations by International Organisations (Intersentia 2010) for a collection of articles exemplifying both approaches.

19 As laid down in CFR art 47(1) and ECHR art 13.

20 Craig P, The Lisbon Treaty: Law, Politics, and Treaty Reform (OUP 2010) 43.

21 Piris J-C, The Lisbon Treaty: A Legal and Political Analysis (CUP 2010) 66–7; Craig (n 20) 27.

22 See also Craig (n 20) 380.

23 As also noted in Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott para 101.

24 TEU art 31(1).

25 TEU arts 24(1) and 36; Kuijper PJ et al. , The Law of EU External Relations: Cases, Materials, and Commentary on the EU as an International Legal Actor (OUP 2013) 856; Craig (n 20) 411–13. But see CJEU, Case C-658/11 Parliament v Council [2014], where the CJEU arguably extends the role of the parliament in a CFSP-related context.

26 TEU art 25(b).

27 RA Wessel and L den Hertog, ‘EU Foreign, Security and Defence Policy: A Competence-Accountability Gap?’ in Evans and Koutrakos (n 17) 344.

28 TEU art 29.

29 TEU art 34(1).

30 TEU art 28.

31 TFEU art 24(3).

32 TEU art 42(1).

33 Koutrakos P, The EU Common Security and Defense Policy (OUP 2013) 35.

34 TEU art 43(1).

35 Barnett MN and Finnemore M, Rules for the World: International Organizations in Global Politics (Cornell University Press 2004), particularly at ix and 23.

36 Scholars have increasingly challenged the normative bias towards international organizations in recent years. See among others: Reinisch A, ‘Securing the Accountability of International Organizations’ (2001) 7 Global Governance 131 ; Skogly S, The Human Rights Obligations of the World Bank and the International Monetary Fund (Cavendish Publishing 2001); Mégret F and Hoffmann F, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 HRQ 314 ; Verdirame G, The UN and Human Rights: Who Guards the Guardians? (CUP 2011).

37 For an overview of the civilian missions launched so far, see Koutrakos (n 33) 133–82.

38 On the concept of territorial administration by international organizations, see eg Wilde R, International Territorial Administration (OUP 2008) ch 1; Stahn C, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (CUP 2008), particularly at 43–9.

39 The overwhelming majority of missions are, admittedly, small-scale, see Koutrakos (n 33) 181–2. EULEX Kosovo is the exception, with its large-scale and broad mandate (see section III.A below).

40 For an overview of the military missions launched so far, see ibid 101–32.

41 Civilian missions will usually only use force in self-defence, to protect the security of the mission. However, some comprehensive civilian missions wielding executive power over a territory are empowered to use force to ensure public security. An example of the latter is the use of tear gas by EULEX in order to disperse demonstrators at a construction site, documented in Secretary General of the UN, ‘Report on the United Nations Interim Administration Mission in Kosovo’ (UN Doc S/2009/300, 10 June 2009) paras 12–14.

42 For a discussion of the general applicability of the law of armed conflict to CSDP missions, and the difficulties of assessing this in the context of individual missions, see: Naert, International Law Aspects of the EU's Security and Defence Policy (n 17) 463–506; F Naert, ‘The Application of Human Rights and International Humanitarian Law in Drafting EU Missions’ Mandates and Rules of Engagement’ (2011) K.U. Leuven, Institute for International Law Working Paper No 151 at 17 <https://www.law.kuleuven.be/iir/nl/onderzoek/wp/wp151e.pdf>.

43 See eg Naert F, ‘The International Responsibility of the Union in the Context of Its CSDP Operations’ in Evans MD and Koutrakos P (eds), The International Responsibility of the European Union: European and International Perspectives (Hart 2013); Wessel and den Hertog (n 27); Sari A and Wessel RA, ‘International Responsibility for EU Military Operations: Finding the EU's Place in the Global Accountability Regime’ in Vooren B Van, Blockmans S and Wouters J (eds), The EU's Role in Global Governance (OUP 2013); Spernbauer M, EU Peacebuilding in Kosovo and Afghanistan: Legality and Accountability (Brill 2014) 320–49.

44 For further details on EULEX Kosovo, see: Naert, International Law Aspects of the EU's Security and Defence Policy (n 17) 164–73; Koutrakos (n 33) 168–77; Spernbauer (n 43).

45 European External Action Service, ‘Factsheet: EULEX Kosovo’ (October 2014) <http://eeas.europa.eu/csdp/missions-and-operations/eulex-kosovo/pdf/factsheet_eulex_kosovo_en.pdf>.

46 Art 3 of Council Joint Action 2008/124/CFSP [2008] OJ L42/92.

47 ibid art 3(a) i.f.; Spernbauer (n 43) 200.

48 Art 3(b) of Council Joint Action 2008/124/CFSP [2008] OJ L42/92. See also art 17 of the Law on EULEX jurisdiction, approved by the Assembly of Kosovo on 13 March 2008 (in force 15 June 2008) No 2008/03-L-053 <http://www.kuvendikosoves.org/common/docs/ligjet/03-L-053%20a.pdf>.

49 Spernbauer (n 43) 327.

50 ibid 321, with further references.

51 ibid 328.

52 For an overview of NAVFOR Atalanta, see Naert, International Law Aspects of the EU's Security and Defence Policy (n 17) 179–91; Koutrakos (n 33) 120–4; ; Gosalbo-Bono and Boelaert (n 17) 87–134. For a detailed analysis, with a particular emphasis on responsibility, see E Papastavridis, ‘EUNAVFOR Operation Atalanta off Somalia: The EU in Unchartered Legal Waters?’ (2015) 64 ICLQ 533.

53 Council Joint Action 2008/851/CFSP [2008] OJ L301/33 arts 2 and 12.

54 European External Action Service, ‘Factsheet: NAVFOR Operation Atalanta’ (23 November 2014) <http://www.eeas.europa.eu/csdp/missions-and-operations/eu-navfor-somalia/pdf/factsheet_eunavfor_en.pdf>.

55 Papastavridis (n 52) 542.

56 ibid, particularly at 536–50.

57 The right to life is laid down in ECHR art 2 and CFR art 2.

58 Papastavridis (n 52) 547.

59 ibid 560.

60 ILC Draft Articles on the Responsibility of International Organizations (30 May 2011) UN Doc A/CN.4/L.778, arts 14–19.

61 See also Papastavridis (n 52) 558–60.

62 ECtHR, Behrami and Behrami v France, and Saramati v France, Germany and Norway [GC] (dec), no 71412/01 & 78166/01 (2007).

63 The case has been vehemently criticized by scholars, see eg Milanović M and Papić T, ‘As Bad as It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 ICLQ 267 ; Larsen KM, ‘Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test’ (2008) 19 EJIL 509 . The criticism does not, however, seem to be directed towards the implicit finding of responsibility on the part of the UN. Rather, the gist of the criticism seems to be that the ECtHR did not consider that the respondent States could also be responsible, alongside the UN (multiple/dual attribution or complicity).

64 See ECtHR, Rigopoulos v Spain, no 37388/97 (1999); ECtHR, Medveyev and others v France [GC], no 3394/03 (2010). See also Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 19–20.

65 See Papastavridis (n 52) 561–2.

66 Confirmed by the ECtHR in Soering v UK [PC], no 14038/88 (1989).

67 See generally Thym (n 17).

68 ibid 174–6.

69 ibid 176–7; MD Evans and S Galani, ‘Piracy and the Development of International Law’ in Skordas and Koutrakos (n 17) 354; Guilfoyle D, ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59 ICLQ 141, 160–8.

70 MV Courier, Cologne Administrative Tribunal judgment 25 K 4280/09 (2011). The case has been appealed by the German government, and the appeal is pending before Upper Administrative Court Münster. For an explanation of why the case was litigated before German, and not Union courts, see section IV below.

71 MV Courier, Cologne Administrative Tribunal judgment 25 K 4280/09 (2011).

72 ibid, para 55.

73 ibid, paras 55–56.

74 Papastavridis (n 52) 566.

75 ibid (footnotes omitted).

76 CFR art 51(1).

77 Costello C and Moreno-Lax V, ‘The Extraterritorial Application of the EU Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model’ in Peers S et al. (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 1662 (emphasis added).

78 ibid 1682.

79 See ECHR art 1. Similar clauses are found in many other human rights treaties, albeit with some slight variations, see Milanović M, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (OUP 2011) 1113 , with further references. The wording of ECHR art 1, and similar clauses in other conventions, is quite State-centric. Therefore, several modifications to ECHR art 1 were envisaged in the recently rejected DAA. Firstly, the word ‘State’ would have been understood as applying mutatis mutandis to the Union post-accession, see DAA art 1(6) i.f. Secondly, the Union's territory would, according to DAA art 1(6), be defined as ‘the territories of the member States of the European Union to which the TEU and the TFEU apply’.

80 As aptly demonstrated in Milanović (n 79).

81 See eg ECtHR, Al-Skeini v UK [GC], no 55721/07 (2011).

82 ECtHR, Al-Skeini v UK [GC], no 55721/07 (2011) para 131.

83 Milanović M, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 EJIL 121, 127–31; Lock T, ‘End of an Epic? The Draft Agreement on the EU's Accession to the ECHR’ (2012) 31 Yearbook of European Law 162, 189.

84 ECtHR, Al-Skeini v UK [GC], no 55721/07 (2011) para 137.

85 ECtHR, Al-Skeini v UK [GC], no 55721/07 (2011) para 138.

86 Although entitled ‘the view of Advocate General Kokott’, it is no different from an opinion by an Advocate General, which is the common term. The change in terminology was likely made to avoid any confusion arising from the fact that, since the case was brought under TFEU art 218(11), the decision of the CJEU was styled as an opinion, and not a judgment.

87 Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, para 85.

88 Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, para 85 (emphasis added).

89 Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, paras 102–103 (emphasis added).

90 General Advocate Kokott deals with the latter issue in paras 185–195 of her View. The CJEU deals with it in Opinion 2/13 EU Accession to the ECHR (II) [2014] paras 249–258.

91 See CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] paras 249–258.

92 CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] para 255.

93 CJEU, Opinion 1/09 Creation of a unified patent litigation system [2011] para 66, with further elaboration in paras 78–89. See also TEU art 19(1).

94 See CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] para 256 i.f.

95 Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, para 102–103 (quoted above).

96 The CJEU and General Advocate Kokott seemingly diverge, though, on the question of whether the CFSP accountability mechanisms offer sufficient legal protection. Kokott finds that the CJEU does not provide sufficient protection alone, but argues that this is offset by the role of the domestic courts of EU Member States under TEU Art 19(1) second subparagraph and TFEU art 274. See Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, paras 101–102 in particular. The CJEU is less explicit on the matter, but may arguably be read as concluding that no EU body—a category including both the CJEU and domestic courts—provide sufficient legal protection. See Opinion 2/13 EU Accession to the ECHR (II) [2014], in particular paras 251–257.

97 The present wording of ECHR art 13 is not easily applied to an international organization like the Union, since it requires an effective remedy before a ‘national authority’. However, DAA art 1(5) second hyphen provides that this term should be understood as applying mutatis mutandis ‘to the internal legal order of the European Union as a non-State party to the Convention and to its institutions, bodies, offices or agencies’. Although the DAA was rejected in Opinion 2/13, any future accession agreement will certainly have a similar provision.

98 ECHR art 35(1), as it would be authoritatively interpreted by DAA art 1(5) second hyphen or its equivalent. See also the comments made in the previous footnote.

99 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 33. The Explanations, which are technically a part of the Charter's travaux préparatoires, ‘shall be given due regard’ when interpreting the Charter's provisions, see CFR art 52(7) and JP Jacqué, ‘The Explanations Relating to the Charter of Fundamental Rights of the European Union’ in S Peers et al. (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014). See also CFR art 53.

100 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 29. To the extent that the provisions correspond, the meaning and scope of CFR art 47(1) shall be the same as that laid down in ECHR art 13. This does not prevent Union law or the Charter from providing more extensive protection. See CFR art 52(3).

101 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 29 (emphasis added).

102 See also CFR art 52(3), according to which rights in the CFR that correspond to rights guaranteed by the ECHR ‘shall be the same as those laid down in the said Convention’.

103 ECtHR, Öneryildiz v Turkey [GC], no 48939/99 (2004) para 146; JF Kjølbro, Den Europæiske Menneskerettighedskonvention – for praktikere (3rd edn, DJØF Forlag 2010) 876.

104 See eg ECtHR, McFarlane v Ireland [GC], no 31333/06 (2010) para 114; ECtHR, Riener v Bulgaria, no 46343/99 (2006) para 138.

105 ECtHR, McFarlane v Ireland [GC], no 31333/06 (2010) para 114.

106 ECtHR, James v UK [PC], no 8793/79 (1986) para 85.

107 ECtHR, Chalal v UK [GC], no 22414/93 (1996) para 152.

108 See eg ECtHR, Riener v Bulgaria, no 46343/99 (2006) para 138. See also C Grabenwarter, European Convention on Human Rights: Commentary (Beck Verlag 2014) 333–4; Kjølbro (n 103) 876–9.

109 Emphasis added. In three recent cases the CJEU has been eroding the edges of this carve-out. First, in case C-439/13 P Elitaliana SpA v EULEX Kosovo [2015], conduct related to public procurement for a civilian CSDP mission was attributed to the Commission—thus paving the way for CJEU jurisdiction—because the budgetary and financial matters of such civilian missions are dealt with by the Head of Mission ‘under the supervision and authority of the Commission’ (para 58). Second, in case C-263/14 Parliament v Council (Tanzania Transfer Agreement) [2016], the CJEU confirmed that it had jurisdiction to review the compliance with TFEU art 218(10) of a treaty that fell ‘predominantly within the scope of the CFSP’ (para 55). This was because TFEU art 218(10) applied to all treaties that the EU is to become party to, ‘including those exclusive to the CFSP’ (para 68). The common strand in these two cases is that a non-CFSP area of Union law is involved, thus pulling the case into the CJEU's field of jurisdiction. In contrast, claims brought by private individuals alleging that the conduct of a CSDP mission resulted in a human rights violation—which are the type of claims this article is about—do not involve such non-CFSP Union law. In the third and most recent case, C-455/14 P H v Council et al. [2016], the CJEU asserted jurisdiction over a labour dispute involving a civilian CSDP mission and a person seconded to the mission from a Member State. Again the CJEU nibbled at the margins of the carve-out, this time to ensure that staff seconded to the mission from, respectively, Member States and the EU institutions were given equal access to court for labour disputes—a rationale that seems limited to that particular situation.

110 TFEU art 275(2) (emphasis added). The same exceptions are also laid down in TEU art 24(1) i.f.

111 Kuijper et al. (n 25) 863.

112 TFEU art 275(2) i.f.

113 See for example Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya [2011] OJ L58/53.

114 This is because CFSP decisions on sanctions against individuals that provided for the freezing of financial assets had (and still have) to be implemented through internal market regulations. The legal basis for such implementing regulations was rather complex pre-Lisbon, but has now been codified in TFEU art 215. Since these regulations are not CFSP measures, the CJEU found that it had jurisdiction to review them even prior to 2009. For further details, see Eeckhout (n 6) 506–23 and the cases cited therein.

115 See inter alia: Spernbauer (n 43) 361–2; Gosalbo-Bono and Boelaert (n 17) 161; Kuijper et al. (n 25) 862–3; Eckes (n 7) 281; Piris (n 21) 263.

116 ibid (emphasis added).

117 CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] para 98. In support of this part of its argument the Commission cited Case C-355/04 P Segi and Others v Council [2007], a case where the CJEU had indicated that it would interpret any restrictions upon its jurisdiction narrowly.

118 CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] para 251.

119 CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014], in particular para 131.

120 Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, paras 88–102.

121 CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] para 252.

122 ibid, para 253.

123 See, by implication, ibid, para 254.

124 See also Spernbauer (n 43) 361.

125 ibid.

126 ibid (footnote omitted).

127 CJEU, Case C-658/11 Parliament v Council [2014] para 70.

128 Concurring: Naert, ‘Responsibility of the EU Regarding Its CFSP Operations’ (n 43) 330–1; Spernbauer (n 43) 359–61; Gosalbo-Bono and Boelaert (n 17) 163; Papastavridis (n 52) 540. Contra: Hillion C, ‘A Powerless Court? The European Court of Justice and the Common Foreign and Security Policy’ in Cremona M and Thies A (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart 2014) 51–4.

129 Schermers HG and Blokker NM, International Institutional Law: Unity within Diversity (5th edn, Martinus Nijhoff Publishers 2011) 1031.

130 Wessel RA, ‘Immunities of the European Union’ (2014) 10 International Organizations Law Review 395, 401.

131 Similarly ibid 405–406.

132 CJEU, Case 314/85 Foto-Frost [1987] para 15.

133 ibid, para 19 and Case C-465/93 Atlanta Fruchthandelsgesellschaft [1995] paras 19–30.

134 eg Craig, who finds this solution to be ‘preferable’, see (n 20) 435.

135 Hinarejos A, ‘Judicial Control of CFSP in the Constitution: A Cherry Worth Picking?’ (2006) 25 Yearbook of European Law 363 . Similarly: Naert, ‘Responsibility of the EU Regarding Its CFSP Operations’ (n 43) 331. See also Opinion 2/13 EU Accession to the ECHR (II) [2014], View of AG Kokott, para 100.

136 Davies B, ‘Segi and the Future of Judicial Rights Protection in the Third Pillar of the EU’ (2008) 14 European Public Law 311, 318.

137 ibid, albeit with reference to the former third pillar, today known as the Area of Freedom, Security and Justice.

138 Naert, ‘Responsibility of the EU Regarding Its CFSP Operations’ (n 43) 331 asserts that this is possible, although without discussion.

139 See section IV.B above.

140 See in particular arts 52(3) and 53 of the Charter.

141 This line of argument also finds support in an a contrario reading of the CJEU's reasoning in Case 314/85 Foto-Frost [1987] para 14, where the power of domestic courts to uphold Union acts without making a preliminary reference is recognized, because this does not entail ‘calling into question the existence of the [Union] measure’.

142 Similarly: Naert, ‘Responsibility of the EU Regarding Its CFSP Operations’ (n 43) 332.

143 TFEU art 228(1).

144 EU model SOFA (18 May 2005) Council Doc 8720/05; EU model SOMA (27 June 2005) Council Doc 10564/05.

145 EU model SOFA art 15; EU model SOMA art 16.

146 EU model SOFA art 15(1); EU model SOMA art 16(1).

147 EU model SOFA art 15(4); EU model SOMA art 16(4). Some Union SOFA/SOMA agreements stipulate different, usually higher amounts. See eg Agreement between the European Union and the Republic of Djibouti on the status of the European Union-led forces in the Republic of Djibouti (adopted 9 January 2009) [2009] OJ L33/43 art 16(4), where the amount is set to EUR 80,000.

148 Spernbauer (n 43) 369.

149 ibid 370.

150 See CJEU, Opinion 2/13 EU Accession to the ECHR (II) [2014] and Johansen , ‘The Reinterpretation of TFEU Art 344 in Opinion 2/13 and Its Potential Consequences’ (2015) 16 German Law Journal 169 .

151 Wellens K, Remedies against International Organisations (CUP 2002) 259 , with further references.

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