A. Introduction
How the Court of Justice of the European Union (CJEU) has interpreted its own jurisdiction within the realm of the EU’s Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP), is the subject of ongoing debate and scholarship.Footnote 1 By relying on Article 19 Treaty on the European Union (TEU), which accords the CJEU general jurisdiction, and the right to an effective remedy in Article 47 Charter of Fundamental Rights (CFR), the Court has increasingly held that it has jurisdiction in matters that are not explicitly mentioned in the Treaties.Footnote 2 What remains underexplored however is how—if at all—the right to an effective remedy can be safeguarded for human rights violations stemming from CFSP-CSDP measures even if the CJEU had jurisdiction. In other words, if the initial jurisdictional hurdle of access to the CJEU would be overcome, would individual rights-holders have access to an effective remedy in line with Article 47 CFR?
Although the limited case law on this topic render theoretical and empirical assessments difficult at best, this article argues that even if this jurisdictional hurdle would be overcome, individual rights-holders would still be deprived of access to an effective remedy. This article will demonstrate that the conditions to establish responsibility under the action for damages for the EU’s complicity in unlawful human rights conduct generally, and in its CSDP/CFSP specifically, are riddled with such ambiguity that the action cannot meet the requirements of an effective remedy under Article 47 CFR.
Although there have been cases before the Court of Justice of the European Union (CJEU) concerning the first EU naval mission—Operation Atalanta, formerly European Union Naval Force Somalia—these cases did not concern an application for damages lodged by individual right-holders.Footnote 3 To determine whether there is effective access to legal remedies for individual applicants claiming damages pursuant to EU unlawful human rights conduct, this contribution will analyze the terminated CSDP military operation EUNAVFOR MED Sophia (Operation Sophia)Footnote 4 as a reference frame.Footnote 5 This operation has sparked much controversy due to the human rights implications it has had on individual third-country nationals (TCNs), yet has not given rise to any legal review concerning the damage resulting therefrom.Footnote 6 Specifically, within this Operation, the EU made use, and continues to do so through its successor Operation Irini,Footnote 7 of aerial surveillance in order to locate and transmit location coordinates of individual TCNs in the Mediterranean to the Libyan Coast Guard. The Libyan Coast Guard subsequently pull back individuals to Libyan territory, where they are subject to a wide array of well-documented human rights abuses. In other words, through EU policy any and all physical contact between TCNs at sea looking for international protection is obliterated, and yet at the same time, push- and pullback operations to Libya are facilitated.
Using Operation Sophia as a reference frame, the procedural and substantive legal obstacles to obtain reparations for damages by individual TCNs will be identified. In turn, identifying these obstacles will help determine whether a legal responsibility gap tarnishes CSDP military missions in contravention of the overarching obligation to provide an effective legal remedy in a Union based upon the rule of law.Footnote 8
Operation Sophia, given its external features as a CSDP military mission and its hybrid governance structure—involving, inter alia, Member States and the EU—operates at the intersection of EU law, public international law, and domestic law.Footnote 9 The different legal fields applicable to Operation Sophia, as well as its diffused hybrid governance structure, obfuscate what actor(s) is responsible and under what conditions, due to the multiplicity of actors involved and the legal regimes at play. The current article contributes to scholarship on the topic, by providing a concrete, systematic, and holistic examination of the obstacles faced by individual rights-holders in holding the EU responsible for its complicity in unlawful human rights conduct stemming from Operation Sophia, and by exposing how current EU policy continues to facilitate evasion of legal responsibilityFootnote 10 through its successor EUNAVFOR MED Operation Irini (hereinafter Operation Irini).
Matters of the EU’s foreign policy, as embedded in its CFSP/CSPD, are generally exempted from the jurisdiction of the CJEU. However, relying on Article 19 TEU which provides the CJEU with general jurisdiction and the right to an effective remedy in Article 47 Charter of Fundamental Rights (CFR), the CJEU claimed jurisdiction in the Rosneft preliminary ruling procedure concerning restrictive measures. In what is considered by some as a conspicuous exercise of gap-filling in the EU’s CFSP/CSDPFootnote 11 where the Court generally does not enjoy jurisdiction,Footnote 12 Rosneft widened the potential for legal review by the CJEU by linking effective judicial review with the foundational EU value of the rule of the law.Footnote 13 In Opinion 2/13, the CJEU had already held that it “has not yet had the opportunity to define the extent to which its jurisdiction is limited in CFSP matters.” Footnote 14 Incrementally, the CJEU thus appears to ensure legal review for matters related to CFSP/CSDP, despite the fact that that these developments have not yet come to “full fruition.”Footnote 15 This is evidenced further by the recent judgement in Bank Refah Kargaran v Council, where the CJEU held that the EU courts have jurisdiction to hear and determine an action for damages for the harm caused by the adoption of restrictive measures under Article 29 TEU,Footnote 16 despite this not being explicitly foreseen by the Treaties.Footnote 17
One of the remaining legal responsibility gaps not yet addressed by the CJEUFootnote 18 in the EU’s CFSP/CSDP, is the access to an effective remedy for damages incurred by individuals as a result of unlawful human rights conduct caused by the EU.Footnote 19 Conceptually, an action for damages stemming from unlawful human rights conduct in CSDP/CFSP operational conduct, is not necessarily the same as an action for damages stemming from EU imposed sanctions. While the latter does have some legal basis in the Treaties, even if not explicit, the former does not.
Article 340 TFEU requires that “the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.”Footnote 20 Despite the aforementioned evolving case law concerning legal review for CFSP/CSDP restrictive measures more generally, the CJEU has not yet clarified whether legal review is also available for damages stemming from unlawful human rights conduct by the EU within the context of its military CSDP-missions.Footnote 21 The question inevitably follows whether it is possible at all for individual rights-holders to hold the EU legally responsible—independently and separately from its Member StatesFootnote 22 —and demand reparations for its role in unlawful human rights conduct stemming from CFSP/CSDP military missions.Footnote 23
After briefly recalling the mandate, objectives, and legal peculiarities of Operation Sophia, the analysis focuses on the human rights responsibility regime within the EU legal order as applied to CSDP-missions generally, and Operation Sophia and its successor specifically. Reference is made to the procedural and substantive pitfalls that hamper access to legal review on an EU-wide level, with ancillary remarks on remedies before international and domestic courts. Finally, some additional observations are made on alternative remedies that may be pursued by individual applicants, as well as suggestions to improve the current regime(s) on legal recourse.
B. CSDP Mission EUNAVFOR MED Operation Sophia
Operation Sophia was the second of its kind and pursued the dismantling and disruption of the business model of smuggling and trafficking of TCNs across the Mediterranean.Footnote 24 Enacted under the CSDP-framework, Operation Sophia fit neatly within the second tier of the “four-tier access control model” of the EU’s Integrated Border Management policy, due to the cooperation it pursued with Libyan authorities.Footnote 25 Cooperation with Libya was concretized through EU mandated training of the Libyan Coast Guard (LYCG), and the transmission of coordinates of distressed vessels trying to reach the EU to the LYCG by Operation Sophia-conducted aerial surveillance. The cooperation with the LYCG facilitated management and securitization of the EU external borderFootnote 26 and demonstrated the nexus between a security-centric CSDP-approach and border management measures based upon Article 78 TFEU.Footnote 27 Despite continuous explicit reference to international human rights standards in the enactment of the operation however, accumulating testimonies of violations of the non-refoulement principle, render the lawfulness of its conduct questionable at best.Footnote 28
I. Objectives
Operation Sophia was launched with the prevailing objective of “disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean . . . .”Footnote 29 in an attempt to securitize the external EU border and save lives at sea.Footnote 30 To achieve its objectives, the mission was structured in three different phases.Footnote 31 The first phase was limited to detection and monitoring of migration networks by patrolling and information-gathering on the high seas.Footnote 32 Phase two not only permitted “boarding, search, seizure and diversion on . . . of vessels suspected of being used for human smuggling or trafficking . . . .” on high seas (Phase 2A) but also permitted similar measures within the territorial and internal waters of a third state- in casu Libya (Phase 2B).Footnote 33 The third and final phase allowed—subject to consent of the coastal State or authorization via a Security Council Resolution—for the mission to take “all necessary measures against a vessel and related assets, including through disposing of them or rendering them inoperable, which are suspected of being used for human smuggling or trafficking . . . .”Footnote 34
Operation Sophia’s mission was continuously amended, resulting in added supporting tasks, including the training of the LYCG,Footnote 35 aerial surveillance concerning illegal trafficking of oil exports, and aiding the implementation of an arms embargo on Libya.Footnote 36 These supporting tasks and the temporal extensions of the Operation were positioned to support the fight against irregular migration and sought to improve Libyan border management to ensure that irregular departure of TCNs would be significantly decreased.Footnote 37 The increased focus on the securitization of the external EU border, inevitably shifted focus away from the humanitarian objective of preventing human tragedies and the respect for the “principle of non-refoulement and international human rights law.”Footnote 38
II. Legal basis, Nature of the Competence and (Limited) Legal Review
The legal basis for the military naval Operation Sophia is found in Article 42-43 TEU, embedded within the overarching CFSP-framework. These provisions clarify the varying aspects of CSDP-military operations, including the scope, the objectives, and mandate. This framework provides, inter alia, for the necessary civilian and military assets for the purpose of engaging in peace-keeping missions and the strengthening of international security.Footnote 39 In adopting military measures, unanimity is required by the Council following proposals advanced by the High Representative of the EU for Foreign Affairs and Security Policy. Thus, the establishment of a military naval operation is the result of a Council decision, with limited input of other EU institutions.Footnote 40 Though they are not legislative acts, Council decisions are an act of the EU—conceptually distinct from Member States merely working together.Footnote 41
Recourse to a CSDP-military mission and its corresponding legal basis has immediate ramifications for the delineation of competences and the legal recourse available against resulting conduct. While CSDP competence is constitutionally embedded in the EU acquis, Footnote 42 it nevertheless remains of a sui generis nature,Footnote 43 as evidenced inter alia, by the fact that CFSP/CSDP measures are not included in the explicit typology of conferred competences in Articles 3–6 TFEU.Footnote 44 The sui generis nature of CFSP/CSDP competences is further highlighted by the fact that it is “subject to specific rules and procedures.”Footnote 45 Again, different from the competences in Articles 3–6 TFEU. Mindful of these idiosyncrasies, competence in CFSP/CSDP has been referred to as “non-pre-emptive shared competence.”Footnote 46
Despite the incremental and case-specific widening of CJEU jurisdiction in the field, the precise contours of this “crippled conferral” cannot yet be definitively distilled. The extent of jurisdiction enjoyed by the CJEU, is ultimately left to the Court itself to determine.Footnote 47 While an extensive analysis of the foregoing falls outside the ambit of the current article,Footnote 48 it is crucial that the ambiguous nature of the competence division in CSDP and the limited availability of legal review before the CJEU are both informative of and determinative for the availability and effectiveness of legal recourse for individual TCNs.Footnote 49
III. Political Control and Military Command
EU military operations involve Member States, EU institutions, and sometimes third parties all of which operate on the intersection of distinct legal orders.Footnote 50 Accordingly, the command-and-control structures, particularly the military chain of command in theatre,Footnote 51 may differ across various missions. This is relevant as to the manner in which military command is exercised, which may affect to what party unlawful conduct throughout the mission is attributed.
The Council enjoys the political and strategic command and is responsible for key decision-making through Council decisions. Such decisions may include provisions concerning legal responsibility, which may be further elaborated upon in additional planning documents such as the Operational Plan (OPLAN). The Council is supported in its work by a number of entities,Footnote 52 including the High Representative and the European External Action Service (EEAS)Footnote 53 –which provide support in the preparatory phases of CSDP missions.Footnote 54 The Council is additionally aided by a number of preparatory bodies including the Political and Security Committee (PSC) and the EU Military Committee (EUMC).Footnote 55 The PSC specifically, exercises political control, determines strategic direction of the mission and oftentimes exercises the authority to take decisions concerning planning documents (such as the OPLAN),Footnote 56 alterations of the military chain of command and the rules of engagement.Footnote 57
The military chain of command, i.e. operational control, is determined on a case-by-case basis,Footnote 58 as the EU does not have standing military headquarters or contingents at its disposal, rendering it reliant upon voluntary Member State contributions made available per specific mission.Footnote 59 Through a transfer of authority or alternatively, a reversal of authority, the Operation Commander of a CSDP-mission is provided operational command and control of the mission by the Member States and the EU, which is defined as being the “authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time or location.”Footnote 60 This includes the responsibility for drafting and implementing of the OPLAN, which details the particularities of the Operation and may include provisions on legal responsibility, the drafting and enacting of the rules of engagement, and strategic direction.Footnote 61 Further operational control is exercised by the Force Commander,Footnote 62 who acts under the authority of the Operation Commander and is appointed by the Council or the PSC.Footnote 63 The military chain of command is legally significant, as it may influence whether the EU can or cannot be held responsible for conduct under the chapeau of Operation Sophia.
Operation Sophia has resulted in the deflection of unsafe vesselsFootnote 64 and fits within the “contactless control” paradigm as explained by MORENO-LAX and others.Footnote 65 By communicating location coordinates of distressed vessels carrying TCNs to the LYCG,Footnote 66 the EU eliminates any corporeal effective control over the individuals concerned, thereby limiting —if not severing—the jurisdictional nexus that would otherwise trigger the applicability of the ECHR and arguably the CFR.Footnote 67 Simply put, by using aerial surveillance, the EU’s Operation Sophia and Irini obliterate any direct contact between TCNs trying to reach European shores and EU authorities. This contactless approach facilitates the deflection of migratory flows and distressed vessels by the LYCG to Libya, which is notorious for its poor human rights record and is considered an unsafe third country for the purpose of establishing whether the non-refoulement principle has been respected.Footnote 68
C. EU Responsibility Deconstructed
To establish human rights responsibility of the EU, the EU courts must exercise jurisdiction of the contested conduct. Next, three substantive cumulative conditions would have to be met for human rights responsibility to arise. First, there must be damage caused by and attributable to the EU. Second, there must be unlawful (human rights) conduct, and third the rule of law at stake must have been intended to confer rights on the individual invoking its protection.
I. Two-Pronged Jurisdictional Mayhem
1. CFSP/CSDP Jurisdiction
A simple reading of Article 24 TEU, Article 40 TEU and Article 275 TFEU leaves the CJEU with limited jurisdiction in the realm of CFSP/CSDP measures, except where the Court is first called upon to monitor compliance with Article 40 TEU and second, concerning the legality of measures which provide for restrictive measures (sanctions) in accordance with Article 275(2) TFEU.Footnote 69 Drawing from the CJEU’s general jurisdiction as established in Article 19 TEU, read in combination with the right to an effective remedy in Article 47 CFR, the CJEU has interpreted the CFSP-exclusion from its jurisdiction narrowly, and the “claw-back” exceptions to the exclusion from jurisdiction broadly.Footnote 70
CFSP/CSDP-measures have given rise to two strands of case law before the CJEU. On the one hand there are the cases dealing with whether CFSP/CSDP measures of a cross-policy nature are based on the appropriate legal basis. In strand of case law, the use of an exclusive CFSP/CSDP legal basis was—at times, successfully—contested because the EU measure at stake also touched upon other treaty-based competences that fell outside of the CFSP/CSDP remit, prompting the claim that the CJEU should have jurisdiction. For example, in H v Council, the CJEU determined that the day-to-day staff management of seconded officers to the European Union Police Mission in Bosnia and Herzegovina—both by Member States and the Union—could not escape judicial scrutiny of the Court. The Court reasoned that this is because staff management of seconded staff to the CSDP mission, which was at heart of the dispute, falls within its jurisdiction.Footnote 71 This is relevant for Operation Sophia, as it too is a CSDP-mission of a cross-policy nature. The Operation—though it is a military naval mission based on a CSDP legal basis—additionally pursues migration and border management as foreseen by Article 78 TFEU.Footnote 72 The CJEU in Mauritius concerning Operation Atalanta, did not accept that Operation Atalanta was jointly based on a CFSP/CSDP legal basis and Treaty-based judicial cooperation in criminal matters according to Article 82 TFEU onward. Here however, the explicit references to border and migration management in the instruments governing Operation Sophia could lead to the opposite conclusion, that its dual objective of CFSP/CSDP and border/migration management policy “are inseparably linked without one being incidental to the other, so that various provisions of the Treaty are applicable.”Footnote 73 Consequently Operation Sophia could fall under the jurisdiction of the CJEU. However, this does not yet address whether the CJEU would have jurisdiction in an action for damages.
On the other hand, the second strand of case law focuses on the legality of restrictive measures. Article 275(2) TFEU holds that the CJEU retains jurisdiction on reviewing the legality of such measures “in accordance with the conditions laid down in the fourth paragraph of Article 263 [TFEU].” Not inconceivably, the formulation of Article 275(2) TFEU raises the idea that the legality review mentioned therein, refers exclusively to the annulment procedure under the EU regime of adjudication. However, the Court has incrementally re-assessed the limits of its jurisdiction, including with respect to restrictive measures, which culminated in the infamous Rosneft judgment. There the Court held, drawing from Article 19 TEU in juncto Article 47 CFR, that Article 275(2) TFEU cannot be read in such a restrictive manner that the reference to Article 263 TFEU would rule out interpretative indirect jurisdiction of the CJEU via the means of a preliminary reference procedure, thereby establishing jurisdiction.Footnote 74
As noted by Van Elsuwege and Gremmelprez, the views on how the CFSP/CSDP limitations to the jurisdiction of the Court should be interpreted, are exemplified by the Opinions of A.G. Kokott, Wahl, Wathelet in Opinion 2/13, H v Council, and Rosneft respectively.Footnote 75 On the one hand, A.G. Kokott and Wahl interpret the jurisdiction of the Court in CFSP/CSDP in a narrow manner, by emphasizing the “conscious choice made by the drafters of the Treaties.”Footnote 76 A.G. Wathelet in Rosneft on the other hand, follows the more generalist trend also followed by the Court, whereby:
a restrictive approach of the Court’s jurisdiction relation to CFSP matters would be difficult to reconcile with the fact that the EU’s international action is subject to its foundational principles, including respect for the rule of law and fundamental rights such as the right of access to a court and effective legal protection.Footnote 77
This approach departs from a broad conceptualization of the Court’s jurisdiction as a result of Article 19 TEU in conjunction with Article 47 CFR and reads the exclusion from jurisdiction in CFSP/CSDP in a very narrow manner.
Applying the foregoing to Operation Sophia, unlike the Mauritius case, the argument could be made that the pursued objectives of border and migration management and the prevention of illegal migration were not incidental to the CSDP objective of preventing smuggling and trafficking on the Mediterranean route. Thus, this should have resulted in a dual legal basis, as a result of which the CJEU would have limited jurisdiction. Additionally, following Rosneft, the argument could additionally be made that the Article 275(2) TFEU, should not be read in such a restrictive manner as to exclude the action for damages. A.G. Hogan follows this line of reasoning in the recent case of Bank Refah Kargaran v. Council, which had also already been hinted at by the CJEU in H v. Council Footnote 78 , whereby actions for damages are possible for CFSP/CSDP measures when demanded in conjunction with a legality review. Crucially, this case concerns CFSP-mandated restrictive measures adopted in parallel based upon Article 215 TFEU.Footnote 79
Although the incremental changes in the case law of the Court are promising from the perspective of the individual applicant, these cases cannot definitively inform how the Court would approach operational action, as opposed to restrictive measures, within the context of Operation Sophia and possible damages concerning international human rights violations as a result thereof. Overcoming the obstacle of CFSP/CSDP jurisdiction in this particular case, is currently dependent upon a number of hypotheticals, none of which bode well in terms of legal certainty for the individual applicant. While this strand of case law is still very much under development, fundamental rights violations occurring at the hands of the EU within the CSDP framework, have not currently been subject to review by the CJEU.Footnote 80
2. Human Rights Jurisdiction
In addition to the jurisdictional hurdles inherent to CSDP-missions when seeking legal review, jurisdiction must also be established concerning the applicable human rights instruments. In other words, it must be established as a necessary precondition to any responsibility determination, whether the human rights provisions by which the EU is bound, were applicable to the situation at hand.
Jurisdiction in international law has traditionally been understood as primarily territorial. However, as demonstrated by a number of cases before the European Court of Human Rights (ECtHR) within the realm of non-refoulement in particular, the notion of jurisdiction to trigger the applicability of the European Convention on Human Rights (ECHR) has increasingly been understood in a broader, extra-territorial sense. A distinction is typically made between spatial jurisdiction, whereby a state exercises effective control over a particular territory, and personal jurisdiction, whereby a state exercises corporeal control over an individual.Footnote 81 Extra-territorial jurisdiction within the context of the ECHR, was elaborated on in the seminal Hirsi case where the Strasbourg Court held that:
Italy cannot circumvent its ‘jurisdiction’ under the Convention by describing the events at issue as rescue operations on the high seas. In particular the Court cannot subscribe to the Government’s argument that Italy was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned . . . .Footnote 82
The Strasbourg Court solidified its stance on extra-territorial jurisdiction in exceptional circumstances, where a degree of corporeal control,Footnote 83 to be assessed on a case-to-case basis over an individual, may be sufficient to trigger the enforceability of the ECHR.Footnote 84 In addition, in a recent strand of case law, the ECtHR has likewise accepted extra-territorial jurisdiction, when “special features” warrant it.Footnote 85
Unlike the ECHR, the CFR—applicable also to CFSP/CSDP measuresFootnote 86 —does not contain a jurisdictional clause territorially limiting its application.Footnote 87 Instead, the Union-specific jurisdictional limitations for the Charter are spread out across the Charter itself, and consist of rights-specific limitations, as well as overarching jurisdictional applicability provisions as set out in Articles 51–53 of the Charter.Footnote 88 Article 51(1) CFR clarifies the applicability of the Charter by holding that Charter provisions “are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.”Footnote 89 This does not pose any significant problems within the context of Operation Sophia, as the military chain of command falls under the overall control of the Council,Footnote 90 which is for all intents and purposes bound by the Charter. Additionally, Article 52(3) CFR is crucial in assessing the responsibility of the EU in CSDP-missions. This provision requires that for corresponding rights in the Charter and in the ECHR—such as the non-refoulement principle—that the ECHR and its corresponding case law, functions as a normative baseline. In other words, protection concerning non-refoulement flowing from the Charter, can never fall below the minimum standards for non-refoulement set by the ECHR and the ECtHR. More extensive protection may however be permitted, insofar this does not jeopardize the autonomy of the EU legal order.Footnote 91
By making use of “contactless control” measures under Operation Sophia,Footnote 92 the jurisdictional nexus as required under the ECHR was severed and arguably neither the EU nor the Member States acting within the context of Operation Sophia exercised any form of physical effective control over TCNs. Following the case law of the ECtHR, it would thus be difficult to establish jurisdiction vis-à-vis implicated Member States. However, this same jurisdictional obstacle does not arise when applying the Charter, as it does not impose any extra-territorial limitations on jurisdiction. The EU and its institutions are bound to respect its provisions, including non-refoulement, irrespective of territorial considerations, so long this heightened protection does not jeopardize the autonomy of EU law.
In summary, the largest jurisdictional hurdle in this case is that of the jurisdictional limitations of the CJEU vis-à-vis CFSP/CSDP measures. The applicability of the Charter does not appear to impose any significant burdens. Bearing these issues in mind, in the event that the CJEU would find that jurisdiction is established for applications for damages as a result of human rights infringements occurring within the context of a CSDP-mission, it would then have to be established whether the substantive conditions to establish human rights responsibility under the EU regime for damages is met, as dealt with below.
II. Substantive Conditions for Responsibility
The obligation to provide reparations for damage stemming from unlawful conduct by the EU is considered to be a principle of EU law and a manifestation of the principle of effective protection.Footnote 93 To invoke the responsibility of the EU before the EU courts, a number of procedures are theoretically available.Footnote 94 Mindful of the procedure specific conditions and difficulties that arise for TCNs wishing to invoke EU responsibility for human rights violations, the most appropriate avenue to obtain redress is the procedure concerning an action for damages caused by the EU embedded in Article 268 in conjunction with Article 340 TFEU.Footnote 95 In addition to the stringent procedure-specific conditions inherent to the alternative direct actions and indirect action before the Court, the obligation to provide reparations cannot be considered met by declaratory orders annulling or interpreting particular provisions or acts of EU law, as this would not place the individual in a position where the wrongs done would be in part rectified.Footnote 96 Consequently, the focus in what follows will be on the EU action for damages.
The Treaties foresee EU responsibility in Article 340(2) and 340(3) TFEU. However, these provisions do not clarify the constituent conditions for such responsibility to arise. This was intended to be developed by the CJEU “in accordance with the general principles common to the laws of the Member States . . . .”Footnote 97 The seminal cases to date on this matter are the Schöppenstedt Footnote 98 and the Bergaderm Footnote 99 judgments, with the latter being largely applicable today.Footnote 100
The conditions for Member State responsibility further inform the conditions to establish non-contractual responsibility vis-à-vis the EU.Footnote 101 This parallelism was confirmed explicitly by the CJEU in Bergaderm where it held in particular that “the conditions under which the State may incur liability for damage caused to individuals by a breach of Community law cannot, in the absence of particular justification, differ from those governing the liability of the Community in like circumstances . . . .”Footnote 102 The advantage of this approach as noted by FINK, is that where legal gaps arise concerning responsibility of the EU or, vice-versa the Member States, recourse can be had to the parallel system of responsibility. Said parallelism may conjure up the idea that the EU system of non-contractual responsibility for Member States and the EU, operating under almost identical conditions, may thus constitute one single unitary system of responsibility, implemented by EU courts and Member State Courts alike.Footnote 103 However, upon closer inspection this is not the case due to inter alia the functional specialty of the EU. Footnote 104
1. Independent Responsibility
Bergaderm clarified the required three cumulative conditions that must be met for EU responsibility to arise, holding that:
[The] Court has held that Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.Footnote 105
In other words, there must first be damage caused by (and attributable to) the EU, second an unlawful act—or omission—and third, the rule of law concerned must have been intended to confer rights on the individual invoking its protection.Footnote 106
1.1 Causal act attributable to the EU
The first condition requires that acts resulting in damage must be caused by the EU, encompassing the notion commonly referred to as attribution.Footnote 107 When the EU acts alone, this does not pose any issues. Attribution to the EU will occur for acts that were instigated or committed by the bodies, offices, and agencies of the EU, subject to the condition that they do not enjoy separate legal personality from the EU. The particular case of CSDP military missions, such as Operation Sophia, complicate the matter due to the multiplicity of involved actors (the EU, Member States, agencies, external parties) and the intergovernmental nature of such operations.
Under the EU-acquis, attribution is determined by the decision-making powers in a given area.Footnote 108 Those decision-making powers are determined by the division of competences. The CJEU has clarified that when Member States lack competence in a given area, acts taken within that context may be attributable to the EU.Footnote 109 However, insofar Member States retain “genuine discretion” in the adoption of acts that stem from an underlying EU act—without being bound by specific instructions by the EU—the contested act will be attributable to the implicated Member State, and not the EU.Footnote 110 Thus, this approach combines the factual model of attribution and the institutional model of attribution.Footnote 111
As previously mentioned, the precise contours of CFSP/CSDP measures have yet to be definitively determined. Depending on whether the competences are deemed non-pre-emptive shared competences or not, the margin of discretion on behalf of the Member States will differ.Footnote 112 In addition, the principle of loyal cooperation enshrined in Article 4(3) TEU and Article 24(3) TEU may also have the effect of affecting the discretion Member States have in the enactment of CSDP-missions generally.Footnote 113 Given this ambiguity, it becomes difficult to determine a priori to what entity unlawful conduct occurring in a CSDP-mission should be attributed. The CJEU has shed some light on the matter in H v. Council. Here the Court held that operational command and control in the European Union Police Mission in Bosnia and Herzegovina, was in hands of the Head of Mission, as instructed by the Civilian Operation Commander. The Civilian Operation Commander in turn, was under the control of the PSC, which falls under the control of the Council. Consequently, the CJEU held that the operational, effective control was retained by the Council and any alleged acts pursuant to this control were to be attributed to the Council.Footnote 114 However, the mission at stake in H v. Council concerned a civilian mission, as opposed to military nature of Operations Sophia and Irini under scrutiny. In addition, the particularities of each CSDP-mission are determined in reference to their specific needs and objectives as established in the Council decisions to which they are bound. While H v. Council may thus be indicative of the fact that operational measures falling under military operational command and control would be attributed to the Council, this is by no means certain or determinative for Operation Sophia. In fact, in a domestic German case concerning CSDP military Operation Atalanta, the contested act of transferring suspects of piracy, was attributed to the German authorities, leaving open the question of attribution to the Union.Footnote 115
For Operation Sophia the actual division of competences, and responsibility, via the military chain of command and control, was elaborated upon in the OPLAN, which given the military nature of the Operation remains confidential. Additionally, this chain of command was subject to change, via transfers of authority throughout the Operation.Footnote 116 Without insight into this chain of command and control at any particular moment, and the extent to which Member States retained discretion to act without being under orders by the Council, it becomes extremely difficult, unless compelled to do so by national authorities ex ante, to determine whether acts or omissions should have been attributed to the Member States or the EU or both. As attribution is one of the cumulative conditions for the determination of responsibility of the EU, and in view of the legal fog surrounding the articulation of the de jure competence division in this field, this ambiguity constitutes yet another obstacle in establishing responsibility for human rights concerns within the context of Operation Sophia, to the detriment of individual rights-holders.Footnote 117
1.2 Unlawful act (or omission)
Second, for non-contractual responsibility of the EU to arise, unlawful conduct must have been committed in violation of a norm of Union law, irrespective of whether the norm is founded in primary law, secondary law, or general principles of Union law.Footnote 118 The CJEU has clarified that for an unlawful act to be brought under an EU action for damages, the violation must qualify as “sufficiently serious.”Footnote 119 This qualification was initially determined by reference to the amount of discretion retained by the Union and whether, being mindful of this discretion, the EU had “manifestly and gravely” overstepped the limitations the law concerned.Footnote 120 Accordingly when the EU enjoys little to no discretion, the mere violation of a rule of law will suffice in the qualification of an unlawful act.Footnote 121 Discretion of the Union is not assessed in a legal vacuum or in reference to a general domain of Union law, but is determined with reference to a specific situation, underscoring that whether an unlawful act has occurred, will be determined entirely depending on a case-to-case assessment by the Union courts ex post facto.Footnote 122
Discretion of the Union has consistently permeated as a crucial and oftentimes overwhelming criterion in determining whether an unlawful act has occurred.Footnote 123 However, it is not the sole criterion, nor does it upstage other factors any longer.Footnote 124 This is demonstrated by the fact that the CJEU has increasingly turned to factors such as the complexity of a case,Footnote 125 the clarity of the concrete, binding legal obligations upon the UnionFootnote 126 , and the intentional character of the act or omissionFootnote 127 to determine whether an act or omission was indeed unlawful or whether it could be considered excusable.Footnote 128 In the current analysis, the criterion of a clear and legally unambiguous provision of law particularly, may pose a problem in determining responsibility for the following reason.
Irrespective of the nature of the competence accorded to the Union within the realm of CSDP, Member States have effectively transferred powers to the Union to enact measures and policies in this field. By establishing Operation Sophia, the EU has acted and made use of these acquired competences, thereby triggering the applicability of Article 51 CFR and the Charter more generally. This provision holds that the rights and principles in the Charter “are addressed to the institutions and bodies of the Union . . . .” as a result of which the EU in enacting Operations Sophia and Irini, is directly bound by the non-refoulement principle in Article 19 CFR.Footnote 129
Crucially however, the legal obligation of the EU to adhere to the non-refoulement principle, does not inform as to the concrete obligations, procedural and substantive, as well as negative and positive, that must be met by the EU to comply with this abstract legal obligation.Footnote 130 Human rights are not enforced and applied as abstract normative standards. To comply with human rights, such as the non-refoulement principle, a series of concrete positive and negative obligations must be met, both of a procedural and substantive nature. However, such enforceable concrete obligations have been consistently interpreted, enacted, and applied vis-à-vis States, the traditional duty-bearers of such obligations, and not yet vis-à-vis the EU. In the Reparations Advisory Opinion by the ICJ, it was held that “the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights” and “the legal personality and rights and duties (of an international organization are not) the same as those of a state.”Footnote 131 This raises the question of whether it is even possible to simply transplant the concrete obligations stemming from the applicable (state-centric) human rights standards to the EU. Contrary to the view adopted by NAERT who argues that substantive legal interoperability issues will not arise in CSDP operations between Member States and the EU, it is argued that in fact Member States and the EU should be and are subject to different concrete substantive obligations under the human rights framework.Footnote 132 This line of reasoning is put forward by Pellet, who argues more generally that the principle of specialty (limiting the functional competences of organizations), as well as the limited resources available to international organizations prevent automated transplants of concrete state-oriented obligations to international organizations.Footnote 133
Applying this to Operation Sophia and the non-refoulement principle, it is hard to conceive how the EU could abide for example, by the procedural positive obligation of a “duty to investigate, proprio motu, any situation of need for international protection . . . .”Footnote 134 This is precisely because the prerogative of border control remains integral to the sovereignty of States.Footnote 135 Similarly, it is uncertain how the Union can abide by the negative obligation to refrain from sending individuals back to Libya without having any actual border guards at its disposal. While the Union is bound on the surface, to respect the Charter, de facto it is unclear what concrete standards would have to be met. Similarly, concerning aerial surveillance conducted by Operation Sophia, it is uncertain whether the EU has overstepped any enforceable legal obligations, despite the actions resulting in the essence of the non-refoulement obligation being violated.
The ClientEarth case arguably provides some guidance in this respect.Footnote 136 The case concerned the Aarhus ConventionFootnote 137 which was invoked by the Applicant ClientEarth, in order to challenge Regulation 1049/2001 concerning public access to documents. Article 4(2) of Regulation 1049/2001 had been invoked by the European Commission in an attempt to prevent full access to studies concerning Member State compliance with environmental safeguards, which ClientEarth reasoned was at odds with Article 4(4) of the Aarhus Convention.Footnote 138 Although Member States and the Union alike are party to the Aarhus Convention, the CJEU held that “that convention was manifestly designed with the national legal orders in mind, and not the specific legal features of institutions of regional economic integration, such as the European Union, even where those institutions can sign and accede to the Aarhus Convention, under Articles 17 and 19 thereof.”Footnote 139 Following this reasoning, the CJEU held that nothing in the invoked provisions by the Applicants could be construed as “imposing a precise obligation on the EU legislature,” which would result in the invalidation of Regulation 1049/2001.Footnote 140 In other words, within the realm of environmental law—a shared competence between the Union and its Member States—it is posited that being legally bound by the same agreement does not have as a necessary consequence that the concrete obligations under such multilateral agreements are analogously applicable to the Member States and the Union. This could suggest a reluctance of the Court to simply transpose the substantive obligations of the fundamental rights directed at Member States—under the CFR and the ECHR—to the EUFootnote 141
1.3 Rule of law intended to confer rights
Additionally, the EU responsibility regime holds that non-contractual responsibility will only arise insofar a rule of law was intended to confer rights on an individual. This condition has been subject to some debate and has appeared in the case law of the Court in various terminological variations, which in turn, inevitably results in ambiguity as to its scope and meaning.Footnote 142 However, the CJEU has already clarified that the foregoing condition does not require the rule of law to have direct effect.Footnote 143 Grosso modo it can be held however, that direct effect is at the very least an indication that the provision concerned is intended to confer rights on an individual.Footnote 144 While provisions in the Charter may not always enjoy direct effect, they are intended to confer rights on individuals, as a result of which this particular condition will not pose any significant difficulties for individual TCNs claiming damages from the EU.
2. Joint responsibility
Finally, as is the case under international law, the CJEU has recognized the possibility of both independent EU responsibility, as well as joint responsibility between the EU and the Member States.Footnote 145 Nollkaemper compellingly argues that joint responsibility serves the purpose of facilitating and ensuring legal redress for individual applicants who would otherwise be unduly burdened in attempting to identify what actor is responsible for what acts, and would incentivize the EU to determine ex ante what actors bear which burden.Footnote 146
Without delving into the various different conceptualizations of joint responsibility under both domestic and international law,Footnote 147which is beyond the remit of the present Article, suffice it to say that much ambiguity persists as to the precise meaning of such forms of responsibility.Footnote 148 The CJEU has, on sparse occasions, acknowledged, particularly in the field of mixed agreements generally and environmental law specifically, that such joint responsibility may be possible insofar no initiatives were taken to the contrary.Footnote 149 Given the seemingly broad reference to joint responsibility, it could be argued that joint responsibility here would refer both to the notions of concurrent or cumulative responsibility, whereby the EU acts in a matter that facilitates an internationally wrongful act committed by (a) Member State(s), as well as cooperative responsibility whereby the Member State(s) and the EU alike commit one undivided unlawful act leading to injury and the need for reparation.Footnote 150 Irrespective of the type of joint responsibility however, a number of precursory remarks are in order.
First, joint responsibility refers to situations where multiple actors are involved in the commission of one—or potentially composite—unlawful act(s). Particularly in the field of cooperation between Member States and international organizations such as the EU, it is very conceivable unlawful human rights conduct,Footnote 151 may be attributed to both the EU and Member States on account of joint involvement therein. However, EU legislation does not, unlike international law, make a clear conceptual distinction between scenarios where the Union could be held individually responsible, or alternatively, where both Member States and the EU alike could be held responsible.Footnote 152 Rather, the determination of the extent to which and what actor will ultimately be held responsible, as well as what actor will have to make good on the damages claimed, is ultimately determined by attribution. In turn, as established by the CJEU, attribution of conduct under EU law will be determined by the competences enjoyed by the respective actors and by the margin of discretion that is retained by the various actors in the exercise of those competences, entailing an assessment ex post facto.Footnote 153
Second and in any event, it would be necessary to determine by what human rights obligations the Union is effectively bound. Footnote 154 The mere fact that both the Member States and the EU are bound by the same legal instrument, does not automatically entail that the concrete obligations imposed upon the various actors will be identical.Footnote 155 Irrespective of the form or nature of the joint responsibility, the constituent elements of action for damages under the EU regime would still have to be met. In other words, even under joint responsibility, it would still need to be determined whether there was an unlawful act at the behest of the Union resulting in damage that is attributable to the EU. Consequently, the same issues, as discussed previously, that arise under independent responsibility, would also arise under joint responsibility.
C. Analysis and Alternative Forms of Legal Recourse
The principle at the basis of Article 340 TFEU, is that the actor causing the injury or damage must be held responsible and pay reparations.Footnote 156 Despite the deceptive simplicity of this principle, a number of—sometimes—significant obstacles, hamper access to an effective remedy for TCNs who were subjected to push and pull practices as a result of Operation Sophia. First, significant jurisdictional issues arise with respect to CFSP jurisdiction before the EU courts, and this despite the more expansive approach adopted by the Court in recent years. Additionally, practice shows that the determination of what actor caused the damage oftentimes results in murky waters, because this is determined by reference to the decision-making powers of the EU and the Member States, as well as the retained discretion in specific cases.Footnote 157 This again requires a subjective ex post facto case-to-case assessments. The standard used to assess this discretion is that of “genuine discretion,” comparable to the standard used in international law. However, when applying this to Operation Sophia particularly in the field of non-pre-emptive shared competences and operational measures enacted by both Member States and the EU, it becomes near impossible to determine what actor was responsible for what acts and omissions “in theatre.” Finally, the functional specialty inherent to international organizations generally, and the EU specifically make it difficult to entertain the idea that the EU and the Member States would both be bound by the same concrete human rights obligations, frustrating any attempt to hold the EU responsible for contributing to violations of the non-refoulement principle. Nevertheless, it is clear that by making use of aerial surveillance and training the LYCG, the EU’s Operation Sophia contributes to situations where TCNs are prevented from leaving Libya and from asking for international protection. This is aggravated by the absence of effective legal pathways to facilitate access to international protection procedures from abroad.Footnote 158 The combined effect of these measures, ensure that the essence of the non-refoulement principle is disregarded altogether, without any effective access to legal review of these measures.
Recourse to the EU on responsibility does not provide any effective access to legal redress to TCNs on account of both procedural and substantive obstacles and cannot be considered a self-contained regimeFootnote 159 to be relied upon by individuals within the context of Operation Sophia. Alternatively, recourse to general international law on the responsibility of international organizations—as incorporated in the Articles on the Responsibility of States—could be considered as an alternative path for redress. However, here too responsibility is conditioned on attribution and the determination of an internationally wrongful act.Footnote 160 Despite the terminological variations, the same pathologies that apply to attribution under the EU-regime and the determination of what concrete human rights obligations the EU is bound by, (re-)surface here as well. Furthermore, from a procedural perspective, there is currently no international court or tribunal with jurisdiction to assess the EU’s conduct in its CFSP/CSDP-missions and any attempt to bring the EU before international adjudication would first require overcoming the hurdle of extra-territorial application of fundamental rights.
Heliskoski notes that it is not excluded for domestic Member State Courts to exercise jurisdiction concerning damage claims against the EU for conduct during CFSP/CSDP missions. Based on the Article 274 TFEU holding that “Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States,” AG Kokott advances in Opinion 2/13 that the principled monopoly on jurisdiction enjoyed by the CJEU following Article 275 TFEU, does not apply to CFSP/CSDP measures.Footnote 161 This same line of reasoning was followed by AG Wahl in H v. Council.Footnote 162 This however, negates the exclusive jurisdiction the CJEU enjoys in terms of actions for damages against the EU in accordance with Article 268, 340 and 344 TFEU. From a more practical perspective, it would be anyone’s best guess how domestic Member State courts could make such determinations concerning attribution and the determination of an unlawful act, much less the means by which potential findings of responsibility would be enforced.Footnote 163 Finally, in the hypothesis that the Member States would enjoy certain limited jurisdiction in the matter, the risk of forum shopping and the risk of inequality between individual applicants would have to be avoided, in order not to upset the duty of loyal cooperation, the principle of legal certainty, and the effectiveness of EU law. As it stands domestic courts also do not appear to be a plausible path for legal recourse against conduct by the EU in CSDP-missions such as Operation Sophia.
D. Conclusion
When assessing whether the EU can be held responsible for alleged complicity in human rights violations in CSDP Operation Sophia, a number of interim conclusions can be drawn. Despite the available theoretical normative framework for the determination of responsibility, and notwithstanding the incremental developments in the case law of the Court concerning CFSP/CSDP, in practice structural obstacles arise and hamper an effective remedy against acts of the EU for Operation Sophia.
In addition to the jurisdictional pitfalls inherent to CFSP/CSDP measures, as well as the complicated competence-division bearing relevance on the attribution question, the determination of an unlawful act or omission further complicates the EU responsibility. Given the functional and heterogenous legal personality of the EU which distinguish it from its member states and other subjects of international law, it is currently not possible to definitively distill pre-defined, concrete positive, negative, substantive, and procedural obligations the EU is bound by. Recalling that traditionally, human rights have regulated the dynamic between States and the individual, this has as a consequence that it is hard to determine when, if at all, an international organization such as the EU has effectively violated a fundamental right through act or omission.
The reliance on international law or domestic jurisdictions does not convincingly or sufficiently provide TCNs with an effective remedy against acts of the EU in CSDP-missions, entailing that currently, a significant responsibility and reparations gap tarnishes the adjudication regime of the EU. Member States remain responsible for their own conduct in such missions and could ultimately be the addressee of TCN claims for damages within domestic jurisdictions.Footnote 164 Similarly, the Athena mechanism with its own legal personality could be addressed by individual applicants in legal proceedings in attempts to obtain relief.Footnote 165 Finally, alternative, amicable, dispute mechanisms and claims commissions are triggered and used to settle any claims stemming from CFSP/CSPD-measures.Footnote 166 And while these alternative paths may meet the immediate reparations needed by individual applicants, the ad hoc nature of these mechanisms as well as the lack of transparency thereof, do not appear reconcilable with the right to an effective remedy and a EU based on the rule of law that was so boldly proclaimed in Rosneft and repeated numerously since. Nor do these Member State-oriented procedures answer the question whether it is even possible for the Union to discharge its duties under Article 340 TFEU in the realm of CFSP/CSDP.
Mindful of the ongoing negotiations on the accession of the EU to the ECHR, the increasingly prevalent rule of law arguments within the Court’s case law and the legal lacuna that persists in CFSP/CSDP missions which prevents individual applicants from enjoying the right to an effective remedy, a cognitive shift is needed. The focus of any accession agreement should be on the raison d’être of fundamental rights, and the effective enforcement of these rights in an evolving governance landscape. Ad hoc and post-facto determinations of attribution and the wrongfulness of conduct in the absence of clearly defined rules, should be limited where possible in favor of legal certainty. In doing so, substantively tailored accession of the EU to the ECHR, where sufficient pre-emptive consideration is given to individual human rights provisions and how the obligations stemming therefrom should be discharged by the EU, could prove to be instrumental in ameliorating effective remedies within and outside of the scope of CFSP/CSDP. More generally, an exploration into “relational human rights responsibility”—inspired by Nollkaemper’s study of shared responsibility—is crucial. Relational human rights responsibility could entail a new regime for the allocation of legal responsibility, which more adequately captures the dynamic at play when states, and international organizations (as well as private corporations) cooperate in overcoming transnational concerns, and such cooperation detrimentally impacts individual human rights. Absent any evolution in the matter, legal relief for individual applicants against unlawful conduct by the EU—particularly in CFSP/CSDP—is at risk of being no more than smoke and mirrors.
Acknowledgements
My sincere thanks for the insightful comments by and thought-provoking exchanges with Inge Govaere, Peter Van Elsuwege, Violeta-Moreno-Lax, and Merijn Chamon, as well as the colleagues at the European University Institute during my research stay and the Ghent European Law Institute. All errors remain my own.
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