Tomanovic & Ors v The European Union

A treaty-created European Union institution or office has no legal personality in English law unless that status has been incorporated or otherwise conferred by domestic law. Where a claim against the European Union concerns non-contractual liability and damages, jurisdiction is conferred exclusively on the Court of Justice by Articles 268 and 340 TFEU. The Foto-Frost principle also supports reserving EU-law determinations to that court. Although the exclusion of Court of Justice jurisdiction in CFSP matters must be construed narrowly, a national court cannot assume jurisdiction where the CFSP provisions have not been incorporated into domestic law. The court may decline to make a preliminary reference where the relief sought lacks a clear legal basis, would add little to existing findings, could not be effectively enforced, and would involve disproportionate use of judicial resources.

Eight family members of persons tortured, killed or disappeared in Kosovo alleged that EULEX had failed properly to investigate those crimes. They sought declarations and damages against the European Union, the Council of the European Union and the High Representative. The claim against EULEX was discontinued before the hearing.

The defendants applied to set aside service and challenge the jurisdiction of the English court. The issues included the legal personality of the second and third defendants, the effect of the CFSP jurisdictional exclusions, the exclusive jurisdiction of the Court of Justice over non-contractual liability claims, and whether a reference under Article 267 TFEU should be made.

1. The application was granted. The court declared that it had no jurisdiction over the claims against the Council and the High Representative because neither had legal personality under English law. The claim forms served on them were set aside. Under the [1990] 2 AC 418 and [1991] 2 AC 114 principles, treaty-created bodies do not acquire domestic legal personality merely because the United Kingdom has entered into the treaty. No domestic legislation or Order in Council had conferred that status. Any liability for their acts would instead be ascribed to the European Union.

2. The European Communities Act 1972 incorporated the Treaties but excluded the CFSP provisions from the domestic definition of the Treaties. The claim arose intrinsically from the implementation of the EULEX Joint Action, a CFSP measure. The human-rights and CFSP aspects were inseparable. That exclusion was therefore an insurmountable obstacle to the English court asserting jurisdiction.

3. The Court of Justice's jurisdiction in CFSP matters must be construed narrowly, as shown by EU:C:2015:753, EU:C:2016:469, EU:T:2018:718 and EU:C:2017:236. The mere CFSP context does not necessarily exclude its jurisdiction. Nevertheless, the claim concerned alleged human-rights failures in carrying out a CFSP mission rather than an attempt to annul the sovereign policy choice establishing that mission.

4. Alternatively, the court concluded that the Court of Justice had exclusive jurisdiction over the claim for damages under Articles 268 and 340 TFEU. A national finding of EU non-contractual liability would conflict with the principle in EU:C:1987:452, which reserves the power to determine the validity and legal consequences of EU acts to the Court of Justice. The court preferred that approach despite the contrary view expressed by Advocate General Kokott.

5. A reference under Article 267(2) TFEU was not appropriate. The basis for the declaratory relief was unclear, the claimants already had relevant findings from the Human Rights Review Panel, damages could not effectively be enforced against the EU in light of Protocol No 7, and the proceedings would require substantial resources without an established forum conveniens basis. The possibility that the United Kingdom might cease to be an EU member state was also relevant.

First-instance jurisdictional decision. No prior appellate decision is stated in the judgment.