The Council must swiftly implement a legal framework akin to the CEOS for staff employed in CSDP missions: Reflections on the Jenkinson litigation (Case C-46/22 P)

 

Antje Kunst*

Photo credit: Jan-Tore Egge, via Wikimedia Commons

Introduction

The Court of Justice of the European Union in its judgment in Jenkinson v Council and others ( Case C-46/22 P) of 18 January 2024 dismissed the appeal brought by Mr. Jenkinson, an Irish national, which has implications for thousands of staff serving in international missions of the EU (EU missions) under the EU’s Common Foreign and Security Policy (CFSP) in third states.

Mr. Jenkinson’s defeat before the Court of Justice is not a victory for the defendants: the Council, the Commission, the European External Action Service, and Eulex Kosovo. It is clearly not in their interest that the General Court’s findings in the judgement under appeal, Case T‑602/15 RENV have been upheld. Also, it is a shame that the Court of Justice did not express any views on one of the main claims in this litigation regarding the Council’s failure to introduce a legal regime comparable to the Conditions of Employment of Other Servants of the European Union ("CEOS").

Instead, the Court of Justice held the related arguments were inadmissible or unsubstantiated, without offering any views by passing on the merits of those arguments. This is a missed opportunity, also taking into account that the General Court in Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20), has already made certain findings in this regard.

Applicability of Private International Law (Rome I Regulation)

Jenkinson’s claim was that the EU did not envisage that private international law, i.e., an EU Regulation on the law applicable to contractual obligations (the Rome I Regulation) would be applicable to public law contracts such as those at issue in the case. (para. 79 of the Judgment) The Court of Justice disagreed: ‘since the General Court was seised pursuant to an arbitration clause under Article 272 TFEU’, it was necessary in the absence of any choice of the parties of the applicable national substantive law for the Court to identify it (para. 88 of the Judgment).

The Court of Justice held that the General Court was correct in taking recourse to the Rome I Regulation, to do so. It did not interfere with the General Court’s determination that Irish law was the applicable national substantive law governing Mr. Jenkinson’s claim for a requalification of the series of fixed-term contracts, and that based on Irish law, Mr. Jenkinson’s claim was dismissed (see paras. 123 -163 pp. of the Judgment)

Application of various national laws to staff working for the same employer

Only towards the end of the Judgment the Court of Justice acknowledged that the application of various national laws might, in practice, result for members of Eulex Kosovo’s contract staff being treated differently as regards the rights conferred on them and the obligations imposed on them in a given situation. (para. 262 of the Judgment)

However, it followed from the contractual nature of the relationships that, in the absence of a common European regime applicable to the members of Eulex Kosovo’s staff, the substantive rules intended to supplement the contractual terms are derived from a national law which will have been identified under the rules of private international law. (para. 267 of the Judgment)

It concluded that Mr Jenkinson had failed to show that, in the circumstances of the present case, the application of different substantive rules of national law to the members of Eulex Kosovo’s international staff constituted a breach of the principle of non-discrimination. (para. 271 of the Judgment)

It is surprising that the Court of Justice, unlike the General Court, expressed concerns about that similar disputes of contract staff working in EU missions will be decided differently depending on what the identified national law prescribes but then did not draw any consequences from this.

In this respect Stephan Marquardt, Eszter Orgovan (Counsels for the EEAS in Case C-46/22) and Emmanuelle Raoult (Counsel for Eulex Kosovo in Case C-46/22) stated, albeit in their personal capacity, in a recent academic contribution on the Jenkinson case:

“Having recourse to the applicable national law … carries the risk of diverging outcomes of similar disputes, notably regarding possible claims for damages, where the conditions for such claims may differ from one legislation to the other.”

(See Stephan Marquardt, Eszter Orgovan and Emmanuelle Raoult, in The European Union's Contribution to International Peace and Security, Chapter 6: ‘The Legal and Institutional Nature of EU Civilian Crisis Management Missions in the Light of the Case Law of the Court of Justice of the European Union’).

This is a legitimate concern that the defendants have, and here, was to the detriment of Mr. Jenkinson. Had the national law of another state (e.g., another Member State, or third state) applied, the requalification claim of a series of fixed-term contracts to a permanent contract might have succeeded, and the outcome in a similar action would be different. Not only that, a claim for damages might have succeeded too.

Other similar cases pending

Different outcomes could happen in future case, including pending cases, which are currently stayed and concern similar actions involving members of the international staff of Eulex Kosovo: BL and BM v Council and Others (T‑204/19); QP and Others v Council and Others (T‑183/21); and RI and Others v Council and Others (T‑190/21). In relation to a different mission there is the case of Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20). Different outcomes could also occur in future similar litigation, given that it is likely not Irish law will apply in those cases. This could also lead to irreconcilable judgments.

Claim of failure to adopt a legal regime comparable to the CEOS

In his initial application stretching back to 2017, Mr. Jenkinson sought compensation on the basis that the Council, Commission, and the EEAS failed to comply with their obligations, including to recruit him under a legal regime comparable to the CEOS. 

In his appeal in Case C-46/22 Jenkinson argued that the General Court infringed Article 336 TFEU by holding that the Council had lawfully delegated to the Head of Eulex Kosovo the power to adopt the conditions of employment of international civilian staff. (Article 336 TFEU provides ‘The European Parliament and the Council shall, acting by means of regulations in accordance with the ordinary legislative procedure and after consulting the other institutions concerned, lay down the Staff Regulations of Officials of the European Union and the Conditions of Employment of other servants of the Union.’)

The infringement of Article 336 TFEU also resulted from the fact, that the conditions of employment of international civilian staff were laid down in the contracts between the Head of Eulex Kosovo and the members of that mission's staff, whereas they ought to and should have, instead, been decided by the Council. According to Mr. Jenkinson, it was for the Council to adopt conditions of employment for international civilian staff similar to those contained in the CEOS (para. 65 of the Judgment)

The Court of Justice noted that Mr. Jenkinson, before the General Court, had made submissions regarding the non-existence of a framework similar to the CEOS for hiring staff for those missions. The Court of Justice then took issue with the fact that Mr. Jenkinson had not sought a declaration from the General Court that there had been an infringement of Article 336 TFEU through the failure to adopt, on the basis of that article, a legal regime applicable to employment situations such as that of Mr Jenkinson (para. 71 of the Judgement). Arguably, he should have.

In this context, the Court of Justice rejected Mr. Jenkinson’s complaint in the appeal, that the application of the substantive national law applicable to his contractual relationship constituted an infringement of Article 336 TFEU by reason of the absence of a legal framework adopted on the basis of that article. According to the Court of Justice, because the complaint was not raised before the General Court, it was consequently found both inadmissible and unfounded (paras. 72, 73 and 90 of the Judgment).

This is significant, as any contract staff working in an EU mission in a similar future action could make submissions the Court of Justice considered were missing and seek such declarations.

Plea of Illegality regarding Joint Action 2008/124 establishing the Eulex Kosovo

The Court of Justice also rejected Mr. Jenkinson’s arguments regarding a plea of Illegality pursuant to Article 277 TFEU, specifically that Article 9 (3) and Article 10(3) of Joint Action 2008/124 infringes Article 336 TFEU (paras. 38, 46 and 47 of the Judgment). Those provisions state that Eulex Kosovo may also recruit international civilian staff, as required, on a contractual basis and that the conditions of employment and the rights and obligations of such staff are to be laid down in the contracts between Eulex Kosovo and the members of staff.

The Court of Justice referred to the General Court’s finding, that, even supposing that the appellant had in fact raised a plea of illegality against Joint Action 2008/124, on the basis of Article 277 TFEU, it had to be held that that plea was not substantiated. The Court of Justice did not interfere with the General Court’s finding.

The plea of illegality regarding Joint Action 2008/124 could be further substantiated in future litigation before the General Court in a similar action with the consequence that the Court of Justice would have to examine the alleged unlawfulness and whether there is an infringement of Article 336 TFEU.

National law vs EU staff law resolving the dispute

Mr. Jenkinson further argued that the application of national law by the General Court would be contrary to the principle of non-discrimination in that it entails three instances of unequal treatment:

-          first, Mr. Jenkinson being treated differently to the servants of the European Union whose conditions of employment are to be determined exclusively by the Council and the Parliament pursuant to Article 336 TFEU.

-          second, the servants of the European Union, such as Mr Jenkinson, and national workers governed by private law being treated the same,

-          third, international staff of different nationalities working for the same employer under the same conditions and circumstances being treated in a discriminatory manner.

 (see para.  95 of the Judgment).  

Again, this complaint was rejected by the Court of Justice as a new complaint and rejected as inadmissible as it was not raised before the General Court, and the Court of Justice did not make any findings on the substance in this regard (para. 106 of the Judgment).

Also, this very compelling discrimination argument, in particular regarding international staff working for the same employer (i.e., international staff to whom the EU Staff regulations apply and international staff to whom national law applies), could be raised by applicants in future litigation before the General Court.

Conclusion

The fact that the Court of Justice has not interfered with the General Court applying national substantive law to the dispute is highly problematic for the Council and the EEAS for the reasons set out in the above-mentioned academic publication. In the future therefore, it is wholly unpredictable how the national substantive law would govern other similar disputes for staff in EU missions. This bears considerable financial risks for the defendants. It also bears risks of future litigation in which fundamental rights concerns will be raised, in particular a breach of the principle of equal treatment and the prohibition of discrimination.

The Court of Justice refrained from ruling that the Council’s failure to adopt a legal regime for staff in the EU missions comparable to the CEOS is unlawful which would have obliged the Council to act. Notwithstanding, the ruling shows that it is no longer acceptable to keep the status quo. The financial risks associated with future similar litigation, and the related uncertainties of the outcomes under the case law of Jenkinson, should be compelling reasons for the Council, the decision-maker within the CFSP, to act.  Also, what the Council back in 2008 establishing Eulex Kosovo might not have been able to reach a consensus on might be acceptable,16 years later.

This would be in accordance with the view expressed in an academic article, the President of the General Court, Marc van der Woude recently:

In light of the cases that have appeared before the CJEU in this area, that, “the precise scope of the protection to which employees are entitled in a community of law, still needs to be defined. Preferably, it should be aligned on the level of protection to which EU staff regularly employed by the EU institutions can already aspire.”

(See, M. van der Woude, ‘The European Union’s Engagement With Questions of Strategic Autonomy and Security: Do EU Courts Have a Role to Play?’, (2023), European Foreign Affairs Review, Volume 28, Issue 4, pp. 311–322).

 

*Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP) and takes instructions from individuals challenging a wide range of decisions including EU employment cases to EU and UN sanctions before the EU courts and international bodies.