How the New Appeal Filtering Mechanism in the EU Courts Affects Judicial Review of CSDP Missions

 

Antje Kunst*

Photo credit: Lucalupe, via WikimediaCommons

 

Introduction

In 2024, a new procedural requirement was introduced whereby appeals against General Court judgments delivered in proceedings brought under Article 272 TFEU (jurisdiction to rule on arbitration clauses in contracts concluded by or on behalf of the EU), are subject to an appeal filtering mechanism established by Article 58a of the Statute of the CJEU.

Since 1 September 2024, parties seeking to appeal a General Court judgment in an action brought under Article 272 TFEU must demonstrate that their appeal raises ‘an issue that is significant with respect to the unity, consistency, or development of Union law’. By contrast, no such admissibility requirement applies to appeals against judgments of the General Court in actions brought under Article 263 TFEU (actions for annulment), which may be pursued by staff seconded to Common Security and Defence Policy (CSDP) missions or in actions brought under Article 270 TFEU (staff cases).

The implications of the appeal filtering mechanism are particularly significant for staff serving in CSDP missions as contracted staff. In the absence of a EU Staff Regulations framework comparable to that applicable to ordinary EU civil servants, such staff cannot bring employment-related disputes under Article 270 TFEU. Instead, they must rely on an arbitration clause contained in their employment contracts, with Article 272 TFEU providing the procedural basis for bringing such disputes before the EU courts.

This blog argues that extending the Article 58a appeal filter to cases brought under Article 272 TFEU does more than reduce the workload of the Court of Justice. The reform further restricts, for contracted staff serving in CSDP missions the opportunities to obtain judicial review by the Court of Justice, in an area where access to judicial review is already subject to constraints, including those arising from Article 275  TFEU and Article 24(1) TEU.

The amendment therefore raises a broader constitutional question: can the  objective of reducing the Court’s workload legitimately come at the expense of effective judicial protection and meaningful access to judicial remedies for contracted staff serving in CSDP missions? The reform also raises concerns about equal treatment. It creates a distinction between, on the one hand ordinary EU civil servants and seconded staff serving in CSDP missions who have the possibility of appealing to the Court of Justice, and, on the other hand, contracted staff, who are denied equivalent access to appellate review.

Key Aspects of the New Requirement

Pursuant to the 2024 amendment to Article 58a of the Statute an appeal against the General Court in proceedings concerning ‘the performance of a contract containing an arbitration clause, within the meaning of Article 272 of the [TFEU]’ may proceed only if the Court of Justice first grants leave to appeal.

The admissibility threshold for appeals by contracted staff serving in CSDP missions is demanding. An appellant must demonstrate that the appeal raises ‘an issue that is significant with respect to the unity, consistency or development of Union law’. It is therefore no longer sufficient to argue that the General Court committed an error in its interpretation of the law or assessment of the facts in the individual case. Instead, the appellant must establish that the issue extends the interests of the individual litigant and demonstrate why its resolution matters for the EU legal order as a whole.

The appeal therefore requires a form of ‘second-level’ justification: first, the appellant must identify alleged errors of law in the judgment, second, and critically, the appellant must explain why that error raises an issue significant for the unity, consistency or development of Union law. (see the Court Order of 29 April 2025 in SC v Eulex Kosovo (Case C-881/24), the first case to which the new appeal filter was applied). In this respect the test is comparable to the approach of the UK Supreme Court which filters appeals according to whether they raise an ‘arguable point of law of general public importance’.

The Court of Justice determines whether the conditions laid down in Article 58a of the Statute are satisfied by means of a reasoned order rather than a judgment. Where leave to appeal is refused, the judgment of the General Court becomes final, thereby bringing the litigation to an end without substantive review by the Court of Justice.

What raises a wider issue?

In employment disputes involving contracted staff of CSDP missions, appellants must identify a legal issue that extends beyond the particular employment relationship or factual circumstances of the CSDP mission concerned. This requirement may be met where an appeal raises, for example, a question  of EU law that could affect numerous contracted staff across different CSDP missions; where existing case-law is uncertain or inconsistent; or where clarification by the Court of Justice would contribute to  a coherent and consistent body of EU law applicable to all staff serving in the Union.

An appellant might be able to convince the Court that its interpretation of a fundamental right in a CSDP employment dispute could have implications beyond that specific context and provide guidance for future disputes in other areas of EU  law, such as EU restrictive measures, public procurement, competition or migration and asylum.  This may include disputes involving other EU bodies, missions or other actors subject to EU law. (see in this respect paras. 22 and 24 of the Court Order 29 April 2025 in SC v Eulex Kosovo (Case C-881/24))

Furthermore, an appellant might be able to successfully argue that the case raises a question of principle concerning the scope of the Court’s jurisdiction under Articles 24 (1) TEU and 275 TFEU, in particular whether and to what extent the Common Foreign Security Policy (CFSP) limitations on judicial review apply to employment-related decisions in CSDP missions. This question could have implications beyond the individual dispute, including for comparable cases involving other CSDP missions, EU bodies, or categories of EU personnel. It could also have broader implications for the principle of effective judicial protection under EU law, particularly where the contested measure affects fundamental rights or other rights protected by EU law.

Rationale for an appeal filter related to decisions of Boards of Appeal

The appeal filtering mechanism was first introduced in 2019 for appeals brought before the Court of Justice against judgments of the General Court concerning decisions of the Boards of Appeal (BoAs) of certain EU offices and agencies.

The EU legislature focussed primarily on the EU agencies with powers over intellectual property rights, plant variety rights, chemicals regulation and aviation safety (EUIPO, CPVO, ECHA and EASA). The rationale was that decisions in these areas had already undergone administrative review by a specialised BoA and judicial review by the General Court, while a significant number of appeals were manifestly inadmissible or unfounded (see here).

In practice, this admissibility requirement has constituted a substantial threshold, with the Court of Justice permitting only a limited number of appeals to proceed beyond the initial filtering stage.

Rationale for an appeal filter related to Article 272 TFEU disputes

The 2024 extension of the Article 58a filtering mechanism to appeals concerning Article 272 disputes was justified primarily by considerations of judicial efficiency. The legislator’s rationale was that such disputes most frequently require the General Court to apply, to the substance of the dispute, the national law to which the arbitration clause refers. (see here) Such appeals would generally be less likely to raise issues of EU law.

A CSDP employment dispute is an atypical Article 272 TFEU dispute

A CSDP employment dispute will rarely require the application of national law (see  JF v EUCAP Somalia) and is not a typical Article 272 TFEU dispute. Disputes involving contracted staff of CSDP missions often involve mission-specific instruments, such as Standard Operating Procedures (SOPs) and Operation Plans (OPLANs), as well as the analogous application of certain provisions of the EU Staff Regulations (see the judgment in Montanari v Eucap Sahel Niger). They may also involve the application of general principles of EU law and fundamental rights to contractual disputes (see JF v EUCAP Somalia), as well as questions concerning the scope of the Court of Justice’s jurisdiction in the CFSP context (see H v Council and Others, even if a seconded CSDP staff case ). This makes it particularly important to ensure that restrictions on access to an appeal before the Court of Justice do not prevent the development of authoritative guidance on questions affecting 1300 civilian staff working in CSDP missions, especially since only contracted staff, and not their seconded colleagues, are required to seek permission to appeal when challenging General Court judgments.

Where the EU Staff Regulations do not apply to such staff, the case law has established that the applicable legal framework derives primarily from the employment contract and mission specific instruments such as SOPs, supplemented, where relevant, by the analogous application of certain provisions of the EU Staff Regulations as well as certain general principles of EU law and the Charter of Fundamental Rights, as illustrated by JF v EUCAP Somalia.

Precisely because the legal framework governing CSDP contracted staff remains fragmented and continues to evolve, there is a strong argument that effective appellate review is of particular importance in this area.

Moreover, an appeal to the Court of Justice is not necessarily merely a second level of review. It may provide an important opportunity for the Court to give authoritative clarification of unresolved jurisdictional and constitutional questions concerning the scope of judicial protection in the CFSP context.

Conclusion

The appeal-filtering mechanism introduced by Article 58a of the Statute of the Court of Justice places international contracted staff serving in CSDP missions at a significant disadvantage compared with other categories of EU personnel in terms of access to appellate judicial review. EU staff subject to the EU Staff Regulations may bring claims under Article 270 TFEU, while seconded CSDP staff can bring actions under Article 263 TFEU. By contrast, international contracted staff whose disputes fall under Article 272 TFEU face an additional – and potentially insurmountable – hurdle when challenging a General Court judgment before the Court of Justice.

This disadvantage is all the more significant because the legal framework governing employment within CSDP missions remains fragmented and continues to develop. Restricting access to the Court of Justice therefore risks limiting not only the right of individuals to effective judicial protection, but also the development of a coherent and authoritative body of case law on employment within CSDP missions.

The Court of Justice can do little to remedy the disadvantage created by Article 58a of the Statute itself; addressing this issue is a matter for the EU legislature that should not be delayed.

 

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields including staff cases. She has appeared in numerous cases before both the Court of Justice and the General Court of the Court of Justice of the European Union.  She acted as Counsel for JF in JF v EUCAP Somalia, Case 194/20. She represents SC in SC v Eulex Kosovo, Case C-881/22, and obtained the Court Order of 29 April 2025.