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.
