Contracted EU civil servants in EU common security and defence policy missions: Procedural routes to judicial remedies

3.1 The contractual, validity route

The first of two routes for contracted EU civil servants to consider is the contractual, validity route, as specified in Article 272 TFEU. In recent years, a practice was established whereby missions, guided under the direction of the High Representative (HR) of the Union of the Union for Foreign Affairs and Security Policy and the European External Action Service (EEAS), have been inserting an ‘arbitration clause’ into specific employment contracts with contracted EU civil servants which provides that ‘disputes arising out of or relating to this contract shall be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 TFEU’. The treaty provision upon which the arbitration clause provision is based is Article 272 TFEU, and provides that,

‘The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law.’

Simply put, this jurisdiction clause can be inserted into contracts of contracting parties that have commercial and/or contractual relations with any EU organ. ¹⁶ It is not ordinarily meant for employment contracts, and is wholly unsuited for such non-commercial arrangements. Yet, for contracted EU civil servants in missions, that is exactly what Article 272 TFEU is utilised for. Cases taken to the CJEU under the arbitration clause are actions for the pleas of invalidity of measures adopted or taken, as opposed to the annulment of such measures. ¹⁷

Previously, before arbitration clauses conferring jurisdiction on the CJEU to decide such disputes were inserted into contracted EU civil servants’ employment contracts, they were obliged to bring their disputes before the courts of Brussels, Belgium, against the Head of Mission (HoM) of the mission in which they were employed. Given the inappropriateness of having a national court in one Member State adjudicating on this type of employment, far removed from the Belgian jurisdictional arena, this led to the adoption of a new practice of missions, with the formal inclusion of the jurisdiction clause in EU civil servants’ employment contracts from 2014 onwards.

Cases litigated under the Article 272 TFEU procedure have no theoretical time limit to be lodged at the General Court at first instance, which enables contracted (and former) EU civil servants in missions to bring their employment disputes before the CJEU years after the employment dispute arose. This has advantages and disadvantages for such contracted EU civil servants. The obvious advantage is that the strict time limit under the non-contractual route (discussed below) of just over two months does not need to be complied with, and so the applicants have more time to consider whether they want to pursue legal action against their employer, and more time to collect evidence to support their pleas. The disadvantage is that the benefits of a relatively short time limit, which are legal certainty and that the dispute is adjudicated within a relatively short period of time, which is favourable to both parties, employees and employers (including in view of evidentiary questions), is missing.

The scope of judicial review under this contractual route in Article 272 TFEU was, until recently, limited to contractual breaches. ¹⁸ Over time, the jurisprudence of the General Court has admitted cases under Article 272 TFEU for contracted EU civil servants in missions, except for in one case—its initial ruling in SC v Eulex Kosovo—where it has stated that the other procedural route, the non-contractual annulment route under Article 263 TFEU, is more appropriate. This, it is submitted, has led to inconsistencies.

3.2 The non-contractual, annulment route

The second of two routes for contracted EU civil servants to consider is the non-contractual, annulment route. The action for annulment, contained in Article 263 TFEU, is one of the most well-known procedural routes in EU law for taking cases to the CJEU. The right of legal standing in these annulment proceedings, often the highest hurdle to private parties litigating cases, is not an issue in staff cases, given that the direct and individual concern criteria are easily met.

However, the action for annulment procedure in Article 263 TFEU cannot, in principle, be utilized in cases that are related to contractual matters, and the approach taken by the CJEU thus far has been, predominantly in business and commercial disputes, to strictly distinguish between two different direct actions as a route to a judicial remedy: contractual actions (Article 272 TFEU), and annulment actions (Article 263 TFEU). Cases litigated under the Article 263 TFEU procedure have a time limit of two months (plus ten days, on account of distance) in which to be lodged at the General Court at first instance.

Whether it is the contractual or non-contractual route, there is also the complementary damages route. Article 340 TFEU covers liability and actions for damages against the Union, and thus missions, for employment situations. This is because Article 340 TFEU covers contractual liability in addition to the non-contractual liability of the Union. The first paragraph provides that, ‘[t]he contractual liability of the Union shall be governed by the law applicable to the contract in question’. The second paragraph provides that, ‘[i]n the case of non-contractual liability, 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’.

The centrality of the judgment of the Court of Justice in H v Council and Others is particularly relevant here. ¹⁹ The non-contractual liability of the Union within the CFSP (and by extension, the CSDP) is disputed, given that the non-contractual liability of the Union within the CFSP has not been fully confirmed. Thus far, the Court of Justice has established that the non-contractual liability of the Union in the CFSP is only engaged in respect of restrictive measures (sanctions) that have been wrongfully imposed, as seen in Bank Refah Kargaran. ²⁰ It remains an open question whether the non-contractual liability of the Union can be established for other matters within the CFSP, namely, actions or inaction of CSDP missions.

The reason why non-contractual liability of missions vis-à-vis its staff is accepted is because of the H v Council and Others judgment. There, the Court of Justice drew firm conclusions that because there was a single act of staff management relating to ‘field’ operations, it concerned both seconded EU civil servants by the Member States and seconded EU civil servants by the EU institutions. The decision rendered regarding the former would be liable to be irreconcilable with that rendered by the EU judicature with regard to the latter. ²¹ Consequently, the CJEU accepted jurisdiction to review such acts. According to the Court of Justice, as regards the review of the legality of those acts, the jurisdiction stemmed from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, considering Article 19(1) TEU, ²² and Article 47 of the Charter on the right to an effective remedy.

4.1 Admissible or inadmissible

Before any substantive review of events that take place in employment situations between contracted EU civil servants and missions, the case must firstly be deemed admissible. Frequently before the CJEU, the missions have based their defence against actions taken by contracted EU civil servants on convoluted inadmissibility arguments. This has led to several instances whereby the Court of Justice has had to provide clarifications, confirming the admissibility of cases, so that the General Court can move into assessing the substantive arguments of the parties. These technical inadmissibility arguments have been used to try to prevent judicial review at the CJEU, in its entirety, without any substantive review from taking place. This occurred, for example, in Jenkinson.

In the Jenkinson case law, the substantive issue was the fact that multiple fixed-term contracts had been concluded between the applicant and several missions, and the applicant, a contracted EU civil servant having served in multiple missions, was seeking to have such contracts understood as being a contract of indefinite duration. However, the mission in which he was most recently employed invoked the argument that different jurisdictional clauses had been inserted into his various contracts over the years, with earlier contracts stating that the courts of Brussels, Belgium, were the appropriate venue to bring judicial proceedings, and later contracts having the arbitration clause under Article 272 TFEU included (conferring jurisdiction on the CJEU). The argument of the defending mission was, in essence, that the applicant could not bring proceedings for his entire period of employment to the CJEU. In a judgment on appeal, the Court of Justice overturned the initial ruling of the General Court, ²³ with the Court of Justice stating that the jurisdiction of the CJEU could extend to earlier employment contracts conferring jurisdiction on the courts of Brussels, Belgium, on condition that the action brought contained claims arising under the final employment contract, or which were directly connected with the obligations arising from that contract. ²⁴

Consequently, the applicant's procedural argument was accepted, ²⁵ and the General Court was able to examine the substance of the pleas. Deciding otherwise would have disadvantaged contracted EU civil servants in their disputes, as it would have artificially cut their dispute into two factual periods because of the two different jurisdiction clauses. Simplifying the regime for judicial redress at one judicial institution—the CJEU—overcame the redress deficit that contracted EU civil servants had vis-à-vis their colleagues, seconded EU civil servants.

Following Jenkinson, it is apparent that if contracted EU civil servants have been employed in missions, and they had pre-existing contracted arrangements prior to the insertion of an Article 272 TFEU arbitration clause, the appropriate forum for judicial redress is the CJEU, and not any national court. ²⁶ This clarification in Jenkinson was certainly welcome, as it would be otherwise unreasonable for contracted EU civil servants to be compelled to obtain judicial redress before two different courts of law—both a court in Brussels, Belgium, and the CJEU—regarding measures taken in the context of their employment in CSDP missions.

4.2 Contractual or non-contractual action

Complex and divergent case law, mainly on the execution of debt notes, ²⁷ has been applied in cases involving contracted EU civil servants in their employment relations with missions. ²⁸ This debt note case law is about distinguishing between EU acts which are separable from a contract, and EU acts of a purely contractual nature; and have been contested between non-contractual actions for annulment under Article 263 TFEU, and contractual actions through arbitration clauses under Article 272 TFEU. The application of this debt note case law, in the context of an employment dispute between contract EU civil servants and missions which requires legal certainty on procedural routes and clarity on applicable time limits, is not appropriate, also in view of its complexity and divergence. ²⁹

In employment applications before the CJEU, some contracted EU civil servants have based their actions against missions on the arbitration clause that their employment contract provided, in that disputes arising out or relating to this contract would be adjudicated on by the CJEU pursuant to Article 272 TFEU. ³⁰ In their pleas before the General Court under this contractual route, contracted EU civil servants have alleged contractual breaches, including violations of SOPs forming an integral part of their contracts, infringements of national law, ³¹ and also infringements of other provisions of EU law, as was the situation, for example, in JF v EUCAP Somalia, ³² and SC v Eulex Kosovo. ³³

The General Court has, in effect, stated that the complex and divergent debt note case law also applies to employment law situations concerning contracted EU civil servants. In SC v Eulex Kosovo before the General Court, which, notwithstanding the inclusion of an arbitration clause in the contractual arrangements between the applicant and defendant under Article 272 TFEU, the General Court nonetheless stated that the contested decision was of an administrative nature, and as a result, separable from the contract, as it sought to produce binding legal effects outside of the contractual relationship between the parties, and which resulted from the exercise of the prerogatives of public authority conferred on Eulex Kosovo. ³⁴

In other words, the General Court held that the action against a non-renewal of contract decision could not be brought pursuant to Article 272 TFEU, as it was not a contractual matter; and reclassified the case as an action for annulment brought under Article 263 TFEU, as it was to be considered a non-contractual matter. This was because of the General Court viewing the mission to be acting as an administrative authority vis-à-vis the contracted EU civil servant. ³⁵ As a result, the applicant could not bring the disputes based on the contractual basis of Article 272 TFEU, but only on the non-contractual basis of Article 263 TFEU, as it was an administrative decision, separable from the employment contract of employment.

It furthermore ruled that the applicant, who relied on the Article 272 TFEU arbitration clause in their contract, had not complied with the applicable time limit of an Article 263 TFEU non-contractual action. Essentially, in this initial ruling in SC v Eulex Kosovo, the General Court, for the first time, found that the dispute did not have a contractual nature, but related to decisions separable from the contract, administrative decisions. In its view therefore, the General Court stated that the applicant chose the wrong procedural route.

This ruling of the General Court in SC v Eulex Kosovo was appealed before the Court of Justice. In his Opinion, Advocate General Tanchev in SC v Eulex Kosovo described the unclear situation that contracted EU civil servants faced in deciding on which procedural route to take:

‘I should point out that…[this ground]… of appeal raises complex issues which have not yet been dealt with in the Court's case-law relating to the distinction between the acts which may be challenged in actions based on Articles 263 and 272 TFEU, in the context of an employment dispute involving a former member of the contract staff of a CSDP civilian mission. The complexities of the present case arise in particular from the fact that the acts in question were situated in an administrative context and were not based on any specific provisions of the employment contract concluded between the parties.’ ³⁶

On the case's return to the General Court in SC v Eulex Kosovo, albeit in a default procedure, owing to the defending mission deciding to not file a defence on the substance of the pleas, the General Court ruled that the contested decisions were directly connected with the obligations arising under the final employment contract. ³⁸ For the General Court, the action under the arbitration clause in Article 272 TFEU was the appropriate route, overturning its prior decision. The General Court further held that if there are general decisions relating to the organisation of an internal employment competition, and actions followed-through on are implemented by individual decisions, such as the contested decisions, it means that the latter decisions form a direct part of the contractual relationship between the parties under the final employment contract.

The Court of Justice, in the initial appeal proceedings, had stated that while there were general decisions that were made, ³⁹ which might otherwise be considered to be of a non-contractual nature, the General Court nevertheless added that, ‘the latter decisions form a direct part of the contractual relationship between the parties under the final employment contract’. ⁴⁰ This finding of the General Court was based on the judgment of the Court of Justice, ⁴¹ which held that since the Council decision establishing the mission in question provided that the rights and obligations of contracted EU civil servants of Eulex Kosovo were defined by contract, and it could not be automatically ruled out that general decisions relating to the organisation of Eulex Kosovo may be implemented by individual decisions on the status of the members of such staff, within the framework of the contractual relationships between Eulex Kosovo and those members of staff. The initial ruling of the General Court in SC v Eulex Kosovo remains the only ruling thus far that has declared Article 263 TFEU to be the legal basis of the litigation.

Beyond the SC v Eulex Kosovo case that continues to be before the General Court and the Court of Justice, there has been another significant judgment of the General Court concerning the rights of contracted EU civil servants in CSDP missions, in JF v EUCAP Somalia. ⁴² Here, the applicant made a particularly novel argument in light of the inconsistent case law on the correct legal procedure through which a case is to be brought to the CJEU. Rather than risk the case being ruled inadmissible on the ground that it had been lodged through an incorrect procedural route, the applicant argued that the case was lodged through one procedural route, and, in the alternative, another procedural route. More specifically, the applicant argued that the case should be heard on the basis of Article 263 TFEU on non-contractual grounds, which was in line with the General Court's initial ruling in SC v Eulex Kosovo, ⁴³ the most recent jurisprudence of the CJEU at that time. It was only if the General Court thought otherwise would the case be heard on the basis of Article 272 TFEU in a contractual action.

Obviously, given the differences that exist between the procedures, ⁴⁴ this had ramifications for what the General Court could do, which would be potential annulment following the action for annulment route under Article 263 TFEU, or potential invalidation following the arbitration clause route under Article 272 TFEU. The General Court recognised the significance of the argument, and whilst there had been indeed case law on the General Court re-classifying actions of its own accord in the past, it was not fully established practice, and the case law did not lead to any affirmative results. Thus, the General Court in JF v EUCAP Somalia stated, for the first time in a staff case, that EU law ‘does not in itself preclude the applicant from bringing his action on one legal basis, while at the same time, in the alternative[,] and in the event of its inadmissibility, bringing the same action on another legal basis’. ⁴⁵

Given the JF v EUCAP Somalia judgment of the General Court, any future action based on the arbitration clause under Article 272 TFEU by contracted EU civil servants will likely be considered admissible, based on the fact that the CJEU, through the General Court, appears to have now accepted that such staff have to be able to rely on the unequivocal provision, the arbitration clause, inserted in their employment contracts, and may take the Article 272 TFEU procedural route. ⁴⁶ Furthermore, contracted EU civil servants cannot be compelled to determine, on the basis of complex and divergent case law which has been developed mainly in relation to the execution of debt notes, which procedural route to pursue and whether a time limit applies or not, which is not foreseen in their employment contracts, as it unduly complicates their legal protection and infringes their right to an effective remedy. ⁴⁷

4.3 Procedural reclassification

It is an open question, notwithstanding the SC v Eulex Kosovo and JF v EUCAP Somalia decisions, whether it can be interpreted that an arbitration clause under Article 272 TFEU will be considered by the Court of Justice as the only procedural route to a judicial remedy for contracted EU civil servants working in CSDP missions. It is uncertain whether contracted EU civil servants must still brace themselves for an employment-related dispute to be reclassified ⁴⁸ as a non-contractual annulment action under Article 263 TFEU by the CJEU, with the consequence that they might be out of time with their actions.

In this respect, the importance of the communication of clear time limits to contracted EU civil servants regarding the actions they may pursue, as is the case for their colleagues in EU institutions, bodies, and delegations, pursuant to Articles 90 and 91 of the staff regulations, cannot be overstated. Contracted EU civil servants in missions, like any other EU civil servant, need to know under which conditions they may challenge an act of staff management, such as decisions of termination on disciplinary grounds or non-renewal of contract against them. In particular, they need to know whether they have to comply with the clearly prescribed time limit set out in Article 263 TFEU, which obliges applicants to act speedily in bringing their pleas to the CJEU, in contrast to an action based on Article 272 TFEU, which does not set out any specific time limit in that regard.

Contracted EU civil servants in missions are employees first and foremost, and not independent contractors or economic operators in the classical sense of the term. They require a different level of protection—employee protection—when they are in a subordinate relationship with their employer. The mission can give orders, monitor performance, and discipline breaches of duty. Contracted EU civil servants cannot be compared at all to contracting parties who are in an ordinary business and commercial relationship with a mission and independent in the performance of their contractual obligations. Their employment disputes are wholly different from the contractual disputes that commercial entities bring to the CJEU, which governs the vast bulk of the case law under the arbitration clause in Article 272 TFEU. ⁴⁹ The use of the arbitration clause for an employment relationship within EU law, where the employee is in a weaker position and must accept the arbitration clause, is unusual.

Admittedly, the case law appears to be clearer regarding which procedural route to follow given the judgment of the General Court in JF v EUCAP Somalia. The General Court appears to have accepted that contracted EU civil servants in practically all cases may rely on the arbitration clause included in their employment contracts, which does not make any distinction between administrative or contractual disputes. Based on the General Court's findings in JF v EUCAP Somalia, when the applicant and the defendant are bound by an employment contract, the CJEU has jurisdiction, in principle. The situation that the contested act is intended to produce binding legal effects which are outside the contractual relationship between the parties, and which involve the exercise of prerogatives of a public authority conferred on the contracting institution in its capacity as an administrative authority, constitutes an exception to that principle, according to the General Court. ⁵⁰

It remains unclear which acts of a mission against a contracted EU civil servant could constitute such an exception and would have to be brought (or reclassified) under Article 263 TFEU. The paradox of this case law is that if there may be exceptional circumstances in which the General Court will not consider a contract action under Article 272 TFEU action admissible, but only an annulment under Article 263 TFEU, contracted EU civil servants must comply, as a precautionary measure, with the obligatory time limit of two months and ten days in all cases.

4.4 Determining applicable law

In a contract validity action based on Article 272 TFEU regarding contractual disputes, the question of the applicable law arises. ⁵¹ This can lead to disputes regarding what the actual applicable law to the contract is, given that it is not typically stipulated in employment contracts of contracted EU civil servants in missions. In JF v EUCAP Somalia, the General Court set out the case law regarding the rules which govern such contractual disputes that it considered relevant to such scenarios.

In principle, as per prior case law, disputes arising during the performance of a contract must be decided on the basis of the contractual terms, ⁵² and no national law is necessarily needed to determine the applicable law to the contract. ⁵³ Interpretation of the contract in the light of the provisions on the applicable national law in the contract can be justified only in the event of doubt as to the content of the contract, or the meaning of certain of its terms, or where the contract alone does not make it possible to resolve all aspects of the dispute. It is therefore necessary to assess the substance of a plea before the CJEU, solely in the light of the contractual provisions, and to have recourse to any national law which is applicable to the contract only if those provisions do not allow the dispute to be resolved. ⁵⁴

Beyond where the contract itself does not allow for the settlement of the dispute is where greater difficulty lies. Employment contracts of contracted EU civil servants in missions do not stipulate the applicable law for resolving employment disputes with the mission, and are silent on the matter. In the majority of cases, the CJEU will be able to resolve the dispute pursuant to the ‘autonomous law’ of the CSDP mission. ⁵⁵ Alternatively, the CJEU must, where appropriate, determine the applicable law using provisions under private international law, such as, for example, the provisions of the Rome I Convention. ⁵⁶

This could well lead to the applicability of the national law of the third state in which the staff member ‘habitually carries out the work’, the third state in which the contracted staff member is deployed in the mission, ⁵⁷ leading to the potential applicability of Kosovan law for contracted EU civil servants in Eulex Kosovo, Somali law in EUCAP Somalia, ⁵⁸ and for other missions, Afghan law, Iraqi law, Nigerian law, or Ukrainian law, in none of which either the CJEU or the parties have prima facie any level of expertise. Further to this, the national laws of those third states, some of which have rule-of-law problems, might provide far less or no protection at all for employees.

In Jenkinson, the mission (and the EEAS) argued that the applicable law capable of resolving the dispute was the ‘autonomous law’ of the mission, which Eulex Kosovo had developed since the establishment of the mission in 2008, ⁵⁹ but the General Court rejected this. ⁶⁰ Instead, the General Court determined the applicable law according to the Rome I Convention, ⁶¹ and found that the dispute was closely connected to Ireland, which made it necessary to apply the provisions of Irish labour law. ⁶²

Apart from the difficult and costly task of determining the labour law of that state, even an EU Member State, this result has led to uncertainty as to which law is the applicable law. That Irish labour law would be determined by the General Court as the applicable law in the Jenkinson case was not entirely predictable. From a fundamental rights perspective, the ruling of the General Court in Jenkinson is problematic, in that disputes of contracted EU civil servants in missions would be decided differently, and lead to different outcomes, depending on which national law is held to be applicable in each employment-related dispute.

In this regard, in H v Council and Others, the Court of Justice was wisely concerned that in the case of a single act of staff management relating to ‘field’ operations which applied to both staff members seconded by the Member States and staff members seconded by the EU institutions, the judicial decision rendered with regard to the former would be irreconcilable with that rendered by the CJEU with regard to the latter. ⁶³ This same reasoning must apply to contracted EU civil servants. By way of illustration, if Article 272 TFEU actions are brought by several contracted staff against a single act of staff management of a mission, the ‘autonomous’ law of the mission cannot solve the dispute, and different national laws apply, the CJEU will be compelled to rule differently in each case, leading to irreconcilable judgments. The principle of equal treatment cannot be met when the dispute of the respective contracted EU civil servants is decided on the various national laws applicable. In Jenkinson-type cases, where the autonomous law cannot solve the dispute, this will likely happen. ⁶⁴

The comparison between seconded and contracted EU civil servants is also relevant here given that similar employment disputes might be decided differently, as different law might be applied. For disputes relating to seconded EU civil servants in Article 263 TFEU annulment actions, the ‘autonomous’ law of the mission, the entire EU acquis, including general principles of EU law, and fundamental rights will apply. For disputes involving contracted EU civil servants in Article 272 TFEU validity actions, the applicable law is less clear. The ‘autonomous’ law of the mission, general principles of EU law and fundamental rights, and perhaps national substantive law, will apply.

5.1 The need for complete judicial protection for all EU civil servants

EU civil servants, seconded and contracted, have a right to be treated in the same manner and the same procedural routes to judicial remedies. Seconded EU civil servants in CSDP missions can, in light of H v Council and Others, obtain comprehensive judicial redress through an action pursuant to Article 263 TFEU. Thus, it ought to be that contracted EU civil servants in CSDP missions have a right to obtain the same comprehensive judicial redress at the CJEU in the same way as seconded EU civil servants, if the reasoning of the Court of Justice's H v Council and Others judgment is followed through to its logical end. ⁶⁵ In the context of an action brought on the basis of Article 272 TFEU, like many of the recent CJEU cases, contracted EU civil servants can only obtain a limited ‘contractual breach’ review of their employment grievances. ⁶⁶

It is not apparent, despite some inclination in that direction, ⁶⁷ that the CJEU has accepted that there is a need to consider all relevant questions of fact and law in contractual actions under Article 272 TFEU. The CJEU must be able to review all the pleas of law applicants raise in their employment disputes, including non-contractual issues such as broader aspects of EU law. If the Article 263 TFEU or Article 270 TFEU procedural routes are not currently available to contracted EU civil servants, the same judicial review needs to be applied in an Article 272 TFEU contractual action, ⁶⁸ given that it is the only way, according to the arbitration clause in their employment contracts, in which contracted EU civil servants can take their cases.

There is no question of extending the jurisdiction of the CJEU beyond the limits laid down by Article 274 TFEU, ⁶⁹ given jurisdiction of the CJEU is the result of the insertion of an arbitration clause. Following the judgment of the General Court in JF v EUCAP Somalia, it is apparent that almost all questions of fact and law in contractual actions under Article 272 TFEU actions can now be considered. ⁷⁰ In that case, the General Court viewed the pleas as an alleged infringement of a general principle of law, or an alleged infringement of a fundamental right. ⁷¹

But almost is not complete. In this respect, in JF v EUCAP Somalia the General Court relied on recent case law of ADR Centre v Commission, ⁷² where the Court of Justice stressed that the General Court must examine all questions of fact and law relevant to the resolution of the dispute before it pursuant to Article 47 of the Charter. However, in JF v EUCAP Somalia, where the applicant sought comprehensive judicial review on the basis of Article 272 TFEU, including all aspects of EU law, and an infringement of the EU-UK Withdrawal Agreement, the General Court left open the question of whether an infringement of the EU-UK Withdrawal Agreement could be considered in an Article 272 TFEU action. ⁷³ Consequently, the issue which remains unresolved is whether a plea of an infringement of EU law, outside a general principle of law or a fundamental right, can be considered in a contract action under Article 272 TFEU.

Elsewhere in Jenkinson, on the case's return to the General Court, ⁷⁴ it is apparent that this form of comprehensive or complete judicial review was denied, ⁷⁵ and the new case law of the Court of Justice from ADR Centre v Commission was interpreted in a narrower way than what the applicant had contended should be the case. The narrower interpretation of the General Court was that pleas alleging an infringement of general principles of EU law in an Article 272 TFEU action could not be considered, which was also contrary to the Court of Justice's judgment in Inclusion Alliance for Europe v Commission. ⁷⁶

In cases involving contracted EU civil servants, the CJEU ought to assert that it has the capacity to examine all pleas, be it a plea based on an infringement of a provision of EU law, or of a general principle of EU law, or a fundamental right. To not do so infringes the rights of EU civil servants to effective judicial protection under Article 47 of the Charter. Those cases must be treated by the CJEU as if they are Article 263 TFEU staff cases like it does for some EU civil servants, ⁷⁷ or Article 270 TFEU staff cases based on the principle of equal treatment of staff. ⁷⁸

There have been steps towards ensuring equal judicial protection through the analogous application of the case law which is applied to staff disputes under Article 270 TFEU. In the only case before the CJEU which was ever brought by a seconded EU civil servant in a mission, in its third ruling in H v Council and Others, ⁷⁹ the General Court found, appropriately that in an Article 263 TFEU action, it was necessary to apply the case law, by analogy, that it would have applied had it been an Article 270 TFEU action. Here, the General Court held,

‘Since staff members seconded by the EU institution, whose status is governed by the Staff Regulations of Officials of the European Union (“the Staff Regulations”) and those seconded by Member States, such as the applicant, are subject to the same rules so far as concerns the performance of their duties “at theatre level”…, it is necessary to apply that case-law by analogy to the claim directed against the decisions of the [CSDP mission] who decided to redeploy a staff member seconded by a Member State.’ ⁸⁰

5.2 The need for accountability of actions and inactions of CSDP missions

In view of the number of EU civil servants deployed in CSDP missions, disciplinary procedures are common, as they are on a comparative basis for staff in EU institutions within the scope of the staff regulations. The powers that CSDP missions hold over their staff, and the disciplinary control of staff, in particular, must be subject to judicial oversight, also in view of the potential serious impact on the fundamental rights of staff, regardless of the category of EU civil servants that operate at theatre level. Ensuring clarity for contracted EU civil servants in accessing the CJEU, so that the CJEU looks at all the matters which are brought to its attention to ensure that the law is observed, is a key duty of the CJEU in achieving and contributing, at the same time, to the accountability of missions. ⁸³ The missions have to be accountable on all relevant matters of fact and of law in respect of the employment-related matters which arise with their staff. In light of the case law analysed above, it is evident that the litigation of contracted EU civil servants has brought more accountability already. CSDP missions must be prepared and are now aware that contracted EU civil servants can and may bring their actions and inactions to the CJEU, which means that reports of any wrong-doing related to their actions may also end up in the public domain.

Shielding themselves from judicial review, as missions have tried to do through inadmissibility pleadings before the CJEU, ⁸⁴ and not even filing defences on the substance of applicant's claims in one case, ⁸⁵ is demonstrable behaviour of the missions trying to absolve themselves of any legal accountability for their actions in acts of staff management. Rightly, the CJEU has decided that contracted EU civil servants are deserving of judicial review, even if it is not the same judicial review from which the other EU civil servants benefit, and has seen to it that they are not left in a legal abyss whereby there is no possibility of obtaining judicial redress, as seconded staff were prior to the H v Council and Others judgment by the Grand Chamber of the Court of Justice.

Through its case law, the CJEU can guide the missions in the difficult task of human resources management as it does with other EU civil servants. Increased judicial oversight of missions not only achieves more legal accountability, but the case law of the CJEU serves as an important tool for policy change as regards CSDP missions making them more effective. It is in this vein, to achieve more accountability, that the case of KS and KD v Council and Others can be considered, ⁸⁶ where both the applicants and one defendant (the Commission) have appealed an Order of the General Court, ⁸⁷ asking the Court of Justice to extend the jurisdiction of the CJEU to cover the non-contractual liability of the Union beyond acts of staff management and restrictive measures (sanctions), ⁸⁸ and also to cover operational issues relating to missions. In other words, the cases that have been litigated by contracted EU civil servants against missions to date have contributed to expanding the jurisdiction of the CJEU in the CFSP (and CSDP) more generally. Whilst this eventual ruling will not confirm the CJEU's jurisdiction over all issues related to the CFSP, it would build on its prior judgment in Bank Rafah Kargaran.

5.3 The need for intervention rights of the High Representative and EEAS

Given that the missions have the legal capacity to be an employer of contracted EU civil servants, it is they that defend the cases before the CJEU. However, given that missions are not fully autonomous, and act in many instances under the direction of the High Representative of the Union for Foreign Affairs and Security Policy (the High Representative or HR) within the European External Action Service (EEAS), ⁸⁹ it is curious that despite the role that the High Representative and the EEAS have, the officeholder and the body are not the defendants in the proceedings, nor does the High Representative or EEAS have the autonomous right to intervene in cases in support of the mission against whom the case is being taken at the CJEU. They are not granted privileged or semi-privileged standing before the CJEU. Instead, all the High Representative and EEAS can do is assist the mission in its defence before the CJEU behind the scenes.

However, there are signs that this position of non-intervention is changing. In Commission v Council (Gabon), prior to the judgment of the Court of Justice, an Order of the President of Court of Justice was delivered, ⁹⁰ which specified that where it is requested by the High Representative, and where the officeholder has an interest that can established in each case, then the High Representative may intervene in a case as a legally interested party.

Although this does not in itself confer a privileged or semi-privileged status upon the High Representative in all cases, ⁹¹ it is nonetheless a positive step, and should, in time, also be extended to the EEAS. In staff cases concerning contracted EU civil servants in missions, the High Representative and/or the EEAS are certainly legally interested parties, and should be offered the appropriate right of intervention, given missions may not always be of the same mind in presenting their defence before the CJEU. And whilst this development is a step in the right direction in ensuring greater coherence of judicial system that oversees missions, it is by no means a complete one. After all, new questions will continue to arise. For example, the question of the legal status of EU Special Representatives, ⁹² and their status as employers within the CSDP and the EU legal order, is an open question.

5.4 The need for staff regulations for CSDP missions

Employment disputes for all EU civil servants are comparable in nature. The issues of staff management that arise in missions and the increasingly complex and lengthy litigation, ⁹³ dealing with issues such as unequal treatment of seconded and contracted EU civil servants, time limits for actions to be taken, clarity on which procedural route (Article 263 TFEU or Article 272 TFEU) is the appropriate one, determination of the applicable law, and occasionally inconsistent case law, are all issues that are a result of there being no overarching staff regulations for missions with the applicability of Article 270 TFEU.

The time is now ripe for the relevant actors to come to the realisation that the solution of inserting an arbitration clause into the employment contracts of contracted EU civil servants leads to significant problems in litigation before the CJEU, which could be resolved by the adoption of staff regulations. Staff regulations for missions would reduce the differences between staff working in missions. ⁹⁴ The introduction of staff regulations applicable to both seconded and contracted EU civil servants, for the purpose of the application of Article 270 TFEU, is the most sensible and rounded solution in ensuring equal judicial protection for the different categories of EU civil servants in missions. It would provide legal certainty, in particular as to time limits and predictability for all relevant actors and, in particular, staff.

There is evidence that progress is being made in this direction. The Code of Conduct and Discipline for EU Civilian CSDP Missions ⁹⁵ is a set of rules which apply to all EU civil servants across civilian missions, ⁹⁶ like the Upgraded Generic Standards of Behaviour for CSDP Missions and Operations. ⁹⁷ SOPs provide rules to implement the mission's OPLAN, and the reference to the SOPs in the employment contract is made in the same way as Conditions of Employment of Other Servants of the EU (CEOS) are referred to in the contracts concluded between the institutions and their contracted EU civil servants. The continued ad hoc issuance by missions of ever-changing SOPs with a complex internal regulatory framework applicable to the issuing mission only is an imperfect and unsatisfactory way of regulating the rights and obligations of EU civil servants working in CSDP missions. The SOPs regulate, inter alia, matters which would be typically addressed in staff regulations. ⁹⁸

It could be argued—and it has ⁹⁹ —that Article 336 TFEU imposes some form of obligation upon the Union to have staff regulations that cover servants that currently are employed without staff regulations in missions. ¹⁰⁰ Contracted EU civil servants must be able to rely on a clear and concise regulatory framework, and the introduction of staff regulations for missions would support this aim, even if it is established that there is no obligation to introduce staff regulations for contracted EU civil servants in missions.