Case T‑602/15 RENV
Liam Jenkinson
v
Council of the European Union and Others
10 November 2021
(Arbitration clause – International civilian staff of EU international missions – Recruitment on a contractual basis – Consecutive fixed-term employment contracts – Claim that all contractual relationships should be recategorised as a contract of indefinite duration – Action for contractual liability – Action for non-contractual liability)
1. Judicial proceedings – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – Pleas in law in support of the plea of illegality not supported by specific arguments – Inadmissibility of the plea of illegality
(Art. 277 TFEU; Rules of Procedure of the General Court, Art. 76(d))
(see paragraph 48)
2. Judicial proceedings – General Court seised under an arbitration clause – Jurisdiction of the General Court – Contractual relationship based on a series of consecutive fixed-term contracts – Claim that all contractual relationships should be recategorised as a contract of indefinite duration and for compensation for unfair dismissal – Arbitration clauses conferring jurisdiction, in the final contract, on the Courts of the European Union, and, in the previous contracts, on the courts of a Member State – Claim deriving from the final contract – Contractual relationships prior to the final contract to be taken into account
(Art. 272 TFEU)
(see paragraphs 64-66)
3. Common foreign and security policy – Jurisdiction of the EU Courts – Measures taken by an EU international mission concerning staff management – Whether included
(Arts 19(1) and 24(1), second subpara., TEU; Arts 268, 275, first para., and 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 68, 69)
4. Judicial proceedings – General Court seised under an arbitration clause – Contract subject to national law – Applicability of substantive national law – Compliance with the prohibition on abuse of rights as a general principle of EU law
(Arts 151 and 272 TFEU; Council Directive 1999/70, Annex)
(see paragraphs 96-101)
5. Judicial proceedings – General Court seised under an arbitration clause – Employment contracts of staff of an EU international mission – Action for contractual liability – Determination of the applicable law
(Art. 272 TFEU; European Parliament and Council Regulation No 593/2008, Arts 3(1) and 8)
(see paragraphs 103-106, 119, 123, 125, 128-139)
6. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Measures to prevent the misuse of consecutive fixed-term employment contracts – Objective reasons justifying the renewal of such contracts – International civilian staff of an EU international mission – Consecutive renewal of contracts closely linked to the specific, temporal context of that mission – Whether permissible
(Council Directive 1999/70, Annex, Clause 5(1)(a); Council Joint Action 2008/124/CFSP, Art. 9(3))
(see paragraphs 150-156, 176-188)
7. Judicial proceedings – General Court seised under an arbitration clause – Jurisdiction of the General Court – Extent – Prohibition on ruling ultra petita – Obligation to comply with the scope of the dispute as defined by the parties
(Art. 272 TFEU; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Arts 76 and 84(1))
(see paragraphs 208, 209)
8. Common foreign and security policy – EU civilian missions – Staff – International civilian staff – Recruitment on a contractual basis – Legal basis
(Art. 28(1), first subpara., TEU; Council Joint Action 2008/124/CFSP, Arts 9(3) and 10(3))
(see paragraphs 226-228)
9. Common foreign and security policy – EU civilian missions – Staff – International civilian staff – Recruitment on a contractual basis – Application of different national laws depending on the contracts concluded individually – Infringement of the principle of equal treatment and non-discrimination – No infringement
(Art. 28(1), first subpara., TEU; Council Joint Action 2008/124/CFSP, Arts 9(3) and 10(3))
(see paragraph 230)
10. Common foreign and security policy – EU civilian missions – Staff – International civilian staff – Recruitment on a contractual basis – Discrimination as compared with EU staff seconded to those missions and employed under the Conditions of Employment of Other Servants – No discrimination
(Art. 28(1), first subpara., TEU; Council Joint Action 2008/124/CFSP, Arts9(3) and 10(3))
(see paragraphs 231, 232)
11. Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Brief summary of the pleas in law on which the application is based – Action seeking compensation for loss caused by an EU institution – No indications as to the character and extent of the damage suffered or as to the causal link – Inadmissibility
(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 76(d))
(see paragraphs 243, 244)
Résumé
The applicant, an Irish national, was employed from August 1994 to November 2014 by three EU international missions under a series of consecutive fixed-term contracts (‘FTCs’), with brief breaks between the periods of employment in each of those missions. Between April 2010 and November 2014, he was last employed as an international staff member by the Eulex Kosovo Mission, an international crisis management mission established within the framework of the Common Foreign and Security Policy (CFSP). His 11th and final FTC was not renewed beyond 14 November 2014 on account of the decision to restructure that mission, entailing the abolition of his post.
In October 2015, the applicant brought an action before the General Court against the Council of the European Union, the European Commission, the European External Action Service and the Eulex Kosovo Mission (‘the defendants’). By that action, he claimed, in essence:
— first, the recategorisation of all the consecutive FTCs as an employment contract of indefinite duration (‘CID’) and compensation for the contractual damage sustained as a result of the misuse of consecutive FTCs and the unlawful termination of the CID thus recategorised (‘the first head of claim’);
— secondly, compensation for the non-contractual damage he sustained as a result of not being recruited under the conditions of employment for staff of the European Union (‘the second head of claim’); and
— thirdly and in the alternative, compensation for the harm suffered on account of the fact that the defendants, in the contractual relationship they imposed on him, infringed a number of general principles of EU law (‘the third head of claim’).
By order of 9 November 2016, (1) the General Court dismissed that action on the ground that it manifestly lacked jurisdiction to hear and determine the first two heads of claim and that the third head of claim was manifestly inadmissible. However, by judgment of 5 July 2018, (2) delivered in response to an appeal brought by the applicant, the Court of Justice set aside that order and referred the case back to the General Court.
By its judgment delivered after that referral, the Court declares that it has jurisdiction to hear and determine the three heads of claim, but again dismisses the action in its entirety as in part unfounded and in part inadmissible. In that judgment, the Court rules on the extent of the jurisdiction enjoyed by the EU Courts under an arbitration clause and on the question of which arrangements and law apply to contracts of employment for international civilian staff in EU international missions.
Findings of the Court
First of all, the Court confirms that it has jurisdiction to resolve the dispute.
As regards the first head of claim seeking, in essence, the recategorisation of all the consecutive FTCs as a CID and compensation for the associated contractual damage, the Court finds that its jurisdiction derives from an arbitration clause, within the meaning of Article 272 TFEU, contained in the applicant’s final FTC and conferring jurisdiction on the EU Courts over any dispute relating to the contract. In particular, it holds that its jurisdiction extends to the review of the FTCs preceding the final contract even though they did not contain such an arbitration clause, since the applicant’s claims are linked to the existence of a single, continuous employment relationship based on a series of consecutive FTCs, claims also stemming from the final FTC.
As regards the second and third heads of claim concerning, in essence, the defendants’ potential non-contractual liability for acts of staff management relating to ‘field’ operations, including the recruitment of international civilian staff in EU international missions, the jurisdiction of the Court to hear and determine those heads of claim flows from the general provisions of the TFEU conferring jurisdiction on the EU Courts over disputes concerning non-contractual liability. (3)
Next, in its examination of the merits of the first head of claim, the Court notes, as a preliminary point, that in the light of the arbitration clause conferring jurisdiction on it, it must decide on the claim for recategorisation of the 11 FTCs concluded with the Eulex Kosovo Mission in accordance with the national substantive law on employment applicable to those contracts, with due regard to the general principles of EU law, in particular the prohibition on abuse of rights. In order to determine the applicable law, the Court has recourse to the rules of private international law and, in particular, to the provisions of the Rome I Regulation. (4)
Moving on to consider the 11 FTCs in the light of those provisions, the Court concludes that Irish law should be applied to the whole of the contractual relationship entered into under those contracts. As regards the first nine FTCs, the Court finds, by applying the rule of the choice of law made by the parties, (5) that the contracting parties designated the law of the applicant’s country of origin and permanent tax residence before he took up his post in the mission, namely Irish law, as the applicable national law on employment. As regards the last 2 FTCs, which did not contain any provision on the choice of applicable law, the Court applies the rule of the most close connection, (6) leading it to conclude that those 2 contracts remain subject to Irish law inasmuch as there was, in fact, a continuous employment relationship between the parties beginning with the first of the 11 FTCs and the tax, social security and pension schemes covering the applicant were governed, in accordance with the last 2 FTCs, by Irish law.
Thus, under the Irish legislation applicable to FTCs, (7) which transposes the relevant EU legislation, (8) after a maximum period of employment relationships, the subsequent renewal of an FTC presupposes the existence of ‘objective reasons’ justifying such renewal, without which the renewed contract is deemed to be of indefinite duration.
Since the Court finds that, in the present case, the maximum period permitted under Irish law was exceeded when the last two FTCs at issue were concluded, the Court examines whether there were objective reasons justifying their conclusion. It holds in that regard that the circumstances specific to the Eulex Kosovo Mission, notably the temporary and ever-changing nature of its mandate, in terms of duration, content and financing, which necessarily determines the equally temporary nature of the conditions of employment of its staff, constitute objective reasons justifying recourse to the consecutive FTCs at issue. As regards the final FTC in particular, the Court acknowledges, in addition, that there were other, even more specific and detailed objective reasons for the decision to abolish the applicant’s post following the restructuring of the mission, the date of termination of that final contract coinciding with the date scheduled for that abolition. It infers from this that there was no abuse when the offer to conclude the FTCs at issue was made to the applicant.
Consequently, the Court rejects the claim for recategorisation of the FTCs as a single CID and, therefore, also rejects the resulting contractual compensation claim.
Moreover, the Court rejects as unfounded the second head of claim by which the applicant seeks, in essence, compensation for the non-contractual damage allegedly sustained as a result of having been recruited as an international civilian staff member on a contractual basis rather than under the more favourable rules applying to EU staff seconded to the mission in question. In that regard, the Court finds, in particular, that EU primary law relating specifically to the CFSP and the legislative provisions concerning the Eulex Kosovo Mission provided a legal basis allowing the applicant to be recruited as an international civilian staff member on a contractual basis and that there was no discrimination or unequal treatment of the applicant as compared with other contractual staff of that mission or other EU staff seconded to it.
Finally, the Court rejects the applicant’s last head of claim as manifestly inadmissible because it lacks clarity and precision as to the existence of a sufficiently direct causal link between the infringements allegedly committed by the defendants and the damage claimed. Accordingly, the Court dismisses the action in its entirety.