Antje Kunst*
Picture credit score: Jan-Tore
Egge, by way of Wikimedia
Commons
Introduction
The Court docket 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
attraction introduced by Mr. Jenkinson, an Irish nationwide, which has implications for
hundreds of employees serving in worldwide missions of the EU (EU missions)
underneath the EU’s Widespread Overseas and Safety Coverage (CFSP) in third states.
Mr. Jenkinson’s defeat earlier than the
Court docket of Justice isn’t a victory for the defendants: the Council, the
Fee, the European Exterior Motion Service, and Eulex Kosovo. It’s
clearly not of their curiosity that the Normal Court docket’s findings within the
judgement underneath attraction, Case
T‑602/15 RENV have been upheld. Additionally, it’s a disgrace that
the Court docket of Justice didn’t specific any views on one of many fundamental claims in
this litigation concerning the Council’s failure to introduce a authorized regime
corresponding to the Circumstances
of Employment of Different Servants of the European Union (“CEOS”).
As an alternative, the Court docket of Justice
held the associated arguments had been inadmissible or unsubstantiated, with out
providing any views by passing on the deserves of these arguments. This can be a
missed alternative, additionally considering that the Normal Court docket in Stockdale v Council
and Others (together with the
European Union’s Particular Consultant in Bosnia and Herzegovina) (T‑776/20), has
already made sure findings on this regard.
Applicability of Non-public
Worldwide Regulation (Rome I Regulation)
Jenkinson’s declare was that the EU
didn’t envisage that personal worldwide regulation, i.e., an EU Regulation on the
regulation relevant to contractual obligations (the Rome
I Regulation) can be relevant to public regulation contracts corresponding to these at
subject within the case. (para. 79 of the Judgment) The Court docket of Justice disagreed: ‘since
the Normal Court docket was seised pursuant to an arbitration clause underneath
Article 272 TFEU’, it was essential within the absence of any alternative of the
events of the relevant nationwide substantive regulation for the Court docket to establish it
(para. 88 of the Judgment).
The Court docket of Justice held that
the Normal Court docket was right in taking recourse to the Rome I Regulation, to
accomplish that. It didn’t intervene with the Normal Court docket’s dedication that Irish
regulation was the relevant nationwide substantive regulation governing Mr. Jenkinson’s declare
for a requalification of the sequence of fixed-term contracts, and that primarily based on
Irish regulation, Mr. Jenkinson’s declare was dismissed (see paras. 123 -163 pp. of the Judgment)
Utility of varied
nationwide legal guidelines to employees working for a similar employer
Solely in the direction of the top of the
Judgment the Court docket of Justice acknowledged that the applying of varied
nationwide legal guidelines would possibly, in observe, end result for members of Eulex Kosovo’s contract
employees being handled otherwise as regards the rights conferred on them and the
obligations imposed on them in a given state of affairs. (para. 262 of the Judgment)
Nonetheless, it adopted from
the contractual nature of the relationships that, within the absence of a typical
European regime relevant to the members of Eulex Kosovo’s employees, the
substantive guidelines supposed to complement the contractual phrases are derived from
a nationwide regulation which can have been recognized underneath the foundations of personal
worldwide regulation. (para. 267 of the Judgment)
It concluded that Mr Jenkinson
had failed to point out that, within the circumstances of the current case, the
utility of various substantive guidelines of nationwide regulation to the members of
Eulex Kosovo’s worldwide employees constituted a breach of the precept of
non-discrimination. (para. 271 of the Judgment)
It’s stunning that the Court docket
of Justice, not like the Normal Court docket, expressed considerations about that comparable
disputes of contract employees working in EU missions will likely be determined otherwise
relying on what the recognized nationwide regulation prescribes however then didn’t draw
any penalties from this.
On 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) acknowledged, albeit of their
private capability, in a latest educational contribution on the Jenkinson case:
“Having
recourse to the relevant nationwide regulation … carries the danger of diverging
outcomes of comparable disputes, notably concerning potential claims for damages,
the place the situations for such claims might differ from one laws to the
different.”
(See Stephan Marquardt, Eszter
Orgovan and Emmanuelle Raoult, in The European Union’s Contribution to
Worldwide Peace and Safety, Chapter 6: ‘The Authorized and
Institutional Nature of EU Civilian Disaster Administration Missions within the Gentle of
the Case Regulation of the Court docket of Justice of the European Union’).
This can be a official concern that
the defendants have, and right here, was to the detriment of Mr. Jenkinson. Had the
nationwide regulation of one other state (e.g., one other Member State, or third state)
utilized, the requalification declare of a sequence of fixed-term contracts to a
everlasting contract may need succeeded, and the result in an identical motion
can be totally different. Not solely that, a declare for damages may need succeeded
too.
Different comparable instances pending
Completely different outcomes may occur
in future case, together with pending instances, that are at present stayed and concern
comparable actions involving members of the worldwide employees 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
totally different mission there may be the case of Stockdale v Council
and Others (together with the European Union’s Particular Consultant in
Bosnia and Herzegovina) (T‑776/20). Completely different outcomes may additionally happen in
future comparable litigation, provided that it’s probably not Irish regulation will apply in
these instances. This might additionally result in irreconcilable judgments.
Declare of failure to undertake a
authorized regime corresponding to the CEOS
In his preliminary utility
stretching again to 2017, Mr. Jenkinson sought compensation on the premise that
the Council, Fee, and the EEAS didn’t adjust to their obligations,
together with to recruit him underneath a authorized regime corresponding to the CEOS.
In his attraction in Case C-46/22 Jenkinson
argued that the Normal Court docket infringed Article 336 TFEU by holding that the
Council had lawfully delegated to the Head of Eulex Kosovo the facility to undertake
the situations of employment of worldwide civilian employees. (Article 336 TFEU
offers ‘The European Parliament and the Council shall, performing via
rules in accordance with the odd legislative process and after
consulting the opposite establishments involved, lay down the Employees Laws of
Officers of the European Union and the Circumstances of Employment of different
servants of the Union.’)
The infringement of Article 336
TFEU additionally resulted from the very fact, that the situations of employment of
worldwide civilian employees had been laid down within the contracts between the Head
of Eulex Kosovo and the members of that mission’s employees, whereas they must
and will have, as an alternative, been determined by the Council. In response to Mr.
Jenkinson, it was for the Council to undertake situations of employment for
worldwide civilian employees just like these contained within the CEOS (para. 65
of the Judgment)
The Court docket of Justice famous that
Mr. Jenkinson, earlier than the Normal Court docket, had made submissions concerning the
non-existence of a framework just like the CEOS for hiring employees for these
missions. The Court docket of Justice then took subject with the truth that Mr. Jenkinson
had not sought a declaration from the Normal Court docket that there had been an
infringement of Article 336 TFEU by the failure to undertake, on the premise of
that article, a authorized regime relevant to employment conditions corresponding to that
of Mr Jenkinson (para. 71 of the Judgement). Arguably, he ought to have.
On this context, the Court docket of
Justice rejected Mr. Jenkinson’s grievance within the attraction, that the applying
of the substantive nationwide regulation relevant to his contractual relationship
constituted an infringement of Article 336 TFEU by purpose of the absence of a
authorized framework adopted on the premise of that article. In response to the Court docket of
Justice, as a result of the grievance was not raised earlier than the Normal Court docket, it was
consequently discovered each inadmissible and unfounded (paras. 72, 73 and 90 of the
Judgment).
That is important, as any
contract employees working in an EU mission in an identical future motion may make
submissions the Court docket of Justice thought of had been lacking and search such
declarations.
Plea of Illegality concerning Joint
Motion 2008/124 establishing the Eulex Kosovo
The Court docket of Justice additionally rejected
Mr. Jenkinson’s arguments concerning a plea of Illegality pursuant to Article
277 TFEU, particularly that Article 9 (3) and Article 10(3) of Joint
Motion 2008/124 infringes Article 336 TFEU (paras. 38, 46 and 47 of the Judgment).
These provisions state that Eulex Kosovo might also recruit worldwide civilian
employees, as required, on a contractual foundation and that the situations of
employment and the rights and obligations of such employees are to be laid down in
the contracts between Eulex Kosovo and the members of employees.
The Court docket of Justice referred to
the Normal Court docket’s discovering, that, even if that the appellant had in
truth raised a plea of illegality in opposition to Joint Motion 2008/124, on the premise of
Article 277 TFEU, it needed to be held that that plea was not substantiated. The
Court docket of Justice didn’t intervene with the Normal Court docket’s discovering.
The plea of illegality concerning Joint
Motion 2008/124 may very well be additional substantiated in future litigation earlier than the
Normal Court docket in an identical motion with the consequence that the Court docket of
Justice must look at the alleged unlawfulness and whether or not there may be an
infringement of Article 336 TFEU.
Nationwide regulation vs EU employees regulation resolving
the dispute
Mr. Jenkinson additional argued that
the applying of nationwide regulation by the Normal Court docket can be opposite to the
precept of non-discrimination in that it entails three cases of unequal therapy:
–
first, Mr. Jenkinson being
handled otherwise to the servants of the European Union whose situations of
employment are to be decided solely by the Council and the Parliament
pursuant to Article 336 TFEU.
–
second, the servants of the
European Union, corresponding to Mr Jenkinson, and nationwide employees ruled by
personal regulation being handled the identical,
–
third, worldwide employees of
totally different nationalities working for a similar employer underneath the identical situations
and circumstances being handled in a discriminatory method.
(see para. 95 of the Judgment).
Once more, this grievance was
rejected by the Court docket of Justice as a brand new grievance and rejected as
inadmissible because it was not raised earlier than the Normal Court docket, and the Court docket of Justice
didn’t make any findings on the substance on this regard (para. 106 of the Judgment).
Additionally, this very compelling
discrimination argument, specifically concerning worldwide employees working
for a similar employer (i.e., worldwide employees to whom the EU Employees
rules apply and worldwide employees to whom nationwide regulation applies), may
be raised by candidates in future litigation earlier than the Normal Court docket.
Conclusion
The truth that the Court docket of
Justice has not interfered with the Normal Court docket making use of nationwide substantive
regulation to the dispute is very problematic for the Council and the EEAS for the
causes set out within the above-mentioned educational publication. Sooner or later
due to this fact, it’s wholly unpredictable how the nationwide substantive regulation would
govern different comparable disputes for employees in EU missions. This bears appreciable
monetary dangers for the defendants. It additionally bears dangers of future litigation in
which basic rights considerations will likely be raised, specifically a breach of the
precept of equal therapy and the prohibition of discrimination.
The Court docket of Justice refrained
from ruling that the Council’s failure to undertake a authorized regime for employees within the
EU missions corresponding to the CEOS is illegal which might have obliged the
Council to behave. However, the ruling exhibits that it’s not
acceptable to maintain the established order. The monetary dangers related to future comparable
litigation, and the associated uncertainties of the outcomes underneath the case regulation of
Jenkinson, must be compelling causes for the Council, the
decision-maker inside the CFSP, to behave. Additionally,
what the Council again in 2008 establishing Eulex Kosovo may not have been in a position
to succeed in a consensus on is perhaps acceptable,16 years later.
This may be in accordance with
the view expressed in an educational article, the President of the Normal Court docket,
Marc van der Woude not too long ago:
In mild of
the instances which have appeared earlier than the CJEU on this space, that, “the exact
scope of the safety to which workers are entitled in a neighborhood of regulation,
nonetheless must be outlined. Ideally, it must be aligned on the extent of
safety to which EU employees recurrently employed by the EU establishments can
already aspire.”
(See, M. van der Woude, ‘The
European Union’s Engagement With Questions of Strategic Autonomy and Safety:
Do EU Courts Have a Function to Play?’, (2023), European Overseas Affairs Overview,
Quantity 28, Concern 4, pp. 311–322).
*Antje Kunst is an
worldwide lawyer and a member of Pavocat Chambers advising and representing
people in a variety of issues within the subject of the EU’s Widespread Overseas
Safety Coverage (CFSP) and takes directions from people difficult a
wide selection of selections together with EU employment instances to EU and UN sanctions
earlier than the EU courts and worldwide our bodies.
