Opinion of Advocate General Tanchev delivered on 5 March 2020.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:176
• Date: 05 March 2020

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 5 March 2020(1)

Case C‑730/18 P

SC

v

Eulex Kosovo

(Appeal — Arbitration clause — Contract staff of EU international missions — Common Foreign and Security Policy — Jurisdiction of the EU Courts — Contractual dispute — Admissibility — Concept of act separable from its contractual context — Partial reclassification of the action — Action for annulment — Contractual liability — Non-contractual liability — Articles 263, 268, 272 and 340 TFEU)

I. Introduction

1. This case arises out of a dispute between SC, a former contract staff member, and the European Union Rule of Law Mission in Kosovo (‘Eulex Kosovo’) which is an EU international mission within the Common Foreign and Security Policy (‘CFSP’).

2. Relying on the clause conferring jurisdiction on the EU Courts contained in the employment contract between SC and Eulex Kosovo, SC brought an action before the General Court of the European Union on the basis of Article 272 TFEU, challenging the legality of decisions taken by that mission that SC did not pass an internal competition and her employment contract was not renewed, and seeking damages based on the EU’s contractual and non-contractual liability under Article 340 TFEU.

3. The present appeal is brought by SC against the order of the General Court of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586, ‘the order under appeal’) by which the General Court dismissed SC’s action. It raises three key issues concerning, first, the Court’s jurisdiction under Article 272 TFEU in the context of the CFSP; second, the distinction between Articles 263 and 272 TFEU; and third, the possibility to reclassify a contractual action based on Article 272 TFEU as an action for annulment based on Article 263 TFEU.

4. This appeal comes in tandem with some other cases presently before the Court which raise similar, although not identical, issues bearing on the distinction between Articles 263 and 272 TFEU, and which are also concerned with ensuring effective judicial protection for applicants in disputes with EU institutions and bodies and providing clarity about the appropriate procedural routes to follow in that regard. (2)

5. Fundamentally, the present case invites the Court to develop its case-law on the application of Article 272 TFEU and the relationship of that provision with Article 263 TFEU within the EU system of remedies laid down in the Treaties. This case also has considerable practical importance to EU external action and the functioning of EU international missions around the world.

II. Background to the proceedings

6. The background to the proceedings, as set out in paragraphs 1 to 15 of the order under appeal, can be summarised as follows for the purposes of the present case. It is necessary to provide some preliminary observations on CSDP Missions and Eulex Kosovo (Section A) and the contractual relationship between SC and Eulex Kosovo (Section B), before turning to the events leading to the proceedings before the General Court (Section C).

A. CSDP Missions and Eulex Kosovo

7. In the field of the CFSP under Title V of the TEU, the Common Security and Defence Policy (‘CSDP’) (3) provides the Union with an operational capacity to deploy civilian and military missions outside the EU to fulfil a range of tasks, including conflict prevention and peacekeeping. (4) CSDP missions ‘aim at responding to external conflicts and crises when they arise, enhance the capacities of partners and ultimately protect the European Union and its citizens through external action’. (5) According to recent documentation, there are currently 16 ongoing CSDP missions — 10 civilian missions and 6 military missions — staffed by over 5 000 persons worldwide. (6)

8. The legal status of CSDP missions and their staff differ from other entities within the framework of EU external action. (7) In particular, CSDP missions are linked to the European External Action Service (‘EEAS’), (8) which is the EU’s diplomatic service and helps the EU High Representative for Foreign Affairs and Security Policy (‘HR’) carry out the CFSP. Yet, staff of CSDP missions are not all part of the EEAS, whose staff falls within the Staff Regulations of Officials of the European Union (‘Staff Regulations’) and the Conditions of Employment of Other Servants (‘CEOS’). (9) Moreover, CSDP missions are not EU delegations established under Article 221 TFEU to represent the Union, and whose actions are in principle imputed to the delegating EU institution. (10) Nor are CSDP missions formally considered EU agencies in the CSDP, such as the European Defence Agency and the European Union Satellite Centre which have their own staff regulations or whose staff are governed by the Staff Regulations and the CEOS. (11)

9. Eulex Kosovo is a CSDP mission established by Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, (12) as last amended by Council Decision (CFSP) 2018/856 of 8 June 2018. (13) Joint Action 2008/124 has been extended several times, and Eulex Kosovo’s current mandate runs until 14 June 2020. Eulex Kosovo is the largest civilian mission launched under the CSDP to date. (14)

10. According to Article 2 of Joint Action 2008/124, Eulex Kosovo’s overall mission is to ‘support selected Kosovo rule of law institutions on their path towards increased effectiveness, sustainability, multi-ethnicity and accountability, free from political interference and in full compliance with international human rights standards and best European practices … with the aim of handing over remaining tasks to other long-term EU instruments and phasing out residual executive functions.’

11. Under Articles 7 and 8 of Joint Action 2008/124, the Civilian Operation Commander exercises command and control of Eulex Kosovo at strategic level, whereas the Head of Mission exercises command and control of Eulex Kosovo at theatre level, assuming its coordination and day-to-day management. (15)

12. Article 9(2) of Joint Action 2008/124 provides that Eulex Kosovo is to consist primarily of staff seconded by Member States or EU institutions. Each Member State or EU institution bears the costs related to any staff seconded by it, including certain travel expenses and allowances, salaries and medical coverage. (16)

13. Under Article 9(3) of Joint Action 2008/124, as amended, (17) international civilian staff and local staff may also be recruited by Eulex Kosovo, as required, on a contractual basis, if the functions required are not provided by personnel seconded by Member States. (18)

14. Article 10(3) of Joint Action 2008/124, as amended, (19) provides that the conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between Eulex Kosovo and the staff member concerned.

15. Article 15a of Joint Action 2008/124, which was inserted by Council Decision 2014/349 of 12 June 2014, (20) states that Eulex Kosovo shall have the capacity to procure services and supplies, to enter into contracts and administrative arrangements, to employ staff, to hold bank accounts, to acquire and dispose of assets and to discharge its liabilities, and to be a party to legal proceedings, as required in order to implement this Joint Action.

B. Contractual relationship between SC and Eulex Kosovo

16. SC is a former member of the international contract staff of Eulex Kosovo.

17. SC was employed by Eulex Kosovo as a prosecutor under five consecutive fixed-term employment contracts: (1) from 4 January 2014 to 14 June 2014; (2) from 15 June 2014 to 14 October 2014; (3) from 15 October 2014 to 14 June 2015; (4) from 15 June 2015 to 14 June 2016; and (5) from 15 June 2016 to 14 November 2016.

18. The first and second employment contracts state, in Article 21, that disputes arising out of or relating to those contracts shall be referred to the jurisdiction of the courts of Brussels, Belgium. The third, fourth and fifth employment contracts provide, in Article 21, that disputes arising out of or relating to those contracts shall be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 TFEU.

19. The employment contracts contain clauses stating that the Eulex Kosovo Operation Plan (‘OPLAN’), Concept of Operations (‘CONOPS’), Code of Conduct (‘COC’) and Standard Operating Procedures (‘SOP’) are an integral part of those contracts. (21) These are core planning and organisational documents for carrying out Eulex Kosovo’s mandate, and are not generally available to the public. (22)

20. The employment contracts also contain provisions stating that, by signing the contract, the employee confirms acceptance of, and compliance with, the terms and principles set out in the contract and its annexes, and that in case of conflict, the employment contract prevails over, inter alia, the OPLAN, CONOPS, COC and SOP. (23)

21. The employment contracts further state, in Article 20, that any dispute arising between the parties ‘as regards the interpretation of performance’ of those contracts shall be referred to an arbitration body, and this shall be without prejudice to referral of the dispute to the Court of Justice of the European Union.

C. Events leading to the proceedings before the General Court

22. On 28 April 2014, SC lodged an appeal with Eulex Kosovo against her first performance evaluation report of 14 April 2014 (‘the PER’). In that appeal, SC challenged the assessments set out in that report made by her supervisors, including her line manager, Eulex Kosovo Chief Prosecutor Ms Novotna, along with the irregularities in the evaluation process generally. By decision of 12 August 2014, the Head of Mission upheld the appeal and annulled the PER.

23. By letter of 26 June 2014, the Eulex Kosovo Head of the Human Resources Office (‘the HHRO’) notified SC that an internal...