Liam Jenkinson v Council of the European Union and Others.

• Jurisdiction: European Union
• Celex Number: 62017CJ0043
• ECLI: ECLI:EU:C:2018:531
• Court: Court of Justice (European Union)
• Date: 05 July 2018
• Docket Number: C-43/17
• Procedure Type: Recurso por responsabilidad

JUDGMENT OF THE COURT (First Chamber)

5 July 2018 ( *1 )

(Appeal — Arbitration clause — Staff of international missions of the European Union — Jurisdiction to rule on disputes concerning employment contracts — Consecutive fixed-term contracts — Arbitration clauses conferring jurisdiction, in the final contract, on the Courts of the European Union, and, in the previous contracts, on the Brussels (Belgium) courts — Decision not to renew the final contract — Claim that all the contractual relationships should be recategorised as a ‘contract of indefinite duration’ — Claims for compensation for unfair dismissal — Contractual relationships prior to the final contract to be taken into account — Jurisdiction of the General Court of the European Union)

In Case C‑43/17 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 January 2017,

Liam Jenkinson, residing in Killarney (Ireland), represented by N. de Montigny and J.-N. Louis, avocats,

appellant,

the other parties to the proceedings being:

Council of the European Union, represented by A. Vitro and M. Bishop, acting as Agents,

European Commission, represented initially by G. Gattinara, L. Radu Bouyon and S. Bartelt, acting as Agents, and subsequently by G. Gattinara, A. Aresu and L. Radu Bouyon, acting as Agents,

European External Action Service (EEAS), represented by S. Marquardt, R. Spac and E. Orgován, acting as Agents,

Eulex Kosovo, established in Pristina (Kosovo), represented by M. Vicente Hernandez, avocate, and subsequently by E. Raoult, avocate,

defendants at first instance,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, C.G. Fernlund, J.-C. Bonichot, A. Arabadjiev (Rapporteur) and E. Regan, Judges,

Advocate General: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 17 January 2018,

after hearing the Opinion of the Advocate General at the sitting on 11 April 2018,

gives the following

Judgment

1 By his appeal, Mr Liam Jenkinson seeks to have set aside the order of the General Court of the European Union of 9 November 2016, Jenkinson v Council and Others (T‑602/15, ‘the order under appeal’, EU:T:2016:660), by which that court rejected his action, involving, as its principal claim, an application based on Article 272 TFEU seeking (i) recategorisation of all Mr Jenkinson’s contractual relationships as an ‘employment contract of an indefinite duration’ and compensation for the loss allegedly suffered by him as a result of the abusive use of consecutive fixed-term contracts and unfair dismissal, and (ii) a declaration that the Council of the European Union, the European Commission and the European External Action Service (EEAS) discriminated against him and, as a consequence, an order that they pay him compensation, and, in the alternative, a claim based on the non-contractual liability of the European institutions.

Background to the dispute

2 The background to the dispute is set out as follows in paragraphs 1 to 6 of the order under appeal: ‘1 The applicant, Mr Liam Jenkinson, an Irish national, was first employed from 20 August 1994 to 5 June 2002, under a series of fixed-term contracts (FTCs), by the European Union Monitoring Mission, which was created by Council Joint Action 2000/811/CFSP of 22 December 2000 on the European Union Monitoring Mission (OJ 2000 L 328, p. 53). 2 He was then employed from 17 June 2002 to 31 December 2009, under a series of FTCs, by the European Union Police Mission, which was created by Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1). 3 Finally, the applicant was employed by the Eulex Kosovo Mission, from 5 April 2010 to 14 November 2014, by way of 11 consecutive FTCs. The Eulex Kosovo Mission was created by Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo (OJ 2008 L 42, p. 92). The Joint Action has been extended several times. It was extended until 14 June 2016 by Council Decision 2014/349/CFSP of 12 June 2014 amending Joint Action 2008/124 (OJ 2014 L 174, p. 42), applicable to the facts of the present case. 4 Most recently, the Joint Action was extended until 14 June 2018 by Council Decision (CFSP) 2016/947 of 14 June 2016, amending Joint Action 2008/124 (OJ 2016 L 157, p. 26). 5 During the course of his employment contract covering the period 15 June to 14 October 2014, the applicant was informed by letter of 26 June 2014 from the Head of the Eulex Kosovo Mission that his assignment would end and his contract not be renewed after 14 November 2014. 6 A final FTC was entered into between [the] Eulex Kosovo [Mission] and the applicant for the period from 15 October to 14 November 2014 (‘the final FTC’) and was not renewed. Article 21 of the final FTC provides for the Court of Justice of the European Union to have jurisdiction over any dispute relating to the contract, on the basis of Article 272 TFEU.’

The procedure before the General Court and the order under appeal

3 By application lodged at the Registry of the General Court on 23 October 2015, the appellant brought an action against the Council, the Commission, the EEAS and the Eulex Kosovo Mission, by which he claimed that that court should: – as a principal claim, recategorise his contractual relationship as an ‘employment contract of an indefinite duration’, find that the defendants had infringed their contractual obligations, in particular, the obligation to give prior notice of termination of a contract of indefinite duration, find that his dismissal was unfair, and, in consequence, order the defendants to pay compensation for the loss suffered as a result of the abusive use of consecutive FTCs, the infringement of the obligation to give prior notice, and unfair dismissal; – as a principal claim, declare that the Council, the Commission and the EEAS discriminated against him during the period when he was engaged to work for the international missions of the European Union (‘the Missions’), in so far as concerns his remuneration, his pension rights and other benefits, declare that he should have been recruited as a member of the temporary staff of one of the institutions and, in consequence, order them to pay compensation, and – in the alternative, order the defendants, on the basis of non-contractual liability, to compensate the appellant for the harm resulting from their failure to comply with their obligations.

4 By the order under appeal, the General Court found that it manifestly lacked jurisdiction to rule on the two principal heads of claim and rejected the head of claim put forward in the alternative as manifestly inadmissible. It therefore dismissed the action in its entirety and ordered Mr Jenkinson to pay the costs.

Forms of order sought by the parties

5 Mr Jenkinson claims that the Court should: – set aside the order under appeal; – uphold the application, and – order the defendants to pay the costs of the proceedings at first instance and on appeal.

6 The Council and Commission contend that the appeal should be dismissed and Mr Jenkins ordered to pay the costs.

7 The EEAS and the Eulex Kosovo Mission contend that the Court should: – declare that it does not have jurisdiction to rule on the appeal; – in the alternative, dismiss the appeal, and – order Mr Jenkinson to pay the costs.

8 Moreover, the Council and the EEAS contend that, in the event that the appeal is considered well founded, the Court should dismiss the appeal and the main action as inadmissible, in so far as they are concerned.

The appeal

9 By his appeal, Mr Jenkinson requests the Court, in his first head of claim, to set aside the order under appeal and, in his second head of claim, to uphold his application.

10 The EEAS and the Eulex Kosovo Mission contend that the Court does not have jurisdiction to examine the appeal. Furthermore, the Eulex Kosovo Mission submits that the appeal is inadmissible in its entirety, whereas the Commission claims that only the second head of claim in the appeal is inadmissible.

The jurisdiction of the Court

11 The EEAS and the Eulex Kosovo Mission submit, in essence, that the Court does not have jurisdiction to examine the appeal, as Mr Jenkinson bases his arguments on employment contracts prior to the final FTC and, under the arbitration clauses in those contracts, only the Brussels courts have jurisdiction to adjudicate on such a dispute. Moreover, it is claimed, Mr Jenkinson has, in the meantime, brought an action that is essentially the same before the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels) (Belgium).

12 It should be noted in that regard that the second subparagraph of Article 256(1) TFEU and Article 56 of the Statute of the Court of Justice of the European Union provide that the latter has jurisdiction to hear appeals against the decisions given by the General Court referred to in the first subparagraph of that Article 256(1) TFEU. It is common ground that the order under appeal is one of the decisions referred to in the latter provision.

13 Furthermore, it is clear that the question as to whether the Courts of the European Union have jurisdiction to...