H v Council of the European Union, European Commission and European Union Police Mission (EUPM) in Bosnia and Herzegovina.

• Jurisdiction: European Union
• Celex Number: 62014CJ0455
• ECLI: ECLI:EU:C:2016:569
• Date: 19 July 2016
• Docket Number: C-455/14
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de anulación

JUDGMENT OF THE COURT (Grand Chamber)

19 July 2016 ( *1 )

‛Appeal — Common foreign and security policy (CFSP) — Decision 2009/906/CFSP — European Union Police Mission (EUPM) in Bosnia and Herzegovina — National staff member on secondment — Redeployment in a regional office of that mission — Final sentence of the second subparagraph of Article 24(1) TEU — First paragraph of Article 275 TFEU — Actions for annulment and compensation — Jurisdiction of the EU judicature — Article 263 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU)’

In Case C‑455/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 September 2014,

H, residing in Catania (Italy), represented by M. Velardo, avvocato,

appellant,

the other parties to the proceedings being:

Council of the European Union, represented by A. Vitro and F. Naert, acting as Agents,

European Commission, represented by F. Erlbacher, G. Gattinara and J.‑P. Keppenne, acting as Agents, with an address for service in Luxembourg,

European Union Police Mission (EUPM) in Bosnia and Herzegovina, established in Sarajevo (Bosnia and Herzegovina),

defendants at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, M. Ilešič, L. Bay Larsen, T. von Danwitz and C. Lycourgos, Presidents of Chambers, A. Rosas, E. Juhász, A. Borg Barthet, J. Malenovský, E. Levits, J.-C. Bonichot, M. Berger, K. Jürimäe, M. Vilaras and E. Regan (Rapporteur), Judges,

Advocate General: N. Wahl,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 18 January 2016,

after hearing the Opinion of the Advocate General at the sitting on 7 April 2016,

gives the following

Judgment

1 By her appeal, H seeks the setting aside of the order of the General Court of the European Union of 10 July 2014 in H v Council and Others (T‑271/10, not published, ‘the order under appeal’, EU:T:2014:702), by which the General Court dismissed as inadmissible her action seeking, first, annulment of the decision of 7 April 2010, signed by the Chief of Personnel of the European Union Police Mission (EUPM), by which the appellant was redeployed to the post of ‘Criminal Justice Adviser — Prosecutor’ in the regional office of Banja Luka (Bosnia and Herzegovina) and, if needed, of the decision of 30 April 2010, signed by the Head of Mission referred to in Article 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (OJ 2009 L 322, p. 22), confirming the decision of 7 April 2010 and, secondly, an order that the Council, the European Commission and the EUPM pay damages.

Legal context

2 By virtue of Article 1(1) of Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1), an EUPM was established to follow on from the United Nations International Police Task Force in Bosnia and Herzegovina.

3 On the basis of Article 28 TEU and Article 43(2) TEU, the EUPM was extended a number of times, on the last occasion until 31 December 2011 by Decision 2009/906.

4 Article 2 of that decision, headed ‘Mission statement’, provides in its first paragraph: ‘As part of the broader rule of law approach in [Bosnia and Herzegovina] and in the region, [the] EUPM, while retaining residual capacities in the fields of police reform and accountability, shall primarily support the competent Law Enforcement Agencies of [Bosnia and Herzegovina] in the fight against organised crime and corruption, notably focusing on State level Law Enforcement Agencies, on enhancement of the interaction between police and prosecutor and on regional and international cooperation.’

5 Article 4 of that decision, headed ‘Structure of the Mission’, provides in paragraph 1: ‘[The] EUPM shall be structured as follows: (a) main headquarters in Sarajevo, composed of the Head of the Mission and staff as defined in the Operation Plan (OPLAN); (b) four Regional Offices in Sarajevo, Banja Luka, Mostar and Tuzla; … ’

6 Article 5 of that decision, headed ‘Civilian Operation Commander’, provides in paragraphs 2 to 4: ‘2. The Civilian Operation Commander, under the political control and strategic direction of the Political and Security Committee (PSC) and the overall authority of the High Representative of the Union for Foreign Affairs and Security Policy (HR), shall exercise command and control of [the] EUPM at the strategic level. 3. The Civilian Operation Commander shall ensure proper and effective implementation of the Council’s decisions as well as the PSC’s decisions, including by issuing instructions at the strategic level as required to the Head of Mission and providing him with advice and technical support. 4. All seconded staff shall remain under the full command of the national authorities of the seconding State or EU institution concerned. National authorities shall transfer Operational Control (OPCON) of their personnel, teams and units to the Civilian Operation Commander.’

7 Article 6 of Decision 2009/906, headed ‘Head of Mission’, provides in paragraphs 1 to 5: ‘1. The Head of Mission shall assume responsibility for, and exercise command and control of [the] EUPM at theatre level. 2. The Head of Mission shall exercise command and control over personnel, teams and units from contributing States as assigned by the Civilian Operation Commander together with administrative and logistic responsibility including over assets, resources and information placed at the disposal of [the] EUPM. 3. The Head of Mission shall issue instructions to all EUPM staff for the effective conduct of [the] EUPM in theatre, assuming its coordination and day-to-day management, and following the instructions at the strategic level of the Civilian Operation Commander. 4. The Head of Mission shall be responsible for the implementation of [the] EUPM’s budget. For this purpose, the Head of Mission shall sign a contract with the Commission. 5. The Head of Mission shall be responsible for disciplinary control over the staff. For seconded staff, disciplinary action shall be exercised by the national or EU authority concerned.’

8 Article 7 of that decision, headed ‘EUPM staff’, provides: ‘… 2. [The] EUPM shall consist primarily of staff members seconded by Member States or EU institutions. Each Member State or EU institution shall bear the costs related to any of the staff seconded by it, including travel expenses to and from the place of deployment, salaries, medical coverage and allowances other than applicable daily allowances, as well as hardship and risk allowances. 3. International civilian staff and local staff may also be recruited by [the] EUPM, as required, on a contractual basis, if the functions required are not provided by personnel seconded by Member States. … 4. All staff shall abide by the Mission-specific minimum security operating standards and the Mission security plan supporting the EU field security policy. As regards the protection of EU classified information with which staff are entrusted in the course of their duties, all staff shall respect the security principles and minimum standards established by the Council Decision 2001/264/EC of 19 March 2001 adopting [the] Council’s security regulations [OJ 2001 L 101, p. 1] ...’

9 In Article 8 of that decision, headed ‘Status of the Mission and EUPM staff’, paragraph 2 is worded as follows: ‘The State or EU institution having seconded a staff member shall be responsible for answering any claims linked to the secondment, from or concerning the staff member. The State or EU institution in question shall be responsible for bringing any action against the seconded person.’

10 Article 9 of that decision, headed ‘Chain of command’, provides: ‘1. The EUPM shall have a unified chain of command, as a crisis management operation. 2. The PSC shall exercise political control and strategic direction of [the] EUPM under the responsibility of the Council. 3. The Civilian Operation Commander, under the political control and strategic direction of the PSC and the overall authority of the HR, shall be the commander of [the] EUPM at the strategic level and, as such, shall issue instructions to the Head of Mission and provide him with advice and technical support. … 5. The Head of Mission shall exercise command and control of [the] EUPM at theatre level and shall be directly responsible to the Civilian Operation Commander.’

11 Article 10 of Decision 2009/906, headed ‘Political control and strategic direction’, provides in paragraph 1: ‘The PSC shall exercise, under the responsibility of the Council, political control and strategic direction of [the] EUPM. The Council hereby authorises the PSC to take the relevant decisions in accordance with the third subparagraph of Article 38 [TEU]. This authorisation shall include the powers to appoint a Head of Mission, upon a proposal of the HR, and to amend the [Concept of Operations] and the [Operation Plan]. The powers of decision with respect to the objectives and termination of [the] EUPM shall remain vested in the Council.’

12 The first paragraph of Article 91 of the Staff Regulations of Officials of the European Communities, established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (II), p. 30), as amended by Regulation (EU, Euratom) No...