Antje Kunst*
* Antje Kunst is an
international lawyer and barrister of a UK based Chambers, specialised in EU
and international public law, human rights and litigation. She is admitted to
the Bar of England and Wales, and the Bar of Berlin, advising and representing
individuals in a wide range of matters including in staff disputes with EU
missions and agencies before the EU Courts. She has appeared in numerous cases
before both the Court of Justice and the General Court, within the Court of
Justice of the European Union.
Photo credit: European
Commission, via Wikimedia
Commons
Introduction
On 17 July 2024 in Montanari
v Eucap Sahel Niger (Case T-371/22)** the General Court ruled it has
jurisdiction regarding a claim for compensation brought by a former staff seconded
by a member state to Eucap Sahel Niger, an EU Mission established under the Common
Foreign Security Policy (CFSP). This ruling on jurisdiction is based on an important Grand Chamber judgment H v
Council et al, Case C- 455/14 ECLI:EU:C:2016:569.
Related to the substance of the
case the General Court applied by analogy provisions of the EU
Staff Regulations to the dispute. EU
Staff Regulations are not applicable to EU staff seconded by a member state to
an EU Mission. Applying the EU Staff Regulations in analogy was based on the
principle of equal treatment. In this respect the General Court followed its
own case law, as established in H v
Council in Case T-271/10 RENV II ECLI:EU:T:2020:548.
There is hardly any case law by
the General Court regarding actions against EU missions by seconded staff from member
states. Consequently, its judgment in Montanari holds significant
importance, considering also that the majority of personnel in EU missions are
seconded by member states.
The Montanari case
represents yet another instance where the General Court had to address multiple
jurisdictional and admissibility issues, despite well-established case law on
certain aspects. Nonetheless, the General Court’s detailed response to the
defendant’s plea of lack of jurisdiction and the pleas of inadmissibility will
undoubtedly be useful for future similar cases brought by seconded staff to EU
missions.
The clarifications by the General
Court will hopefully dissuade EU missions from raising such pleas in the
future, allowing the Court to focus its judicial review on substantive matters,
as it regularly does in EU civil service cases brought under Article 270 TFEU. Ultimately,
this would allow the EU judiciary to deliver judgments in these types of cases more
swiftly, which are EU civil service type staff disputes, resulting in faster
dispute resolution for the parties and reduced litigation costs for the
applicants.
The Montanari case offers
valuable insights into how the General Court will address the merits of similar
cases in the future, including which set of rules it will apply and how it will
interpret those rules in relation to seconded staff. This may include staff’s fundamental
rights under the Charter, the Code of Conduct applicable to all staff serving
in EU missions, seconded or contracted, the operational plan of EU missions
(‘OPLAN’) and provisions of the EU Staff Regulations (see the reference to
these rules in para. 209 of the Judgment).
Further the General Court’s judgment
makes clear that it will apply the case-law specific to the EU civil service
having similar staff disputes to staff seconded to EU Missions (see para. 224
of the Judgment).
It is highly desirable for the
General Court’s judicial review process to eventually align closely with its
review of cases brought by civil service litigation pursuant to Article 270
TFEU. Such alignment would ensure consistency, predictability, and fairness in
the adjudication of disputes involving staff seconded by member states, thereby
strengthening the legal framework governing EU missions.
The unsuccessful plea of lack
of jurisdiction – no complaint relating to the secondment
Eucap Sahel Niger argued that the
General Court does not have jurisdiction to hear the action because the
applicant performed the duties of political adviser within the Mission as an
expert seconded by the Italian Ministry of Foreign Affairs, in accordance with
Article 7(2) of Council
Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in
Niger. This provision foresees that it is for the seconding Member State to
respond to any complaint relating to the secondment to an EU Mission, and for
complainants to bring any action against the Member State. But the applicant’s
complaint did not relate to his secondment as such – so the position was similar
to that of H, the applicant in the Grand Chamber case H v Council et al,
who was a former seconded member of staff of the EU Police Mission in Bosnia who
was complaining about her subsequent redeployment after being seconded.
The applicant’s complaint in the
case at hand was about alleged psychological harassment by the Mission’s
leadership, which is a matter for the EU Courts. The problem was that for staff
seconded to EU missions, there was no legal basis for the EU Courts to review
staff management acts of EU missions – like Article 270 TFEU, which would
otherwise apply to staff under the EU Staff Regulations.
The Grand Chamber Judgment in H v
Council et al recognized that H, a prosecutor and her colleagues
seconded to EU missions, faced a gap of judicial protection. The Court of
Justice rightly decided to step in to close this gap to ensure a “complete
system of legal remedies and procedures”. It determined that it has
jurisdiction for actions by seconded staff challenging acts of EU missions
pursuant to Article 263 TFEU and seeking compensation based on Article 268 and
340 TFEU from them, taking into account its role under Article 19(1) TEU to
ensure that ‘the law is observed’ and the fundamental right of effective judicial
protection pursuant to Article 47 of the Charter of Fundamental Rights. This guaranteed
that the acts of EU missions involving seconded staff do not escape judicial
review and ensuring compliance with EU law.
After 2016 no seconded staff to
an EU Mission has ever brought a complaint based on the Grand Chamber’s important
ruling, Mr. Montanari is the first applicant. However, the landmark ruling of
the Grand Chamber has been applied by analogy in subsequent cases (e.g., SatCen
v KF, Case C‑14/19 P, ECLI:EU:C:2020:492 and discussed extensively
in literature as for example here
and here.
In the case at hand the General Court
delved into the Mission’s jurisdictional arguments but dismissed them based on
the H v Council et al judgment, accepting jurisdiction pursuant to
Articles 263, and 268 and 340 TFEU, ‘taking into account Article 19(1) TEU and Article
47 of the Charter’ (see paras. 40-55 of the
Judgment).
Furthermore, it dismissed the
Mission’s position that the national courts, here the Italian courts, have
jurisdiction. It agreed with the
applicant that his claim before the EU Court was not about his secondment by
the Italian Government but about alleged misconduct by the EU mission, alleged psychological
harassment by the Mission’s leadership. That is why as in H’s case national
courts do not have jurisdiction.
Legal interest for annulment
of rejection of request for compensation
The applicant sought under
Articles 268 and 340 TFEU compensation for alleged damage resulting from
psychological harassment and violations of the right to good administration and
the duty to have regard to the welfare of officials. Equally he sought the annulment of the
Mission’s decision rejecting his claim for compensation based on Article 263
TFEU.
The General Court clarified,
based on its case law, that claims seeking annulment of the refusal of an EU
body to grant compensation which a claimant also asserts under Articles 268
TFEU and 340 TFEU, must be dismissed as inadmissible. That is why the Court held
that the applicant had not justified a legal interest in seeking, in addition
to his claims for compensation, the annulment of the Mission’s decision
rejecting his claim for compensation. Accordingly, the application for
annulment was dismissed as inadmissible. (paras. 58-66 of the Judgment)
Unsuccessful plea of
inadmissibility that certain acts are not attributable to the Mission
Mr. Montanari alleged not only that
the EU Mission took decisions in relation to him which constituted psychological
harassment, but also that the Mission’s Civilian Operations Commander (see
explanations on his or her role here)
had breached the right to good administration and the duty to have regard for
the welfare of officials when dealing with his reports of psychological
harassment which he had made against the Head and Deputy Head of Mission. The
Mission’s response to this was that Mr. Montanari had complained of actions or
inactions of the Civil Operations Commander which were not attributable to it.
The General Court rejected this
and found that the applicant was right to bring his action for damages against
the Mission also regarding the failings of the Civilian Operations Commander.
This is a correct finding as the
Civilian Operations Commander exercises command and control of the Mission at
the strategic level, and he ensures at theatre level the proper and effective
implementation of the Council’s decisions and those of the Political and
Security Committee (PSC), see also here.
Additionally, the Code of Conduct applicable
to seconded staff across EU missions establishes a specific complaint mechanism
directed to the Civilian Operations Commander for allegations of misconduct
against a Head of Mission and their Deputy. In this context, it can be said
that the actions or inactions of the Civilian Operations Commander effectively
represent the actions and inactions of the Mission itself. (see paras. 67-87 of
the Judgment)
Applicability of EU Staff Regulations
to disputes between secondees and EU missions
After having concluded that the
claim for compensation was admissible, the General Court went on to review in
an elaborate manner the merits of the claim, examining in detail the
applicant’s allegations of psychological harassment and the failings of the
mission in this regard. (see paras.111-321 of the Judgement)
The General Court emphasized
importantly that staff seconded to EU Missions by Member States, although not
governed by the EU Staff Regulations pursuant to Article 270 TFEU, are
nonetheless subject to the same rules as those applicable to staff seconded by
the EU institutions, i.e. the EU Staff Regulations. (para. 117 of the Judgment).
It rightly ruled that the applicant must
benefit from the same level and the same rules of protection against
psychological harassment.
‘By virtue of
the principle of equal treatment, the General Court is required to apply to the
applicant’s situation, by analogy, the provisions of the Staff Regulations
relating to psychological harassment and the functional protection of officials
and temporary or contract staff and the case-law based on those provisions’ (Para. 125 of the Judgement)
Also for the duty to have regard
for the welfare of officials the General Court reiterated that
‘the principle
of equal treatment requires application by analogy to the case of national
staff seconded to a body or agency such as a Mission of
certain provisions of the Staff Regulations and the case-law specific to the
matter of the European Union civil service, where such staff are placed in a
situation comparable to that of staff subject to the Staff Regulations and the
difference in situation between the two cannot objectively justify the former
not benefiting from the same level and rules of protection as the latter when
carrying out their duties in the theatre of operations.’ (Para. 224 of the
Judgement)
Following a thorough examination
of the facts, reviewing the alleged infringements of Montanari’s rights as set
out inter alia in the EU Staff Regulations and the EU Charter (e.g., related to
psychological harassment), taking into account the OPLAN and the Code of
Conduct in light of its settled case law on EU staff cases, the General Court
partially ruled in favour of the applicant. It determined the matter as it
would have done in a typical EU civil service case, awarding him €6,000 for
non-material damages.
Conclusion
The Montanari Judgment
serves as a critical reminder to the highest levels of the European Union (EU)
Missions, including the Civilian Operations Commander that there is a court
before they can, and should, be held accountable for any actions or inactions
that contravene EU law. It highlights the EU judiciary’s role in ensuring
compliance and accountability within EU Missions.
Moreover, the Montanari Judgment
opens the door for the potential judicial review of any staff misconduct by or
against a seconded staff member as set out in the Code of Conduct whilst in
the performance of their duties in the ‘theatre of operations’. Such case law
ensures that EU Missions and their staff operate within the bounds of EU law,
reinforcing the principles of transparency and accountability that are
fundamental to the effective functioning of EU missions.
**Citations of findings of the
General Court are unofficial translations.
