Montanari v Eucap Sahel Niger (Case T-371/22) – Cyber Tech

Antje Kunst*

* Antje Kunst is an
worldwide lawyer and barrister of a UK based mostly Chambers, specialised in EU
and worldwide public regulation, human rights and litigation. She is admitted to
the Bar of England and Wales, and the Bar of Berlin, advising and representing
people in a variety of issues together with in employees disputes with EU
missions and businesses earlier than the EU Courts. She has appeared in quite a few circumstances
earlier than each the Court docket of Justice and the Normal Court docket, throughout the Court docket of
Justice of the European Union.

Picture credit score: European
Fee, by way of Wikimedia
Commons

Introduction

On 17 July 2024 in Montanari
v Eucap Sahel Niger (Case T-371/22)** the Normal Court docket dominated it has
jurisdiction relating to a declare for compensation introduced by a former employees seconded
by a member state to Eucap Sahel Niger, an EU Mission established below the Frequent
International Safety Coverage (CFSP). This ruling on jurisdiction is  based mostly on an essential Grand Chamber judgment H v
Council et al,  Case C- 455/14 ECLI:EU:C:2016:569.

Associated to the substance of the
case the Normal Court docket utilized by analogy provisions of the EU
Workers Laws  to the dispute. EU
Workers Laws should not relevant to EU employees seconded by a member state to
an EU Mission. Making use of the EU Workers Laws in analogy was based mostly on the
precept of equal therapy. On this respect the Normal Court docket adopted its
personal case regulation, as established in H v
Council in Case T-271/10 RENV II ECLI:EU:T:2020:548.

There’s hardly any case regulation by
the Normal Court docket relating to actions towards EU missions by seconded employees from member
states. Consequently, its judgment in Montanari holds vital
significance, contemplating additionally that almost all of personnel in EU missions are
seconded by member states.

The Montanari case
represents yet one more occasion the place the Normal Court docket needed to deal with a number of
jurisdictional and admissibility points, regardless of well-established case regulation on
sure points. Nonetheless, the Normal Court docket’s detailed response to the
defendant’s plea of lack of jurisdiction and the pleas of inadmissibility will
undoubtedly be helpful for future related circumstances introduced by seconded employees to EU
missions.

The clarifications by the Normal
Court docket will hopefully dissuade EU missions from elevating such pleas within the
future, permitting the Court docket to focus its judicial evaluation on substantive issues,
because it often does in EU civil service circumstances introduced below Article 270 TFEU. Finally,
this could permit the EU judiciary to ship judgments in a lot of these circumstances extra
swiftly, that are EU civil service kind employees disputes, leading to sooner
dispute decision for the events and decreased litigation prices for the
candidates.

The Montanari case provides
priceless insights into how the Normal Court docket will deal with the deserves of comparable
circumstances sooner or later, together with which algorithm it is going to apply and the way it will
interpret these guidelines in relation to seconded employees. This will embody employees’s elementary
rights below the Constitution, the Code of Conduct relevant to all employees serving
in EU missions, seconded or contracted, the operational plan of EU missions
(‘OPLAN’) and provisions of the EU Workers Laws (see the reference to
these guidelines in para. 209 of the Judgment).

Additional the Normal Court docket’s judgment
makes clear that it’s going to apply the case-law particular to the EU civil service
having related employees disputes to employees seconded to EU Missions (see para. 224
of the Judgment).

It’s extremely fascinating for the
Normal Court docket’s judicial evaluation course of to ultimately align carefully with its
evaluation of circumstances introduced by civil service litigation pursuant to Article 270
TFEU. Such alignment would guarantee consistency, predictability, and equity in
the adjudication of disputes involving employees seconded by member states, thereby
strengthening the authorized framework governing EU missions.

The unsuccessful plea of lack
of jurisdiction – no criticism referring to the secondment

Eucap Sahel Niger argued that the
Normal Court docket doesn’t have jurisdiction to listen to the motion as a result of the
applicant carried out the duties of political adviser throughout the Mission as an
professional seconded by the Italian Ministry of International Affairs, in accordance with
Article 7(2) of Council
Choice 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in
Niger. This provision foresees that it’s for the seconding Member State to
reply to any criticism referring to the secondment to an EU Mission, and for
complainants to deliver any motion towards the Member State. However the applicant’s
criticism didn’t relate to his secondment as such – so the place was related
to that of H, the applicant within the Grand Chamber case H v Council et al,
who was a former seconded member of employees of the EU Police Mission in Bosnia who
was complaining about her subsequent redeployment after being seconded.

The applicant’s criticism within the
case at hand was about alleged psychological harassment by the Mission’s
management, which is a matter for the EU Courts. The issue was that for workers
seconded to EU missions, there was no authorized foundation for the EU Courts to evaluation
employees administration acts of EU missions – like Article 270 TFEU, which might
in any other case apply to employees below the EU Workers Laws.

The Grand Chamber Judgment in H v
Council et al acknowledged that H, a prosecutor and her colleagues
seconded to EU missions, confronted a spot of judicial safety. The Court docket of
Justice rightly determined to step in to shut this hole to make sure a “full
system of authorized cures and procedures”. It decided that it has
jurisdiction for actions by seconded employees difficult acts of EU missions
pursuant to Article 263 TFEU and in search of compensation based mostly on Article 268 and
340 TFEU from them, considering its position below Article 19(1) TEU to
be certain that ‘the regulation is noticed’ and the elemental proper of efficient judicial
safety pursuant to Article 47 of the Constitution of Basic Rights. This assured
that the acts of EU missions involving seconded employees don’t escape judicial
evaluation and making certain compliance with EU regulation.

After 2016 no seconded employees to
an EU Mission has ever introduced a criticism based mostly on the Grand Chamber’s essential
ruling, Mr. Montanari is the primary applicant. Nevertheless, the landmark ruling of
the Grand Chamber has been utilized by analogy in subsequent circumstances (e.g., SatCen
v KF, Case C‑14/19 P, ECLI:EU:C:2020:492 and mentioned extensively
in literature as for instance right here
and right here.

Within the case at hand the Normal Court docket
delved into the Mission’s jurisdictional arguments however dismissed them based mostly on
the H v Council et al judgment, accepting jurisdiction pursuant to
Articles 263, and 268 and 340 TFEU, ‘considering Article 19(1) TEU and Article
47 of the Constitution’ (see paras. 40-55 of the 
Judgment).

Moreover, it dismissed the
Mission’s place that the nationwide courts, right here the Italian courts, have
jurisdiction.  It agreed with the
applicant that his declare earlier than the EU Court docket was not about his secondment by
the Italian Authorities however about alleged misconduct by the EU mission, alleged psychological
harassment by the Mission’s management. That’s the reason as in H’s case nationwide
courts shouldn’t have jurisdiction.

Authorized curiosity for annulment
of rejection of request for compensation

The applicant sought below
Articles 268 and 340 TFEU compensation for alleged harm ensuing from
psychological harassment and violations of the correct to good administration and
the responsibility to have regard to the welfare of officers.  Equally he sought the annulment of the
Mission’s choice rejecting his declare for compensation based mostly on Article 263
TFEU.

The Normal Court docket clarified,
based mostly on its case regulation, that claims in search of annulment of the refusal of an EU
physique to grant compensation which a claimant additionally asserts below Articles 268
TFEU and 340 TFEU, should be dismissed as inadmissible. That’s the reason the Court docket held
that the applicant had not justified a authorized curiosity in in search of, as well as
to his claims for compensation, the annulment of the Mission’s choice
rejecting his declare for compensation. Accordingly, the appliance for
annulment was dismissed as inadmissible. (paras. 58-66 of the Judgment)

Unsuccessful plea of
inadmissibility that sure acts should not attributable to the Mission

Mr. Montanari alleged not solely that
the EU Mission took selections in relation to him which constituted psychological
harassment, but in addition that the Mission’s Civilian Operations Commander (see
explanations on his or her position right here)
had breached the correct to good administration and the responsibility to have regard for
the welfare of officers when coping with his reviews of psychological
harassment which he had made towards 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 weren’t attributable to it.

The Normal Court docket rejected this
and located that the applicant was proper to deliver his motion for damages towards
the Mission additionally relating to the failings of the Civilian Operations Commander.

This can be a appropriate discovering because the
Civilian Operations Commander workouts command and management of the Mission at
the strategic stage, and he ensures at theatre stage the right and efficient
implementation of the Council’s selections and people of the Political and
Safety Committee (PSC), see additionally right here.

Moreover, the Code of Conduct relevant
to seconded employees throughout EU missions establishes a selected criticism mechanism
directed to the Civilian Operations Commander for allegations of misconduct
towards a Head of Mission and their Deputy. On this context, it may be mentioned
that the actions or inactions of the Civilian Operations Commander successfully
characterize the actions and inactions of the Mission itself. (see paras. 67-87 of
the Judgment)

Applicability of EU Workers Laws
to disputes between secondees and EU missions

After having concluded that the
declare for compensation was admissible, the Normal Court docket went on to evaluation in
an elaborate method the deserves of the declare, analyzing intimately the
applicant’s allegations of psychological harassment and the failings of the
mission on this regard. (see paras.111-321 of the Judgement)

The Normal Court docket emphasised
importantly that employees seconded to EU Missions by Member States, though not
ruled by the EU Workers Laws pursuant to Article 270 TFEU, are
nonetheless topic to the identical guidelines as these relevant to employees seconded by
the EU establishments, i.e. the EU Workers Laws. (para. 117 of the Judgment).
 It rightly dominated that the applicant should
profit from the identical stage and the identical guidelines of safety towards
psychological harassment.

‘By advantage of
the precept of equal therapy, the Normal Court docket is required to use to the
applicant’s state of affairs, by analogy, the provisions of the Workers Laws
referring to psychological harassment and the practical safety of officers
and non permanent or contract employees and the case-law based mostly on these provisions’ (Para. 125 of the Judgement)

Additionally for the responsibility to have regard
for the welfare of officers  the Normal Court docket reiterated that

‘the precept
of equal therapy requires software by analogy to the case of nationwide
employees seconded to a physique or company akin to a Mission of
sure provisions of the Workers Laws and the case-law particular to the
matter of the European Union civil service, the place such employees are positioned in a
state of affairs similar to that of employees topic to the Workers Laws and the
distinction in state of affairs between the 2 can not objectively justify the previous
not benefiting from the identical stage and guidelines of safety because the latter when
finishing up their duties within the theatre of operations.’ (Para. 224 of the
Judgement)

Following a radical examination
of the information, reviewing the alleged infringements of Montanari’s rights as set
out inter alia within the EU Workers Laws and the EU Constitution (e.g., associated to
psychological harassment), considering the OPLAN and the Code of
Conduct in gentle of its settled case regulation on EU employees circumstances, the Normal Court docket
partially dominated in favour of the applicant. It decided the matter because it
would have performed in a typical EU civil service case, awarding him €6,000 for
non-material damages.

Conclusion

The Montanari Judgment
serves as a important reminder to the best ranges of the European Union (EU)
Missions, together with the Civilian Operations Commander that there’s a court docket
earlier than they will, and may, be held accountable for any actions or inactions
that contravene EU regulation. It highlights the EU judiciary’s position in making certain
compliance and accountability inside EU Missions.

Furthermore, the Montanari Judgment
opens the door for the potential judicial evaluation of any employees misconduct by or
towards a seconded employees member as set out within the Code of Conduct while in
the efficiency of their duties within the ‘theatre of operations’. Such case regulation
ensures that EU Missions and their employees function throughout the bounds of EU regulation,
reinforcing the ideas of transparency and accountability which can be
elementary to the efficient functioning of EU missions.

**Citations of findings of the
Normal Court docket are unofficial translations.