Reflections on the Jenkinson litigation (Case C-46/22 P) – Cyber Tech

Introduction

The Court docket of Justice of the
European Union in its judgment in Jenkinson
v Council and others ( Case C-46/22 P) of 18 January 2024 dismissed the
attraction introduced by Mr. Jenkinson, an Irish nationwide, which has implications for
1000’s of employees serving in worldwide missions of the EU (EU missions)
below the EU’s Frequent Overseas and Safety Coverage (CFSP) in third states.

Mr. Jenkinson’s defeat earlier than the
Court docket of Justice will not be a victory for the defendants: the Council, the
Fee, the European Exterior Motion Service, and Eulex Kosovo. It’s
clearly not of their curiosity that the Normal Court docket’s findings within the
judgement below attraction, Case
T‑602/15 RENV have been upheld. Additionally, it’s a disgrace that
the Court docket of Justice didn’t specific any views on one of many principal claims in
this litigation relating to the Council’s failure to introduce a authorized regime
similar to the Circumstances
of Employment of Different Servants of the European Union (“CEOS”).

As a substitute, the Court docket of Justice
held the associated arguments had been inadmissible or unsubstantiated, with out
providing any views by passing on the deserves of these arguments. This can be a
missed alternative, additionally making an allowance for that the Normal Court docket in Stockdale v Council
and Others (together with the
European Union’s Particular Consultant in Bosnia and Herzegovina) (T‑776/20), has
already made sure findings on this regard.

Applicability of Personal
Worldwide Legislation (Rome I Regulation)

Jenkinson’s declare was that the EU
didn’t envisage that personal worldwide legislation, i.e., an EU Regulation on the
legislation relevant to contractual obligations (the Rome
I Regulation) can be relevant to public legislation contracts reminiscent of these at
concern within the case. (para. 79 of the Judgment) The Court docket of Justice disagreed: ‘since
the Normal Court docket was seised pursuant to an arbitration clause below
Article 272 TFEU’, it was obligatory within the absence of any alternative of the
events of the relevant nationwide substantive legislation for the Court docket to determine it
(para. 88 of the Judgment).

The Court docket of Justice held that
the Normal Court docket was right in taking recourse to the Rome I Regulation, to
achieve this. It didn’t intrude with the Normal Court docket’s dedication that Irish
legislation was the relevant nationwide substantive legislation governing Mr. Jenkinson’s declare
for a requalification of the collection of fixed-term contracts, and that primarily based on
Irish legislation, Mr. Jenkinson’s declare was dismissed (see paras. 123 -163 pp. of the Judgment)

Software of varied
nationwide legal guidelines to employees working for a similar employer

Solely in direction of the top of the
Judgment the Court docket of Justice acknowledged that the applying of varied
nationwide legal guidelines would possibly, in follow, end result for members of Eulex Kosovo’s contract
employees being handled otherwise as regards the rights conferred on them and the
obligations imposed on them in a given state of affairs. (para. 262 of the Judgment)

Nevertheless, it adopted from
the contractual nature of the relationships that, within the absence of a typical
European regime relevant to the members of Eulex Kosovo’s employees, the
substantive guidelines meant to complement the contractual phrases are derived from
a nationwide legislation which can have been recognized below the principles of personal
worldwide legislation. (para. 267 of the Judgment)

It concluded that Mr Jenkinson
had failed to point out that, within the circumstances of the current case, the
software of various substantive guidelines of nationwide legislation to the members of
Eulex Kosovo’s worldwide employees constituted a breach of the precept of
non-discrimination. (para. 271 of the Judgment)

It’s shocking that the Court docket
of Justice, in contrast to the Normal Court docket, expressed issues about that related
disputes of contract employees working in EU missions will probably be determined otherwise
relying on what the recognized nationwide legislation prescribes however then didn’t draw
any penalties from this.

On this respect Stephan Marquardt,
Eszter Orgovan (Counsels for the EEAS in Case C-46/22) and Emmanuelle
Raoult (Counsel for Eulex Kosovo in Case C-46/22) acknowledged, albeit of their
private capability, in a latest educational contribution on the Jenkinson case:

“Having
recourse to the relevant nationwide legislation … carries the danger of diverging
outcomes of comparable disputes, notably relating to doable claims for damages,
the place the circumstances for such claims could differ from one laws to the
different.”

(See Stephan Marquardt, Eszter
Orgovan and Emmanuelle Raoult, in The European Union’s Contribution to
Worldwide Peace and Safety, Chapter 6: ‘The Authorized and
Institutional Nature of EU Civilian Disaster Administration Missions within the Gentle of
the Case Legislation of the Court docket of Justice of the European Union’).

This can be a reliable concern that
the defendants have, and right here, was to the detriment of Mr. Jenkinson. Had the
nationwide legislation of one other state (e.g., one other Member State, or third state)
utilized, the requalification declare of a collection of fixed-term contracts to a
everlasting contract might need succeeded, and the end result in an analogous motion
can be completely different. Not solely that, a declare for damages might need succeeded
too.

Different related instances pending

Totally different outcomes might occur
in future case, together with pending instances, that are at present stayed and concern
related actions involving members of the worldwide employees of Eulex
Kosovo: BL and BM v Council and Others (T‑204/19); QP
and Others v Council and Others (T‑183/21); and RI
and Others v Council and Others (T‑190/21). In relation to a
completely different mission there’s the case of Stockdale v Council
and Others (together with the European Union’s Particular Consultant in
Bosnia and Herzegovina) (T‑776/20). Totally different outcomes might additionally happen in
future related litigation, provided that it’s seemingly not Irish legislation will apply in
these instances. This might additionally result in irreconcilable judgments.

Declare of failure to undertake a
authorized regime similar to the CEOS

In his preliminary software
stretching again to 2017, Mr. Jenkinson sought compensation on the idea that
the Council, Fee, and the EEAS did not adjust to their obligations,
together with to recruit him below a authorized regime similar to the CEOS. 

In his attraction in Case C-46/22 Jenkinson
argued that the Normal Court docket infringed Article 336 TFEU by holding that the
Council had lawfully delegated to the Head of Eulex Kosovo the ability to undertake
the circumstances of employment of worldwide civilian employees. (Article 336 TFEU
supplies ‘The European Parliament and the Council shall, appearing by way of
laws in accordance with the unusual legislative process and after
consulting the opposite establishments involved, lay down the Employees Laws of
Officers of the European Union and the Circumstances of Employment of different
servants of the Union.’)

The infringement of Article 336
TFEU additionally resulted from the very fact, that the circumstances of employment of
worldwide civilian employees had been laid down within the contracts between the Head
of Eulex Kosovo and the members of that mission’s employees, whereas they must
and may have, as a substitute, been determined by the Council. In line with Mr.
Jenkinson, it was for the Council to undertake circumstances of employment for
worldwide civilian employees much like these contained within the CEOS (para. 65
of the Judgment)

The Court docket of Justice famous that
Mr. Jenkinson, earlier than the Normal Court docket, had made submissions relating to the
non-existence of a framework much like the CEOS for hiring employees for these
missions. The Court docket of Justice then took concern with the truth that Mr. Jenkinson
had not sought a declaration from the Normal Court docket that there had been an
infringement of Article 336 TFEU by means of the failure to undertake, on the idea of
that article, a authorized regime relevant to employment conditions reminiscent of that
of Mr Jenkinson (para. 71 of the Judgement). Arguably, he ought to have.

On this context, the Court docket of
Justice rejected Mr. Jenkinson’s grievance within the attraction, that the applying
of the substantive nationwide legislation relevant to his contractual relationship
constituted an infringement of Article 336 TFEU by cause of the absence of a
authorized framework adopted on the idea of that article. In line with the Court docket of
Justice, as a result of the grievance was not raised earlier than the Normal Court docket, it was
consequently discovered each inadmissible and unfounded (paras. 72, 73 and 90 of the
Judgment).

That is important, as any
contract employees working in an EU mission in an analogous future motion might make
submissions the Court docket of Justice thought-about had been lacking and search such
declarations.

Plea of Illegality relating to Joint
Motion 2008/124 establishing the Eulex Kosovo

The Court docket of Justice additionally rejected
Mr. Jenkinson’s arguments relating to a plea of Illegality pursuant to Article
277 TFEU, particularly that Article 9 (3) and Article 10(3) of Joint
Motion 2008/124 infringes Article 336 TFEU (paras. 38, 46 and 47 of the Judgment).
These provisions state that Eulex Kosovo might also recruit worldwide civilian
employees, as required, on a contractual foundation and that the circumstances of
employment and the rights and obligations of such employees are to be laid down in
the contracts between Eulex Kosovo and the members of employees.

The Court docket of Justice referred to
the Normal Court docket’s discovering, that, even if that the appellant had in
reality raised a plea of illegality in opposition to Joint Motion 2008/124, on the idea of
Article 277 TFEU, it needed to be held that that plea was not substantiated. The
Court docket of Justice didn’t intrude with the Normal Court docket’s discovering.

The plea of illegality relating to Joint
Motion 2008/124 could possibly be additional substantiated in future litigation earlier than the
Normal Court docket in an analogous motion with the consequence that the Court docket of
Justice must look at the alleged unlawfulness and whether or not there’s an
infringement of Article 336 TFEU.

Nationwide legislation vs EU employees legislation resolving
the dispute

Mr. Jenkinson additional argued that
the applying of nationwide legislation by the Normal Court docket can be opposite to the
precept of non-discrimination in that it entails three situations of unequal remedy:

–         
first, Mr. Jenkinson being
handled otherwise to the servants of the European Union whose circumstances of
employment are to be decided completely by the Council and the Parliament
pursuant to Article 336 TFEU.

–         
second, the servants of the
European Union, reminiscent of Mr Jenkinson, and nationwide staff ruled by
personal legislation being handled the identical,

–         
third, worldwide employees of
completely different nationalities working for a similar employer below the identical circumstances
and circumstances being handled in a discriminatory method.

 (see para.  95 of the Judgment).  

Once more, this grievance was
rejected by the Court docket of Justice as a brand new grievance and rejected as
inadmissible because it was not raised earlier than the Normal Court docket, and the Court docket of Justice
didn’t make any findings on the substance on this regard (para. 106 of the Judgment).

Additionally, this very compelling
discrimination argument, specifically relating to worldwide employees working
for a similar employer (i.e., worldwide employees to whom the EU Employees
laws apply and worldwide employees to whom nationwide legislation applies), might
be raised by candidates in future litigation earlier than the Normal Court docket.

Conclusion

The truth that the Court docket of
Justice has not interfered with the Normal Court docket making use of nationwide substantive
legislation to the dispute is extremely problematic for the Council and the EEAS for the
causes set out within the above-mentioned educational publication. Sooner or later
subsequently, it’s wholly unpredictable how the nationwide substantive legislation would
govern different related disputes for employees in EU missions. This bears appreciable
monetary dangers for the defendants. It additionally bears dangers of future litigation in
which basic rights issues will probably be raised, specifically a breach of the
precept of equal remedy and the prohibition of discrimination.

The Court docket of Justice refrained
from ruling that the Council’s failure to undertake a authorized regime for employees within the
EU missions similar to the CEOS is illegal which might have obliged the
Council to behave. However, the ruling reveals that it’s not
acceptable to maintain the established order. The monetary dangers related to future related
litigation, and the associated uncertainties of the outcomes below the case legislation of
Jenkinson, must be compelling causes for the Council, the
decision-maker throughout the CFSP, to behave.  Additionally,
what the Council again in 2008 establishing Eulex Kosovo won’t have been ready
to achieve a consensus on could be acceptable,16 years later.

This could be in accordance with
the view expressed in an educational article, the President of the Normal Court docket,
Marc van der Woude not too long ago:

In mild of
the instances which have appeared earlier than the CJEU on this space, that, “the exact
scope of the safety to which workers are entitled in a group of legislation,
nonetheless must be outlined. Ideally, it must be aligned on the extent of
safety to which EU employees frequently employed by the EU establishments can
already aspire.”

(See, M. van der Woude, ‘The
European Union’s Engagement With Questions of Strategic Autonomy and Safety:
Do EU Courts Have a Function to Play?’, (2023), European Overseas Affairs Assessment,
Quantity 28, Situation 4, pp. 311–322).

*Antje Kunst is an
worldwide lawyer and a member of Pavocat Chambers advising and representing
people in a variety of issues within the discipline of the EU’s Frequent Overseas
Safety Coverage (CFSP) and takes directions from people difficult a
wide selection of choices together with EU employment instances to EU and UN sanctions
earlier than the EU courts and worldwide our bodies.