Introduction
On 26 July 2023, the Seventh Chamber of the General Court rendered a judgment in Case T-776/20 Stockdale v Council and Others¹, which many might not have noticed. It has not been appealed and is now a final judgment. However, as will be analysed below, a subsequent judgment of the General Court in the case is still to come.
Facts
Mr. Stockdale is one of the more than 1,000 international staff recruited under the European Union’s Common Foreign and Security Policy (‘CFSP’) and Common Security and Defence Policy (‘CSDP’). International mission staff recruited under the CFSP/CSDP serve in some of the most dangerous parts of the world, such as Iraq, Ukraine, Somalia, Central African Republic, Mali, and Kosovo. These missions are an important instrument for the European Union (‘EU’) to contribute to global security abroad and at home.
Mr. Stockdale is a British national, who held a senior post as Head of Finance and Administration with the EU Special Representative (‘EUSR’) in Bosnia and Herzegovina², from 2006 until 2020, based on 17 successive fixed-term contracts. His contract was terminated by the EUSR because of the withdrawal of the United Kingdom from the EU.
International contracted staff recruited under the CFSP/CSDP who work in EU international missions or, uniquely like Mr. Stockdale, with the EUSR in Bosnia and Herzegovina, regularly serve for several years and sometimes even for decades abroad.
Stockdale v Council and Others is litigation which has similar features to that of the ongoing Jenkinson litigation³, in which the applicant inter alia seeks to have converted his several fixed-term contracts with his employer into a permanent contract (‘reclassification claim’).
Mr Stockdale took action against the Council, the Commission, and the European External Action Service (‘EEA’S) for (i) the failure to adopt a legal regime comparable to the Conditions of Employment of Other Servants of the European Union (‘CEOS’) and (ii) discriminating against him regarding his remuneration, pension rights and related benefits, and the guarantee of subsequent employment. He is seeking to be compensated for the loss that this caused (‘discriminatory treatment claim’).
There are several similar cases pending⁴, albeit directed against a CSDP mission (Eulex Kosovo). Unlike those other applicants with pending cases, including Jenkinson, Mr. Stockdale had no access to the CJEU under an arbitration clause⁵ incorporated in his fixed-term contract. This fact led to elaborate complex findings by the General Court.
Contractual nature of the dispute, and lack of arbitration clause
The General Court took the position that Mr. Stockdale’s challenge of the EUSR’s
termination decision⁶ was one related to a contractual matter. Consequently, it found that a contractual action pursuant to Article 272 TFEU was in principle the correct procedural route, and not an annulment action based on Article 263 TFEU (see paras. 36 and 37 of the judgment). The same was found in relation to the claim for reclassification into a permanent contract. It was found to be contractual in nature (see para. 38 of the judgment).
However, because of the absence of an arbitration clause in the applicant’s fixed-term contracts, the General Court ruled that it did not have jurisdiction pursuant to Article 272 TFEU to review the legality of the termination decision and reclassification claim⁷ (see para. 46 of the judgment).
Given the potential for a dead end, in terms of the applicant being left with the possibility that no judicial review could be afforded, the General Court then referred to the case law of the Court of Justice established in SatCen v KF⁸, which had affirmed the General Court’s underlying judgment in KF v SatCen⁹, and recalled that in the context of a contractual dispute, the General Court in Stockdale could not decline jurisdiction when this meant that there was no judicial remedy for an applicant (see paras. 49 – 51 of the judgment).
The Court’s unsuccessful search for a national court with jurisdiction
To determine whether there was a remedy for Mr. Stockdale, the General Court examined whether it was possible to identify in contractual provisions or failing that, under provisions of EU law, a court of an EU Member State with jurisdiction (see para. 52 of the judgment)
The General Court found that since the provisions in Mr. Stockdale’s contract did not make it possible to identify a court of a Member State with jurisdiction, it needed to turn to EU law and, contrary to the defendants’ view, it established that the Brussels Ia Regulation¹⁰ was applicable. Upon an analysis of the provisions of the Brussels la Regulation, the General Court concluded that no court of a Member State likely had jurisdiction since the applicant’s employer, the EUSR in Bosnia and Herzegovina, and the applicant himself, were domiciled in a third country (see para. 75 of the judgement).
Article 263 TFEU is, absent an Article 272 TFEU clause, the correct procedural route to ensure judicial review
Just as in the KF v SatCen case, the General Court observed that it must not, in the context of a contractual dispute involving the EU, decline the jurisdiction conferred on it by Articles 263 and 268 TFEU, when this would lead, as in the case at hand, to a gap in judicial review. Consequently, it examined whether it has jurisdiction pursuant to Article 263 TFEU, and found regarding the termination decision that it had jurisdiction (see paras. 76 and 78 of the judgement).
As for the reclassification claim, the General Court considered that the applicant had requested the General Court should order the reclassification of his employment contract as a permanent contract, which was effectively asking the General Court to issue directions to the applicant’s employer, the EUSR, which it could not do, and consequently, it held that it had no jurisdiction to rule on that matter (see paras. 84-86 of the judgment).
Who is the defendant regarding the termination decision?
On the pleas of inadmissibility by the multiple defendants, the General Court found that actions for annulment must be brought against the ‘institution, body, office or agency’ of the EU that adopted the act, and secondly, that on matters related to the non-contractual liability of the EU, it has jurisdiction to hear disputes relating to compensation for damage caused by the latter, represented before the General Court by the ‘institution, body, office or agency’, against which the matter giving rise to liability is alleged.
The General Court considered that the termination decision was imputable to the EUSR in Bosnia and Herzegovina. After delving on the concept of ‘EU institution, body, office or agency’, it concluded that the EUSR could be classified as a ‘body, office or agency’ of the EU capable of being a defendant (see paras. 133-139 of the judgment).
Who is the defendant regarding the discriminatory treatment claim?
The General Court then dealt with Mr. Stockdale’s claim for compensation for the damage allegedly suffered for failure to adopt a general regime similar to the CEOS. It considered that any failure to adopt a regime applicable to contract staff in the CFSP/CSDP in general or to the contract staff of the EUSR in Bosnia and Herzegovina in particular, must be imputed to the Council, such that this discriminatory treatment claim was admissible in respect of the Council (see paras. 148, 152, 154, 157, 158 and 162 of the judgment)
The reasoning for this was that the Council is responsible for framing the CFSP/CSDP and for taking the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council. The adoption of a legal regime applicable to contract staff recruited under the CFSP/CSDP fell within the implementation of that policy and was therefore a matter for the Council (see paras. 148, 152, 157 and 158 of the judgment).
Comments
The General Court provided, yet again, a complex analysis on its jurisdiction and the admissibility of actions by a contract staff member recruited under the CFSP/CSDP as in other cases. The case is admittedly different from previous cases as the applicant had no arbitration clause in his contract conferring jurisdiction on the Court pursuant to Article 272 TFEU by which a judicial review gap arose. But given that it decided to assert jurisdiction, in some way, this has to be considered as welcome news for staff working in the EUSR office in Bosnia Herzegovina, as they now have access to the CJEU regarding their disputes with their employer.
Consistent with its previous case law, such as in JF v EUCAP Somalia¹¹, the General Court considered the termination decision following the withdrawal of the UK from the EU to be a contractual matter. What is unfortunate, however, is that it did not accept jurisdiction for the reclassification claim. The interpretation of there being an application made by Mr. Stockdale to issue orders to the EUSR to reclassify the contract appears to be at odds with the CJEU’s rulings in the Jenkinson litigation not describing the claim in that way.
The applicant was seeking to have the series of his fixed-term contracts to be found by the General Court as being a contract of indefinite duration. In Jenkinson, the General Court found it had jurisdiction to rule on a similar reclassification claim, albeit in an Article 272 TFEU context¹².
Mr. Stockdale’s case is now, notwithstanding this July 2023 ‘judgment’, still in progress, as the General Court has only ruled on its jurisdiction and the admissibility, in response to the submissions by the defendants that the case taken by Mr. Stockdale should be deemed inadmissible. The General Court will now ask the remaining two defendants, i.e., the EUSR in Bosnia and Herzegovina regarding the termination decision, and the Council regarding the discriminatory treatment claim, to provide a defence on the substance of the case.
The General Court will then have to review the substance of the case, in light of the pending judgment of the Court of Justice in Case C-46/22 P, Jenkinson¹³. The hope, in this author’s view, is that the Court of Justice will quash the General Court’s ruling in Case T602/15 RENV, Jenkinson, which had found that the compensation claim for discriminatory treatment for failure to adopt a regime like the CEOS, has no merit¹⁴. That is anything but certain however.
Should Mr. Stockdale (and the applicants in the other cases) be unsuccessful before the CJEU, it should be clear that this is no real success for the Council. The applicants’ cases demonstrate that they face enormous and unacceptable problems in obtaining judicial review of their disputes with their employer before the CJEU. Lengthy litigation cases like Jenkinson surely must have deterred staff from seeking judicial review before the CJEU. If there is limited or no judicial review of their grievances, there is less accountability of EU international missions and EUSR offices. This is an undesirable result for all concerned.
The adoption of a legal regime comparable to the CEOS for contracted staff which Mr. Stockdale and his colleagues seek is long overdue also in order to overcome their difficulties to access the CJEU .
Antje Kunst is an international lawyer and barrister of Pavocat Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to the CFSP, ranging from EU employment cases to EU and international sanctions against individuals. 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. She was Counsel for KF in the SatCen case and for JF in the EUCAP Somalia case.
1 Stockdale v Council and Others , T776/20, ECLI:EU:T:2023:422
2 See https://www.eeas.europa.eu/delegations/bosnia-and-herzegovina/internal-organization_en . As at
10 October 2023, the EUD/EUSR office has 151 staff of whom 39 are international staff and 112 are national staff.
3 Case T-602/15, Jenkinson v Council and Others, ECLI:EU: T:2016:660, Case C-43/17 P, Jenkinson v Council and Others, ECLI:EU: C:2018:531. T602/15 RENV, on appeal, EU:T:2021:764 , Case C-46/22 P, Jenkinson v Council and Others, pending. See also, Opinion of Advocate General Richard de la Tour, Case C-46/22 P, Jenkinson v Council and Others, ECLI:EU:C:2023:419
4 See the Cases of contracted staff of Eulex Kosovo T-204/19, BL and BM v Council and Others, pending; Case
T-190/21, RI and 15 others v Council and Others; Case T-183/21, QP and 15 others v Council and Others, pending
5 The arbitration clause provides that ‘disputes arising out of or relating to this contract shall be referred to
the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 [TFEU]’.
6 See para. 27 of the judgement ‘the defendants explained that, having regard to the plea alleging the applicant’s loss of nationality of a Member State, the termination decision was to be regarded as an act of a public authority separable from the contract at issue.’
7 See Article 272 TFEU: ‘The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law.’ See further, Butler, G. (2021). The EU’s Contractual Relations and the Arbitration Clause: Disputes at the Court of Justice of the European Union. European Law Review, 46(3), pp. 345-363.
8 SatCen v KF, C-14/19 P, EU:C:2020:492, paras. 84 and 85
9 KF v SatCen, T286/15, ECLI:EU:T:2018:718
10 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) (‘the Brussels Ia Regulation’).
11 Case T-194/20, JF v EUCAP Somalia, ECLI:EU:T:2022:454.
12 Case C-43/17 P, Jenkinson v Council and Others, ECLI:EU: C:2018:531.
13 Case C-46/22 P, Jenkinson v Council and Others, pending
14 The General Court ruled that “… in the specific context of the CFSP, it is for the Council to decide on the means to be made available to the European Union and on the conditions for the implementation of the decisions it adopts as part of the relevant operational action of the European Union, which include staff resources made available to that action,…” Jenkinson v Council and Others, T602/15 RENV, on appeal, EU:T:2021:764, paragraph 226)
