1.

The Court has already had to hear and determine the action brought by Mr Liam Jenkinson, seeking the re-categorisation as an employment contract of an indefinite duration ( 2 ) of the consecutive fixed-term contracts ( 3 ) of employment under which he discharged his duties for almost 20 years in three international missions established or extended by the European Union ( 4 ) in the context of its common foreign and security policy (CFSP), including, most recently, the Eulex Kosovo Mission, ( 5 ) as well as compensation for contractual and non-contractual damages.

2.

By judgment of 5 July 2018, Jenkinson v Council and Others, ( 6 ) the Court set aside the order of the General Court of the European Union of 9 November 2016, Jenkinson v Council and Others, ( 7 ) in which the latter had found, on the basis of Article 272 TFEU, that its jurisdiction was limited to the final FTC designating it as having jurisdiction and could not be extended to all the other FTCs concluded in connection with the three missions which provided for the jurisdiction of the Belgian courts.

3.

This appeal lodged by Mr Jenkinson against the judgment of 10 November 2021, Jenkinson v Council and Others, ( 8 ) which dismissed his action, offers the Court the opportunity to clarify the scope of its decision on the jurisdiction of the General Court where it is designated by an arbitration clause, in the light of the subject matter of the dispute, and the legal rules to which a contractual employment relationship is subject where the law applicable to that relationship was not chosen by the parties.

4.

In this employment law dispute, which is not an isolated case, as is shown by the proceedings pending before the General Court ( 9 ) or those which may be brought before the Belgian courts as jurisdiction is conferred on them in most of the contracts at issue, ( 10 ) it will also be necessary to determine under which conditions account must be taken of the specific context in which the employment was carried out, namely that of missions under the CFSP and, in particular, the Eulex Kosovo Mission, upon which legal capacity was bestowed from 12 June 2014.

5.

My analysis of the appeal will therefore focus primarily on questions relating to the jurisdiction of the General Court, its assessment of the legal rules applicable to contracts concluded specifically with that mission and the scope of the review which the Court will have to conduct into the General Court’s application of the national law in the context of this dispute based on Article 272 TFEU.

6.

Article 1 of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, ( 11 ) as amended up until Council Decision 2014/349/CFSP of 12 June 2014, ( 12 ) entitled ‘The mission’, provides, in paragraph 1 thereof:

‘The EU hereby establishes an European Union Rule of Law Mission in Kosovo, Eulex Kosovo (hereinafter Eulex Kosovo).’

7.

Article 2 of that joint action, entitled ‘Mission Statement’, provides:

‘Eulex Kosovo shall assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service, ensuring that these institutions are free from political interference and adhering to internationally recognised standards and European best practices.

Eulex Kosovo, in full cooperation with the European Commission Assistance Programmes, shall fulfil its mandate through monitoring, mentoring and advising, while retaining certain executive responsibilities.’

8.

Article 9 of the Joint Action, entitled ‘Staff’, states:

‘1.   The numbers and competence of the Eulex Kosovo staff shall be consistent with its Mission Statement set out in Article 2, the tasks set out in Article 3 and the structure of Eulex Kosovo set out in Article 6.

2.   Eulex Kosovo shall consist primarily of staff seconded by Member States or [European Union] institutions. Each Member State or [European Union] 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 daily allowances and applicable risks and hardship allowances.

3.   International civilian staff and local staff may also be recruited by Eulex Kosovo, as required, on a contractual basis, if the functions required are not provided by personnel seconded by Member States. Exceptionally, in duly justified cases, where no qualified applications from Member States are available, nationals from participating third States may be recruited on a contractual basis, as appropriate. [ ( 13 )]

…’

9.

Article 10 of the same joint action, entitled ‘Status of Eulex Kosovo and of its staff’, provides, in paragraph 3 thereof:

‘The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between Eulex Kosovo and the staff member concerned. [ ( 14 )]’

10.

Article 3(5) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) ( 15 ) provides:

‘The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles 10, 11 and 13.’

11.

Article 8 of that regulation provides:

‘1.   An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.

2.   To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.

3.   Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated.

4.   Where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply.’

12.

The background to the dispute is summarised in paragraphs 1 to 5 of the judgment under appeal:

‘1. The applicant, Mr … Jenkinson, an Irish national, was first employed from 20 August 1994 to 5 June 2002 under various consecutive [FTCs] by the Monitor Mission to Yugoslavia, established by a Memorandum of Understanding signed at Belgrade on 13 July 1991, then known as the “European Community Monitoring Mission (ECMM)”, subsequently renamed the “European Union Monitoring Mission (EUMM)” by Council Joint Action 2000/811/CFSP of 22 December 2000 on the European Union Monitoring Mission (OJ 2000 L 328, p. 53). The mandate of the ECMM, and thereafter of the EUMM, was extended on several occasions, most recently by Council Joint Action 2006/867/CFSP of 30 November 2006 extending and amending the mandate of the European Union Monitoring Mission (EUMM) (OJ 2006 L 335, p. 48) until 31 December 2007.

2. The applicant was then employed from 17 June 2002 to 31 December 2009 under consecutive FTCs by the European Union Police Mission in Bosnia and Herzegovina (“EUPM”), established by Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1). The mandate of the EUPM was extended on several occasions, most recently by Council Decision 2011/781/CFSP of 1 December 2011 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) (OJ 2011 L 319, p. 51) until 30 June 2012.

3. Lastly, the applicant was employed by the Eulex Kosovo Mission from 5 April 2010 to 14 November 2014 under 11 consecutive FTCs, the first 9 of which were concluded with the Head of the Eulex Kosovo Mission and the last 2 with the mission itself (“the 11 FTCs”). [ ( 16 )] The Eulex Kosovo Mission was established by … Joint Action [2008/124]. It was extended on several occasions, in particular until 14 June 2016 by … Decision [2014/349].

4. During the tenth FTC, concluded with the Eulex Kosovo Mission, covering the period from 15 June to 14 October 2014, the applicant was informed by letter of 26 June 2014 from the Head of the Eulex Kosovo Mission … that, following the decision to restructure the Eulex Kosovo Mission taken by the Member States on 24 June 2014, the post he had held since being hired by the mission would be abolished with effect from 14 November 2014 and that, consequently, his contract would not be renewed beyond that date. The eleventh and final FTC was thus concluded between the applicant and the Eulex Kosovo Mission for the period from 15 October to 14 November 2014 (“the final FTC”).

5. With the exception of the final FTC, all the FTCs concluded by the applicant concerning his work in the Eulex Kosovo Mission contained a … clause conferring jurisdiction ( 17 ) on the Belgian courts. Article 21 of the final FTC contained an arbitration clause conferring jurisdiction on the EU Courts over any dispute relating to the contract, on the basis of Article 272 TFEU. [ ( 18 )]’ ( 19 )

13.

By application lodged at the Registry of the General Court on 23 October 2015, Mr Jenkinson brought an action concerning, primarily, a claim, based on Article 272 TFEU, seeking, first, the re-categorisation of all his contractual relationships as a CID and compensation for the loss suffered by him as a result of the abusive use of consecutive FTCs and of his unfair dismissal and, second, a declaration that the Council of the European Union, the European Commission and the European External Action Service (EEAS) had treated him in a discriminatory manner and an order requiring them to pay compensation accordingly, and, in the alternative, a claim based on the non-contractual liability of the European institutions. ( 20 )

14.

By order of 9 November 2016, Jenkinson v Council and Others, ( 21 ) the General Court stated that it manifestly lacked jurisdiction to rule on the two principal heads of claim and rejected, as manifestly inadmissible, the alternative head of claim. It therefore dismissed the action in its entirety and ordered Mr Jenkinson to pay the costs.

15.

By the judgment in Jenkinson I, the Court upheld the appeal lodged by Mr Jenkinson, referred the case back to the General Court and reserved the costs.

16.

The Court held that the General Court erred in law in stating, on the basis of Article 272 TFEU, that it manifestly lacked jurisdiction to rule on the principal heads of claim. It found that the General Court’s jurisdiction could be extended to the previous employment contracts conferring jurisdiction on the Brussels courts, on the condition that the application brought by Mr Jenkinson contains claims arising under the final FTC or which are directly connected with the obligations arising from that contract. In that regard, the Court held that the claims made by Mr Jenkinson require account to be taken of the effects of the previous employment contracts.

17.

After citing the claims made by Mr Jenkinson in paragraph 31 of the judgment under appeal, the General Court reproduced, in paragraph 38, the summary of those claims taken from the judgment in Jenkinson I, ( 22 ) in which it is stated that, ‘by application lodged at the Registry of the General Court on 23 October 2015, the appellant brought an action against the Council, the Commission, the EEAS and the Eulex Kosovo Mission, by which he claimed that [the General Court] should:

18.

By the judgment under appeal, the General Court dismissed the action in its entirety.

19.

As a preliminary point, the Court observed, in paragraph 45 of the judgment under appeal, that the action was not brought under Article 263 TFEU. ( 27 ) In paragraph 62 of that judgment, the Court took the view that, as regards the first head of claim, submitted as a principal claim, that action was brought under the arbitration clause conferring jurisdiction on the EU Courts contained in the final FTC and that, as regards the second head of claim, also submitted as a principal claim, and the third head of claim, submitted in the alternative, the action is an action for non-contractual liability brought under Articles 268 and 340 TFEU. ( 28 )

20.

In paragraph 70 of the judgment under appeal, the General Court stated that it had jurisdiction to examine the three heads of claim.

21.

With regard to the second objection challenging the admissibility of the claims ( 29 )raised by the defendants, the General Court recalled that the defendants contest that the facts, decisions and possible irregularities relied on by the applicant are attributable to them, ( 30 ) because (in the case of the Council, the EEAS and the Commission) they had no contractual relationship with the applicant or (in the case of Eulex Kosovo) it had no such relationship prior to 5 April 2010. The General Court took the view, in paragraphs 75, 76 and 78 of the judgment under appeal, that, in essence, that objection of inadmissibility is directed not against the action as a whole but only against the first head of claim, and that it is after the examination of the merits of that head of claim that it might be necessary, in the light of the law applicable to the dispute, to determine to what extent the demands made by the applicant under that head of claim are well founded vis-à-vis each of the defendants.

22.

With regard to the first head of claim for re-categorisation of the contractual relationship as a CID, the General Court, first, observed that the applicant is referring to all the consecutive FTCs which he concluded in connection with his work in the three missions. ( 31 )

23.

Next, the General Court took the view that it was necessary to examine, ‘first of all’, the applicant’s claim based on the 11 FTCs concluded in relation to his work in the Eulex Kosovo Mission because, if that claim were dismissed, its dismissal would have a decisive effect vis-à-vis the examination of the series of FTCs concluded in the context of the first two missions. ( 32 ) Lastly, it found that, in the absence of specific rules laid down by the EU legislature ( 33 ) and of acts adopted following the establishment of the Eulex Kosovo Mission, ( 34 ) it must resolve the dispute on the basis of the substantive rules of the national law applicable and ensuring in particular, by means of an interpretation consistent with EU law, compliance with the general principle prohibiting abuse of rights arising from the use of consecutive fixed-term contracts or relationships. ( 35 )

24.

In order to determine the law applicable to the dispute, the General Court decided to ‘use’ the Rome I Regulation and, in particular, Article 8 of that regulation regarding individual employment contracts. ( 36 ) So far as concerns the first nine FTCs, the General Court found, in paragraph 119 of the judgment under appeal, that the contracting parties chose, for the purpose of Article 8(1) of the Rome I Regulation, Irish law as the applicable national employment law, by means of a reference to Communication C(2009) 9502. ( 37 )

25.

With regard to the tenth and eleventh FTCs, the General Court held, in paragraph 130 of that judgment, that those contracts were more closely connected, within the meaning of Article 8(4) of that regulation, with Irish law.

26.

On completion of its analysis, contained in paragraphs 152 to 186 of the judgment under appeal, of the application of the provisions of Irish law, ( 38 ) in the light of the case-law of the Court, to the facts of the case in question, the General Court held, in paragraphs 184, 187 and 188 of that judgment, that there were objective grounds, linked in particular to the temporary and ever-changing nature of the Eulex Kosovo Mission’s mandate, which justified offering to Mr Jenkinson the conclusion of the first FTCs as well as a final FTC for a period of one month, and that no abuse was committed in so doing.

27.

In paragraph 188 of the judgment under appeal, the General Court therefore dismissed all the claims for re-categorisation of the FTCs as a CID, including those relating to the FTCs concluded between Mr Jenkinson and the first two missions. ( 39 )

28.

In the third sentence of paragraph 209 of the judgment under appeal, the General Court found that the claim for re-categorisation of the FTCs as a CID on the basis of an infringement of the requirements regarding the provision of information to the employee laid down in Section 8(2) of the 2003 Act ( 40 ) could not be upheld. Even though such infringement is duly claimed by Mr Jenkinson in the present case, ( 41 ) Irish law does not provide for such re-categorisation on the basis of just and equitable inferences. ( 42 )

29.

In paragraph 215 of the judgment under appeal, the General Court dismissed as unfounded the claim for compensation in respect of all contractual loss. It thus observed, first, that the claim for compensation in respect of such loss made in the context of the first head of claim depends on the re-categorisation as a CID of the FTCs allegedly concluded abusively and in breach of the contractual formalities under Belgian or Irish law. ( 43 ) Second, it recalled that those arguments raised by the applicant had been rejected. ( 44 )

30.

In paragraph 216 of that judgment, the General Court took the view that, given the dismissal of the first head of claim, there was no need to examine the objection of inadmissibility alleging that the facts, decisions and possible irregularities relied on by the applicant are not, in whole or in part, attributable to the defendants. ( 45 )

31.

With regard to the second head of claim, relating to the claim for compensation in respect of non-contractual loss, also submitted as a principal claim, the General Court recalled that that head of claim is based on Articles 268 and 340 TFEU and seeks compensation from the Council, the Commission and the EEAS for non-contractual loss which Mr Jenkinson allegedly sustained as a result of the recruitment policy they adopted for international civilian staff in the missions. ( 46 ) In paragraph 237 of the judgment under appeal, the General Court found, without ruling on the inadmissibility raised by the Commission and the EEAS, ( 47 ) that Mr Jenkinson had not proven that there was a sufficiently serious breach of a rule of law intended to confer rights on him. In particular, it held, in paragraph 228 of that judgment, that it was on the basis of the provisions of primary law relating to the CFSP that the legislative provisions concerning the Eulex Kosovo Mission expressly established a legal basis allowing the Head of Mission, then the mission itself, to recruit international civilian staff on a contractual basis. In addition, in paragraph 230 of the judgment, the General Court ruled out discrimination between members of the contract staff arising from the application of different national laws. In paragraphs 231 and 233 of the same judgment, it also dismissed the arguments concerning unequal treatment in comparison with staff subject to the Conditions of Employment of Other Servants of the European Union, ( 48 ) finding that Mr Jenkinson had failed to demonstrate that, under EU law, he had a right to be employed in accordance with the rules of the CEOS (or equivalent). ( 49 )

32.

With regard to the third head of claim, relating to the claim for non-contractual compensation, submitted in the alternative, it was dismissed by the General Court as manifestly inadmissible on the ground that it lacks clarity, ( 50 ) thereby upholding the defendants’ first objection of inadmissibility. ( 51 )

33.

By his appeal, Mr Jenkinson claims that the Court should, primarily, set aside the judgment under appeal and dispose of the case and, in the alternative, refer the case back to the General Court. He also claims that the defendants should be ordered to pay the costs of both sets of proceedings.

34.

In support of his appeal, Mr Jenkinson puts forward six grounds of appeal, alleging (i) misinterpretation of the claims and pleas in that the General Court, inter alia, excluded from its review all principal claims based on a plea of illegality; (ii) an error of law in that the General Court exclusively analysed Mr Jenkinson’s last post in the Eulex Kosovo Mission; (iii) several errors of law made by the General Court in the examination of the merits of the demands made by him under the first head of claim; (iv) misapplication of the principle of equal treatment between staff members of the Union and infringement of Article 336 TFEU by excluding all non-contractual liability of the defendants; (v) errors of law made by the General Court by its rejection of the third head of claim as inadmissible; and (vi) an error in the statement of reasons concerning the costs.

35.

The Council, the Commission, the EEAS and Eulex Kosovo contend that the Court should dismiss the appeal and order Mr Jenkinson to pay the costs. ( 52 ) The first three defendants argue, primarily, that the action at first instance should be declared inadmissible. Eulex Kosovo contends that the appeal is partially unfounded and partially inadmissible.

36.

At the Court’s request, this Opinion will consider only the second ground of appeal and the first, third and fourth parts of the third ground of appeal.

37.

In view of the wealth of arguments put forward in support of this appeal, I consider it appropriate to recall the limits within which analysis of those arguments must be contained.

38.

First, in accordance with the second subparagraph of Article 256(1) TFEU, appeals before the Court of Justice against decisions given by the General Court are to concern ‘points of law only’. However, the Court of Justice can carry out a review in relation to certain factual grounds where a distortion of the facts or a substantive inaccuracy is pleaded or where there is a failure to state reasons. ( 53 )

39.

Second, with regard to the General Court’s decision to join the objections of inadmissibility raised by the defendants to the substance, ( 54 ) that decision cannot be examined unless a cross-appeal is lodged. ( 55 ) In those circumstances, the admissibility of the action brought against the defendants would have to be examined only if the judgment under appeal were set aside. Nevertheless, account should be taken, first, of the judgment in Eulex Kosovo ( 56 ) as regards the first head of claim, inasmuch as it is directed against Eulex Kosovo. Second, consideration must also be given to the difference in subject matter between that head of claim and the two others, in so far as the latter are based on Articles 268 and 340 TFEU on the non-contractual liability of, inter alia, European Union institutions. ( 57 )

40.

Third, in view of the requirements laid down in Article 169(2) of the Rules of Procedure of the Court, ( 58 ) it is necessary to set out those elements which are now common ground. This is the case as regards the characterisation of part of Mr Jenkinson’s action. Indeed, the finding made by the General Court, in paragraphs 41, 44 and 45 of the judgment under appeal, that the applicant has not brought an action for annulment of any measure whatsoever, an action based on Article 263 TFEU, ( 59 ) is in no way contested. The same is true of the finding that the applicant does not dispute the justification for the non-renewal of his contract and does not request his reinstatement. ( 60 ) In those circumstances, any criticism alleging the illegality of a measure, which presupposes, in addition, that that criticism has been put forward and substantiated by factual and legal arguments, is ineffective. ( 61 ) Furthermore, I note that criticism is not made in relation to paragraphs 140 to 146 and 198 to 200 of the judgment under appeal, which concern the substantive rules of Irish law applicable in the present case.

41.

Fourth, the lack of criticism of the General Court’s presentation of the demands made by Mr Jenkinson under the first head of claim, contained in paragraphs 31, 38 ( 62 ) and 54 of the judgment under appeal, as well as in the first sentence of paragraph 77, paragraph 85, the second sentence of paragraph 197 and the second sentence of paragraph 209 of that judgment, according to which the applicant’s claims for compensation are based on the re-categorisation of the FTCs as a CID or are made further to that re-categorisation, supports the view that only if the decision relating to a matter of employment law is set aside will compensation for the alleged contractual losses be examined. ( 63 )

42.

It is therefore on the basis of all the foregoing that I will undertake my analysis of the grounds of appeal relating to the jurisdiction of the General Court and to the steps taken by the Court of its own motion in the context of Article 272 TFEU, under which the first head of claim was submitted.

43.

By his second ground of appeal, Mr Jenkinson submits that the General Court was wrong to consider, in paragraph 82 of the judgment under appeal, that the final contract was just one of the 11 FTCs signed with Eulex Kosovo Mission and not part of a longer contractual relationship. In Mr Jenkinson’s view, the General Court erred in law by finding that it had to establish the legality of those 11 FTCs before that of the first two series of FTCs, in which it was not designated as the court having jurisdiction.

44.

He claims that the jurisdiction of the General Court extends to all the FTCs for the purpose of ruling on the claim in the light of national law, and that that law required that the FTCs be examined in chronological order. In Mr Jenkinson’s opinion, the grounds stated in the judgment under appeal concerning the exclusion of the first 30 FTCs are insufficient, since they are based neither on Irish nor EU law. In addition, the failure to analyse the concept of ‘continuous employment with one or more employers’ or ‘associated employers’, within the meaning of Irish law, assuming it is applicable, negates the effect of paragraph 77 of the judgment under appeal and the interdependence between the question of identifying the employer (the European Union in the case of all the contracts) and the existence of a continuous employment relationship within the European Union, on the one hand, and the analysis of the re-categorisation of the FTCs as a CID, on the other. In that regard, in his reply, the appellant states that the Eulex Kosovo Mission does not have the same power of employment under the Treaties as the European Union ( 64 ) and that, in the case of the first two missions, the European Union bears liability because those missions have ceased to exist, as could be the case with a liquidator in the event of a company being wound up.

45.

The Council contends that the General Court did not err in law, having regard to paragraph 50 of the judgment in Jenkinson I and to the case-law cited in paragraphs 38 to 40 and 44 of that judgment, in taking the view, based on a strict interpretation of its jurisdiction, that only the 11 FTCs signed with the Eulex Kosovo Mission are directly connected with the final FTC designating the Courts of the European Union. It adds that the provisions of Irish law cannot be relied on against the General Court with view to determining its jurisdiction under Article 272 TFEU.

46.

The Commission states, first of all, that, in the absence of an arbitration clause conferring jurisdiction on the Court to rule on the FTCs concluded in the context of Mr Jenkinson’s work in the first two missions, the General Court was obliged, in accordance with paragraph 47 of the judgment in Jenkinson I, to begin by analysing the FTCs concluded with Eulex Kosovo with a view to assessing whether a single, continuous relationship existed, before deciding whether that relationship could be extended to the first two series of FTCs. Next, it is the Commission’s view that Mr Jenkinson’s arguments regarding paragraphs 77 and 232 of the judgment under appeal are based on a misreading of those paragraphs. Finally, the institution states that the appellant’s argument based on the concept of ‘associated employers’ is at odds with the argument which he raised in his earlier appeal, namely that the first two missions no longer exist as such. The Commission also contends that the arguments relating to the power of employment of the European Union, some of which are new arguments, are entirely unfounded in relation to Eulex Kosovo, since the judgment in Eulex Kosovo, and, by extension, to the other missions.

47.

The EEAS is of the view that this dispute is concerned solely with the contract concluded between Mr Jenkinson and the Eulex Kosovo Mission. In its opinion, this is apparent from paragraphs 47 and 48 of the judgment in Jenkinson I. The fact that Mr Jenkinson had been employed by two other missions is irrelevant. It is clear that, inasmuch as different missions are concerned, there is no continuity of employment.

48.

Eulex Kosovo considers that the attempt to establish a single, continuous employment relationship does not withstand examination of Mr Jenkinson’s three distinct periods of employment, and that Mr Jenkinson has raised, for the first time at the appeal stage, an argument regarding the concept of ‘associated employers’ in connection with the European Union. The Mission states, in addition, that any argument contradicting Decision 2014/349, ( 65 ) which affords it the legal capacity to conclude contracts and to be a party to judicial proceedings, and at odds with the judgment in Eulex Kosovo, which concerns its liability for all events occurring prior to 12 June 2014, is unfounded.

49.

The criticism raised by the second ground of appeal relates to paragraph 82 of the judgment under appeal, which reads thus: ‘therefore, since the final FTC is one of the 11 FTCs, which relate to the applicant’s work in the Eulex Kosovo Mission, it is appropriate, first of all, to examine the applicant’s claim that the 11 FTCs should be re-categorised as a single CID. If that claim is dismissed, the Court will not have jurisdiction to examine the claim for re-categorisation as a CID of the first two series of FTCs concluded by the applicant in the context of his work in the first two missions, referred to in paragraphs 1 and 2 above, [ ( 66 )] since those FTCs did not contain an arbitration clause conferring jurisdiction on the EU Courts’.

50.

Mr Jenkinson contests, in essence, the jurisdiction of the General Court being restricted to the final series of FTCs relating to his work in the Eulex Kosovo Mission, whereas the application of national law should have led the General Court to take into account all the contracts concluded, regardless of the mission to which he had been assigned, in order to give a ruling on the first head of claim.

51.

In the first place, I note that the reasoning attacked appears in the section of the judgment under appeal given over to examining the substance of the ‘claim for re-categorisation of the consecutive FTCs as a single CID’, ( 67 ) after the General Court ruled on its jurisdiction in paragraphs 64 to 66 of that judgment, as it reiterates in paragraph 81 of the judgment. In paragraphs 64 to 66 of the judgment under appeal, ( 68 ) the General Court reproduced the wording of the Court’s decision in the judgment in Jenkinson I and found that its jurisdiction covers all claims arising from the final FTC or which are directly connected with the obligations flowing from that contract.

52.

In the second place, with regard to the scope of that decision, I would observe that:

53.

It is therefore my view, first, that it follows specifically from the last ground set out above that the Court paid particular attention to the subject matter of the claim, namely the re-categorisation of various FTCs as a CID, in so far as such a claim requires that a single court is designated as the court having jurisdiction to examine those contracts as a whole. Second, in the absence of any reservation set out by the Court, it cannot be inferred from the reference to the judgment of 1 July 1982, Porta v Commission, ( 74 ) in paragraph 44 of the judgment in Jenkinson I, that the Court intended to restrict its decision to the final series of FTCs concluded in connection with the Eulex Kosovo Mission or that certain criteria – such as a contractual relationship with a single employer, the non-interruption of that relationship, or even the unwillingness to bring the dispute before a particular court – are decisive factors. ( 75 )

54.

I am therefore of the view that the General Court was right to find that it had jurisdiction to examine the demands made under the first head of claim, taking into account all the employment contracts. ( 76 )

55.

In the third place, it must be observed that, when examining the substance of claims, a court performs a role separate from that performed by it when ruling on its jurisdiction; those two roles have distinct bases. ( 77 ) The judgment in Jenkinson I, which concerns the jurisdiction of the General Court, therefore has no bearing in this regard.

56.

For the purpose of assessing the merits of the claim for re-categorisation as a CID of the FTCs concluded in connection with three different missions, over three non-continuous periods of time, the General Court was entitled, in my view, without erring in law, to decide to begin its assessment with the series of 11 FTCs, including the contract containing the arbitration clause designating it as the court having jurisdiction, having made the point that only the contractual link between the Eulex Kosovo Mission and the applicant was uncontested ( 78 ) and having found that the assessment of the involvement of each of the defendants in the employment law proceedings brought before it was dependent upon the applicable law. ( 79 )

57.

Similarly, it is my view that the General Court, hearing the claims for re-categorisation of various FTCs and for compensation for contractual losses directed against several defendants without distinction between them according to their capacity vis-à-vis the conclusion of the various contracts, ( 80 ) could legitimately undertake a two-stage analysis. ( 81 ) Given the referral of the matter to it on the basis of Article 272 TFEU and the facts and evidence submitted for its assessment by Mr Jenkinson, the General Court was entitled to establish, as a preliminary stage, on the basis of the contractual relationship with Eulex Kosovo, the criteria for determining the law governing the FTCs concluded in the context of that mission, in order to be able to rule on the claim, applying the conditions laid down in that law. ( 82 )

58.

However, within the scope of the examination thus defined, in paragraph 82 of the judgment under appeal, the General Court wrongly held, in my view, given the subject matter of the claim submitted for its assessment, that it would not be required to take into consideration all the contracts if the claim was rejected solely on the basis of the contracts between Mr Jenkinson and Eulex Kosovo.

59.

First, the criteria established to determine the law governing the final series of FTCs had to be applied to the contracts connected with the first two missions. Second, only on completion of the second stage of its analysis, which concentrated on setting out the conditions laid down in that law, on the basis of which the claim for re-categorisation can be granted or not, was it possible to justify the impact of that assessment concerning the FTCs concluded in the context of one mission on those concluded in connection with each of the other two missions, taking into consideration the limits of the applicant’s arguments in that regard. Third, a ground cannot be based on the jurisdiction of the General Court, lest it contradict those stated in the judgment in Jenkinson I, with which the General Court complied. ( 83 ) Specifically, the fact that its jurisdiction is based on claims arising from the final FTC does not prohibit the General Court from finding, on the merits, that there are no connections between the various FTCs which would allow them to be re-categorised as a CID.

60.

However, it would appear to me that the ground set out in paragraph 82 of the judgment under appeal must be read in the light of those related to the application of the law governing the employment contracts, ( 84 ) and that that premature conclusion reached by the General Court cannot cause the judgment to be set aside.

61.

I therefore propose that the Court hold that, even though the General Court’s decision on its jurisdiction was flawed, it correctly held that the grounds for dismissal of the claim for re-categorisation as a CID of the FTCs concluded in connection with the Eulex Kosovo Mission, laid down in the law applicable, which fell to it to determine, could be extended to the FTCs connected with the two other missions, which would have the effect of rejecting the claim relating to all the contractual relationships. ( 85 ) The second ground of appeal cannot therefore be upheld.

62.

By the first part of the third ground of appeal, Mr Jenkinson criticises the General Court’s failure to draw conclusions from the finding, made in paragraph 92 of the judgment under appeal, that the ‘European institutions’ failed to comply with Article 336 TFEU.

63.

He also criticises the General Court for failing to examine, if necessary of its own motion, the question of the inapplicability of Communication C(2009) 9502, even though it found that the conditions of employment included in that communication were not decided upon in accordance with Article 336 TFEU. The same is true as regards the question of a breach of the Financial Regulation.

64.

In addition, Mr Jenkinson points to the lack of rules on the determination of the substantive law applicable to a contract concluded in the name of the European Union, even though, first, all staff of the European Union are required to conclude such a contract and that contract is identifiable under a provision of the CEOS and identical for all categories of employees. In addition, in paragraph 95 of the judgment under appeal, the General Court expressly identified the applicant as one of the ‘other servants of the European Union’ in excluding the application of the European Code of Good Administrative Behaviour of the European Ombudsman. Second, the international contract staff of the body created by Eulex Kosovo, the Registry-Kosovo Specialist Chambers, is subject to a single body of substantive rules of law.

65.

Furthermore, he claims that the EU legislature did not envisage the Rome I Regulation being applicable to a dispute governed by public law, such as that in the present case. That regulation applies to disputes relating to contracts governed by private law, even though, by combining Articles 270 and 336 TFEU, that legislature provided that the Court of Justice of the European Union has jurisdiction to ascertain compliance with the obligations arising from the employment of a member of staff of the European Union.

66.

The Commission, the EEAS and Eulex Kosovo contend that the arguments alleging a potential infringement of Article 336 TFEU and the inapplicability of Communication C(2009) 9502 were not presented at first instance. The Council and the Commission are of the view that, in paragraph 92 of the judgment under appeal, the General Court simply held that the EU legislature had not adopted rules regulating the conditions of employment of the contract staff of the missions.

67.

The Council and the EEAS contend that the institutions of the European Union were not required to adopt such rules. The provisions of primary law specifically relating to the CFSP which form the basis of the legislative provisions concerning the Eulex Kosovo Mission constitute a legal basis allowing the Head of that mission, and then the Mission itself, to recruit international civilian staff on a contractual basis in line with the Mission’s needs. In that regard, the Commission observes that the Court held, in the judgment in Eulex Kosovo, that the Eulex Mission bears exclusive liability.

68.

Eulex Kosovo states that the reference to the ‘Kosovo Specialist Chambers’ is ineffective, because that judicial body is not comparable to a diplomatic mission such as Eulex Kosovo.

69.

With regard to the Financial Regulation, the Council contends that the General Court was entitled to refrain from analysing it, since it is unconnected with the question as to whether the Staff Regulations of Officials of the European Union or the CEOS had to apply to the contractual relationship between Mr Jenkinson and the Eulex Kosovo Mission. The Commission states that the reliance on that regulation lacks precision and that the General Court is not obliged to raise of its own motion an illegality such as that relied on by the applicant. ( 86 )

70.

With regard to the complaint alleging the inapplicability of the Rome I Regulation, the Commission argues that that complaint is manifestly unfounded because, first, Mr Jenkinson does not contest paragraphs 103 and 104 of the judgment under appeal and, second, the complaint is inconsistent with other parts of his application and his appeal. Eulex Kosovo considers this argument to be inadmissible because it is raised belatedly and it is at odds with his initial claim, by which he sought the application of Belgian law.

71.

Having set out the arguments in support of this first part of the third ground of appeal, Mr Jenkinson concludes that ‘the view must therefore be taken that the [General Court] could not lawfully exclude any liability on the part of the institutions and regard the employment relationship at the Eulex Kosovo Mission and at any other mission as lawful, without at any point analysing the conclusions that must be drawn from the finding made by it in paragraph 92 of the judgment under appeal’.

72.

That criticism is ill founded. First, it must be recalled that the criticism refers to paragraphs 92 and 95 of the judgment under appeal, which form part of the preliminary observations made by the General Court, after it summarised, in paragraphs 84 to 89, the arguments of the parties concerning the determination of the law applicable to the 11 FTCs concluded in connection with the Eulex Kosovo Mission.

73.

The latter paragraphs were not challenged in the appeal. It is therefore common ground that Mr Jenkinson’s arguments were solely based on rules of national law, in particular the Belgian law applicable in his view pursuant to the Rome I Regulation, ( 87 ) and, therefore, a provision of primary law, the FEU Treaty or the CEOS was not relied on. ( 88 )

74.

Second, the fact that the first head of claim examined by the General Court in that part of the judgment under appeal is concerned with the re-categorisation of the FTCs and is based on Article 272 TFEU means that any argument concerning the illegality of any measure whatsoever or of the contractual relationship, which could be relied only in support of the second head of claim, must be dismissed. ( 89 ) Thus, there is justification for the reasons stated for that judgment being focussed on establishing the basis of the rules applicable to the dispute.

75.

Third, Mr Jenkinson’s criticism of paragraph 92 of the judgment under appeal is based on a misreading of that paragraph. In that paragraph and in paragraph 93, the General Court addresses the arguments raised by the EEAS and Eulex Kosovo, according to which an autonomous law applies to the contracts concluded with members of the contract staff. ( 90 ) In paragraph 94 of that judgment it rejected that argument, drawing conclusions from the finding that a specific provision had not been adopted by the EU legislature under primary law, in particular Article 336 TFEU, or in the acts adopted following the establishment of the Eulex Kosovo Mission.

76.

Fourth, Mr Jenkinson is wrong to claim, on the basis of a misreading of paragraph 95 of the judgment under appeal, that the General Court ‘identified [him] … as “one of the other servants of the European Union”’.

77.

As regards the criticism concerning the applicability of the Rome I Regulation, since the appeal does not cover paragraphs 103 and 104 of the judgment under appeal, the paragraphs devoted to that matter, it appears to me that the criticism must be understood, in essence, as being concerned with the application solely of rules of private law to the contracts of international staff without sufficient justification, since Mr Jenkinson claimed to be covered by the rules of the CEOS (or equivalent). ( 91 )

78.

In an employment law dispute, the employer must be identified and the rules governing the legal situation in question classified before determining the applicable law. ( 92 )

79.

The question of the identification of the employer was settled by the Court in its judgment in Eulex Kosovo. A request for a preliminary ruling had been made to the Court ( 93 ) by the tribunal du travail francophone de Bruxelles (Brussels Labour Court (French-speaking), Belgium) ( 94 ) in the context of an employment law dispute between 45 members or former members of the international civilian staff of Eulex Kosovo and the Head of Mission, in particular, concerning changes to their working conditions and, for some of them, the non-renewal of their contracts of employment. ( 95 ) Those members of staff had been recruited on the basis of FTCs identical to those concluded with Mr Jenkinson, in particular as regards the choice of the courts having jurisdiction. ( 96 ) The question referred for a preliminary ruling concerned the identification of the entity responsible for implementing the Eulex Kosovo Mission before 12 June 2014 and, therefore, the entity having standing as a defendant in the action in the main proceedings. ( 97 )

80.

The Court held, first, that it follows from the legal capacity conferred on Eulex Kosovo by Article 15a of Joint Action 2008/124 ( 98 ) that, even before 15 June 2014, that entity was responsible for the implementation of the mission entrusted to it ( 99 ) and, second, that Article 16(5) of that joint action must be interpreted as meaning that it subrogated Eulex Kosovo to the rights and obligations of the person or persons previously responsible for the implementation of the mission. ( 100 )

81.

The Court held that ‘Article 16(5) of Joint Action 2008/124 … must be interpreted as meaning that, starting from 15 June 2014, it designates Eulex Kosovo as responsible and therefore as defendant in any action relating to the consequences of the implementation of the mission entrusted to it, irrespective of whether the facts underlying such an action occurred before 12 June 2014, the date when Decision 2014/349 entered into force’. ( 101 )

82.

On the question of the classification of the rules governing the legal situation in question in which there is a contract between international staff and Eulex Kosovo, with a view to determining the applicable law, it must be recalled, first of all, that the rights and obligations of the international staff of Eulex Kosovo are determined contractually pursuant to Article 10(3) of Joint Action 2008/124. ( 102 ) The finding made by the General Court in paragraph 116 of the judgment under appeal ( 103 ) has no bearing on the context of the legal relationship at issue here. That relationship is not of a statutory nature. ( 104 ) Next, the Court held that the Staff Regulations of Officials of the European Union and the CEOS ‘do not constitute an exhaustive body of rules prohibiting the employment of persons otherwise than with the framework of those rules’. ( 105 ) Lastly, Mr Jenkinson performed technical duties. ( 106 )

83.

Since the General Court was seised pursuant to an arbitration clause contained, in accordance with Article 272 TFEU, in a contract which does not specify the substantive law ( 107 ) or the mandatory rules ( 108 ) applicable, the General Court rightly decided, in view of the context of the dispute and its subject matter, that that dispute must be resolved on the basis of the substantive rules of the national law applicable, ( 109 ) which had to be determined according to the rules of employment law ( 110 ) governing private law contracts.

84.

In those circumstances, the General Court rightly referred, in paragraph 103 of the judgment under appeal, to the rules of private international law ( 111 ) and, specifically, to the Rome I Regulation applicable in contractual matters. ( 112 )

85.

For contracts concluded from 17 December 2009 onwards, the Rome I Regulation sets out the rules for determining the national law applicable to contractual obligations in civil and commercial matters ( 113 ) in an international context. ( 114 ) Article 8 of that regulation lays down specific rules applicable to individual employment contracts, rules which differ depending on whether or not the parties chose the law applicable to the contract between them.

86.

I therefore propose that the Court hold that the reasons stated in paragraphs 92, 99, 102, 103 and 108 of the judgment under appeal explain why the General Court, which had found no autonomous law to be applicable ( 115 ) to the employment law dispute brought before it concerning the FTCs concluded by Mr Jenkinson with Eulex Kosovo, took the view that that dispute is subject to rules of private law. Accordingly, the General Court was right to refer to Article 8 of the Rome I Regulation and, specifically, given the absence of a contractual provision, to paragraphs 2 to 4 thereof. ( 116 )

87.

I therefore consider the first part of the third ground of appeal to be unfounded.

88.

By the third part of the third ground of appeal, Mr Jenkinson alleges that the General Court incorrectly determined the law applicable to the contractual relationship.

89.

As a preliminary point, first, he states that the application of the Rome I Regulation ‘illustrates the complete lack of foreseeability and of legal certainty of the framework for employment … [of the] international contract staff working at the Missions established by the European Union’.

90.

Second, he claims that the General Court disregarded the fact that Eulex Kosovo also had an establishment located in Brussels (Belgium) which it decided to exclude from the application of Article 8(2) and (3) of the Rome I Regulation.

91.

In addition, in paragraph 111 of the judgment under appeal, the General Court decided, without providing a specific statement of reasons and incorrectly, to begin its analysis with the first nine contracts concluded with the Head of the Eulex Kosovo Mission. ( 117 )

92.

With regard to the determination of the law applicable to the final two FTCs, Mr Jenkinson alleges that the General Court failed, in paragraph 126 of the judgment under appeal, to take into account the fact that those contracts did not specify the conditions of employment or the rights and obligations of the international staff. In that paragraph, the General Court came to a manifestly erroneous decision as to the intention of the parties and the informed and full nature of their consent. The parties never envisaged making their contractual relationship subject to Irish law, especially since Eulex Kosovo relied on the application of ‘sui generis law’. Mr Jenkinson also claims that the General Court disregarded the intention of the parties to remove, in the more recent contracts, the reference to Communication C(2009) 9502 with a view to amending the law applicable. The General Court’s decision in paragraph 130 of the judgment under appeal, based on the existence of closer connections with Irish law, is erroneous because the General Court confined its assessment to Eulex Kosovo, without having first analysed the potential status of the European Union institutions as co-employers. Moreover, the General Court analysed neither the legal framework for the employment of the contract staff of the missions in its entirety, nor the functional links between the Eulex Kosovo Mission and Brussels and the institutions which regulate its activities. Mr Jenkinson thus alleges that the General Court failed to explain why it decided to dispense with the application of Belgian law and not to state the reasons for its decision in the light of European case-law.

93.

As regards the determination of the law applicable to the first nine FTCs, Mr Jenkinson criticises the General Court’s decision, in paragraph 113 of the judgment under appeal, that Communication C(2009) 9502 could be relied on against him. The General Court disregarded the case-law on the enforceability of contractual terms against the weaker party to a contract and the EU law on the validity of general terms and conditions unilaterally drawn up by an undertaking ‘which are regarded as “pre-formulated standard contract”’. ( 118 )

94.

In addition, that communication was specifically analysed in paragraphs 116 to 119 of the judgment under appeal without consideration being given to the concept of vitiated consent, which must be assessed in accordance with the law applicable to the contract pursuant to Articles 10, 11 and 12 of the Rome I Regulation. Mr Jenkinson claims that, in paragraph 112 of the judgment under appeal, the General Court erroneously extrapolated his intention vis-à-vis the designation of the place of origin.

95.

Lastly, relying on a failure to adjudicate, Mr Jenkinson claims that the General Court did not apply the criterion set out in Article 8(1) of the Rome I Regulation to ascertain whether the parties had not waived observance of the more favourable or public policy provisions laid down in Belgian law, in the absence of a framework similar to the CEOS. Similarly, the General Court should have applied the rules of the lex fori, including principles identified as ‘overriding mandatory provisions’ within the meaning of Article 9 of that regulation. By excluding the application of ‘principles of European law’, the General Court infringed the scope of the Regulation.

96.

The Council contends, first, that the General Court’s application of the Rome I Regulation is the consequence of that court’s jurisdiction under an arbitration clause, which requires that it settle the dispute on the basis of the law applicable to the contract. In its opinion, the order in which the FTCs are examined has no bearing on the end result of the General Court’s analysis. Next, it argues that purpose of the examination conducted by the General Court in paragraphs 126 to 128 of the judgment under appeal was to determine whether the parties had designated the applicable employment law and not a breach of the rules governing the contracts. It further maintains that, in the analysis of the first head of claim, the General Court could rely only on the contracts actually concluded by the parties between themselves and not with other hypothetical employers. Moreover, it states that the grounds relating to the application of Irish law, including the ground concerning the enforceability of Communication C(2009) 9502, in the absence of informed and valid consent about its consequences, fall within the scope of the assessment of the facts, which is not amenable to review by the Court in the context of the appeal. Lastly, the Council points out that ‘principles of European law’ do not number amongst the categories of provisions referred to in the second sentence of Article 8(1) or Article 9 of the Rome I Regulation.

97.

The Commission contends that three arguments are inadmissible: the argument alleging a failure to comply with the case-law of the Court because it is not substantiated, and those alleging that there is an establishment of the Eulex Kosovo Mission in Brussels, and that Belgian law is applicable as it constitutes overriding mandatory provisions as they were not raised at first instance.

98.

In the Commission’s opinion, the existence of a continuous employment relationship with Eulex Kosovo justified taking into account the intentions of the parties, as expressed throughout that relationship. Therefore, the two-stage examination of the FTCs is not open to challenge and any consideration related to the analysis of the General Court’s jurisdiction is irrelevant.

99.

As regards the determination of the law applicable to the final two FTCs, the argument alleging that account was not taken of the fact that those contracts do not contain a reference to Communication C(2009) 9502 is ineffective, since the General Court established that those contracts are more closely connected with Irish law.

100.

The Commission argues that, in any case, in a contractual dispute, the employer could only be the person identified in the contract, namely Eulex Kosovo.

101.

In its opinion, the General Court did not have to provide specific reasons for its decision that Belgian law is inapplicable, since its inapplicability clearly follows from that court’s decision to apply Irish law.

102.

As for the determination of the law applicable to the first nine FTCs, the Commission contends that in paragraphs 194 and 195 of the judgment under appeal the General Court ruled on the complaint concerning vitiated consent alleged by Mr Jenkinson in relation to Communication C(2009) 9502. In that regard, given the repeated reference to that communication in nine FTCs and the continuity of his employment relationship up until the final two FTCs, Mr Jenkinson could not have regarded Irish law as not applying to that relationship.

103.

The complaint based on the application of mandatory provisions that cannot be derogated from is manifestly unfounded because the appellant relies on a ‘framework similar to the CEOS’ which, in his opinion, should have been adopted on the basis of Article 336 TFEU.

104.

In addition, the Commission considers that, since the parties had expressed a choice, the General Court did not have to determine which law would be applied to the contract if the parties had not allegedly chosen to apply Irish law or the public policy provisions applicable in the absence of a choice being made. As far as concerns the application of EU law, this is a manifestly unfounded argument because the dispute had to be settled pursuant to the substantive rules of the national law applicable, the implementation of which encompasses the principles of EU law.

105.

Eulex Kosovo argues that it never envisaged applying Belgian law and that it is headquartered in Pristina (Kosovo). Mr Jenkinson fails to explain how Belgian law was applicable to him, even though, as the General Court found, he is an Irish national, he resides in Ireland and he was informed of the application of Irish law by the reference in his contracts to Communication C(2009) 9502, which constitutes the expression of the common intention of the parties. Furthermore, Mr Jenkinson relied on that communication, seeking the reimbursement of his travel expenses to his place of residence in Ireland. Eulex Kosovo argues that, in paragraphs 191 to 195 of the judgment under appeal, the General Court found that Mr Jenkinson was fully aware of his conditions of employment and that there was no justification for him claiming that there was a lack of foreseeability or legal certainty in relation to his contractual relationship, given the information provided to him prior to his employment.

106.

In relation to the final two FTCs, Eulex Kosovo argues that the General Court was right to find there to be a continuous employment relationship and that Mr Jenkinson continues to argue that there are closer connections with Belgium despite his nationality, his place of work and his place of recruitment.

107.

As regards any limits on the application of substantive rules of national law in addition to EU law, Eulex Kosovo argues that the judgment of 13 July 2022, JC v EUCAP Somalia, ( 119 ) confirms the approach adopted by the General Court, namely that the application of national law is justified inter alia where the contract does not allow all aspects of the dispute to be settled.

108.

Mr Jenkinson contests the findings reached by the General Court to conclude that Irish law was applicable to his contractual relationship with Eulex Kosovo.

109.

Three factors limit the scope of that criticism. In the first place, I note that the reasons challenged follow on from the General Court’s decision to restrict the examination of the contractual relationship to the 11 FTCs concluded in connection with the Eulex Kosovo, ( 120 ) its finding that there is no term in the contract concerning the re-categorisation of contracts which would allow the dispute to be resolved, ( 121 ) its decision to refer to the substantive rules of national law applicable to the contract, which include the protective provisions of EU law, ( 122 ) and the observation that, where that law lacks precision, the provisions of the Rome I Regulation will have to be used ( 123 ) to be able to rule on the claim for re-categorisation brought before it. For the reasons that I have set out in points 71 to 86 of this Opinion relating to the analysis of the first part of the third ground of appeal, it is my view that any criticism based on an alleged European framework for employment that must be applied is unfounded.

110.

In the second place, it must be observed that the analysis of the designation of the law applicable to the contracts is based on considerations of fact that fall outside the scope of the Court’s review, save where some distortion of the facts is pleaded, which is not the case here. I am therefore of the view that the criticisms concerning the reference in the first nine FTCs to Communication C(2009) 9502 (paragraph 112 of the judgment under appeal), the ability to rely on that communication (paragraph 113 of that judgment) and the finding as to the common intention of the parties (paragraph 115 of the judgment) must be rejected as ineffective. Accordingly, it follows from those findings that Mr Jenkinson was fully aware of his conditions of employment. There is therefore no justification for him claiming a lack of foreseeability or legal certainty in his contractual relationship. Furthermore, in paragraphs 120 to 124 of the judgment under appeal, which are not contested by the appeal, the General Court set out the facts relevant to the appellant’s situation, from which it determined, on the basis of the provisions of paragraph 4a of Communication C(2009) 9502, that Irish law was applicable.

111.

Similarly, with regard to the final two FTCs concluded by Mr Jenkinson, a distortion of facts is not pleaded in relation to the General Court’s findings that the parties did not chose the law applicable under those contracts. ( 124 ) In those circumstances, the General Court rightly sought to establish on the basis of which criteria laid down in Article 8(2) to (4) of the Rome I Regulation the applicable law can be determined. ( 125 ) As regards the connecting factor provided for in paragraph 2 of that article, namely the place of performance of the employment contract, the General Court rightly examined it as a priority, ( 126 ) since that criterion satisfies the general requirement of the foreseeability of the law and therefore that of legal certainty in contractual relationships. ( 127 ) This also means that Mr Jenkinson’s criticism concerning the Rome I Regulation must be dismissed in the light of those requirements.

112.

In the third place, the applicability of Kosovan law, rejected by the General Court, is not open to challenge by Mr Jenkinson because its non-applicability is consistent with its analysis. ( 128 ) The same is true of the application of the criterion laid down in Article 8(4) of the Rome I Regulation, namely that of closer connections with another Member State. The General Court’s findings regarding the continuity of employment over the course of the 11 FTCs are based inter alia on clarifications provided by Mr Jenkinson in relation to the tasks performed by him ( 129 ) and on the account taken of his accumulated seniority in the course of the 11 FTCs and of his coverage under the social security, pension and tax schemes associated with the performance of his contracts. ( 130 )

113.

In those circumstances, it is my view that, in essence, Mr Jenkinson requests that the Court exercise its power of review into the conditions for application of Article 8(4) of the Rome I Regulation and into the criteria capable of establishing the existence of closer connections for the purposes of that provision.

114.

First, with regard to the conditions for implementing Article 8(4) of that regulation, a requirement of which is that there are circumstances on the basis of which the law determined according to paragraphs 2 of 3 of that article can be rejected, it appears to me that those conditions can be interpreted, in line with the objective of that provision of protecting the employee, ( 131 ) as also covering the situation in which there is no legal provision laid down in the law governing the employment contract that can be applied to the dispute. The General Court did not therefore err in law in seeking to determine with which country the FTCs had closer connections.

115.

Second, as regards the connecting factor chosen by the EU legislature, that factor must be interpreted as demonstrating an intention to give preference to a criterion of proximity rather than of seeking the law most favourable to the employee. ( 132 ) The arguments raised by Mr Jenkinson based on the obligation to apply the law that is more favourable to him are therefore unfounded.

116.

With regard, more specifically, to the method of assessing the existence of closer connections with a country, the Court has held that the court in question must conduct a comprehensive assessment of all the objective elements defining the contractual relationship and single out one or more as being, in its view, the most significant. The number of such elements is irrelevant. ( 133 )

117.

The Court has explained that, ‘among the significant factors suggestive of a connection with a particular country, account should be taken in particular of the country in which the employee pays taxes on the income from his activity and the country in which he is covered by a social security scheme and pension, sickness insurance and invalidity schemes. In addition, the national court must also take account of all the circumstances of the case, such as the parameters relating to salary determination and other working conditions’. ( 134 )

118.

Thus, it is clear from the case-law of the Court that the General Court did not manifestly err in law in the choice of the connecting factors which it examines in paragraphs 131 to 135 of the judgment under appeal or in taking into account the employment relationship as a whole in paragraphs 136 to 139 of that judgment. ( 135 )

119.

Furthermore, in order for the appellant’s arguments to be examined, arguments based on, in turn, Articles 9, 10, 11 and 12 of the Rome I Regulation, they must be substantiated in law and in fact, in support of the criticism of the paragraphs concerned by the third part of the third ground of appeal, ( 136 ) which is manifestly not the case.

120.

I therefore propose that the Court hold that the General Court could decide, by a reasoned decision based on its findings, in paragraph 139 of the judgment under appeal, that Irish law was applicable, without it therefore having to address in detail the applicant’s arguments regarding the applicability of Belgian law, upon which he had initially relied. ( 137 )

121.

I am therefore of the view that the third part of the third ground of appeal is unfounded.

122.

By the fourth part of the third ground of appeal, Mr Jenkinson alleges that the General Court distorted Irish law and made a manifest error in the interpretation and application of Section 9 of the 2003 Act to justify the use of consecutive FTCs.

123.

In the first place, Mr Jenkinson relies on an error made by the General Court in the examination carried out in paragraph 153 of the judgment under appeal because that court failed to take into consideration, starting with its analysis of the demands made under the first head of claim, all the FTCs at the three missions, applying the concept of ‘associated employers’. That is a crucial concept under Irish law.

124.

In the second place, with regard to the choice of the type of contract, the General Court erred in law, in paragraph 151 of the judgment under appeal, because the Council alone has the power to determine the conditions of employment and Communication C(2009) 9502 specifies the type of contract according to the type of functions concerned.

125.

In the third place, as regards the analysis of the legitimate objective pursued by the Eulex Kosovo Mission which justifies the consecutive FTCs, Mr Jenkinson submits that, in paragraphs 152, 154 and 155 of the judgment under appeal, the General Court should have applied Irish – not European – case-law. In that regard, in Mr Jenkinson’s opinion, the case-law cited by Eulex Kosovo ( 138 ) is irrelevant because it concerns a person ‘employed by the same organisation in a series of different posts’, whereas he held the same post under all 21 FTCs. The General Court thus limited the protection afforded to employees by Irish law.

126.

In that regard, first, according to Mr Jenkinson, in paragraph 156 of the judgment under appeal, the General Court wrongly and without explanation limited the analysis of the objective grounds justifying the use of consecutive FTCs to the ‘temporary nature’ of the Mission. That analysis is manifestly inconsistent with the Irish case-law, upon which he had relied. Having asserted that, under Irish law, the objective grounds legitimising the use of consecutive FTCs are to be interpreted strictly, Mr Jenkinson criticises in turn each of the criteria used by the General Court in paragraphs 157 to 175 of the judgment under appeal.

127.

With regard to the duration of the mandates, ( 139 ) the General Court should have taken into account the nature of the work performed by Mr Jenkinson, which met fixed and lasting needs of the employer, rather than referring, in paragraphs 177 to 180 of the judgment under appeal, to the activities of the Eulex Kosovo Mission or to the employment, as a priority, of seconded staff. As for the budgetary periods, the assessment contained in paragraphs 161 and 162 of that judgment, to the effect that the time restrictions placed on the budget awarded to the Eulex Kosovo Mission justified the use of consecutive FTCs, is contrary to Irish case-law. As far as concerns the variation in the competences and scope of action of the Eulex Kosovo Mission, as set out in paragraphs 163 to 169 of the judgment, the legality of the framework for adjustment, in the light of the Treaties, cannot justify, in Mr Jenkinson’s view, the protection afforded to all workers under Irish law being restricted. Turning to the mandates of the Heads of the Eulex Kosovo Mission, Mr Jenkinson claims that the General Court erred in its application of that factor in paragraphs 170 to 175 of the same judgment, since it provided the employer with a means of avoiding any obligations. As regards the final FTC, the General Court could not find, as it did in paragraphs 185 and 187 of the judgment under appeal, that the reasons for its conclusion were the same as those for the other FTCs, when Eulex Kosovo had explained that the purpose of that final contract was to coordinate the end of the FTCs of various individuals.

128.

Second, the General Court failed to analyse whether the use of the FTCs was appropriate in the light of Irish law and wrongly rejected, in paragraphs 181 and 184 of the judgment under appeal, the proposal for an alternative measure put forward by Mr Jenkinson. In so doing, it reversed the burden of proof. In paragraph 187, the General Court deemed the use of the final FTC to be necessary and appropriate, thereby distorting Irish law.

129.

In the fourth place, according to Mr Jenkinson, the General Court failed to adjudicate by disregarding Eulex Kosovo’s lack of legal personality and ignoring considerations regarding delegations of powers and budgets.

130.

In the alternative, Mr Jenkinson claims breach of the principle of equal treatment and of the principle that the law of a single Member State must apply. He asserts that the concept of ‘fixed and lasting’ must be analysed in the light of Irish law and interpreted in the same way as the EU legislature did when it adopted the CEOS pursuant to Article 336 TFEU. He refers, in turn, to the judgments of 4 July 2006, Adeneler and Others; ( 140 ) of 11 July 1985, Maag v Commission; ( 141 ) and of 15 April 2008, Impact. ( 142 ) He criticises the General Court’s decision, claiming that it has ‘established a significantly broader interpretation of the concept of stable and permanent employment’ for the purposes of the Framework Agreement than that by which the European institutions bound themselves under the CEOS by limiting the number of FTC renewals to two.

131.

With regard to the complaint put forward in the first place, the Council considers that it is at odds with the appellant’s first head of claim, as set out in the first indent of paragraph 38 of the judgment under appeal, which could only be interpreted as referring to the contractual relationship with the Eulex Kosovo Mission. Eulex Kosovo and the Commission view the complaint as a new and mistaken argument, since Eulex Kosovo is Mr Jenkinson’s only employer. Furthermore, it is based on a misinterpretation of Section 9 of the 2003 Act.

132.

As for the complaint raised in the second place, the Council is of the opinion that it overlaps with complaint put forward in the first part of the third ground of appeal. ( 143 ) The Commission points to the scope of Article 10(3) of Joint Action 2008/124 and states that Communication C(2009) 9502 simply provides a summary of the categories of staff referred to in Article 9 of that joint action.

133.

As for the complaint raised in the third place, the Council considers that it is based on incorrect assumptions. The General Court was right to examine, in great detail, the concept of ‘objective grounds’ in the light of the case-law of the Court, since the 2003 Act transposes Directive 1999/70 and the Irish case-law concerns employment situations in a different national context from that of a mission. In any event, those bodies of case-law are complementary. The Commission puts forward similar arguments in this regard, again based on the Framework Agreement, and points to the special nature of a crisis management mission. In Eulex Kosovo’s view, account should be taken only of the judgments of the High Court (Ireland), ruling on appeal on questions of law raised by decisions given by the Labour Court (Ireland). ( 144 ) Eulex Kosovo also contends that the General Court’s analysis of the facts in paragraphs 157 to 184 of the judgment under appeal is relevant and reflects the reality of implementing its mandate and the specific nature of the regional position of IT officer held by the appellant, which was not permanent, thus justifying the conclusion of FTCs. Eulex Kosovo further argues that the appellant is wrong to criticise the General Court’s reasoning regarding the legality of a series of consecutive FTCs in the specific circumstances of the exercise of the Mission’s mandate, and adduces no evidence for his criticism.

134.

In its detailed response to Mr Jenkinson’s various arguments criticising the application of the objective grounds to his legal situation, the Commission states that those arguments are partly inadmissible, in so far as they were not raised at first instance, and, in any case, unfounded given the relevance of the grounds set out in the judgment. In particular, it states that, in accordance with settled case-law of the Court, the employer’s needs must be taken into consideration and not ‘just’ the work of the appellant. In that regard, the General Court rightly pointed to the ‘temporary budgetary context’, upon which the conclusion of the contracts is dependent, thus invalidating the appellant’s comparison with the staffing level of an institution which is not subject to the same financial and operational constraints. The link between the duration of the FTCs and the duration of the mandate of the Head of the Mission, which is subject to the uncertainty inherent in managing an international crisis, also had to be taken into account by the General Court, ( 145 ) without the appellant however being able to infer from that fact that ‘the employer unilaterally “fixed” the objective grounds in order to justify repeated FTCs’.

135.

As for the complaint put forward in the fourth place, the Commission raises an objection of obscuri libelli. Assuming that Mr Jenkinson is referring to the responsibility for implementation of the budget, delegated by the Commission to the Head of Mission on the basis of Article 8(5) of Joint Action 2008/124, that provision was repealed by Article 1 of Decision 2014/349. Furthermore, such a complaint is ineffective in the light of the Court’s decision on the responsibility for the mission. ( 146 ) In the Council’s opinion, the conditions for a failure to adjudicate, which are laid down in Article 165 of the Rules of Procedure of the General Court, are not satisfied.

136.

As for the argument in the alternative, the Commission contends that Mr Jenkinson does not specify the provision of the Framework Agreement or of Irish law upon which his criticism is based, and that the case-law cited in relation to the European civil service cannot be used as a reference in the present case.

137.

By the fourth part of the third ground of appeal, Mr Jenkinson criticises paragraphs 151 to 188 of the judgment under appeal on the application of Irish law to the claim for re-categorisation of the 11 FTCs as a CID.

138.

That section of the judgment under appeal follows on from a summary, in paragraphs 140 to 146 thereof, which are not challenged in the appeal, of the provisions of EU law applicable, namely Directive 1999/70 and the Framework Agreement, annexed thereto, as well the provisions of the 2003 Act transposing that directive. Those provisions therefore constitute the substantive law governing the contracts at issue, in the version thereof applicable to the dispute, on the basis of which the General Court, seised under an arbitration clause pursuant to Article 272 TFEU, is required to give a ruling. ( 147 ) In paragraph 150 of the judgment under appeal, which is not challenged, the General Court found the 2003 Act to be compatible with the Framework Agreement ( 148 ) and with the general principle prohibiting abuse of rights, the implementation of which falls to the General Court to ensure. ( 149 )

139.

Nor does the appellant contest the General Court’s analysis of Section 9(4) of the 2003 Act, contained in paragraph 146 of the judgment under appeal, to the effect that, in essence, an objective ground which can be relied on by an employer in order to derogate from the requirements under subsections 1 to 3 of that section ( 150 )‘must be based on considerations unrelated to the employee, and the less favourable treatment which the FTC involves for that employee must be intended to achieve a legitimate objective of the employer, in an appropriate and necessary manner’.

140.

Mr Jenkinson’s arguments, reproduced in paragraphs 147 and 148 of the judgment under appeal, which are not challenged by the appeal, were as follows:

141.

Accordingly, I note, if paragraph 151 of the judgment under appeal is to be read as Mr Jenkinson reads it, ( 151 ) that the question of the designation of the authority responsible for the choice of the method of recruitment on the basis of FTCs did not arise in the discussions relating to the application of Irish law. It is, moreover, ineffective. Since the dispute concerns the re-categorisation of the FTCs as a CID, the General Court’s assessment must be confined to the justification for the renewal of the consecutive periods of employment for a limited duration. The second complaint ( 152 ) must therefore be dismissed.

142.

Other complaints must also be dismissed on grounds which I have already set out. The first complaint ( 153 ) based on the concept of ‘associated employers’ mirrors that raised in the context of the second ground of appeal. In addition, as far as it concerns Eulex Kosovo’s legal capacity, the fourth complaint ( 154 ) is unfounded. ( 155 )

143.

By his third complaint, ( 156 ) Mr Jenkinson alleges that the General Court examined the concept of ‘objective grounds’ only in the light of the case-law of the Court. It is also his view that, having regard to Irish law, the General Court found, on insufficient grounds, that the use of the consecutive FTCs was justified by the temporary nature of the Eulex Kosovo Mission and, by a distortion of the content of the final FTC, that that contract had been concluded in circumstances tied up with the abolition of his post.

144.

In essence, the first part of the criticism relates to steps taken by the Court of its own motion. In my view, it must be examined regardless of the fact that Mr Jenkinson does not rely on Irish decisions put into evidence which would have been more favourable than the judgment of 26 January 2012, Kücük, ( 157 ) to which the General Court referred.

145.

As regards the implementation of the national law applicable to the contract on the basis of Article 272 TFEU, it is my view, in the light of the limits laid down in Article 58 of the Statute of the Court of Justice of the European Union, ( 158 ) that it is likewise necessary to apply the case-law of the Court, according to which, with respect to the analysis, in the context of an appeal, of the General Court’s determinations on national law, the Court of Justice has jurisdiction only to determine whether that law was distorted. Such distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. ( 159 ) New arguments and evidence based on positive law and relied on in support of the appeal are therefore inadmissible.

146.

In that regard, I note that the General Court determined the national law applicable after seeking the applicant’s observations on the Irish legislation upon which he had not relied. ( 160 ) It thus found that law to be compatible with EU law, namely Directive 1999/70 and the Framework Agreement, ( 161 ) and implemented the rules in that law which determine the method for examining the objective grounds to be applied by any national court, ( 162 ) finding, in so doing, that the information relating to national law at its disposal was insufficient to allow it to settle the dispute. ( 163 )

147.

In those circumstances, in its further capacity as a Court of the European Union, ( 164 ) it is for the General Court to implement such national law in a manner compatible with EU law. In certain situations, it is even required to disapply national provisions. This is the case where the subject matter of the dispute is governed by a regulation ( 165 ) or where a provision of EU law has direct effect. ( 166 ) Here, the specific context of the employment relationship, that of a mission under the CFSP, upon which national law is necessarily silent, had to be taken into account by the General Court.

148.

Therefore, where an equivalent provision or equivalent case-law exists in national law, ( 167 ) the General Court is entitled to opt, as a matter of preference, to base its decision on criteria applicable in all the Member States, ( 168 ) as consistently interpreted by the Court of Justice when matters are brought before it on the basis of Article 267 TFEU, particularly in relation to the protection of workers.

149.

In the present case, specifically in paragraph 154 of the judgment under appeal, the General Court cited paragraph 27 ( 169 ) of the judgment of 26 January 2012, Kücük, ( 170 ) the wording of which echoes the settled case-law of the Court. In many judgments, the Court has restated its interpretation of the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement. That case-law functions as guidance for the courts of the Member States when they are giving specific consideration to situations brought before them for assessment, in which it may become apparent that the purpose of the consecutive renewal of fixed-term employment relationships is in fact to meet the employer’s fixed and lasting staffing requirements.

150.

Mr Jenkinson fails to provide detailed proof, in the light of that case-law, of a distortion of the positive Irish law submitted by him for assessment by the General Court and, in particular, that that court’s analysis was manifestly at odds with the content of that law, taking into account the context in which the 11 FTCs were concluded. His criticism must therefore be dismissed as partly inadmissible ( 171 ) and otherwise insufficiently justified and relevant.

151.

Accordingly, as far as concerns the second part of the criticism, ( 172 ) I note, in relation to the review of the grounds for the judgment under appeal sought by Mr Jenkinson, that the General Court rightly determined the special and specific circumstances which characterised the activities for which the FTCs had been concluded with Mr Jenkinson and the objective pursued within the Eulex Kosovo Mission.

152.

The criticism in the appeal relates not to the objective factors as accepted by the General Court but to their assessment, which led that court to base its decision on the temporary nature of the legal framework and of the general professional context in which Mr Jenkinson performed the duties entrusted to him at the Eulex Kosovo Mission.

153.

It is my view, first, that the General Court ruled, in paragraphs 156 to 188 of the judgment under appeal, in response to Mr Jenkinson’s arguments, by means of a reasoned decision based on all the measures adopted relating to the Eulex Kosovo Mission, from its establishment to its development, and those organising its operation and its financing, ( 173 ) in line with the mandates conferred on it, ( 174 ) in the light in particular of the wishes expressed by the Kosovan authorities. ( 175 ) Second, the General Court specifically decided that the use of consecutive FTCs in order to fill jobs, as a fall back, with international civilian staff in particular ( 176 ) for limited ( 177 ) and variable ( 178 ) periods, with a budget set on a very regular basis over approximately 7 years for periods ranging from less than 6 months to 16 months, ( 179 ) was justified by circumstances specific to the activities of an international crisis management mission under by the CFSP. ( 180 ) In that regard, the General Court rightly inferred from its findings on the geopolitical and diplomatic uncertainties to which that type of mission is inherently subject, such as the Eulex Kosovo Mission, ( 181 ) that that mission is characterised by its temporary nature. ( 182 )

154.

I note, in addition, that those findings are also based on the General Court’s assessment ( 183 ) that the conditions of employment are necessarily connected with the very nature of the mission and the arrangements for its financing, since it was not intended to be permanent and is subject to the mandates conferred on it. The General Court could thus decide that the consistent practice of not using CIDs is justified by a need for flexibility in order to react to unstable situations as quickly as possible. It therefore demonstrated that, in such a specific situation, the renewal of FTCs can have neither the object nor the effect of filling a stable and permanent post which is financed on a lasting basis. ( 184 )

155.

Accordingly, and further to my examination of the merits of the second ground of appeal, ( 185 ) I therefore propose that the Court find that it follows from the analysis of the characteristics of the Eulex Kosovo Mission and from the bases of the Council decisions in the context of the CFSP that the General Court established general criteria characterising the employment relationship which are applicable, by analogy, to the first two missions in which Mr Jenkinson was employed, on account of their nature, and that it thus, on the bases submitted for its assessment, lawfully justified its decision to reject the claim for re-categorisation of all the FTCs as a single CID. ( 186 )

156.

The criticism made in the fourth part of the third ground of appeal must therefore, in my view, be rejected.

157.

Having concluded my analysis, I propose that the Court rule that the second ground of appeal and the first, third and fourth parts of the third ground of appeal are unfounded.

158.

In the light of all the foregoing considerations, I propose that the Court reject the second ground of appeal and the first, third and fourth parts of the third ground of appeal as unfounded.