Case T‑194/20

JF

v

EUCAP Somalia

Judgment of the General Court (Seventh Chamber, Extended Composition), 13 July 2022

(Arbitration clause – International contract staff of EUCAP Somalia – Common Foreign and Security Policy mission – Non-renewal of employment contract following the United Kingdom’s withdrawal from the European Union – Right to be heard – Equal treatment – Non-discrimination on grounds of nationality – Transition period provided for in the Agreement on the withdrawal of the United Kingdom from the European Union – Action for annulment – Action for damages – Acts inseparable from the contract – Inadmissibility)

1. Action for annulment – Actionable measures – Concept – Acts producing binding legal effects – Acts relating to the non-renewal of an employment contract of an international contract staff member of a Common Foreign and Security Policy mission following the United Kingdom’s withdrawal from the Union – Exclusion – Acts not producing such effects outside the contractual relationship between the parties and not involving the exercise of public powers conferred on the contracting authority – Inadmissibility

   (Art. 50(3) TEU; Art. 263 TFEU; Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942, Art. 7(4))

   (see paragraphs 27, 29, 40, 41)

2. Action for damages – Jurisdiction of the EU judicature – Limits – Character of the liability pleaded – Verification by the court – Application relating to non-contractual liability of the Union for the actions of a Common Foreign and Security Policy mission under an employment contract – Inadmissibility

   (Art. 268 TFEU; Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942)

   (see paragraphs 42-47)

3. Judicial proceedings – General Court seised under an arbitration clause – Acts relating to the non-renewal of an employment contract of an international contract staff member of a Common Foreign and Security Policy mission following the United Kingdom’s withdrawal from the Union – Action for contractual liability – Determination of the applicable law – Employment contract not specifying that law – Examination of the action solely on the basis of the contract and the Charter of Fundamental Rights and in the light of the general principles of law – Whether permissible

   (Art. 50 TEU ; Arts 272 and 340, first para., TFEU; Charter of Fundamental Rights of the European Union; Regulation of the European Parliament and of the Council No 593/2008; Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942)

   (see paragraphs 51-59)

4. Judicial proceedings – General Court seised under an arbitration clause – Scope – Judicial review of acts concerning the non-renewal of an employment contract of an international contract staff member of a Common Foreign and Security Policy mission following the withdrawal of the United Kingdom from the Union – Jurisdiction to examine the pleas in law alleging infringement of the principles guaranteed by the Charter of Fundamental Rights and the general principles of Union law – Whether permissible – Respect for the right to effective judicial protection

   (Art. 272 TFEU; Charter of Fundamental Rights of the European Union, Arts 20, 21, 41(2)(a), and 47; Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942)

   (see paragraphs 69-71)

5. Common Foreign and Security Policy – Civilian missions of the European Union – Staff – International civilian staff members – Acts relating to the non-renewal of an employment contract of an international contract staff member following the United Kingdom’s withdrawal from the Union – Adoption of those acts without hearing the interested party – Infringement of the right to be heard – None

   (Art. 50 TEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942, Art. 7(4))

   (see paragraphs 76-96)

6. Acts of the institutions – Reasoning – Obligation – Scope – Acts adopted within a contractual framework – Substitution of an entirely new statement of reasons for the original one at the litigation stage – Not permissible

   (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c))

   (see paragraphs 102, 103)

7. Common Foreign and Security Policy – Civilian missions of the European Union – Staff – International civilian staff members – Non-renewal of an employment contract of a contract staff member who is a United Kingdom national following the withdrawal of the United Kingdom from the Union – Staff members who are nationals of a Member State which has initiated a procedure for withdrawal from the Union and staff members who are nationals of another Member State who are not in a comparable situation – Discrimination on grounds of nationality – None

   (Art. 50 TEU; Charter of Fundamental Rights of the European Union, Art. 21; Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942, Art. 7(3))

   (see paragraphs 115-119)

8. Common Foreign and Security Policy – Civilian missions of the European Union – Staff – International civilian staff members – Acts relating to the non-renewal of an employment contract of an international contract staff member following the United Kingdom’s withdrawal from the Union – Entry into force of substantive provisions of the Agreement on the withdrawal of the United Kingdom from the European Union and Euratom subsequent to the adoption of those acts – Possibility of relying on those – None

   (Art. 50 TEU; Art. 272 TFEU; Agreement on the withdrawal of the United Kingdom from the European Union and Euratom, Arts 127(2) and (6), and 129(7); Council Decision 2012/389/CFSP, as amended by Decision (CFSP) 2018/1942)

   (see paragraphs 131-137)

Résumé

The applicant, JF, a United Kingdom national, signed several successive fixed-term employment contracts with EUCAP Somalia, an EU mission to assist Somalia in building its maritime security capacity, ( 1 ) under which he was recruited as an international contract staff member.

His last contract of employment, which ended on 31 January 2020, provided that it could be terminated early if the United Kingdom ceased to be a member of the European Union.

By a note dated 18 January 2020, the Head of Mission of EUCAP Somalia informed the international contract staff who were nationals of the United Kingdom in that mission, including the applicant, that, owing to the probable withdrawal of the United Kingdom from the Union on 31 January 2020, their employment contracts would end on that date. Subsequently, by letter dated 29 January 2020, he confirmed to JF that his contract would not be renewed beyond its term and would end on 31 January 2020 due to the withdrawal of the United Kingdom from the Union.

By his action, JF sought, principally, on the basis of Articles 263 and 268 TFEU, that the note of 18 January 2020 and the letter of 29 January 2020 (together, ‘the contested acts’) be annulled and that the damage which he allegedly suffered as a result of those acts by virtue of EUCAP Somalia’s non-contractual liability be made good, and, in the alternative, on the basis of Article 272 TFEU, that the disputed acts be declared unlawful and that the same losses by virtue of the contractual liability of that mission also be made good.

By its judgment, delivered in an enlarged chamber, the General Court dismisses the action brought by JF in its entirety. On that occasion, it supplements the case-law by ruling, in particular, on the admissibility and nature of the action and on the possibility, under certain conditions, of not determining the applicable national law to resolve a dispute in contractual matters. It also examines the pleas alleging infringements of Union law in the context of such a contractual dispute and clarifies the application of the principle of non-discrimination on grounds of nationality in this case.

The Court’s assessment

As regards the admissibility of the action, first, the Court rejects as inadmissible the application for annulment of the contested acts based on Article 263 TFEU. In that regard, it observes in particular that the conditions of employment and the rights and obligations of EUCAP Somalia’s international staff are defined by contract, so that the employment relationship between the applicant and EUCAP Somalia was contractual in nature. The Court further finds that, by the contested acts, the Head of Mission of EUCAP Somalia confirmed to the applicant the date of termination of his contract as provided for therein, following the withdrawal of the United Kingdom from the Union, which was a contractual cause for termination of the contract. It concludes that those acts are not intended to produce binding legal effects outside the contractual relationship between the applicant and EUCAP Somalia and involving the exercise by the latter of prerogatives of public authority. Thus, those acts are contractual in nature and their annulment cannot be sought on the basis of Article 263 TFEU.

Second, the Court dismisses as inadmissible the claim for damages for the non-contractual liability of the Union for the actions of EUCAP Somalia, based on Article 268 TFEU. A genuine contractual context surrounds that claim, so that it falls within the contractual liability of the Union.

Third, the Court finds that the action is admissible in so far as it is based, in the alternative, on Article 272 TFEU. It states that, in support of his claims under that provision, the applicant relies on rules which the Union administration is required to observe in a contractual context, since he puts forward pleas alleging, in particular, infringements of the right to be heard and of the principles of equal treatment and non-discrimination, ( 2 ) as well as a plea alleging infringement of the principle of the protection of legitimate expectations, which constitutes a general principle of Union law. Consequently, unless the principle of effective judicial protection is disregarded, the applicant cannot be prevented from relying on infringement of those principles in support of his claims, on the ground that he can validly invoke only a failure to perform the terms of his contract or an infringement of the law applicable to it. ( 3 )

As regards the applicable law, the Court notes the principle that the Union’s contractual liability is governed by the law applicable to the contract concerned. ( 4 ) However, it considers that it is not necessary to determine the national law applicable to the present dispute, which can be resolved on the basis of the contract at issue, the EUCAP Somalia standard operating procedures to which it refers and the Charter and general principles of Union law. In that context, the Court observes, in particular, that in support of his subsidiary claims, based on Article 272 TFEU, the applicant relies exclusively on pleas in law alleging infringements of Union law, in particular of the general principles of that law and of the Charter. Furthermore, it does not appear that, in order to resolve the dispute, it is necessary to apply mandatory provisions of national law.

As to the merits of the case, the Court notes, first, that as regards the breach of the right to be heard, it is not apparent from the terms of the contract at issue, nor from EUCAP Somalia’s standard operating procedures, to which that contract refers, that EUCAP Somalia’s Head of Mission was required to hear JF before issuing the note of 18 January 2020. Furthermore, the Court considers that EUCAP Somalia’s decision not to avail itself of the possibility of renewing the applicant’s contract, as is apparent from the contested acts, was not a measure taken against him which adversely affected him within the meaning of Article 41(2)(a) of the Charter. Thus, the right to be heard as guaranteed by that provision did not require EUCAP Somalia to hear the applicant prior to drafting the note of 18 January 2020. Moreover, the Court points out, in the context of an action of a contractual nature, that even supposing that the applicant had had the right to be heard prior to the drafting of that note, the procedure could not have led to a different result if he had been able to exercise that right.

Second, as regards alleged discrimination on grounds of nationality, the Court points out that the applicant, as a national of a Member State which has initiated the procedure for withdrawal from the Union, was not objectively in a situation comparable to that of international contract staff who are nationals of another Member State within EUCAP Somalia, so that the head of that mission could decide not to renew his contract of employment after 31 January 2020, without that constituting discrimination on grounds of nationality.

Third and finally, as regards an alleged infringement, by the contested acts, of the Agreement on the withdrawal of the United Kingdom from the European Union and Euratom, ( 5 ) the Court observes, in the context of an action of a contractual nature, that the provisions of the latter, which are relevant to the present case, govern the conditions in which Union law applies to the United Kingdom during the transitional period and therefore constitute substantive rules. However, since those rules do not apply to legal situations arising before the date of entry into force of that agreement and since the acts at issue predate that date, such an infringement cannot be found.

( 1 ) EUCAP Somalia was established by Council Decision 2012/389/CFSP of 16 July 2012 on the European Union capacity building mission in Somalia (EUCAP Somalia) (OJ 2012 L 187, p. 40), as amended by Council Decision (CFSP) 2018/1942 of 10 December 2018 (OJ 2018 L 314, p. 56).

( 2 ) Guaranteed respectively by Article 41(2)(a) and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

( 3 ) Within the meaning of the judgment of 16 July 2020, ADR Center v Commission (C‑584/17 P, EU:C:2020:576, paragraphs 85 to 89).

( 4 ) Article 340, first paragraph, TFEU.

( 5 ) Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7), which entered into force on 1 February 2020.