1.

This case arises out of a dispute between SC, a former contract staff member, and the European Union Rule of Law Mission in Kosovo (‘Eulex Kosovo’) which is an EU international mission within the Common Foreign and Security Policy (‘CFSP’).

2.

Relying on the clause conferring jurisdiction on the EU Courts contained in the employment contract between SC and Eulex Kosovo, SC brought an action before the General Court of the European Union on the basis of Article 272 TFEU, challenging the legality of decisions taken by that mission that SC did not pass an internal competition and her employment contract was not renewed, and seeking damages based on the EU’s contractual and non-contractual liability under Article 340 TFEU.

3.

The present appeal is brought by SC against the order of the General Court of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586, ‘the order under appeal’) by which the General Court dismissed SC’s action. It raises three key issues concerning, first, the Court’s jurisdiction under Article 272 TFEU in the context of the CFSP; second, the distinction between Articles 263 and 272 TFEU; and third, the possibility to reclassify a contractual action based on Article 272 TFEU as an action for annulment based on Article 263 TFEU.

4.

This appeal comes in tandem with some other cases presently before the Court which raise similar, although not identical, issues bearing on the distinction between Articles 263 and 272 TFEU, and which are also concerned with ensuring effective judicial protection for applicants in disputes with EU institutions and bodies and providing clarity about the appropriate procedural routes to follow in that regard. ( 2 )

5.

Fundamentally, the present case invites the Court to develop its case-law on the application of Article 272 TFEU and the relationship of that provision with Article 263 TFEU within the EU system of remedies laid down in the Treaties. This case also has considerable practical importance to EU external action and the functioning of EU international missions around the world.

6.

The background to the proceedings, as set out in paragraphs 1 to 15 of the order under appeal, can be summarised as follows for the purposes of the present case. It is necessary to provide some preliminary observations on CSDP Missions and Eulex Kosovo (Section A) and the contractual relationship between SC and Eulex Kosovo (Section B), before turning to the events leading to the proceedings before the General Court (Section C).

7.

In the field of the CFSP under Title V of the TEU, the Common Security and Defence Policy (‘CSDP’) ( 3 ) provides the Union with an operational capacity to deploy civilian and military missions outside the EU to fulfil a range of tasks, including conflict prevention and peacekeeping. ( 4 ) CSDP missions ‘aim at responding to external conflicts and crises when they arise, enhance the capacities of partners and ultimately protect the European Union and its citizens through external action’. ( 5 ) According to recent documentation, there are currently 16 ongoing CSDP missions — 10 civilian missions and 6 military missions — staffed by over 5000 persons worldwide. ( 6 )

8.

The legal status of CSDP missions and their staff differ from other entities within the framework of EU external action. ( 7 ) In particular, CSDP missions are linked to the European External Action Service (‘EEAS’), ( 8 ) which is the EU’s diplomatic service and helps the EU High Representative for Foreign Affairs and Security Policy (‘HR’) carry out the CFSP. Yet, staff of CSDP missions are not all part of the EEAS, whose staff falls within the Staff Regulations of Officials of the European Union (‘Staff Regulations’) and the Conditions of Employment of Other Servants (‘CEOS’). ( 9 ) Moreover, CSDP missions are not EU delegations established under Article 221 TFEU to represent the Union, and whose actions are in principle imputed to the delegating EU institution. ( 10 ) Nor are CSDP missions formally considered EU agencies in the CSDP, such as the European Defence Agency and the European Union Satellite Centre which have their own staff regulations or whose staff are governed by the Staff Regulations and the CEOS. ( 11 )

9.

Eulex Kosovo is a CSDP mission established by Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, ( 12 ) as last amended by Council Decision (CFSP) 2018/856 of 8 June 2018. ( 13 ) Joint Action 2008/124 has been extended several times, and Eulex Kosovo’s current mandate runs until 14 June 2020. Eulex Kosovo is the largest civilian mission launched under the CSDP to date. ( 14 )

10.

According to Article 2 of Joint Action 2008/124, Eulex Kosovo’s overall mission is to ‘support selected Kosovo rule of law institutions on their path towards increased effectiveness, sustainability, multi-ethnicity and accountability, free from political interference and in full compliance with international human rights standards and best European practices … with the aim of handing over remaining tasks to other long-term EU instruments and phasing out residual executive functions.’

11.

Under Articles 7 and 8 of Joint Action 2008/124, the Civilian Operation Commander exercises command and control of Eulex Kosovo at strategic level, whereas the Head of Mission exercises command and control of Eulex Kosovo at theatre level, assuming its coordination and day-to-day management. ( 15 )

12.

Article 9(2) of Joint Action 2008/124 provides that Eulex Kosovo is to consist primarily of staff seconded by Member States or EU institutions. Each Member State or EU institution bears the costs related to any staff seconded by it, including certain travel expenses and allowances, salaries and medical coverage. ( 16 )

13.

Under Article 9(3) of Joint Action 2008/124, as amended, ( 17 ) 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. ( 18 )

14.

Article 10(3) of Joint Action 2008/124, as amended, ( 19 ) provides that 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.

15.

Article 15a of Joint Action 2008/124, which was inserted by Council Decision 2014/349 of 12 June 2014, ( 20 ) states that Eulex Kosovo shall have the capacity to procure services and supplies, to enter into contracts and administrative arrangements, to employ staff, to hold bank accounts, to acquire and dispose of assets and to discharge its liabilities, and to be a party to legal proceedings, as required in order to implement this Joint Action.

16.

SC is a former member of the international contract staff of Eulex Kosovo.

17.

SC was employed by Eulex Kosovo as a prosecutor under five consecutive fixed-term employment contracts: (1) from 4 January 2014 to 14 June 2014; (2) from 15 June 2014 to 14 October 2014; (3) from 15 October 2014 to 14 June 2015; (4) from 15 June 2015 to 14 June 2016; and (5) from 15 June 2016 to 14 November 2016.

18.

The first and second employment contracts state, in Article 21, that disputes arising out of or relating to those contracts shall be referred to the jurisdiction of the courts of Brussels, Belgium. The third, fourth and fifth employment contracts provide, in Article 21, that disputes arising out of or relating to those contracts shall be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 TFEU.

19.

The employment contracts contain clauses stating that the Eulex Kosovo Operation Plan (‘OPLAN’), Concept of Operations (‘CONOPS’), Code of Conduct (‘COC’) and Standard Operating Procedures (‘SOP’) are an integral part of those contracts. ( 21 ) These are core planning and organisational documents for carrying out Eulex Kosovo’s mandate, and are not generally available to the public. ( 22 )

20.

The employment contracts also contain provisions stating that, by signing the contract, the employee confirms acceptance of, and compliance with, the terms and principles set out in the contract and its annexes, and that in case of conflict, the employment contract prevails over, inter alia, the OPLAN, CONOPS, COC and SOP. ( 23 )

21.

The employment contracts further state, in Article 20, that any dispute arising between the parties ‘as regards the interpretation of performance’ of those contracts shall be referred to an arbitration body, and this shall be without prejudice to referral of the dispute to the Court of Justice of the European Union.

22.

On 28 April 2014, SC lodged an appeal with Eulex Kosovo against her first performance evaluation report of 14 April 2014 (‘the PER’). In that appeal, SC challenged the assessments set out in that report made by her supervisors, including her line manager, Eulex Kosovo Chief Prosecutor Ms Novotna, along with the irregularities in the evaluation process generally. By decision of 12 August 2014, the Head of Mission upheld the appeal and annulled the PER.

23.

By letter of 26 June 2014, the Eulex Kosovo Head of the Human Resources Office (‘the HHRO’) notified SC that an internal competition was being organised for the post of prosecutor (‘the 2014 internal competition’). That letter indicated, inter alia, that following the revision of Eulex Kosovo’s operational needs and approval of the OPLAN by the Member States on 24 June 2014, a restructuring of Eulex Kosovo had taken place, resulting in the reduction of available posts. SC participated in that competition, and was unsuccessful.

24.

On 25 August 2014, SC lodged an appeal with Eulex Kosovo against the results of the 2014 internal competition. In that appeal, SC contested, inter alia, the composition of the interview panel and Ms Novotna’s presence on that panel due to her involvement in SC’s appeal of the PER and her alleged bias against SC. By decision of 4 September 2014, the Head of Mission upheld that appeal and annulled the 2014 internal competition, on the ground that two panel members had the same nationality in breach of the SOP on Staff Selection.

25.

In 2014, Eulex Kosovo asked SC to take a driving test. SC failed that test three times during that year. In October 2014, SC provided the HHRO with documentation attesting to a disability in her hand. In November 2015 and February 2016, Eulex Kosovo again asked SC to take a driving test.

26.

By letter of 24 June 2016, the HHRO notified SC that a new internal competition was being organised for the post of prosecutor (‘the 2016 internal competition’). That letter indicated, inter alia, that, following the revision of Eulex Kosovo’s operational needs and approval of the OPLAN by the Member States on 17 June 2016 and the Deployment Plan by the Civilian Operation Commander on 20 June 2016, a restructuring of Eulex Kosovo had taken place, resulting in the reduction of available posts.

27.

On 19 July 2016, SC was interviewed by the 2016 internal competition selection board chaired by Ms Novotna. Before and during her interview, SC challenged the composition of that board on account of Ms Novotna’s involvement in the two previous appeals brought by SC against the PER and the 2014 internal competition.

28.

By letter of 30 September 2016, the HHRO informed SC that she did not pass the 2016 internal competition (‘the decision relating to the 2016 internal competition’), and thus her employment contract would expire on 14 November 2016 and not be renewed (‘the decision not to renew the employment contract’) (together, ‘the contested decisions’).

29.

On 10 October 2016, SC lodged an appeal with Eulex Kosovo against the contested decisions. SC claimed in substance that Ms Novotna’s presence on the 2016 internal competition selection board rendered the process unfair and inaccurate, and thereby breached provisions of the SOP on Staff Selection, along with the SOP on the Principles and Process of Reconfiguration (‘SOP on Reconfiguration’).

30.

By decision of 31 October 2016, the Head of Mission dismissed that appeal, finding that the principles of staff selection had not been breached. In that decision, the Head of Mission indicated, inter alia, that no conflict of interest had been shown. The Head of Mission also stated that Annex 13 of the OPLAN requires the Head of the Executive Division and the Eulex Kosovo Chief Prosecutor to be on the selection board, and that board had to be the same for all candidates.

31.

In response to that decision, on 1 November 2016, SC submitted a request for arbitration, pursuant to Article 20 of her employment contract, to the Head of Mission. By letter of 14 November 2016, the Head of Mission rejected that request.

32.

By application lodged on 25 April 2017, SC brought an action before the General Court, claiming that that Court should:

33.

SC structured her application in two parts. The first part concerned a claim based on Article 272 TFEU, consisting of five pleas in law. ( 24 ) The second part concerned a claim for compensation based on Article 340 TFEU, seeking damage resulting from Eulex Kosovo’s breach of its contractual and non-contractual obligations.

34.

By separate document lodged on 24 August 2017, Eulex Kosovo raised an objection of inadmissibility, claiming in essence that the General Court did not have jurisdiction over the action because it partly related to contracts providing for the jurisdiction of the Brussels courts. On 20 October 2017, SC lodged observations on that objection.

35.

By the order under appeal, the General Court dismissed SC’s action in its entirety. Pursuant to Article 126 of its Rules of Procedure, the General Court ruled that, without there being any need to examine the objection of inadmissibility raised by Eulex Kosovo, the action was, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law (paragraphs 22, 23 and 77 of the order under appeal).

36.

In the order under appeal, the General Court considered that the application was structured under four heads of claim (paragraphs 24 to 30 of the order under appeal). It first dismissed the third head of claim concerning the unlawfulness of the contested decisions as manifestly inadmissible (paragraphs 31 to 52 of the order under appeal), finding in essence that those decisions could not be challenged under Article 272 TFEU, and even if that claim was reclassified as an action for annulment under Article 263 TFEU, it was lodged out of time.

37.

The General Court dismissed the first and second heads of claim concerning contractual and non-contractual liability (paragraphs 53 to 69 of the order under appeal) and the fourth head of claim concerning compensation for damage (paragraphs 70 to 76 of the order under appeal) as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law. It also ordered SC to pay the costs.

38.

The grounds for the order under appeal will be reproduced, as necessary, in the examination of the pleas advanced in the appeal.

39.

By appeal lodged on 23 November 2018, SC requests the Court to set aside the order under appeal, to uphold the application except for the fifth plea in law, ( 25 ) and, in the alternative, to refer the case back to the General Court to rule on the substance. SC also requests the Court to order Eulex Kosovo to pay the costs.

40.

In its defence lodged on 7 May 2019, Eulex Kosovo requests the Court to dismiss the appeal or, alternatively, if the Court sets aside the order under appeal, to refer the case back to the General Court to rule on the substance. It also requests the Court to order SC to pay the costs.

41.

By decision of 22 May 2019, the President of the Court rejected SC’s application to submit a reply.

42.

SC and Eulex Kosovo participated in the hearing before the Court on 6 November 2019.

43.

SC raises five grounds of appeal. The first ground is based on reclassification of the third head of claim under Article 272 TFEU as an action for annulment under Article 263 TFEU. The second ground is based on failure to accept jurisdiction under Article 272 TFEU. The third ground is based on failure to consider a number of arguments relating principally to infringement of the SOP. The fourth ground is based on incorrect assessment of the claims for damages resulting from the contested decisions as inadmissible because the action for annulment against those decisions was inadmissible. The fifth ground is based on incorrect assessment of the claims for damages resulting from the repeated requests to take a driving test.

44.

I will focus below on examining the first and second grounds of appeal (in reverse order) which in my view must be upheld. The fate of the third and fourth grounds of appeal will, in turn, depend essentially on the Court’s decision on the first and second grounds of appeal. More specifically, regarding the third ground of appeal, SC complains that the General Court did not examine her arguments concerning in particular infringement of the SOP; since those arguments were submitted in support of a claim which was found to be inadmissible by the General Court, that ground cannot succeed if the Court rejects the second ground of appeal. Regarding the fourth ground of appeal, SC complains that the General Court inferred that certain claims were inadmissible because they were closely linked to the claim for annulment which was declared inadmissible, whereas the General Court wrongly reclassified the admissible action based on Article 272 TFEU as an inadmissible action based on Article 263 TFEU; thus, that ground cannot succeed if the Court rejects the first and second grounds of appeal. I am therefore of the view that it is unnecessary to address the third and fourth grounds of appeal separately in this Opinion. The fifth ground of appeal appears to me to be unfounded in law. In those circumstances, I consider that the order under appeal should be set aside in part, and that the case will have to be referred back to the General Court.

45.

Before proceeding to the assessment of the grounds of appeal (Sections B, C and D), it is necessary to verify the Court’s jurisdiction to hear this action (Section A).

46.

The Court’s jurisdiction to hear the present case is not disputed by the parties. ( 26 ) Nevertheless, under settled case-law, a question relating to the jurisdiction of the EU Courts must be raised by the Court of its own motion even if none of the parties have asked it to do so. ( 27 )

47.

Given that Eulex Kosovo is a CSDP mission operating in the field of the CFSP, it would appear necessary to examine, in the first place, whether the Court’s jurisdiction under Article 272 TFEU may potentially be affected by rules limiting the EU Courts’ jurisdiction in the CFSP under the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU. I will then address the scope of the Court’s jurisdiction under Article 272 TFEU in connection with the employment contracts between SC and Eulex Kosovo, along with Eulex Kosovo’s legal capacity to be a party to these proceedings.

48.

It should be noted at the outset that there does not yet appear to be any case-law of the Court which specifically addresses the EU Courts’ jurisdiction over actions based on Article 272 TFEU in relation to the restrictions placed on their jurisdiction in the field of the CFSP.

49.

As the Court has ruled, under the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the EU Courts do not, as a general rule, have jurisdiction with respect to the provisions relating to the CFSP and the acts adopted on the basis of those provisions. ( 28 ) Yet, since those articles introduce a derogation from the rule of general jurisdiction under Article 19 TEU, they must be interpreted narrowly. ( 29 )

50.

There is also a body of case-law on jurisdictional issues relating to the CFSP which indicates that the fact that the CFSP is involved in the circumstances of a particular case does not automatically mean that the restrictions placed on the Court’s jurisdiction under Article 24(1) TEU and Article 275 TFEU apply. ( 30 ) Since that case-law concerns in part CSDP missions, it is useful to set out salient points of certain judgments for the present case.

51.

For instance, in Elitaliana v Eulex Kosovo, ( 31 ) the Court confirmed the EU Courts’ jurisdiction to rule on an action for annulment and damages brought by the applicant based on Eulex Kosovo’s award of a public contract for helicopter services to another tenderer. The Court found that the measures at issue, whose annulment was sought on the basis of an infringement of the rules of EU public procurement law, related to the award of a public contract giving rise to expenditure under EU budget, and thus the contract at issue was subject to the provisions of the EU Financial Regulation. ( 32 ) In those circumstances, the Court held that Article 24(1) TEU and Article 275 TFEU did not exclude its jurisdiction to interpret and apply the provisions of the EU Financial Regulation with regard to public procurement.

52.

Furthermore, in H v Council and Others, ( 33 ) the Court upheld the EU Courts’ jurisdiction to hear an action for annulment and damages lodged by a seconded staff member of a CSDP civilian mission, the European Union Police Mission in Bosnia and Herzegovina, in connection with decisions taken by the Head of Mission redeploying her to a post in a regional office. The Court ruled that while the contested decisions were set in the context of the CFSP and related to operational action under the CFSP, they also constituted acts of staff management just like all similar decisions adopted by the EU institutions in the exercise of their competences. In those circumstances, the restrictions on the Court’s jurisdiction in the CFSP did not preclude review of acts of staff management relating to staff members seconded by the Member States, when the EU Courts have jurisdiction, under Article 270 TFEU, to review such acts where they concern staff members seconded by the EU institutions. Otherwise, where a single act of staff management relating to ‘field’ operations concerns both staff members seconded by the Member States and those seconded by the EU institutions, the decision with regard to the former would be liable to be irreconcilable with the decision with regard to the latter.

53.

On this basis, I observe that the foregoing cases concerned actions for annulment and damages brought under Article 263 TFEU and the second paragraph of Article 340 TFEU, and did not raise the possible application of Article 272 TFEU, since there was no contractual relationship at issue between the parties in those proceedings. Moreover, the circumstances giving rise to the judgment in H v Council and Others concerned a seconded, as opposed to a contract, staff member of a CSDP civilian mission, and the Court’s judgment sought in part to avoid irreconcilable treatment in the adjudication of disputes concerning staff seconded by the Member States and the EU institutions. It may still be inferred from that judgment that Article 24(1) TEU and Article 275 TFEU do not preclude the EU Courts’ jurisdiction to hear actions relating to the general management by CSDP civilian missions of their staff, even where such management concerns ‘field’ operations. ( 34 ) I will come back to this later in my analysis (see point 138 of this Opinion).

54.

The foregoing case-law therefore lends support to the view that the limitations placed on the EU Courts’ jurisdiction in the CFSP under Article 24(1) TEU and Article 275 TFEU do not preclude the Court’s jurisdiction pursuant to an arbitration clause within the meaning of Article 272 TFEU in the circumstances of the present case. ( 35 )

55.

Admittedly, Eulex Kosovo’s conclusion of employment contracts such as those in the present case is envisaged by Joint Action 2008/124 establishing that mission whose legal basis falls within the CFSP (see point 14 of this Opinion). Yet, it follows from Article 272 TFEU, on the basis of which the EU Courts have been conferred ‘jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law’, that that provision does not fall within the scope of the CFSP, and generally applies to various kinds of contracts including employment contracts involving staff. ( 36 ) Moreover, the EU Courts’ jurisdiction under Article 272 TFEU is grounded on the contract concluded between the parties, as opposed to an act adopted on the basis of the Treaty provisions in the CFSP.

56.

Additionally, while the employment contracts in this case may be set in the context of the CFSP, they essentially constitute typical acts of staff management in the organisation of human resources by Eulex Kosovo. A finding that the EU Courts’ jurisdiction under Article 272 TFEU is precluded merely because the employment contract is set in the context of the CFSP would appear to go against the parties’ express intention to designate the jurisdiction of the EU Courts by virtue of the arbitration clause contained in the contract, and be liable to empty Article 272 TFEU of its substance.

57.

Consequently, it should be considered that the Court’s jurisdiction pursuant to an arbitration clause under Article 272 TFEU in the circumstances of the present case is not precluded by the limitations placed on its jurisdiction, by derogation, in the CFSP pursuant to Article 24(1) TEU and Article 275 TFEU.

58.

There is also no question that Eulex Kosovo can be a party to these proceedings or that the Court’s jurisdiction under Article 272 TFEU may extend to all of the employment contracts in this case.

59.

Article 15a of Joint Action 2008/124, as inserted by Decision 2014/349 which is applicable from 12 June 2014 (see point 15 of this Opinion), gives Eulex Kosovo the capacity to enter into contracts and be a party to legal proceedings, thereby conferring legal capacity on it. It is also apparent from Article 9(3) of Joint Action 2008/124, along with Article 10(3) thereof which is also applicable as from 12 June 2014 (see points 13 and 14 of this Opinion), that Eulex Kosovo is able to recruit staff on a contractual basis and that the conditions of employment and the rights and obligations of such staff are to be laid down in the contracts concluded between it and the staff member concerned. Therefore, in accordance with the amendments inserted by Decision 2014/349, Eulex Kosovo has legal capacity and can be a defendant in these proceedings. ( 37 )

60.

Furthermore, as indicated in the parties’ written submissions, ( 38 ) it follows from the judgment in Jenkinson v Council and Others (‘Jenkinson’) ( 39 ) that the Court has jurisdiction to hear disputes arising out of the contractual relationship between SC and Eulex Kosovo, even though that relationship may relate partly to events occurring during the periods covered by the first and second employment contracts providing for the jurisdiction of the Brussels courts (see point 18 of this Opinion).

61.

Jenkinson ( 40 ) involved an action based principally on Article 272 TFEU brought by a former member of the international contract staff of certain EU international missions including Eulex Kosovo. The applicant sought in particular damages for abusive use of consecutive fixed-term contracts and unfair dismissal based on the decision not to renew his employment contract. Only the last employment contract between the applicant and Eulex Kosovo contained an arbitration clause under Article 272 TFEU, whereas all of the previous employment contracts provided for the jurisdiction of the Brussels courts.

62.

In its judgment, ( 41 ) the Court recalled that the EU Courts have jurisdiction in principle to hear and determine only claims arising from the contract containing the arbitration clause or claims which are directly connected with the obligations arising from that contract. However, where there is an employment relationship embodying a series of consecutive contracts, the fact that previous contracts did not contain an arbitration clause does not preclude the Court from having regard to all of the contracts in its assessment of the relationship between the parties. Therefore, the Court’s jurisdiction under Article 272 TFEU may extend to previous contracts conferring jurisdiction on the national courts, provided that the application contains claims arising from the contract containing the arbitration clause or which are directly concerned with the obligations arising from that contract, as was the case in those proceedings.

63.

In the present case, on the basis of the judgment in Jenkinson, the Court’s jurisdiction under Article 272 TFEU may extend to all of the employment contracts between SC and Eulex Kosovo, given that SC’s claims are linked to the existence of a single continuous employment relationship involving a series of five successive contracts, and are based on the contracts containing the arbitration clause. I will return to that judgment later in my analysis (see points 105 to 107 and 138 of this Opinion).

64.

In view of the foregoing considerations, I consider that the Court has jurisdiction to hear the present case.

65.

By the second ground of appeal, alleging infringement of Article 272 TFEU, the right to an effective remedy under Article 47 of the Charter and the principle of equal treatment, SC contends that the General Court erred in law, in paragraphs 31, 37, 40, 42, 43, 45, 46 and 64 of the order under appeal, by failing to accept jurisdiction under Article 272 TFEU regarding the third head of claim as to the unlawfulness of the contested decisions, and to consider the merits of that claim. This ground of appeal is divided into three parts.

66.

By the first part of the second ground of appeal, SC claims that the General Court erred in law by leaving unresolved the question whether it was entitled to assess the facts occurring during the period covered by the clause in the first and second employment contracts conferring jurisdiction on the Brussels courts, whereas it follows from the judgment in Jenkinson that it has jurisdiction under Article 272 TFEU.

67.

By the second part of the second ground of appeal, SC contends that the General Court erred in law by holding that SC’s claim, seeking a declaration that the contested decisions were unlawful, constituted an action for annulment, whereas declarations in relation to contractual infringements are appropriate legal remedies under Article 272 TFEU. ( 42 )

68.

By the third part of the second ground of appeal, SC submits that the General Court erred in law by finding that the contested decisions were administrative measures separable from the contract. The decision relating to the 2016 internal competition was taken on the basis of the SOP which are an integral part of the employment contract, pursuant to Article 1.2 thereof, and constitute the applicable law to that contract. ( 43 ) The General Court wrongly held that SC did not put forward any pleas based on contractual provisions, since SC raised several pleas alleging breach of the rules governing the contractual relationship, including the SOP. Moreover, the mere absence in the contract of a clause providing for its renewal has no bearing on the fact that the decision not to renew the employment contract is contractual. SC further emphasised at the hearing that the SOP are contractual in relation to SC’s employment relationship with Eulex Kosovo, and the arbitration clause would be devoid of purpose if it were limited simply to the contract itself.

69.

SC adds that the General Court’s approach is inconsistent with other case-law, ( 44 ) and leads to contract staff of CSDP missions being prevented from bringing the majority of employment disputes before the EU Courts. By foreclosing the only apparent avenue available to such staff for challenging decisions taken against them pursuant to Article 272 TFEU, the General Court’s approach infringes SC’s right to an effective remedy guaranteed by Article 47 of the Charter, along with the principle of equal treatment, in so far as the right to bring an action for annulment has been granted to seconded staff of CSDP missions. ( 45 )

70.

Eulex Kosovo submits that the General Court’s approach is consistent with settled case-law that Article 272 TFEU must be interpreted restrictively. ( 46 ) The decision relating to the 2016 internal competition was the result of a restructuring decision taken within the Council and formalised in the OPLAN and thus is separable from the contract. The General Court also rightly based its findings regarding the decision not to renew the employment contract on the absence of a clause in the contract regarding its renewal. Eulex Kosovo does not dispute that the OPLAN, CONOPS, COC and SOP are an integral part of the employment contract, yet it refutes SC’s contention that these documents are contractual, since, as it emphasised at the hearing, they are general operational documents and not negotiated by the parties.

71.

Eulex Kosovo further contends that the General Court did not infringe SC’s right to an effective remedy and equal treatment, since SC was entitled to bring an action for annulment under Article 263 TFEU. In addition, the cases referred to by SC are characterised by different circumstances, and are still pending before the relevant courts.

72.

I should state at the outset that while the third part of the second ground of appeal merits serious consideration, the first and second parts of that ground of appeal can be swiftly rejected.

73.

By the first part of the second ground of appeal, SC alleges that the General Court did not specify, in light of the judgment in Jenkinson, whether it could take account of facts occurring during the period in which the employment contracts did not include arbitration clauses providing for the jurisdiction of the EU Courts. In my view, it was not necessary for the General Court to rule on that question in order to assess whether the contested decisions were measures separable from the contract, since it was not alleged that their connection with the contract arises from that period. I therefore propose that the first part of the second ground of appeal should be rejected as unfounded.

74.

By the second part of the second ground of appeal, SC seems to complain that the General Court ruled out the possibility that an action under Article 272 TFEU can be declaratory in nature. However, the General Court did not take a position on that question, and relied on the nature of the contested decisions, rather than on the nature of the claims made against them. I therefore propose that the second part of the second ground of appeal should be rejected as unfounded.

75.

By the third part of the second ground of appeal, SC calls into question the General Court’s assessment of the contested decisions as measures separable from the contract which could not be challenged under Article 272 TFEU.

76.

I should point out that this part of the second ground of appeal raises complex issues which have not yet been dealt with in the Court’s case-law relating to the distinction between the acts which may be challenged in actions based on Articles 263 and 272 TFEU, in the context of an employment dispute involving a former member of the contract staff of a CSDP civilian mission. The complexities of the present case arise in particular from the fact that the acts in question were situated in an administrative context and were not based on any specific provisions of the employment contract concluded between the parties.

77.

I consider that the third part of the second ground of appeal is well founded and that the order under appeal should be set aside on that basis. My reasons for reaching that conclusion are as follows.

78.

First, it should be recalled that, under settled case-law, Article 272 TFEU is a specific provision which allows the EU Courts to hear disputes under a so-called arbitration clause agreed by the parties for contracts governed by either public or private law. ( 47 ) Since such disputes fall within the national courts’ general jurisdiction under Article 274 TFEU except where there is an arbitration clause, the EU Courts’ jurisdiction under Article 272 TFEU derogates from the ordinary rules of law and thus is interpreted restrictively. ( 48 ) Also, that jurisdiction is determined solely with regard to Article 272 TFEU and the terms of the arbitration clause, and cannot be affected by provisions of national law which allegedly exclude the EU Courts’ jurisdiction. ( 49 ) It follows that the EU Courts may hear and determine only claims arising from the contract concluded with the EU which contains the arbitration clause, or claims which are directly connected with the obligations arising from that contract. ( 50 )

79.

By contrast, Article 263 TFEU allows the EU Courts to review the legality of binding measures adopted by EU institutions and bodies by way of an action for annulment which falls within their exclusive jurisdiction. ( 51 ) Under the case-law, an action for annulment is available in the case of all measures adopted by the EU institutions and bodies, whatever their nature or form, which are intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. ( 52 )

80.

Consequently, the Court has established criteria to distinguish the types of acts which may be challenged under Articles 263 and 272 TFEU. In particular, in a line of case-law largely spearheaded by the judgment in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (‘Lito’), ( 53 ) the Court has held that, where there is a contract between the applicant and one of the institutions, an action for annulment may be brought under Article 263 TFEU ‘only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution in its capacity as an administrative authority’.

81.

In that connection, the Court reasoned that, were the EU Courts to hold that they had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU meaningless, but would also risk, where the contract does not contain an arbitration clause, extending the EU Courts’ jurisdiction beyond the limits of Article 274 TFEU which gives national courts ordinary jurisdiction over such disputes. ( 54 )

82.

On that basis, the Court has held that an action challenging a debit note cannot be based on Article 263 TFEU. That note falls within the contract’s scope, since the note’s purpose is the recovery of a debt which is grounded on the provisions of the contract. That note also cannot be equated to an enforcement order under Article 299 TFEU which may be availed of by an institution where a party fails to perform an obligation by the delivery date laid down. Thus, that note does not produce legal effects stemming from the exercise of the prerogatives of a public authority, but must be regarded as inseparable from the contractual relationship between the parties. ( 55 )

83.

Moreover, the Court has reached similar conclusions in circumstances involving triangular contractual relationships in which the applicant has not concluded a contract directly with an institution, but with a co-contracting party in the context of a contract concluded between that party and the EU. Here, the Court has held that acts adopted by the institution relating to the applicant’s unsatisfactory performance, reduction of salary and termination of work are not challengeable acts under Article 263 TFEU, since all the effects of such acts are produced and exhausted within the framework of the contractual relationship between the institution and the other contracting party, in relation to which the applicant is a third party. ( 56 )

84.

It should also be pointed out that the case-law concerning the distinction between Article 272 TFEU and Article 263 TFEU links up with the case-law concerning the distinction between Article 272 TFEU and Article 268 TFEU ( 57 ) which confers exclusive jurisdiction on the EU Courts to decide actions concerning EU non-contractual liability. ( 58 ) In particular, the Court has ruled that, in order to determine the contractual or non-contractual nature of the dispute for the purposes of assessing their jurisdiction, the EU Courts must verify, by reference to various matters in the file, such as the rules of law allegedly infringed, the nature of the damage claimed, the conduct complained of and the legal relations between the parties, whether there exists between them ‘a genuine contractual context, linked to the subject matter of the dispute, the in-depth examination of which proves to be indispensable for the resolution of the said action’. The Court has also emphasised that the EU Courts cannot simply base their reasoning on the rules alleged by the parties, since this would make the nature of the dispute and the court with jurisdiction susceptible to change depending on the whim of the rules invoked by the parties.

85.

It is in the light of the foregoing case-law that the third part of the second ground of appeal should be examined.

86.

In the present case, I observe that, in paragraphs 35, 36 and 42 of the order under appeal, the General Court referred to the conditions established in the Court’s case-law and in particular the judgment in Lito to ascertain whether the contested decisions fell within the scope of the contractual relationship between the parties.

87.

However, I consider the General Court’s findings, in paragraphs 37 to 45 of the order under appeal, that those decisions must be regarded as measures separable from that relationship, are vitiated by an error of law.

88.

It should be recalled that the contested decisions concern SC’s failure to pass the 2016 internal competition and the non-renewal of her employment contract. As such, the contested decisions are acts taken by Eulex Kosovo which pertain to SC’s employment relationship with Eulex Kosovo. SC’s action brought before the EU Courts seeks judicial review of the Head of Mission’s decision upholding the contested decisions in conformity with provisions of the OPLAN and the SOP (see point 30 of this Opinion).

89.

Having regard to the Court’s case-law and in particular the criteria established in the judgment in Lito, there are strong indications that the contested decisions fall within the contractual framework between SC and Eulex Kosovo. As I will argue below, those decisions are grounded on the rights and obligations arising from the employment contract between SC and Eulex Kosovo, and essentially relate to the performance of that contract. Therefore, the contested decisions do not produce legal effects stemming from Eulex Kosovo’s exercise of prerogatives of public authority, but rather should be regarded as inseparable from the contractual relationship between SC and Eulex Kosovo. Contrary to Eulex Kosovo’s submissions, while Article 272 TFEU is interpreted restrictively, as mentioned in point 78 of this Opinion, Article 272 TFEU clearly extends to disputes arising from the contract or directly connected to obligations arising therefrom, as is the case here.

90.

In paragraphs 38 to 42 of the order under appeal, the General Court found that the decision relating to the 2016 internal competition was not based on the terms of the employment contract between SC and Eulex Kosovo, but was adopted by the selection board of the 2016 internal competition in the context of the scheme to reduce staff under the OPLAN and the Deployment Plan, and stemmed from an administrative decision to hold that competition. It followed that the decision relating to the 2016 internal competition was separable from the contract.

91.

In paragraph 43 of the order under appeal, the General Court also found that SC’s pleas in support of the third head of claim were not based on the terms of the employment contract between SC and Eulex Kosovo, but raised alleged defects specific to administrative acts.

92.

I am in agreement with SC that this approach is misconceived.

93.

First, the General Court largely relied on the administrative context surrounding the decision relating to the 2016 internal competition, namely the fact that that decision resulted from decisions of the Council and the Civilian Operation Commander concerning the reduction of staff, from which it inferred that that decision was taken in that context, rather than in the context of the contractual relationship between the parties. However, the General Court failed to assess the precise link between that decision and the contractual relationship between the parties. Such an assessment would appear to be of particular importance in the context of CSDP civilian missions, given that the acts relating to the employment relationship with contract staff may often be the consequences of decisions taken by the Council or other authorities regarding the organisation and strategic direction of those missions.

94.

In the present case, while the administrative decisions in question related to the reduction of the staff of Eulex Kosovo, there is nothing to suggest that they concerned the specific treatment of staff members in the context of the competition procedure or the employment status of such members resulting from that competition. Thus, the General Court’s inference that the decision relating to the 2016 internal competition was administrative merely from the fact that it stemmed from an administrative decision regarding the organisation of Eulex Kosovo misapplies the Court’s case-law, since it is liable to lead to the possible annulment of acts falling within the contractual relationship between the parties and thus to empty Article 272 TFEU of its substance.

95.

Moreover, it is apparent that the 2016 internal competition was governed in particular by provisions of the OPLAN and the SOP. However, the General Court failed to address whether the OPLAN, CONOPS, COC and SOP, which SC alleges were breached by Eulex Kosovo, are contractual documents and therefore part of the contractual relationship between SC and Eulex Kosovo.

96.

Contrary to Eulex Kosovo’s submissions, and as indicated by SC, the fact that those documents have a general operational nature and are not negotiated by the parties to the contract is not decisive. Those documents may be considered to be contractual in the relationship between SC and Eulex Kosovo, given that they are referred to in the employment contract as an integral part of that contract, and constitute the basis of rights and obligations of the parties in the performance of that contract (see points 19 and 20 of the Opinion). ( 59 )

97.

In that regard, I should point out that, in the applicable version of the SOP on Reconfiguration, annexed to Eulex Kosovo’s written submissions, ( 60 ) Article 5, titled ‘Review’, provides that: ‘Without prejudice to the legal remedies foreseen by the employment contracts, any member of the staff affected by the reconfiguration may request the review of the process from the Head of Mission in case of substantiated concerns by the staff member affected about the fairness and accurateness of the process’. That implies a staff member’s recourse to remedies within the contractual framework, namely, an action brought under Article 272 TFEU pursuant to the arbitration clause in the employment contract, for challenging the fairness of an internal competition procedure affecting that member, as in the present case.

98.

It is also worth noting that, as indicated by SC, a finding that those documents are not contractual seems at odds with General Court case-law not mentioned in the order under appeal, in which such documents are regarded as forming the basis for contractual obligations between the parties. In particular, PY v EUCAP Sahel Niger ( 61 ) involved an action based on Article 272 TFEU lodged by a former contract staff member of a CSDP civilian mission, alleging breach of his employment contract based on that mission’s code of conduct. The General Court held that the action should be examined on the basis of the provisions of the code of conduct which formed an integral part of the employment contract and constituted the applicable law for assessing those claims.

99.

For similar reasons, the General Court’s finding that SC’s pleas related to defects specific to administrative acts and were not based on the terms of the contract in order to support its conclusion that the decision relating to the 2016 internal competition was of an administrative nature is problematic. The General Court overlooked SC’s pleas alleging infringement of rules governing the contractual relationship between the parties, including the OPLAN and the SOP. Thus, by failing to address whether those documents were contractual, the General Court incorrectly held that SC did not put forward any pleas based on the terms of the employment contract.

100.

I should also point out that that finding seems at odds with the Court’s case-law relating to the distinction between Articles 268 and 272 TFEU (see point 84 of this Opinion) which establishes that the EU Courts must verify the existence of a genuine contractual context between the parties, and cannot rely solely on the pleas alleged by the parties to establish the contractual nature of the dispute,in so far as the admissibility of the action is concerned. ( 62 ) Indeed, the General Court did just that by assessing the contractual nature of the dispute for the purposes of Article 272 TFEU based on pleas invoked by SC.

101.

Finally, nothing else in the case file supports the conclusion that, in adopting the decision relating to the 2016 internal competition, Eulex Kosovo acted not in its capacity as employer/co-contracting party, but instead as a public authority going beyond the contractual framework between the parties. The circumstances arising in the present case are different in particular from a situation in which the employment relationship goes beyond the contractual context and has staff regulations elements which result from entrusting the EU institution or body with ‘public interest responsibilities’. ( 63 )

102.

In paragraph 45 of the order under appeal, the General Court found that while the last employment contract provided, in Article 16.1, that its duration covered the period from 15 June to 14 November 2016, that contract contained no clause providing for its renewal. Thus, the decision not to renew the employment contract did not result from the contractual terms between SC and Eulex Kosovo, but was based on an administrative decision of the Human Resources department drawing the consequences of the 2016 internal competition and SC’s failure to pass that competition.

103.

Consequently, the General Court relied on the fact that the contract did not contain any clause providing for its renewal in order to find that that decision did not fall within the contractual relationship between SC and Eulex Kosovo. Yet, as indicated by SC, the fact that the employment contract between SC and Eulex Kosovo did not contain a clause providing for its renewal is not determinative as to the assessment whether that decision falls within the scope of the contractual relationship between the parties in accordance with the Court’s case-law and in particular the judgment in Lito.

104.

Indeed, on the contrary, the decision not to renew the employment contract would seem to fall squarely within the contractual relationship between SC and Eulex Kosovo. This is supported by the fact that the last employment contract further provides, in Article 16.2, for the termination of the employment contract by the employee or employer. By taking the decision not to renew SC’s contract, Eulex Kosovo was acting as employer in terminating SC’s employment at Eulex Kosovo within the contractual framework between the parties. Consequently, nothing supports the conclusion that, in taking that decision, Eulex Kosovo was acting outside that framework in the exercise of prerogatives of public authority.

105.

Furthermore, I consider that the judgment in Jenkinson ( 64 ) provides indications that the decision not to renew the employment contract falls within the contractual relationship between SC and Eulex Kosovo. As mentioned in points 61 and 62 of this Opinion, the circumstances arising in that case concerned an action based on Article 272 TFEU brought by a former member of the international contract staff of Eulex Kosovo, alleging in particular unfair dismissal resulting from the non-renewal of his employment contract.

106.

Admittedly, the Court did not take a direct position on the nature of the decisions in question, since it addressed a different issue relating to the scope of the EU Courts’ jurisdiction under Article 272 TFEU in the context of an employment relationship based on several contracts, only the last of which contained an arbitration clause. Nonetheless, the Court reasoned that the applicant’s claims, including those concerning the non-renewal of his employment contract, fell within the scope of its jurisdiction under the arbitration clause in the final contract as arising from that contract or directly connected with the obligations arising from that contract. That judgment therefore presumes that a claim based on non-renewal of the employment contract in those circumstances is contractual.

107.

This is also evident in Advocate General Szpunar’s Opinion in Jenkinson. ( 65 ) In particular, the Advocate General considered the relationship between the applicant and Eulex Kosovo to be ‘an employment relationship of a contractual nature’ and since it was the decision not to renew the employment contract which put an end to that employment relationship, that decision and the final contract containing the arbitration clause were linked for the purposes of the Court’s jurisdiction under Article 272 TFEU.

108.

It is also worth pointing out in this connection that the General Court’s approach seems at odds with other General Court case-law involving employment disputes brought by former members of the contract staff of Eulex Kosovo, in which decisions not to renew the employment contract were regarded as measures falling within the contractual relationship between the parties. While those decisions are not binding on this Court, I see no reason, contrary to Eulex Kosovo’s submissions, why that case-law is not relevant to the present case, especially given the similarities regarding the acts in question.

109.

In particular, in Bitiqi and Others v Commission and Others, ( 66 ) the General Court was called upon to rule on the legality of decisions taken by Eulex Kosovo not to renew the employment contracts of several contract staff members. In those decisions, the Head of Mission informed those staff members that their employment contracts would expire on specific dates and would not be extended thereafter. The General Court held that the dispute was situated within the contractual framework between the parties, and arose directly from the employment relationship between them. Thus, it fell within the scope of the clauses contained in the employment contracts conferring jurisdiction on the Brussels courts for disputes arising out of or relating to those contracts.

110.

Furthermore, Sógor v Council and Others ( 67 ) concerned an action brought by a legal adviser employed by Eulex Kosovo and later the European Union Special Representative in Kosovo, seeking in particular the annulment of the procedure leading to the non-renewal of his employment contract. The General Court held that the dispute fell within the clause contained in the employment contract which, at the time, conferred jurisdiction on the Brussels courts for disputes arising out of or in connection with the contract. The General Court noted that the applicant’s last employment contract was concluded for a fixed period, the non-renewal of which he was challenging in those proceedings, and thereby found that the applicant’s claims derived from that contract or, at least, were directly related to the obligations arising therefrom.

111.

On the basis of that case-law, it should be observed in particular that the fact that the employment contracts between the contract staff members and Eulex Kosovo were of fixed duration and did not contain clauses providing for their renewal was not regarded as an element precluding the assessment of the decisions taken by Eulex Kosovo not to renew those staff members’ employment contracts as acts which fell within the contractual relationship between the parties.

112.

On a final note, I would like to point out that, viewed from a broader perspective, a finding that the contested decisions fall within the contractual framework between SC and Eulex Kosovo may be regarded as accommodating the specific context of CSDP civilian missions, in particular by upholding the flexibility of contractual arrangements for the engagement of contract staff of such missions, whilst ensuring that such staff members are afforded effective judicial protection in disputing claims arising from those contractual arrangements based on the arbitration clause agreed upon by the parties in their employment contracts. ( 68 ) Such a finding certainly does not detract from the discretion of the EU and the Member States to modify the framework relating to the employment of contract staff of CSDP civilian missions. Indeed, it should be noted that the Joint Action Plan Implementing the Civilian CSDP Compact, issued by the Commission and the HR in 2019, envisages a review of the employment status of international contract staff and possible options for its improvement. ( 69 )

113.

In light of the foregoing, I propose that the Court uphold the third part of the second ground of appeal and the order under appeal be set aside on that basis.

114.

By the first ground of appeal, alleging infringement of Article 272 TFEU, SC submits that the General Court erred in law, in paragraphs 48 to 52 of the order under appeal, by reclassifying the third head of claim, seeking a declaration based on Article 272 TFEU that the contested decisions are unlawful, as an action for annulment based on Article 263 TFEU. This ground of appeal is divided into three parts.

115.

By the first part of the first ground of appeal, SC contends that the General Court did not have jurisdiction for such a reclassification. SC takes the view that since the General Court did not have jurisdiction to hear an action for annulment against the contested decisions, it did not have jurisdiction to reclassify the action either.

116.

By the second part of the first ground of appeal, SC argues that the reclassification was against SC’s express intention. As illustrated by its case-law on the reclassification of actions based on Article 263 TFEU as actions based on Article 272 TFEU, ( 70 ) the General Court cannot validly reclassify an action where, in particular, this is contrary to the applicant’s express intention. Here, SC expressly decided not to bring an action for annulment, on the grounds that the General Court would have refused jurisdiction under its case-law and the application would have been out of time. SC also stated at the hearing that such a reclassification is not possible, since actions under Article 272 TFEU already have a high threshold by requiring the parties to insert an arbitration clause in their contract, but considered, in the alternative, that the conditions in the General Court’s case-law may be applied by analogy.

117.

By the third part of the first ground of appeal, SC complains that the General Court did not grant SC the right to be heard in relation to the reclassification, even though that reclassification entailed serious consequences for SC, including that she was denied judicial review of the contested decisions and her related action for compensation.

118.

Eulex Kosovo submits that the General Court did not in fact reclassify the action in the order under appeal, but merely stated the extent to which, and on a conditional basis, that action could have been admissible if it had been brought under Article 263 TFEU. Eulex Kosovo also stated at the hearing that there are precedents for the General Court’s approach in the present case, ( 71 ) and that such a reclassification is possible, based on the application, by analogy, of the conditions set out in the General Court’s case-law on the reclassification of actions under Article 263 TFEU as actions under Article 272 TFEU.

119.

Eulex Kosovo further disputes SC’s claim that she was denied judicial review and should have been granted the right to be heard on the proposed reclassification. Judicial review could only be carried out if the action had been admissible, and it was not necessary for the General Court to hear SC under Article 126 of its Rules of Procedure.

120.

By the first ground of appeal, SC challenges the legality of the General Court’s reclassification of the third head of claim. More specifically, SC submits in essence that the General Court did not comply with conditions governing such a reclassification, namely that: the General Court has jurisdiction to rule on the reclassified action (first part); the applicant’s express intention does not preclude it (second part); and the applicant must be heard (third part). Moreover, in reference to SC’s submissions at the hearing as noted in point 116 of this Opinion, SC appears to argue that such a reclassification should not be permitted in principle, given the particularities of Article 272 TFEU.

121.

Therefore, it should be observed that the first ground of appeal raises important issues which have not yet been addressed in the Court’s case-law as to whether a reclassification of an action based on Article 272 TFEU as an action based on Article 263 TFEU is possible, and, if so, the conditions under which such a reclassification can be made.

122.

In view of my proposal that the second ground of appeal is well founded, it may not be necessary for the Court to rule on the first ground of appeal. Nevertheless, I will examine the first ground of appeal, in case the Court disagrees with my view, so that it would have to be assumed that the contested decisions are measures separable from the contract which could not be challenged under Article 272 TFEU.

123.

I wish to state from the outset that the first ground of appeal appears to me to be well founded, and the General Court’s partial reclassification of the action is vitiated by an error of law.

124.

Before setting out my reasons for reaching this conclusion, I would like to point out that Eulex Kosovo’s argument that the General Court did not in fact reclassify SC’s claim cannot be accepted.

125.

In paragraph 46 of the order under appeal, the General Court found that although SC expressly relied on Article 272 TFEU, the third head of claim must be regarded as an action under Article 263 TFEU.

126.

This led the General Court to find, in paragraphs 51 and 52 of the order under appeal, that the third head of claim was inadmissible because it was lodged out of time.

127.

Admittedly, in paragraph 48 of the order under appeal, the General Court prefaced its discussion of the time limit set out in Article 263 TFEU with the wording, ‘even assuming that the Court has jurisdiction to reclassify the basis of the third head of claim for annulment based on Article 263 TFEU’. However, the General Court already formally reclassified the claim in paragraph 46 of the order under appeal. Moreover, it follows from paragraphs 51 and 52 of the order under appeal, read in conjunction with paragraphs 49 and 50 thereof, that the General Court relied exclusively on the fact that the action was lodged out of time in order to establish its inadmissibility. Such a finding can be made only if the action has been reclassified as an action based on Article 263 TFEU.

128.

Turning to the heart of the matter, it should be borne in mind that, under settled case-law, which was mentioned in paragraph 27 of the order under appeal, it is for the applicant to choose the legal basis of its action and not for the EU Courts themselves to choose the most appropriate legal basis. ( 72 )

129.

Nevertheless, in an extensive body of case-law, the General Court has held that where an action for annulment or an action for damages is brought before that Court, although the dispute is in fact contractual in nature, it may, in the interests of procedural economy, reclassify the action if the conditions for such reclassification are met. ( 73 )

130.

Therefore, reclassification of an action based on Article 263 TFEU as an action based on Article 272 TFEU is possible, without the rights of defence of the defendant institution or body being affected, where: first, the express intention of the applicant does not preclude it, and second, at least one plea alleging infringement of the rules governing the contractual relationship in question is put forward in the application. ( 74 ) Those two conditions are cumulative, ( 75 ) meaning that they must both be satisfied. ( 76 ) If the applicant’s express intention is not to base the action on Article 272 TFEU, ( 77 ) or no pleas alleging infringement of the rules governing the contractual relationship have been put forward, ( 78 ) then the reclassification is not possible. ( 79 )

131.

Moreover, the General Court has ruled that an action based on Article 263 TFEU may be reclassified as an action based on Article 272 TFEU only if there is an arbitration clause conferring jurisdiction on the EU Courts to hear an action brought on that basis. ( 80 ) Thus, it appears that this is not a condition for reclassification per se, but embodies an independent requirement for the purposes of verifying whether the General Court has jurisdiction under Article 272 TFEU to hear the action as reclassified. ( 81 )

132.

I should also point out that the General Court has mentioned the possibility of reclassifying an action based on Article 272 TFEU as an action based on Article 263 TFEU, albeit in a more limited fashion. In particular, the General Court has not yet established whether the conditions in its case-law just mentioned apply in the reverse situation. For example, in some cases, ( 82 ) the General Court has taken a similar approach to the order under appeal, finding that even if such a reclassification could be made, the action was lodged out of time and therefore inadmissible. In another case, ( 83 ) the General Court merely noted that the applicant had maintained its position without requesting reclassification, and thereby dismissed the action as inadmissible.

133.

In the present case, having regard to the foregoing case-law of the General Court, it seems to me that there is no reason, based on the information which has been put before the Court, to preclude the possibility in principle of reclassifying an action based on Article 272 TFEU as an action based on Article 263 TFEU, provided that certain conditions are fulfilled. My understanding is that such a reclassification generally denotes a situation in which the applicant has brought an action before the EU Courts under one legal basis, but in view of its nature, should have been based on another. Thus, in the interests of procedural economy, the EU Courts may reclassify the action under the appropriate legal basis, so as to avoid requiring the applicant to lodge a new action under that legal basis. In particular, the fact that the EU Courts can only hear an action based on Article 272 TFEU if there is an arbitration clause would not seem to me to preclude such a reclassification in principle, since that reclassification presumes that the nature of the action is not contractual and, in any event, the action in all but legal basis remains the same.

134.

There are also grounds for considering, as indicated by SC and Eulex Kosovo, that the conditions laid down in the General Court’s case-law, concerning the reclassification of an action based on Article 263 TFEU as an action based on Article 272 TFEU, may be applied by analogy. Those grounds are based in particular on the interests of promoting a coherent approach in the case-law of the EU Courts, and ensuring that the fundamental principles of EU procedural law and especially the rights of defence of the parties to the dispute are respected.

135.

It follows from this that the EU Courts may in principle reclassify an action based on Article 272 TFEU as an action based on Article 263 TFEU, without the rights of defence of the parties being affected, where the following two conditions are met: first, the express intention of the applicant does not preclude it, and second, at least one plea alleging lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or any rule of law relating to their application, or misuse of powers, in accordance with the second paragraph of Article 263 TFEU, is put forward in the application. Moreover, while not an explicit condition of reclassification as such, the EU Courts must verify their jurisdiction to hear the action for annulment, as reclassified, in accordance with Article 263 TFEU.

136.

The express intention of the applicant seems to me to be an important element in this regard. This is so, taking into account the requirements imposed on the admissibility of actions for annulment, and in particular the time limit set out in the sixth paragraph of Article 263 TFEU which generally obliges the applicant to act speedily in bringing an action for annulment, as compared to an action based on Article 272 TFEU which does not set out any specific time limit in that regard. Therefore, a reclassification should not be possible where the applicant expresses the intention that the action should not be based on Article 263 TFEU. As illustrated by the General Court’s case-law, ( 84 ) that intention may be ascertained in accordance with the relevant procedural rules governing the EU Courts, for example, on the basis of the applicant’s submissions or in response to written or oral questions put to the applicant in the course of the proceedings.

137.

It is in the light of those considerations that SC’s first ground of appeal should be examined.

138.

In my view, the first part of the first ground of appeal should be rejected. Admittedly, in the order under appeal, the General Court did not verify its jurisdiction to hear the reclassified action under Article 263 TFEU. Yet, in view of the case-law mentioned in point 131 of this Opinion, the General Court was not required to verify its jurisdiction before considering the reclassification of the action. Moreover, there is little doubt that the General Court has jurisdiction to hear the action on the basis of Article 272 TFEU, in light of the judgment in Jenkinson (see points 60 to 63 of this Opinion), and as reclassified on the basis of Article 263 TFEU, in light of the judgment in H v Council and Others (see points 52 and 53 of this Opinion). I therefore propose that the first part of the first ground of appeal should be rejected as unfounded.

139.

I consider that the second part of the first ground of appeal must be upheld. In the order under appeal, the General Court proceeded to reclassify the third head of claim without verifying whether the conditions relating to such a reclassification were fulfilled, and in particular whether the applicant’s express intention precluded it. Therefore, the General Court erred in law by reclassifying the third head of claim against SC’s express intention not to base the third head of claim on Article 263 TFEU.

140.

For similar reasons, I take the view that the third part of the first ground of appeal, which is largely linked to the second part of that ground of appeal, should also be upheld. While the General Court may decide to dispose of a case without hearing the parties pursuant to Article 126 of its Rules of Procedure, ( 85 ) it is nonetheless required to take account of the applicant’s express intention as one of the conditions for reclassifying an action based on Article 272 TFEU as an action based on Article 263 TFEU as just mentioned. Consequently, the General Court erred in law by reclassifying the third head of claim without obtaining SC’s views on the proposed reclassification.

141.

I therefore propose that the Court uphold the second and third parts of the first ground of appeal and the order under appeal be set aside on that basis.

142.

By the fifth ground of appeal, alleging infringement of Article 268 TFEU and the second paragraph of Article 340 TFEU, the right to fair and just working conditions and the right to sound administration, along with infringement of Article 272 TFEU and the first paragraph of Article 340 TFEU and the requirements set out in the 2014 call for contributions, SC submits that the General Court erred in law, in paragraphs 57 to 64, read together with paragraph 74, of the order under appeal, by holding that the claims based on Eulex Kosovo’s contractual and non-contractual liability relating to the repeated requests to take a driving test were manifestly lacking any foundation in law.

143.

SC claims that the General Court disregarded SC’s arguments concerning Eulex Kosovo’s contractual liability, since the requirement of the call for contributions to be able to drive a four-wheel drive vehicle and to take a driving test cannot be insisted upon when a staff member, like SC, has a disability.

144.

Moreover, regarding the non-contractual liability claim, SC asserts that the General Court disregarded SC’s arguments that those requests were unlawful and infringed SC’s right to working conditions which respect her health, safety and dignity, along with her right to sound administration. The General Court also erred in law by finding that the application did not contain any evidence establishing the causal link and damage requirements, since SC considers, on the basis of Civil Service Tribunal case-law, ( 86 ) that an applicant claiming non-material damage does not have to provide evidence of those requirements.

145.

Eulex Kosovo submits that SC’s ability to drive a four-wheel drive vehicle was an essential element in her employment at Eulex Kosovo. SC also fails to justify the claims for damage, and her failure to pass the driving tests is not causally linked to the appeal brought against the contested decisions, nor to the damage alleged.

146.

In my view, the fifth ground of appeal cannot succeed.

147.

In paragraph 64 of the order under appeal, the General Court based its conclusion concerning the contractual liability of Eulex Kosovo on the fact that the employment contract required SC to be able to drive a four-wheel drive vehicle. However, I should point out that SC does not criticise that finding which is sufficient to justify the conclusion reached by the General Court.

148.

In paragraphs 57 to 63 of the order under appeal, the General Court’s decision to dismiss SC’s non-contractual liability claim was based on the fact that the application did not contain any information enabling the General Court to identify the reality of the damage or the causal link between the conduct complained of and the damage alleged. The General Court reached that decision, having regard to settled case-law referred to in paragraphs 58, 59 and 61 of the order under appeal, that the conditions governing EU non-contractual liability are cumulative, ( 87 ) and the applicant must provide conclusive evidence of the reality of the damage alleged and a direct causal link. ( 88 )

149.

I should point out that SC does not attempt to show that the evidence provided was sufficient or that the General Court’s assessment was based on a distortion of that evidence, but merely alleges an error of law which cannot be established in the light of the settled case-law. It should be added that relevant findings of the Civil Service Tribunal’s decisions relied on by SC were set aside on appeal. ( 89 )

150.

I therefore propose that the fifth ground of appeal should be rejected as unfounded.

151.

In accordance with Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

152.

I do not consider that the state of proceedings is such as to permit the Court to give judgment. Indeed, factual claims relating to the substance of the dispute were not considered by the General Court in the order under appeal, since it held certain claims inadmissible. As requested by SC and Eulex Kosovo, the case should be referred back to the General Court for judgment.

153.

In light of the foregoing, I propose that the Court of Justice should set aside in part the order of the General Court of the European Union of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), in so far as the General Court dismissed SC’s action on the ground that the third head of claim was inadmissible, and refer the case back to the General Court for a decision on the substance, the costs being reserved.