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August 2016

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The EU Court’s Grand Chamber supports equality and the rule of law in EU Missions

By | IAL, International Administrative Law, News, Rule of Law | No Comments

In a long awaited judgment the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) found on appeal that it has jurisdiction in an employment dispute brought by an Italian magistrate who was seconded by her government to the CDSP mission in Bosnia Herzegovina.

In the Case C‑455/14 P H vs. Council of the European Union and the European Commission and the European Union Police Mission (EUPM) in Bosnia and Herzegovina the claimant brought a legal suit before the EU General Court seeking the annulment of a re-deployment decision adopted by the Head of the EUPM and compensation for harm suffered as a result of alleged psychological harassment.

In an earlier decision refusing the claim the EU General Court ruled on 10 July 2014 in H v Council and Others (T‑271/10) that it lacked jurisdiction since the contested decisions fell within the EU’s Common Foreign Security Policy (‘CFSP’) and relied upon provisions that set out that the CJEU shall not have jurisdiction over provisions relating to the CFSP norwith respect to acts adopted on the basis of those provisions.

The Grand Chamber ruling on 19th July 2016 found that pursuant to the aforementioned provisions, the CJEU does not, in principle, have jurisdiction on the provisions of, or acts adopted under, the CSFP. The Court then observed that the European Union was founded, in particular, on the values of equality and the rule of law stating:

“The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law”.

Whilst the ruling acknowledged that the contested decisions were admittedly set in the context of the CFSP it added that this does not necessarily exclude the jurisdiction of the EU judicature. The Grand Chamber then referred to the fact that the EU judicature had jurisdiction to rule on all actions brought by EU staff members having been seconded to the EUPM. It noted that staff members seconded by the Member States and those seconded by the EU institutions were subject to the same rules so far as concerns the performance of their duties ‘at theatre level’.

Indeed, the decisions adopted by the authorities of that mission, which related to the allocation of human resources assigned to it by the EU institutions and Member States, did have an operational element, which fell within the CFSP. However, by their very essence, they also constitute acts of staff management. Consequently, it was held that the jurisdiction of the EU judicature should not be excluded from reviewing acts of staff management that relate to staff members seconded by the Member States.

Finally the Grand Chamber held that the contested decisions were only imputable to the Council and that, accordingly, the action was admissible only in so far as it was directed against the Council. The case was referred back to the General Court for judgment on the substance of the action.

The Grand Chamber’s judgment is very welcome news for more than 1500 staff who currently serve with CSDP missions, in some of the most dangerous parts of the world. It is an important step towards bringing missions under judicial scrutiny, thus achieving greater legal accountability. It is expected that the case-law of the CJEU will also serve as an important tool for policy change and as guidance for human resources officials in CSDP missions, seconding institutions and employees serving in CSDP missions alike.

In conclusion, the Grand Chamber has made an important ruling by permitting effective judicial review of staff management decisions by a CSDP mission, thusensuring compliance with EU law, including the EU Charter, and bringing a welcome boost to the morale of staff upon whom the success of such missions ultimately depends.

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