Antje Kunst*
Photo credit: Jan-Tore Egge, via Wikimedia Commons
Introduction
In a January 18, 2024, ruling, the European Union Court of Justice dismissed an appeal by Irish citizen Mr. Jenkinson. This decision impacts thousands of individuals working in EU international missions governed by the EU’s Common Foreign and Security Policy (CFSP). While the Court sided with the defendants (the Council, Commission, European External Action Service, and Eulex Kosovo), their victory is questionable. The Court upheld prior rulings without addressing key concerns about the lack of a legal framework comparable to the Conditions of Employment of Other Servants of the European Union (CEOS) for contract staff in EU missions.
Applicability of Private International Law (Rome I Regulation)
Mr. Jenkinson argued that the EU’s private international law, specifically the Rome I Regulation, should not apply to public law contracts like his. The Court disagreed, stating that in the absence of a chosen national law, the General Court was right to use the Rome I Regulation to determine applicable national law. This led to the application of Irish law, which ultimately resulted in the dismissal of Mr. Jenkinson’s claim to reclassify his series of fixed-term contracts.
Application of various national laws to staff working for the same employer
The Court acknowledged the potential for unequal treatment of Eulex Kosovo contract staff due to the application of different national laws. However, it concluded that in the absence of a unified European framework, utilizing private international law to determine applicable national law was necessary. The Court also found that Mr. Jenkinson failed to prove that applying various national laws to Eulex Kosovo staff constituted discrimination.
This aspect of the ruling is perplexing. The Court acknowledges the potential for inconsistencies and unequal treatment but fails to offer solutions. Legal experts have expressed concerns about this approach, noting the risk of differing outcomes for similar cases based solely on national law variations. This inconsistency could have favored Mr. Jenkinson if a different national law had been applied.
Other similar cases pending
Several similar cases involving Eulex Kosovo staff are currently on hold, awaiting further legal developments. The outcome of Mr. Jenkinson’s case raises concerns about inconsistent rulings in future cases, especially if different national laws are applied.
Claim of failure to adopt a legal regime comparable to the CEOS
Mr. Jenkinson initially filed his case in 2017, alleging that the Council, Commission, and EEAS failed to employ him under a legal structure comparable to the CEOS. He argued that the General Court erred in concluding that the Council could delegate authority for determining employment terms for international civilian staff.
The Court dismissed Mr. Jenkinson’s argument for being procedurally flawed but did not offer an opinion on the substance of the complaint. This is significant because future cases could address these procedural shortcomings and force the Court to consider the legality of not providing a CEOS-like framework for contract staff.
Plea of Illegality regarding Joint Action 2008/124 establishing the Eulex Kosovo
Mr. Jenkinson’s claim that specific articles in Joint Action 2008/124 (the legislation establishing Eulex Kosovo) violated Article 336 TFEU was also dismissed. The Court upheld the General Court’s finding that this claim lacked sufficient evidence. However, future litigation could provide more robust evidence, compelling the Court to reconsider the legality of the Joint Action provisions.
National law vs EU staff law resolving the dispute
Mr. Jenkinson argued that using national law created three instances of unequal treatment: he was treated differently from permanent EU staff, he was treated the same as private-sector workers in the national system, and staff of different nationalities working for the same employer were subject to different rules.
The Court rejected this argument on procedural grounds without addressing the underlying issue of potential discrimination. This provides a roadmap for future cases to directly address this important point.
Conclusion
The Court’s decision to uphold the use of national law in this case is problematic and creates uncertainty for EU missions and their staff. This approach risks inconsistent outcomes in similar cases and raises concerns about potential discrimination and unequal treatment.
While the Court avoided ruling on the legality of not having a CEOS-like system for EU mission staff, this case highlights the need for a unified framework. The potential financial and legal risks associated with continuing the status quo are substantial. A standardized system would provide clarity, ensure fairness, and reduce the likelihood of future litigation.
As the President of the General Court stated, defining the scope of employee rights within the EU legal framework is critical, preferably aligning it with the protections afforded to regular EU staff. The Jenkinson case underscores the urgency of this issue and the need for a decisive shift in policy.
*Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP) and takes instructions from individuals challenging a wide range of decisions including EU employment cases to EU and UN sanctions before the EU courts and international bodies.