# 62020TJ0194

JUDGMENT OF THE GENERAL COURT (
  i
  ) (Seventh Chamber, Extended Composition)

i

13 July 2022 (
  *1
  )

*1

[Text rectified by order of 3 February 2023]

(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)

In Case T‐194/20,

JF, represented by A. Kunst, lawyer,

JF

applicant,

v

EUCAP Somalia, represented by E. Raoult, lawyer,

EUCAP Somalia

defendant,

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed of R. da Silva Passos (Rapporteur), President, V. Valančius, I. Reine, L. Truchot and M. Sampol Pucurull, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 9 December 2021,

gives the following

Judgment

Judgment

| 1 | By his action, the applicant, JF, seeks, first, on the basis of Article 263 TFEU, annulment of EUCAP Somalia’s note of 18 January 2020 (‘the note of 18 January 2020’) and the letter of 29 January 2020 (‘the letter of 29 January 2020’) by which it decided not to renew his contract of employment (together, ‘the contested acts’) and, secondly, on the basis of Article 268 TFEU, compensation for the damage he suffered as a result of those acts, and, in the alternative, on the basis of Article 272 TFEU, that the contested acts be declared unlawful and compensation for the damage he suffered as a result of those acts. |
| --- | --- |

1

By his action, the applicant, JF, seeks, first, on the basis of Article 263 TFEU, annulment of EUCAP Somalia’s note of 18 January 2020 (‘the note of 18 January 2020’) and the letter of 29 January 2020 (‘the letter of 29 January 2020’) by which it decided not to renew his contract of employment (together, ‘the contested acts’) and, secondly, on the basis of Article 268 TFEU, compensation for the damage he suffered as a result of those acts, and, in the alternative, on the basis of Article 272 TFEU, that the contested acts be declared unlawful and compensation for the damage he suffered as a result of those acts.

I. Background to the dispute

I.

Background to the dispute

| 2 | EUCAP Somalia, formerly EUCAP NESTOR, is a Common Foreign and Security Policy (CFSP) mission of the European Union 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), taken under Chapter 2 of Title V of the EU Treaty, on the CFSP. According to Article 2 of Decision 2012/389, as amended by Council Decision (CFSP) 2018/1942 of 10 December 2018 (OJ 2018 L 314, p. 56), the objective of EUCAP Somalia is to assist Somalia in building its maritime security capacity in order to enhance its ability to enforce maritime law. |
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2

EUCAP Somalia, formerly EUCAP NESTOR, is a Common Foreign and Security Policy (CFSP) mission of the European Union 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), taken under Chapter 2 of Title V of the EU Treaty, on the CFSP. According to Article 2 of Decision 2012/389, as amended by Council Decision (CFSP) 2018/1942 of 10 December 2018 (OJ 2018 L 314, p. 56), the objective of EUCAP Somalia is to assist Somalia in building its maritime security capacity in order to enhance its ability to enforce maritime law.

| 3 | According to Article 7(3) of Decision 2012/389, as amended by Decision 2018/1942, ‘international and local staff may ... be recruited by EUCAP Somalia on a contractual basis if the functions required are not provided by personnel seconded by Member States’. That provision also provides that, ‘exceptionally, in duly justified cases, where no qualified applications from Member States are available, nationals from participating third States may be recruited on a contractual basis, as appropriate’. Article 7(4) of Decision 2012/389, as amended by Decision 2018/1942, states that ‘the conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts between EUCAP Somalia and the members of staff concerned’. |
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3

According to Article 7(3) of Decision 2012/389, as amended by Decision 2018/1942, ‘international and local staff may ... be recruited by EUCAP Somalia on a contractual basis if the functions required are not provided by personnel seconded by Member States’. That provision also provides that, ‘exceptionally, in duly justified cases, where no qualified applications from Member States are available, nationals from participating third States may be recruited on a contractual basis, as appropriate’. Article 7(4) of Decision 2012/389, as amended by Decision 2018/1942, states that ‘the conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts between EUCAP Somalia and the members of staff concerned’.

| 4 | According to Article 12a of Decision 2012/389, as amended by Decision 2018/1942, ‘EUCAP Somalia shall have the capacity to procure services and supplies, enter into contracts and administrative arrangements, employ staff, hold bank accounts, acquire and dispose of assets, discharge its liabilities and to be a party to legal proceedings, as required in order to implement this Decision’. |
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4

According to Article 12a of Decision 2012/389, as amended by Decision 2018/1942, ‘EUCAP Somalia shall have the capacity to procure services and supplies, enter into contracts and administrative arrangements, employ staff, hold bank accounts, acquire and dispose of assets, discharge its liabilities and to be a party to legal proceedings, as required in order to implement this Decision’.

| 5 | Between [confidential] and 31 January 2020, during which time he signed several successive fixed-term employment contracts without an interruption, the applicant was an international contract staff member of EUCAP Somalia, where he held the position of [confidential]. |
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5

Between [confidential] and 31 January 2020, during which time he signed several successive fixed-term employment contracts without an interruption, the applicant was an international contract staff member of EUCAP Somalia, where he held the position of [confidential].

confidential

confidential

| 6 | Article 17 of the applicant’s last contract of employment (‘the contract at issue’), entitled ‘Duration’, provided, in paragraph 1, as follows:
  ‘The [e]mployee shall commence his/her work on 1 [November] 2019 and the duration of this contract shall be till 31 [January] 2020.’ |
| --- | --- |

6

Article 17 of the applicant’s last contract of employment (‘the contract at issue’), entitled ‘Duration’, provided, in paragraph 1, as follows:

‘The [e]mployee shall commence his/her work on 1 [November] 2019 and the duration of this contract shall be till 31 [January] 2020.’

| 7 | The contract at issue contained, in Article 22(1), an arbitration clause in the following terms:
  ‘Disputes arising out of or relating to this contract shall be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 [TFEU].’ |
| --- | --- |

7

The contract at issue contained, in Article 22(1), an arbitration clause in the following terms:

‘Disputes arising out of or relating to this contract shall be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 [TFEU].’

| 8 | Following the notification by the United Kingdom of Great Britain and Northern Ireland to the Council of the European Union on 29 March 2017 of its intention to withdraw from the European Union pursuant to Article 50(2) TEU, the European Union negotiated an agreement with that State setting out the arrangements for such withdrawal, in accordance with that provision. |
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8

Following the notification by the United Kingdom of Great Britain and Northern Ireland to the Council of the European Union on 29 March 2017 of its intention to withdraw from the European Union pursuant to Article 50(2) TEU, the European Union negotiated an agreement with that State setting out the arrangements for such withdrawal, in accordance with that provision.

| 9 | In that regard, first, the applicant’s last four employment contracts, together covering the period from 1 January 2019 to 31 January 2020, each set a term corresponding to the deadlines successively set for the negotiation of a withdrawal agreement, becoming, in the absence of the conclusion of such an agreement or an extension of the negotiation period, dates of withdrawal without agreement, in accordance with Article 50(3) TEU. |
| --- | --- |

9

In that regard, first, the applicant’s last four employment contracts, together covering the period from 1 January 2019 to 31 January 2020, each set a term corresponding to the deadlines successively set for the negotiation of a withdrawal agreement, becoming, in the absence of the conclusion of such an agreement or an extension of the negotiation period, dates of withdrawal without agreement, in accordance with Article 50(3) TEU.

| 10 | Secondly, the last two employment contracts concluded by the applicant, namely the contract running from 13 April to 31 October 2019 and the contract at issue, contained an Article 18, entitled ‘Termination’ and worded as follows:
  ‘18.1   This contract may be terminated either by the [e]mployer or by the [e]mployee by giving [one] month’s advance notice of intent in writing, including the reason for termination. The [e]mployee shall be heard by the Deputy Head of Mission before such decision is taken, with the Head of Mission being informed at all times.
  ...
  18.3   This contract may in particular be terminated before its term should the United Kingdom cease to be a Member of the European Union. The [e]mployer’s obligation to give one month notice shall be waived. However, [t]he [e]mployer shall endeavour to give advance notice of such termination.’ |
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10

Secondly, the last two employment contracts concluded by the applicant, namely the contract running from 13 April to 31 October 2019 and the contract at issue, contained an Article 18, entitled ‘Termination’ and worded as follows:

‘18.1   This contract may be terminated either by the [e]mployer or by the [e]mployee by giving [one] month’s advance notice of intent in writing, including the reason for termination. The [e]mployee shall be heard by the Deputy Head of Mission before such decision is taken, with the Head of Mission being informed at all times.

...

18.3   This contract may in particular be terminated before its term should the United Kingdom cease to be a Member of the European Union. The [e]mployer’s obligation to give one month notice shall be waived. However, [t]he [e]mployer shall endeavour to give advance notice of such termination.’

| 11 | By the note of 18 January 2020, the Head of Mission of EUCAP Somalia (‘the Head of Mission’) informed the international contract staff of that mission who are United Kingdom nationals that, due to the likely withdrawal of the United Kingdom from the European Union on 31 January 2020, their employment contracts, which already provided for that deadline, would end on that date, as candidates had already been selected for their posts. |
| --- | --- |

11

By the note of 18 January 2020, the Head of Mission of EUCAP Somalia (‘the Head of Mission’) informed the international contract staff of that mission who are United Kingdom nationals that, due to the likely withdrawal of the United Kingdom from the European Union on 31 January 2020, their employment contracts, which already provided for that deadline, would end on that date, as candidates had already been selected for their posts.

| 12 | On 24 January 2020, the representatives of the European Union and the United Kingdom signed the 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; ‘the Agreement on the withdrawal of the United Kingdom’). |
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12

On 24 January 2020, the representatives of the European Union and the United Kingdom signed the 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; ‘the Agreement on the withdrawal of the United Kingdom’).

| 13 | On the same day, the applicant lodged an internal non-disciplinary appeal with his superior against the note of 18 January 2020, pursuant to Article 21 of the contract at issue, entitled ‘Non-Disciplinary Appeals procedure’, which is worded as follows:
  ‘21.   1. The [e]mployee may submit an appeal against an act adversely affecting him/her to the [e]mployer within [one] month of the date of the act. Appeals shall be submitted to the [e]mployer through the immediate superior of the staff member, except where it concerns that superior, in which case it may be submitted directly to the [e]mployer. The [e]mployee shall be heard by the Deputy Head of Mission before any decision is taken, with the Head of Mission being informed at all times.
  21.   2. The initial appeal procedure shall have no suspensory effect. The [e]mployer shall notify the staff member of his/her reasoned decision with [one] month of the date on which the appeal was lodged ...’ |
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13

On the same day, the applicant lodged an internal non-disciplinary appeal with his superior against the note of 18 January 2020, pursuant to Article 21 of the contract at issue, entitled ‘Non-Disciplinary Appeals procedure’, which is worded as follows:

‘21.   1. The [e]mployee may submit an appeal against an act adversely affecting him/her to the [e]mployer within [one] month of the date of the act. Appeals shall be submitted to the [e]mployer through the immediate superior of the staff member, except where it concerns that superior, in which case it may be submitted directly to the [e]mployer. The [e]mployee shall be heard by the Deputy Head of Mission before any decision is taken, with the Head of Mission being informed at all times.

21.   2. The initial appeal procedure shall have no suspensory effect. The [e]mployer shall notify the staff member of his/her reasoned decision with [one] month of the date on which the appeal was lodged ...’

| 14 | By letter of 29 January 2020, notified to the applicant on 31 January 2020, the Head of Mission rejected that internal appeal and confirmed to the applicant that the contract at issue would end on 31 January 2020 as a result of the withdrawal of the United Kingdom from the European Union. |
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14

By letter of 29 January 2020, notified to the applicant on 31 January 2020, the Head of Mission rejected that internal appeal and confirmed to the applicant that the contract at issue would end on 31 January 2020 as a result of the withdrawal of the United Kingdom from the European Union.

| 15 | Also on 29 January, the European Parliament approved the conclusion of the Agreement on the withdrawal of the United Kingdom. |
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15

Also on 29 January, the European Parliament approved the conclusion of the Agreement on the withdrawal of the United Kingdom.

| 16 | On 30 January 2020, the Council adopted Decision (EU) 2020/135 on the conclusion of the Agreement on the withdrawal of the United Kingdom (OJ 2020 L 29, p. 1). According to Article 1 of that decision, the Agreement on the withdrawal of the United Kingdom was approved on behalf of the European Union and the European Atomic Energy Community. |
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16

On 30 January 2020, the Council adopted Decision (EU) 2020/135 on the conclusion of the Agreement on the withdrawal of the United Kingdom (OJ 2020 L 29, p. 1). According to Article 1 of that decision, the Agreement on the withdrawal of the United Kingdom was approved on behalf of the European Union and the European Atomic Energy Community.

| 17 | Article 126 of that agreement sets out a transition period starting on the date of entry into force of that agreement and ending on 31 December 2020 (‘the transition period’). |
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17

Article 126 of that agreement sets out a transition period starting on the date of entry into force of that agreement and ending on 31 December 2020 (‘the transition period’).

| 18 | At midnight on 31 January 2020, the United Kingdom withdrew from the European Union and the European Atomic Energy Community, and on 1 February 2020, the Agreement on the withdrawal of the United Kingdom entered into force, in accordance with Article 185 thereof. |
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18

At midnight on 31 January 2020, the United Kingdom withdrew from the European Union and the European Atomic Energy Community, and on 1 February 2020, the Agreement on the withdrawal of the United Kingdom entered into force, in accordance with Article 185 thereof.

II. Forms of order sought

II.

Forms of order sought

| 19 | The applicant claims that the Court should:





  – | principally, annul the contested acts and, in the alternative, declare them unlawful; |
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19

The applicant claims that the Court should:

–

principally, annul the contested acts and, in the alternative, declare them unlawful;

| – | principally, order EUCAP Somalia to compensate him for material and non-material damages suffered by virtue of its extra-contractual liability and, in the alternative, order EUCAP Somalia to compensate him for the same damages by virtue of its contractual liability; |
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–

principally, order EUCAP Somalia to compensate him for material and non-material damages suffered by virtue of its extra-contractual liability and, in the alternative, order EUCAP Somalia to compensate him for the same damages by virtue of its contractual liability;

| – | order EUCAP Somalia to pay the costs, with interest at the rate of 8%. |
| --- | --- |

–

order EUCAP Somalia to pay the costs, with interest at the rate of 8%.

| 20 | EUCAP Somalia contends that the Court should:





  – | dismiss the action as inadmissible or, in any event, manifestly lacking any basis in law; |
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20

EUCAP Somalia contends that the Court should:

–

dismiss the action as inadmissible or, in any event, manifestly lacking any basis in law;

| – | order the applicant to pay the costs. |
| --- | --- |

–

order the applicant to pay the costs.

III. Law

III.

Law

| 21 | The present action consists, primarily, of an application for annulment based on Article 263 TFEU and a claim for damages based on Article 268 TFEU, and, in the alternative, of claims based on Article 272 TFEU. |
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21

The present action consists, primarily, of an application for annulment based on Article 263 TFEU and a claim for damages based on Article 268 TFEU, and, in the alternative, of claims based on Article 272 TFEU.

A. The principal claims, based on Articles 263 TFEU and 268 TFEU

A.

The principal claims, based on Articles 263 TFEU and 268 TFEU

| 22 | Without formally raising a plea within the meaning of Article 130(1) of the Rules of Procedure of the General Court, EUCAP Somalia challenges the admissibility of the present action in so far as it is based, principally, on Articles 263 TFEU and 268 TFEU, although it is in the nature of a contract, since the contested acts are not severable from the contract at issue. |
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22

Without formally raising a plea within the meaning of Article 130(1) of the Rules of Procedure of the General Court, EUCAP Somalia challenges the admissibility of the present action in so far as it is based, principally, on Articles 263 TFEU and 268 TFEU, although it is in the nature of a contract, since the contested acts are not severable from the contract at issue.

| 23 | The applicant contests EUCAP Somalia’s arguments. |
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23

The applicant contests EUCAP Somalia’s arguments.

| 24 | First of all, the applicant claims that the Courts of the European Union have already declared themselves competent on the basis of Articles 263 TFEU and 268 TFEU in the context of appeals by staff seconded to CFSP missions against acts of staff management. Thus, appeals by contract staff of those missions should also fall within the scope of those provisions. |
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24

First of all, the applicant claims that the Courts of the European Union have already declared themselves competent on the basis of Articles 263 TFEU and 268 TFEU in the context of appeals by staff seconded to CFSP missions against acts of staff management. Thus, appeals by contract staff of those missions should also fall within the scope of those provisions.

| 25 | Next, the applicant submits that his employment relationship with EUCAP Somalia was governed by public-law documents and that he did not freely negotiate his employment contracts with EUCAP Somalia. |
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25

Next, the applicant submits that his employment relationship with EUCAP Somalia was governed by public-law documents and that he did not freely negotiate his employment contracts with EUCAP Somalia.

| 26 | Finally, according to the applicant, the contested acts are administrative decisions separable from the contract at issue, inasmuch as they were taken in execution of various instructions addressed by the Civilian Operation Commander to the Head of Mission. |
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26

Finally, according to the applicant, the contested acts are administrative decisions separable from the contract at issue, inasmuch as they were taken in execution of various instructions addressed by the Civilian Operation Commander to the Head of Mission.

1.
   
  Admissibility of the application for annulment based on Article 263 TFEU

1.

Admissibility of the application for annulment based on Article 263 TFEU

| 27 | As a preliminary point, it should be noted that, according to settled case-law, an action for annulment based on Article 263 TFEU is available in respect of all acts adopted by the institutions, whatever their nature or form, which are intended to produce binding legal effects such as to affect the interests of the applicant by bringing about a significant change in his or her legal position (see judgment of 25 June 2020, SC v Eulex Kosovo, C‐730/18 P, EU:C:2020:505, paragraph 31 and the case-law cited). |
| --- | --- |

27

As a preliminary point, it should be noted that, according to settled case-law, an action for annulment based on Article 263 TFEU is available in respect of all acts adopted by the institutions, whatever their nature or form, which are intended to produce binding legal effects such as to affect the interests of the applicant by bringing about a significant change in his or her legal position (see judgment of 25 June 2020, SC v Eulex Kosovo, C‐730/18 P, EU:C:2020:505, paragraph 31 and the case-law cited).

| 28 | Furthermore, Article 272 TFEU is a specific provision allowing the Courts of the European Union to be seised under an arbitration clause agreed by the parties for contracts governed by either public or private law, and without restriction as regards the nature of the action to be brought before the Courts of the European Union (see judgment of 25 June 2020, SC v Eulex Kosovo, C‐730/18 P, EU:C:2020:505, paragraph 30 and the case-law cited). |
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28

Furthermore, Article 272 TFEU is a specific provision allowing the Courts of the European Union to be seised under an arbitration clause agreed by the parties for contracts governed by either public or private law, and without restriction as regards the nature of the action to be brought before the Courts of the European Union (see judgment of 25 June 2020, SC v Eulex Kosovo, C‐730/18 P, EU:C:2020:505, paragraph 30 and the case-law cited).

| 29 | Therefore, where there is a contract between the applicant and one of the institutions, an action may be brought before the Courts of the European Union on the basis of Article 263 TFEU only if the contested act is intended to produce binding legal effects which are outside the contractual relationship between the parties and which involve the exercise of prerogatives of a public authority conferred on the contracting institution in its capacity as an administrative authority (see judgment of 25 June 2020, SC v Eulex Kosovo, C‐730/18 P, EU:C:2020:505, paragraph 32 and the case-law cited). |
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29

Therefore, where there is a contract between the applicant and one of the institutions, an action may be brought before the Courts of the European Union on the basis of Article 263 TFEU only if the contested act is intended to produce binding legal effects which are outside the contractual relationship between the parties and which involve the exercise of prerogatives of a public authority conferred on the contracting institution in its capacity as an administrative authority (see judgment of 25 June 2020, SC v Eulex Kosovo, C‐730/18 P, EU:C:2020:505, paragraph 32 and the case-law cited).

| 30 | Therefore, where, as in the present case, the applicant and the defendant are bound by a contract, the court with jurisdiction in respect of the contract has jurisdiction in principle. The situation referred to in paragraph 29 above is therefore an exception to that principle, so that the conditions governing it must be interpreted strictly. |
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30

Therefore, where, as in the present case, the applicant and the defendant are bound by a contract, the court with jurisdiction in respect of the contract has jurisdiction in principle. The situation referred to in paragraph 29 above is therefore an exception to that principle, so that the conditions governing it must be interpreted strictly.

| 31 | In the present case, it is important to emphasise that the present action relates to the non-renewal of the contract at issue beyond its term, as recorded in the note of 18 January 2020, confirmed by the letter of 29 January 2020. |
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31

In the present case, it is important to emphasise that the present action relates to the non-renewal of the contract at issue beyond its term, as recorded in the note of 18 January 2020, confirmed by the letter of 29 January 2020.

| 32 | In the first place, pursuant to Article 7(4) of Decision 2012/389, as amended by Decision 2018/1942, the conditions of employment and the rights and obligations of EUCAP Somalia’s international staff are defined by contract. Therefore, the employment relationship between the applicant and EUCAP Somalia, which ended on 31 January 2020, was of a contractual nature. |
| --- | --- |

32

In the first place, pursuant to Article 7(4) of Decision 2012/389, as amended by Decision 2018/1942, the conditions of employment and the rights and obligations of EUCAP Somalia’s international staff are defined by contract. Therefore, the employment relationship between the applicant and EUCAP Somalia, which ended on 31 January 2020, was of a contractual nature.

| 33 | In the second place, the letter of 29 January 2020 followed the lodging by the applicant of a non-disciplinary internal appeal on the basis of contractual provisions, namely Article 21(1) of the contract at issue (see paragraph 13 above). |
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33

In the second place, the letter of 29 January 2020 followed the lodging by the applicant of a non-disciplinary internal appeal on the basis of contractual provisions, namely Article 21(1) of the contract at issue (see paragraph 13 above).

| 34 | In the third place, the purpose of the contested acts is the non-renewal of the contract at issue, following the withdrawal of the United Kingdom from the European Union. |
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34

In the third place, the purpose of the contested acts is the non-renewal of the contract at issue, following the withdrawal of the United Kingdom from the European Union.

| 35 | In that regard, first, it is common ground between the parties that the duration of the applicant’s last four contracts of employment, together covering the period from 1 January 2019 to 31 January 2020, was determined in the light of the deadlines successively set for the negotiation of a withdrawal agreement which, in the absence of the conclusion of such an agreement or an extension of the negotiation period, became dates of withdrawal without agreement, in accordance with Article 50(3) TEU (see paragraph 9 above). Thus, it was agreed between the parties that the applicant’s period of employment with EUCAP Somalia could not, in principle, continue beyond the date of the United Kingdom’s withdrawal from the European Union. |
| --- | --- |

35

In that regard, first, it is common ground between the parties that the duration of the applicant’s last four contracts of employment, together covering the period from 1 January 2019 to 31 January 2020, was determined in the light of the deadlines successively set for the negotiation of a withdrawal agreement which, in the absence of the conclusion of such an agreement or an extension of the negotiation period, became dates of withdrawal without agreement, in accordance with Article 50(3) TEU (see paragraph 9 above). Thus, it was agreed between the parties that the applicant’s period of employment with EUCAP Somalia could not, in principle, continue beyond the date of the United Kingdom’s withdrawal from the European Union.

| 36 | Secondly, the applicant’s last two contracts of employment each contained, in Article 18(3), a clause under which those contracts could be terminated before their term in the event that the United Kingdom became a third State (see paragraph 10 above). Although, as the applicant points out, that clause was not implemented, its existence demonstrates that the United Kingdom’s status as a Member State was a contractual condition for the applicant’s continued employment with EUCAP Somalia. |
| --- | --- |

36

Secondly, the applicant’s last two contracts of employment each contained, in Article 18(3), a clause under which those contracts could be terminated before their term in the event that the United Kingdom became a third State (see paragraph 10 above). Although, as the applicant points out, that clause was not implemented, its existence demonstrates that the United Kingdom’s status as a Member State was a contractual condition for the applicant’s continued employment with EUCAP Somalia.

| 37 | In the fourth place, it is apparent from the file that the applicant’s successive contracts of employment included, as an annex, a document entitled ‘Job description’, according to which the position of [confidential] held by the applicant was not open to third-country nationals. |
| --- | --- |

37

In the fourth place, it is apparent from the file that the applicant’s successive contracts of employment included, as an annex, a document entitled ‘Job description’, according to which the position of [confidential] held by the applicant was not open to third-country nationals.

confidential

| 38 | In the fifth place, it is true that, as the applicant points out, in the letter of 29 January 2020, the Head of Mission referred to an instruction from the Civilian Operation Commander, dated 30 October 2019, in which the latter indicated to the Heads of CFSP Missions that any contract renewals which they might offer to their international contract staff who are United Kingdom nationals could not extend beyond 31 January 2020. However, that fact is not sufficient to consider that the contested acts are outside the contractual relationship between the parties on the grounds that the Head of Mission simply carried out the instruction. |
| --- | --- |

38

In the fifth place, it is true that, as the applicant points out, in the letter of 29 January 2020, the Head of Mission referred to an instruction from the Civilian Operation Commander, dated 30 October 2019, in which the latter indicated to the Heads of CFSP Missions that any contract renewals which they might offer to their international contract staff who are United Kingdom nationals could not extend beyond 31 January 2020. However, that fact is not sufficient to consider that the contested acts are outside the contractual relationship between the parties on the grounds that the Head of Mission simply carried out the instruction.

| 39 | First, the Civilian Operation Commander’s instruction of 30 October 2019 was established following the extension until 31 January 2020 of the deadline for the negotiation of a withdrawal agreement in accordance with Article 50(3) TEU. It is in that context that the Civilian Operation Commander indicated to the Heads of CFSP Missions that the duration of the employment contracts offered to their staff who are United Kingdom nationals could not exceed31 January 2020, without, however, commenting on the possibility of contract renewals after that date. Secondly, in the same instruction, the Civilian Operation Commander specified that the renewal of employment contracts for international contract staff who are United Kingdom nationals was subject to an assessment by the mission of the interest of the service, thus leaving the Head of Mission a margin of appreciation as to the appropriateness of such a renewal, if necessary by individual decisions within the framework of the contractual relations established with the staff concerned. |
| --- | --- |

39

First, the Civilian Operation Commander’s instruction of 30 October 2019 was established following the extension until 31 January 2020 of the deadline for the negotiation of a withdrawal agreement in accordance with Article 50(3) TEU. It is in that context that the Civilian Operation Commander indicated to the Heads of CFSP Missions that the duration of the employment contracts offered to their staff who are United Kingdom nationals could not exceed31 January 2020, without, however, commenting on the possibility of contract renewals after that date. Secondly, in the same instruction, the Civilian Operation Commander specified that the renewal of employment contracts for international contract staff who are United Kingdom nationals was subject to an assessment by the mission of the interest of the service, thus leaving the Head of Mission a margin of appreciation as to the appropriateness of such a renewal, if necessary by individual decisions within the framework of the contractual relations established with the staff concerned.

| 40 | It follows from the foregoing that, as EUCAP Somalia rightly argues, the contested acts are contractual in nature. Such acts are therefore 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 a public authority. Consequently, those acts cannot be regarded as subject to an action for annulment under Article 263 TFEU. |
| --- | --- |

40

It follows from the foregoing that, as EUCAP Somalia rightly argues, the contested acts are contractual in nature. Such acts are therefore 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 a public authority. Consequently, those acts cannot be regarded as subject to an action for annulment under Article 263 TFEU.

| 41 | The application under Article 263 TFEU for annulment of the contested acts must therefore be dismissed as inadmissible. |
| --- | --- |

41

The application under Article 263 TFEU for annulment of the contested acts must therefore be dismissed as inadmissible.

2.
   
  Admissibility of the claim for damages under Article 268 TFEU

2.

Admissibility of the claim for damages under Article 268 TFEU

| 42 | According to the case-law, in order to determine whether an action for damages has as its object the contractual liability of the European Union or the non-contractual liability of the European Union, the Courts of the European Union must ascertain whether that action concerns a claim for damages based objectively and comprehensively on rights and obligations of contractual or non-contractual origin. For those purposes, those courts must ascertain, in the light of an analysis of the various elements of the case file, such as, in particular, the rule of law allegedly infringed, the nature of the damage claimed, the conduct complained of and the legal relationship between the parties in question, whether there is a genuine contractual context between them, linked to the subject matter of the dispute, the detailed examination of which is essential in order to rule on that action (see, to that effect, judgment of 18 April 2013, Commission v Systran and Systran Luxembourg, C‐103/11 P, EU:C:2013:245, paragraph 66). |
| --- | --- |

42

According to the case-law, in order to determine whether an action for damages has as its object the contractual liability of the European Union or the non-contractual liability of the European Union, the Courts of the European Union must ascertain whether that action concerns a claim for damages based objectively and comprehensively on rights and obligations of contractual or non-contractual origin. For those purposes, those courts must ascertain, in the light of an analysis of the various elements of the case file, such as, in particular, the rule of law allegedly infringed, the nature of the damage claimed, the conduct complained of and the legal relationship between the parties in question, whether there is a genuine contractual context between them, linked to the subject matter of the dispute, the detailed examination of which is essential in order to rule on that action (see, to that effect, judgment of 18 April 2013, Commission v Systran and Systran Luxembourg, C‐103/11 P, EU:C:2013:245, paragraph 66).

| 43 | In particular, the Courts of the European Union cannot simply rely on the rules cited by the parties. Thus, the mere invocation of legal rules which do not derive from a contract relevant to the case, but which are binding on the parties, cannot have the effect of changing the contractual nature of the dispute. If it were otherwise, the nature of the dispute would be liable to change according to the rules relied on by the parties (see, to that effect, judgment of 18 April 2013, Commission v Systran and Systran Luxembourg, C‐103/11 P, EU:C:2013:245, paragraphs 64 and 65 and the case-law cited). |
| --- | --- |

43

In particular, the Courts of the European Union cannot simply rely on the rules cited by the parties. Thus, the mere invocation of legal rules which do not derive from a contract relevant to the case, but which are binding on the parties, cannot have the effect of changing the contractual nature of the dispute. If it were otherwise, the nature of the dispute would be liable to change according to the rules relied on by the parties (see, to that effect, judgment of 18 April 2013, Commission v Systran and Systran Luxembourg, C‐103/11 P, EU:C:2013:245, paragraphs 64 and 65 and the case-law cited).

| 44 | In the present case, by his claim for compensation, the applicant seeks to obtain compensation for the non-material and material damage allegedly caused to him by the contested acts. |
| --- | --- |

44

In the present case, by his claim for compensation, the applicant seeks to obtain compensation for the non-material and material damage allegedly caused to him by the contested acts.

| 45 | However, as was concluded in paragraph 40 above, those acts are of a contractual nature. |
| --- | --- |

45

However, as was concluded in paragraph 40 above, those acts are of a contractual nature.

| 46 | Furthermore, it is clear from the wording of the application that the non-material damage for which the applicant seeks compensation arises in particular from the very reasons for those acts, and also consists in the impairment of his professional prospects of continuing his employment relationship with EUCAP Somalia, which was contractual in nature (see paragraph 32 above). As to the material damage for which the applicant seeks compensation, it corresponds in particular to the salaries, emoluments and fees which he would have received if the contract at issue had been renewed during the transition period. |
| --- | --- |

46

Furthermore, it is clear from the wording of the application that the non-material damage for which the applicant seeks compensation arises in particular from the very reasons for those acts, and also consists in the impairment of his professional prospects of continuing his employment relationship with EUCAP Somalia, which was contractual in nature (see paragraph 32 above). As to the material damage for which the applicant seeks compensation, it corresponds in particular to the salaries, emoluments and fees which he would have received if the contract at issue had been renewed during the transition period.

| 47 | It follows from the foregoing that there is a genuine contractual context surrounding the applicant’s claim for compensation, within the meaning of the case-law cited in paragraph 42 above, so that that claim falls within the scope of the European Union’s contractual liability. Consequently, the claim for damages which he based, principally, on Article 268 TFEU and having as its object the non-contractual liability of the European Union for the actions of EUCAP Somalia, must be rejected as inadmissible. |
| --- | --- |

47

It follows from the foregoing that there is a genuine contractual context surrounding the applicant’s claim for compensation, within the meaning of the case-law cited in paragraph 42 above, so that that claim falls within the scope of the European Union’s contractual liability. Consequently, the claim for damages which he based, principally, on Article 268 TFEU and having as its object the non-contractual liability of the European Union for the actions of EUCAP Somalia, must be rejected as inadmissible.

B. The alternative claims, based on Article 272 TFEU

B.

The alternative claims, based on Article 272 TFEU

| 48 | In the alternative, the applicant submits an application based on Article 272 TFEU, seeking, first, to challenge the contested acts as unlawful and, secondly, to hold EUCAP Somalia contractually liable. |
| --- | --- |

48

In the alternative, the applicant submits an application based on Article 272 TFEU, seeking, first, to challenge the contested acts as unlawful and, secondly, to hold EUCAP Somalia contractually liable.

1.
   
  The jurisdiction of the General Court

1.

The jurisdiction of the General Court

| 49 | Under Article 272 TFEU, read in conjunction with Article 256 TFEU, the Court has jurisdiction to give judgment at first instance pursuant to an arbitration clause contained in a contract governed by public or private law concluded by or on behalf of the European Union. |
| --- | --- |

49

Under Article 272 TFEU, read in conjunction with Article 256 TFEU, the Court has jurisdiction to give judgment at first instance pursuant to an arbitration clause contained in a contract governed by public or private law concluded by or on behalf of the European Union.

| 50 | In the present case, in view of the terms of the arbitration clause referred to in paragraph 7 above, the Court has jurisdiction to rule on the applicant’s alternative claims, which, moreover, EUCAP Somalia does not dispute. |
| --- | --- |

50

In the present case, in view of the terms of the arbitration clause referred to in paragraph 7 above, the Court has jurisdiction to rule on the applicant’s alternative claims, which, moreover, EUCAP Somalia does not dispute.

2.
   
  The applicable law

2.

The applicable law

| 51 | It should be recalled that, according to the first paragraph of Article 340 TFEU, the European Union’s contractual liability is governed by the law applicable to the contract concerned. |
| --- | --- |

51

It should be recalled that, according to the first paragraph of Article 340 TFEU, the European Union’s contractual liability is governed by the law applicable to the contract concerned.

| 52 | Disputes arising during the performance of a contract must in principle be decided on the basis of the contractual terms (see judgment of 18 November 2015, Synergy Hellas v Commission, T‐106/13, EU:T:2015:860, paragraph 37 and the case-law cited). Interpretation of the contract in the light of the provisions of the national law applicable to the contract is justified only in the event of doubt as to the content of the contract or the meaning of certain of its terms, or where the contract alone does not make it possible to resolve all aspects of the dispute. It is therefore necessary to assess the merits of the application solely in the light of the contractual provisions and to have recourse to the national law applicable to the contract only if those provisions do not allow the dispute to be resolved (see, to that effect, judgment of 13 July 2017, Talanton v Commission, T‐65/15, not published, EU:T:2017:491, paragraph 43 and the case-law cited). |
| --- | --- |

52

Disputes arising during the performance of a contract must in principle be decided on the basis of the contractual terms (see judgment of 18 November 2015, Synergy Hellas v Commission, T‐106/13, EU:T:2015:860, paragraph 37 and the case-law cited). Interpretation of the contract in the light of the provisions of the national law applicable to the contract is justified only in the event of doubt as to the content of the contract or the meaning of certain of its terms, or where the contract alone does not make it possible to resolve all aspects of the dispute. It is therefore necessary to assess the merits of the application solely in the light of the contractual provisions and to have recourse to the national law applicable to the contract only if those provisions do not allow the dispute to be resolved (see, to that effect, judgment of 13 July 2017, Talanton v Commission, T‐65/15, not published, EU:T:2017:491, paragraph 43 and the case-law cited).

| 53 | However, that principle cannot lead to the application of the terms of a contract allowing the parties to override mandatory provisions of the applicable national law from which there can be no derogation and in accordance with which the obligations arising from that contract must be or were performed. |
| --- | --- |

53

However, that principle cannot lead to the application of the terms of a contract allowing the parties to override mandatory provisions of the applicable national law from which there can be no derogation and in accordance with which the obligations arising from that contract must be or were performed.

| 54 | Furthermore, where the institutions, bodies, offices or agencies of the European Union perform a contract, they remain subject to the obligations incumbent on them under the Charter of Fundamental Rights of the European Union (‘the Charter’) and the general principles of EU law (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‐584/17 P, EU:C:2020:576, paragraph 86). Thus, if the parties decide, in their contract, by means of an arbitration clause, to confer jurisdiction on the Courts of the European Union to hear disputes relating to that contract, those Courts will have jurisdiction, irrespective of the applicable law stipulated in that contract, to examine possible infringements of the Charter and of the general principles of EU law (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‐378/16 P, EU:C:2020:575, paragraph 81). |
| --- | --- |

54

Furthermore, where the institutions, bodies, offices or agencies of the European Union perform a contract, they remain subject to the obligations incumbent on them under the Charter of Fundamental Rights of the European Union (‘the Charter’) and the general principles of EU law (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‐584/17 P, EU:C:2020:576, paragraph 86). Thus, if the parties decide, in their contract, by means of an arbitration clause, to confer jurisdiction on the Courts of the European Union to hear disputes relating to that contract, those Courts will have jurisdiction, irrespective of the applicable law stipulated in that contract, to examine possible infringements of the Charter and of the general principles of EU law (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‐378/16 P, EU:C:2020:575, paragraph 81).

| 55 | If the contract is silent, the Courts of the European Union must, where appropriate, determine the applicable law using the rules provided for by Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6) (see, to that effect, judgment of 18 February 2016, Calberson GE v Commission, T‐164/14, EU:T:2016:85, paragraph 25). |
| --- | --- |

55

If the contract is silent, the Courts of the European Union must, where appropriate, determine the applicable law using the rules provided for by Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6) (see, to that effect, judgment of 18 February 2016, Calberson GE v Commission, T‐164/14, EU:T:2016:85, paragraph 25).

| 56 | In the present case, the contract at issue does not specify the law that is applicable to it, with the exception of questions of social security, taxation and pensions, which are irrelevant to the present dispute. |
| --- | --- |

56

In the present case, the contract at issue does not specify the law that is applicable to it, with the exception of questions of social security, taxation and pensions, which are irrelevant to the present dispute.

| 57 | However, in support of his alternative claims under Article 272 TFEU, the applicant relies exclusively on pleas in law alleging infringements of EU law, in particular the general principles of that law and the Charter. Furthermore, it does not appear that, in order to resolve the present dispute, it is necessary to apply mandatory provisions of national law. |
| --- | --- |

57

However, in support of his alternative claims under Article 272 TFEU, the applicant relies exclusively on pleas in law alleging infringements of EU law, in particular the general principles of that law and the Charter. Furthermore, it does not appear that, in order to resolve the present dispute, it is necessary to apply mandatory provisions of national law.

| 58 | In response to a question put to them at the hearing, the parties confirmed that, in order to examine the possible contractual liability of EUCAP Somalia, it was sufficient to analyse the contract at issue, which includes, inter alia, by virtue of Article 1(1) thereof, EUCAP Somalia’s standard operating procedures. |
| --- | --- |

58

In response to a question put to them at the hearing, the parties confirmed that, in order to examine the possible contractual liability of EUCAP Somalia, it was sufficient to analyse the contract at issue, which includes, inter alia, by virtue of Article 1(1) thereof, EUCAP Somalia’s standard operating procedures.

| 59 | In those circumstances, it is not necessary to determine the national law which is 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 EU law. |
| --- | --- |

59

In those circumstances, it is not necessary to determine the national law which is 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 EU law.

3.
   
  Admissibility

3.

Admissibility

| 60 | Without formally raising a plea within the meaning of Article 130(1) of the Rules of Procedure, EUCAP Somalia also challenges the admissibility of the present action in so far as it is based, in the alternative, on Article 272 TFEU. |
| --- | --- |

60

Without formally raising a plea within the meaning of Article 130(1) of the Rules of Procedure, EUCAP Somalia also challenges the admissibility of the present action in so far as it is based, in the alternative, on Article 272 TFEU.

| 61 | First, EUCAP Somalia disputes that the applicant can bring the present action on an alternative legal basis. In that regard, it argues that the submission of the same action on two legal grounds, one principal and one alternative, amounts to asking the Court to determine the appropriate legal basis. It points out that the uncertainty as to the legal basis of the action complicated the way in which it had to organise its defence in response to the applicant’s alternative claims under Article 272 TFEU. |
| --- | --- |

61

First, EUCAP Somalia disputes that the applicant can bring the present action on an alternative legal basis. In that regard, it argues that the submission of the same action on two legal grounds, one principal and one alternative, amounts to asking the Court to determine the appropriate legal basis. It points out that the uncertainty as to the legal basis of the action complicated the way in which it had to organise its defence in response to the applicant’s alternative claims under Article 272 TFEU.

| 62 | Secondly, EUCAP Somalia submits that the action cannot be reclassified because none of the five pleas in law relied on by the applicant relates, with sufficient clarity, to breaches of the rules governing the contractual relationship between him and EUCAP Somalia. |
| --- | --- |

62

Secondly, EUCAP Somalia submits that the action cannot be reclassified because none of the five pleas in law relied on by the applicant relates, with sufficient clarity, to breaches of the rules governing the contractual relationship between him and EUCAP Somalia.

| 63 | The applicant contests EUCAP Somalia’s arguments. |
| --- | --- |

63

The applicant contests EUCAP Somalia’s arguments.

| 64 | In the first place, it is true that, as EUCAP Somalia points out, it is for the applicant to choose the legal basis for his action and not for the Courts of the European Union themselves to choose the most appropriate legal basis (see judgment of 15 March 2005, Spain v Eurojust, C‐160/03, EU:C:2005:168, paragraph 35 and the case-law cited). |
| --- | --- |

64

In the first place, it is true that, as EUCAP Somalia points out, it is for the applicant to choose the legal basis for his action and not for the Courts of the European Union themselves to choose the most appropriate legal basis (see judgment of 15 March 2005, Spain v Eurojust, C‐160/03, EU:C:2005:168, paragraph 35 and the case-law cited).

| 65 | However, in the present case, such a choice was indeed made by the applicant, whose application, and in particular the part of it relating to the pleas in law in support of the present action, makes it clear that he chose to base his action, principally, on Articles 263 TFEU and 268 TFEU and, in the alternative, on Article 272 TFEU. |
| --- | --- |

65

However, in the present case, such a choice was indeed made by the applicant, whose application, and in particular the part of it relating to the pleas in law in support of the present action, makes it clear that he chose to base his action, principally, on Articles 263 TFEU and 268 TFEU and, in the alternative, on Article 272 TFEU.

| 66 | In that regard, contrary to what EUCAP Somalia maintains, the principle referred to in paragraph 64 above does not in itself preclude the applicant from bringing his action on one legal basis, while at the same time, in the alternative and in the event of its inadmissibility, bringing the same action on another legal basis (see, to that effect, judgment of 8 May 2007, Citymo v Commission, T‐271/04, EU:T:2007:128, paragraphs 66 and 67). |
| --- | --- |

66

In that regard, contrary to what EUCAP Somalia maintains, the principle referred to in paragraph 64 above does not in itself preclude the applicant from bringing his action on one legal basis, while at the same time, in the alternative and in the event of its inadmissibility, bringing the same action on another legal basis (see, to that effect, judgment of 8 May 2007, Citymo v Commission, T‐271/04, EU:T:2007:128, paragraphs 66 and 67).

| 67 | Furthermore, EUCAP Somalia’s argument that the submission of alternative claims based on Article 272 TFEU did not enable it to organise its defence must be rejected. First, the contested acts, which are the subject of the present action in so far as it is based, in the alternative, on Article 272 TFEU, are identical to those which are the subject of that action in so far as it is based, principally, on Articles 263 TFEU and 268 TFEU. Secondly, the applicant emphasised that his pleas alleging breaches of EU law, submitted in support of his principal claims based on Articles 263 TFEU and 268 TFEU, were to be regarded as pleas alleging contractual breaches in the event that his action was examined on the basis of Article 272 TFEU, which he chose in the alternative. |
| --- | --- |

67

Furthermore, EUCAP Somalia’s argument that the submission of alternative claims based on Article 272 TFEU did not enable it to organise its defence must be rejected. First, the contested acts, which are the subject of the present action in so far as it is based, in the alternative, on Article 272 TFEU, are identical to those which are the subject of that action in so far as it is based, principally, on Articles 263 TFEU and 268 TFEU. Secondly, the applicant emphasised that his pleas alleging breaches of EU law, submitted in support of his principal claims based on Articles 263 TFEU and 268 TFEU, were to be regarded as pleas alleging contractual breaches in the event that his action was examined on the basis of Article 272 TFEU, which he chose in the alternative.

| 68 | It must be noted, moreover, that EUCAP Somalia did indeed contest the merits of the various pleas in law put forward by the applicant in support of its action. |
| --- | --- |

68

It must be noted, moreover, that EUCAP Somalia did indeed contest the merits of the various pleas in law put forward by the applicant in support of its action.

| 69 | In the second place, with regard to EUCAP Somalia’s argument reproduced in paragraph 62 above and relating to the nature of the pleas in law put forward by the applicant, it should be noted that, in support of his claims under Article 272 TFEU, the applicant relies on pleas in law alleging, in particular, infringements of the right to be heard, guaranteed by Article 41(2)(a) of the Charter, as well as of the principle of equal treatment and of the principle of non-discrimination, which are guaranteed, respectively, by Articles 20 and 21 of the Charter. In addition, the applicant relies on a plea alleging breach of the principle of the protection of legitimate expectations, which constitutes a general principle of EU law (see judgment of 26 February 2016, Šumelj and Others v Commission, T‐546/13, T‐108/14 and T‐109/14, EU:T:2016:107, paragraph 72 and the case-law cited). |
| --- | --- |

69

In the second place, with regard to EUCAP Somalia’s argument reproduced in paragraph 62 above and relating to the nature of the pleas in law put forward by the applicant, it should be noted that, in support of his claims under Article 272 TFEU, the applicant relies on pleas in law alleging, in particular, infringements of the right to be heard, guaranteed by Article 41(2)(a) of the Charter, as well as of the principle of equal treatment and of the principle of non-discrimination, which are guaranteed, respectively, by Articles 20 and 21 of the Charter. In addition, the applicant relies on a plea alleging breach of the principle of the protection of legitimate expectations, which constitutes a general principle of EU law (see judgment of 26 February 2016, Šumelj and Others v Commission, T‐546/13, T‐108/14 and T‐109/14, EU:T:2016:107, paragraph 72 and the case-law cited).

| 70 | As is clear from the case-law cited in paragraph 54 above, by invoking, in support of his claims based on Article 272 TFEU, the infringement of principles guaranteed by the Charter and general principles of EU law, the applicant is invoking rules which the EU administration is required to respect in a contractual framework. Consequently, unless the principle of effective judicial protection guaranteed by Article 47 of the Charter is disregarded, the applicant cannot be prevented from invoking the infringement of those principles in support of his claims under Article 272 TFEU, 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 (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‐584/17 P, EU:C:2020:576, paragraphs 85 to 89). |
| --- | --- |

70

As is clear from the case-law cited in paragraph 54 above, by invoking, in support of his claims based on Article 272 TFEU, the infringement of principles guaranteed by the Charter and general principles of EU law, the applicant is invoking rules which the EU administration is required to respect in a contractual framework. Consequently, unless the principle of effective judicial protection guaranteed by Article 47 of the Charter is disregarded, the applicant cannot be prevented from invoking the infringement of those principles in support of his claims under Article 272 TFEU, 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 (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‐584/17 P, EU:C:2020:576, paragraphs 85 to 89).

| 71 | In those circumstances, the present action is admissible in so far as it is based on Article 272 TFEU. |
| --- | --- |

71

In those circumstances, the present action is admissible in so far as it is based on Article 272 TFEU.

4.
   
  Substance

4.

Substance

| 72 | As pointed out in paragraph 48 above, the applicant presents alternative claims seeking, first, to challenge the contested acts as unlawful and, secondly, to hold the European Union contractually liable in respect of those acts. |
| --- | --- |

72

As pointed out in paragraph 48 above, the applicant presents alternative claims seeking, first, to challenge the contested acts as unlawful and, secondly, to hold the European Union contractually liable in respect of those acts.

| 73 | In support of those claims, the applicant relies, in essence, on four pleas in law, the first alleging breach of the right to be heard, the second alleging breach of the principle of equal treatment and non-discrimination, the third alleging breach of the Agreement on the withdrawal of the United Kingdom and the fourth alleging breach of the principle of protection of legitimate expectations. |
| --- | --- |

73

In support of those claims, the applicant relies, in essence, on four pleas in law, the first alleging breach of the right to be heard, the second alleging breach of the principle of equal treatment and non-discrimination, the third alleging breach of the Agreement on the withdrawal of the United Kingdom and the fourth alleging breach of the principle of protection of legitimate expectations.

(a)
   
  The first plea in law, alleging breach of the right to be heard

(a)

The first plea in law, alleging breach of the right to be heard

| 74 | By his first plea in law, the applicant claims that he should have been heard before the note of 18 January 2020 was drafted. To that effect, first, he points out that that note adversely affected him in that it had the effect of abruptly terminating his employment, which he had held for many years within EUCAP Somalia. In that regard, he disputes that he was heard at a meeting on 13 January 2020 in the presence of all the staff and at a working lunch on 24 January 2020, and he submits that the certificates of the Head of Mission relating to that meeting and lunch are inadmissible on account of their late submission to the Court. Secondly, he claims that Article 21 of the contract at issue required him to be heard by the Head of Mission before the latter adopted the note of 18 January 2020. |
| --- | --- |

74

By his first plea in law, the applicant claims that he should have been heard before the note of 18 January 2020 was drafted. To that effect, first, he points out that that note adversely affected him in that it had the effect of abruptly terminating his employment, which he had held for many years within EUCAP Somalia. In that regard, he disputes that he was heard at a meeting on 13 January 2020 in the presence of all the staff and at a working lunch on 24 January 2020, and he submits that the certificates of the Head of Mission relating to that meeting and lunch are inadmissible on account of their late submission to the Court. Secondly, he claims that Article 21 of the contract at issue required him to be heard by the Head of Mission before the latter adopted the note of 18 January 2020.

| 75 | EUCAP Somalia contests that argument. |
| --- | --- |

75

EUCAP Somalia contests that argument.

| 76 | In order to examine the first plea in law, alleging breach of the right to be heard, it is necessary first to refer to the contractual provisions and to ascertain whether and to what extent they guaranteed the applicant such a right before the note of 18 January 2020 was drawn up. In any event, it will be necessary to examine whether Article 41(2)(a) of the Charter required EUCAP Somalia to hear the applicant before the note was drafted. |
| --- | --- |

76

In order to examine the first plea in law, alleging breach of the right to be heard, it is necessary first to refer to the contractual provisions and to ascertain whether and to what extent they guaranteed the applicant such a right before the note of 18 January 2020 was drawn up. In any event, it will be necessary to examine whether Article 41(2)(a) of the Charter required EUCAP Somalia to hear the applicant before the note was drafted.

| 77 | In the present case, it should be pointed out that the applicant and EUCAP Somalia were bound by a contractual employment relationship and, in accordance with Article 7(4) of Decision 2012/389, as amended by Decision 2018/1942, the conditions of employment and the applicant’s rights and obligations were defined in the contract at issue (see paragraph 32 above). |
| --- | --- |

77

In the present case, it should be pointed out that the applicant and EUCAP Somalia were bound by a contractual employment relationship and, in accordance with Article 7(4) of Decision 2012/389, as amended by Decision 2018/1942, the conditions of employment and the applicant’s rights and obligations were defined in the contract at issue (see paragraph 32 above).

| 78 | In that regard, first of all, Article 17 of the contract at issue provided that the duration of the contract would be from 1 November 2019 to 31 January 2020. No other clause in the contract related to its term or envisaged the possibility of its renewal. |
| --- | --- |

78

In that regard, first of all, Article 17 of the contract at issue provided that the duration of the contract would be from 1 November 2019 to 31 January 2020. No other clause in the contract related to its term or envisaged the possibility of its renewal.

| 79 | Next, it should be noted that, while EUCAP Somalia standard operating procedures 4.4, which was part of the contract at issue, was intended to ‘standardise procedures on ... the renewal of the employment contract of contract agents’, in order to ‘ensure that the procedure for ... contract renewal is carried out in a transparent and accountable manner following best practice’. In particular, it provided that the contract renewal procedure was triggered by the human resources department, which had to engage in a dialogue with staff whose contracts were about to expire by inviting them to start their ‘performance evaluation report’. |
| --- | --- |

79

Next, it should be noted that, while EUCAP Somalia standard operating procedures 4.4, which was part of the contract at issue, was intended to ‘standardise procedures on ... the renewal of the employment contract of contract agents’, in order to ‘ensure that the procedure for ... contract renewal is carried out in a transparent and accountable manner following best practice’. In particular, it provided that the contract renewal procedure was triggered by the human resources department, which had to engage in a dialogue with staff whose contracts were about to expire by inviting them to start their ‘performance evaluation report’.

| 80 | However, it is common ground between the parties that that procedure was intended to be applied only where the decision to renew the contract depended on the evaluation of the staff member’s performance. That was not the case with the contested acts, which were taken as a consequence of the United Kingdom’s withdrawal from the European Union and concerned all EUCAP Somalia contract staff who were nationals of that State. It follows that the applicant was not entitled to be heard in those proceedings. |
| --- | --- |

80

However, it is common ground between the parties that that procedure was intended to be applied only where the decision to renew the contract depended on the evaluation of the staff member’s performance. That was not the case with the contested acts, which were taken as a consequence of the United Kingdom’s withdrawal from the European Union and concerned all EUCAP Somalia contract staff who were nationals of that State. It follows that the applicant was not entitled to be heard in those proceedings.

| 81 | Moreover, contrary to what the applicant submits, Article 21(1) of the contract at issue did not require the Head of Mission to hear him before the note of 18 January 2020 was drafted. That clause concerned non-disciplinary internal appeals against acts adversely affecting him and provided for a hearing by the Deputy Head of Mission only after such an appeal had been lodged. |
| --- | --- |

81

Moreover, contrary to what the applicant submits, Article 21(1) of the contract at issue did not require the Head of Mission to hear him before the note of 18 January 2020 was drafted. That clause concerned non-disciplinary internal appeals against acts adversely affecting him and provided for a hearing by the Deputy Head of Mission only after such an appeal had been lodged.

| 82 | Finally, it does not follow from Article 18(1) of the contract at issue, the terms of which are reproduced in paragraph 10 above, that the Head of Mission was required to hear the applicant before establishing the note of 18 January 2020. That clause required EUCAP Somalia to hear the applicant and to give one month’s notice in the event that the contract at issue was terminated before its expiry, which was not the case in the present instance. |
| --- | --- |

82

Finally, it does not follow from Article 18(1) of the contract at issue, the terms of which are reproduced in paragraph 10 above, that the Head of Mission was required to hear the applicant before establishing the note of 18 January 2020. That clause required EUCAP Somalia to hear the applicant and to give one month’s notice in the event that the contract at issue was terminated before its expiry, which was not the case in the present instance.

| 83 | Accordingly, 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 the Head of Mission was required to hear the applicant before establishing the note of 18 January 2020. |
| --- | --- |

83

Accordingly, 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 the Head of Mission was required to hear the applicant before establishing the note of 18 January 2020.

| 84 | With regard to the right to be heard as guaranteed by the Charter, Article 41(2)(a), which is of general application, recognises ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’. Thus, respect for the right to be heard, which must be ensured even in the absence of any applicable rules, requires that the person concerned be given an opportunity in advance to make his or her views known in a meaningful way about the matters which might be held against him or her in the measure to be taken (see, to that effect, judgments of 14 June 2016, Marchiani v Parliament, C‐566/14 P, EU:C:2016:437, paragraph 51, and of 19 December 2019, Probelte v Commission, T‐67/18, EU:T:2019:873, paragraph 86). |
| --- | --- |

84

With regard to the right to be heard as guaranteed by the Charter, Article 41(2)(a), which is of general application, recognises ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’. Thus, respect for the right to be heard, which must be ensured even in the absence of any applicable rules, requires that the person concerned be given an opportunity in advance to make his or her views known in a meaningful way about the matters which might be held against him or her in the measure to be taken (see, to that effect, judgments of 14 June 2016, Marchiani v Parliament, C‐566/14 P, EU:C:2016:437, paragraph 51, and of 19 December 2019, Probelte v Commission, T‐67/18, EU:T:2019:873, paragraph 86).

| 85 | In the present case, it should be noted at the outset that, by the contested acts, EUCAP Somalia did not deprive the applicant of a right, which he did not enjoy, to have the contract at issue renewed, as is apparent from paragraph 78 above. Similarly, as is apparent from paragraphs 79 and 80 above, if a particular internal procedure existed at EUCAP Somalia for the renewal of the employment contracts of international contract staff, such a procedure was not relevant to the adoption of the contested acts. |
| --- | --- |

85

In the present case, it should be noted at the outset that, by the contested acts, EUCAP Somalia did not deprive the applicant of a right, which he did not enjoy, to have the contract at issue renewed, as is apparent from paragraph 78 above. Similarly, as is apparent from paragraphs 79 and 80 above, if a particular internal procedure existed at EUCAP Somalia for the renewal of the employment contracts of international contract staff, such a procedure was not relevant to the adoption of the contested acts.

| 86 | With particular reference to the note of 18 January 2020, before which the applicant submits that he should have been heard, the Head of Mission informed the international contract staff of EUCAP Somalia who are United Kingdom nationals, including the applicant, that he would let their contracts of employment expire, in accordance with the term agreed in the contracts and known to the applicant since he had signed the contract at issue. The Head of Mission also stated that candidates had already been selected for their posts. |
| --- | --- |

86

With particular reference to the note of 18 January 2020, before which the applicant submits that he should have been heard, the Head of Mission informed the international contract staff of EUCAP Somalia who are United Kingdom nationals, including the applicant, that he would let their contracts of employment expire, in accordance with the term agreed in the contracts and known to the applicant since he had signed the contract at issue. The Head of Mission also stated that candidates had already been selected for their posts.

| 87 | It should also be observed that the conditions of the applicant’s continued employment were closely linked to the arrangements for the United Kingdom’s withdrawal from the European Union. As he himself acknowledges in the present action, the duration of his last four contracts of employment was aligned with the timetable for the negotiations on such withdrawal (see paragraph 9 above). In that context, the applicant could have expected that the progress and outcome of the negotiations between the European Union and the United Kingdom – the deadline for which was 31 January 2020, that is to say, the end of the contract at issue – would have an impact on the choice made by EUCAP Somalia as to whether or not to offer him a renewal of that contract. |
| --- | --- |

87

It should also be observed that the conditions of the applicant’s continued employment were closely linked to the arrangements for the United Kingdom’s withdrawal from the European Union. As he himself acknowledges in the present action, the duration of his last four contracts of employment was aligned with the timetable for the negotiations on such withdrawal (see paragraph 9 above). In that context, the applicant could have expected that the progress and outcome of the negotiations between the European Union and the United Kingdom – the deadline for which was 31 January 2020, that is to say, the end of the contract at issue – would have an impact on the choice made by EUCAP Somalia as to whether or not to offer him a renewal of that contract.

| 88 | In addition, at the time of writing the note of 18 January 2020, that is to say, less than two weeks before the expiry of the contract at issue, the applicant had not come forward concerning the renewal of that contract, as he admitted in response to a question put by the Court at the hearing. Nor does it appear from the file that, between the start of the contract at issue on 1 November 2019 and the note of 18 January 2020, the applicant sought information from the Head of Mission concerning a possible renewal of the contract at issue after its expiry. |
| --- | --- |

88

In addition, at the time of writing the note of 18 January 2020, that is to say, less than two weeks before the expiry of the contract at issue, the applicant had not come forward concerning the renewal of that contract, as he admitted in response to a question put by the Court at the hearing. Nor does it appear from the file that, between the start of the contract at issue on 1 November 2019 and the note of 18 January 2020, the applicant sought information from the Head of Mission concerning a possible renewal of the contract at issue after its expiry.

| 89 | As a result, in the note of 18 January 2020, the Head of Mission merely reiterated the terms of the contract at issue relating to the expiry date and that that note does not contain any new element in relation to those terms. Thus, EUCAP Somalia’s decision not to make use of its option to renew the contract at issue, as recorded in the note of 18 January 2020 and confirmed in the letter of 29 January 2020, was not, within the meaning of Article 41(2)(a) of the Charter, a measure taken against the applicant which adversely affected him. |
| --- | --- |

89

As a result, in the note of 18 January 2020, the Head of Mission merely reiterated the terms of the contract at issue relating to the expiry date and that that note does not contain any new element in relation to those terms. Thus, EUCAP Somalia’s decision not to make use of its option to renew the contract at issue, as recorded in the note of 18 January 2020 and confirmed in the letter of 29 January 2020, was not, within the meaning of Article 41(2)(a) of the Charter, a measure taken against the applicant which adversely affected him.

| 90 | Consequently, Article 41(2)(a) of the Charter did not require EUCAP Somalia to hear the applicant prior to drafting the note of 18 January 2020. EUCAP Somalia could therefore allow the contract at issue to expire on the date agreed in it. |
| --- | --- |

90

Consequently, Article 41(2)(a) of the Charter did not require EUCAP Somalia to hear the applicant prior to drafting the note of 18 January 2020. EUCAP Somalia could therefore allow the contract at issue to expire on the date agreed in it.

| 91 | In any event, it should be noted that a breach of the right to be heard is capable of invalidating an act only where it is established that the procedure could have led to a different result in the absence of such a breach (see, to that effect, judgment of 9 December 2020, Adraces v Commission, T‐714/18, not published, EU:T:2020:591, paragraph 89 and the case-law cited). |
| --- | --- |

91

In any event, it should be noted that a breach of the right to be heard is capable of invalidating an act only where it is established that the procedure could have led to a different result in the absence of such a breach (see, to that effect, judgment of 9 December 2020, Adraces v Commission, T‐714/18, not published, EU:T:2020:591, paragraph 89 and the case-law cited).

| 92 | In the present case, it is true that, had he been heard before the note of 18 January 2020 was drafted, the applicant could have put forward arguments relating to the possibility of retaining staff who are nationals of the United Kingdom during the transition period, in accordance with the Agreement on the withdrawal of the United Kingdom. |
| --- | --- |

92

In the present case, it is true that, had he been heard before the note of 18 January 2020 was drafted, the applicant could have put forward arguments relating to the possibility of retaining staff who are nationals of the United Kingdom during the transition period, in accordance with the Agreement on the withdrawal of the United Kingdom.

| 93 | However, that alone is not sufficient to establish that the procedure could have led to a different result. |
| --- | --- |

93

However, that alone is not sufficient to establish that the procedure could have led to a different result.

| 94 | First, as was found in paragraphs 78 and 85 above, the applicant had no vested right to the renewal of the contract at issue. Secondly, before the note of 18 January 2020 was drafted, it was not yet certain that the Agreement on the withdrawal of the United Kingdom would enter into force, as that agreement was not concluded by the Council until 30 January 2020 (see paragraph 16 above). Thus, it was only on the eve of the expiry of the contract at issue that the legal possibility of offering him a renewal thereof materialised. Thirdly, it is apparent from the file that, prior to the drafting of the note of 18 January 2020, EUCAP Somalia had already proceeded to recruit an EU national to succeed the applicant in his post in the event of the United Kingdom’s withdrawal from the European Union. |
| --- | --- |

94

First, as was found in paragraphs 78 and 85 above, the applicant had no vested right to the renewal of the contract at issue. Secondly, before the note of 18 January 2020 was drafted, it was not yet certain that the Agreement on the withdrawal of the United Kingdom would enter into force, as that agreement was not concluded by the Council until 30 January 2020 (see paragraph 16 above). Thus, it was only on the eve of the expiry of the contract at issue that the legal possibility of offering him a renewal thereof materialised. Thirdly, it is apparent from the file that, prior to the drafting of the note of 18 January 2020, EUCAP Somalia had already proceeded to recruit an EU national to succeed the applicant in his post in the event of the United Kingdom’s withdrawal from the European Union.

| 95 | In those circumstances, the Court considers that, even assuming that the applicant had had the right to be heard prior to the drafting of the note of 18 January 2020, the proceedings could not have led to a different result if he had been able to exercise that right. |
| --- | --- |

95

In those circumstances, the Court considers that, even assuming that the applicant had had the right to be heard prior to the drafting of the note of 18 January 2020, the proceedings could not have led to a different result if he had been able to exercise that right.

| 96 | In view of the foregoing, the first plea in law must be rejected. Since that conclusion is not based on the certificates of the Head of Mission relating to a meeting on 13 January 2020 and to a working lunch on 24 January 2020, it is not necessary to rule on the admissibility of those documents, which is disputed by the applicant. |
| --- | --- |

96

In view of the foregoing, the first plea in law must be rejected. Since that conclusion is not based on the certificates of the Head of Mission relating to a meeting on 13 January 2020 and to a working lunch on 24 January 2020, it is not necessary to rule on the admissibility of those documents, which is disputed by the applicant.

(b)
   
  The second plea in law, alleging breach of the principle of equal treatment and non-discrimination

(b)

The second plea in law, alleging breach of the principle of equal treatment and non-discrimination

| 97 | In the context of his second plea in law, in the first place, the applicant claims that the contested acts constitute discrimination in that they have as their object the non-renewal of the contract at issue on account of his status as a United Kingdom national, whereas his colleagues of other nationalities have been retained in post. He adds that the contested acts cannot validly be supported by the Agreement on the withdrawal of the United Kingdom, inasmuch as, under the terms of the latter, the United Kingdom was to be treated as a Member State until the end of the transition period, so that, during that period, the situation of staff who were nationals of the United Kingdom and staff who were nationals of other Member States was similar. |
| --- | --- |

97

In the context of his second plea in law, in the first place, the applicant claims that the contested acts constitute discrimination in that they have as their object the non-renewal of the contract at issue on account of his status as a United Kingdom national, whereas his colleagues of other nationalities have been retained in post. He adds that the contested acts cannot validly be supported by the Agreement on the withdrawal of the United Kingdom, inasmuch as, under the terms of the latter, the United Kingdom was to be treated as a Member State until the end of the transition period, so that, during that period, the situation of staff who were nationals of the United Kingdom and staff who were nationals of other Member States was similar.

| 98 | In the second place, the applicant claims that the contested acts infringe the principle of equal treatment, in so far as 20 international contract staff in CFSP missions other than EUCAP Somalia, who are also United Kingdom nationals, had their employment contracts extended during the transition period. |
| --- | --- |

98

In the second place, the applicant claims that the contested acts infringe the principle of equal treatment, in so far as 20 international contract staff in CFSP missions other than EUCAP Somalia, who are also United Kingdom nationals, had their employment contracts extended during the transition period.

| 99 | In the third place, the applicant contests that EUCAP Somalia may rely for the first time, at the litigation stage, on the specific nature of his functions as [confidential] and on the derogation provided for in Article 127(7)(b) of the Agreement on the withdrawal of the United Kingdom, without having referred to such grounds in the contested acts. |
| --- | --- |

99

In the third place, the applicant contests that EUCAP Somalia may rely for the first time, at the litigation stage, on the specific nature of his functions as [confidential] and on the derogation provided for in Article 127(7)(b) of the Agreement on the withdrawal of the United Kingdom, without having referred to such grounds in the contested acts.

confidential

| 100 | EUCAP Somalia contests the applicant’s argument, pointing out in particular that he was in a special situation owing to the sensitive nature of his duties as [confidential], which prevented the renewal of his contract, in accordance with Article 127(7)(b) of the Agreement on the withdrawal of the United Kingdom. In that regard, EUCAP Somalia submits that the reference to that article merely complements the statement of reasons already contained in the contested acts to justify the non-renewal of the contract at issue. |
| --- | --- |

100

EUCAP Somalia contests the applicant’s argument, pointing out in particular that he was in a special situation owing to the sensitive nature of his duties as [confidential], which prevented the renewal of his contract, in accordance with Article 127(7)(b) of the Agreement on the withdrawal of the United Kingdom. In that regard, EUCAP Somalia submits that the reference to that article merely complements the statement of reasons already contained in the contested acts to justify the non-renewal of the contract at issue.

confidential

| 101 | As a preliminary point, with regard to the additional statement of reasons provided by EUCAP Somalia in the course of the proceedings, it should be noted that Article 21(2) of the contract at issue, the terms of which are reproduced in paragraph 13 above, required EUCAP Somalia to state the reasons for its response to the internal appeal brought by the applicant on the basis of paragraph 1 of that article. |
| --- | --- |

101

As a preliminary point, with regard to the additional statement of reasons provided by EUCAP Somalia in the course of the proceedings, it should be noted that Article 21(2) of the contract at issue, the terms of which are reproduced in paragraph 13 above, required EUCAP Somalia to state the reasons for its response to the internal appeal brought by the applicant on the basis of paragraph 1 of that article.

| 102 | In addition, it should be noted that the obligation on the EU administration to state the reasons for its decisions is laid down, inter alia, in Article 41(2)(c) of the Charter, and is therefore binding on that administration, even where it acts within a contractual framework, as was pointed out in paragraph 54 above (see, to that effect, judgment of 24 February 2021, Universität Koblenz-Landau v EACEA, T‐606/18, not published, EU:T:2021:105, paragraphs 27 to 32). |
| --- | --- |

102

In addition, it should be noted that the obligation on the EU administration to state the reasons for its decisions is laid down, inter alia, in Article 41(2)(c) of the Charter, and is therefore binding on that administration, even where it acts within a contractual framework, as was pointed out in paragraph 54 above (see, to that effect, judgment of 24 February 2021, Universität Koblenz-Landau v EACEA, T‐606/18, not published, EU:T:2021:105, paragraphs 27 to 32).

| 103 | In that regard, the purpose of the obligation to state reasons is to enable the Courts of the European Union to exercise their review of the legality of a decision and to provide the person concerned with sufficient information to know whether that decision is well founded or whether it is vitiated by a defect which makes it possible to challenge its legality (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‐114/19 P, EU:C:2020:457, paragraph 51 and the case-law cited). Thus, in accordance with established case-law in actions for annulment, which may be transposed to the contractual context of the present case, the obligation to state reasons precludes a defendant institution from substituting, at the litigation stage, an entirely new statement of reasons for the initial statement of reasons for the contested decision (see, to that effect, judgments of 7 February 1990, Culin v Commission, C‐343/87, EU:C:1990:49, paragraph 15; of 21 March 1996, Farrugia v Commission, T‐230/94, EU:T:1996:40, paragraph 36; and of 22 April 2015, Tomana and Others v Council and Commission, T‐190/12, EU:T:2015:222, paragraph 151 and the case-law cited). |
| --- | --- |

103

In that regard, the purpose of the obligation to state reasons is to enable the Courts of the European Union to exercise their review of the legality of a decision and to provide the person concerned with sufficient information to know whether that decision is well founded or whether it is vitiated by a defect which makes it possible to challenge its legality (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‐114/19 P, EU:C:2020:457, paragraph 51 and the case-law cited). Thus, in accordance with established case-law in actions for annulment, which may be transposed to the contractual context of the present case, the obligation to state reasons precludes a defendant institution from substituting, at the litigation stage, an entirely new statement of reasons for the initial statement of reasons for the contested decision (see, to that effect, judgments of 7 February 1990, Culin v Commission, C‐343/87, EU:C:1990:49, paragraph 15; of 21 March 1996, Farrugia v Commission, T‐230/94, EU:T:1996:40, paragraph 36; and of 22 April 2015, Tomana and Others v Council and Commission, T‐190/12, EU:T:2015:222, paragraph 151 and the case-law cited).

| 104 | In the present case, the Court considers it appropriate to examine the second plea in law, alleging breach of the principle of equal treatment and non-discrimination, in the light of the reasons given in the contested acts before, if appropriate, examining whether it is necessary to take account of the additional reasoning put forward by EUCAP Somalia in the course of the proceedings and, consequently, determining whether such reasoning may be taken into account or whether it must be disregarded as being entirely new. |
| --- | --- |

104

In the present case, the Court considers it appropriate to examine the second plea in law, alleging breach of the principle of equal treatment and non-discrimination, in the light of the reasons given in the contested acts before, if appropriate, examining whether it is necessary to take account of the additional reasoning put forward by EUCAP Somalia in the course of the proceedings and, consequently, determining whether such reasoning may be taken into account or whether it must be disregarded as being entirely new.

| 105 | In that regard, it should be noted that, by the note of 18 January 2020, EUCAP Somalia’s international contract staff who were United Kingdom nationals were all informed, irrespective of the functions they performed, that their contracts of employment would not be renewed and that they would terminate at the end of the term agreed in the note, namely on 31 January 2020. In that note, first of all, the Head of Mission considered that the United Kingdom is expected to become a third State from 1 February 2020 and that, in accordance with Decision 2012/389, the recruitment of third State nationals as international contract staff is only allowed in exceptional cases, where no candidate from a Member State can be selected. Secondly, he indicated that the Agreement on the withdrawal of the United Kingdom provided for a transition period during which a framework participation agreement could be concluded between the European Union and the United Kingdom on the participation of its nationals in CFSP missions, probably after a period of negotiations. Finally, he informed the staff concerned that candidates had been selected for their posts. |
| --- | --- |

105

In that regard, it should be noted that, by the note of 18 January 2020, EUCAP Somalia’s international contract staff who were United Kingdom nationals were all informed, irrespective of the functions they performed, that their contracts of employment would not be renewed and that they would terminate at the end of the term agreed in the note, namely on 31 January 2020. In that note, first of all, the Head of Mission considered that the United Kingdom is expected to become a third State from 1 February 2020 and that, in accordance with Decision 2012/389, the recruitment of third State nationals as international contract staff is only allowed in exceptional cases, where no candidate from a Member State can be selected. Secondly, he indicated that the Agreement on the withdrawal of the United Kingdom provided for a transition period during which a framework participation agreement could be concluded between the European Union and the United Kingdom on the participation of its nationals in CFSP missions, probably after a period of negotiations. Finally, he informed the staff concerned that candidates had been selected for their posts.

| 106 | In the letter of 29 January 2020, the Head of Mission, after reiterating the reasons contained in the note of 18 January 2020, clarified to the applicant that the non-renewal of the contract at issue was based on an operational assessment of the mission in the interests of the service as regards future contract renewals, in accordance with an instruction from the Civilian Operations Commander of 30 October 2019 and following the recommendations of the European External Action Service (EEAS). In it, the Head of Mission concluded that the 18 January 2020 note had been taken ‘considering the risks and uncertainties that remain in terms of negotiations between the [European Union] and the [United Kingdom], their timelines and the possibility of a hard Brexit, considering the difficulties linked to the succession of short term contracts caused by the uncertainties and timelines of Brexit developments, considering [the applicant’s] already existing years of service and considering the service need to ensure continuity of operations’. |
| --- | --- |

106

In the letter of 29 January 2020, the Head of Mission, after reiterating the reasons contained in the note of 18 January 2020, clarified to the applicant that the non-renewal of the contract at issue was based on an operational assessment of the mission in the interests of the service as regards future contract renewals, in accordance with an instruction from the Civilian Operations Commander of 30 October 2019 and following the recommendations of the European External Action Service (EEAS). In it, the Head of Mission concluded that the 18 January 2020 note had been taken ‘considering the risks and uncertainties that remain in terms of negotiations between the [European Union] and the [United Kingdom], their timelines and the possibility of a hard Brexit, considering the difficulties linked to the succession of short term contracts caused by the uncertainties and timelines of Brexit developments, considering [the applicant’s] already existing years of service and considering the service need to ensure continuity of operations’.

| 107 | According to settled case-law, the principle of equal treatment and the principle of non-discrimination are two labels for a single general principle of law, which prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (see, to that effect, judgments of 27 January 2005, Europe Chemi-Con (Deutschland) v Council, C‐422/02 P, EU:C:2005:56, paragraph 33, and of 20 November 2017, Voigt v Parliament, T‐618/15, EU:T:2017:821, paragraph 98). |
| --- | --- |

107

According to settled case-law, the principle of equal treatment and the principle of non-discrimination are two labels for a single general principle of law, which prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (see, to that effect, judgments of 27 January 2005, Europe Chemi-Con (Deutschland) v Council, C‐422/02 P, EU:C:2005:56, paragraph 33, and of 20 November 2017, Voigt v Parliament, T‐618/15, EU:T:2017:821, paragraph 98).

| 108 | In particular, Article 21(2) of the Charter prohibits discrimination on grounds of nationality. That provision, which is aimed at situations falling within the scope of EU law in which a national of a Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the ground of his or her nationality, is not intended to apply in the case of a possible difference in treatment between nationals of Member States and nationals of non-Member States (see, to that effect, judgment of 20 November 2017, Petrov and Others v Parliament, T‐452/15, EU:T:2017:822, paragraphs 39 and 40 and the case-law cited). |
| --- | --- |

108

In particular, Article 21(2) of the Charter prohibits discrimination on grounds of nationality. That provision, which is aimed at situations falling within the scope of EU law in which a national of a Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the ground of his or her nationality, is not intended to apply in the case of a possible difference in treatment between nationals of Member States and nationals of non-Member States (see, to that effect, judgment of 20 November 2017, Petrov and Others v Parliament, T‐452/15, EU:T:2017:822, paragraphs 39 and 40 and the case-law cited).

| 109 | It is in the light of those considerations that it is necessary to examine whether, in view of the grounds described in paragraphs 105 and 106 above, the contested acts, first, constitute discrimination on the ground of the applicant’s nationality and, secondly, involve unequal treatment of United Kingdom nationals in the various CFSP missions. |
| --- | --- |

109

It is in the light of those considerations that it is necessary to examine whether, in view of the grounds described in paragraphs 105 and 106 above, the contested acts, first, constitute discrimination on the ground of the applicant’s nationality and, secondly, involve unequal treatment of United Kingdom nationals in the various CFSP missions.

(1) The alleged discrimination on grounds of nationality

(1)

The alleged discrimination on grounds of nationality

| 110 | At the outset, it should be noted that it was not until 1 February 2020 that the United Kingdom withdrew from the European Union, thus becoming a third State (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C‐709/20, EU:C:2021:602, paragraph 47). |
| --- | --- |

110

At the outset, it should be noted that it was not until 1 February 2020 that the United Kingdom withdrew from the European Union, thus becoming a third State (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C‐709/20, EU:C:2021:602, paragraph 47).

| 111 | Thus, at the time of the adoption of the contested acts, that is to say, on 18 and 29 January 2020, the applicant was still a national of a Member State of the European Union, so that, in support of his challenge to the validity of those acts, he can rely on the principle of non-discrimination on grounds of nationality. |
| --- | --- |

111

Thus, at the time of the adoption of the contested acts, that is to say, on 18 and 29 January 2020, the applicant was still a national of a Member State of the European Union, so that, in support of his challenge to the validity of those acts, he can rely on the principle of non-discrimination on grounds of nationality.

| 112 | Furthermore, as is apparent from paragraphs 105 and 106 above, the contested acts were adopted by reason of the applicant’s status as a United Kingdom national. |
| --- | --- |

112

Furthermore, as is apparent from paragraphs 105 and 106 above, the contested acts were adopted by reason of the applicant’s status as a United Kingdom national.

| 113 | However, the fact that the Head of Mission adopted those acts in view of the applicant’s nationality does not necessarily mean that they constitute discrimination on grounds of nationality. |
| --- | --- |

113

However, the fact that the Head of Mission adopted those acts in view of the applicant’s nationality does not necessarily mean that they constitute discrimination on grounds of nationality.

| 114 | In so far as the applicant considers that he was treated differently from staff who are nationals of other Member States within EUCAP Somalia, it is still necessary to verify whether the applicant could be considered to be in a situation comparable to that of those other staff. |
| --- | --- |

114

In so far as the applicant considers that he was treated differently from staff who are nationals of other Member States within EUCAP Somalia, it is still necessary to verify whether the applicant could be considered to be in a situation comparable to that of those other staff.

| 115 | The applicant was a national of a Member State which had initiated a procedure for withdrawal from the European Union under Article 50 TEU, which is such as to place him objectively in a different situation from that of nationals of other Member States. |
| --- | --- |

115

The applicant was a national of a Member State which had initiated a procedure for withdrawal from the European Union under Article 50 TEU, which is such as to place him objectively in a different situation from that of nationals of other Member States.

| 116 | The Agreement on the withdrawal of the United Kingdom was signed by the European Union and the United Kingdom on 24 January 2020 (see paragraph 12 above), before being concluded by the Council on 30 January 2020 (see paragraph 16 above). Therefore, until close to the end of the contract at issue, fixed at 31 January 2020, it could not be ruled out that the United Kingdom’s withdrawal from the European Union would take place without an agreement being concluded, which would have removed, save in exceptional circumstances, the possibility of offering the applicant a renewal of the contract at issue, in accordance with Article 7(3) of Decision 2012/389 (see paragraph 3 above). |
| --- | --- |

116

The Agreement on the withdrawal of the United Kingdom was signed by the European Union and the United Kingdom on 24 January 2020 (see paragraph 12 above), before being concluded by the Council on 30 January 2020 (see paragraph 16 above). Therefore, until close to the end of the contract at issue, fixed at 31 January 2020, it could not be ruled out that the United Kingdom’s withdrawal from the European Union would take place without an agreement being concluded, which would have removed, save in exceptional circumstances, the possibility of offering the applicant a renewal of the contract at issue, in accordance with Article 7(3) of Decision 2012/389 (see paragraph 3 above).

| 117 | Therefore, the applicant, who was part of the contract staff of EUCAP Somalia who were United Kingdom nationals, was not objectively in a situation comparable to that of international contract staff who were nationals of another Member State within that mission, so that the Head of Mission could decide not to renew the applicant’s employment contract after 31 January 2020, without that constituting discrimination on grounds of nationality. |
| --- | --- |

117

Therefore, the applicant, who was part of the contract staff of EUCAP Somalia who were United Kingdom nationals, was not objectively in a situation comparable to that of international contract staff who were nationals of another Member State within that mission, so that the Head of Mission could decide not to renew the applicant’s employment contract after 31 January 2020, without that constituting discrimination on grounds of nationality.

| 118 | Moreover, it is common ground between the parties that the contracts of all the staff of EUCAP Somalia with United Kingdom nationality, whose situation in that respect was comparable to that of the applicant, expired on 31 January 2020. |
| --- | --- |

118

Moreover, it is common ground between the parties that the contracts of all the staff of EUCAP Somalia with United Kingdom nationality, whose situation in that respect was comparable to that of the applicant, expired on 31 January 2020.

| 119 | [As rectified by order of 3 February 2023] In view of the foregoing, in adopting the contested acts, the Head of Mission did not infringe the principle of non-discrimination on grounds of nationality. |
| --- | --- |

119

[As rectified by order of 3 February 2023] In view of the foregoing, in adopting the contested acts, the Head of Mission did not infringe the principle of non-discrimination on grounds of nationality.

(2) The alleged breach of the principle of equal treatment in relation to United Kingdom nationals in other CFSP missions

(2)

The alleged breach of the principle of equal treatment in relation to United Kingdom nationals in other CFSP missions

| 120 | As regards the applicant’s argument that international contract staff who are United Kingdom nationals remained in post during the transition period in other CFSP missions, it must be ascertained whether the applicant was in a situation comparable to that of those other staff with regard to such retention. |
| --- | --- |

120

As regards the applicant’s argument that international contract staff who are United Kingdom nationals remained in post during the transition period in other CFSP missions, it must be ascertained whether the applicant was in a situation comparable to that of those other staff with regard to such retention.

| 121 | In that regard, first, it should be noted that no EU legal act, within the meaning of Article 288 TFEU, has been adopted for the purpose of laying down a single set of Staff Regulations for contract staff in CFSP missions, such as EUCAP Somalia. |
| --- | --- |

121

In that regard, first, it should be noted that no EU legal act, within the meaning of Article 288 TFEU, has been adopted for the purpose of laying down a single set of Staff Regulations for contract staff in CFSP missions, such as EUCAP Somalia.

| 122 | Secondly, as EUCAP Somalia has rightly pointed out, CFSP missions are each the subject of a Council decision taken under Article 43(2) TEU and which defines, according to that provision, ‘their objectives and scope and the general conditions for their implementation’. |
| --- | --- |

122

Secondly, as EUCAP Somalia has rightly pointed out, CFSP missions are each the subject of a Council decision taken under Article 43(2) TEU and which defines, according to that provision, ‘their objectives and scope and the general conditions for their implementation’.

| 123 | In the case of EUCAP Somalia, Articles 7 and 12a of Decision 2012/389, as amended by Decision 2018/1942, give it the legal capacity to conclude contracts for the purpose of employing staff (see paragraphs 3 and 4 above). In addition, Article 6 of that decision provides that the Head of Mission is to have general powers in relation to staff management. |
| --- | --- |

123

In the case of EUCAP Somalia, Articles 7 and 12a of Decision 2012/389, as amended by Decision 2018/1942, give it the legal capacity to conclude contracts for the purpose of employing staff (see paragraphs 3 and 4 above). In addition, Article 6 of that decision provides that the Head of Mission is to have general powers in relation to staff management.

| 124 | However, the applicant has not demonstrated in any way that, given the existence of arrangements specific to each EU mission and the autonomy of those missions in the recruitment and management of their contractual staff, the internal situation and staffing needs of those missions were comparable to those of EUCAP Somalia. The approach to the retention of United Kingdom nationals during the transition period could therefore vary from one CFSP mission to another. |
| --- | --- |

124

However, the applicant has not demonstrated in any way that, given the existence of arrangements specific to each EU mission and the autonomy of those missions in the recruitment and management of their contractual staff, the internal situation and staffing needs of those missions were comparable to those of EUCAP Somalia. The approach to the retention of United Kingdom nationals during the transition period could therefore vary from one CFSP mission to another.

| 125 | In those circumstances, the applicant cannot rely, in support of an alleged breach of the principle of equal treatment, on the measures adopted within other EU missions than EUCAP Somalia in respect of their international contract staff who are United Kingdom nationals. |
| --- | --- |

125

In those circumstances, the applicant cannot rely, in support of an alleged breach of the principle of equal treatment, on the measures adopted within other EU missions than EUCAP Somalia in respect of their international contract staff who are United Kingdom nationals.

| 126 | In the light of the foregoing, the second plea in law must be rejected in the view of the reasons given in the contested acts. It is therefore unnecessary to determine whether the additional reasoning put forward by EUCAP Somalia in the course of the proceedings, based on the sensitive nature of the applicant’s duties and the application of Article 127(7)(b) of the Agreement on the withdrawal of the United Kingdom, can be taken into consideration. |
| --- | --- |

126

In the light of the foregoing, the second plea in law must be rejected in the view of the reasons given in the contested acts. It is therefore unnecessary to determine whether the additional reasoning put forward by EUCAP Somalia in the course of the proceedings, based on the sensitive nature of the applicant’s duties and the application of Article 127(7)(b) of the Agreement on the withdrawal of the United Kingdom, can be taken into consideration.

(c)
   
  The third plea in law, alleging breach of the Agreement on the withdrawal of the United Kingdom

(c)

The third plea in law, alleging breach of the Agreement on the withdrawal of the United Kingdom

| 127 | According to the applicant, in the contested acts, EUCAP Somalia disregarded the Agreement on the withdrawal of the United Kingdom by ignoring the possibility, provided for in that agreement, of continuing to employ United Kingdom nationals during the transition period. First, he claims that, according to a combined reading of Article 127(2) and (6) of the Agreement on the withdrawal of the United Kingdom, nationals of that State were to be considered as nationals of Member States during the transition period, in particular with regard to the provisions of EU law relating to the CFSP. Secondly, the applicant points out that Article 129(7) of that agreement only excluded, during the transition period, the secondment by the United Kingdom of its nationals to occupy certain command posts in CFSP missions, but did not preclude the latter from retaining their international contract staff who are United Kingdom nationals in other posts during that period. |
| --- | --- |

127

According to the applicant, in the contested acts, EUCAP Somalia disregarded the Agreement on the withdrawal of the United Kingdom by ignoring the possibility, provided for in that agreement, of continuing to employ United Kingdom nationals during the transition period. First, he claims that, according to a combined reading of Article 127(2) and (6) of the Agreement on the withdrawal of the United Kingdom, nationals of that State were to be considered as nationals of Member States during the transition period, in particular with regard to the provisions of EU law relating to the CFSP. Secondly, the applicant points out that Article 129(7) of that agreement only excluded, during the transition period, the secondment by the United Kingdom of its nationals to occupy certain command posts in CFSP missions, but did not preclude the latter from retaining their international contract staff who are United Kingdom nationals in other posts during that period.

| 128 | EUCAP Somalia contests the applicant’s arguments. |
| --- | --- |

128

EUCAP Somalia contests the applicant’s arguments.

| 129 | In that respect, it should be noted that, under Article 216(2) TFEU, international agreements concluded by the European Union are binding on the EU institutions. |
| --- | --- |

129

In that respect, it should be noted that, under Article 216(2) TFEU, international agreements concluded by the European Union are binding on the EU institutions.

| 130 | In the present case, the Agreement on the withdrawal of the United Kingdom was not concluded by the Council until 30 January 2020 (see paragraph 16 above). Thus, on the date of adoption of the contested acts, 18 and 29 January 2020, EUCAP Somalia was not yet bound by that agreement, so that it cannot be criticised for having failed to comply with it. |
| --- | --- |

130

In the present case, the Agreement on the withdrawal of the United Kingdom was not concluded by the Council until 30 January 2020 (see paragraph 16 above). Thus, on the date of adoption of the contested acts, 18 and 29 January 2020, EUCAP Somalia was not yet bound by that agreement, so that it cannot be criticised for having failed to comply with it.

| 131 | In any event, as regards the temporal scope of application of new rules, a distinction is made between procedural and substantive rules. The former are generally deemed to apply to all pending litigation at the time they enter into force, unlike the latter, which are normally interpreted as applying to the future effects of situations arising under the old law as well as to new legal situations, but not to situations existing prior to the entry into force of those rules, except in so far as it is clear from the terms, purpose or scheme of those rules that such effect must be attributed to them (see judgment of 21 October 2021, Beeren-, Wild-, Feinfrucht, C‐825/19, EU:C:2021:869, paragraph 31 and the case-law cited; see also, to that effect, judgment of 12 May 2005, Commission v Huhtamaki Dourdan, C‐315/03, not published, EU:C:2005:284, paragraph 51 and the case-law cited). |
| --- | --- |

131

In any event, as regards the temporal scope of application of new rules, a distinction is made between procedural and substantive rules. The former are generally deemed to apply to all pending litigation at the time they enter into force, unlike the latter, which are normally interpreted as applying to the future effects of situations arising under the old law as well as to new legal situations, but not to situations existing prior to the entry into force of those rules, except in so far as it is clear from the terms, purpose or scheme of those rules that such effect must be attributed to them (see judgment of 21 October 2021, Beeren-, Wild-, Feinfrucht, C‐825/19, EU:C:2021:869, paragraph 31 and the case-law cited; see also, to that effect, judgment of 12 May 2005, Commission v Huhtamaki Dourdan, C‐315/03, not published, EU:C:2005:284, paragraph 51 and the case-law cited).

| 132 | As regards, in the present case, the provisions of the Agreement on the Withdrawal of the United Kingdom relied on by the applicant, first, it should be noted that Article 127 of that agreement, entitled ‘Scope of the transition’, provides as follows:
  ‘1.   Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.
  ...
  2.   In the event that the Union and the United Kingdom reach an agreement governing their future relationship in the areas of the Common Foreign and Security Policy and the Common Security and Defence Policy which becomes applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of application of that agreement.
  ...
  6.   Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.
  ...’ |
| --- | --- |

132

As regards, in the present case, the provisions of the Agreement on the Withdrawal of the United Kingdom relied on by the applicant, first, it should be noted that Article 127 of that agreement, entitled ‘Scope of the transition’, provides as follows:

‘1.   Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

...

2.   In the event that the Union and the United Kingdom reach an agreement governing their future relationship in the areas of the Common Foreign and Security Policy and the Common Security and Defence Policy which becomes applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of application of that agreement.

...

6.   Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.

...’

| 133 | Secondly, Article 129 of that agreement, entitled ‘Specific arrangements relating to the Union’s external action’, provides in paragraph 7 as follows:
  ‘During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42, 43 and 44 TEU, nor shall it provide the operational headquarters for such missions or operations, or serve as framework nation for Union battlegroups. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.’ |
| --- | --- |

133

Secondly, Article 129 of that agreement, entitled ‘Specific arrangements relating to the Union’s external action’, provides in paragraph 7 as follows:

‘During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42, 43 and 44 TEU, nor shall it provide the operational headquarters for such missions or operations, or serve as framework nation for Union battlegroups. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.’

| 134 | Therefore, Article 127(2) and (6) and Article 129(7) of the Agreement on the withdrawal of the United Kingdom govern the conditions under which EU law applies to the United Kingdom during the transition period and therefore constitute substantive rules. Furthermore, it is not apparent from the wording, purpose or scheme of those provisions that they should apply to legal situations existing prior to the entry into force of the Agreement on the withdrawal of the United Kingdom. On the contrary, those provisions relate to the transition period which, according to Article 126 of that agreement, begins on the date of its entry into force (see paragraph 17 above). |
| --- | --- |

134

Therefore, Article 127(2) and (6) and Article 129(7) of the Agreement on the withdrawal of the United Kingdom govern the conditions under which EU law applies to the United Kingdom during the transition period and therefore constitute substantive rules. Furthermore, it is not apparent from the wording, purpose or scheme of those provisions that they should apply to legal situations existing prior to the entry into force of the Agreement on the withdrawal of the United Kingdom. On the contrary, those provisions relate to the transition period which, according to Article 126 of that agreement, begins on the date of its entry into force (see paragraph 17 above).

| 135 | It follows that, by virtue of the principle recalled in paragraph 131 above, Article 127(2) and (6) and Article 129(7) of the Agreement on the withdrawal of the United Kingdom became applicable at the time of the entry into force of that agreement, on 1 February 2020 (see paragraph 18 above). Therefore, in accordance with that principle, infringement of those provisions cannot be relied on in support of an action relating to an act prior to that date. |
| --- | --- |

135

It follows that, by virtue of the principle recalled in paragraph 131 above, Article 127(2) and (6) and Article 129(7) of the Agreement on the withdrawal of the United Kingdom became applicable at the time of the entry into force of that agreement, on 1 February 2020 (see paragraph 18 above). Therefore, in accordance with that principle, infringement of those provisions cannot be relied on in support of an action relating to an act prior to that date.

| 136 | In the present case, the contested acts, which are dated 18 January 2020 and 29 January 2020, and which relate to the non-renewal of the contract at issue which, pursuant to Article 17 thereof, expired on 31 January 2020, predate the entry into force on 1 February 2020 of the Agreement on the withdrawal of the United Kingdom. Therefore, the contested acts cannot be held to be in breach of that agreement. |
| --- | --- |

136

In the present case, the contested acts, which are dated 18 January 2020 and 29 January 2020, and which relate to the non-renewal of the contract at issue which, pursuant to Article 17 thereof, expired on 31 January 2020, predate the entry into force on 1 February 2020 of the Agreement on the withdrawal of the United Kingdom. Therefore, the contested acts cannot be held to be in breach of that agreement.

| 137 | Therefore, the third plea in law must in any event be rejected, without it being necessary to rule on the question whether an infringement of the Agreement on the withdrawal of the United Kingdom can be relied on in the context of an action based on Article 272 TFEU. |
| --- | --- |

137

Therefore, the third plea in law must in any event be rejected, without it being necessary to rule on the question whether an infringement of the Agreement on the withdrawal of the United Kingdom can be relied on in the context of an action based on Article 272 TFEU.

(d)
   
  The fourth plea in law, alleging breach of the principle of the protection of legitimate expectations

(d)

The fourth plea in law, alleging breach of the principle of the protection of legitimate expectations

| 138 | The applicant claims that, by not renewing his contract following the contested acts, EUCAP Somalia infringed the principle of the protection of legitimate expectations. First, between September 2016 and September 2019, he was given specific assurances as to the continued employment of international contract staff who were United Kingdom nationals during the transition period in the event of the conclusion of an Agreement on the withdrawal of the United Kingdom. Secondly, having regard to the various renewals of his contract of employment, depending on the successive deadlines set for the negotiation of such an agreement, and to his seniority within EUCAP Somalia, the applicant could legitimately have expected to have that contract renewed during the transition period. |
| --- | --- |

138

The applicant claims that, by not renewing his contract following the contested acts, EUCAP Somalia infringed the principle of the protection of legitimate expectations. First, between September 2016 and September 2019, he was given specific assurances as to the continued employment of international contract staff who were United Kingdom nationals during the transition period in the event of the conclusion of an Agreement on the withdrawal of the United Kingdom. Secondly, having regard to the various renewals of his contract of employment, depending on the successive deadlines set for the negotiation of such an agreement, and to his seniority within EUCAP Somalia, the applicant could legitimately have expected to have that contract renewed during the transition period.

| 139 | EUCAP Somalia contests the applicant’s arguments. |
| --- | --- |

139

EUCAP Somalia contests the applicant’s arguments.

| 140 | In that regard, it should be noted that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances, originating from authorised and reliable sources, have been given to the person concerned by the competent authorities of the European Union. By contrast, no one may rely on a breach of that principle in the absence of such assurances (see judgment of 16 July 2020, ADR Center v Commission, C‐584/17 P, EU:C:2020:576, paragraph 75 and the case-law cited). |
| --- | --- |

140

In that regard, it should be noted that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances, originating from authorised and reliable sources, have been given to the person concerned by the competent authorities of the European Union. By contrast, no one may rely on a breach of that principle in the absence of such assurances (see judgment of 16 July 2020, ADR Center v Commission, C‐584/17 P, EU:C:2020:576, paragraph 75 and the case-law cited).

| 141 | In the present case, neither the applicant’s seniority within EUCAP Somalia nor the fact that his employment contract was renewed during the successive periods of negotiation of a withdrawal agreement between the United Kingdom and the European Union can be equated with precise, unconditional and consistent assurances within the meaning of the case-law cited in paragraph 140 above. Furthermore, while the applicant asserts that the former Head of Mission of EUCAP Somalia provided assurances to the international contract staff of that mission who are United Kingdom nationals that their employment contracts would be renewed during the transition period, he does not substantiate his assertions. |
| --- | --- |

141

In the present case, neither the applicant’s seniority within EUCAP Somalia nor the fact that his employment contract was renewed during the successive periods of negotiation of a withdrawal agreement between the United Kingdom and the European Union can be equated with precise, unconditional and consistent assurances within the meaning of the case-law cited in paragraph 140 above. Furthermore, while the applicant asserts that the former Head of Mission of EUCAP Somalia provided assurances to the international contract staff of that mission who are United Kingdom nationals that their employment contracts would be renewed during the transition period, he does not substantiate his assertions.

| 142 | The only factual evidence relied on by the applicant is an email from the Head of Division of the EEAS for CFSP mission staff. However, first, the decision to propose to the applicant a renewal of the contract at issue during the transition period fell within the competence of the Head of Mission and not of a Head of Division of the EEAS. Secondly, the email does not allow the applicant to be considered to have received specific assurances that the contract at issue would be renewed during the transition period. On the contrary, in that email, the Head of Division of the EEAS for Personnel of CFSP Missions clearly indicated that the continuation of seconded or contracted United Kingdom nationals in such missions would be subject to an assessment of the interest of the service by the Heads of Mission. Accordingly, it cannot be considered that the applicant received specific assurances, within the meaning of the case-law cited in paragraph 140 above, that the contract at issue would be renewed during the transition period. |
| --- | --- |

142

The only factual evidence relied on by the applicant is an email from the Head of Division of the EEAS for CFSP mission staff. However, first, the decision to propose to the applicant a renewal of the contract at issue during the transition period fell within the competence of the Head of Mission and not of a Head of Division of the EEAS. Secondly, the email does not allow the applicant to be considered to have received specific assurances that the contract at issue would be renewed during the transition period. On the contrary, in that email, the Head of Division of the EEAS for Personnel of CFSP Missions clearly indicated that the continuation of seconded or contracted United Kingdom nationals in such missions would be subject to an assessment of the interest of the service by the Heads of Mission. Accordingly, it cannot be considered that the applicant received specific assurances, within the meaning of the case-law cited in paragraph 140 above, that the contract at issue would be renewed during the transition period.

| 143 | Consequently, the fourth plea in law must be rejected. |
| --- | --- |

143

Consequently, the fourth plea in law must be rejected.

5.
   
  Conclusion

5.

Conclusion

| 144 | Since all the pleas in law put forward by the applicant in support of his claims under Article 272 TFEU have been rejected, the action must be dismissed. |
| --- | --- |

144

Since all the pleas in law put forward by the applicant in support of his claims under Article 272 TFEU have been rejected, the action must be dismissed.

IV. Costs

IV.

Costs

| 145 | Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by EUCAP Somalia. |
| --- | --- |

145

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by EUCAP Somalia.

| | On those grounds,
  THE GENERAL COURT (Seventh Chamber, Extended Composition)
  hereby: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Seventh Chamber, Extended Composition)

hereby:

| | 1. | Dismisses the action; |
| --- | --- | --- |

1.

1.

Dismisses the action;

Dismisses the action;

| | 2. | Orders JF to pay the costs. |
| --- | --- | --- |

2.

2.

Orders JF to pay the costs.

Orders JF to pay the costs.

| | da Silva Passos


  Valančius


  Reine




  Truchot


  Sampol Pucurull


  Delivered in open court in Luxembourg on 13 July 2022.


  E. Coulon
  Registrar


  S. Papasavvas
  President |
| --- | --- |

da Silva Passos

Valančius

Reine

Truchot

Sampol Pucurull

Delivered in open court in Luxembourg on 13 July 2022.

E. Coulon

Registrar

S. Papasavvas

President

Table of contents

| | I. Background to the dispute |
| --- | --- |
| | II. Forms of order sought |
| | III. Law |
| | A. The principal claims, based on Articles 263 TFEU and 268 TFEU |
| | 1. Admissibility of the application for annulment based on Article 263 TFEU |
| | 2. Admissibility of the claim for damages under Article 268 TFEU |
| | B. The alternative claims, based on Article 272 TFEU |
| | 1. The jurisdiction of the General Court |
| | 2. The applicable law |
| | 3. Admissibility |
| | 4. Substance |
| | (a) The first plea in law, alleging breach of the right to be heard |
| | (b) The second plea in law, alleging breach of the principle of equal treatment and non-discrimination |
| | (1) The alleged discrimination on grounds of nationality |
| | (2) The alleged breach of the principle of equal treatment in relation to United Kingdom nationals in other CFSP missions |
| | (c) The third plea in law, alleging breach of the Agreement on the withdrawal of the United Kingdom |
| | (d) The fourth plea in law, alleging breach of the principle of the protection of legitimate expectations |
| | 5. Conclusion |
| | IV. Costs |

I. Background to the dispute

II. Forms of order sought

III. Law

A. The principal claims, based on Articles 263 TFEU and 268 TFEU

1. Admissibility of the application for annulment based on Article 263 TFEU

2. Admissibility of the claim for damages under Article 268 TFEU

B. The alternative claims, based on Article 272 TFEU

1. The jurisdiction of the General Court

2. The applicable law

3. Admissibility

4. Substance

(a) The first plea in law, alleging breach of the right to be heard

(b) The second plea in law, alleging breach of the principle of equal treatment and non-discrimination

(1) The alleged discrimination on grounds of nationality

(2) The alleged breach of the principle of equal treatment in relation to United Kingdom nationals in other CFSP missions

(c) The third plea in law, alleging breach of the Agreement on the withdrawal of the United Kingdom

(d) The fourth plea in law, alleging breach of the principle of the protection of legitimate expectations

5. Conclusion

IV. Costs

---

(
  i
  )	Paragraph 119 of this text has been subject to a linguistic modification after its first publication in the ECR.

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(
  *1
  )	Language of the case: English.

*1