Judgment;Summary — ECLI:EU:C:2020:505
Date: 2020-06-25
Language of the case: English
Court formation: First Chamber
Subject matter: External relations;Provisions governing the Institutions;Common foreign and security policy
Procedure: Arbitration clause;Appeal - successful
Origin: United Kingdom

summary of the arguments of the parties 65. By the second ground of appeal, alleging infringement of Article 272 TFEU, the right to an effective remedy under Article 47 of the Charter and the principle of equal treatment, SC contends that the General Court erred in law, in paragraphs 31, 37, 40, 42, 43, 45, 46 and 64 of the order under appeal, by failing to accept jurisdiction under Article 272 TFEU regarding the third head of claim as to the unlawfulness of the contested decisions, and to consider the merits of that claim. This ground of appeal is divided into three parts. 66. By the first part of the second ground of appeal, SC claims that the General Court erred in law by leaving unresolved the question whether it was entitled to assess the facts occurring during the period covered by the clause in the first and second employment contracts conferring jurisdiction on the Brussels courts, whereas it follows from the judgment in Jenkinson that it has jurisdiction under Article 272 TFEU. 67. By the second part of the second ground of appeal, SC contends that the General Court erred in law by holding that SC’s claim, seeking a declaration that the contested decisions were unlawful, constituted an action for annulment, whereas declarations in relation to contractual infringements are appropriate legal remedies under Article 272 TFEU. (42) 68. By the third part of the second ground of appeal, SC submits that the General Court erred in law by finding that the contested decisions were administrative measures separable from the contract. The decision relating to the 2016 internal competition was taken on the basis of the SOP which are an integral part of the employment contract, pursuant to Article 1.2 thereof, and constitute the applicable law to that contract. (43) The General Court wrongly held that SC did not put forward any pleas based on contractual provisions, since SC raised several pleas alleging breach of the rules governing the contractual relationship, including the SOP. Moreover, the mere absence in the contract of a clause providing for its renewal has no bearing on the fact that the decision not to renew the employment contract is contractual. SC further emphasised at the hearing that the SOP are contractual in relation to SC’s employment relationship with Eulex Kosovo, and the arbitration clause would be devoid of purpose if it were limited simply to the contract itself. 69. SC adds that the General Court’s approach is inconsistent with other case-law, (44) and leads to contract staff of CSDP missions being prevented from bringing the majority of employment disputes before the EU Courts. By foreclosing the only apparent avenue available to such staff for challenging decisions taken against them pursuant to Article 272 TFEU, the General Court’s approach infringes SC’s right to an effective remedy guaranteed by Article 47 of the Charter, along with the principle of equal treatment, in so far as the right to bring an action for annulment has been granted to seconded staff of CSDP missions. (45) 70. Eulex Kosovo submits that the General Court’s approach is consistent with settled case-law that Article 272 TFEU must be interpreted restrictively. (46) The decision relating to the 2016 internal competition was the result of a restructuring decision taken within the Council and formalised in the OPLAN and thus is separable from the contract. The General Court also rightly based its findings regarding the decision not to renew the employment contract on the absence of a clause in the contract regarding its renewal. Eulex Kosovo does not dispute that the OPLAN, CONOPS, COC and SOP are an integral part of the employment contract, yet it refutes SC’s contention that these documents are contractual, since, as it emphasised at the hearing, they are general operational documents and not negotiated by the parties. 71. Eulex Kosovo further contends that the General Court did not infringe SC’s right to an effective remedy and equal treatment, since SC was entitled to bring an action for annulment under Article 263 TFEU. In addition, the cases referred to by SC are characterised by different circumstances, and are still pending before the relevant courts. 2. Assessment of the second ground of appeal 72. I should state at the outset that while the third part of the second ground of appeal merits serious consideration, the first and second parts of that ground of appeal can be swiftly rejected. 73. By the first part of the second ground of appeal, SC alleges that the General Court did not specify, in light of the judgment in Jenkinson, whether it could take account of facts occurring during the period in which the employment contracts did not include arbitration clauses providing for the jurisdiction of the EU Courts. In my view, it was not necessary for the General Court to rule on that question in order to assess whether the contested decisions were measures separable from the contract, since it was not alleged that their connection with the contract arises from that period. I therefore propose that the first part of the second ground of appeal should be rejected as unfounded. 74. By the second part of the second ground of appeal, SC seems to complain that the General Court ruled out the possibility that an action under Article 272 TFEU can be declaratory in nature. However, the General Court did not take a position on that question, and relied on the nature of the contested decisions, rather than on the nature of the claims made against them. I therefore propose that the second part of the second ground of appeal should be rejected as unfounded. 75. By the third part of the second ground of appeal, SC calls into question the General Court’s assessment of the contested decisions as measures separable from the contract which could not be challenged under Article 272 TFEU. 76. I should point out that this part of the second ground of appeal raises complex issues which have not yet been dealt with in the Court’s case-law relating to the distinction between the acts which may be challenged in actions based on Articles 263 and 272 TFEU, in the context of an employment dispute involving a former member of the contract staff of a CSDP civilian mission. The complexities of the present case arise in particular from the fact that the acts in question were situated in an administrative context and were not based on any specific provisions of the employment contract concluded between the parties. 77. I consider that the third part of the second ground of appeal is well founded and that the order under appeal should be set aside on that basis. My reasons for reaching that conclusion are as follows. 78. First, it should be recalled that, under settled case-law, Article 272 TFEU is a specific provision which allows the EU Courts to hear disputes under a so-called arbitration clause agreed by the parties for contracts governed by either public or private law. (47) Since such disputes fall within the national courts’ general jurisdiction under Article 274 TFEU except where there is an arbitration clause, the EU Courts’ jurisdiction under Article 272 TFEU derogates from the ordinary rules of law and thus is interpreted restrictively. (48) Also, that jurisdiction is determined solely with regard to Article 272 TFEU and the terms of the arbitration clause, and cannot be affected by provisions of national law which allegedly exclude the EU Courts’ jurisdiction. (49) It follows that the EU Courts may hear and determine only claims arising from the contract concluded with the EU which contains the arbitration clause, or claims which are directly connected with the obligations arising from that contract. (50) 79. By contrast, Article 263 TFEU allows the EU Courts to review the legality of binding measures adopted by EU institutions and bodies by way of an action for annulment which falls within their exclusive jurisdiction. (51) Under the case-law, an action for annulment is available in the case of all measures adopted by the EU institutions and bodies, whatever their nature or form, which are intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. (52) 80. Consequently, the Court has established criteria to distinguish the types of acts which may be challenged under Articles 263 and 272 TFEU. In particular, in a line of case-law largely spearheaded by the judgment in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (‘Lito’), (53) the Court has held that, where there is a contract between the applicant and one of the institutions, an action for annulment may be brought under Article 263 TFEU ‘only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution in its capacity as an administrative authority’. 81. In that connection, the Court reasoned that, were the EU Courts to hold that they had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU meaningless, but would also risk, where the contract does not contain an arbitration clause, extending the EU Courts’ jurisdiction beyond the limits of Article 274 TFEU which gives national courts ordinary jurisdiction over such disputes. (54) 82. On that basis, the Court has held that an action challenging a debit note cannot be based on Article 263 TFEU. That note falls within the contract’s scope, since the note’s purpose is the recovery of a debt which is grounded on the provisions of the contract. That note also cannot be equated to an enforcement order under Article 299 TFEU which may be availed of by an institution where a party fails to perform an obligation by the delivery date laid down. Thus, that note does not produce legal effects stemming from the exercise of the prerogatives of a public authority, but must be regarded as inseparable from the contractual relationship between the parties. (55) 83. Moreover, the Court has reached similar conclusions in circumstances involving triangular contractual relationships in which the applicant has not concluded a contract directly with an institution, but with a co-contracting party in the context of a contract concluded between that party and the EU. Here, the Court has held that acts adopted by the institution relating to the applicant’s unsatisfactory performance, reduction of salary and termination of work are not challengeable acts under Article 263 TFEU, since all the effects of such acts are produced and exhausted within the framework of the contractual relationship between the institution and the other contracting party, in relation to which the applicant is a third party. (56) 84. It should also be pointed out that the case-law concerning the distinction between Article 272 TFEU and Article 263 TFEU links up with the case-law concerning the distinction between Article 272 TFEU and Article 268 TFEU (57) which confers exclusive jurisdiction on the EU Courts to decide actions concerning EU non-contractual liability. (58) In particular, the Court has ruled that, in order to determine the contractual or non-contractual nature of the dispute for the purposes of assessing their jurisdiction, the EU Courts must verify, by reference to various matters in the file, such as the rules of law allegedly infringed, the nature of the damage claimed, the conduct complained of and the legal relations between the parties, whether there exists between them ‘a genuine contractual context, linked to the subject matter of the dispute, the in-depth examination of which proves to be indispensable for the resolution of the said action’. The Court has also emphasised that the EU Courts cannot simply base their reasoning on the rules alleged by the parties, since this would make the nature of the dispute and the court with jurisdiction susceptible to change depending on the whim of the rules invoked by the parties. 85. It is in the light of the foregoing case-law that the third part of the second ground of appeal should be examined. 86. In the present case, I observe that, in paragraphs 35, 36 and 42 of the order under appeal, the General Court referred to the conditions established in the Court’s case-law and in particular the judgment in Lito to ascertain whether the contested decisions fell within the scope of the contractual relationship between the parties. 87. However, I consider the General Court’s findings, in paragraphs 37 to 45 of the order under appeal, that those decisions must be regarded as measures separable from that relationship, are vitiated by an error of law. 88. It should be recalled that the contested decisions concern SC’s failure to pass the 2016 internal competition and the non-renewal of her employment contract. As such, the contested decisions are acts taken by Eulex Kosovo which pertain to SC’s employment relationship with Eulex Kosovo. SC’s action brought before the EU Courts seeks judicial review of the Head of Mission’s decision upholding the contested decisions in conformity with provisions of the OPLAN and the SOP (see point 30 of this Opinion). 89. Having regard to the Court’s case-law and in particular the criteria established in the judgment in Lito, there are strong indications that the contested decisions fall within the contractual framework between SC and Eulex Kosovo. As I will argue below, those decisions are grounded on the rights and obligations arising from the employment contract between SC and Eulex Kosovo, and essentially relate to the performance of that contract. Therefore, the contested decisions do not produce legal effects stemming from Eulex Kosovo’s exercise of prerogatives of public authority, but rather should be regarded as inseparable from the contractual relationship between SC and Eulex Kosovo. Contrary to Eulex Kosovo’s submissions, while Article 272 TFEU is interpreted restrictively, as mentioned in point 78 of this Opinion, Article 272 TFEU clearly extends to disputes arising from the contract or directly connected to obligations arising therefrom, as is the case here. (a) The decision relating to the 2016 internal competition 90. In paragraphs 38 to 42 of the order under appeal, the General Court found that the decision relating to the 2016 internal competition was not based on the terms of the employment contract between SC and Eulex Kosovo, but was adopted by the selection board of the 2016 internal competition in the context of the scheme to reduce staff under the OPLAN and the Deployment Plan, and stemmed from an administrative decision to hold that competition. It followed that the decision relating to the 2016 internal competition was separable from the contract. 91. In paragraph 43 of the order under appeal, the General Court also found that SC’s pleas in support of the third head of claim were not based on the terms of the employment contract between SC and Eulex Kosovo, but raised alleged defects specific to administrative acts. 92. I am in agreement with SC that this approach is misconceived. 93. First, the General Court largely relied on the administrative context surrounding the decision relating to the 2016 internal competition, namely the fact that that decision resulted from decisions of the Council and the Civilian Operation Commander concerning the reduction of staff, from which it inferred that that decision was taken in that context, rather than in the context of the contractual relationship between the parties. However, the General Court failed to assess the precise link between that decision and the contractual relationship between the parties. Such an assessment would appear to be of particular importance in the context of CSDP civilian missions, given that the acts relating to the employment relationship with contract staff may often be the consequences of decisions taken by the Council or other authorities regarding the organisation and strategic direction of those missions. 94. In the present case, while the administrative decisions in question related to the reduction of the staff of Eulex Kosovo, there is nothing to suggest that they concerned the specific treatment of staff members in the context of the competition procedure or the employment status of such members resulting from that competition. Thus, the General Court’s inference that the decision relating to the 2016 internal competition was administrative merely from the fact that it stemmed from an administrative decision regarding the organisation of Eulex Kosovo misapplies the Court’s case-law, since it is liable to lead to the possible annulment of acts falling within the contractual relationship between the parties and thus to empty Article 272 TFEU of its substance. 95. Moreover, it is apparent that the 2016 internal competition was governed in particular by provisions of the OPLAN and the SOP. However, the General Court failed to address whether the OPLAN, CONOPS, COC and SOP, which SC alleges were breached by Eulex Kosovo, are contractual documents and therefore part of the contractual relationship between SC and Eulex Kosovo. 96. Contrary to Eulex Kosovo’s submissions, and as indicated by SC, the fact that those documents have a general operational nature and are not negotiated by the parties to the contract is not decisive. Those documents may be considered to be contractual in the relationship between SC and Eulex Kosovo, given that they are referred to in the employment contract as an integral part of that contract, and constitute the basis of rights and obligations of the parties in the performance of that contract (see points 19 and 20 of the Opinion). (59) 97. In that regard, I should point out that, in the applicable version of the SOP on Reconfiguration, annexed to Eulex Kosovo’s written submissions, (60) Article 5, titled ‘Review’, provides that: ‘Without prejudice to the legal remedies foreseen by the employment contracts, any member of the staff affected by the reconfiguration may request the review of the process from the Head of Mission in case of substantiated concerns by the staff member affected about the fairness and accurateness of the process’. That implies a staff member’s recourse to remedies within the contractual framework, namely, an action brought under Article 272 TFEU pursuant to the arbitration clause in the employment contract, for challenging the fairness of an internal competition procedure affecting that member, as in the present case. 98. It is also worth noting that, as indicated by SC, a finding that those documents are not contractual seems at odds with General Court case-law not mentioned in the order under appeal, in which such documents are regarded as forming the basis for contractual obligations between the parties. In particular, PY v EUCAP Sahel Niger (61) involved an action based on Article 272 TFEU lodged by a former contract staff member of a CSDP civilian mission, alleging breach of his employment contract based on that mission’s code of conduct. The General Court held that the action should be examined on the basis of the provisions of the code of conduct which formed an integral part of the employment contract and constituted the applicable law for assessing those claims. 99. For similar reasons, the General Court’s finding that SC’s pleas related to defects specific to administrative acts and were not based on the terms of the contract in order to support its conclusion that the decision relating to the 2016 internal competition was of an administrative nature is problematic. The General Court overlooked SC’s pleas alleging infringement of rules governing the contractual relationship between the parties, including the OPLAN and the SOP. Thus, by failing to address whether those documents were contractual, the General Court incorrectly held that SC did not put forward any pleas based on the terms of the employment contract. 100. I should also point out that that finding seems at odds with the Court’s case-law relating to the distinction between Articles 268 and 272 TFEU (see point 84 of this Opinion) which establishes that the EU Courts must verify the existence of a genuine contractual context between the parties, and cannot rely solely on the pleas alleged by the parties to establish the contractual nature of the dispute, in so far as the admissibility of the action is concerned. (62) Indeed, the General Court did just that by assessing the contractual nature of the dispute for the purposes of Article 272 TFEU based on pleas invoked by SC. 101. Finally, nothing else in the case file supports the conclusion that, in adopting the decision relating to the 2016 internal competition, Eulex Kosovo acted not in its capacity as employer/co-contracting party, but instead as a public authority going beyond the contractual framework between the parties. The circumstances arising in the present case are different in particular from a situation in which the employment relationship goes beyond the contractual context and has staff regulations elements which result from entrusting the EU institution or body with ‘public interest responsibilities’. (63) (b) The decision not to renew the employment contract 102. In paragraph 45 of the order under appeal, the General Court found that while the last employment contract provided, in Article 16.1, that its duration covered the period from 15 June to 14 November 2016, that contract contained no clause providing for its renewal. Thus, the decision not to renew the employment contract did not result from the contractual terms between SC and Eulex Kosovo, but was based on an administrative decision of the Human Resources department drawing the consequences of the 2016 internal competition and SC’s failure to pass that competition. 103. Consequently, the General Court relied on the fact that the contract did not contain any clause providing for its renewal in order to find that that decision did not fall within the contractual relationship between SC and Eulex Kosovo. Yet, as indicated by SC, the fact that the employment contract between SC and Eulex Kosovo did not contain a clause providing for its renewal is not determinative as to the assessment whether that decision falls within the scope of the contractual relationship between the parties in accordance with the Court’s case-law and in particular the judgment in Lito. 104. Indeed, on the contrary, the decision not to renew the employment contract would seem to fall squarely within the contractual relationship between SC and Eulex Kosovo. This is supported by the fact that the last employment contract further provides, in Article 16.2, for the termination of the employment contract by the employee or employer. By taking the decision not to renew SC’s contract, Eulex Kosovo was acting as employer in terminating SC’s employment at Eulex Kosovo within the contractual framework between the parties. Consequently, nothing supports the conclusion that, in taking that decision, Eulex Kosovo was acting outside that framework in the exercise of prerogatives of public authority. 105. Furthermore, I consider that the judgment in Jenkinson (64) provides indications that the decision not to renew the employment contract falls within the contractual relationship between SC and Eulex Kosovo. As mentioned in points 61 and 62 of this Opinion, the circumstances arising in that case concerned an action based on Article 272 TFEU brought by a former member of the international contract staff of Eulex Kosovo, alleging in particular unfair dismissal resulting from the non-renewal of his employment contract. 106. Admittedly, the Court did not take a direct position on the nature of the decisions in question, since it addressed a different issue relating to the scope of the EU Courts’ jurisdiction under Article 272 TFEU in the context of an employment relationship based on several contracts, only the last of which contained an arbitration clause. Nonetheless, the Court reasoned that the applicant’s claims, including those concerning the non-renewal of his employment contract, fell within the scope of its jurisdiction under the arbitration clause in the final contract as arising from that contract or directly connected with the obligations arising from that contract. That judgment therefore presumes that a claim based on non-renewal of the employment contract in those circumstances is contractual. 107. This is also evident in Advocate General Szpunar’s Opinion in Jenkinson. (65) In particular, the Advocate General considered the relationship between the applicant and Eulex Kosovo to be ‘an employment relationship of a contractual nature’ and since it was the decision not to renew the employment contract which put an end to that employment relationship, that decision and the final contract containing the arbitration clause were linked for the purposes of the Court’s jurisdiction under Article 272 TFEU. 108. It is also worth pointing out in this connection that the General Court’s approach seems at odds with other General Court case-law involving employment disputes brought by former members of the contract staff of Eulex Kosovo, in which decisions not to renew the employment contract were regarded as measures falling within the contractual relationship between the parties. While those decisions are not binding on this Court, I see no reason, contrary to Eulex Kosovo’s submissions, why that case-law is not relevant to the present case, especially given the similarities regarding the acts in question. 109. In particular, in Bitiqi and Others v Commission and Others, (66) the General Court was called upon to rule on the legality of decisions taken by Eulex Kosovo not to renew the employment contracts of several contract staff members. In those decisions, the Head of Mission informed those staff members that their employment contracts would expire on specific dates and would not be extended thereafter. The General Court held that the dispute was situated within the contractual framework between the parties, and arose directly from the employment relationship between them. Thus, it fell within the scope of the clauses contained in the employment contracts conferring jurisdiction on the Brussels courts for disputes arising out of or relating to those contracts. 110. Furthermore, Sógor v Council and Others (67) concerned an action brought by a legal adviser employed by Eulex Kosovo and later the European Union Special Representative in Kosovo, seeking in particular the annulment of the procedure leading to the non-renewal of his employment contract. The General Court held that the dispute fell within the clause contained in the employment contract which, at the time, conferred jurisdiction on the Brussels courts for disputes arising out of or in connection with the contract. The General Court noted that the applicant’s last employment contract was concluded for a fixed period, the non-renewal of which he was challenging in those proceedings, and thereby found that the applicant’s claims derived from that contract or, at least, were directly related to the obligations arising therefrom. 111. On the basis of that case-law, it should be observed in particular that the fact that the employment contracts between the contract staff members and Eulex Kosovo were of fixed duration and did not contain clauses providing for their renewal was not regarded as an element precluding the assessment of the decisions taken by Eulex Kosovo not to renew those staff members’ employment contracts as acts which fell within the contractual relationship between the parties. 112. On a final note, I would like to point out that, viewed from a broader perspective, a finding that the contested decisions fall within the contractual framework between SC and Eulex Kosovo may be regarded as accommodating the specific context of CSDP civilian missions, in particular by upholding the flexibility of contractual arrangements for the engagement of contract staff of such missions, whilst ensuring that such staff members are afforded effective judicial protection in disputing claims arising from those contractual arrangements based on the arbitration clause agreed upon by the parties in their employment contracts. (68) Such a finding certainly does not detract from the discretion of the EU and the Member States to modify the framework relating to the employment of contract staff of CSDP civilian missions. Indeed, it should be noted that the Joint Action Plan Implementing the Civilian CSDP Compact, issued by the Commission and the HR in 2019, envisages a review of the employment status of international contract staff and possible options for its improvement. (69) 113. In light of the foregoing, I propose that the Court uphold the third part of the second ground of appeal and the order under appeal be set aside on that basis. C. First ground of appeal (relating to the reclassification of an action based on Article 272 TFEU as an action based on Article 263 TFEU) 1. Brief summary of the arguments of the parties 114. By the first ground of appeal, alleging infringement of Article 272 TFEU, SC submits that the General Court erred in law, in paragraphs 48 to 52 of the order under appeal, by reclassifying the third head of claim, seeking a declaration based on Article 272 TFEU that the contested decisions are unlawful, as an action for annulment based on Article 263 TFEU. This ground of appeal is divided into three parts. 115. By the first part of the first ground of appeal, SC contends that the General Court did not have jurisdiction for such a reclassification. SC takes the view that since the General Court did not have jurisdiction to hear an action for annulment against the contested decisions, it did not have jurisdiction to reclassify the action either. 116. By the second part of the first ground of appeal, SC argues that the reclassification was against SC’s express intention. As illustrated by its case-law on the reclassification of actions based on Article 263 TFEU as actions based on Article 272 TFEU, (70) the General Court cannot validly reclassify an action where, in particular, this is contrary to the applicant’s express intention. Here, SC expressly decided not to bring an action for annulment, on the grounds that the General Court would have refused jurisdiction under its case-law and the application would have been out of time. SC also stated at the hearing that such a reclassification is not possible, since actions under Article 272 TFEU already have a high threshold by requiring the parties to insert an arbitration clause in their contract, but considered, in the alternative, that the conditions in the General Court’s case-law may be applied by analogy. 117. By the third part of the first ground of appeal, SC complains that the General Court did not grant SC the right to be heard in relation to the reclassification, even though that reclassification entailed serious consequences for SC, including that she was denied judicial review of the contested decisions and her related action for compensation. 118. Eulex Kosovo submits that the General Court did not in fact reclassify the action in the order under appeal, but merely stated the extent to which, and on a conditional basis, that action could have been admissible if it had been brought under Article 263 TFEU. Eulex Kosovo also stated at the hearing that there are precedents for the General Court’s approach in the present case, (71) and that such a reclassification is possible, based on the application, by analogy, of the conditions set out in the General Court’s case-law on the reclassification of actions under Article 263 TFEU as actions under Article 272 TFEU. 119. Eulex Kosovo further disputes SC’s claim that she was denied judicial review and should have been granted the right to be heard on the proposed reclassification. Judicial review could only be carried out if the action had been admissible, and it was not necessary for the General Court to hear SC under Article 126 of its Rules of Procedure. 2. Assessment of the first ground of appeal 120. By the first ground of appeal, SC challenges the legality of the General Court’s reclassification of the third head of claim. More specifically, SC submits in essence that the General Court did not comply with conditions governing such a reclassification, namely that: the General Court has jurisdiction to rule on the reclassified action (first part); the applicant’s express intention does not preclude it (second part); and the applicant must be heard (third part). Moreover, in reference to SC’s submissions at the hearing as noted in point 116 of this Opinion, SC appears to argue that such a reclassification should not be permitted in principle, given the particularities of Article 272 TFEU. 121. Therefore, it should be observed that the first ground of appeal raises important issues which have not yet been addressed in the Court’s case-law as to whether a reclassification of an action based on Article 272 TFEU as an action based on Article 263 TFEU is possible, and, if so, the conditions under which such a reclassification can be made. 122. In view of my proposal that the second ground of appeal is well founded, it may not be necessary for the Court to rule on the first ground of appeal. Nevertheless, I will examine the first ground of appeal, in case the Court disagrees with my view, so that it would have to be assumed that the contested decisions are measures separable from the contract which could not be challenged under Article 272 TFEU. 123. I wish to state from the outset that the first ground of appeal appears to me to be well founded, and the General Court’s partial reclassification of the action is vitiated by an error of law. 124. Before setting out my reasons for reaching this conclusion, I would like to point out that Eulex Kosovo’s argument that the General Court did not in fact reclassify SC’s claim cannot be accepted. 125. In paragraph 46 of the order under appeal, the General Court found that although SC expressly relied on Article 272 TFEU, the third head of claim must be regarded as an action under Article 263 TFEU. 126. This led the General Court to find, in paragraphs 51 and 52 of the order under appeal, that the third head of claim was inadmissible because it was lodged out of time. 127. Admittedly, in paragraph 48 of the order under appeal, the General Court prefaced its discussion of the time limit set out in Article 263 TFEU with the wording, ‘even assuming that the Court has jurisdiction to reclassify the basis of the third head of claim for annulment based on Article 263 TFEU’. However, the General Court already formally reclassified the claim in paragraph 46 of the order under appeal. Moreover, it follows from paragraphs 51 and 52 of the order under appeal, read in conjunction with paragraphs 49 and 50 thereof, that the General Court relied exclusively on the fact that the action was lodged out of time in order to establish its inadmissibility. Such a finding can be made only if the action has been reclassified as an action based on Article 263 TFEU. 128. Turning to the heart of the matter, it should be borne in mind that, under settled case-law, which was mentioned in paragraph 27 of the order under appeal, it is for the applicant to choose the legal basis of its action and not for the EU Courts themselves to choose the most appropriate legal basis. (72) 129. Nevertheless, in an extensive body of case-law, the General Court has held that where an action for annulment or an action for damages is brought before that Court, although the dispute is in fact contractual in nature, it may, in the interests of procedural economy, reclassify the action if the conditions for such reclassification are met. (73) 130. Therefore, reclassification of an action based on Article 263 TFEU as an action based on Article 272 TFEU is possible, without the rights of defence of the defendant institution or body being affected, where: first, the express intention of the applicant does not preclude it, and second, at least one plea alleging infringement of the rules governing the contractual relationship in question is put forward in the application. (74) Those two conditions are cumulative, (75) meaning that they must both be satisfied. (76) If the applicant’s express intention is not to base the action on Article 272 TFEU, (77) or no pleas alleging infringement of the rules governing the contractual relationship have been put forward, (78) then the reclassification is not possible. (79) 131. Moreover, the General Court has ruled that an action based on Article 263 TFEU may be reclassified as an action based on Article 272 TFEU only if there is an arbitration clause conferring jurisdiction on the EU Courts to hear an action brought on that basis. (80) Thus, it appears that this is not a condition for reclassification per se, but embodies an independent requirement for the purposes of verifying whether the General Court has jurisdiction under Article 272 TFEU to hear the action as reclassified. (81) 132. I should also point out that the General Court has mentioned the possibility of reclassifying an action based on Article 272 TFEU as an action based on Article 263 TFEU, albeit in a more limited fashion. In particular, the General Court has not yet established whether the conditions in its case-law just mentioned apply in the reverse situation. For example, in some cases, (82) the General Court has taken a similar approach to the order under appeal, finding that even if such a reclassification could be made, the action was lodged out of time and therefore inadmissible. In another case, (83) the General Court merely noted that the applicant had maintained its position without requesting reclassification, and thereby dismissed the action as inadmissible. 133. In the present case, having regard to the foregoing case-law of the General Court, it seems to me that there is no reason, based on the information which has been put before the Court, to preclude the possibility in principle of reclassifying an action based on Article 272 TFEU as an action based on Article 263 TFEU, provided that certain conditions are fulfilled. My understanding is that such a reclassification generally denotes a situation in which the applicant has brought an action before the EU Courts under one legal basis, but in view of its nature, should have been based on another. Thus, in the interests of procedural economy, the EU Courts may reclassify the action under the appropriate legal basis, so as to avoid requiring the applicant to lodge a new action under that legal basis. In particular, the fact that the EU Courts can only hear an action based on Article 272 TFEU if there is an arbitration clause would not seem to me to preclude such a reclassification in principle, since that reclassification presumes that the nature of the action is not contractual and, in any event, the action in all but legal basis remains the same. 134. There are also grounds for considering, as indicated by SC and Eulex Kosovo, that the conditions laid down in the General Court’s case-law, concerning the reclassification of an action based on Article 263 TFEU as an action based on Article 272 TFEU, may be applied by analogy. Those grounds are based in particular on the interests of promoting a coherent approach in the case-law of the EU Courts, and ensuring that the fundamental principles of EU procedural law and especially the rights of defence of the parties to the dispute are respected. 135. It follows from this that the EU Courts may in principle reclassify an action based on Article 272 TFEU as an action based on Article 263 TFEU, without the rights of defence of the parties being affected, where the following two conditions are met: first, the express intention of the applicant does not preclude it, and second, at least one plea alleging lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or any rule of law relating to their application, or misuse of powers, in accordance with the second paragraph of Article 263 TFEU, is put forward in the application. Moreover, while not an explicit condition of reclassification as such, the EU Courts must verify their jurisdiction to hear the action for annulment, as reclassified, in accordance with Article 263 TFEU. 136. The express intention of the applicant seems to me to be an important element in this regard. This is so, taking into account the requirements imposed on the admissibility of actions for annulment, and in particular the time limit set out in the sixth paragraph of Article 263 TFEU which generally obliges the applicant to act speedily in bringing an action for annulment, as compared to an action based on Article 272 TFEU which does not set out any specific time limit in that regard. Therefore, a reclassification should not be possible where the applicant expresses the intention that the action should not be based on Article 263 TFEU. As illustrated by the General Court’s case-law, (84) that intention may be ascertained in accordance with the relevant procedural rules governing the EU Courts, for example, on the basis of the applicant’s submissions or in response to written or oral questions put to the applicant in the course of the proceedings. 137. It is in the light of those considerations that SC’s first ground of appeal should be examined. 138. In my view, the first part of the first ground of appeal should be rejected. Admittedly, in the order under appeal, the General Court did not verify its jurisdiction to hear the reclassified action under Article 263 TFEU. Yet, in view of the case-law mentioned in point 131 of this Opinion, the General Court was not required to verify its jurisdiction before considering the reclassification of the action. Moreover, there is little doubt that the General Court has jurisdiction to hear the action on the basis of Article 272 TFEU, in light of the judgment in Jenkinson (see points 60 to 63 of this Opinion), and as reclassified on the basis of Article 263 TFEU, in light of the judgment in H v Council and Others (see points 52 and 53 of this Opinion). I therefore propose that the first part of the first ground of appeal should be rejected as unfounded. 139. I consider that the second part of the first ground of appeal must be upheld. In the order under appeal, the General Court proceeded to reclassify the third head of claim without verifying whether the conditions relating to such a reclassification were fulfilled, and in particular whether the applicant’s express intention precluded it. Therefore, the General Court erred in law by reclassifying the third head of claim against SC’s express intention not to base the third head of claim on Article 263 TFEU. 140. For similar reasons, I take the view that the third part of the first ground of appeal, which is largely linked to the second part of that ground of appeal, should also be upheld. While the General Court may decide to dispose of a case without hearing the parties pursuant to Article 126 of its Rules of Procedure, (85) it is nonetheless required to take account of the applicant’s express intention as one of the conditions for reclassifying an action based on Article 272 TFEU as an action based on Article 263 TFEU as just mentioned. Consequently, the General Court erred in law by reclassifying the third head of claim without obtaining SC’s views on the proposed reclassification. 141. I therefore propose that the Court uphold the second and third parts of the first ground of appeal and the order under appeal be set aside on that basis. D. Fifth ground of appeal (relating to the claims for damages in connection with the repeated requests to take a driving test) 1. Brief summary of the arguments of the parties 142. By the fifth ground of appeal, alleging infringement of Article 268 TFEU and the second paragraph of Article 340 TFEU, the right to fair and just working conditions and the right to sound administration, along with infringement of Article 272 TFEU and the first paragraph of Article 340 TFEU and the requirements set out in the 2014 call for contributions, SC submits that the General Court erred in law, in paragraphs 57 to 64, read together with paragraph 74, of the order under appeal, by holding that the claims based on Eulex Kosovo’s contractual and non-contractual liability relating to the repeated requests to take a driving test were manifestly lacking any foundation in law. 143. SC claims that the General Court disregarded SC’s arguments concerning Eulex Kosovo’s contractual liability, since the requirement of the call for contributions to be able to drive a four-wheel drive vehicle and to take a driving test cannot be insisted upon when a staff member, like SC, has a disability. 144. Moreover, regarding the non-contractual liability claim, SC asserts that the General Court disregarded SC’s arguments that those requests were unlawful and infringed SC’s right to working conditions which respect her health, safety and dignity, along with her right to sound administration. The General Court also erred in law by finding that the application did not contain any evidence establishing the causal link and damage requirements, since SC considers, on the basis of Civil Service Tribunal case-law, (86) that an applicant claiming non-material damage does not have to provide evidence of those requirements. 145. Eulex Kosovo submits that SC’s ability to drive a four-wheel drive vehicle was an essential element in her employment at Eulex Kosovo. SC also fails to justify the claims for damage, and her failure to pass the driving tests is not causally linked to the appeal brought against the contested decisions, nor to the damage alleged. 2. Assessment of the fifth ground of appeal 146. In my view, the fifth ground of appeal cannot succeed. 147. In paragraph 64 of the order under appeal, the General Court based its conclusion concerning the contractual liability of Eulex Kosovo on the fact that the employment contract required SC to be able to drive a four-wheel drive vehicle. However, I should point out that SC does not criticise that finding which is sufficient to justify the conclusion reached by the General Court. 148. In paragraphs 57 to 63 of the order under appeal, the General Court’s decision to dismiss SC’s non-contractual liability claim was based on the fact that the application did not contain any information enabling the General Court to identify the reality of the damage or the causal link between the conduct complained of and the damage alleged. The General Court reached that decision, having regard to settled case-law referred to in paragraphs 58, 59 and 61 of the order under appeal, that the conditions governing EU non-contractual liability are cumulative, (87) and the applicant must provide conclusive evidence of the reality of the damage alleged and a direct causal link. (88) 149. I should point out that SC does not attempt to show that the evidence provided was sufficient or that the General Court’s assessment was based on a distortion of that evidence, but merely alleges an error of law which cannot be established in the light of the settled case-law. It should be added that relevant findings of the Civil Service Tribunal’s decisions relied on by SC were set aside on appeal. (89) 150. I therefore propose that the fifth ground of appeal should be rejected as unfounded. VI. Consequences of setting aside the order under appeal in part 151. In accordance with Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. 152. I do not consider that the state of proceedings is such as to permit the Court to give judgment. Indeed, factual claims relating to the substance of the dispute were not considered by the General Court in the order under appeal, since it held certain claims inadmissible. As requested by SC and Eulex Kosovo, the case should be referred back to the General Court for judgment. VII. Conclusion 153. In light of the foregoing, I propose that the Court of Justice should set aside in part the order of the General Court of the European Union of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), in so far as the General Court dismissed SC’s action on the ground that the third head of claim was inadmissible, and refer the case back to the General Court for a decision on the substance, the costs being reserved. 1 Original language: English. 2 See, in particular, Opinion of Advocate General Kokott in ADR Center v Commission (C‑584/17 P, EU:C:2019:941) (concerning the interplay between Articles 263 and 272 TFEU in respect of the Commission’s adoption of an enforceable decision under Article 299 TFEU), and Opinion of Advocate General Bobek in European Union Satellite Centre v KF (C‑14/19 P) (concerning an action for annulment and damages brought by a former contract staff member of an EU agency in the CFSP situated within the framework of its own staff regulations). 3 See Title V, Chapter 2, Section 2 of the TEU (Articles 42 to 46). 4 See Articles 42(1) and 43(1) TEU. 5 European External Action Service, EU Missions and Operations Factsheet, 5 March 2018, p. 2. 6 See, for example, European Parliament Directorate-General for External Policies, Civilian and military personnel in CSDP missions and operations, 2017, p. 14. 7 For a general discussion, see, for example, Blockmans, S. and Koutrakos, P. (eds.), Research Handbook on the EU’s Common Foreign and Security Policy, Edward Elgar, 2018. 8 See, in that regard, EEAS Factsheet, referred to in footnote 5 of this Opinion, p. 2. 9 Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ, English Special Edition 1962 (I), p. 135), as last updated (OJ 2019 C 420, p. 22). See Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ 2010 L 201, p. 30), Article 6. 10 See, in that regard, judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, paragraph 65); Opinion of Advocate General Jääskinen in Elitaliana Kosovo (C‑439/13 P, EU:C:2014:2416, points 58 to 63); and order of 4 June 2012, Elti v Delegation of the European Union to Montenegro (T‑395/11, EU:T:2012:274). 11 See Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency (recast) (OJ 2015 L 266, p. 55), Article 11; Council Decision 2014/401/CFSP of 26 June 2014 on the European Union Satellite Centre and repealing Joint Action 2001/55/CFSP on the establishment of a European Union Satellite Centre (OJ 2014 L 188, p. 73), Article 8. 12 OJ 2008 L 42, p. 92. 13 OJ 2018 L 146, p. 5. 14 See, for example, European Court of Auditors, Special Report No 18/2012, ‘European Union assistance to Kosovo related to the rule of law’, 2012, point 14. For a detailed discussion of Eulex Kosovo, see also, for example, Spernbauer, M., EU Peacebuilding in Kosovo and Afghanistan: Legality and Accountability, Martinus Nijhoff, 2014. 15 See also Joint Action 2008/124, Articles 11 and 12. 16 See also, for example, Joint Action 2008/124, Article 10(2). 17 Council Decision 2010/322/CFSP of 8 June 2010 amending and extending Joint Action 2008/124 (OJ 2010 L 145, p. 13), Article 1(2). 18 Article 9(3) of Joint Action 2008/124 further states 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. 19 Council Decision 2014/349/CFSP of 12 June 2014 amending Joint Action 2008/124 (OJ 2014 L 174, p. 42), Article 1(3). 20 Council Decision 2014/349, Article 1(5). That decision specifies, in Article 2, that it entered into force on the date of its adoption (12 June 2014). 21 This is framed slightly differently in Articles 22 and 23.2 of the first and second employment contracts (which refer to the SOP and the administrative parts of the OPLAN, including the COC), as compared to Article 1.2 of the third, fourth and fifth employment contracts (which refer to the CONOPS/OPLAN, including the COC and the relevant SOP). 22 See, in that regard, European Court of Auditors, Special Report No 18/2012, referred to in footnote 14 of this Opinion, point 68, footnote 52. As regards the OPLAN, see also Joint Action 2008/124, Articles 4 and 5. 23 This is framed slightly differently in Articles 1.1, 1.2 and 23.3 of the first and second employment contracts (which do not mention the CONOPS), as compared to Articles 1.1 and 22.2 of the third, fourth and fifth employment contracts (which do not mention the COC). 24 The first plea alleged infringement of paragraphs 4 and 6 of the SOP on Reconfiguration, and paragraphs 5 and 7 of the SOP on Staff Selection. The second plea alleged infringement of paragraphs 7.2(f) and 7.3(c) of the SOP on Staff Selection, Article 3.2 of the COC, the contractual principles of fairness and good faith, and the right to sound administration. The third plea alleged infringement of the principle of impartiality and the right to sound administration. The fourth plea alleged infringement of the right to fair and just working conditions, the Decision Memorandum of 26 January 2011 on a ‘Proposal for introduction of assessment driving skills’, the requirements set out in the 2014 call for contributions and the right to sound administration. The fifth plea alleged infringement of the right to fair and just working conditions. 25 See footnote 24 of this Opinion. 26 See footnotes 35 and 38 of this Opinion. In point 33 of its defence, Eulex Kosovo confirms its position in its objection of inadmissibility, inter alia, that SC has not shown that she exhausted all available internal remedies within Eulex Kosovo. As no information has been put before the Court that SC is prevented from submitting the present dispute to the Court, I will not consider that argument further. 27 See, for example, judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, paragraph 37). 28 See, for example, judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 60). As the Court ruled in paragraphs 60 to 81 of that judgment, the Treaties establish certain exceptions which are not pertinent to the present case. 29 See, for example, judgments of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569, paragraph 40 and the case-law cited), and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraphs 74 and 75). 30 For a detailed discussion, see, for example, Butler, G., Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations, Hart, 2019, pp. 145-222; Koutrakos, P., ‘Judicial review in the EU’s Common Foreign and Security Policy’ (2018) 67 International and Comparative Law Quarterly 1. 31 Judgment of 12 November 2015 (C‑439/13 P, EU:C:2015:753, paragraphs 41 to 50). 32 Council Regulation No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Regulation No 1081/2010 of the European Parliament and of the Council of 24 November 2010 (OJ 2010 L 311, p. 9), in force at the material time. 33 Judgment of 19 July 2016 (C‑455/14 P, EU:C:2016:569, paragraphs 39 to 61). Following a second successful appeal to the Court (C‑413/18 P), the case is currently pending before the General Court (T‑271/10 RENV II). 34 See, in that regard, judgment of 12 April 2018, PY v EUCAP Sahel Niger (T‑763/16, EU:T:2018:181, paragraph 53), involving an action based on Article 272 TFEU brought by a contract staff member of a CSDP civilian mission. See further point 98 of this Opinion. 35 When questioned at the hearing, Eulex Kosovo stated that, following from the judgment of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569), the EU Courts have jurisdiction when it comes to staff management matters such as those arising in the present case. 36 See, for example, judgment of 6 December 1989, Mulfinger and Others v Commission (C-249/87, EU:C:1989:614, paragraph 10 and the case-law cited). 37 Before that decision applied, see, for example, judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, in particular, paragraphs 58 and 59). 38 In particular, in points 9 to 11 of its defence, Eulex Kosovo states that, on the basis of the judgment of 5 July 2018, Jenkinson v Council and Others (C‑43/17 P, EU:C:2018:531), it does not rely on the arguments in its objection of inadmissibility relating to the clauses in the employment contracts conferring jurisdiction on the Brussels courts. 39 Judgment of 5 July 2018 (C‑43/17 P, EU:C:2018:531). 40 Judgment of 5 July 2018 (C‑43/17 P, EU:C:2018:531, in particular, paragraphs 1 to 3). The case is currently pending before the General Court (T‑602/15 RENV). 41 Judgment of 5 July 2018, Jenkinson (C‑43/17 P, EU:C:2018:531, in particular, paragraphs 40 to 48). 42 SC refers, in particular, to the Opinion of Advocate General Kokott in Planet v Commission (C‑564/13 P, EU:C:2014:2352). 43 SC refers, in that regard, to the judgment of 12 April 2018, PY v EUCAP Sahel Niger (T‑763/16, EU:T:2018:181). 44 SC refers, in particular, to the judgment of 5 July 2018, Jenkinson (C‑43/17 P, EU:C:2018:531), and order of 30 September 2014, Bitiqi and Others v Commission and Others (T‑410/13, not published, EU:T:2014:871). 45 SC refers, in that regard, to the judgment of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569). 46 Eulex Kosovo refers, inter alia, to the judgments of 18 December 1986, Commission v Zoubek (426/85, EU:C:1986:501), and of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245). 47 See, for example, judgment of 7 November 2019, Rose Vision v Commission (C‑346/18 P, not published, EU:C:2019:939, paragraph 99). 48 See, for example, judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraph 58). 49 See, for example, judgment of 26 February 2015, Planet v Commission (C‑564/13 P, EU:C:2015:124, paragraph 21). 50 See, for example, judgment of 5 July 2018, Jenkinson (C‑43/17 P, EU:C:2018:531, paragraph 40). 51 See, for example, judgment of 3 December 2019, Iccrea Banca (C‑414/18, EU:C:2019:1036, paragraph 37). 52 See, for example, judgment of 20 September 2016, Mallis and Malli v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraph 51). 53 Judgment of 9 September 2015 (C‑506/13 P, EU:C:2015:562, paragraph 20). See also, for example, order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission (C‑102/14 P, not published, EU:C:2016:737, paragraph 55), and judgment of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 50). For a general discussion, see, for example, Neframi, E., « Le contentieux des clauses compromissoires », in Contentieux en droit de l'Union européenne, Larcier, 2014, pp. 561-581. 54 See, for example, judgment of 9 September 2015, Lito (C‑506/13 P, EU:C:2015:562, paragraph 19). 55 See, for example, judgments of 9 September 2015, Lito (C‑506/13 P, EU:C:2015:562, paragraphs 22 to 25), and of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraphs 52 to 57). 56 See orders of 31 March 2011, Mauerhofer v Commission (C‑433/10 P, not published, EU:C:2011:204, in particular, paragraphs 37, 38 and 61), and of 21 April 2016, Borde and Carbonium v Commission (C‑279/15 P, not published, EU:C:2016:297, in particular, paragraphs 30, 31 and 42). 57 See, for example, judgments of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, in particular, paragraphs 64 to 66), and of 10 July 2019, VG v Commission (C‑19/18 P, EU:C:2019:578, in particular, paragraphs 29, 30 and 42). 58 See, for example, judgment of 10 July 2014, Nikolaou v Court of Auditors (C‑220/13 P, EU:C:2014:2057, paragraph 52). 59 For example, in the last employment contract, the OPLAN, COC and SOP are mentioned in certain provisions, including, inter alia, Articles 17.1 and 17.2 which provide that failure to comply with the ‘contract and/or the SOP’ shall make the employee ‘liable to disciplinary action as stated in the SOP’, and that disciplinary measures shall take one of the forms indicated in the COC. 60 Eulex Kosovo Human Resources Office, Standard Operating Procedure (SOP) on the Principles and Process of Reconfiguration, 26 May 2016, p. 5 (emphasis added). 61 Judgment of 12 April 2018 (T‑763/16, EU:T:2018:181, in particular, paragraphs 5, 6 and 66). Ultimately, the General Court concluded that the relevant provisions of the code of conduct were infringed, and awarded damages to the applicant. 62 See, in that regard, judgment of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, in particular, paragraphs 64 to 67 and 76). 63 See judgment of 14 October 2004, Pflugradt v ECB (C‑409/02 P, EU:C:2004:625, in particular, paragraphs 31 to 38). 64 See judgment of 5 July 2018, Jenkinson (C‑43/17 P, EU:C:2018:531, in particular, paragraphs 1 to 3, 34 and 40 to 48). 65 See Opinion of Advocate General Szpunar in Jenkinson (C‑43/17 P, EU:C:2018:231, in particular, points 39, 47 and 48). 66 Order of 30 September 2014 (T‑410/13, not published, EU:T:2014:871, in particular, paragraphs 2 to 11, 25, 27 and 28). 67 Order of 27 September 2018 (T‑302/18, not published, EU:T:2018:621, in particular, paragraphs 1, 2, 12, 13 and 21). 68 See, in that regard, European Parliament paper, referred to in footnote 6 of this Opinion, p. 17. 69 Commission and HR, Joint Action Plan Implementing the Civilian CSDP Compact, SWD(2019) 173 final, 30 April 2019, Commitment 10, p. 7. As indicated in section 1 therein, the Civilian CSDP Compact is a key strategic document with the objective to strengthen the civilian dimension of the CSDP. 70 SC refers in particular, to the order of 12 October 2011, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (T‑353/10, EU:T:2011:589), and judgment of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912). 71 Eulex Kosovo refers to the judgment of 8 October 2008, Helkon Media v Commission (T‑122/06, not published, EU:T:2008:418). 72 See judgment of 15 March 2005, Spain v Eurojust (C‑160/03, EU:C:2005:168, paragraph 35). 73 See, for example, order of 24 October 2019, United Kingdom v Commission (T‑188/19, not published, EU:T:2019:772, paragraph 28). 74 See, for example, judgment of 6 October 2015, Technion and Technion Research & Development Foundation v Commission (T‑216/12, EU:T:2015:746, paragraph 60). 75 See, for example, judgment of 20 June 2018, KV v EACEA (T‑306/15 and T‑484/15, not published, EU:T:2018:359, paragraph 49). 76 For an application where both conditions were met, see judgment of 20 June 2018, KV v EACEA (T‑306/15 and T‑484/15, not published, EU:T:2018:359, paragraphs 50 to 53). 77 See, for example, order of 14 May 2019, Ayuntamiento de Enguera v Commission (T‑602/18, not published, EU:T:2019:332, paragraphs 23, 30 and 31). The applicant’s position on reclassification may be ascertained on the basis of explicit and implicit conduct: see, for example, judgment of 16 October 2014, Federación Española de Hostelería v EACEA (T‑340/13, not published, EU:T:2014:889, paragraph 36). 78 See, for example, order of 15 February 2016, InAccess Networks Integrated Systems v Commission (T‑82/15, not published, EU:T:2016:90, paragraphs 55 to 62). See further, in that regard, judgment of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraphs 57 to 64). 79 For an application where neither conditions were met, see order of 10 May 2004, Musée Grevin v Commission (T‑314/03 and T‑378/03, EU:T:2004:139, paragraph 88). 80 See, for example, order of 24 October 2019, United Kingdom v Commission (T‑188/19, not published, EU:T:2019:772, paragraph 34). 81 See, for example, order of 12 October 2011, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (T‑353/10, EU:T:2011:589, paragraph 33), and judgment of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraphs 42 to 51). 82 See judgment of 8 October 2008, Helkon Media v Commission (T‑122/06, not published, EU:T:2008:418, in particular, paragraphs 53 to 55), and order of 13 May 2016, CEVA v Commission (T‑601/15, not published, EU:T:2016:316, in particular, paragraphs 27 and 28). 83 See judgment of 17 January 2019, Aristoteleio Panepistimio Thessalonikis v ERCEA (T‑348/16 OP, not published, EU:T:2019:14, paragraphs 167 to 175) (appeal pending in C‑280/19 P). 84 See, in that regard, footnote 77 of this Opinion. 85 See, in that regard, judgment of 16 May 2019, Pebagua v Commission (C‑204/18 P, not published, EU:C:2019:425, paragraph 31). 86 SC refers to the judgments of 11 July 2013, CC v Parliament (F‑9/12, EU:F:2013:116, paragraph 128), and of 10 July 2014, CG v EIB (F‑115/11, EU:F:2014:187, paragraph 132). 87 See, for example, judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission (C‑419/08 P, EU:C:2010:147, paragraph 41). 88 See, for example, judgment of 7 June 2018, Equipolymers and Others v Council (C‑363/17 P, not published, EU:C:2018:402, paragraph 37). 89 See judgment of 29 April 2015, CC v Parliament (T‑457/13 P, EU:T:2015:240, in particular, paragraphs 48, 49 and 52); setting aside the judgment of 11 July 2013, CC v Parliament (F‑9/12, EU:F:2013:116, in particular, paragraph 128) which was also referred to in the judgment of 10 July 2014, CG v EIB (F‑115/11, EU:F:2014:187, paragraph 132).