Opinion of the Advocate General — ECLI:EU:C:2020:220
Date: 2020-03-19
Language of the case: English
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for annulment;Appeal - unfounded;Action for damages
Origin: Spain

summary form. (74) I understand that, in the light of the small size of the Agency, SatCen had to consider carefully the risks of retaliation that could have arisen if the respondent were able to identify the complainants. However, that risk could have been minimised with a careful exercise of anonymisation and redaction. Unless they are redacted to the point that they become completely meaningless, limited or partial access to the witness statements is certainly preferable to a complete refusal of access. 157. In any event, and perhaps more importantly, the risk of retaliation was certainly no longer present from the moment when the respondent was suspended from her duties. Yet, even at that point, she was not granted access to the witness testimonies (including in an anonymised or redacted form). 158. Against this backdrop, I do not think that the General Court applied the wrong legal criteria when verifying whether SatCen had managed to strike the correct balance between the respondent’s right of defence and the right of confidentiality of the members of staff who participated in the investigation. I also do not see any distortion of the facts or of the clear sense of the evidence by the General Court when assessing the circumstances of the case. 159. Similarly, I see no error of law by the General Court when, in paragraph 216 of the judgment under appeal, it considered unreasonable the fact that the respondent ‘was given less than 48 hours to submit her comments on [the investigation] report’. It is true that no provision of the SatCen Staff Regulations provides for a specific time frame in that regard. However, according to settled case-law, where the duration of a procedure is not set by a provision of EU law, the ‘reasonableness’ of the period of time taken by the institution to adopt a measure is to be appraised in the light of all of the relevant circumstances and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case. (75) 160. In the light of that, it seems to me that the concrete assessment of the reasonableness of a time frame in a specific case is, save in cases of distortion of facts or evidence, an issue that cannot be subject to an appeal. At any rate, considering the particularly serious facts alleged against the respondent and the duration of the investigation at the time when the respondent was asked to react to the investigation report, I certainly do not consider the General Court’s finding concerning the amount of time granted to the respondent to be unreasonable. V. Costs 161. According to Article 138(1) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 162. The respondent has applied for the costs. Since SatCen has, in my view, been unsuccessful, it should be ordered to pay the costs relating to the proceedings. 163. The Council should, for its part, be ordered to pay its own costs. VI. Conclusion 164. In the light of the foregoing, I suggest that the Court: – dismiss the appeal; – order the European Union Satellite Centre (SatCen) to bear the costs; – order the Council to bear its own costs. 1 Original language: English. 2 Judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718). 3 On 30 March 2010, by joint declaration, the Member States of the WEU officially dissolved that organisation with effect from 30 June 2011, on account in particular of the fact that ‘with the entry into force of the Lisbon Treaty, a new phase in European security and defence [had begun]’. 4 OJ 2001 L 200, p. 5. 5 OJ 2014 L 188, p. 73. 6 OJ 2009 L 276, p. 1. Those regulations, which are applicable in the present case ratione temporis, were subsequently replaced, with effect from 1 June 2017, by Council Decision (CFSP) 2017/824 of 15 May 2017 concerning the Staff Regulations of the European Union Satellite Centre (OJ 2017 L 123, p. 7). 7 Judgment under appeal, paragraphs 80 to 114. 8 Judgment under appeal, paragraphs 118 to 132. 9 Judgment under appeal, paragraphs 133 to 138 and 139 to 143, respectively. 10 Judgment under appeal, paragraphs 144 to 150. 11 Judgment under appeal, especially paragraphs 160 and 161. 12 Judgment under appeal, paragraphs 168 to 231. 13 Judgment under appeal, especially paragraphs 232 to 241. 14 Judgment under appeal, paragraphs 242 to 261. 15 Judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753) (‘Elitaliana’). 16 Judgment of 19 July 2016 (C‑455/14 P, EU:C:2016:569) (‘H v Council and Others’). 17 Judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025). 18 Judgment of 14 June 2016, Parliament v Council (C‑263/14, EU:C:2016:435). 19 Council Regulation (EC, Euratom) 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). 20 Judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236) (‘Rosneft’). 21 See H v Council and Others, paragraphs 54 and 55. 22 Article 24(1) TEU. 23 See Article 21(1) and (2) TEU. See, more generally, Article 7 TFEU. 24 Article 21(3) TEU (emphasis added). 25 See Opinion in H v Council and Others (C‑455/14 P, EU:C:2016:212, point 45). 26 Judgment of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166, paragraph 23) (‘Les Verts I ’). More recently, see judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 54 and the case-law cited). 27 See judgment of 6 October 2015, Schrems (C‑362/14, EU:C:2015:650, paragraph 95 and the case-law cited). 28 See, inter alia, Les Verts I, paragraph 24, and Elitaliana, paragraph 67. 29 See, to that effect, judgment of 25 July 2002, Unión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:462, paragraph 44). See, more recently, Rosneft, paragraph 74. 30 To that effect, see also Rosneft, paragraph 74. 31 Judgment of 13 June 2017, Florescu and Others (C‑258/14, EU:C:2017:448). 32 Judgment of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821). 33 Judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701). 34 See, for example, European Convention, Discussion Circle on the Court of Justice, ‘Supplementary report on the question of judicial control relating to the common foreign and security policy’ (CONV689/1/03REV1), point 5. More generally, on the genesis of those provisions, with references to the relevant preparatory acts, see Denza, E., The Intergovernmental Pillars of the European Union, Oxford University Press, Oxford, 2002, pp. 311 to 322; or Heliskoski, J., ‘Made in Luxembourg: The fabrication of the law on jurisdiction of the court of justice of the European Union in the field of the Common Foreign and Security Policy’, Europe and the World: A law review, vol. 2(1):3, UCL Press, 2018, pp. 2 to 5. 35 Article 24(1) and Article 26 TEU. 36 See Declaration No 13 (‘Declaration concerning the common foreign and security policy’) annexed to the Treaty of Lisbon. 37 For this expression, see Opinion of Advocate General Wahl in H v Council and Others (C‑455/14 P, EU:C:2016:212, point 59). 38 See, for example, Article 24(1) TFEU: ‘The adoption of legislative acts shall be excluded’. 39 See, for example, judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 77 and the case-law cited). Regarding the Court’s self-restraint, in legal scholarship see, with further references, Koutrakos, P., ‘Judicial Review in the EU’s Common Foreign and Security Policy’, International and Comparative Law Quarterly, vol. 67, Cambridge University Press, 2017, p. 13. 40 As the Supreme Court of the United States stated, ‘the nonjusticiability of a political question is primarily a function of the separation of powers’ (see Baker v. Carr, 369 U.S. 186 (1962)). See also Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, point 52). 41 See most recently, judgment of 19 December 2019, Puppinck and Others v Commission (C‑418/18 P, EU:C:2019:1113, paragraphs 95 and 96 and the case-law cited). 42 See the case-law referred to supra, in points 54 and 56 of this Opinion. 43 See point 56 of this Opinion. 44 See also above, point 78 of this Opinion. Even if jurisdiction is perhaps seised reluctantly with regard to some elements of a decision in such situations, the intensity of review is likely to be notably light. 45 Regulation No 31 (EEC), 11 (EAEC) (JO 1962 P 045, p. 1385), as amended. 46 There are also agencies, missions and other bodies of the European Union that do not have their own staff regulations and hire their staff by means of contracts of a different nature. Depending on the legal framework applicable to those contracts, the considerations developed in this Opinion with regard to the situation of the respondent may or may not be relevant in respect of the staff of those agencies, missions and other bodies of the European Union. See, in that regard, Case C‑730/18 P, SC v Eulex Kosovo, currently pending. 47 That decision repealed the previous SatCen Staff Regulations, adopted by the Council on 21 December 2001 (OJ 2002 L 39, p. 44), as subsequently amended. 48 In the following, I shall focus on the staff hired directly by SatCen, thus leaving aside staff that could potentially be seconded from the Member States and the EU institutions. 49 Article 274 TFEU provides that ‘save where jurisdiction is conferred on the [Court of Justice of the European Union], disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States’. On this point, see by analogy judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 19). 50 See, to that effect, judgment of 14 October 2004, Pflugradt v ECB (C‑409/02 P, EU:C:2004:625, paragraph 33 et seq.), referred to in paragraph 129 of the judgment under appeal. Similarly, Opinion of Advocate General Léger in Pflugradt v ECB (EU:C:2004:416, points 32 to 36). 51 See also paragraph 107 of the judgment under appeal. 52 See also paragraph 122 of the judgment under appeal. 53 See especially paragraphs 80 to 84 of the judgment under appeal. 54 Paragraphs 94 to 97 of the judgment under appeal. 55 See, to that effect, judgments of 25 February 1988, Les Verts v Parliament (190/84, EU:C:1988:94, paragraph 8) (Les Verts II); of 23 March 1993, Weber v Parliament (C‑314/91, EU:C:1993:109, paragraph 9); and of 6 April 2000, Spain v Commission (C‑443/97, EU:C:2000:190, paragraph 28). 56 See, inter alia, judgments of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 9), and of 9 December 2014, Schönberger v Parliament (C‑261/13 P, EU:C:2014:2423, paragraph 13). 57 Thus different from local staff whose contracts are likely to be governed by local laws, with an arbitration clause in favour of local (Member States’) courts (above, points 97 and 98). 58 Importantly, those courts have the power, or an obligation, to refer a question of interpretation or validity of an EU act to the Court under Article 267 TFEU. 59 See paragraphs 152 to 160 of the judgment under appeal. 60 Emphasis added. 61 See, especially, Article 1 of Annex X. 62 See, for a similar exercise with regard to the equally ambiguous Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1), my Opinion in El Hassani (C‑403/16, EU:C:2017:659, points 28 to 33). 63 Emphasis added. 64 See judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 41). 65 See, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011 (EU:C:2011:123, paragraphs 66, 68 and 80); Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraphs 174 to 176, and 246); and Opinion 1/17 (EU‑Canada CET Agreement) of 30 April 2019 (EU:C:2019:341, paragraph 111). 66 Paragraph 110 of the judgment under appeal. 67 Paragraph 161 of the judgment under appeal. 68 See especially paragraphs 38, 45 and 46 of the judgment under appeal. 69 See, to that effect, judgment of 21 February 2018, LL v Parliament (C‑326/16 P, EU:C:2018:83, paragraphs 38 and 39). 70 See, to that effect, judgment of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraphs 57 and 60 and the case-law cited). 71 See, to that effect, judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 52). 72 In particular, Article 2 of Annex IX to the SatCen Staff Regulations which provides that the Director of SatCen is required to communicate to any person who is the subject of an investigation all evidence in the files between the end of that investigation and the adoption of the decision to initiate disciplinary proceedings. 73 See, to that effect, Opinion of Advocate General Saugmandsgaard Øe in HF v Parliament (C‑570/18 P, EU:C:2020:44, points 71 and 72). 74 See, to that effect, judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 59). 75 See, inter alia, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX‑II, EU:C:2013:134, paragraph 28 and the case-law cited).