Opinion of the Advocate General — ECLI:EU:C:2016:212
Date: 2016-04-07
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Action for damages;Appeal - successful
Origin: Italy

Summary — Judgment of the Court (Grand Chamber), 19 July 2016 Common foreign and security policy — Jurisdiction of the EU judicature — Acts adopted by a European Union Police Mission relating to the allocation of the human resources assigned to it by the Member States and the EU institutions — Included (Arts 2 TEU, 19(1) TEU, 21 TEU and 24(1), second para., TEU; Arts 263 TFEU, 268 TFEU, 270 TFEU, 275, first para., TFEU and 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Staff Regulations of Officials, Art. 91; Council Decision 2009/906/CFSP) The General Court and, in the event of an appeal, the Court of Justice have jurisdiction to review acts of staff management relating to operations ‘on the ground’ adopted by a European Union Police Mission concerning staff members seconded by the Member States. That jurisdiction stems, respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union. It is true that, applying the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, in principle, have jurisdiction with respect to the provisions relating to the Common Foreign and Security Policy (CFSP) or with respect to acts adopted on the basis of those provisions. Nevertheless, those provisions introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court of Justice to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly. In that regard, as is apparent from both Article 2 TEU, which is included in the common provisions of the EU Treaty, and Article 21 TEU, concerning the European Union’s external action, to which Article 23 TEU, relating to the CFSP, refers, the European Union is founded, in particular, on the values of equality and the rule of law. The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law. In those circumstances, the fact that an act of staff management of a Police Mission relates to an operational action of the European Union decided upon and carried out under the CFSP does not necessarily lead to the jurisdiction of the EU judicature being excluded. The EU judicature has jurisdiction, in accordance with Article 270 TFEU, to rule on all actions brought by EU staff members having been seconded to a European Union Police Mission. They remain subject to the Staff Regulations during the period of their secondment to that mission and, therefore, fall within the jurisdiction of the EU judicature, in accordance with Article 91 of those regulations. In those circumstances, when the staff members seconded by the Member States and those seconded by the EU institutions are subject to the same rules so far as concerns their duties at theatre level, the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is laid down in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission at theatre level, when the EU judicature has, in any event, jurisdiction to review such acts where they concern staff members seconded by the EU institutions. (see paras 39-44, 50, 55, 58)