Opinion of the Advocate General — ECLI:EU:C:2021:781
Date: 2021-09-30
Language of the case: French
Subject matter: External relations;Common foreign and security policy;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-283/20 — 1 
Case C-283/20 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
25 June 2020 
Referring court:  
Tribunal du travail francophone de Bruxelles (Belgium) 
Date of the decision to refer:  
1 October 2019 
Applicants:  
CO 
ME 
GC 
and 42 Others 
Defendants:  
MJ 
European Commission 
European External Action Service (EEAS) 
Council of the European Union 
Eulex Kosovo 
  
I. Subject matter of the dispute and the relevant facts 
1 The EULEX KOSOVO Mission was created by Council Joint Action 
2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission 
in Kosovo, EULEX KOSOVO (OJ 2008 L 42, p. 92) (‘Joint Action 2008/124’). 
EN 
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Originally established for a period of 28 months, that mission has been extended 
several times.  
2 The EULEX KOSOVO Mission initially had no legal personality and acted 
through its Head of Mission who was responsible, in particular, for the mission on 
the ground, for issuing instructions to all staff members and for the 
implementation of the mission’s budget in accordance with the terms of a contract 
signed with the Commission; the Head of Mission was also responsible for 
entering into contracts with international and local civilian staff members.  
3 The EULEX KOSOVO Mission was given legal personality and the capacity to be 
a party in legal proceedings by Council Decision 2014/349/CFSP of 12 June 2014 
amending Joint Action 2008/124/CFSP on the European Union Rule of Law 
Mission in Kosovo, EULEX KOSOVO (OJ 2014 L 174, p. 42) (‘Decision 
2014/349’). 
4 MJ served as the Head of Mission from 1 February 2013 to 14 October 2014, in 
accordance with the terms specified, in particular, in the contracts which he 
concluded with the Commission on 1 February and 7 June 2013. 
5 The applicants were, or still are for some, employed in Kosovo in the service of 
the EULEX KOSOVO Mission as international civilian staff members, under 
fixed-term employment contracts concluded for one or several months (at most 
one year), covered by a series of renewals. 
6 The contracts concluded and renewed before the EULEX KOSOVO had legal 
personality were drawn up and signed by the Head of Mission in his own name. 
By contrast, with regard to the contracts drawn up and signed between 12 June 
2014 and 14 October 2014 — the period during which the mission had legal 
personality — MJ, then Head of Mission, acted as the ‘representative’ of the 
mission under a fully representative mandate or even as the representative body of 
that mission. 
7 In 2012, a reclassification of various functions led, according to the applicants, to 
an amendment of the description of their duties and to a significant reduction in 
their pay. That was followed by three ‘waves’ of contracts not being renewed in 
spring and summer 2013 and autumn 2014 and 2016. 
8 The applicants dispute the reclassification of their duties (and the resulting 
changes to their working conditions) and/or the non-renewal of their contracts, as 
well as the ‘status’ assigned to them, in particular as regards social security.  
9 The reclassification of duties and the first wave of contracts not being renewed 
took place when the EULEX KOSOVO Mission did not yet have legal 
personality, and thus was carried out by the Head of Mission, acting on his own 
behalf. 
10 The applicants initially brought proceedings against only the first four defendants: 
EULEX-KOSOVO 
 
3 
– MJ, as head of the EULEX KOSOVO Mission ‘which does not have legal 
personality’ and signatory to their contracts on his own behalf; 
– the Commission, as delegating authority, responsible for supervising the Head 
of Mission and for implementing the mission’s budget; 
– the European External Action Service, responsible for exercising command of 
civilian operations in general and decisions taken under Joint Action 2008/124 
in particular;  
– the Council, as the institution which appointed MJ as Head of Mission, 
accountable for acts attributable to MJ.  
11 Those four defendants contested the nature and scope of the jurisdiction of the 
tribunal [du travail francophone de Bruxelles (Brussels Labour Court (French-
speaking), Belgium)] to hear and determine the respective proceedings brought 
against them. MJ also contested the admissibility of the actions brought against 
him, claiming that, at the time when the EULEX KOSOVO Mission had no legal 
personality, he was, at most, acting in the capacity of agent of the European Union 
when signing the contracts of employment of the applicants and, as such, could 
not be held accountable on his own behalf; he relied, inter alia, on a judgment of 
the Cour de travail de Bruxelles (4e chambre) (Higher Labour Court, Brussels (4th 
Chamber), Belgium) of 12 December 2017 concerning proceedings between a 
former employee of the EULEX KOSOVO Mission and a former Head of Mission 
and the EULUX KOSOVO Mission itself when it did not yet have legal 
personality.  
12 The EU institutions disputed that heads of the EULEX KOSOVO Mission were 
ever agents of the European Union, since, before the mission had been given legal 
personality, they were expressly authorised to act on their own behalf. Moreover, 
they argued that, initially, the Heads of Mission acted ‘es qualité’, that is to say in 
their capacity as agents of the EULEX KOSOVO Mission, notwithstanding the 
fact that the mission did not (yet) have legal personality, in the same way as 
agents of an unincorporated association or the representatives of a trade union. 
13 MJ and the European institutions also disputed the admissibility of the actions 
brought against them, arguing that since the EULEX KOSOVO Mission was 
given legal personality and the capacity to be a party in legal proceedings, it was 
responsible for any claims and obligations arising from the implementation of the 
mandate, both in the future and in the past, in accordance with the new 
Article 16(a) inserted in Joint Action 2008/124 by Decision 2014/349. Following 
that challenge, the applicants took the initiative to join the EULEX KOSOVO 
Mission to the proceedings as a third party. 
14 By a judgment of 1 June 2018, by which the Head of Mission and the European 
institutions were found not to be liable for the period beginning 12 June 2014, the 
referring court ordered the reopening of the proceedings in order for the parties to 
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examine the existence of the ‘mandate’ of the Head of Mission for the period prior 
to 12 June 2014. 
II. Relevant provisions 
15 The only provisions which may be applicable in the present case are the following 
provisions of European law. 
Joint Action 2008/124 (before it was amended on 12 June 2014) 
Article 8 
‘1. The Head of Mission shall assume responsibility and exercise command and 
control of EULEX KOSOVO at theatre level. 
… 
3. The Head of Mission shall issue instructions to all EULEX KOSOVO staff, 
including in this case the support element in Brussels, for the effective conduct of 
EULEX KOSOVO in theatre, assuming its coordination and day-to-day 
management, and following the instructions at strategic level of the Civilian 
Operation Commander. 
… 
5. The Head of Mission shall be responsible for the implementation of the 
EULEX KOSOVO’s budget. For this purpose, the Head of Mission shall sign a 
contract with the Commission’. 
Article 9(3) 
‘EULEX KOSOVO may also recruit, as required, international staff and local 
staff on a contractual basis’. 
Article 10(3) 
‘The conditions of employment and the rights and obligations of international and 
local civilian staff shall be laid down in the contracts between the Head of Mission 
and the members of staff.’ 
Commission Communication on Specific Rules of Special Advisers entrusted 
with the implementation of operational CFSP actions and contracted 
international staff of 30 November 2009 
16 That communication provides that ‘the contract shall foresee that the CFSP 
Special Adviser shall conclude contracts of employment on his/her own behalf 
applying the rules for staff employed by … CFSP Special Advisers’, that ‘a CFSP 
EULEX-KOSOVO 
 
5 
Special Adviser shall conclude on his/her own behalf an employment contract 
employing a person as International Staff’ and that ‘the employment contract 
employing a person as International Staff of a CFSP Special [Adviser] shall be 
signed by the CFSP Special Adviser’; 
III. Relevant case-law 
17 The tribunal [du travail francophone de Bruxelles (Brussels Labour Court 
(French-speaking))] refers to two judgments of the Cour du travail de Bruxelles 
(Higher Labour Court, Brussels): 
– a judgment of 12 December 2017 by which the Cour du travail held that the 
employer of an international staff member employed in the service of the 
EULEX KOSOVO Mission before it acquired legal personality was not the 
Head of Mission but rather the European Union, in respect of which the Head 
of Mission was merely an agent; 
– a judgment of 8 January 2019 by which the same chamber of the same court, 
sitting in a different formation, ruled to the same effect in respect of a different 
CFSP mission by finding that the employer was ‘the European Union, 
represented by the Commission’. 
IV. Findings of the tribunal [du travail francophone de Bruxelles (Brussels 
Labour Court (French-speaking))] and reopening of the proceedings  
18 With regard to the contracts concluded between MJ and the Commission on 
1 February 2013 and 7 June 2013, the tribunal [du travail francophone de 
Bruxelles (Brussels Labour Court (French-speaking))] notes the following: 
– it was on his own behalf that MJ signed the contracts he concluded with the 
Commission on 1 February 2013 and 7 June 2013 and under which certain 
budgets were effectively allocated to him for the operational needs of the 
mission, in particular to cover the remuneration of staff (Article 4 of the 
contract of 7 June 2013), a budget for which he has, moreover, undertaken to 
assume full responsibility, going so far as to commit to reimbursing to the 
Commission any amounts which were wrongly paid to him or spent 
inappropriately by him (Article 9 of that contract) and to take out special 
insurance in order to cover his financial responsibility in that regard and any 
damage caused by himself to the Commission or any third parties in connection 
with the implementation of his mandate, including to parties with whom he 
may be required to conclude contracts in that context (Article 12.3 of that 
contract); 
– Article 11.1 of the contract concluded on 7 June 2013 also provides that the 
Special Adviser is to conclude contracts of employment with staff members on 
his/her own behalf. 
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19 The tribunal [du travail francophone de Bruxelles (Brussels Labour Court 
(French-speaking))] also notes that the contracts of employment concluded with 
MJ before June 2014 expressly present him not only in his personal capacity but 
also as an ‘employer’ and also expressly refer to Article 11.1 of the contract of 
7 June 2013, stating that it allows MJ ‘in his capacity as Special Adviser to enter 
into contracts of employment on his own behalf’ (point II of the preamble to the 
contracts). 
20 So far as concerns the period prior to 12 June 2014, the tribunal [du travail 
francophone de Bruxelles (Brussels Labour Court (French-speaking))] considered, 
in the light of the applicable provisions and contracts, that the applicants were 
entitled to bring proceedings against MJ personally and, that being so, that it was 
necessary to retain those proceedings, notwithstanding the judgment of the Cour 
du travail de Bruxelles (Higher Labour Court, Brussels) of 12 December 2017. 
21 The tribunal [du travail francophone de Bruxelles (Brussels Labour Court 
(French-speaking))] considers that it cannot be claimed, a fortiori without any 
qualification, reservation, or further analysis, that the Head of the EULEX 
KOSOVO Mission was ‘only the agent of the European Union for the 
implementation of its mandate’ in the absence of the EULEX KOSOVO Mission 
having, at that time, its own legal personality or, in particular, decided that the 
action brought against him is inadmissible on the sole ground that ‘as a rule, the 
action can be brought only against the principal, not the agent’ since, in particular 
there are various cases in which an ‘agent’ is personally responsible for the acts 
carried out on behalf of the ‘principal’ and/or legal proceedings may be brought 
against the agent instead of the principal, if only qualitate qua. That is particularly 
true: 
– in the case of so-called ‘imperfect’ representation or a so-called ‘non-
representative’ mandate, that is to say where the agent acts in his/her own name 
on behalf of the principal. In that case, the contractual relationship is 
established, in principle, between the agent personally and the other party to the 
contract without the possibility of direct actions between the principal and the 
other party to the contract or vice versa; 
– or in the case of representation ad agendum (as opposed to representation ad 
litem for the purpose of representing a non-personalised group) where the agent 
may be formally a party to proceedings, in his or her own name but on behalf 
of the principal, merely by indicating his or her status.  
22 The tribunal [du travail francophone de Bruxelles (Brussels Labour Court 
(French-speaking))] considered that it was necessary to analyse further the 
existence of the ‘mandate’ granted to MJ in his capacity as Head of Mission and, 
where appropriate, the exact nature of that mandate and the effects arising 
therefrom before ruling definitively on whether legal proceedings may/must be 
brought against MJ or whether he must be held not liable on the ground that, at the 
material time, he effectively acted only in the name and on behalf of the European 
EULEX-KOSOVO 
 
7 
Union (through one and/or other of its institutions which are parties to the 
proceedings) under a fully representative mandate. It therefore ordered the 
reopening of the proceedings. 
V. Position of the parties 
23 The applicants claim that the actions brought against the European institutions 
should be declared admissible, in so far as they concern any act, action or 
omission of a Head of Mission. In the alternative, they request that the 
proceedings be stayed pending the judgment in Case T-602/15 RENV and, in the 
further alternative, they claim that their actions should be declared admissible in 
so far as they are directed against MJ. 
24 MJ contends that the tribunal [du travail francophone de Bruxelles (Brussels 
Labour Court (French-speaking))] should declare the actions directed against him 
inadmissible. He regards the EULEX KOSOVO Mission as the employer of the 
applicants with regard to all the contracts concerned. 
25 The EU institutions are of the view that they do not have the status of employers 
of the applicants and contend that the actions brought against them in connection 
with an employment contract should be declared inadmissible or at least 
unfounded. 
26 At a hearing on 4 June 2019, the parties agreed that the question of the existence 
of the mandate of the Head of Mission and the nature and effects of such a 
mandate should be referred to the Court of Justice of the European Union for a 
preliminary ruling, in so far as it involves the interpretation of acts of the 
institutions, bodies, offices and agencies of the European Union within the 
meaning of Article 267 TFEU. The tribunal [du travail francophone de Bruxelles 
(Brussels Labour Court (French-speaking))] agreed with that suggestion. 
VI. Background to the request for a preliminary ruling 
27 The General Court and Court of Justice of the European Union have already heard 
and determined various cases involving the EULEX KOSOVO Mission, or other 
similar missions, brought by international civilian staff members employed to 
meet the needs of the mission. 
28 However, they have not yet had the opportunity to address the question of the 
identification of the employer of those staff members and/or its representation for 
the period before the mission acquired legal personality, notwithstanding the fact 
that the mission was already able to employ staff members on a contractual basis 
through the Head of Mission who signed the contracts of employment on his or 
her own behalf and although staff members were already effectively employed in 
the service of the mission. 
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29 That identification is essential in the present case to enable an examination of the 
admissibility and/or the substance of some of the claims made against MJ and the 
EU institutions, in so far as they concern the period prior to 12 June 2014. 
VII. The question referred for a preliminary ruling 
30 In the light of all the foregoing, the Tribunal du travail francophone de Bruxelles 
(Brussels Labour Court (French-speaking)) refers the following question to the 
Court of Justice for a preliminary ruling: 
‘Should Articles 8.3 and 10.3 of Council Joint Action 2008/124/CFSP of 
4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX 
KOSOVO, before its amendment by Council Decision 2014/349/CFSP of 12 June 
2014, where necessary in combination with any other possibly relevant provisions, 
be read as conferring on the Head of Mission, personally and on his or her own 
behalf, the status of employer of the international civilian staff members employed 
in the service of the EULEX KOSOVO Mission during the period before 12 June 
2014 or, having regard, in particular, to Articles 8.5 and 9.3 of Joint Action 
2008/124/CFSP before its amendment on 12 June 2014, as conferring the status of 
employer on the European Union and/or an institution of the European Union such 
as the European Commission, the European External Action Service, the Council 
of the European Union or any other institution on behalf of which the Head of 
Mission acted until that date by virtue of a mandate, delegation of power or any 
other form of representation to be determined where necessary?’