ORDER OF THE GENERAL COURT (Ninth Chamber)
10 July 2014 (*)
(Application for annulment — Application for damages — Common foreign and security policy — National expert seconded to the EUPM in Bosnia and Herzegovina — Decision to redeploy — Lack of jurisdiction of the General Court — Inadmissibility)
In Case T‑271/10,
H, residing in Catania (Italy), represented initially by C. Mereu and M. Velardo, and subsequently by M. Velardo, lawyers,
applicant,
v
Council of the European Union, represented by A. Vitro, G. Marhic and M.‑M. Joséphidès, acting as Agents,
European Commission, represented by F. Erlbacher and B. Eggers, acting as Agents,
and
European Union Police Mission (EUPM) in Bosnia and Herzegovina, established in Sarajevo (Bosnia and Herzegovina),
defendants,
APPLICATION, first, for annulment of the decision of 7 April 2010, signed by the Chief of Personnel of the EUPM, by which the applicant was redeployed to the post of ‘Criminal Justice Adviser — Prosecutor’ in the regional office of Banja Luka (Bosnia and Herzegovina) and, if needed, of the decision of 30 April 2010, signed by the Head of Mission referred to in Article 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (BiH) (OJ 2009 L 322, p. 22), confirming the decision of 7 April 2010, and second, for damages,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background
1        By Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1), a European Union Police Mission (EUPM) was established to follow on from the United Nations International Police Task Force in Bosnia and Herzegovina.
2        The EUPM, which started up on 1 January 2003, was extended a number of times, lastly until 31 December 2011 by Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22).
3        The applicant, Ms H, is an Italian magistrate who was seconded to the EUPM in Sarajevo (Bosnia and Herzegovina) by decree of the Italian Minister for Justice of 16 October 2008, in order to perform the duties of ‘Criminal Justice Unit Adviser’ there from 14 November 2008.
4        By decree of the Italian Minister for Justice of 7 April 2009, the applicant had her secondment extended until 31 December 2009, in order to perform the duties of ‘Chief Legal Officer’. By decree of the Italian Minister for Justice of 9 December 2009, the applicant’s secondment was further extended until 31 December 2010, in order for her to continue to perform the same duties.
5        By decision of 7 April 2010, signed by the Chief of Personnel of the EUPM, the applicant was redeployed for operational reasons to the post of ‘Criminal Justice Adviser — Prosecutor’ in the Banja Luka regional office, from 19 April 2010.
6        After receiving the decision of 7 April 2010, the applicant contacted the Italian authorities and she lodged a complaint.
7        By email of 15 April 2010, an official in the Permanent Representation of the Italian Republic to the European Union informed the applicant that the decision of 7 April 2010 had been suspended.
8        By decision of 30 April 2010, signed by the Head of Mission referred to in Article 6 of Decision 2009/906, the Head of Mission responded to the applicant’s complaint by confirming the decision of 7 April 2010. He stated in the decision that he himself had taken the decision of 7 April 2010 and that the operational reason for the applicant’s redeployment was the need for prosecutorial advice in the Banja Luka office.
9        On 4 June 2010, the applicant brought an action against the EUPM before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio; ‘the TAR-Lazio’) for annulment of the decision of 7 April 2010 and compensation for the harm allegedly suffered.
10      The applicant also applied to the TAR-Lazio for suspension of the operation of the decision of 7 April 2010.
Procedure and forms of order sought
11      By application lodged at the Court Registry on 16 June 2010, the applicant brought the present action, against the Council of the European Union, the European Commission and the EUPM.
12      On 17 June 2010, the applicant also lodged an application for interim measures seeking in particular suspension of the operation of the decision of 7 April 2010 and the decision of 30 April 2010 (together ‘the contested decisions’).
13      By order of 22 July 2010 in H v Council and Others (T‑271/10 R, EU:T:2010:315), the President of the General Court dismissed that application, for lack of urgency, and reserved costs.
14      The Council and the Commission both raised a plea of inadmissibility, which they lodged at the Court Registry on 1 July and 2 September 2010 respectively. The EUPM, upon which the application initiating proceedings was served by letter of 26 June 2010, did not respond to that application in any way.
15      The applicant lodged her observations on each of the pleas of inadmissibility on 17 September and 27 October 2010 respectively.
16      By order of the General Court (Second Chamber) of 26 May 2011, the pleas of inadmissibility were reserved for the final judgment.
17      The written procedure accordingly followed its course, the Council and the Commission lodging their defences, the applicant lodging her reply and the Council and the Commission lodging their rejoinders.
18      The written procedure was closed on 30 November 2011.
19      The composition of the Chambers of the General Court changed and the Judge-Rapporteur initially designated was assigned to the Ninth Chamber, to which the present case was accordingly allocated by decision of the President of the General Court of 3 October 2013.
20      Then, by decision of the President of the General Court of 5 February 2014, the present case was allocated to another Judge-Rapporteur, also assigned to the Ninth Chamber.
21      On 5 March 2014, by way of measures of organisation of procedure referred to in Article 64 of its Rules of Procedure, the General Court (Ninth Chamber), acting on a proposal from the Judge-Rapporteur, requested the applicant, the Council and the Commission to reply in writing to a number of questions and to produce certain documents. Those parties complied with the measures within the prescribed period.
22      The applicant claims, in essence, that the Court should:
–        dismiss the pleas of inadmissibility raised by the Council and the Commission;
–        annul the decision of 7 April 2010 and, if needed, the decision of 30 April 2010;
–        order the Council, the Commission and the EUPM to pay her damages to compensate for the harm suffered by her, assessed ex aequo et bono at EUR 30 000;
–        order the Council, the Commission and the EUPM to pay the costs, together with interest of 8%.
23      The Council contends, in essence, that the Court should:
–        dismiss the action as inadmissible, because the Court lacks jurisdiction;
–        in the alternative, dismiss the action as unfounded;
–        order the applicant to pay the costs.
24      The Commission contends that the Court should:
–        dismiss the action as inadmissible, because the Court lacks jurisdiction;
–        in the alternative, dismiss the action as inadmissible in so far as it is addressed to the Commission;
–        in the further alternative, dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
Preliminary remarks
25      Under Article 114 of the Rules of Procedure, where a party applies to the General Court for a decision on the admissibility of an action without going into the substance of the case, the remainder of the proceedings on the plea of inadmissibility are to be oral unless the Court decides otherwise.
26      In the present case, the Council and the Commission have each put forward a plea of inadmissibility by separate document.
27      The Court considers that it has sufficient information from the documents in the file and that it should give its decision without taking further steps in the proceedings.
28      In this connection, it should be noted that, in accordance with the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the General Court has previously made an order (see paragraph 16 above) reserving for the final judgment a plea put forward on the basis of Article 114 of the Rules of Procedure (see, to this effect, the order of 19 February 2008 in Tokai Europe v Commission, C‑262/07 P, EU:C:2008:95, paragraphs 26 to 28).
Jurisdiction of the General Court
29      The Council and the Commission submit, in essence, that the contested decisions are measures that pertain to an operational action decided upon and carried out under the common foreign and security policy (CFSP), so that, in the light of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the General Court has no jurisdiction to hear the present action.
30      The applicant counters by stating, in particular, that the contested decisions are not political or strategic measures falling within the CFSP and refers in this regard to the judgment of 8 October 2008 in Sogelma v EAR (T‑411/06, ECR, EU:T:2008:419). She adds that, if the General Court were to consider that it lacks jurisdiction to rule on her claims, she would be denied the right to an effective remedy, as laid down in Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, since the national courts can neither annul those decisions nor order the institutions of the European Union to compensate her for the harm that they have caused.
31      First, it should be noted that, as stated in the second subparagraph of Article 24(1) TEU:
‘The [CFSP] is subject to specific rules and procedures. … The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 [TEU] and to review the legality of certain decisions as provided for by the second paragraph of Article 275 [TFEU].’
32      Second, Article 40 TEU reads as follows:
‘The implementation of the [CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 [TFEU] to 6 [TFEU].
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’
33      Third, Article 275 TFEU provides:
‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the [CFSP] nor with respect to acts adopted on the basis of those provisions.
However, the Court shall have jurisdiction to monitor compliance with Article 40 [TEU] and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 [TFEU], reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’
34      That having been made clear, it must be stated, first, that it is evident from those provisions that the General Court lacks jurisdiction to hear actions concerning measures falling within the CFSP, with the exception of the situations provided for in the second paragraph of Article 275 TFEU.
35      The applicant’s situation is not covered by the second paragraph of Article 275 TFEU, as she acknowledged in her answer to a written question from the Court.
36      Second, contrary to the applicant’s assertions, the present case differs from the case which gave rise to the judgment in Sogelma v EAR, paragraph 30 above (EU:T:2008:419), which concerned, in particular, an application for annulment of measures of the European Agency for Reconstruction (EAR), an agency established by Council Regulation (EC) No 2454/1999 of 15 November 1999 amending Regulation (EC) No 1628/96 relating to aid for Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the former Yugoslav Republic of Macedonia, in particular by the setting up of an EAR (OJ 1999 L 299, p. 1).
37      The EAR did not fall within the CFSP, but had been set up by a regulation having Article 308 EC as its legal basis and therefore belonging to the ‘Community pillar’. It was in those circumstances that the General Court, relying on the judgment of 23 April 1986 in Les Verts v Parliament (294/83, ECR, EU:C:1986:166), deduced the existence, in a community based on the rule of law, of the general principle that any act of a Community body intended to produce legal effects vis-à-vis third parties must be open to judicial review, despite the fact that Article 230 EC did not refer to Community bodies, offices and agencies, but to institutions (Sogelma v EAR, paragraph 30 above, EU:T:2008:419, paragraphs 36 and 37), unlike Article 263 TFEU.
38      It follows that, in Sogelma v EAR, paragraph 30 above (EU:T:2008:419), the possibility of recognising the General Court’s jurisdiction on the basis of a general principle did not come up against provisions of the Treaties expressly denying that jurisdiction. By contrast, as has been noted in paragraphs 31 to 33 above, such provisions exist in this instance.
39      Third, the applicant is not justified in asserting that the General Court’s lack of jurisdiction to hear the present action denies her the right to an effective remedy, laid down in particular in Article 47 of the Charter of Fundamental Rights.
40      Decision 2009/906 has laid down a system under which there is, in any event, a court with jurisdiction to deal with issues concerning the EUPM’s staff. This is so for the three categories under which its staff may fall pursuant to Article 7(2) and (3) of that decision, which read as follows:
‘2.      [The] EUPM shall consist primarily of staff seconded by Member States or EU institutions. Each Member State or EU institution shall bear the costs related to any of the staff seconded by it, including travel expenses to and from the place of deployment, salaries, medical coverage and allowances other than applicable daily allowances, as well as hardship and risk allowances.
3.      International civilian staff and local staff may also be recruited by [the] EUPM, as required, on a contractual basis, if the functions required are not provided by personnel seconded by Member States. 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.’
41      It follows from that article that the EUPM has staff recruited on a contractual basis, staff seconded from an EU institution and staff seconded from a Member State.
42      As regards staff recruited on a contractual basis, Article 8(3) provides:
‘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 staff member.’
43      In this regard, it is apparent from the model contract of employment and the anonymised contract which were produced by the Commission following a request to that effect by the Court that every contract of employment contains a dispute settlement clause.
44      So far as specifically concerns seconded staff, Article 8(2) of Decision 2009/906 provides:
‘The State or EU institution having seconded a staff member shall be responsible for answering any claims linked to the secondment, from or concerning the staff member. The State or EU institution in question shall be responsible for bringing any action against the seconded person.’
45      That provision must be interpreted as meaning that (i) only the authorities of the State which have authorised the secondment have competence to take decisions concerning a national member of staff seconded to the EUPM and (ii) only the EU authorities have competence in respect of issues relating to EU members of staff likewise seconded to the EUPM.
46      Similarly, only the national courts have jurisdiction to deal with any issue concerning the secondment of national members of staff, whereas the judicature of the European Union has jurisdiction in respect of EU members of staff who have been seconded.
47      Such an interpretation is borne out by the fact that Article 6(5) of Decision 2009/906 provides that, ‘[f]or [staff seconded by a State or an EU institution], disciplinary action shall be exercised by the national or EU authority concerned’.
48      What is more, Article 5(4) of Decision 2009/906 provides:
‘All seconded staff shall remain under the full command of the national authorities of the seconding State or EU institution concerned. National authorities shall transfer Operational Control (OPCON) of their personnel, teams and units to the Civilian Operation Commander.’
49      In addition, according to Article 6(2) of Decision 2009/906, ‘[t]he Head of Mission shall exercise command and control over personnel, teams and units from contributing States as assigned by the Civilian Operation Commander together with administrative and logistic responsibility’.
50      In the light of the provisions referred to in paragraphs 44 and 47 to 49 above, it must be held that, whilst the contested decisions were taken by the Head of Mission, they can in principle be attributed to the Italian authorities. It is clear from the case-law that measures adopted pursuant to delegated powers are normally attributed to the delegating institution, on which it falls to defend the measure in question before the courts, and that such an outcome holds all the more true for signature by delegation and in a scenario of sub-delegation (see, to this effect and by analogy, the order of 4 June 2012 in Elti v Delegation of the European Union to Montenegro, T‑395/11, ECR, EU:T:2012:274, paragraphs 62 to 64 and the case-law cited).
51      Moreover, the fact that the contested decisions were adopted by the Head of Mission pursuant to the powers that had been delegated to him by the Italian authorities as regards seconded staff is confirmed by the content of the email which the applicant received from an official in the Permanent Representation of the Italian Republic to the European Union (see paragraph 7 above), from which it is apparent that the decision of 7 April 2010, which should have taken effect on 19 April 2010, had been suspended, following a request to this effect from that official. In this regard, it is of no consequence that the Council and the Commission stated, in response to a written question from the Court, that the Italian authorities did not have any power enabling them to obtain such a suspension. In their responses, those institutions did not put forward any factors calling the existence of such a delegation of powers into question.
52      Accordingly, the legality of those measures must be reviewed by the Italian court.
53      Should the Italian court consider that the Head of Mission exceeded the powers that had been delegated or sub-delegated to him, it could make this finding and draw the appropriate conclusions with respect to the legality, or even the very existence, of the contested decisions. Similarly, if the applicant has suffered harm because of those decisions, which are not attributable to an EU institution, it is for the Italian court to rule on the application for damages concerning that harm.
54      It follows from the foregoing that the applicant has a right to an effective remedy, before the Italian court, a situation which is consistent with the second subparagraph of Article 19(1) TEU, according to which Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. In the present case, the view must be taken that, whilst the contested decisions are not acts attributable to the institutions of the European Union, they fall within such a field as they were taken on the basis of the powers that a Member State delegated to the Head of Mission in the context of Decision 2009/906.
55      Moreover, the applicant has exercised that right, since, as noted in paragraph 9 above, she brought an action before the TAR-Lazio. The applicant stated in reply to a written question from the Court that that action is still pending.
56      Finally, and in any event, it should be remembered that, according to the case-law, the absence of other possibilities for a judicial remedy cannot in itself give rise to jurisdiction of the judicature of the European Union in a legal system based on the principle of conferred powers (see, to this effect, the judgment of 25 July 2002 in Unión de Pequeños Agricultores v Council, C‑50/00 P, ECR, EU:C:2002:462, paragraphs 44 and 45; the judgment of 3 October 2013 in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, ECR, EU:C:2013:625, paragraph 81; and the order of 7 June 2004 in Segi and Others v Council, T‑338/02, ECR, EU:T:2004:171, paragraph 38).
57      Moreover, it must also be pointed out that, whilst Article 47 of the Charter of Fundamental Rights confers the right to an effective remedy, it is not intended to change the system of judicial review laid down by the Treaties, as is also apparent from the part of the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) that pertains to that article. Those explanations must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, be taken into consideration for the interpretation of the Charter (see, to this effect, Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 56 above, EU:C:2013:625, paragraph 97 and the case-law cited).
58      As the Court lacks jurisdiction to hear the present action, it must be dismissed as inadmissible in its entirety.
59      That being so, there is no need to rule on the question whether the EUPM can have the status of defendant, which the Council and the Commission contest.
Costs
60      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, including those relating to the proceedings for interim measures, in accordance with the forms of order sought by the Council and the Commission.
61      As the EUPM has not participated in the proceedings, there is no need to rule on its costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      Ms H shall bear her own costs and those incurred by the Council of the European Union and the European Commission.
Luxembourg, 10 July 2014.
E. Coulon
G. Berardis
Registrar
President
* Language of the case: English.