OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 30 September 2021 ( 1 )

Case C‑283/20

CO,

ME,

GC

and 42 Others

v

MJ,

European Commission,

European External Action Service (EEAS),

Council of the European Union,

Eulex Kosovo

(Request for a preliminary ruling from the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels, Belgium))

(Reference for a preliminary ruling – Common foreign and security policy – Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (Eulex Kosovo) – Jurisdiction of the Court of Justice – Staff of EU international missions – Disputes concerning employment contracts – Mandate of the Head of Mission – Determination of the employer of international staff)

I. Introduction

1. This request from the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels, Belgium) concerns the interpretation of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, ( 2 ) as amended, in particular, by Council Decision 2014/349/CFSP of 12 June 2014. ( 3 ) As described by the referring court, the present case is situated in the context of claims brought by former and current international staff members of Eulex Kosovo based on, inter alia, the non-renewal of their employment contracts and the reclassification of their duties in the wake of the restructuring of that mission. Eulex Kosovo is an EU international mission within the common foreign and security policy (‘CFSP’), whose personnel includes the category of international staff, denoting EU and third-country nationals employed on a contractual basis, while the Head of Mission is an individual person appointed by the Council for a specific period of time to direct the staff of that mission and coordinate with other EU actors in the theatre of operations for which he or she is responsible. ( 4 )

2. The problem arising in the present case stems from the fact that the dispute in the main proceedings relates to the period of time before Joint Action 2008/124 was amended by Decision 2014/349, thereby providing that Eulex Kosovo has the capacity to enter into contracts, employ staff and be a party to legal proceedings, and thus involves employment contracts concluded with the Head of Mission in his or her own name. The main question before the Court therefore concerns whether, on the basis of the relevant provisions of Joint Action 2008/124, the Head of Mission can be regarded as the employer of international staff in the service of Eulex Kosovo during that time period, or rather whether another entity on behalf of which the Head of Mission was acting, such as the Eulex Kosovo mission itself or one or more of the Union’s institutions and bodies, namely, the Council of the European Union, the European Commission and the European External Action Service (‘EEAS’), is to be deemed as such. In the main proceedings, this distinction is required in order to determine the defendant against which the claims should be brought.

3. Consequently, the present case provides the Court with the opportunity to rule on several novel and potentially sensitive issues relating to the attribution of liability in respect of employment disputes concerning EU international missions under Union law. ( 5 ) The Court is also called upon to clarify certain aspects of the case-law pertaining to its jurisdiction in the field of the CFSP in this context.

II. Legal framework

A. Joint Action 2008/124 before it was amended by Decision 2014/349

4. Article 8 of Joint Action 2008/124, which is entitled ‘Head of Mission’, states: ‘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.’

5. Article 9 of Joint Action 2008/124, which is entitled ‘Staff’, states: ‘1. The numbers and competence of the Eulex Kosovo staff shall be consistent with its Mission Statement set out in Article 2, the tasks set out in Article 3 and the structure of Eulex Kosovo set out in Article 6. 2. Eulex Kosovo 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 daily allowances and applicable risks and hardship allowances. 3. International civilian staff and local staff may also be recruited by Eulex Kosovo, 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. ( 6 ) …’

6. Article 10 of Joint Action 2008/124, which is entitled ‘Status of Eulex Kosovo and of its staff’, states: ‘1. The status of Eulex Kosovo and its staff, including the privileges, immunities and further guarantees necessary for the completion and smooth functioning of Eulex Kosovo, shall be agreed as appropriate. … 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.’

7. Article 16 of Joint Action 2008/124, which is entitled ‘Financial arrangements’, states: ‘… 4. The Head of Mission shall report fully to, and be supervised by, the Commission on the activities undertaken in the framework of his [or her] contract. …’

B. Joint Action 2008/124 after it was amended by Decision 2014/349

8. Joint Action 2008/124 was amended, in particular, by Decision 2014/349, which entered into force on 12 June 2014 according to Article 2 of that decision.

9. Article 8(1a) of Joint Action 2008/124, as amended by Decision 2014/349 (‘Joint Action 2008/124, as amended’), states: ‘The Head of Mission shall be the representative of the Mission. The Head of Mission may delegate management tasks in staff and financial matters to staff members of the Mission, under his/her overall responsibility.’

10. Article 10(3) of Joint Action 2008/124, as amended, states: ‘The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between Eulex Kosovo and the staff member concerned.’

11. Article 15a of Joint Action 2008/124, as amended, which is entitled ‘Legal arrangements’, states: ‘Eulex Kosovo shall have the capacity to procure services and supplies, to enter into contracts and administrative arrangements, to employ staff, to hold bank accounts, to acquire and dispose of assets and to discharge its liabilities, and to be a party to legal proceedings, as required in order to implement this Joint Action.’

12. Article 16 of Joint Action 2008/124, as amended, provides: ‘… 4. Eulex Kosovo shall be responsible for the implementation of the Mission’s budget. For this purpose, the Eulex Kosovo shall sign an agreement with the Commission. ( 7 ) 5. Eulex Kosovo shall be responsible for any claims and obligations arising from the implementation of the mandate starting from 15 June 2014, with the exception of any claims relating to serious misconduct by the Head of Mission, for which the Head of Mission shall bear the responsibility. …’

III. Facts, procedure and question referred

13. According to the order for reference, CO, ME, GC and 42 other parties (‘the applicants in the main proceedings’) were, or still are, employed in the service of Eulex Kosovo as international civilian staff members under fixed-term employment contracts, which were concluded for one or more months, but not exceeding one year, and successively renewed. Those contracts contain a clause conferring jurisdiction on the Brussels courts until June 2014 and on the Court of Justice of the European Union as from October 2014.

14. MJ served as the Head of Mission of Eulex Kosovo 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.

15. In 2012, a reclassification of various functions resulted, according to the applicants in the main proceedings, in the amendment of the description of their duties and a significant reduction in their pay. That reclassification was followed by three ‘waves’ of employment contracts not being renewed, in spring and summer 2013, autumn 2014 and autumn 2016.

16. By application lodged on 6 August 2013, some of the applicants in the main proceedings brought an action for annulment under Article 263 TFEU before the General Court against the Commission, the EEAS and Eulex Kosovo, challenging the legality of decisions taken by MJ as the Head of Mission not to renew their employment contracts. By order of 30 September 2014, Bitiqi and Others v Commission and Others, ( 8 ) the General Court dismissed that action for lack of jurisdiction, ruling that the legal relationship at issue was contractual and therefore fell within the scope of the clause contained in the employment contracts conferring jurisdiction on the Brussels courts.

17. By applications lodged on 11 July, 14 July and 21 October 2014, the applicants in the main proceedings brought actions before the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels), disputing the reclassification of their duties and/or the non-renewal of their employment contracts, as well as the status assigned to them particularly as regards social security, and seeking damages. The reclassification of duties and the first wave of contracts not being renewed took place before the adoption of Decision 2014/349 and were carried out by MJ as the Head of Mission.

18. Initially, those actions were brought against MJ as the Head of Mission, the Council, the Commission and the EEAS. Those four defendants argued, inter alia, that since Eulex Kosovo was given legal personality and the capacity to be a party to legal proceedings, it alone should be liable for any claims and obligations arising out of the execution of its mandate, both in the future and in the past, in accordance with Article 16(5) of Joint Action 2008/124, as amended. Consequently, the applicants in the main proceedings lodged applications for forced intervention in order to join Eulex Kosovo to the proceedings. However, the examination of those applications was dissociated by the referring court from the examination of the preliminary questions of admissibility and procedure raised by the applications against the first four defendants.

19. By judgment of 1 June 2018, the referring court decided that MJ as the Head of Mission should be dismissed from the case for the period beginning 12 June 2014, since Decision 2014/349 was adopted on that date and he was no longer acting in his own name in relation to the applicants in the main proceedings, but only as a ‘representative’ of Eulex Kosovo, as indicated by Article 8(1a) of Joint Action 2008/124, as amended. The referring court also decided that the Council, the Commission and the EEAS should be excluded from the case for that period on the ground that, by virtue of Decision 2014/349, Eulex Kosovo has its own legal personality and the capacity to be a party to legal proceedings, and the acts taken by that mission were in its own name. However, as regards the period prior to 12 June 2014, the referring court ordered the reopening of the proceedings in order to allow the parties to put forward their submissions concerning the existence of the mandate with which MJ and his predecessors were allegedly entrusted in their capacity as Head of Mission during that period and, where appropriate, the exact nature of that mandate and its effects in relation to MJ’s capacity as Head of Mission, the Council, the Commission and the EEAS.

20. Having heard the submissions of the parties, the referring court has doubts whether MJ as the Head of Mission was only the agent of the European Union during the period before 12 June 2014. The referring court notes, inter alia, that the employment contracts concluded with MJ before that date expressly present him not only in his personal capacity, but also as the employer, and that, according to Article 10(3) of Joint Action 2008/124, such contracts were to be concluded with the Head of Mission. The referring court also points out that MJ signed on his own behalf the contracts concluded with the Commission pursuant to Article 8(5) of Joint Action 2008/124, under which certain budgets were allocated to him for the operational needs of Eulex Kosovo, in particular to cover the remuneration of staff, and that Article 11(1) of the contract signed on 7 June 2013 specifies that MJ is to conclude employment contracts with international staff on his own behalf and on the basis of the rules laid down in Commission Communication C(2009) 9502 of 30 November 2009 on Specific Rules for Special Advisers of the Commission entrusted with the implementation of operational CFSP actions and contracted international staff (‘the 2009 Communication’), as referred to in the employment contracts at issue.

21. The referring court observes that the Union Courts have not yet addressed the issue of identifying the employer of international staff in the service of Eulex Kosovo before Decision 2014/349. In that regard, the referring court mentions two judgments delivered by another chamber of the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels), ( 9 ) finding that the employer of international staff in the service of Eulex Kosovo and another EU international mission before those missions acquired legal personality was the European Union represented by its institutions, and not the Head of Mission. According to the referring court, the resolution of this issue is essential in the present case in order to rule on the admissibility and substance of certain claims made against MJ as the Head of Mission, the Council, the Commission and the EEAS, in so far as they concern the period prior to 12 June 2014.

22. It was in those circumstances that the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels) decided to stay the main proceedings and to refer the following question to the Court 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?’

23. Written observations were submitted to the Court by the applicants in the main proceedings, the Spanish Government, the Council, the Commission, the EEAS and Eulex Kosovo. A hearing was held on 16 June 2021 at which those parties presented oral argument.

IV. Summary of the observations of the parties

24. The applicants in the main proceedings submit that Joint Action 2008/124 should be interpreted as conferring the status of employer on the European Union and, more specifically, the Council and the Commission, both before and after 12 June 2014. In their view, MJ as the Head of Mission acted merely as a signatory of the employment contracts at issue on behalf of the European Union, since the CFSP falls exclusively within its responsibility, and the European Union is represented solely by its institutions to the exclusion of any other entity. Joint Action 2008/124 confers only ad hoc delegations for which the Head of Mission is responsible to the European Union, not to Eulex Kosovo staff, and, having regard to the judgment of 5 July 2018, Jenkinson v Council and Others, ( 10 ) the succession of signatories to employment contracts with every change of Head of Mission implies that the European Union is the employer for the entire duration of the employment relationship.

25. As the applicants in the main proceedings emphasised at the hearing, the contested decisions are imputable to the Commission, since they relate to the execution of Eulex Kosovo’s budget, and matters relating to, inter alia, salaries, allowances and conditions of employment are determined by it. Those decisions are also imputable to the Council because it is responsible for the creation of the legal framework and deficiencies regarding the status of international staff imposed on the Head of Mission, who is appointed by it, and for the adoption of the restructuring decisions implemented in the field of operations. The argument that Article 15a of Joint Action 2008/124, as amended, has merely declaratory effect is irreconcilable with the judgment of 12 November 2015, Elitaliana v Eulex Kosovo, ( 11 ) along with the wording of that joint action, the Commission Communication C(2012) 4052 final of 26 June 2012 on Rules for the Financial Management of the Common Foreign and Security Policy Missions (‘the 2012 Communication’) and the contracts between the Heads of Mission and the Commission.

26. The Spanish Government contends that the European Union acted as the employer before 12 June 2014, notwithstanding the fact that the employment contracts at issue were concluded by MJ as the Head of Mission and the term ‘employer’ appears in them. MJ acted as an agent of the European Union and performed tasks duly entrusted to him by Joint Action 2008/124. By virtue of Articles 8(5) and 16(4) thereof, the Head of Mission is subject to supervision by the Commission in respect of budgetary matters and to the political and strategic control of the Council through the Political and Security Committee (the ‘PSC’) and the Civilian Operation Commander, which implies the existence of an effective control over the Head of Mission on the part of the European Union, and pursuant to Article 8(7) of Joint Action 2008/124, those contracts were made in representation thereof. As the Spanish Government stated at the hearing, Decision 2014/349 constituted an important innovation in the legal framework of Eulex Kosovo, and it can be deduced from Article 16(5) of Joint Action 2008/124, as amended, that Eulex Kosovo’s liability applies only to acts that occurred on or after 15 June 2014. While the Council and the Commission can be defendants in this case, it is still necessary to determine whether the contested acts of the Head of Mission were carried out in the exercise of the delegated functions of one or the other.

27. The Council submits that, since the proceedings before the referring court were brought after the adoption of Decision 2014/349, the legal situation of Eulex Kosovo prior to 12 June 2014 has no relevance and, in any event, Eulex Kosovo already had legal personality before 12 June 2014, so it should be regarded as the only defendant. In its view, Article 15a of Joint Action 2008/124, as amended, has merely declaratory effect, and a possible separation of the contractual periods between different employers is not in the interests of the applicants in the main proceedings. Since the Council was not a party to the employment contracts at issue, it cannot be regarded as the defendant and, as it emphasised at the hearing, the judgment of 19 July 2016, H v Council and Others, ( 12 ) concerned a question of staff redeployment, as opposed to a contractual employment relationship of which the Council is not involved, as is the case here.

28. The Commission contends that the question is hypothetical and therefore inadmissible, given the existence of parallel forced-intervention proceedings pending against Eulex Kosovo and the fact that the question concerns the meaning and scope of a provision of Union law which was no longer in force when the applications were lodged, since it relates solely to the period before 12 June 2014. It asserts, in the alternative, that Article 15a of Joint Action 2008/124, as amended, should be interpreted in the sense that, before 12 June 2014, the employer of international staff in the service of Eulex Kosovo is the Head of Mission, whereas if the capacity to employ such staff does not depend on legal capacity, Eulex Kosovo should be regarded as the employer in that regard. On the one hand, since that provision introduced the ability of Eulex Kosovo to conclude contracts and employ staff from 12 June 2014, it was not possible for that mission to enter into an employment relationship before that date and thus the only counterparty to the employment contracts at issue is the Head of Mission, as indicated by Article 10(3) of Joint Action 2008/124. On the other hand, already before 12 June 2014, Eulex Kosovo had the capacity to recruit staff pursuant to Article 9(3) of Joint Action 2008/124, and Article 16(5) of that joint action, as amended, is applicable to facts occurring before 15 June 2014 if the action is brought after that date, and thus, as of that date, any complaint arising from the execution of the mandate must be addressed to Eulex Kosovo.

29. The Commission argues that it cannot be regarded as the employer, since its role is limited to the implementation of the budget, and not the management of personnel. As it emphasised at the hearing, in line with the H judgment, the Commission is not involved in the chain of command and no budgetary decision is involved in this case; the Head of Mission is appointed by the Council, his or her mandate is established by the Council, and the 2009 and 2012 Communications have nothing to do with international staff and describe rules adopted by the Council in that regard.

30. The EEAS submits that Articles 8, 9 and 10 of Joint Action 2008/124 should be interpreted as meaning that Eulex Kosovo has the status of employer of international staff in the service of that mission. In its view, as far as the question concerns the Head of Mission before Decision 2014/349, it is devoid of relevance, since the proceedings before the referring court were brought after that decision was adopted and, in any event, the Head of Mission is not the employer. Article 9(3) of Joint Action 2008/124 indicates that Eulex Kosovo may recruit staff, and Articles 9(1) and (2) and 10(1) thereof refer to the staff of Eulex Kosovo. Thus, it asserts that, already before12 June 2014, Eulex Kosovo had the capacity to engage staff, and Article 15a of that joint action, as amended, has merely declaratory effect. As it emphasised at the hearing, legal personality in the sense of Article 47 TEU, which states that the Union shall have legal personality, should be distinguished from the legal capacity of Union institutions and other entities to perform tasks, so there is no contradiction with the Elitaliana judgment, as the absence of legal personality does not prevent Eulex Kosovo from having the legal capacity to employ staff. The fact that the Council and the PSC exercise political control and strategic direction of Eulex Kosovo through the Civilian Operation Commander, who is part of the EEAS, and that there is a link to the Commission through implementation of the budget does not confer employer status on the Council, the Commission or the EEAS. The applicants in the main proceedings did not conclude employment contracts with them, and the H judgment concerned a matter of staff redeployment, which bore some connection with the political control and strategic direction of the mission, whereas the recruitment and management of international staff does not.

31. Eulex Kosovo contends that Articles 8, 9 and 10 of Joint Action 2008/124 should be interpreted in the sense that Eulex Kosovo has the status of employer of international staff in the service of that mission. The Head of Mission acts as an agent of Eulex Kosovo, not as an employer, and implements the Council’s decisions relating to the restructuring of Eulex Kosovo, with no decision-making powers in respect of the reclassification and termination of posts. While the Council, the Commission and the EEAS play an important role in the development of Eulex Kosovo’s mandate, they have no contractual link with the applicants in the main proceedings. The fact that, under Article 10(3) of Joint Action 2008/124, the employment contracts at issue were concluded with MJ as the Head of Mission does not mean that he is the employer. This is illustrated by the case-law of the Union Courts, ( 13 ) which refers to Eulex Kosovo as the employer, and not to the successive Heads of Mission in their personal capacity, even where the employment contracts were signed before Decision 2014/349. As it stated at the hearing, Eulex Kosovo already had the capacity to recruit staff under Article 9(3) of Joint Action 2008/124, and Article 16(5) thereof, as amended, applies to claims lodged from 15 June 2014 onwards, even if the facts occurred prior to that date, as is the case here.

V. Analysis

32. By its question, the referring court asks, in substance, whether Joint Action 2008/124, before it was amended by Decision 2014/349, is to be interpreted as meaning that, for the period before 12 June 2014, the Head of Mission of Eulex Kosovo, Eulex Kosovo, the Council, the Commission or the EEAS is to be regarded as the employer of international staff in the service of Eulex Kosovo for the purposes of determining the defendant in the dispute in the main proceedings.

33. As is apparent from the order for reference, that question arises from the fact that Eulex Kosovo was explicitly granted the capacity to enter into contracts, employ staff and be a party to legal proceedings by virtue of the amendments to Joint Action 2008/124 made by Decision 2014/349, more precisely, by Article 15a of Joint Action 2008/124, inserted by Decision 2014/349, which applies as of 12 June 2014, while before that date, the Head of Mission concluded the employment contracts in his or her own name and had responsibility in respect of the implementation of the budget of that mission, as provided for in Joint Action 2008/124. In addition, the Council, the Commission and the EEAS are involved in the creation and operation of Eulex Kosovo and thus may be considered to be responsible for the acts carried out by the Head of Mission in respect of the employment of international staff, in so far as the Eulex Kosovo mission itself could not be held responsible. As indicated by the applicants in the main proceedings, the referring court needs to identify their employer for the purposes of ruling on the dispute before it and, according to the applicable national law, the status of employer is given to that entity which has legal personality and the capacity to answer in court for claims concerning the employment relationship.

34. With a view to answering the question raised in the present case, it is first necessary to provide some preliminary observations on EU international missions and Eulex Kosovo (section A). I will then address the Court’s jurisdiction to give a preliminary ruling on the interpretation of Joint Action 2008/124 in the circumstances of the present case (section B) and the arguments put forward by the Commission concerning the admissibility of the question referred (section C), before I proceed to examine that question (section D).

35. On the basis of that analysis, I have reached the conclusion that the Court has jurisdiction in the present case and that the question referred is admissible. I also conclude that Joint Action 2008/124, before it was amended by Decision 2014/349, should be interpreted as conferring the status of employer of the applicants in the main proceedings on the Commission for the period before 12 June 2014.

A. Preliminary observations

36. In the field of the CFSP under Title V of the TEU, the common security and defence policy (‘CSDP’) ( 14 ) provides the Union with an operational capacity to deploy civilian and military missions outside the EU in order to fulfil a range of tasks, including conflict prevention and peacekeeping. ( 15 ) As noted in recent reports, such missions represent a unique instrument in the EU’s toolbox allowing for direct action to manage a conflict or crisis, and thus are part of a strategic effort to provide security, enable countries to recover from conflict and protect the EU and its citizens through external action. ( 16 ) There are currently 17 ongoing CSDP missions – 11 civilian missions and 6 military missions or operations – staffed by approximately 5000 persons worldwide. ( 17 )

37. Eulex Kosovo is a CSDP civilian mission, which was established by Joint Action 2008/124, as last amended by Decision 2021/904. Joint Action 2008/124 has been extended several times, and Eulex Kosovo’s current mandate runs until 14 June 2023, as indicated by that decision. Eulex Kosovo is regarded as the largest CSDP civilian mission to date. ( 18 ) In accordance with Article 5(1) of Joint Action 2008/124, Eulex Kosovo was launched by the Council following approval of the Operation Plan (‘OPLAN’), which along with the Concept of Operations (‘CONOPS’) are basic planning documents for implementing Eulex Kosovo’s mandate. ( 19 )

38. According to Article 2 of Joint Action 2008/124, ( 20 ) Eulex Kosovo’s mission statement is to ‘assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service, ensuring that these institutions are free from political interference and adhering to internationally recognised standards and European best practices.’

39. Under Article 9 of Joint Action 2008/124, as amended by Decisions 2010/322 and 2014/349, Eulex Kosovo’s personnel comprises staff seconded by the Member States and the Union institutions, along with international staff and local staff who are employed on a contractual basis.

40. As set out in Article 11 of Joint Action 2008/124, as amended by Decision 2010/322, Eulex Kosovo has the following chain of command. The PSC, which is a specific committee of the Council dealing with the CFSP, ( 21 ) exercises political control and strategic direction of Eulex Kosovo under the responsibility of the Council and the EU High Representative for Foreign Affairs and Security Policy (‘the HR’). ( 22 ) In the context of the CFSP defined by the European Council and the Council, ( 23 ) the HR ensures the implementation of their decisions, including those relating to CSDP missions, and is assisted by the EEAS, which is the EU’s diplomatic service. ( 24 ) The PSC is authorised by the Council to appoint the Head of Mission, ( 25 ) whose term runs for specific periods of time, often one to two years, in line with Eulex Kosovo’s mandate. ( 26 )

41. In addition, the Civilian Operation Commander exercises command and control of Eulex Kosovo at strategic level, under the political control and strategic direction of the PSC and the overall authority of the HR. ( 27 ) The Civilian Operation Commander is also the Director of the Civilian Planning and Conduct Capability, ( 28 ) which is a directorate of the EEAS serving as the operational headquarters for CSDP civilian missions. ( 29 ) The Head of Mission exercises command and control of Eulex Kosovo at theatre level and is directly responsible to the Civilian Operation Commander. ( 30 )

B. Jurisdiction of the Court

42. The Court’s jurisdiction to hear the present case is not disputed by the parties. ( 31 ) Nevertheless, the question of the Court’s jurisdiction may be considered by the Court of its own motion. ( 32 ) Given that Joint Action 2008/124 was adopted on the basis of the Treaty provisions concerning the CFSP, ( 33 ) it would appear necessary to examine whether the Court’s jurisdiction to give a preliminary ruling on the interpretation of Joint Action 2008/124 might potentially be affected by the rules limiting the Union Courts’ jurisdiction in the CFSP, as laid down in the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU. Indeed, as indicated by the EEAS, this seems to be the first case involving a reference for a preliminary ruling concerning the interpretation of a CFSP act to come before the Court in this respect.

43. It should be recalled that, as the Court has held, under the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Union Courts do not, as a general rule, have jurisdiction with respect to the provisions relating to the CFSP and the acts adopted on the basis of those provisions. However, since those rules introduce a derogation from the rule of general jurisdiction under Article 19 TEU, they must be interpreted narrowly. ( 34 ) In that regard, the Court has emphasised that it is apparent from both Article 2 TEU, which is included in the common provisions of the TEU, and Article 21 TEU, concerning EU external action, to which Article 23 TEU, relating to the CFSP, refers, that one of the Union’s founding values is the rule of law. ( 35 ) Thus, while Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) cannot confer jurisdiction on the Court where the Treaties exclude it, the principle of effective judicial protection as enshrined in that provision, along with the duty assigned to the Court under Article 19(1) TEU to ensure that in the application and interpretation of the Treaties the law is observed, equally implies a strict interpretation of those rules. ( 36 )

44. Furthermore, there is a body of case-law on jurisdictional issues relating to the CFSP which indicates that the fact that a CFSP act is involved in the particular circumstances of the case does not necessarily mean that the restrictions placed on the Court’s jurisdiction under Article 24(1) TEU and Article 275 TFEU apply. ( 37 ) Since that case-law concerns in part EU international missions, it is useful to set out salient points of certain judgments for the purposes of the present case.

45. For example, starting with the judgment of 24 June 2014, Parliament v Council, ( 38 ) the Court has recognised, in the context of an action for annulment brought against a decision of the Council on the signing and conclusion of an international agreement relating to the CFSP, and in particular EU international missions, that it has jurisdiction to review whether such an agreement is negotiated and concluded in compliance with the procedure laid down in Article 218 TFEU, which is of general application and intended to apply in principle to all international agreements including those in the CFSP.

46. Moreover, in the Elitaliana judgment, ( 39 ) the Court confirmed the Union Courts’ jurisdiction to hear actions for annulment and for damages brought by the applicant based on Eulex Kosovo’s award of a public contract for helicopter services to another tenderer. The Court held that the measures at issue, whose annulment was sought on the basis of an infringement of EU public procurement rules, related to the award of a public contract giving rise to expenditure under the EU budget and thus the contract at issue was subject to the EU financial regulation. ( 40 )

47. It should also be made clear that, in the H judgment, ( 41 ) the Court affirmed the Union Courts’ jurisdiction to hear actions for annulment and for damages lodged by a staff member seconded by a Member State to another EU international mission, namely, the European Union Police Mission (‘EUPM’) in Bosnia and Herzegovina, in connection with decisions taken by the Head of Mission redeploying her to a post in a regional office. According to the Court, while the contested decisions were set in the context of the CFSP and related to operational action in that field, they constituted, by their very essence, acts of staff management just like all similar decisions adopted by the Union institutions in the exercise of their competences. In those circumstances, the restrictions placed on the Union Courts’ jurisdiction in the CFSP did not preclude a review of acts of staff management relating to staff members seconded by the Member States, when the Union Courts have jurisdiction under Article 270 TFEU to review such acts where they concern staff members seconded by the Union institutions. Otherwise, where a single act of staff management relating to ‘field’ operations concerns both staff members seconded by the Member States and those seconded by the Union institutions, the decision with regard to the former would be liable to be irreconcilable with the decision with regard to the latter.

48. On this basis, it is true that the foregoing cases concerned actions for annulment and for damages brought under Article 263 TFEU and the second paragraph of Article 340 TFEU, and not preliminary rulings on the interpretation of Union law under Article 267 TFEU. Moreover, the circumstances giving rise to the H judgment concerned a seconded, as opposed to contract, staff member of an EU international mission, and that judgment sought in part to avoid differing treatment in the adjudication of disputes concerning staff seconded by the Member States and the Union institutions. Nonetheless, it seems to me that it may be generally inferred from that judgment that Article 24(1) TEU and Article 275 TFEU do not preclude the Union Courts’ jurisdiction to hear actions relating to the management of the staff of EU international missions. Indeed, in the light of the H judgment, the Union Courts have affirmed their jurisdiction relative to staff management matters in the context of actions for annulment and for damages brought by a contract staff member of an EU agency in the CFSP, ( 42 ) along with a contractual action based on Article 272 TFEU brought by a former contract staff member of an EU international mission. ( 43 )

49. The foregoing case-law therefore lends support to the view that Article 24(1) TEU and Article 275 TFEU do not preclude the Court’s jurisdiction in the present case.

50. It is certainly the case that the Court is called upon to interpret Joint Action 2008/124, whose legal basis falls within the CFSP. However, the question referred concerns a general matter of staff management, and not one of CFSP implementation. In this respect, the conclusion of the employment contracts at issue, along with the contested decisions relating to the non-renewal of such contracts and the reclassification of posts, may be considered to constitute, by their very essence, typical acts of staff management in the organisation of human resources in the service of Eulex Kosovo. Consequently, in my view, it follows from the H judgment that the restrictions placed on the Court’s jurisdiction under Article 24(1) TEU and Article 275 TFEU do not exclude the Court’s jurisdiction to give a preliminary ruling on the interpretation of Joint Action 2008/124 in the circumstances of the present case. This is so, taking into account Article 19(1) TEU and Article 47 of the Charter, given that the right to effective judicial protection for the applicants in the main proceedings is at stake.

51. Therefore, I consider that the Court has jurisdiction in the present case.

C. Admissibility of the question referred

52. According to the arguments put forward by the Commission, the question referred is inadmissible on account of its hypothetical nature.

53. In my view, those arguments should be rejected.

54. As the Court has consistently held, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Union law, the Court is in principle required to give a ruling. ( 44 ) It follows that questions relating to Union law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 45 )

55. In the present case, as indicated in points 20 and 21 of this Opinion, the referring court has adequately set out in its request not only the reasons which led it to ask the Court about the interpretation of Joint Action 2008/124, but also the grounds making that interpretation necessary in order to decide the dispute in the main proceedings.

56. Moreover, in so far as the Commission complains that the question referred concerns a provision of Union law which was no longer in force when the applications before the referring court were lodged, that question concerns the interpretation of the relevant provisions of Joint Action 2008/124 for the purposes of identifying the employer of the applicants in the main proceedings before 12 June 2014, which includes the assessment of when those provisions are applicable. The Commission’s objection therefore relates to the substance, rather than to the admissibility, of the reference. ( 46 )

57. In those circumstances, it should be considered that the interpretation sought is not manifestly unrelated to the facts or purpose of the main proceedings and that the issues raised are not hypothetical.

58. Therefore, I am of the opinion that the question referred in the present case is admissible.

D. Answer to the question referred

59. As mentioned in point 32 of this Opinion, the question before the Court concerns the identification of the person or entity having the status of employer in respect of international staff in the service of Eulex Kosovo prior to 12 June 2014 and thus can be regarded as the defendant for the purposes of the dispute in the main proceedings. I will therefore examine, first, the role of the Head of Mission, second, that of Eulex Kosovo, and, third, that of the Council, the Commission and the EEAS.

1. The Head of Mission

60. According to the arguments put forward by the Commission, the Head of Mission can be regarded as the employer of the applicants in the main proceedings for the period before 12 June 2014, since he or she is the counterparty to the employment contracts at issue and since it was not possible for Eulex Kosovo to have employer status before the introduction of Article 15a of Joint Action 2008/124, as amended. The applicants in the main proceedings, the Spanish Government, the Council, the EEAS and Eulex Kosovo take a different view.

61. I should state at the outset that, contrary to the Commission’s arguments, there are strong indications, on the basis of the relevant provisions of Joint Action 2008/124, that the Head of Mission cannot be regarded as the employer of the applicants in the main proceedings either before or after 12 June 2014.

62. In that regard, the wording of Joint Action 2008/124 repeatedly mentions the staff of Eulex Kosovo, and not the staff of the Head of Mission. ( 47 ) While Article 10(3) of Joint Action 2008/124, before it was amended, provided that the employment contracts with international and local staff were to be concluded with the Head of Mission, that provision is situated within Article 10 thereof, whose heading, along with its first paragraph, refer to Eulex Kosovo and ‘its staff’.

63. Furthermore, as indicated by the applicants in the main proceedings, the Spanish Government and Eulex Kosovo, it is evident from the provisions of Joint Action 2008/124 that, as regards relations with international staff, the Head of Mission remains subordinate to the Council and the Commission.

64. As regards the Council, in the light of the chain of command of Eulex Kosovo as set out in points 40 and 41 of this Opinion, the Head of Mission is subject to the political control and strategic direction of the Council through the PSC and the Civilian Operation Commander and, as indicated by Article 8(3) of Joint Action 2008/124, the Head of Mission issues instructions to all Eulex Kosovo staff in accordance with the instructions at strategic level of the Civil Operation Commander. It follows from Article 12(2) of Joint Action 2008/124 that the PSC, and not the Head of Mission, has the power to amend the OPLAN (see point 37 of this Opinion), which may include the restructuring of Eulex Kosovo (given that, under Article 6(3)(a) of Joint Action 2008/124, the staff of Eulex Kosovo is defined in the OPLAN). Therefore, in the circumstances of the present case, it appears that MJ as the Head of Mission was obliged to implement the decisions relating to the restructuring of Eulex Kosovo in respect of the reclassification and termination of posts and had no discretion in that regard. ( 48 )

65. Likewise, as regards the Commission, in accordance with Article 8(5) of Joint Action 2008/124, before it was amended by Decision 2014/349, the Head of Mission is responsible for the implementation of Eulex Kosovo’s budget and must sign a contract with the Commission to that end, while under Article 16(4) of Joint Action 2008/124, before it was amended by Decision 2014/349, the Head of Mission must report fully to, and be supervised by, the Commission on the activities undertaken in the framework of that contract, thereby including the employment of international staff. I will come back to this issue later in my analysis (see points 88 to 92 of this Opinion).

66. This interpretation is further corroborated by the fact that, as mentioned in point 40 of this Opinion, the Head of Mission is appointed for a limited period of time in line with Eulex Kosovo’s mandate. Therefore, as indicated by the applicants in the main proceedings and the EEAS, it would be contradictory to have each successive Head of Mission be regarded as the employer in his or her individual capacity. Indeed, the 2009 Communication envisaged the continuation of the advancement of international staff members irrespective of successive appointments of Heads of Mission. ( 49 )

67. Notwithstanding the fact that the employment contracts at issue are signed by MJ as the Head of Mission and refer to him as the ‘employer’, this should not, in my view, be taken to mean that the Head of Mission is to be regarded as the employer of such staff in his or her individual capacity and thus is personally responsible for the employment contracts concluded. On the contrary, as indicated by the applicants in the main proceedings, the Spanish Government and Eulex Kosovo, the Head of Mission may be considered as acting on behalf of the European Union in carrying out the implementation of Eulex Kosovo’s mandate through the tasks entrusted to him or her under Joint Action 2008/124.

2. Eulex Kosovo

68. According to the arguments put forward by the Council, the EEAS and Eulex Kosovo, along with the Commission in the alternative, Eulex Kosovo can be regarded as the employer of the applicants in the main proceedings both before and after 12 June 2014, in view of the alleged declaratory effect of Article 15a of Joint Action 2008/124, as amended, and the fact that Article 16(5) thereof applies to events occurring before 15 June 2014 if the claim is brought after that date, as in the present case (see point 17 of this Opinion). The applicants in the main proceedings and the Spanish Government disagree.

69. In my view, based on the wording of Joint Action 2008/124, its context and the Court’s case-law, Eulex Kosovo cannot be regarded as the employer of the applicants in the main proceedings for the period before 12 June 2014. I will examine, first, Article 15a of Joint Action 2008/124, as amended, and then, Article 16(5) of Joint Action 2008/124, as amended.

70. In the first place, as regards Article 15a of Joint Action 2008/124, as amended, it should be noted that a comparison of the provisions of Joint Action 2008/124 before and after 12 June 2014 clearly indicates the existence of different employers of international staff in the service of Eulex Kosovo. Before the adoption of Decision 2014/349, according to Article 10(3) of Joint Action 2008/124, employment contracts with international staff were concluded between the Head of Mission and the staff members and, pursuant to Article 8(5) thereof, the Head of Mission, as the person responsible for the implementation of Eulex Kosovo’s budget, including the employment of international staff, was required to conclude a contract with the Commission for that purpose. In contrast, after the adoption of Decision 2014/349, Articles 10(3) and 16(4) of Joint Action 2008/124, as amended, specify that Eulex Kosovo concludes employment contracts with international staff and is responsible for the implementation of Eulex Kosovo’s budget for which it concludes a contract with the Commission, while Article 8(5) of that joint action was deleted.

71. Consequently, on the basis of those foregoing provisions, it should be considered that, prior to the introduction of Article 15a of Joint Action 2008/124, as amended, which grants Eulex Kosovo the capacity, inter alia, to conclude contracts, employ staff and be a party to legal proceedings, Eulex Kosovo did not have the necessary capacity to have the status of employer of international staff in the service of that mission.

72. The context of Joint Action 2008/124 appears to support this interpretation. In that regard, it should be noted that, while Article 9(3) of Joint Action 2008/124 provides that Eulex Kosovo may recruit international staff on a contractual basis, there were similar provisions in place for the European Union Planning Team (‘EUPT Kosovo’), ( 50 ) which was involved with the planning and preparation phase for the establishment of Eulex Kosovo, ( 51 ) thereby allowing it to recruit international and local staff on a contractual basis, while the Head of EUPT Kosovo concluded employment contracts with such staff. I find it difficult to consider that, without any explicit grant of legal capacity, such a temporary planning team could be regarded as the employer of such staff and be a party to legal proceedings.

73. Furthermore, in the 2012 Communication, ( 52 ) the Commission indicated that CFSP missions should be granted legal personality or at least a sufficiently broad legal capacity necessary to enable the implementation of their mandates and to ensure a sound legal basis for such missions to act, both inside and outside the EU, including having standing before jurisdictions. The Commission stated its intention to request the Council to adopt provisions to that effect. Similar sentiments were also expressed by the European Court of Auditors in its special report on Eulex Kosovo, adopted in 2012, ( 53 ) recommending that Eulex Kosovo and all future CFSP missions incorporate such provisions. This was carried out in respect of Eulex Kosovo and other EU international missions ( 54 ) through the introduction of a specific provision entitled ‘Legal arrangements’ in the relevant Council decision, as set out in Article 15a of Joint Action 2008/124, as amended. It may therefore be inferred from this that it was considered necessary to grant Eulex Kosovo explicit legal capacity, which it previously lacked, in order, in particular, to hire staff as employer and to defend itself in legal proceedings.

74. This interpretation also seems to be corroborated by the Court’s case-law. In particular, in the Elitaliana judgment, ( 55 ) in the context of proceedings lodged before the adoption of Decision 2014/349, the Court affirmed the General Court’s findings that Eulex Kosovo did not have legal personality and that there was no provision for it to be a party to legal proceedings, with the result that it could not be accorded the status of body, office or agency within the meaning of Article 263 TFEU and that the Commission was considered to be the only defendant. Consequently, in that judgment, the Court placed specific emphasis on Eulex Kosovo’s lack of legal capacity due to the absence of an explicit grant to that effect in Joint Action 2008/124 and on that basis considered that Eulex Kosovo could not be a defendant in the proceedings.

75. It should also be pointed out that the H judgment involved the EUPM in Bosnia and Herzegovina, whereby there was no provision granting it legal capacity in the Council decision establishing it. ( 56 ) While the Court did not directly address the point, it may be inferred from the fact that there was no explicit grant of legal capacity in respect of that mission that the Court found that the contested measures were to be imputed to one of the Union institutions, without consideration of that mission as a potential defendant in the proceedings.

76. Moreover, the Jenkinson judgment ( 57 ) does not seem to me to support a different conclusion. It involved an action based principally on Article 272 TFEU concerning the Union’s contractual liability, brought by a former international staff member of certain EU international missions, including Eulex Kosovo, against the Council, the Commission, the EEAS and Eulex Kosovo. The applicant was employed in the service of Eulex Kosovo from 5 April 2010 to 14 November 2014, but only the last employment contract for the period from 15 October to 14 November 2014 contained an arbitration clause, within the meaning of Article 272 TFEU, conferring jurisdiction on the Union Courts. In its judgment, the Court focused on the General Court’s assessment of the extent of jurisdiction to adjudicate the contractual aspects of the case, ruling that where there is an employment relationship embodying a series of consecutive contracts, the fact that previous contracts do not contain an arbitration clause does not preclude the Union Courts from having regard to all the contracts in their assessment of the relationship between the parties. The Court did not, however, address the General Court’s findings concerning the legal capacity of Eulex Kosovo. Therefore, in my view, the Court’s reasoning concerning the scope of the Union Courts’ jurisdiction under Article 272 TFEU does not appear to be transposable to the separate issue of the identity of employer, which was not dealt with in that judgment. ( 58 )

77. On this basis, it should be considered that Article 15a of Joint Action 2008/124, as amended, means that Eulex Kosovo does not have the status of employer for the period before 12 June 2014. By contrast, it follows from that provision that, for the period beginning 12 June 2014, Eulex Kosovo can be regarded as the employer of international staff in the service of that mission and can thus itself be the defendant in disputes concerning employment contracts concluded with such staff. ( 59 )

78. In the second place, as regards Article 16(5) of Joint Action 2008/124, as amended, the wording of that provision is ambiguous as to whether it means that Eulex Kosovo is liable, as from 15 June 2014, for any claims and obligations arising out of the execution of the mandate, including where the acts took place before that date, or only where the acts took place on or after that date. ( 60 )

79. In that regard, it should be pointed out that Article 16(4) of Joint Action 2008/124, as amended, which was inserted at the same time as Article 16(5) thereof, states that Eulex Kosovo replaces the Head of Mission as responsible for the implementation of its budget. Therefore, reading the two provisions together, it seems to me that Article 16(5) of Joint Action 2008/124, as amended, is intended to confirm that it is Eulex Kosovo which is responsible for any claims and obligations arising from its own implementation of the budget as of 15 June 2014. However, as regards the facts of the present case, which took place before that date, it was the Head of Mission who implemented the budget. Consequently, on the basis of that provision, Eulex Kosovo cannot be regarded as the employer of the applicants in the main proceedings.

3. The Council, the Commission and the EEAS

80. If the Court were to follow my proposal that neither the Head of Mission nor Eulex Kosovo has the status of employer of the applicants in the main proceedings for the period before 12 June 2014 and thus cannot be regarded as the defendant in the dispute before the referring court, it is necessary to examine whether the Council, the Commission and/or the EEAS should be considered to have that status.

81. According to the arguments advanced, in substance, by the applicants in the main proceedings, both the Council and the Commission can be regarded as the employer in the circumstances of the present case. The Council, the Commission, the EEAS and Eulex Kosovo disagree.

82. In my view, there are strong indications, on the basis of the Court’s case-law and the relevant provisions of Joint Action 2008/124, that the Commission has the status of employer of the applicants in the main proceedings for the period before 12 June 2014.

83. In that regard, in the Elitaliana judgment, ( 61 ) the Court found that, although the Head of Mission of Eulex Kosovo was described by Joint Action 2008/124, before it was amended by Decision 2014/349, as responsible for the implementation of that mission’s budget, the fact remained that the Head of Mission’s powers in budgetary and financial matters were exercised under the supervision and authority of the Commission. Consequently, the Court held that the contested measures relating to the award of a public contract were attributable to the Commission.

84. Moreover, in the H judgment, ( 62 ) the Court ruled that, under the terms of the Council decision concerning the EUPM in Bosnia and Herzegovina, the contested decisions of the Head of Mission relating to the redeployment of a seconded staff member were attributable to the Council, since the Head of Mission was appointed by the PSC, which exercised political control and strategic direction of that mission under the responsibility of the Council, and was under the authority of the Civilian Operation Commander, who was himself under the control of the PSC and was responsible for implementing both the PSC’s decisions and those of the Council. On the contrary, according to the Court, those decisions could not be imputed to the Commission because it was not involved in the chain of command and they did not concern the implementation of that mission’s budget, which required the conclusion of a contract between the Head of Mission and the Commission.

85. It is in the light of the foregoing case-law that the circumstances of the present case should be examined.

86. As regards the EEAS, it should be noted that no information has been placed before the Court which demonstrates that it has the status of employer of the applicants in the main proceedings for the period before 12 June 2014. On the contrary, as indicated by the EEAS, while the Civilian Operation Commander is part of the EEAS, the EEAS does not appear to be responsible for matters relating to the employment of international staff. Moreover, as mentioned in point 41 of this Opinion, the Civilian Operation Commander is under the control of the Council and the overall authority of the HR, and not the EEAS.

87. As regards the Council, it seems to me that, based on the information before the Court, it cannot be regarded as the employer of the applicants in the main proceedings for the period before 12 June 2014. Admittedly, in the light of the criteria set out in the H judgment, there are elements in the present case which could be considered to point to the Council, especially given that decisions for the restructuring of Eulex Kosovo may have consequences for the purposes of the reclassification of posts and the termination of employment contracts of international staff. Nevertheless, in my view, the circumstances arising in the H judgment differ from those in the present case. In particular, that judgment pertained to a matter concerning the redeployment of a staff member seconded from a Member State which, as indicated by the Council and the EEAS, appears to have been linked to the political control and strategic direction of the mission under the Council’s responsibility and which was wholly unrelated to the implementation of the mission’s budget requiring a contract between the Head of Mission and the Commission. By contrast, in the present case, the employment of international staff at issue appears to be directly connected to the implementation of Eulex Kosovo’s budget and the contract concluded between the Head of Mission and the Commission in that regard, and therefore centres on the budgetary responsibilities of the Commission. In addition, it should be pointed out that no information has been placed before the Court with regard to the tasks carried out by the applicants in the main proceedings or other indications to refute the Council’s arguments that the employment of international staff in the circumstances of the present case is not under its responsibility.

88. As regards the Commission, in the light of the Elitaliana and H judgments, it appears that, based on the information placed before the Court, it can be regarded as the employer of the applicants in the main proceedings for the period before 12 June 2014 on the ground that the employment of international staff in the service of Eulex Kosovo relates to the implementation of that mission’s budget under the Commission’s supervision and authority and that the Commission appears to have been responsible for determining specific rules in respect of the employment contracts concluded with such staff. ( 63 )

89. It should be recalled that, under Articles 8(5) and 16(4) of Joint Action 2008/124, before it was amended by Decision 2014/349, the Head of Mission was subject to the supervision and authority of the Commission in respect of the implementation of Eulex Kosovo’s budget, including the employment of international staff, and signed a contract with the Commission to that end. More specifically, according to the system based on the 2009 Communication, the Commission employed, by means of a contract, the Head of Mission as a Special Adviser for the purposes of entrusting him or her with the management of the mission’s budget, and the contract provided that the Head of Mission was to conclude employment contracts with international staff ‘applying the rules for staff employed by or seconded to CFSP Special Advisers as set out in the present Communication’. ( 64 ) In that regard, the 2009 Communication laid down specific rules pertaining, in particular, to the conditions of employment and the rights and obligations of international staff to be included in the employment contracts concluded by the Head of Mission with international staff, such as rules concerning the duration of the contract, the classification of posts and the regulation of salaries, taxes and social security. ( 65 )

90. This is illustrated by the contracts of 1 February and 7 June 2013 concluded by MJ as the Head of Mission and the Commission in the present case. In particular, Article 11(1) of the contract of 7 June 2013 provides that the Head of Mission is to conclude employment contracts with his or her staff on the basis of the rules laid down in the 2009 Communication, and Article 11(2) of that contract specifies that the duration of any employment contract generally cannot go beyond the duration of Eulex Kosovo. Moreover, in an employment contract which MJ as the Head of Mission concluded with one of the applicants in the main proceedings before 12 June 2014, which was annexed to the order for reference, the preamble of that contract states that the 2009 Communication ‘sets out the conditions of employment of international staff’ and that Article 11(1) of the contract between the Commission and MJ as the Head of Mission ‘permits’ the latter as Special Adviser to conclude contracts of employment on his own behalf. ( 66 )

91. Consequently, the fact that the applicants in the main proceedings did not sign employment contracts with the Commission or that, as indicated in the 2012 Communication, ( 67 ) the competent Union institution to regulate staff matters is the Council does not invalidate this analysis, given that the employment contracts concluded by MJ as the Head of Mission with the applicants in the main proceedings appear to have been situated within the framework of the 2009 Communication and based on rules which stemmed from the Commission’s responsibility.

92. On this basis, it should be considered that the Commission has the status of employer of international staff in the service of Eulex Kosovo for the period before 12 June 2014 and thus should be regarded as the defendant for the purposes of the dispute in the main proceedings.

VI. Conclusion

93. In the light of the foregoing considerations, I propose that the Court should answer the question referred by the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels, Belgium) as follows: Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, before it was amended by Council Decision 2014/349/CFSP of 12 June 2014, must be interpreted as conferring the status of employer of international staff in the service of Eulex Kosovo on the European Commission during the period before 12 June 2014.

( 1 ) Original language: English.

( 2 ) OJ 2008 L 42, p. 92.

( 3 ) OJ 2014 L 174, p. 42.

( 4 ) See further points 36 to 41 of this Opinion.

( 5 ) In that regard, it is worth noting that there are several cases pending before the General Court which involve similar claims brought by international staff of Eulex Kosovo (see, for example, BL and BM v Council and Others, T‑204/19; QP and Others v Council and Others, T‑183/21; and RI and Others v Council and Others, T‑190/21), along with other EU international missions (see, for example, JF v EUCAP Somalia, T‑194/20, and Stockdale v Council and Others, T‑776/20).

( 6 ) As amended by Council Decision 2010/322/CFSP of 8 June 2010 (OJ 2010 L 145, p. 13). Article 9(3) of Joint Action 2008/124 originally read: ‘Eulex Kosovo may also recruit, as required, international staff and local staff on a contractual basis.’

( 7 ) That provision was later amended by Council Decision (CFSP) 2021/904 of 3 June 2021 (OJ 2021 L 197, p. 114) to read: ‘Except for the amounts referred to in paragraph 1 related to the support to the relocated judicial proceedings within a Member State, Eulex Kosovo shall be responsible for the financial implementation of the Mission’s budget. For this purpose, Eulex Kosovo shall sign an agreement with the Commission.’

( 8 ) T‑410/13, not published, EU:T:2014:871, in particular paragraphs 25 to 28 and 37. No appeal was lodged against that order.

( 9 ) As indicated by the referring court, by judgment of 12 December 2017 (RG 2015/AB/577), the tribunal du travail francophone de Bruxelles (Labour Court (French-speaking), Brussels) held that the employer of an international staff member employed in the service of Eulex Kosovo before it acquired legal personality on the basis of Decision 2014/349 was the European Union represented by its institutions, and that the Head of Mission was merely an agent. In addition, by judgment of 8 January 2019 (RG 2016/AB/411), that court ruled to similar effect in respect of the European Union Police Mission for the Palestinian Territories (EUPOL COPPS), finding that the employer was the European Union represented by the Commission. As regards that latter mission, see further footnote 54 of this Opinion.

( 10 ) C‑43/17 P, EU:C:2018:531 (‘the Jenkinson judgment’).

( 11 ) C‑439/13 P, EU:C:2015:753 (‘the Elitaliana judgment’).

( 12 ) C‑455/14 P, EU:C:2016:569 (‘the H judgment’).

( 13 ) Eulex Kosovo refers, inter alia, to the Jenkinson judgment.

( 14 ) See Title V, Chapter 2, Section 2 of the TEU (Articles 42 to 46).

( 15 ) See Articles 42(1) and 43(1) TEU.

( 16 ) See, in that regard, EEAS, EU CSDP Missions & Operations for Human Security, 2019, p. 1. See further, for example, Fiott, D. (ed.), The CSDP in 2020: The EU’s legacy and ambition in security and defence, European Union Institute for Security Studies, 2020.

( 17 ) As indicated on the EEAS’s website, available at https://eeas.europa.eu.

( 18 ) See, in that regard, European Court of Auditors, Special Report No 18/2012, ‘European Union assistance to Kosovo related to the rule of law’, 2012 (‘the Court of Auditors Report’), point 14. For a detailed study, see, for example, Spernbauer, M., EU Peacebuilding in Kosovo and Afghanistan: Legality and Accountability, Martinus Nijhoff, 2014.

( 19 ) See, in that regard, the Court of Auditors Report, cited in footnote 18 of this Opinion, point 68.

( 20 ) That provision was later amended by Council Decision (CFSP) 2018/856 of 8 June 2018 (OJ 2018 L 146, p. 5).

( 21 ) See Article 38 TEU.

( 22 ) See Joint Action 2008/124, as amended by Decision 2010/322, Articles 11(2) and 12(1).

( 23 ) See Article 26 TEU.

( 24 ) See, in particular, Articles 18 and 27 TEU. See also 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), and Csernatoni, R., ‘The Evolving Role of the European External Action Service in Security and Defence’, European Foreign Affairs Review, vol. 26, 2021, pp. 87-100.

( 25 ) See Joint Action 2008/124, as amended by Decision 2010/322, Article 12(2).

( 26 ) See, most recently, Political and Security Committee Decision (CFSP) 2021/959 of 10 June 2021 extending the mandate of the Head of Mission of the European Union Rule of Law Mission in Kosovo (OJ 2021 L 212, p. 1).

( 27 ) See Joint Action 2008/124, as amended by Decision 2010/322, Articles 7(2) and 11(3).

( 28 ) See Joint Action 2008/124, Article 7(1).

( 29 ) See the EEAS website, cited in footnote 17 of this Opinion.

( 30 ) See Joint Action 2008/124, Articles 8(1) and 11(5).

( 31 ) The Council, the Commission and Eulex Kosovo indicated at the hearing before the Court, along with the EEAS in its written observations, that, on the basis of the Court’s case-law and in particular the H judgment, the Court has jurisdiction in the present case as it concerns staff management issues.

( 32 ) See, in that regard, judgments of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, paragraph 37), and of 6 October 2020, Bank RefahKargaran v Council (C‑134/19 P, EU:C:2020:793, paragraph 25).

( 33 ) Joint Action 2008/124 is based on former Article 14 EU and the third paragraph of Article 25 EU (now Articles 28 and 38 TEU), while Decision 2014/349 is based on Articles 28, 42(4) and 43(2) TEU.

( 34 ) See judgment of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793, paragraph 32).

( 35 ) See judgment of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793, paragraph 35).

( 36 ) See, in that regard, judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraphs 74 and 75).

( 37 ) See, in that regard, Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, points 36 to 76), and Opinion of Advocate General Bobek in SatCen v KF (C‑14/19 P, EU:C:2020:220, points 51 to 85). See further, 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.

( 38 ) See C‑658/11, EU:C:2014:2025, paragraphs 69 to 74; see also judgments of 14 June 2016, Parliament v Council (C‑263/14, EU:C:2016:435, paragraph 68); of 4 September 2018, Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662, paragraphs 21 to 24); and of 2 September 2021, Commission v Council (Agreement with Armenia) (C‑180/20, EU:C:2021:658, paragraph 27).

( 39 ) See judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, paragraphs 41 to 50).

( 40 ) 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), as amended by Regulation (EC, Euratom) 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. It has since been replaced by Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

( 41 ) See judgment of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569, paragraphs 39 to 61).

( 42 ) See judgment of 25 June 2020, SatCen v KF (C‑14/19 P, EU:C:2020:492, in particular paragraph 66). See also, in that regard, order of 10 July 2020, KF v SatCen (T‑619/19, not published, EU:T:2020:337, paragraphs 18 to 32) (appeal pending in KF v SatCen, C‑464/20 P).

( 43 ) See judgment of 12 April 2018, PY v EUCAP Sahel Niger (T‑763/16, EU:T:2018:181, paragraph 53).

( 44 ) See, for example, judgment of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 115).

( 45 ) See, for example, judgment of 29 April 2021, Ubezpieczeniowy FunduszGwarancyjny (C‑383/19, EU:C:2021:337, paragraph 30).

( 46 ) See, in that regard, judgment of 17 March 2021, An tAire Talmhaíochta Bia agusMara and Others (C‑64/20, EU:C:2021:207, paragraph 27).

( 47 ) See, for example, Joint Action 2008/124, as amended by Decision 2010/322, Articles 8(3), 9(1) to (3) and 14(5) and (6).

( 48 ) It is worth noting that this is illustrated by two notification letters addressed by the Head of Mission ‘on behalf of Eulex Kosovo’ to certain applicants in the main proceedings, annexed to the order for reference, which indicated that the reclassification and termination of posts was in consequence of Eulex Kosovo’s restructuring following the approval of the new OPLAN and CONOPS.

( 49 ) See the 2009 Communication, cited in point 20 of this Opinion, point 4a, p. 13.

( 50 ) See Council Joint Action 2006/304/CFSP of 10 April 2006 on the establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis management operation in the field of rule of law and possible other areas in Kosovo (OJ 2006 L 112, p. 19), in particular Articles 4(5) and 11(3).

( 51 ) See, in that regard, Joint Action 2008/124, Article 4.

( 52 ) See the 2012 Communication, cited in point 25 of this Opinion, in particular points 3.2 to 3.4 and 4.2.

( 53 ) See the Court of Auditors Report, cited in footnote 18 of this Opinion, in particular points 92 to 94 and 107 and recommendation 4.

( 54 ) See, for example, Council Decision 2014/447/CFSP of 9 July 2014 amending Decision 2013/354/CFSP on the European Union Police Mission for the Palestinian Territories (EUPOL COPPS) (OJ 2014 L 201, p. 28), Article 11a; and Council Decision (CFSP) 2015/800 of 21 May 2015 amending and extending Decision 2013/233/CFSP on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) (OJ 2015 L 127, p. 22), Article 12a. It is worth noting that currently all 11 ongoing CSDP civilian missions have such provisions. See also, inter alia, Council Decision (CFSP) 2017/1869 of 16 October 2017 on the European Union Advisory Mission in support of Security Sector Reform in Iraq (EUAM Iraq) (OJ 2017 L 266, p. 12), Article 13; and Council Decision (CFSP) 2019/2110 of 9 December 2019 on the European Union CSDP Advisory Mission in the Central African Republic (EUAM RCA) (OJ 2019 L 318, p. 141), Article 12.

( 55 ) See judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, in particular paragraphs 58, 59 and 66). See also, in that regard, Opinion of Advocate General Jääskinen in Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:341, points 63 to 65), and my Opinion in SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:176, point 59).

( 56 ) See, in that regard, order of 22 July 2010, H v Council and Others (T‑271/10 R, not published, EU:T:2010:315, paragraph 19).

( 57 ) C‑43/17 P, EU:C:2018:531, in particular paragraphs 15, 34 and 40 to 51. The case is currently pending before the General Court (Jenkinson v Council and Others, T‑602/15 RENV).

( 58 ) In that regard, it is worth noting that, in its ruling in the Jenkinson case, the General Court considered that Eulex Kosovo has legal personality and can be a defendant in legal proceedings on account of Article 15a of Joint Action 2008/124, as amended. See order of 9 November 2016, Jenkinson v Council and Others (T‑602/15, EU:T:2016:660, paragraphs 32 to 37).

( 59 ) See further, in that regard, Heliskoski, J., ‘Responsibility and liability for CSDP operations’, in Blockmans, S. and Koutrakos, P. (eds.), Research Handbook on the EU’s Common Foreign and Security Policy, Edward Elgar, 2018, pp. 132-153, at pp. 143-144.

( 60 ) As indicated by the referring court in paragraph 80 of its judgment of 1 June 2018, annexed to the order for reference, a comparison of the different language versions of Article 16(5) of Joint Action 2008/124, as amended, does not clarify matters, since the Spanish, German, English, French, Italian and Dutch versions, for example, support one or the other interpretation.

( 61 ) C‑439/13 P, EU:C:2015:753, in particular paragraphs 62 to 66.

( 62 ) C‑455/14 P, EU:C:2016:569, paragraphs 65 to 68.

( 63 ) In that regard, as indicated by the applicants in the main proceedings, it is worth noting the European Ombudsman’s decision closing his own-initiative inquiry OI/12/2010/(BEH)MMN concerning the Council, the Commission and the HR/EEAS of 30 August 2013, which was prompted by uncertainties following from the institutional setup of EU international missions as to which Union institution or body is competent to remedy possible instances of maladministration. In that decision, he concluded that, in the light of the proposal submitted by the HR, future complaints would be addressed to the Commission as regards issues relating to budget implementation in civilian missions and to the HR/EEAS as regards all other allegations of maladministration in relation to CSDP missions.

( 64 ) See the 2009 Communication, cited in point 20 of this Opinion, point 3b, p. 6.

( 65 ) See the 2009 Communication, cited in point 20 of this Opinion, points 4 and 4a, pp. 10-15.

( 66 ) It is worth noting that a notification letter addressed by the Head of Mission to one of the applicants in the main proceedings, annexed to the order for reference, states: ‘Upon instructions from the European Commission, … a review of the classification of all the positions and corresponding job descriptions has taken place pursuant to the [2009 Communication].’

( 67 ) See the 2012 Communication, cited in point 25 of this Opinion, in particular points 3.3 and 4.4. See also, in that regard, the Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the establishment of a Civilian CSDP Compact, Doc. 14305/18, 19 November 2018, Section II, point 10(b), p. 7 (listing, among the commitments of the Council and the Member States, the review of the employment status of international contractual staff of CSDP civilian missions).