Montanari v Eucap Sahel Niger (Case T-371/22) – Tech Cyber Internet

 

 

 

Antje Kunst*

* Antje Kunst is an
worldwide lawyer and barrister of a UK primarily based Chambers, specialised in EU
and worldwide public legislation, human rights and litigation. She is admitted to
the Bar of England and Wales, and the Bar of Berlin, advising and representing
people in a variety of issues together with in workers disputes with EU
missions and businesses earlier than the EU Courts. She has appeared in quite a few circumstances
earlier than each the Courtroom of Justice and the Normal Courtroom, throughout the Courtroom of
Justice of the European Union.

Picture credit score: European
Fee, through Wikimedia
Commons

 

Introduction

On 17 July 2024 in Montanari
v Eucap Sahel Niger (Case T-371/22)** the Normal Courtroom dominated it has
jurisdiction relating to a declare for compensation introduced by a former workers seconded
by a member state to Eucap Sahel Niger, an EU Mission established below the Widespread
International Safety Coverage (CFSP). This ruling on jurisdiction is  primarily based on an essential Grand Chamber judgment H v
Council et al,  Case C- 455/14 ECLI:EU:C:2016:569.

Associated to the substance of the
case the Normal Courtroom utilized by analogy provisions of the EU
Workers Rules  to the dispute. EU
Workers Rules are usually not relevant to EU workers seconded by a member state to
an EU Mission. Making use of the EU Workers Rules in analogy was primarily based on the
precept of equal remedy. On this respect the Normal Courtroom adopted its
personal case legislation, as established in H v
Council in Case T-271/10 RENV II ECLI:EU:T:2020:548.

There’s hardly any case legislation by
the Normal Courtroom relating to actions towards EU missions by seconded workers from member
states. Consequently, its judgment in Montanari holds important
significance, contemplating additionally that almost all of personnel in EU missions are
seconded by member states.

The Montanari case
represents one more occasion the place the Normal Courtroom needed to deal with a number of
jurisdictional and admissibility points, regardless of well-established case legislation on
sure features. Nonetheless, the Normal Courtroom’s detailed response to the
defendant’s plea of lack of jurisdiction and the pleas of inadmissibility will
undoubtedly be helpful for future related circumstances introduced by seconded workers to EU
missions.

The clarifications by the Normal
Courtroom will hopefully dissuade EU missions from elevating such pleas within the
future, permitting the Courtroom to focus its judicial assessment on substantive issues,
because it repeatedly does in EU civil service circumstances introduced below Article 270 TFEU. In the end,
this is able to enable the EU judiciary to ship judgments in some of these circumstances extra
swiftly, that are EU civil service kind workers disputes, leading to sooner
dispute decision for the events and diminished litigation prices for the
candidates.

The Montanari case presents
helpful insights into how the Normal Courtroom will deal with the deserves of comparable
circumstances sooner or later, together with which algorithm it would apply and the way it will
interpret these guidelines in relation to seconded workers. This will likely embrace workers’s elementary
rights below the Constitution, the Code of Conduct relevant to all workers serving
in EU missions, seconded or contracted, the operational plan of EU missions
(‘OPLAN’) and provisions of the EU Workers Rules (see the reference to
these guidelines in para. 209 of the Judgment).

Additional the Normal Courtroom’s judgment
makes clear that it’s going to apply the case-law particular to the EU civil service
having related workers disputes to workers seconded to EU Missions (see para. 224
of the Judgment).

It’s extremely fascinating for the
Normal Courtroom’s judicial assessment course of to finally align intently with its
assessment of circumstances introduced by civil service litigation pursuant to Article 270
TFEU. Such alignment would guarantee consistency, predictability, and equity in
the adjudication of disputes involving workers seconded by member states, thereby
strengthening the authorized framework governing EU missions.

The unsuccessful plea of lack
of jurisdiction – no grievance regarding the secondment

Eucap Sahel Niger argued that the
Normal Courtroom doesn’t have jurisdiction to listen to the motion as a result of the
applicant carried out the duties of political adviser throughout the Mission as an
knowledgeable seconded by the Italian Ministry of International Affairs, in accordance with
Article 7(2) of Council
Determination 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in
Niger. This provision foresees that it’s for the seconding Member State to
reply to any grievance regarding the secondment to an EU Mission, and for
complainants to convey any motion towards the Member State. However the applicant’s
grievance didn’t relate to his secondment as such – so the place was related
to that of H, the applicant within the Grand Chamber case H v Council et al,
who was a former seconded member of workers of the EU Police Mission in Bosnia who
was complaining about her subsequent redeployment after being seconded.

The applicant’s grievance within the
case at hand was about alleged psychological harassment by the Mission’s
management, which is a matter for the EU Courts. The issue was that for workers
seconded to EU missions, there was no authorized foundation for the EU Courts to assessment
workers administration acts of EU missions – like Article 270 TFEU, which might
in any other case apply to workers below the EU Workers Rules.

The Grand Chamber Judgment in H v
Council et al acknowledged that H, a prosecutor and her colleagues
seconded to EU missions, confronted a niche of judicial safety. The Courtroom of
Justice rightly determined to step in to shut this hole to make sure a “full
system of authorized treatments and procedures”. It decided that it has
jurisdiction for actions by seconded workers difficult acts of EU missions
pursuant to Article 263 TFEU and in search of compensation primarily based on Article 268 and
340 TFEU from them, bearing in mind its position below Article 19(1) TEU to
be certain that ‘the legislation is noticed’ and the basic proper of efficient judicial
safety pursuant to Article 47 of the Constitution of Elementary Rights. This assured
that the acts of EU missions involving seconded workers don’t escape judicial
assessment and guaranteeing compliance with EU legislation.

After 2016 no seconded workers to
an EU Mission has ever introduced a grievance primarily based on the Grand Chamber’s essential
ruling, Mr. Montanari is the primary applicant. Nevertheless, the landmark ruling of
the Grand Chamber has been utilized by analogy in subsequent circumstances (e.g., SatCen
v KF, Case C‑14/19 P, ECLI:EU:C:2020:492 and mentioned extensively
in literature as for instance right here
and right here.

Within the case at hand the Normal Courtroom
delved into the Mission’s jurisdictional arguments however dismissed them primarily based on
the H v Council et al judgment, accepting jurisdiction pursuant to
Articles 263, and 268 and 340 TFEU, ‘bearing in mind Article 19(1) TEU and Article
47 of the Constitution’ (see paras. 40-55 of the 
Judgment).

Moreover, it dismissed the
Mission’s place that the nationwide courts, right here the Italian courts, have
jurisdiction.  It agreed with the
applicant that his declare earlier than the EU Courtroom was not about his secondment by
the Italian Authorities however about alleged misconduct by the EU mission, alleged psychological
harassment by the Mission’s management. That’s the reason as in H’s case nationwide
courts would not have jurisdiction.

Authorized curiosity for annulment
of rejection of request for compensation

The applicant sought below
Articles 268 and 340 TFEU compensation for alleged injury ensuing from
psychological harassment and violations of the best to good administration and
the obligation to have regard to the welfare of officers.  Equally he sought the annulment of the
Mission’s determination rejecting his declare for compensation primarily based on Article 263
TFEU.

The Normal Courtroom clarified,
primarily based on its case legislation, that claims in search of annulment of the refusal of an EU
physique to grant compensation which a claimant additionally asserts below Articles 268
TFEU and 340 TFEU, should be dismissed as inadmissible. That’s the reason the Courtroom held
that the applicant had not justified a authorized curiosity in in search of, as well as
to his claims for compensation, the annulment of the Mission’s determination
rejecting his declare for compensation. Accordingly, the appliance for
annulment was dismissed as inadmissible. (paras. 58-66 of the Judgment)

Unsuccessful plea of
inadmissibility that sure acts are usually not attributable to the Mission

Mr. Montanari alleged not solely that
the EU Mission took selections in relation to him which constituted psychological
harassment, but additionally that the Mission’s Civilian Operations Commander (see
explanations on his or her position right here)
had breached the best to good administration and the obligation to have regard for
the welfare of officers when coping with his stories of psychological
harassment which he had made towards the Head and Deputy Head of Mission. The
Mission’s response to this was that Mr. Montanari had complained of actions or
inactions of the Civil Operations Commander which weren’t attributable to it.

The Normal Courtroom rejected this
and located that the applicant was proper to convey his motion for damages towards
the Mission additionally relating to the failings of the Civilian Operations Commander.

It is a right discovering because the
Civilian Operations Commander workout routines command and management of the Mission at
the strategic degree, and he ensures at theatre degree the right and efficient
implementation of the Council’s selections and people of the Political and
Safety Committee (PSC), see additionally right here.

Moreover, the Code of Conduct relevant
to seconded workers throughout EU missions establishes a selected grievance mechanism
directed to the Civilian Operations Commander for allegations of misconduct
towards a Head of Mission and their Deputy. On this context, it may be mentioned
that the actions or inactions of the Civilian Operations Commander successfully
characterize the actions and inactions of the Mission itself. (see paras. 67-87 of
the Judgment)

Applicability of EU Workers Rules
to disputes between secondees and EU missions

After having concluded that the
declare for compensation was admissible, the Normal Courtroom went on to assessment in
an elaborate method the deserves of the declare, analyzing intimately the
applicant’s allegations of psychological harassment and the failings of the
mission on this regard. (see paras.111-321 of the Judgement)

The Normal Courtroom emphasised
importantly that workers seconded to EU Missions by Member States, though not
ruled by the EU Workers Rules pursuant to Article 270 TFEU, are
nonetheless topic to the identical guidelines as these relevant to workers seconded by
the EU establishments, i.e. the EU Workers Rules. (para. 117 of the Judgment).
 It rightly dominated that the applicant should
profit from the identical degree and the identical guidelines of safety towards
psychological harassment.

‘By advantage of
the precept of equal remedy, the Normal Courtroom is required to use to the
applicant’s state of affairs, by analogy, the provisions of the Workers Rules
regarding psychological harassment and the practical safety of officers
and non permanent or contract workers and the case-law primarily based on these provisions’ (Para. 125 of the Judgement)

Additionally for the obligation to have regard
for the welfare of officers  the Normal Courtroom reiterated that

‘the precept
of equal remedy requires utility by analogy to the case of nationwide
workers seconded to a physique or company reminiscent of a Mission of
sure provisions of the Workers Rules and the case-law particular to the
matter of the European Union civil service, the place such workers are positioned in a
state of affairs corresponding to that of workers topic to the Workers Rules and the
distinction in state of affairs between the 2 can’t objectively justify the previous
not benefiting from the identical degree and guidelines of safety because the latter when
finishing up their duties within the theatre of operations.’ (Para. 224 of the
Judgement)

Following an intensive examination
of the information, reviewing the alleged infringements of Montanari’s rights as set
out inter alia within the EU Workers Rules and the EU Constitution (e.g., associated to
psychological harassment), bearing in mind the OPLAN and the Code of
Conduct in gentle of its settled case legislation on EU workers circumstances, the Normal Courtroom
partially dominated in favour of the applicant. It decided the matter because it
would have achieved in a typical EU civil service case, awarding him €6,000 for
non-material damages.

Conclusion

The Montanari Judgment
serves as a important reminder to the best ranges of the European Union (EU)
Missions, together with the Civilian Operations Commander that there’s a court docket
earlier than they will, and will, be held accountable for any actions or inactions
that contravene EU legislation. It highlights the EU judiciary’s position in guaranteeing
compliance and accountability inside EU Missions.

Furthermore, the Montanari Judgment
opens the door for the potential judicial assessment of any workers misconduct by or
towards a seconded workers member as set out within the Code of Conduct while in
the efficiency of their duties within the ‘theatre of operations’. Such case legislation
ensures that EU Missions and their workers function throughout the bounds of EU legislation,
reinforcing the rules of transparency and accountability which are
elementary to the efficient functioning of EU missions.

**Citations of findings of the
Normal Courtroom are unofficial translations.