Article 31 - Fair and just working conditions
Article 48 - Presumption of innocence and right of defence
Key facts of the case:
Appeal — Arbitration clause — Staff of EU international missions — Internal competition — Non-renewal of a contract of employment — Measure separable from the contract.
Outcome of the case:
In light of the foregoing, I propose that the Court of Justice should set aside in part the order of the General Court of the European Union of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), in so far as the General Court dismissed SC’s action on the ground that the third head of claim was inadmissible, and refer the case back to the General Court for a decision on the substance, the costs being reserved.
32) By application lodged on 25 April 2017, SC brought an action before the General Court, claiming that that Court should:
find that Eulex Kosovo infringed its contractual obligations in the performance of the contract and in the application of the OPLAN, CONOPS, SOP on Reconfiguration and Staff Selection, and the contractual principles of fairness and good faith;
65) By the second ground of appeal, alleging infringement of Article 272 TFEU, the right to an effective remedy under Article 47 of the Charter and the principle of equal treatment, SC contends that the General Court erred in law, in paragraphs 31, 37, 40, 42, 43, 45, 46 and 64 of the order under appeal, by failing to accept jurisdiction under Article 272 TFEU regarding the third head of claim as to the unlawfulness of the contested decisions, and to consider the merits of that claim. This ground of appeal is divided into three parts.
69) SC adds that the General Court’s approach is inconsistent with other case-law, ( 44 ) and leads to contract staff of CSDP missions being prevented from bringing the majority of employment disputes before the EU Courts. By foreclosing the only apparent avenue available to such staff for challenging decisions taken against them pursuant to Article 272 TFEU, the General Court’s approach infringes SC’s right to an effective remedy guaranteed by Article 47 of the Charter, along with the principle of equal treatment, in so far as the right to bring an action for annulment has been granted to seconded staff of CSDP missions. ( 45 )