Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 17 May 2023 (1)

Case C‑46/22 P

Liam Jenkinson

v

Council of the European Union,

European Commission,

European External Action Service (EEAS),

Eulex Kosovo

(Appeal – Arbitration clause – Staff of EU international missions – Consecutive fixed-term employment contracts – Claim that all contractual relationships should be re-categorised as a ‘contract of indefinite duration’ – National law applicable – Determination and application – Court acting of its own motion – Scope of review)

I.      Introduction

1.        The Court has already had to hear and determine the action brought by Mr Liam Jenkinson, seeking the re-categorisation as an employment contract of an indefinite duration (2) of the consecutive fixed-term contracts (3) of employment under which he discharged his duties for almost 20 years in three international missions established or extended by the European Union (4) in the context of its common foreign and security policy (CFSP), including, most recently, the Eulex Kosovo Mission, (5) as well as compensation for contractual and non-contractual damages.

2.        By judgment of 5 July 2018, Jenkinson v Council and Others, (6) the Court set aside the order of the General Court of the European Union of 9 November 2016, Jenkinson v Council and Others, (7) in which the latter had found, on the basis of Article 272 TFEU, that its jurisdiction was limited to the final FTC designating it as having jurisdiction and could not be extended to all the other FTCs concluded in connection with the three missions which provided for the jurisdiction of the Belgian courts.

3.        This appeal lodged by Mr Jenkinson against the judgment of 10 November 2021, Jenkinson v Council and Others, (8) which dismissed his action, offers the Court the opportunity to clarify the scope of its decision on the jurisdiction of the General Court where it is designated by an arbitration clause, in the light of the subject matter of the dispute, and the legal rules to which a contractual employment relationship is subject where the law applicable to that relationship was not chosen by the parties.

4.        In this employment law dispute, which is not an isolated case, as is shown by the proceedings pending before the General Court (9) or those which may be brought before the Belgian courts as jurisdiction is conferred on them in most of the contracts at issue, (10) it will also be necessary to determine under which conditions account must be taken of the specific context in which the employment was carried out, namely that of missions under the CFSP and, in particular, the Eulex Kosovo Mission, upon which legal capacity was bestowed from 12 June 2014.

5.        My analysis of the appeal will therefore focus primarily on questions relating to the jurisdiction of the General Court, its assessment of the legal rules applicable to contracts concluded specifically with that mission and the scope of the review which the Court will have to conduct into the General Court’s application of the national law in the context of this dispute based on Article 272 TFEU.

II.    Legal framework

A.      Joint Action 2008/124

6.        Article 1 of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo, (11) as amended up until Council Decision 2014/349/CFSP of 12 June 2014, (12) entitled ‘The mission’, provides, in paragraph 1 thereof:

‘The EU hereby establishes an European Union Rule of Law Mission in Kosovo, Eulex Kosovo (hereinafter Eulex Kosovo).’

7.        Article 2 of that joint action, entitled ‘Mission Statement’, provides:

‘Eulex Kosovo shall 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.

Eulex Kosovo, in full cooperation with the European Commission Assistance Programmes, shall fulfil its mandate through monitoring, mentoring and advising, while retaining certain executive responsibilities.’

8.        Article 9 of the Joint Action, 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 [European Union] institutions. Each Member State or [European Union] 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. [(13)]

…’

9.        Article 10 of the same joint action, entitled ‘Status of Eulex Kosovo and of its staff’, provides, in paragraph 3 thereof:

‘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. [(14)]’

B.      Rome I Regulation

10.      Article 3(5) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (15) provides:

‘The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles 10, 11 and 13.’

11.      Article 8 of that regulation provides:

‘1.      An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.

2.      To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.

3.      Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated.

4.      Where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply.’

III. Background to the dispute

12.      The background to the dispute is summarised in paragraphs 1 to 5 of the judgment under appeal:

‘1.      The applicant, Mr … Jenkinson, an Irish national, was first employed from 20 August 1994 to 5 June 2002 under various consecutive [FTCs] by the Monitor Mission to Yugoslavia, established by a Memorandum of Understanding signed at Belgrade on 13 July 1991, then known as the “European Community Monitoring Mission (ECMM)”, subsequently renamed the “European Union Monitoring Mission (EUMM)” by Council Joint Action 2000/811/CFSP of 22 December 2000 on the European Union Monitoring Mission (OJ 2000 L 328, p. 53). The mandate of the ECMM, and thereafter of the EUMM, was extended on several occasions, most recently by Council Joint Action 2006/867/CFSP of 30 November 2006 extending and amending the mandate of the European Union Monitoring Mission (EUMM) (OJ 2006 L 335, p. 48) until 31 December 2007.

2.      The applicant was then employed from 17 June 2002 to 31 December 2009 under consecutive FTCs by the European Union Police Mission in Bosnia and Herzegovina (“EUPM”), established by Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1). The mandate of the EUPM was extended on several occasions, most recently by Council Decision 2011/781/CFSP of 1 December 2011 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) (OJ 2011 L 319, p. 51) until 30 June 2012.

3.      Lastly, the applicant was employed by the Eulex Kosovo Mission from 5 April 2010 to 14 November 2014 under 11 consecutive FTCs, the first 9 of which were concluded with the Head of the Eulex Kosovo Mission and the last 2 with the mission itself (“the 11 FTCs”). [(16)] The Eulex Kosovo Mission was established by … Joint Action [2008/124]. It was extended on several occasions, in particular until 14 June 2016 by … Decision [2014/349].

4.      During the tenth FTC, concluded with the Eulex Kosovo Mission, covering the period from 15 June to 14 October 2014, the applicant was informed by letter of 26 June 2014 from the Head of the Eulex Kosovo Mission … that, following the decision to restructure the Eulex Kosovo Mission taken by the Member States on 24 June 2014, the post he had held since being hired by the mission would be abolished with effect from 14 November 2014 and that, consequently, his contract would not be renewed beyond that date. The eleventh and final FTC was thus concluded between the applicant and the Eulex Kosovo Mission for the period from 15 October to 14 November 2014 (“the final FTC”).

5.      With the exception of the final FTC, all the FTCs concluded by the applicant concerning his work in the Eulex Kosovo Mission contained a … clause conferring jurisdiction (17) on the Belgian courts. Article 21 of the final FTC contained an arbitration clause conferring jurisdiction on the EU Courts over any dispute relating to the contract, on the basis of Article 272 TFEU. [(18)]’ (19)

IV.    Procedure before the General Court and the Court

13.      By application lodged at the Registry of the General Court on 23 October 2015, Mr Jenkinson brought an action concerning, primarily, a claim, based on Article 272 TFEU, seeking, first, the re-categorisation of all his contractual relationships as a CID and compensation for the loss suffered by him as a result of the abusive use of consecutive FTCs and of his unfair dismissal and, second, a declaration that the Council of the European Union, the European Commission and the European External Action Service (EEAS) had treated him in a discriminatory manner and an order requiring them to pay compensation accordingly, and, in the alternative, a claim based on the non-contractual liability of the European institutions. (20)

14.      By order of 9 November 2016, Jenkinson v Council and Others, (21) the General Court stated that it manifestly lacked jurisdiction to rule on the two principal heads of claim and rejected, as manifestly inadmissible, the alternative head of claim. It therefore dismissed the action in its entirety and ordered Mr Jenkinson to pay the costs.

15.      By the judgment in Jenkinson I, the Court upheld the appeal lodged by Mr Jenkinson, referred the case back to the General Court and reserved the costs.

16.      The Court held that the General Court erred in law in stating, on the basis of Article 272 TFEU, that it manifestly lacked jurisdiction to rule on the principal heads of claim. It found that the General Court’s jurisdiction could be extended to the previous employment contracts conferring jurisdiction on the Brussels courts, on the condition that the application brought by Mr Jenkinson contains claims arising under the final FTC or which are directly connected with the obligations arising from that contract. In that regard, the Court held that the claims made by Mr Jenkinson require account to be taken of the effects of the previous employment contracts.

V.      The judgment under appeal

17.      After citing the claims made by Mr Jenkinson in paragraph 31 of the judgment under appeal, the General Court reproduced, in paragraph 38, the summary of those claims taken from the judgment in Jenkinson I, (22) in which it is stated that, ‘by application lodged at the Registry of the General Court on 23 October 2015, the appellant brought an action against the Council, the Commission, the EEAS and the Eulex Kosovo Mission, by which he claimed that [the General Court] should:

–        as a principal claim, re-categorise his contractual relationship as an “employment contract of an indefinite duration”, find that the defendants had infringed their contractual obligations, in particular, the obligation to give prior notice of termination of a [CID], find that his dismissal was unfair and, in consequence, order the defendants to pay compensation for the loss suffered as a result of the abusive use of consecutive FTCs, the infringement of the obligation to give prior notice, and unfair dismissal; [(23)]

–        as a principal claim, declare that the Council, the Commission and the EEAS discriminated against him during the period when he was engaged to work for the [three missions (24)], in so far as concerns his remuneration, his pension rights and other benefits, declare that he should have been recruited as a member of the temporary staff of one of the institutions and, in consequence, order them to pay compensation, [(25)] and

–        in the alternative, order the defendants, on the basis of non-contractual liability, to compensate the appellant for the harm resulting from their failure to comply with their obligations. [(26)]’

18.      By the judgment under appeal, the General Court dismissed the action in its entirety.

19.      As a preliminary point, the Court observed, in paragraph 45 of the judgment under appeal, that the action was not brought under Article 263 TFEU. (27) In paragraph 62 of that judgment, the Court took the view that, as regards the first head of claim, submitted as a principal claim, that action was brought under the arbitration clause conferring jurisdiction on the EU Courts contained in the final FTC and that, as regards the second head of claim, also submitted as a principal claim, and the third head of claim, submitted in the alternative, the action is an action for non-contractual liability brought under Articles 268 and 340 TFEU. (28)

20.      In paragraph 70 of the judgment under appeal, the General Court stated that it had jurisdiction to examine the three heads of claim.

21.      With regard to the second objection challenging the admissibility of the claims (29) raised by the defendants, the General Court recalled that the defendants contest that the facts, decisions and possible irregularities relied on by the applicant are attributable to them, (30) because (in the case of the Council, the EEAS and the Commission) they had no contractual relationship with the applicant or (in the case of Eulex Kosovo) it had no such relationship prior to 5 April 2010. The General Court took the view, in paragraphs 75, 76 and 78 of the judgment under appeal, that, in essence, that objection of inadmissibility is directed not against the action as a whole but only against the first head of claim, and that it is after the examination of the merits of that head of claim that it might be necessary, in the light of the law applicable to the dispute, to determine to what extent the demands made by the applicant under that head of claim are well founded vis-à-vis each of the defendants.

22.      With regard to the first head of claim for re-categorisation of the contractual relationship as a CID, the General Court, first, observed that the applicant is referring to all the consecutive FTCs which he concluded in connection with his work in the three missions. (31)

23.      Next, the General Court took the view that it was necessary to examine, ‘first of all’, the applicant’s claim based on the 11 FTCs concluded in relation to his work in the Eulex Kosovo Mission because, if that claim were dismissed, its dismissal would have a decisive effect vis-à-vis the examination of the series of FTCs concluded in the context of the first two missions. (32) Lastly, it found that, in the absence of specific rules laid down by the EU legislature (33) and of acts adopted following the establishment of the Eulex Kosovo Mission, (34) it must resolve the dispute on the basis of the substantive rules of the national law applicable and ensuring in particular, by means of an interpretation consistent with EU law, compliance with the general principle prohibiting abuse of rights arising from the use of consecutive fixed-term contracts or relationships. (35)

24.      In order to determine the law applicable to the dispute, the General Court decided to ‘use’ the Rome I Regulation and, in particular, Article 8 of that regulation regarding individual employment contracts. (36) So far as concerns the first nine FTCs, the General Court found, in paragraph 119 of the judgment under appeal, that the contracting parties chose, for the purpose of Article 8(1) of the Rome I Regulation, Irish law as the applicable national employment law, by means of a reference to Communication C(2009) 9502. (37)

25.      With regard to the tenth and eleventh FTCs, the General Court held, in paragraph 130 of that judgment, that those contracts were more closely connected, within the meaning of Article 8(4) of that regulation, with Irish law.

26.      On completion of its analysis, contained in paragraphs 152 to 186 of the judgment under appeal, of the application of the provisions of Irish law, (38) in the light of the case-law of the Court, to the facts of the case in question, the General Court held, in paragraphs 184, 187 and 188 of that judgment, that there were objective grounds, linked in particular to the temporary and ever-changing nature of the Eulex Kosovo Mission’s mandate, which justified offering to Mr Jenkinson the conclusion of the first FTCs as well as a final FTC for a period of one month, and that no abuse was committed in so doing.

27.      In paragraph 188 of the judgment under appeal, the General Court therefore dismissed all the claims for re-categorisation of the FTCs as a CID, including those relating to the FTCs concluded between Mr Jenkinson and the first two missions. (39)

28.      In the third sentence of paragraph 209 of the judgment under appeal, the General Court found that the claim for re-categorisation of the FTCs as a CID on the basis of an infringement of the requirements regarding the provision of information to the employee laid down in Section 8(2) of the 2003 Act (40) could not be upheld. Even though such infringement is duly claimed by Mr Jenkinson in the present case, (41) Irish law does not provide for such re-categorisation on the basis of just and equitable inferences. (42)

29.      In paragraph 215 of the judgment under appeal, the General Court dismissed as unfounded the claim for compensation in respect of all contractual loss. It thus observed, first, that the claim for compensation in respect of such loss made in the context of the first head of claim depends on the re-categorisation as a CID of the FTCs allegedly concluded abusively and in breach of the contractual formalities under Belgian or Irish law. (43) Second, it recalled that those arguments raised by the applicant had been rejected. (44)

30.      In paragraph 216 of that judgment, the General Court took the view that, given the dismissal of the first head of claim, there was no need to examine the objection of inadmissibility alleging that the facts, decisions and possible irregularities relied on by the applicant are not, in whole or in part, attributable to the defendants. (45)

31.      With regard to the second head of claim, relating to the claim for compensation in respect of non-contractual loss, also submitted as a principal claim, the General Court recalled that that head of claim is based on Articles 268 and 340 TFEU and seeks compensation from the Council, the Commission and the EEAS for non-contractual loss which Mr Jenkinson allegedly sustained as a result of the recruitment policy they adopted for international civilian staff in the missions. (46) In paragraph 237 of the judgment under appeal, the General Court found, without ruling on the inadmissibility raised by the Commission and the EEAS, (47) that Mr Jenkinson had not proven that there was a sufficiently serious breach of a rule of law intended to confer rights on him. In particular, it held, in paragraph 228 of that judgment, that it was on the basis of the provisions of primary law relating to the CFSP that the legislative provisions concerning the Eulex Kosovo Mission expressly established a legal basis allowing the Head of Mission, then the mission itself, to recruit international civilian staff on a contractual basis. In addition, in paragraph 230 of the judgment, the General Court ruled out discrimination between members of the contract staff arising from the application of different national laws. In paragraphs 231 and 233 of the same judgment, it also dismissed the arguments concerning unequal treatment in comparison with staff subject to the Conditions of Employment of Other Servants of the European Union, (48) finding that Mr Jenkinson had failed to demonstrate that, under EU law, he had a right to be employed in accordance with the rules of the CEOS (or equivalent). (49)

32.      With regard to the third head of claim, relating to the claim for non-contractual compensation, submitted in the alternative, it was dismissed by the General Court as manifestly inadmissible on the ground that it lacks clarity, (50) thereby upholding the defendants’ first objection of inadmissibility. (51)

VI.    Forms of order sought

33.      By his appeal, Mr Jenkinson claims that the Court should, primarily, set aside the judgment under appeal and dispose of the case and, in the alternative, refer the case back to the General Court. He also claims that the defendants should be ordered to pay the costs of both sets of proceedings.

34.      In support of his appeal, Mr Jenkinson puts forward six grounds of appeal, alleging (i) misinterpretation of the claims and pleas in that the General Court, inter alia, excluded from its review all principal claims based on a plea of illegality; (ii) an error of law in that the General Court exclusively analysed Mr Jenkinson’s last post in the Eulex Kosovo Mission; (iii) several errors of law made by the General Court in the examination of the merits of the demands made by him under the first head of claim; (iv) misapplication of the principle of equal treatment between staff members of the Union and infringement of Article 336 TFEU by excluding all non-contractual liability of the defendants; (v) errors of law made by the General Court by its rejection of the third head of claim as inadmissible; and (vi) an error in the statement of reasons concerning the costs.

35.      The Council, the Commission, the EEAS and Eulex Kosovo contend that the Court should dismiss the appeal and order Mr Jenkinson to pay the costs. (52) The first three defendants argue, primarily, that the action at first instance should be declared inadmissible. Eulex Kosovo contends that the appeal is partially unfounded and partially inadmissible.

VII. Analysis

36.      At the Court’s request, this Opinion will consider only the second ground of appeal and the first, third and fourth parts of the third ground of appeal.

A.      Preliminary remarks

37.      In view of the wealth of arguments put forward in support of this appeal, I consider it appropriate to recall the limits within which analysis of those arguments must be contained.

38.      First, in accordance with the second subparagraph of Article 256(1) TFEU, appeals before the Court of Justice against decisions given by the General Court are to concern ‘points of law only’. However, the Court of Justice can carry out a review in relation to certain factual grounds where a distortion of the facts or a substantive inaccuracy is pleaded or where there is a failure to state reasons. (53)

39.      Second, with regard to the General Court’s decision to join the objections of inadmissibility raised by the defendants to the substance, (54) that decision cannot be examined unless a cross-appeal is lodged. (55) In those circumstances, the admissibility of the action brought against the defendants would have to be examined only if the judgment under appeal were set aside. Nevertheless, account should be taken, first, of the judgment in Eulex Kosovo (56) as regards the first head of claim, inasmuch as it is directed against Eulex Kosovo. Second, consideration must also be given to the difference in subject matter between that head of claim and the two others, in so far as the latter are based on Articles 268 and 340 TFEU on the non-contractual liability of, inter alia, European Union institutions. (57)

40.      Third, in view of the requirements laid down in Article 169(2) of the Rules of Procedure of the Court, (58) it is necessary to set out those elements which are now common ground. This is the case as regards the characterisation of part of Mr Jenkinson’s action. Indeed, the finding made by the General Court, in paragraphs 41, 44 and 45 of the judgment under appeal, that the applicant has not brought an action for annulment of any measure whatsoever, an action based on Article 263 TFEU, (59) is in no way contested. The same is true of the finding that the applicant does not dispute the justification for the non-renewal of his contract and does not request his reinstatement. (60) In those circumstances, any criticism alleging the illegality of a measure, which presupposes, in addition, that that criticism has been put forward and substantiated by factual and legal arguments, is ineffective. (61) Furthermore, I note that criticism is not made in relation to paragraphs 140 to 146 and 198 to 200 of the judgment under appeal, which concern the substantive rules of Irish law applicable in the present case.

41.      Fourth , the lack of criticism of the General Court’s presentation of the demands made by Mr Jenkinson under the first head of claim, contained in paragraphs 31, 38 (62) and 54 of the judgment under appeal, as well as in the first sentence of paragraph 77, paragraph 85, the second sentence of paragraph 197 and the second sentence of paragraph 209 of that judgment, according to which the applicant’s claims for compensation are based on the re-categorisation of the FTCs as a CID or are made further to that re-categorisation, supports the view that only if the decision relating to a matter of employment law is set aside will compensation for the alleged contractual losses be examined. (63)

42.      It is therefore on the basis of all the foregoing that I will undertake my analysis of the grounds of appeal relating to the jurisdiction of the General Court and to the steps taken by the Court of its own motion in the context of Article 272 TFEU, under which the first head of claim was submitted.

B.      The second ground of appeal

1.      Arguments of the parties

43.      By his second ground of appeal, Mr Jenkinson submits that the General Court was wrong to consider, in paragraph 82 of the judgment under appeal, that the final contract was just one of the 11 FTCs signed with Eulex Kosovo Mission and not part of a longer contractual relationship. In Mr Jenkinson’s view, the General Court erred in law by finding that it had to establish the legality of those 11 FTCs before that of the first two series of FTCs, in which it was not designated as the court having jurisdiction.

44.      He claims that the jurisdiction of the General Court extends to all the FTCs for the purpose of ruling on the claim in the light of national law, and that that law required that the FTCs be examined in chronological order. In Mr Jenkinson’s opinion, the grounds stated in the judgment under appeal concerning the exclusion of the first 30 FTCs are insufficient, since they are based neither on Irish nor EU law. In addition, the failure to analyse the concept of ‘continuous employment with one or more employers’ or ‘associated employers’, within the meaning of Irish law, assuming it is applicable, negates the effect of paragraph 77 of the judgment under appeal and the interdependence between the question of identifying the employer (the European Union in the case of all the contracts) and the existence of a continuous employment relationship within the European Union, on the one hand, and the analysis of the re-categorisation of the FTCs as a CID, on the other. In that regard, in his reply, the appellant states that the Eulex Kosovo Mission does not have the same power of employment under the Treaties as the European Union (64) and that, in the case of the first two missions, the European Union bears liability because those missions have ceased to exist, as could be the case with a liquidator in the event of a company being wound up.

45.      The Council contends that the General Court did not err in law, having regard to paragraph 50 of the judgment in Jenkinson I and to the case-law cited in paragraphs 38 to 40 and 44 of that judgment, in taking the view, based on a strict interpretation of its jurisdiction, that only the 11 FTCs signed with the Eulex Kosovo Mission are directly connected with the final FTC designating the Courts of the European Union. It adds that the provisions of Irish law cannot be relied on against the General Court with view to determining its jurisdiction under Article 272 TFEU.

46.      The Commission states, first of all, that, in the absence of an arbitration clause conferring jurisdiction on the Court to rule on the FTCs concluded in the context of Mr Jenkinson’s work in the first two missions, the General Court was obliged, in accordance with paragraph 47 of the judgment in Jenkinson I, to begin by analysing the FTCs concluded with Eulex Kosovo with a view to assessing whether a single, continuous relationship existed, before deciding whether that relationship could be extended to the first two series of FTCs. Next, it is the Commission’s view that Mr Jenkinson’s arguments regarding paragraphs 77 and 232 of the judgment under appeal are based on a misreading of those paragraphs. Finally, the institution states that the appellant’s argument based on the concept of ‘associated employers’ is at odds with the argument which he raised in his earlier appeal, namely that the first two missions no longer exist as such. The Commission also contends that the arguments relating to the power of employment of the European Union, some of which are new arguments, are entirely unfounded in relation to Eulex Kosovo, since the judgment in Eulex Kosovo, and, by extension, to the other missions.

47.      The EEAS is of the view that this dispute is concerned solely with the contract concluded between Mr Jenkinson and the Eulex Kosovo Mission. In its opinion, this is apparent from paragraphs 47 and 48 of the judgment in Jenkinson I. The fact that Mr Jenkinson had been employed by two other missions is irrelevant. It is clear that, inasmuch as different missions are concerned, there is no continuity of employment.

48.      Eulex Kosovo considers that the attempt to establish a single, continuous employment relationship does not withstand examination of Mr Jenkinson’s three distinct periods of employment, and that Mr Jenkinson has raised, for the first time at the appeal stage, an argument regarding the concept of ‘associated employers’ in connection with the European Union. The Mission states, in addition, that any argument contradicting Decision 2014/349, (65) which affords it the legal capacity to conclude contracts and to be a party to judicial proceedings, and at odds with the judgment in Eulex Kosovo, which concerns its liability for all events occurring prior to 12 June 2014, is unfounded.

2.      Assessment

49.      The criticism raised by the second ground of appeal relates to paragraph 82 of the judgment under appeal, which reads thus: ‘therefore, since the final FTC is one of the 11 FTCs, which relate to the applicant’s work in the Eulex Kosovo Mission, it is appropriate, first of all, to examine the applicant’s claim that the 11 FTCs should be re-categorised as a single CID. If that claim is dismissed, the Court will not have jurisdiction to examine the claim for re-categorisation as a CID of the first two series of FTCs concluded by the applicant in the context of his work in the first two missions, referred to in paragraphs 1 and 2 above, [(66)] since those FTCs did not contain an arbitration clause conferring jurisdiction on the EU Courts’.

50.      Mr Jenkinson contests, in essence, the jurisdiction of the General Court being restricted to the final series of FTCs relating to his work in the Eulex Kosovo Mission, whereas the application of national law should have led the General Court to take into account all the contracts concluded, regardless of the mission to which he had been assigned, in order to give a ruling on the first head of claim.

51.      In the first place, I note that the reasoning attacked appears in the section of the judgment under appeal given over to examining the substance of the ‘claim for re-categorisation of the consecutive FTCs as a single CID’, (67) after the General Court ruled on its jurisdiction in paragraphs 64 to 66 of that judgment, as it reiterates in paragraph 81 of the judgment. In paragraphs 64 to 66 of the judgment under appeal, (68) the General Court reproduced the wording of the Court’s decision in the judgment in Jenkinson I and found that its jurisdiction covers all claims arising from the final FTC or which are directly connected with the obligations flowing from that contract.

52.      In the second place, with regard to the scope of that decision, I would observe that:

–        in accordance with settled case-law of the Court, to which reference is made in paragraph 39 of the judgment in Jenkinson I, the assessment by the General Court of its jurisdiction under an arbitration clause entered into pursuant to Article 272 TFEU is to be made without reference to the national law applicable and without it being necessary to classify the contract as a contract governed by public or private law;

–        the Court, having observed, in paragraph 38 of that judgment, that ‘the jurisdiction of the General Court, which is based on an arbitration clause, derogates from the ordinary rules of law and must, therefore, be given a restrictive interpretation’, decided, in paragraph 45 of the judgment, that the General Court’s jurisdiction ‘may extend to the previous employment contracts conferring jurisdiction on the Brussels courts, [(69)] on condition that the application brought by Mr Jenkinson contains claims arising under the final FTC or which are directly connected with the obligations arising from that contract’; and

–        having specified which verifications fell to the General Court to undertake, (70) the Court took into consideration Mr Jenkinson’s claims, (71) found that ‘the action … contains claims which also arise under the final FTC’ (72) and inferred from that that the General Court erred in law by finding that it manifestly lacked jurisdiction ‘because the claims made by Mr Jenkinson require account to be taken of the effects of the previous employment contracts’. (73)

53.      It is therefore my view, first, that it follows specifically from the last ground set out above that the Court paid particular attention to the subject matter of the claim, namely the re-categorisation of various FTCs as a CID, in so far as such a claim requires that a single court is designated as the court having jurisdiction to examine those contracts as a whole. Second, in the absence of any reservation set out by the Court, it cannot be inferred from the reference to the judgment of 1 July 1982, Porta v Commission, (74) in paragraph 44 of the judgment in Jenkinson I, that the Court intended to restrict its decision to the final series of FTCs concluded in connection with the Eulex Kosovo Mission or that certain criteria – such as a contractual relationship with a single employer, the non-interruption of that relationship, or even the unwillingness to bring the dispute before a particular court – are decisive factors. (75)

54.      I am therefore of the view that the General Court was right to find that it had jurisdiction to examine the demands made under the first head of claim, taking into account all the employment contracts. (76)

55.      In the third place, it must be observed that, when examining the substance of claims, a court performs a role separate from that performed by it when ruling on its jurisdiction; those two roles have distinct bases. (77) The judgment in Jenkinson I, which concerns the jurisdiction of the General Court, therefore has no bearing in this regard.

56.      For the purpose of assessing the merits of the claim for re-categorisation as a CID of the FTCs concluded in connection with three different missions, over three non-continuous periods of time, the General Court was entitled, in my view, without erring in law, to decide to begin its assessment with the series of 11 FTCs, including the contract containing the arbitration clause designating it as the court having jurisdiction, having made the point that only the contractual link between the Eulex Kosovo Mission and the applicant was uncontested (78) and having found that the assessment of the involvement of each of the defendants in the employment law proceedings brought before it was dependent upon the applicable law. (79)

57.      Similarly, it is my view that the General Court, hearing the claims for re-categorisation of various FTCs and for compensation for contractual losses directed against several defendants without distinction between them according to their capacity vis-à-vis the conclusion of the various contracts, (80) could legitimately undertake a two-stage analysis. (81) Given the referral of the matter to it on the basis of Article 272 TFEU and the facts and evidence submitted for its assessment by Mr Jenkinson, the General Court was entitled to establish, as a preliminary stage, on the basis of the contractual relationship with Eulex Kosovo, the criteria for determining the law governing the FTCs concluded in the context of that mission, in order to be able to rule on the claim, applying the conditions laid down in that law. (82)

58.      However, within the scope of the examination thus defined, in paragraph 82 of the judgment under appeal, the General Court wrongly held, in my view, given the subject matter of the claim submitted for its assessment, that it would not be required to take into consideration all the contracts if the claim was rejected solely on the basis of the contracts between Mr Jenkinson and Eulex Kosovo.

59.      First, the criteria established to determine the law governing the final series of FTCs had to be applied to the contracts connected with the first two missions. Second, only on completion of the second stage of its analysis, which concentrated on setting out the conditions laid down in that law, on the basis of which the claim for re-categorisation can be granted or not, was it possible to justify the impact of that assessment concerning the FTCs concluded in the context of one mission on those concluded in connection with each of the other two missions, taking into consideration the limits of the applicant’s arguments in that regard. Third, a ground cannot be based on the jurisdiction of the General Court, lest it contradict those stated in the judgment in Jenkinson I, with which the General Court complied. (83) Specifically, the fact that its jurisdiction is based on claims arising from the final FTC does not prohibit the General Court from finding, on the merits, that there are no connections between the various FTCs which would allow them to be re-categorised as a CID.

60.      However, it would appear to me that the ground set out in paragraph 82 of the judgment under appeal must be read in the light of those related to the application of the law governing the employment contracts, (84) and that that premature conclusion reached by the General Court cannot cause the judgment to be set aside.

61.      I therefore propose that the Court hold that, even though the General Court’s decision on its jurisdiction was flawed, it correctly held that the grounds for dismissal of the claim for re-categorisation as a CID of the FTCs concluded in connection with the Eulex Kosovo Mission, laid down in the law applicable, which fell to it to determine, could be extended to the FTCs connected with the two other missions, which would have the effect of rejecting the claim relating to all the contractual relationships. (85) The second ground of appeal cannot therefore be upheld.

C.      The first part of the third ground of appeal

1.      Arguments of the parties

62.      By the first part of the third ground of appeal, Mr Jenkinson criticises the General Court’s failure to draw conclusions from the finding, made in paragraph 92 of the judgment under appeal, that the ‘European institutions’ failed to comply with Article 336 TFEU.

63.      He also criticises the General Court for failing to examine, if necessary of its own motion, the question of the inapplicability of Communication C(2009) 9502, even though it found that the conditions of employment included in that communication were not decided upon in accordance with Article 336 TFEU. The same is true as regards the question of a breach of the Financial Regulation.

64.      In addition, Mr Jenkinson points to the lack of rules on the determination of the substantive law applicable to a contract concluded in the name of the European Union, even though, first, all staff of the European Union are required to conclude such a contract and that contract is identifiable under a provision of the CEOS and identical for all categories of employees. In addition, in paragraph 95 of the judgment under appeal, the General Court expressly identified the applicant as one of the ‘other servants of the European Union’ in excluding the application of the European Code of Good Administrative Behaviour of the European Ombudsman. Second, the international contract staff of the body created by Eulex Kosovo, the Registry-Kosovo Specialist Chambers, is subject to a single body of substantive rules of law.

65.      Furthermore, he claims that the EU legislature did not envisage the Rome I Regulation being applicable to a dispute governed by public law, such as that in the present case. That regulation applies to disputes relating to contracts governed by private law, even though, by combining Articles 270 and 336 TFEU, that legislature provided that the Court of Justice of the European Union has jurisdiction to ascertain compliance with the obligations arising from the employment of a member of staff of the European Union.

66.      The Commission, the EEAS and Eulex Kosovo contend that the arguments alleging a potential infringement of Article 336 TFEU and the inapplicability of Communication C(2009) 9502 were not presented at first instance. The Council and the Commission are of the view that, in paragraph 92 of the judgment under appeal, the General Court simply held that the EU legislature had not adopted rules regulating the conditions of employment of the contract staff of the missions.

67.      The Council and the EEAS contend that the institutions of the European Union were not required to adopt such rules. The provisions of primary law specifically relating to the CFSP which form the basis of the legislative provisions concerning the Eulex Kosovo Mission constitute a legal basis allowing the Head of that mission, and then the Mission itself, to recruit international civilian staff on a contractual basis in line with the Mission’s needs. In that regard, the Commission observes that the Court held, in the judgment in Eulex Kosovo, that the Eulex Mission bears exclusive liability.

68.      Eulex Kosovo states that the reference to the ‘Kosovo Specialist Chambers’ is ineffective, because that judicial body is not comparable to a diplomatic mission such as Eulex Kosovo.

69.      With regard to the Financial Regulation, the Council contends that the General Court was entitled to refrain from analysing it, since it is unconnected with the question as to whether the Staff Regulations of Officials of the European Union or the CEOS had to apply to the contractual relationship between Mr Jenkinson and the Eulex Kosovo Mission. The Commission states that the reliance on that regulation lacks precision and that the General Court is not obliged to raise of its own motion an illegality such as that relied on by the applicant. (86)

70.      With regard to the complaint alleging the inapplicability of the Rome I Regulation, the Commission argues that that complaint is manifestly unfounded because, first, Mr Jenkinson does not contest paragraphs 103 and 104 of the judgment under appeal and, second, the complaint is inconsistent with other parts of his application and his appeal. Eulex Kosovo considers this argument to be inadmissible because it is raised belatedly and it is at odds with his initial claim, by which he sought the application of Belgian law.

2.      Assessment

71.      Having set out the arguments in support of this first part of the third ground of appeal, Mr Jenkinson concludes that ‘the view must therefore be taken that the [General Court] could not lawfully exclude any liability on the part of the institutions and regard the employment relationship at the Eulex Kosovo Mission and at any other mission as lawful, without at any point analysing the conclusions that must be drawn from the finding made by it in paragraph 92 of the judgment under appeal’.

72.      That criticism is ill founded. First, it must be recalled that the criticism refers to paragraphs 92 and 95 of the judgment under appeal, which form part of the preliminary observations made by the General Court, after it summarised, in paragraphs 84 to 89, the arguments of the parties concerning the determination of the law applicable to the 11 FTCs concluded in connection with the Eulex Kosovo Mission.

73.      The latter paragraphs were not challenged in the appeal. It is therefore common ground that Mr Jenkinson’s arguments were solely based on rules of national law, in particular the Belgian law applicable in his view pursuant to the Rome I Regulation, (87) and, therefore, a provision of primary law, the FEU Treaty or the CEOS was not relied on. (88)

74.      Second, the fact that the first head of claim examined by the General Court in that part of the judgment under appeal is concerned with the re-categorisation of the FTCs and is based on Article 272 TFEU means that any argument concerning the illegality of any measure whatsoever or of the contractual relationship, which could be relied only in support of the second head of claim, must be dismissed. (89) Thus, there is justification for the reasons stated for that judgment being focussed on establishing the basis of the rules applicable to the dispute.

75.      Third, Mr Jenkinson’s criticism of paragraph 92 of the judgment under appeal is based on a misreading of that paragraph. In that paragraph and in paragraph 93, the General Court addresses the arguments raised by the EEAS and Eulex Kosovo, according to which an autonomous law applies to the contracts concluded with members of the contract staff. (90) In paragraph 94 of that judgment it rejected that argument, drawing conclusions from the finding that a specific provision had not been adopted by the EU legislature under primary law, in particular Article 336 TFEU, or in the acts adopted following the establishment of the Eulex Kosovo Mission.

76.      Fourth, Mr Jenkinson is wrong to claim, on the basis of a misreading of paragraph 95 of the judgment under appeal, that the General Court ‘identified [him] … as “one of the other servants of the European Union”’.

77.      As regards the criticism concerning the applicability of the Rome I Regulation, since the appeal does not cover paragraphs 103 and 104 of the judgment under appeal, the paragraphs devoted to that matter, it appears to me that the criticism must be understood, in essence, as being concerned with the application solely of rules of private law to the contracts of international staff without sufficient justification, since Mr Jenkinson claimed to be covered by the rules of the CEOS (or equivalent). (91)

78.      In an employment law dispute, the employer must be identified and the rules governing the legal situation in question classified before determining the applicable law. (92)

79.      The question of the identification of the employer was settled by the Court in its judgment in Eulex Kosovo. A request for a preliminary ruling had been made to the Court (93) by the tribunal du travail francophone de Bruxelles (Brussels Labour Court (French-speaking), Belgium) (94) in the context of an employment law dispute between 45 members or former members of the international civilian staff of Eulex Kosovo and the Head of Mission, in particular, concerning changes to their working conditions and, for some of them, the non-renewal of their contracts of employment. (95) Those members of staff had been recruited on the basis of FTCs identical to those concluded with Mr Jenkinson, in particular as regards the choice of the courts having jurisdiction. (96) The question referred for a preliminary ruling concerned the identification of the entity responsible for implementing the Eulex Kosovo Mission before 12 June 2014 and, therefore, the entity having standing as a defendant in the action in the main proceedings. (97)

80.      The Court held, first, that it follows from the legal capacity conferred on Eulex Kosovo by Article 15a of Joint Action 2008/124 (98) that, even before 15 June 2014, that entity was responsible for the implementation of the mission entrusted to it (99) and, second, that Article 16(5) of that joint action must be interpreted as meaning that it subrogated Eulex Kosovo to the rights and obligations of the person or persons previously responsible for the implementation of the mission. (100)

81.      The Court held that ‘Article 16(5) of Joint Action 2008/124 … must be interpreted as meaning that, starting from 15 June 2014, it designates Eulex Kosovo as responsible and therefore as defendant in any action relating to the consequences of the implementation of the mission entrusted to it, irrespective of whether the facts underlying such an action occurred before 12 June 2014, the date when Decision 2014/349 entered into force’. (101)

82.      On the question of the classification of the rules governing the legal situation in question in which there is a contract between international staff and Eulex Kosovo, with a view to determining the applicable law, it must be recalled, first of all, that the rights and obligations of the international staff of Eulex Kosovo are determined contractually pursuant to Article 10(3) of Joint Action 2008/124. (102) The finding made by the General Court in paragraph 116 of the judgment under appeal (103) has no bearing on the context of the legal relationship at issue here. That relationship is not of a statutory nature. (104) Next, the Court held that the Staff Regulations of Officials of the European Union and the CEOS ‘do not constitute an exhaustive body of rules prohibiting the employment of persons otherwise than with the framework of those rules’. (105) Lastly, Mr Jenkinson performed technical duties. (106)

83.      Since the General Court was seised pursuant to an arbitration clause contained, in accordance with Article 272 TFEU, in a contract which does not specify the substantive law (107) or the mandatory rules (108) applicable, the General Court rightly decided, in view of the context of the dispute and its subject matter, that that dispute must be resolved on the basis of the substantive rules of the national law applicable, (109) which had to be determined according to the rules of employment law (110) governing private law contracts.

84.      In those circumstances, the General Court rightly referred, in paragraph 103 of the judgment under appeal, to the rules of private international law (111) and, specifically, to the Rome I Regulation applicable in contractual matters. (112)

85.      For contracts concluded from 17 December 2009 onwards, the Rome I Regulation sets out the rules for determining the national law applicable to contractual obligations in civil and commercial matters (113) in an international context. (114) Article 8 of that regulation lays down specific rules applicable to individual employment contracts, rules which differ depending on whether or not the parties chose the law applicable to the contract between them.

86.      I therefore propose that the Court hold that the reasons stated in paragraphs 92, 99, 102, 103 and 108 of the judgment under appeal explain why the General Court, which had found no autonomous law to be applicable (115) to the employment law dispute brought before it concerning the FTCs concluded by Mr Jenkinson with Eulex Kosovo, took the view that that dispute is subject to rules of private law. Accordingly, the General Court was right to refer to Article 8 of the Rome I Regulation and, specifically, given the absence of a contractual provision, to paragraphs 2 to 4 thereof. (116)

87.      I therefore consider the first part of the third ground of appeal to be unfounded.

D.      The third part of the third ground of appeal

1.      Arguments of the parties

88.      By the third part of the third ground of appeal, Mr Jenkinson alleges that the General Court incorrectly determined the law applicable to the contractual relationship.

89.      As a preliminary point, first, he states that the application of the Rome I Regulation ‘illustrates the complete lack of foreseeability and of legal certainty of the framework for employment … [of the] international contract staff working at the Missions established by the European Union’.

90.      Second, he claims that the General Court disregarded the fact that Eulex Kosovo also had an establishment located in Brussels (Belgium) which it decided to exclude from the application of Article 8(2) and (3) of the Rome I Regulation.

91.      In addition, in paragraph 111 of the judgment under appeal, the General Court decided, without providing a specific statement of reasons and incorrectly, to begin its analysis with the first nine contracts concluded with the Head of the Eulex Kosovo Mission. (117)

92.      With regard to the determination of the law applicable to the final two FTCs, Mr Jenkinson alleges that the General Court failed, in paragraph 126 of the judgment under appeal, to take into account the fact that those contracts did not specify the conditions of employment or the rights and obligations of the international staff. In that paragraph, the General Court came to a manifestly erroneous decision as to the intention of the parties and the informed and full nature of their consent. The parties never envisaged making their contractual relationship subject to Irish law, especially since Eulex Kosovo relied on the application of ‘sui generis law’. Mr Jenkinson also claims that the General Court disregarded the intention of the parties to remove, in the more recent contracts, the reference to Communication C(2009) 9502 with a view to amending the law applicable. The General Court’s decision in paragraph 130 of the judgment under appeal, based on the existence of closer connections with Irish law, is erroneous because the General Court confined its assessment to Eulex Kosovo, without having first analysed the potential status of the European Union institutions as co-employers. Moreover, the General Court analysed neither the legal framework for the employment of the contract staff of the missions in its entirety, nor the functional links between the Eulex Kosovo Mission and Brussels and the institutions which regulate its activities. Mr Jenkinson thus alleges that the General Court failed to explain why it decided to dispense with the application of Belgian law and not to state the reasons for its decision in the light of European case-law.

93.      As regards the determination of the law applicable to the first nine FTCs, Mr Jenkinson criticises the General Court’s decision, in paragraph 113 of the judgment under appeal, that Communication C(2009) 9502 could be relied on against him. The General Court disregarded the case-law on the enforceability of contractual terms against the weaker party to a contract and the EU law on the validity of general terms and conditions unilaterally drawn up by an undertaking ‘which are regarded as “pre-formulated standard contract”’. (118)

94.      In addition, that communication was specifically analysed in paragraphs 116 to 119 of the judgment under appeal without consideration being given to the concept of vitiated consent, which must be assessed in accordance with the law applicable to the contract pursuant to Articles 10, 11 and 12 of the Rome I Regulation. Mr Jenkinson claims that, in paragraph 112 of the judgment under appeal, the General Court erroneously extrapolated his intention vis-à-vis the designation of the place of origin.

95.      Lastly, relying on a failure to adjudicate, Mr Jenkinson claims that the General Court did not apply the criterion set out in Article 8(1) of the Rome I Regulation to ascertain whether the parties had not waived observance of the more favourable or public policy provisions laid down in Belgian law, in the absence of a framework similar to the CEOS. Similarly, the General Court should have applied the rules of the lex fori, including principles identified as ‘overriding mandatory provisions’ within the meaning of Article 9 of that regulation. By excluding the application of ‘principles of European law’, the General Court infringed the scope of the Regulation.

96.      The Council contends, first, that the General Court’s application of the Rome I Regulation is the consequence of that court’s jurisdiction under an arbitration clause, which requires that it settle the dispute on the basis of the law applicable to the contract. In its opinion, the order in which the FTCs are examined has no bearing on the end result of the General Court’s analysis. Next, it argues that purpose of the examination conducted by the General Court in paragraphs 126 to 128 of the judgment under appeal was to determine whether the parties had designated the applicable employment law and not a breach of the rules governing the contracts. It further maintains that, in the analysis of the first head of claim, the General Court could rely only on the contracts actually concluded by the parties between themselves and not with other hypothetical employers. Moreover, it states that the grounds relating to the application of Irish law, including the ground concerning the enforceability of Communication C(2009) 9502, in the absence of informed and valid consent about its consequences, fall within the scope of the assessment of the facts, which is not amenable to review by the Court in the context of the appeal. Lastly, the Council points out that ‘principles of European law’ do not number amongst the categories of provisions referred to in the second sentence of Article 8(1) or Article 9 of the Rome I Regulation.

97.      The Commission contends that three arguments are inadmissible: the argument alleging a failure to comply with the case-law of the Court because it is not substantiated, and those alleging that there is an establishment of the Eulex Kosovo Mission in Brussels, and that Belgian law is applicable as it constitutes overriding mandatory provisions as they were not raised at first instance.

98.      In the Commission’s opinion, the existence of a continuous employment relationship with Eulex Kosovo justified taking into account the intentions of the parties, as expressed throughout that relationship. Therefore, the two-stage examination of the FTCs is not open to challenge and any consideration related to the analysis of the General Court’s jurisdiction is irrelevant.

99.      As regards the determination of the law applicable to the final two FTCs, the argument alleging that account was not taken of the fact that those contracts do not contain a reference to Communication C(2009) 9502 is ineffective, since the General Court established that those contracts are more closely connected with Irish law.

100. The Commission argues that, in any case, in a contractual dispute, the employer could only be the person identified in the contract, namely Eulex Kosovo.

101. In its opinion, the General Court did not have to provide specific reasons for its decision that Belgian law is inapplicable, since its inapplicability clearly follows from that court’s decision to apply Irish law.

102. As for the determination of the law applicable to the first nine FTCs, the Commission contends that in paragraphs 194 and 195 of the judgment under appeal the General Court ruled on the complaint concerning vitiated consent alleged by Mr Jenkinson in relation to Communication C(2009) 9502. In that regard, given the repeated reference to that communication in nine FTCs and the continuity of his employment relationship up until the final two FTCs, Mr Jenkinson could not have regarded Irish law as not applying to that relationship.

103. The complaint based on the application of mandatory provisions that cannot be derogated from is manifestly unfounded because the appellant relies on a ‘framework similar to the CEOS’ which, in his opinion, should have been adopted on the basis of Article 336 TFEU.

104. In addition, the Commission considers that, since the parties had expressed a choice, the General Court did not have to determine which law would be applied to the contract if the parties had not allegedly chosen to apply Irish law or the public policy provisions applicable in the absence of a choice being made. As far as concerns the application of EU law, this is a manifestly unfounded argument because the dispute had to be settled pursuant to the substantive rules of the national law applicable, the implementation of which encompasses the principles of EU law.

105. Eulex Kosovo argues that it never envisaged applying Belgian law and that it is headquartered in Pristina (Kosovo). Mr Jenkinson fails to explain how Belgian law was applicable to him, even though, as the General Court found, he is an Irish national, he resides in Ireland and he was informed of the application of Irish law by the reference in his contracts to Communication C(2009) 9502, which constitutes the expression of the common intention of the parties. Furthermore, Mr Jenkinson relied on that communication, seeking the reimbursement of his travel expenses to his place of residence in Ireland. Eulex Kosovo argues that, in paragraphs 191 to 195 of the judgment under appeal, the General Court found that Mr Jenkinson was fully aware of his conditions of employment and that there was no justification for him claiming that there was a lack of foreseeability or legal certainty in relation to his contractual relationship, given the information provided to him prior to his employment.

106. In relation to the final two FTCs, Eulex Kosovo argues that the General Court was right to find there to be a continuous employment relationship and that Mr Jenkinson continues to argue that there are closer connections with Belgium despite his nationality, his place of work and his place of recruitment.

107. As regards any limits on the application of substantive rules of national law in addition to EU law, Eulex Kosovo argues that the judgment of 13 July 2002, JC v EUCAP Somalia, (119) confirms the approach adopted by the General Court, namely that the application of national law is justified inter alia where the contract does not allow all aspects of the dispute to be settled.

2.      Assessment

108. Mr Jenkinson contests the findings reached by the General Court to conclude that Irish law was applicable to his contractual relationship with Eulex Kosovo.

109. Three factors limit the scope of that criticism. In the first place, I note that the reasons challenged follow on from the General Court’s decision to restrict the examination of the contractual relationship to the 11 FTCs concluded in connection with the Eulex Kosovo, (120) its finding that there is no term in the contract concerning the re-categorisation of contracts which would allow the dispute to be resolved, (121) its decision to refer to the substantive rules of national law applicable to the contract, which include the protective provisions of EU law, (122) and the observation that, where that law lacks precision, the provisions of the Rome I Regulation will have to be used (123) to be able to rule on the claim for re-categorisation brought before it. For the reasons that I have set out in points 71 to 86 of this Opinion relating to the analysis of the first part of the third ground of appeal, it is my view that any criticism based on an alleged European framework for employment that must be applied is unfounded.

110. In the second place, it must be observed that the analysis of the designation of the law applicable to the contracts is based on considerations of fact that fall outside the scope of the Court’s review, save where some distortion of the facts is pleaded, which is not the case here. I am therefore of the view that the criticisms concerning the reference in the first nine FTCs to Communication C(2009) 9502 (paragraph 112 of the judgment under appeal), the ability to rely on that communication (paragraph 113 of that judgment) and the finding as to the common intention of the parties (paragraph 115 of the judgment) must be rejected as ineffective. Accordingly, it follows from those findings that Mr Jenkinson was fully aware of his conditions of employment. There is therefore no justification for him claiming a lack of foreseeability or legal certainty in his contractual relationship. Furthermore, in paragraphs 120 to 124 of the judgment under appeal, which are not contested by the appeal, the General Court set out the facts relevant to the appellant’s situation, from which it determined, on the basis of the provisions of paragraph 4a of Communication C(2009) 9502, that Irish law was applicable.

111. Similarly, with regard to the final two FTCs concluded by Mr Jenkinson, a distortion of facts is not pleaded in relation to the General Court’s findings that the parties did not chose the law applicable under those contracts. (124) In those circumstances, the General Court rightly sought to establish on the basis of which criteria laid down in Article 8(2) to (4) of the Rome I Regulation the applicable law can be determined. (125) As regards the connecting factor provided for in paragraph 2 of that article, namely the place of performance of the employment contract, the General Court rightly examined it as a priority, (126) since that criterion satisfies the general requirement of the foreseeability of the law and therefore that of legal certainty in contractual relationships. (127) This also means that Mr Jenkinson’s criticism concerning the Rome I Regulation must be dismissed in the light of those requirements.

112. In the third place, the applicability of Kosovan law, rejected by the General Court, is not open to challenge by Mr Jenkinson because its non-applicability is consistent with its analysis. (128) The same is true of the application of the criterion laid down in Article 8(4) of the Rome I Regulation, namely that of closer connections with another Member State. The General Court’s findings regarding the continuity of employment over the course of the 11 FTCs are based inter alia on clarifications provided by Mr Jenkinson in relation to the tasks performed by him (129) and on the account taken of his accumulated seniority in the course of the 11 FTCs and of his coverage under the social security, pension and tax schemes associated with the performance of his contracts. (130)

113. In those circumstances, it is my view that, in essence, Mr Jenkinson requests that the Court exercise its power of review into the conditions for application of Article 8(4) of the Rome I Regulation and into the criteria capable of establishing the existence of closer connections for the purposes of that provision.

114. First, with regard to the conditions for implementing Article 8(4) of that regulation, a requirement of which is that there are circumstances on the basis of which the law determined according to paragraphs 2 of 3 of that article can be rejected, it appears to me that those conditions can be interpreted, in line with the objective of that provision of protecting the employee, (131) as also covering the situation in which there is no legal provision laid down in the law governing the employment contract that can be applied to the dispute. The General Court did not therefore err in law in seeking to determine with which country the FTCs had closer connections.

115. Second, as regards the connecting factor chosen by the EU legislature, that factor must be interpreted as demonstrating an intention to give preference to a criterion of proximity rather than of seeking the law most favourable to the employee. (132) The arguments raised by Mr Jenkinson based on the obligation to apply the law that is more favourable to him are therefore unfounded.

116. With regard, more specifically, to the method of assessing the existence of closer connections with a country, the Court has held that the court in question must conduct a comprehensive assessment of all the objective elements defining the contractual relationship and single out one or more as being, in its view, the most significant. The number of such elements is irrelevant. (133)

117. The Court has explained that, ‘among the significant factors suggestive of a connection with a particular country, account should be taken in particular of the country in which the employee pays taxes on the income from his activity and the country in which he is covered by a social security scheme and pension, sickness insurance and invalidity schemes. In addition, the national court must also take account of all the circumstances of the case, such as the parameters relating to salary determination and other working conditions’. (134)

118. Thus, it is clear from the case-law of the Court that the General Court did not manifestly err in law in the choice of the connecting factors which it examines in paragraphs 131 to 135 of the judgment under appeal or in taking into account the employment relationship as a whole in paragraphs 136 to 139 of that judgment. (135)

119. Furthermore, in order for the appellant’s arguments to be examined, arguments based on, in turn, Articles 9, 10, 11 and 12 of the Rome I Regulation, they must be substantiated in law and in fact, in support of the criticism of the paragraphs concerned by the third part of the third ground of appeal, (136) which is manifestly not the case.

120. I therefore propose that the Court hold that the General Court could decide, by a reasoned decision based on its findings, in paragraph 139 of the judgment under appeal, that Irish law was applicable, without it therefore having to address in detail the applicant’s arguments regarding the applicability of Belgian law, upon which he had initially relied. (137)

121. I am therefore of the view that the third part of the third ground of appeal is unfounded.

E.      The fourth part of the third ground of appeal

1.      Arguments of the parties

122. By the fourth part of the third ground of appeal, Mr Jenkinson alleges that the General Court distorted Irish law and made a manifest error in the interpretation and application of Section 9 of the 2003 Act to justify the use of consecutive FTCs.

123. In the first place, Mr Jenkinson relies on an error made by the General Court in the examination carried out in paragraph 153 of the judgment under appeal because that court failed to take into consideration, starting with its analysis of the demands made under the first head of claim, all the FTCs at the three missions, applying the concept of ‘associated employers’. That is a crucial concept under Irish law.

124. In the second place, with regard to the choice of the type of contract, the General Court erred in law, in paragraph 151 of the judgment under appeal, because the Council alone has the power to determine the conditions of employment and Communication C(2009) 9502 specifies the type of contract according to the type of functions concerned.

125. In the third place, as regards the analysis of the legitimate objective pursued by the Eulex Kosovo Mission which justifies the consecutive FTCs, Mr Jenkinson submits that, in paragraphs 152, 154 and 155 of the judgment under appeal, the General Court should have applied Irish – not European – case-law. In that regard, in Mr Jenkinson’s opinion, the case-law cited by Eulex Kosovo (138) is irrelevant because it concerns a person ‘employed by the same organisation in a series of different posts’, whereas he held the same post under all 21 FTCs. The General Court thus limited the protection afforded to employees by Irish law.

126. In that regard, first, according to Mr Jenkinson, in paragraph 156 of the judgment under appeal, the General Court wrongly and without explanation limited the analysis of the objective grounds justifying the use of consecutive FTCs to the ‘temporary nature’ of the Mission. That analysis is manifestly inconsistent with the Irish case-law, upon which he had relied. Having asserted that, under Irish law, the objective grounds legitimising the use of consecutive FTCs are to be interpreted strictly, Mr Jenkinson criticises in turn each of the criteria used by the General Court in paragraphs 157 to 175 of the judgment under appeal.

127. With regard to the duration of the mandates, (139) the General Court should have taken into account the nature of the work performed by Mr Jenkinson, which met fixed and lasting needs of the employer, rather than referring, in paragraphs 177 to 180 of the judgment under appeal, to the activities of the Eulex Kosovo Mission or to the employment, as a priority, of seconded staff. As for the budgetary periods, the assessment contained in paragraphs 161 and 162 of that judgment, to the effect that the time restrictions placed on the budget awarded to the Eulex Kosovo Mission justified the use of consecutive FTCs, is contrary to Irish case-law. As far as concerns the variation in the competences and scope of action of the Eulex Kosovo Mission, as set out in paragraphs 163 to 169 of the judgment, the legality of the framework for adjustment, in the light of the Treaties, cannot justify, in Mr Jenkinson’s view, the protection afforded to all workers under Irish law being restricted. Turning to the mandates of the Heads of the Eulex Kosovo Mission, Mr Jenkinson claims that the General Court erred in its application of that factor in paragraphs 170 to 175 of the same judgment, since it provided the employer with a means of avoiding any obligations. As regards the final FTC, the General Court could not find, as it did in paragraphs 185 and 187 of the judgment under appeal, that the reasons for its conclusion were the same as those for the other FTCs, when Eulex Kosovo had explained that the purpose of that final contract was to coordinate the end of the FTCs of various individuals.

128. Second, the General Court failed to analyse whether the use of the FTCs was appropriate in the light of Irish law and wrongly rejected, in paragraphs 181 and 184 of the judgment under appeal, the proposal for an alternative measure put forward by Mr Jenkinson. In so doing, it reversed the burden of proof. In paragraph 187, the General Court deemed the use of the final FTC to be necessary and appropriate, thereby distorting Irish law.

129. In the fourth place, according to Mr Jenkinson, the General Court failed to adjudicate by disregarding Eulex Kosovo’s lack of legal personality and ignoring considerations regarding delegations of powers and budgets.

130. In the alternative, Mr Jenkinson claims breach of the principle of equal treatment and of the principle that the law of a single Member State must apply. He asserts that the concept of ‘fixed and lasting’ must be analysed in the light of Irish law and interpreted in the same way as the EU legislature did when it adopted the CEOS pursuant to Article 336 TFEU. He refers, in turn, to the judgments of 4 July 2006, Adeneler and Others; (140) of 11 July 1985, Maag v Commission; (141) and of 15 April 2008, Impact. (142) He criticises the General Court’s decision, claiming that it has ‘established a significantly broader interpretation of the concept of stable and permanent employment’ for the purposes of the Framework Agreement than that by which the European institutions bound themselves under the CEOS by limiting the number of FTC renewals to two.

131. With regard to the complaint put forward in the first place, the Council considers that it is at odds with the appellant’s first head of claim, as set out in the first indent of paragraph 38 of the judgment under appeal, which could only be interpreted as referring to the contractual relationship with the Eulex Kosovo Mission. Eulex Kosovo and the Commission view the complaint as a new and mistaken argument, since Eulex Kosovo is Mr Jenkinson’s only employer. Furthermore, it is based on a misinterpretation of Section 9 of the 2003 Act.

132. As for the complaint raised in the second place, the Council is of the opinion that it overlaps with complaint put forward in the first part of the third ground of appeal. (143) The Commission points to the scope of Article 10(3) of Joint Action 2008/124 and states that Communication C(2009) 9502 simply provides a summary of the categories of staff referred to in Article 9 of that joint action.

133. As for the complaint raised in the third place, the Council considers that it is based on incorrect assumptions. The General Court was right to examine, in great detail, the concept of ‘objective grounds’ in the light of the case-law of the Court, since the 2003 Act transposes Directive 1999/70 and the Irish case-law concerns employment situations in a different national context from that of a mission. In any event, those bodies of case-law are complementary. The Commission puts forward similar arguments in this regard, again based on the Framework Agreement, and points to the special nature of a crisis management mission. In Eulex Kosovo’s view, account should be taken only of the judgments of the High Court (Ireland), ruling on appeal on questions of law raised by decisions given by the Labour Court (Ireland). (144) Eulex Kosovo also contends that the General Court’s analysis of the facts in paragraphs 157 to 184 of the judgment under appeal is relevant and reflects the reality of implementing its mandate and the specific nature of the regional position of IT officer held by the appellant, which was not permanent, thus justifying the conclusion of FTCs. Eulex Kosovo further argues that the appellant is wrong to criticise the General Court’s reasoning regarding the legality of a series of consecutive FTCs in the specific circumstances of the exercise of the Mission’s mandate, and adduces no evidence for his criticism.

134. In its detailed response to Mr Jenkinson’s various arguments criticising the application of the objective grounds to his legal situation, the Commission states that those arguments are partly inadmissible, in so far as they were not raised at first instance, and, in any case, unfounded given the relevance of the grounds set out in the judgment. In particular, it states that, in accordance with settled case-law of the Court, the employer’s needs must be taken into consideration and not ‘just’ the work of the appellant. In that regard, the General Court rightly pointed to the ‘temporary budgetary context’, upon which the conclusion of the contracts is dependent, thus invalidating the appellant’s comparison with the staffing level of an institution which is not subject to the same financial and operational constraints. The link between the duration of the FTCs and the duration of the mandate of the Head of the Mission, which is subject to the uncertainty inherent in managing an international crisis, also had to be taken into account by the General Court, (145) without the appellant however being able to infer from that fact that ‘the employer unilaterally “fixed” the objective grounds in order to justify repeated FTCs’.

135. As for the complaint put forward in the fourth place, the Commission raises an objection of obscuri libelli. Assuming that Mr Jenkinson is referring to the responsibility for implementation of the budget, delegated by the Commission to the Head of Mission on the basis of Article 8(5) of Joint Action 2008/124, that provision was repealed by Article 1 of Decision 2014/349. Furthermore, such a complaint is ineffective in the light of the Court’s decision on the responsibility for the mission. (146) In the Council’s opinion, the conditions for a failure to adjudicate, which are laid down in Article 165 of the Rules of Procedure of the General Court, are not satisfied.

136. As for the argument in the alternative, the Commission contends that Mr Jenkinson does not specify the provision of the Framework Agreement or of Irish law upon which his criticism is based, and that the case-law cited in relation to the European civil service cannot be used as a reference in the present case.

2.      Assessment

137. By the fourth part of the third ground of appeal, Mr Jenkinson criticises paragraphs 151 to 188 of the judgment under appeal on the application of Irish law to the claim for re-categorisation of the 11 FTCs as a CID.

138. That section of the judgment under appeal follows on from a summary, in paragraphs 140 to 146 thereof, which are not challenged in the appeal, of the provisions of EU law applicable, namely Directive 1999/70 and the Framework Agreement, annexed thereto, as well the provisions of the 2003 Act transposing that directive. Those provisions therefore constitute the substantive law governing the contracts at issue, in the version thereof applicable to the dispute, on the basis of which the General Court, seised under an arbitration clause pursuant to Article 272 TFEU, is required to give a ruling. (147) In paragraph 150 of the judgment under appeal, which is not challenged, the General Court found the 2003 Act to be compatible with the Framework Agreement (148) and with the general principle prohibiting abuse of rights, the implementation of which falls to the General Court to ensure. (149)

139. Nor does the appellant contest the General Court’s analysis of Section 9(4) of the 2003 Act, contained in paragraph 146 of the judgment under appeal, to the effect that, in essence, an objective ground which can be relied on by an employer in order to derogate from the requirements under subsections 1 to 3 of that section (150) ‘must be based on considerations unrelated to the employee, and the less favourable treatment which the FTC involves for that employee must be intended to achieve a legitimate objective of the employer, in an appropriate and necessary manner’.

140. Mr Jenkinson’s arguments, reproduced in paragraphs 147 and 148 of the judgment under appeal, which are not challenged by the appeal, were as follows:

–        in accordance with Irish case-law, since his recruitment by the Eulex Kosovo Mission was to cover fixed and lasting needs, the conclusion of the 11 FTCs was abusive;

–        there were no objective grounds, of a general or budgetary nature, capable of justifying the conclusion of the 11 FTCs. The Eulex Kosovo Mission was not automatically limited to the duration of its mandate and the duration of the FTCs was not aligned with the duration of that mandate; and

–        it would have been possible to make his contractual relationship one of indefinite duration, since the decision-making procedure for the renewal of missions was organised in such a way that notice could easily be given within the period applicable to a CID.

141. Accordingly, I note, if paragraph 151 of the judgment under appeal is to be read as Mr Jenkinson reads it, (151) that the question of the designation of the authority responsible for the choice of the method of recruitment on the basis of FTCs did not arise in the discussions relating to the application of Irish law. It is, moreover, ineffective. Since the dispute concerns the re-categorisation of the FTCs as a CID, the General Court’s assessment must be confined to the justification for the renewal of the consecutive periods of employment for a limited duration. The second complaint (152) must therefore be dismissed.

142. Other complaints must also be dismissed on grounds which I have already set out. The first complaint (153) based on the concept of ‘associated employers’ mirrors that raised in the context of the second ground of appeal. In addition, as far as it concerns Eulex Kosovo’s legal capacity, the fourth complaint (154) is unfounded. (155)

143. By his third complaint, (156) Mr Jenkinson alleges that the General Court examined the concept of ‘objective grounds’ only in the light of the case-law of the Court. It is also his view that, having regard to Irish law, the General Court found, on insufficient grounds, that the use of the consecutive FTCs was justified by the temporary nature of the Eulex Kosovo Mission and, by a distortion of the content of the final FTC, that that contract had been concluded in circumstances tied up with the abolition of his post.

144. In essence, the first part of the criticism relates to steps taken by the Court of its own motion. In my view, it must be examined regardless of the fact that Mr Jenkinson does not rely on Irish decisions put into evidence which would have been more favourable than the judgment of 26 January 2012, Kücük, (157) to which the General Court referred.

145. As regards the implementation of the national law applicable to the contract on the basis of Article 272 TFEU, it is my view, in the light of the limits laid down in Article 58 of the Statute of the Court of Justice of the European Union, (158) that it is likewise necessary to apply the case-law of the Court, according to which, with respect to the analysis, in the context of an appeal, of the General Court’s determinations on national law, the Court of Justice has jurisdiction only to determine whether that law was distorted. Such distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (159) New arguments and evidence based on positive law and relied on in support of the appeal are therefore inadmissible.

146. In that regard, I note that the General Court determined the national law applicable after seeking the applicant’s observations on the Irish legislation upon which he had not relied. (160) It thus found that law to be compatible with EU law, namely Directive 1999/70 and the Framework Agreement, (161) and implemented the rules in that law which determine the method for examining the objective grounds to be applied by any national court, (162) finding, in so doing, that the information relating to national law at its disposal was insufficient to allow it to settle the dispute. (163)

147. In those circumstances, in its further capacity as a Court of the European Union, (164) it is for the General Court to implement such national law in a manner compatible with EU law. In certain situations, it is even required to disapply national provisions. This is the case where the subject matter of the dispute is governed by a regulation (165) or where a provision of EU law has direct effect. (166) Here, the specific context of the employment relationship, that of a mission under the CFSP, upon which national law is necessarily silent, had to be taken into account by the General Court.

148. Therefore, where an equivalent provision or equivalent case-law exists in national law, (167) the General Court is entitled to opt, as a matter of preference, to base its decision on criteria applicable in all the Member States, (168) as consistently interpreted by the Court of Justice when matters are brought before it on the basis of Article 267 TFEU, particularly in relation to the protection of workers.

149. In the present case, specifically in paragraph 154 of the judgment under appeal, the General Court cited paragraph 27 (169) of the judgment of 26 February 2012, Kücük, (170) the wording of which echoes the settled case-law of the Court. In many judgments, the Court has restated its interpretation of the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement. That case-law functions as guidance for the courts of the Member States when they are giving specific consideration to situations brought before them for assessment, in which it may become apparent that the purpose of the consecutive renewal of fixed-term employment relationships is in fact to meet the employer’s fixed and lasting staffing requirements.

150. Mr Jenkinson fails to provide detailed proof, in the light of that case-law, of a distortion of the positive Irish law submitted by him for assessment by the General Court and, in particular, that that court’s analysis was manifestly at odds with the content of that law, taking into account the context in which the 11 FTCs were concluded. His criticism must therefore be dismissed as partly inadmissible (171) and otherwise insufficiently justified and relevant.

151. Accordingly, as far as concerns the second part of the criticism, (172) I note, in relation to the review of the grounds for the judgment under appeal sought by Mr Jenkinson, that the General Court rightly determined the special and specific circumstances which characterised the activities for which the FTCs had been concluded with Mr Jenkinson and the objective pursued within the Eulex Kosovo Mission.

152. The criticism in the appeal relates not to the objective factors as accepted by the General Court but to their assessment, which led that court to base its decision on the temporary nature of the legal framework and of the general professional context in which Mr Jenkinson performed the duties entrusted to him at the Eulex Kosovo Mission.

153. It is my view, first, that the General Court ruled, in paragraphs 156 to 188 of the judgment under appeal, in response to Mr Jenkinson’s arguments, by means of a reasoned decision based on all the measures adopted relating to the Eulex Kosovo Mission, from its establishment to its development, and those organising its operation and its financing, (173) in line with the mandates conferred on it, (174) in the light in particular of the wishes expressed by the Kosovan authorities. (175) Second, the General Court specifically decided that the use of consecutive FTCs in order to fill jobs, as a fall back, with international civilian staff in particular (176) for limited (177) and variable (178) periods, with a budget set on a very regular basis over approximately 7 years for periods ranging from less than 6 months to 16 months, (179) was justified by circumstances specific to the activities of an international crisis management mission under by the CFSP. (180) In that regard, the General Court rightly inferred from its findings on the geopolitical and diplomatic uncertainties to which that type of mission is inherently subject, such as the Eulex Kosovo Mission, (181) that that mission is characterised by its temporary nature. (182)

154. I note, in addition, that those findings are also based on the General Court’s assessment (183) that the conditions of employment are necessarily connected with the very nature of the mission and the arrangements for its financing, since it was not intended to be permanent and is subject to the mandates conferred on it. The General Court could thus decide that the consistent practice of not using CIDs is justified by a need for flexibility in order to react to unstable situations as quickly as possible. It therefore demonstrated that, in such a specific situation, the renewal of FTCs can have neither the object nor the effect of filling a stable and permanent post which is financed on a lasting basis. (184)

155. Accordingly, and further to my examination of the merits of the second ground of appeal, (185) I therefore propose that the Court find that it follows from the analysis of the characteristics of the Eulex Kosovo Mission and from the bases of the Council decisions in the context of the CFSP that the General Court established general criteria characterising the employment relationship which are applicable, by analogy, to the first two missions in which Mr Jenkinson was employed, on account of their nature, and that it thus, on the bases submitted for its assessment, lawfully justified its decision to reject the claim for re-categorisation of all the FTCs as a single CID. (186)

156. The criticism made in the fourth part of the third ground of appeal must therefore, in my view, be rejected.

157. Having concluded my analysis, I propose that the Court rule that the second ground of appeal and the first, third and fourth parts of the third ground of appeal are unfounded.

VIII. Conclusion

158. In the light of all the foregoing considerations, I propose that the Court reject the second ground of appeal and the first, third and fourth parts of the third ground of appeal as unfounded.

1      Original language: French.

2      ‘CID’.

3      ‘FTCs’.

4      ‘A mission’.

5      ‘Eulex Kosovo’ or ‘the Eulex Kosovo Mission’.

6      C‑43/17 P, EU:C:2018:531; ‘the judgment in Jenkinson I’.

7      T‑602/15, EU:T:2016:660.

8      T‑602/15 RENV, EU:T:2021:764; ‘the judgment under appeal’.

9      The following proceedings, which are currently stayed, concern similar actions involving members of the international staff of Eulex Kosovo: 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). In relation to a different mission: Stockdale v Council and Others (including the European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20).

10      See, by way of example, the case which gave rise to the judgment of 24 February 2022, Eulex Kosovo (C‑283/20, EU:C:2022:126; ‘the judgment in Eulex Kosovo’).

11      OJ 2008 L 42, p. 92. Under the first sentence of the second paragraph of Article 20 of that joint action, the initial scheduled duration was 28 months from the approval of the Operation Plan (OPLAN). It has been extended on several occasions, most recently until 14 June 2023 by Council Decision (CFSP) 2021/904 of 3 June 2021 (OJ 2021 L 197, p. 114).

12      OJ 2014 L 174, p. 42. ‘Joint Action 2008/124’.

13      In its initial version, prior to its amendment by Council Decision 2010/322/CFSP of 8 June 2010 (OJ 2010 L 145, p. 13), which entered into force on the day of its adoption, this paragraph read as follows: ‘Eulex Kosovo may also recruit, as required, international staff and local staff on a contractual basis.’

14      As is pointed out in paragraph 227 of the judgment under appeal, in its initial version, prior to the entry into force of Decision 2014/349 on the day of its adoption, this provision read as follows: ‘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.’ Cf. Article 15a of Joint Action 2008/124 inserted by the abovementioned decision, (see point 80 of this Opinion).

15      OJ 2008 L 177, p. 6, and corrigendum OJ 2009 L 309, p. 87. ‘The Rome I Regulation’.

16      In paragraphs 151 and 153 of the judgment under appeal, the General Court observed that ‘it is common ground that the applicant was recruited to the Eulex Kosovo Mission on the basis of the first sentence of Article 9(3) of Joint Action 2008/124’ and that ‘the applicant was employed in the Eulex Kosovo Mission under the 11 FTCs, concluded in succession between 5 April 2010 and 14 November 2014, as an IT officer’. In paragraph 132 of that judgment, the General Court found that, according to the applicant’s written observations, ‘in the post he had held since 15 June 2012, identified under the reference EK 10453, he was responsible within the Eulex Kosovo Mission for managing and supervising all members of staff working in the IT help desk/support office’.

17      See the judgment in Eulex Kosovo (paragraph 14).

18      It should be noted that, in paragraph 42 of the judgment in Jenkinson I, concerning the earlier appeal, the Court pointed out that, ‘as the General Court observed in paragraphs 21 and 22 of the order under appeal, it is common ground that all the previous employment contracts concluded between the Missions and the applicant contain a clause that expressly provides that disputes arising from, or relating to, those contracts will be subject to the jurisdiction of the courts of Brussels [(Belgium)] and that only the final FTC expressly provides, in Article 21, that disputes arising from, or relating to, that contract will be subject to the jurisdiction of the Court of Justice under Article 272 TFEU’. See judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505, paragraph 30 and the case-law cited), which states that ‘Article 272 TFEU is a specific provision allowing the Courts of the European Union to be seised under an arbitration clause agreed by the parties for contracts governed by either public or private law, and without restriction as regards the nature of the action to be brought before the Courts of the European Union’.

19      In paragraph 111 of the judgment under appeal, the General Court found that the 11 FTCs concluded in connection with the Eulex Kosovo Mission do not contain provisions capable of resolving the dispute directly.

20      For a detailed presentation of the claims, see point 17 of this Opinion.

21      T‑602/15, EU:T:2016:660.

22      See paragraph 3 of that judgment.

23      ‘The first head of claim’.

24      See paragraphs 1 to 5 of the judgment under appeal, reproduced in point 12 of this Opinion.

25      ‘The second head of claim’.

26      ‘The third head of claim’.

27      The General Court went on to reject, as having no basis in fact or in law, the objection of inadmissibility alleging that the action was out of time, in so far as it sought the annulment of the letter from the Head of the Eulex Kosovo Mission of 26 June 2014 (see point 12 of this Opinion), raised by the Council, the EEAS and the Eulex Kosovo Mission.

28      See also paragraphs 55 and 61 of the judgment under appeal.

29      The first objection, the examination of which was deferred (see paragraph 73 of the judgment under appeal), was upheld (see paragraph 244 of that judgment). See point 32 of this Opinion.

30      See paragraphs 71 and 74 of the judgment under appeal.

31      See paragraph 80 of the judgment under appeal. Cf. paragraph 46 of the judgment in Jenkinson I.

32      See paragraph 82 of the judgment under appeal.

33      See paragraph 92 of the judgment under appeal.

34      See paragraph 93 of the judgment under appeal.

35      See paragraphs 99 to 101 of the judgment under appeal.

36      See paragraph 103 of the judgment under appeal.

37      Commission Communication of 30 November 2009 entitled ‘Specific Rules for Special Advisers of the Commission entrusted with the implementation of operational CFSP actions and contracted international staff’ (‘Communication C(2009) 9502’).

38      The law in question is the Protection of Employees (Fixed-Term Work) Act 2003, which transposed into Irish law Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43). That framework agreement, which is contained in the annex to Directive 1999/70 (‘the Framework Agreement’), was concluded on 18 March 1999.

39      See point 23 of this Opinion.

40      Paragraph 198 of the judgment under appeal states that this provision requires the employer to inform the employee, in writing, no later than the date of the renewal of the FTC, of the objective grounds justifying the FTC and the failure to offer to conclude a CID.

41      See paragraph 207 of the judgment under appeal.

42      See findings in paragraphs 199 and 200 of the judgment under appeal.

43      See paragraph 211 of the judgment under appeal and compare with paragraphs 197 and 209 thereof.

44      See paragraphs 213 and 214 of the judgment under appeal.

45      See point 21 of this Opinion.

46      See paragraph 219 of the judgment under appeal and point 19 of this Opinion.

47      See paragraph 220 of the judgment under appeal.

48      ‘The CEOS’.

49      See paragraph 236 of the judgment under appeal.

50      See paragraph 247 of the judgment under appeal.

51      See footnote 29 to this Opinion.

52      More specifically, the Council contends that the appellant should be ordered to pay the ‘costs relating to these proceedings’ and Eulex Kosovo that he should be ordered to pay ‘all the costs’.

53      See Van Raepenbusch, S., Le contrôle juridictionnel dans l’Union européenne, 3rd ed., Éditions de l’Université de Bruxelles, ‘Commentaire J. Mégret’ Collection, Brussels, 2018, paragraph 430, p. 359. See also Naômé, C., Le pourvoi devant la Cour de justice de l’Union européenne, Larcier, Brussels, 2016, paragraphs 32 and 33, p. 23.

54      See point 21 of this Opinion.

55      See Article 178(2) of the Rules of Procedure of the Court and Naômé, C., op. cit., paragraphs 119 to 121 and 128. See also, inter alia, judgment of 24 March 2022, Hermann Albers v Commission (C‑656/20 P, not published, EU:C:2022:222, paragraphs 23 and 24 and the case-law cited).

56      See point 81 of this Opinion.

57      See paragraphs 67 to 70 of the judgment under appeal, which are not challenged.

58      Under that provision ‘the pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested’.

59      See, with regard to the distinction to be made between that basis and Article 272 TFEU, judgments of 25 June 2020, SC v Eulex Kosovo  (C‑730/18 P, EU:C:2020:505, paragraphs 30 to 32 and the case-law cited), and of 25 June 2020, CSUE v KF (C‑14/19 P, EU:C:2020:492, paragraphs 68, 78, 80 and 81).

60      See paragraph 43 and the last sentence of paragraph 85 of the judgment under appeal.

61      See, to that effect, judgment of 25 October 2017, Commission v Italy (C‑467/15 P, EU:C:2017:799, paragraph 15). This justifies, in my view, the rejection of the first ground of appeal on this basis.

62      See point 17 of this Opinion.

63      For this reason, it is my view that the sixth part of the third ground of appeal must be dismissed. In addition, I would point out that the General Court is not obliged to reply to allegations that are neither sufficiently substantiated in fact and in law nor raised in support of a claim corresponding to the subject matter of such allegations.

64      Mr Jenkinson also submits that the Court’s decision in the judgment in Eulex Kosovo regarding the liability of Eulex Kosovo cannot be followed, as it infringes ‘the Treaties (TEU and TFEU) and … Regulation [(EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; “the Financial Regulation”)]’, in that it precludes the European Union from defending the legality of a contract concluded in its name or on its behalf.

65      See footnote 14 to this Opinion.

66      See point 12 of this Opinion.

67      See Section IV, Part C, point 1(a) of the judgment under appeal (p. 17).

68      These paragraphs are not the subject of a cross-appeal.

69      See footnote 18 to this Opinion.

70      See the judgment in Jenkinson I (paragraph 50).

71      See paragraph 46 of that judgment: ‘Mr Jenkinson requested the General Court, in essence, to re-categorise all his contractual relationships as a [CID]’. In paragraph 47, the Court observed that, ‘as Mr Jenkinson’s claims are linked to the existence of a single, continuous employment relationship based on a series of consecutive FTCs, they are directed at the re-categorisation of all the contracts concluded and are based on all of those contracts, including the final FTC’. Emphasis added.

72      The judgment in Jenkinson I (paragraph 48).

73      The judgment in Jenkinson I (paragraph 49).

74      109/81, EU:C:1982:253.

75      The existence of ties to several employers or breaks between FTCs do not mean that re-categorisation of FTCs as a CID must be excluded, since specific circumstances may be indicated, such as the lack of autonomy of the employment structures by which an entity responsible for those structures is bound or reasons justifying the passage of certain period of time in the conclusion of the successive FTCs. In addition, implicitly, the Court has acknowledged that the subject matter of the dispute had the effect of extending the scope of the arbitration clause to third parties to employment contracts concluded in the context of the final mission.

76      I note, in this regard, that an interpretation to that effect is consistent with the purpose of the choice of including, in contracts, an arbitration clause based on Article 272 TFEU, namely to promote efforts to find harmonised solutions, for example, to determine the person responsible for contractual relationships. See, to that effect, Karpenstein, U., ‘AEUV Art. 272 Zuständigkeit aufgrund einer Schiedsklausel’, in Grabitz, E., Hilf, M., and Nettesheim, M., Das Recht der Europäischen Union, C.H. Beck, Munich, 2022, in particular paragraph 3. See also footnote 168 to this Opinion.

77      See, by way of example, judgment of 18 December 1986, Commission v Zoubek (426/85, EU:C:1986:501, paragraphs 12 and 13).

78      See paragraph 74 of the judgment under appeal, which is not challenged. I note, in that regard, that, in paragraph 90 of his appeal, Mr Jenkinson submits that ‘the defendants and, at the very least, the Council and the Commission (and, in the further alternative, the Commission alone …) are his employers’. At the hearing, he claimed to have had contractual ties to some 20 employers.

79      See paragraphs 76 to 78 of the judgment under appeal.

80      See paragraph 77 of the judgment under appeal. As restated in his appeal, Mr Jenkinson claims that, in the context of the first two missions, the FTCs were concluded in the name and on behalf of the European Union, the latter being regarded as his employer. More broadly, that general point is linked to the fact that the purpose of his action is to have the existence of a continuous relationship as a member of staff of the European Union acknowledged. See, for this same reason, the allegation in support of the second head of claim, according to which, under the provisions of EU law, Mr Jenkinson had a right to be employed in the missions under the rules of the CEOS (or equivalent), as set out in point 31 of this Opinion. See also point 77 of this Opinion.

81      See, in paragraph 82 of the judgment under appeal, the words ‘first of all’.

82      See paragraph 83 of the judgment under appeal, which is not challenged.

83      See point 54 of this Opinion.

84      See point 148 of this Opinion.

85      On the substitution of grounds, see Naômé, C., op. cit., paragraph 324 et seq. See also point 155 of this Opinion.

86      The Commission refers to the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812, paragraph 28 and the case-law cited).

87      See paragraphs 84 and 85 of the judgment under appeal.

88      This means that the argument set out in point 62 of this Opinion must be found to be inadmissible.

89      See, in addition, point 40 of this Opinion.

90      I note that that argument had also been raised, primarily, by EUCAP Somalia, in its capacity as employer in the case which gave rise to the judgment of 13 July 2022, JC v EUCAP Somalia (T‑165/20, EU:T:2022:453, paragraph 34), before the parties agreed that Belgian law was applicable (paragraphs 35 and 43).

91      See, to that effect, paragraphs 217 and 236 of the judgment under appeal. See also footnote 80 to this Opinion.

92      See, in this regard, order of 30 September 2014, Bitiqi and Others v Commission and Others (T‑410/13, not published, EU:T:2014:871, paragraph 27), and judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505, paragraph 37).

93      In paragraph 36 of that judgment, the Court took the view that, ‘by its question, the referring court asks, in essence, whether Article 8(3) and (5), Article 9(3) and Article 10(3) of Joint Action 2008/124 and Article 16(5) of Joint Action 2008/124, as amended, must be interpreted as meaning that they designate, as employer of the staff of Eulex Kosovo for the period before 12 June 2014, the Head of Mission, acting personally and on his or her own behalf, and/or the Commission, the EEAS, the Council or any other entity’. Emphasis added.

94      To my knowledge, a decision has not yet been made on the substance of the matter.

95      See the judgment in Eulex Kosovo (paragraphs 2 and 16).

96      See the judgment in Eulex Kosovo (paragraph 14).

97      See the judgment in Eulex Kosovo (paragraph 34).

98      See footnote 14 to this Opinion.

99      See the judgment in Eulex Kosovo (paragraph 44).

100      See the judgment in Eulex Kosovo (paragraphs 41 and 45).

101      The judgment in Eulex Kosovo (paragraph 47).

102      See footnote 14 to this Opinion. See also the bases of the contractual relationship between the contracting parties, as specified in paragraph 227 of the judgment under appeal. See also judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505, paragraph 37).

103      That paragraph states: ‘Article 1.1 of the first nine FTCs stipulated that, by signing the employment contract, the employee acknowledged and accepted the terms and principles set out in those contracts, the annexes thereto, the standard operating procedures and the code of conduct of the Eulex Kosovo Mission. Article 23 of the first nine FTCs referred to Communication C(2009) 9502 and stated that it formed an integral part of those contracts.’

104      See, to that effect, order of 30 September 2014, Bitiqi and Others v Commission and Others (T‑410/13, not published, EU:T:2014:871, paragraph 27), and judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505, paragraphs 5, 37, 38 and 39).

105      Judgment of 6 December 1989, Mulfinger and Others v Commission (C‑249/87, EU:C:1989:614, paragraph 10 and the case-law cited).

106      See footnote 16 to this Opinion. It should be observed that, pursuant to Article 9(3) of Joint Action 2008/124, international members of staff are recruited, in line with the Mission’s needs, on a contractual basis, unlike seconded members of staff, who make up the majority of the Eulex Kosovo Mission (see paragraph 2 of that article).

107      See, for examples of designation of the law applicable in contracts outside employment relationships, judgment of 7 December 1976, Pellegrini v Commission and Flexon-Italia (23/76, EU:C:1976:174, paragraph 8), and judgments of 18 December 1986, Commission v Zoubek (426/85, EU:C:1986:501, paragraph 4), and of 4 May 2017, Meta Group v Commission (T‑744/14, not published, EU:T:2017:304, paragraph 64), cited by the General Court in paragraph 99 of the judgment under appeal. The last judgment cited was the subject of an appeal, which was dismissed by judgment of 14 March 2019, Meta Group v Commission (C‑428/17 P, not published, EU:C:2019:201).

108      See, inter alia, judgments of 19 February 2016, Ludwig-Bölkow-Systemtechnik v Commission (T‑53/14, not published, EU:T:2016:88, paragraph 41), and of 9 December 2020, Adraces v Commission (T‑714/18, not published, EU:T:2020:591, paragraph 36). See also Borchardt, K.-D., ‘Art. 272 AEUV I. Begründung der Zuständigkeit durch Schiedsklausel’, in Lenz, C., O., and Borchardt, K.-D., EU-Verträge Kommentar, 6th ed., Bundesanzeiger Verlag, Cologne, 2013, in particular paragraph 12.

109      See paragraphs 99 and 100 of the judgment under appeal, the latter of which relates to EU law. In addition, if the parties decide, in their contract, to confer on the EU judicature, by means of an arbitration clause, jurisdiction over disputes relating to that contract, that judicature will have jurisdiction, independently of the applicable law stipulated in that contract, to examine any infringement of the Charter of Fundamental Rights of the European Union or of the general principles of EU law (see judgment of 16 July 2020, Inclusion Alliance for Europe v Commission (C‑378/16 P, EU:C:2020:575, paragraph 81). For those reasons, it is, moreover, my view that the second part of the third ground of appeal, which concerns paragraphs 99 to 101 of the judgment under appeal, is ill founded.

110      See paragraph 102 of the judgment under appeal.

111      See, for an example of guidance taken from the rules of law applicable in matters of jurisdiction, judgment of 18 December 1986, Commission v Zoubek (426/85, EU:C:1986:501, paragraph 11). See, in relation to this principle, Cremer, W., ‘AEUV Art. 272 (ex-Art. 238 EGV) (Zuständigkeit auf Grund einer Schiedsklausel)’, in Calliess, C., and Ruffert, M., EUV/AEUV, 6th ed., C.H. Beck, Munich, 2022, in particular paragraphs 7 to 9, specifically paragraph 9, footnote 18, and Borchardt, K.-D., op. cit., paragraph 12.

112      With regard to the use of the Rome I Regulation, see judgment of 18 February 2016, Calberson GE v Commission (T‑164/14, EU:T:2016:85, paragraph 25). In the cases which gave rise to the judgments to which that paragraph refers, German law had been chosen by the parties (see judgments of 11 October 2001, Commission v Oder-Plan Architektur and Others (C‑77/99, EU:C:2001:531, paragraph 4), and of 17 March 2005, Commission v AMI Semiconductor Belgium and Others (C‑294/02, EU:C:2005:172, paragraph 3). However, in order to rule on the admissibility of the application concerned, the Court made its decision, in paragraph 28 of the former judgment and paragraph 60 of the latter judgment, according to a connecting factor designating the applicable law that is generally accepted in private international law). Reference is also made to the judgment of 18 February 2016, Calberson GE v Commission (T‑164/14, EU:T:2016:85), in the judgments of 13 July 2022, JC v EUCAP Somalia (T‑165/20, EU:T:2022:453, paragraph 40), and of 13 July 2022, JF v EUCAP Somalia (T‑194/20, EU:T:2022:454, paragraph 55). See also Opinion of Advocate General Szpunar in Jenkinson v Council and Others (C‑43/17 P, EU:C:2018:231, footnote 18, referring to Kohler, C., ‘La Cour de justice des Communautés européennes et le droit international privé’, Droit international privé: travaux du Comité français de droit international privé, 12th year, 1993-1995, Éditions A. Pedone, Paris, 1996, pp. 71 to 95). See pp. 77 to 79 of that article and, in particular, the final paragraph on p. 78, clarifications concerning Article 6 of the Convention on the Law Applicable to Contractual Obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1; ‘the Rome Convention’), the provisions of which on the law applicable to employment contracts were reproduced, in essence, in Article 8 of the Rome I Regulation. See, moreover, Lenaerts, K., Maselis, I., and Gutman, K., ‘Jurisdiction of the Union Courts to Give Judgment Pursuant to an Arbitration Clause or a Special Agreement’, EU Procedural Law, Oxford University Press, Oxford, 2014, pp. 686 to 699, in particular p. 695.

113      This autonomous concept is interpreted by the Court as excluding actions between a public authority and a person governed by private law as long as that authority is acting in the exercise of its public powers, with regard to the scope of the provisions on the determination of the jurisdiction of the courts of the Member States, as provided for in Article 1(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). See judgment of 25 March 2021, Obala i lučice (C‑307/19, EU:C:2021:236, paragraphs 62 to 64). To my knowledge, the Court has not had to give a ruling on the interpretation of that concept in the context of the application of the Rome I Regulation. For a summary of the issue, see Gaudemet-Tallon, H., ‘Convention de Rome du 19 juin 1980 et règlement “Rome I” du 17 juin 2008. – Champ d’application. – Clauses générales’, JurisClasseur Europe Traité, LexisNexis, Paris, 1 March 2020, Section 3200, paragraph 43.

114      See Gaudemet-Tallon, H., op. cit., paragraphs 46 and 47. In addition, under Article 2 of the Rome I Regulation, ‘any law specified by this Regulation shall be applied whether or not it is the law of a Member State’.

115      See point 75 of this Opinion.

116      See paragraphs 103 to 106 of the judgment under appeal.

117      He refers, in this regard, to the Opinion of Advocate General Szpunar in Jenkinson v Council and Others (C‑43/17 P, EU:C:2018:231, point 49) to justify the analysis of the final two contracts concluded in the context of the Eulex Kosovo Mission.

118      Mr Jenkinson refers to the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688).

119      T‑165/20, EU:T:2022:453, paragraphs 37 and 38.

120      See paragraph 83 of the judgment under appeal.

121      See paragraphs 108 to 111 of the judgment under appeal. See, to that effect, judgment of 26 November 1985, Commission v CO.DE.MI. (318/81, EU:C:1985:467, paragraphs 21 and 23), in which the Court held that ‘contractual provisions expressing the common intention of the parties must take precedence over any other criterion which might be used only where the contract is silent on a particular point’ and that, when examining the substance of the dispute, ‘reference must first be made to the relevant contractual provisions’. See, in the same vein, judgment of 13 July 2022, JC v EUCAP Somalia (T‑165/20, EU:T:2022:453, paragraphs 37 and 45). See also judgments of 12 April 2018, PY v EUCAP Sahel Niger (T‑763/16, EU:T:2018:181, paragraph 66), and of 13 July 2022, JF v EUCAP Somalia (T‑194/20, EU:T:2022:454, paragraph 59), where there is reference in the contract to a code of conduct or to standing operating procedures, the provisions of which may prove sufficient. See also Lenaerts, K., Maselis, I., and Gutman, K., op. cit., pp. 696 and 697, paragraphs 19.17 and 19.19.

122      See paragraphs 92 to 101 of the judgment under appeal.

123      See paragraphs 105 and 106 of the judgment under appeal.

124      See paragraph 127 of the judgment under appeal.

125      See paragraph 128 of the judgment under appeal.

126      See judgment of 12 September 2013, Schlecker (C‑64/12, EU:C:2013:551, paragraphs 32 and 39; ‘the judgment in Schlecker’), which concerns Article 6 of the Rome Convention (see footnote 112, in fine, to this Opinion). In paragraph 38 of the judgment in Schlecker, the Court pointed out that its interpretation of the connecting factors in that convention is consistent with the wording of the conflict rules relating to contracts of employment, introduced by the Rome I Regulation, which was not however applicable in that case ratione temporis. In addition, with regard to the subsidiary nature of the criterion of the place of recruitment, see, by analogy, judgment of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraph 47). Mr Jenkinson’s argument in this regard is therefore unfounded.

127      See the judgment in Schlecker (paragraph 35).

128      See paragraph 129 of the judgment under appeal.

129      See paragraphs 132 and 133 of the judgment under appeal.

130      See paragraph 138 of the judgment under appeal.

131      See, to that effect, Article 8(1) of the Rome I Regulation and the judgment in Schlecker (paragraphs 33 to 36).

132      See, in that regard, the judgment in Schlecker (paragraph 34).

133      See the judgment in Schlecker (paragraph 40).

134      The judgment in Schlecker (paragraph 41).

135      See, for a recent example of the application of Article 8(4) of the Rome I Regulation, judgment of 13 July 2022, JC v EUCAP Somalia (T‑165/20, EU:T:2022:453, paragraph 44).

136      The General Court examined the applicant’s arguments concerning the validity of his consent in paragraphs 193 to 195 of the judgment under appeal.

137      See judgment of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission (C‑250/16 P, EU:C:2017:871, paragraph 56).

138      See footnote 144 to this Opinion.

139      See paragraphs 157 to 160 of the judgment under appeal.

140      C‑212/04, EU:C:2006:443, paragraphs 58 to 75.

141      43/84, EU:C:1985:328, paragraphs 16 and 18.

142      C‑268/06, EU:C:2008:223, paragraphs 87, 111, 112 and 114.

143      See point 62 et seq. of this Opinion.

144      For this reason, the judgments cited in Annexes 5 to 8 of the appeal should be disregarded. However, the judgment of the Supreme Court (Ireland) of 31 March 2022, Maurice Power v Health Service Executive (No 2021/94, paragraph 20), available at https://www.courts.ie/ga/view/Judgments/431fa418-32b9-48a7-92af-a1a7617c5a4a/17951cac-4583-484d-b8b9-7852cbcf3272/2022_IESC_17.pdf/pdf, supports the analysis in the judgment under appeal.

145      With regard to the significance of such uncertainty, the Commission echoes the judgment in Eulex Kosovo.

146      The Commission refers to the judgment in Eulex Kosovo.

147      See point 83 of this Opinion.

148      The Court has already had occasion to adjudicate on the 2003 Act in the case which gave rise to the judgment of 15 July 2008, Impact (C‑268/06, EU:C:2008:223), which is specifically concerned with Clauses 4(1) and 5 of the Framework Agreement. In paragraph 50 of that judgment, the Court found that the 2003 Act ‘constitutes the legislation by which Ireland discharged its obligations under Directive 1999/70’.

149      See paragraph 140 of the judgment under appeal.

150      In essence, Section 9 of the 2003 Act provides that a person employed under two or more consecutive FTCs for a four-year period on a continuous basis cannot be required to conclude a further FTC, unless there are objective grounds justifying such a renewal.

151      Based on my reading of paragraph 151 of that judgment together with paragraphs 175 and 182 thereof, I consider that the General Court referred to the choice of the duration of the FTCs by the Head of the Eulex Kosovo Mission, and subsequently by the Eulex Kosovo Mission, which constitutes, in my view, a response to the argument raised by Mr Jenkinson in paragraph 11 of his reply of 27 September 2019. See paragraph 19 of the judgment under appeal.

152      See point 124 of this Opinion.

153      See point 123 of this Opinion.

154      See point 129 of this Opinion.

155      See point 80 of this Opinion.

156      See points 125 to 128 of this Opinion.

157      C‑586/10, EU:C:2012:39.

158      The first paragraph of this article provides that ‘an appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court’. See, on that basis, analysis of Advocate General Kokott in her Opinion in Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:1946, points 75 to 79), in line with case-law as at 27 February 2014. For a general summary of the issue as regards the scope of the review conducted by the Court of Justice into the analysis of national law carried out by the General Court, see Prek, M., and Lefèvre, S., ‘The EU Courts as “National” Courts: National Law in the EU Judicial Process’, Common Market Law Review, Vol. 54, No 2, Kluwer Law International, Alphen aan den Rijn, 2017, pp. 369 to 402, in particular p. 396 et seq.

159      See, to that effect, judgment of 2 February 2023, Spain and Others v Commission (C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraphs 65 and 66 and the case-law cited).

160      See, in paragraph 19 of the judgment under appeal, reference to Mr Jenkinson’s reply of 27 September 2019 on the Irish legislation – cf. paragraph 147 of the judgment under appeal, which is not contested. See also, in relation to the General Court’s practice in such matters, Prek, M., and Lefèvre, S., op. cit., in particular, in Section 4.1, pp. 388 to 390, and p. 394, commentary on Article 76(d) of the Rules of Procedure of the General Court.

161      See point 138 of this Opinion.

162      See point 149 of this Opinion. Furthermore, it is apparent from Mr Jenkinson’s reply of 27 September 2019 that he was referring, in paragraph 25, to the case-law of the Court.

163      With regard to the situation in which there is no relevant national case-law, see Prek, M., and Lefèvre, S., op. cit., in particular p. 388, footnote 84. Furthermore, I note, first, that Mr Jenkinson does not claim to have submitted for the assessment of the General Court sufficient clarifications concerning the Irish legislation in relation to the specific characteristics of the Eulex Kosovo Mission, as accepted by the General Court, on the basis of the information provided by the defendants. Second, in support of his appeal, he has produced new evidenced based on Irish case-law.

164      See, to that effect, Karpenstein, U., op. cit., paragraph 2.

165      See judgments of 19 February 2016, Ludwig-Bölkow-Systemtechnik v Commission (T‑53/14, not published, EU:T:2016:88, paragraph 40), and of 9 December 2020, Adraces v Commission (T‑714/18, not published, EU:T:2020:591, paragraph 36).

166      See, inter alia, with regard to the direct effect of Clause 4(1) of the Framework Agreement, judgment of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 68).

167      In my view, it follows implicitly from the reasons stated in the judgment under appeal that there was no particularly relevant national decision.

168      On the purpose of Article 272 TFEU to provide a preferred framework for finding harmonised solutions, see Butler, G., ‘The EU’s contractual relations and the arbitration clause: disputes at the Court of Justice of the European Union’, European Law Review, Vol. 46, No 3, Sweet & Maxwell, London, 2021, pp. 345 to 363, in particular pp.  347 and 348.

169      That paragraph has been cited most recently in the judgment of 28 February 2018, John (C‑46/17, EU:C:2018:131, paragraph 53).

170      C‑586/10, EU:C:2012:39.

171      See, inter alia, judgments of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission (C‑250/16 P, EU:C:2017:871, paragraph 39), and of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002, paragraph 50).

172      See second part of the criticism in point 143 of this Opinion.

173      See paragraphs 161 and 162 of the judgment under appeal, which relate specifically to budgetary constraints, and paragraphs 169 and 176 of that judgment.

174      See paragraphs 157 to 160 and 176 of the judgment under appeal. See, in that regard, definition of ‘a fixed-term worker’ provided in Clause 3(1) of the Framework Agreement, which reads thus: ‘a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event’.

175      See paragraphs 163 to 168 of the judgment under appeal.

176      See paragraphs 177 and 178 of the judgment under appeal.

177      See paragraph 182 of the judgment under appeal.

178      See paragraphs 175 and 176 of the judgment under appeal.

179      See paragraph 162 of the judgment under appeal.

180      See paragraph 179 of the judgment under appeal.

181      See paragraphs 164 to 168 of the judgment under appeal, and in particular the latter.

182      See paragraph 184 of the judgment under appeal and, in the same vein, the judgment in Eulex Kosovo (paragraph 45, on the aims pursued by Joint Action 2008/124 and the reference to recital 6 of Decision 2014/349). These factors also serve to highlight the autonomy of the Eulex Kosovo Mission.

183      See, in particular, paragraph 181 of the judgment under appeal (third sentence up to the word ‘staff’).

184      See, in particular, findings of the General Court in paragraphs 186 and 187 of the judgment under appeal regarding the final FTC offered. In relation to situations in which FTCs are used to meet lasting rather than temporary needs, see, inter alia, judgments of 26 November 2014, Mascolo and Others (C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 120, in a case involving the unlimited renewal of FTCs (paragraph 84)); of 14 September 2016, Pérez López (C‑16/15, EU:C:2016:679, a case involving a structural deficit of regulated staff posts in the area of activity in question (paragraph 55)); and of 19 March 2020, Sánchez Ruiz and Others (C‑103/18 and C‑429/18, EU:C:2020:219, a case in which the employer did not organise a selection procedure to fill a vacant post definitively (paragraph 51)).

185      See point 61 of this Opinion.

186      See footnote 80 to this Opinion.

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