March 30
2020
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23rd March 2020
Justice & Litigation

Analysis: “The scope and consequences of the CJEU’s jurisdiction in the field of the CFSP: AG Bobek’s Opinion in Case C-14/19 P, SatCen v KF” by Gesa Kübek

On 19 March 2020, Advocate General Bobek delivered his Opinion in SatCen v KF (C-14/19 P), which prima facie concerns a dispute between a decentralised EU agency operating in the field of the CFSP, namely the European Union Satellite Centre (SatCen), and a member of its staff. Beyond these specific confines, the dispute raises two questions of general importance: First, what is the scope of the Court of Justice of the EU’s (CJEU) jurisdiction with regard to administrative acts, such as acts of staff management, in the field of the CFSP? Second, assuming that the CJEU retains some jurisdiction, does that jurisdiction leave room for dispute settlement mechanisms established in EU bodies or agencies?

The ‘CFSP derogation’: purpose and scope

Pursuant to Articles 24(1) TEU and 275 TFEU, the CJEU does not generally have jurisdiction with respect to provisions relating to the CFSP and acts adopted on the basis of those provisions. In view of the inherent political nature of the CFSP, it is for the European Council and Council of the European Union to define and implement that policy and for the High Representative and the Member States to put it into effect – without involving the EU courts.

The scope of this ‘CFSP derogation’ from the CJEU’s general jurisdiction (Article 19 TEU) was gradually narrowed through a series of cases. The CJEU asserted jurisdiction over CFSP acts that had either a procedural (Mauritius and Tanzania) or a substantive (Elitaliana) link to non-CFSP provisions. It held that restrictive measures against natural and legal persons fall outside the scope of ‘CFSP derogation’ (Rosneft). And it affirmed jurisdiction for an act that fell, in terms of its operation, fully within the CFSP because its content essentially concerned staff management (H v Council and Others).

Towards a ‘genuine CFSP content’ test? 

In light of this case law, AG Bobek aims to establish more general criteria to determine whether or not the CJEU may affirm jurisdiction over CFSP acts. In his view, ‘in order to fall within the CFSP derogation, an EU act must fulfil two requirements. First, it must be formally based on CFSP provisions. Secondly, the act must also correspond, as to its content or substantively, to a CFSP measure’ (point 61). The AG admits that the second criterion does not stem from Articles 24(1) and 275 but from the CJEU’s ‘judicial fiat’. He further admits that, as a consequence, ‘acts that would seem to fall within the derogation, at least on a more formal reading of the Treaties, [are] being made subject to review’ (point 62). Nevertheless, such a narrow interpretation of the ‘CFSP derogation’ would be consistent with its purpose (a ‘carve-out’ for highly political acts) and a number of constitutional principles of EU law, such as the principles of institutional balance, effective judicial protection and equality.

As a consequence, the AG establishes a ‘genuine CFSP content test’: Could an act, which is formally based on the CFSP, be adopted in a non-CFSP context with a similar aim and content? If so, it is unlikely to have a ‘genuine CFSP content’. In case of dual or multiple content acts, the ‘CFSP derogation’ applies if the non-CFSP content is merely ancillary to the CFSP content.

In the present case, the AG found that the contested decisions could have similarly been adopted by any EU body or agency outside the field of the CFSP. Therefore, the AG agreed with the General Court’s (GC) finding that the CJEU has jurisdiction pursuant to Articles 263 and 268 TFEU. The AG further dismissed SatCen’s argument that an employee of an EU agency does not qualify as a ‘third party’ within the meaning of Article 263(1) TFEU and that therefore an arbitration clause in favour of the CJEU would have been required to confer jurisdiction (Article 272 TFEU). According to the AG, this would leave some individuals without access to any court, ‘trapped in sort of judicial “no man’s land”’ (point 112).

What about dispute settlement mechanisms established in EU bodies or agencies?

The SatCen Staff Regulation establishes an Appeals Board whose binding decisions shall not be appealed (Article 28(6)). The GC found that Article 28(6) SatCen Staff Regulation breaches Articles 19 TEU and 256 TFEU. Notably, SatCen did not raise this point as a ground of appeal. AG Bobek nevertheless considered it and disagreed with the GC’s finding. In his view, Article 28(6) excludes further administrative appeals but does not preclude the parties’ access to the CJEU. More generally, the AG reasoned that although the staff of EU bodies or agencies must have access to EU courts, it does not follow that that access ‘must be granted immediately and that an EU agency or body cannot have its own internal dispute settlement mechanism, even one of a semi-judicial nature’ (point 135).

This alleged error in law does however not call into question the substantive findings of the GC with which AG Bobek finds no fault. He therefore suggests to the CJEU that it dismiss the appeal.

Conclusion

The CJEU’s judgment in SatCen v KF may have constitutional significance. Building in particular on its decision in H v Council and Others, the CJEU is expected further clarify the scope of its jurisdiction on measures that fall squarely within the CFSP but do not have a ‘genuine CFSP content’. That is especially the case for acts of staff management but may equally concern other administrative acts that are not linked to the pursuit of the CFSP. If the CJEU follows AG Bobek’s suggestion and establishes a more general test, these acts might fall outside the ‘CFSP derogation’ as a matter of principle. AG Bobek’s main critique with the GC’s judgment does not form a separate ground of appeal. It is therefore at the discretion of the CJEU to address this point. Given its general scepticism towards other courts and tribunals, it would certainly be interesting to see the CJEU’s position on ‘semi-judicial’ administrative dispute settlement systems established in EU agencies or bodies.

Gesa Kübek is a research associate at Leuphana University Lüneburg and a PhD candidate at the University of Passau. Her PhD research concerns mixed agreements in the field of trade and investment.

 

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