NR v Ministero della Difesa and Others (C-238/24)

Contents

Judgment of the Court (First Chamber)10 April 2025^note(Reference for a preliminary ruling — Common foreign and security policy (CFSP) — Decision 2010/279/CFSP — European Union Police Mission in Afghanistan — Article 7(3) — Costs related to seconded staff — Allowances paid by both the European Union and the Member State to which the member of staff belongs — Concurrent — Final sentence of the second subparagraph of Article 24(1) TEU — First paragraph of Article 275 TFEU — Jurisdiction of the Court to interpret a provision of EU law concerning the CFSP)In Case C‑238/24 [Tartisai],^noteREQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 2 April 2024, received at the Court on 2 April 2024, in the proceedingsNRvMinistero della Difesa,Comando Generale dell’Arma dei Carabinieri,Comando Generale Carabinieri – Centro Nazionale Amministrativo – Chieti,Centro Amministrativo d’Intendenza Interforze del Contingente delle Forze Armate Italiane in Afghanistan,Centro Nazionale Amministrativo dell’Arma dei Carabinieri,THE COURT (First Chamber),composed of F. Biltgen (Rapporteur), President of the Chamber, T. von Danwitz, Vice-President of the Court, acting as Judge of the First Chamber, A. Kumin, I. Ziemele and S. Gervasoni, Judges,Advocate General: J. Richard de la Tour,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– NR, by A. Pucci, avvocato,– the Italian Government, by G. Palmieri, acting as Agent, and by E. Feola, avvocato dello Stato,– the Romanian Government, by R. Antonie, E. Gane and L. Ghiţă, acting as Agents,– the European Commission, by M. Bruti Liberati, M. Carpus-Carcea, L. Hohenecker and I. Melo Sampaio, acting as Agents,– the High Representative of the Union for Foreign Affairs and Security Policy, by M. Almeida Veiga, F. Hoffmeister, E. Orgován and I. Orsini, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 7(3) of Council Decision 2010/279/CFSP of 18 May 2010 on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) (OJ 2010 L 123, p. 4).

2The request has been made in proceedings between NR, on the one hand, and the Ministero della Difesa (Ministry of Defence, Italy), the Comando Generale dell’Arma dei Carabinieri (General Command of the Carabinieri Corps, Italy) – Comando Generale Carabinieri – Centro Nazionale Amministrativo – Chieti (General Command of the Carabinieri – National Administrative Centre – Chieti, Italy), the Centro Amministrativo d’Intendenza Interforze del Contingente delle Forze Armate Italiane in Afghanistan (Inter-forces Administrative Centre of the Italian Armed Forces Contingent in Afghanistan, Italy) and the Centro Nazionale Amministrativo dell’Arma dei Carabinieri (National Administrative Centre of the Carabinieri Corps, Italy) (together, ‘the Defence Authorities’) concerning the recovery by the Defence Authorities of the overseas mission allowance received by NR under Italian legislation.

Legal context

European Union law

3Article 2 of Decision 2010/279, entitled ‘Objectives’ provided:‘[The European Union Police Mission in Afghanistan (“EUPOL Afghanistan mission”)] shall significantly contribute to the establishment under Afghan ownership of sustainable and effective civilian policing arrangements, which will ensure appropriate interaction with the wider criminal justice system, in keeping with the policy advice and institution-building work of the [European] Union, Member States and other international actors. Furthermore, the [EUPOL Afghanistan mission] will support the reform process towards a trusted and efficient police service, which works in accordance with international standards, within the framework of the rule of law and respect for human rights.’

4Article 7 of that decision, entitled ‘Staff’, stated:1. The numbers and competence of [EUPOL Afghanistan mission] staff shall be consistent with the objectives set out in Article 2, the tasks set out in Article 3 and the structure of the [EUPOL Afghanistan mission] set out in Article 4.2. [EUPOL Afghanistan mission] staff shall consist primarily of staff seconded by Member States or EU institutions.3. Each Member State or EU institution shall bear the costs related to any of the staff seconded by it, including travel expenses to and from the place of deployment, salaries, medical coverage, and allowances, other than applicable per diems as well as hardship and risk allowances.…5. All staff shall carry out their duties and act in the interest of the [EUPOL Afghanistan mission]. All staff shall respect the security principles and minimum standards established by Council Decision 2001/264/EC of 19 March 2001, adopting the Council’s security regulations [(OJ 2001 L 101, p. 1)].’

5Under Article 8 of that decision, headed ‘Status of [EUPOL Afghanistan mission] staff’:1. The status of [EUPOL Afghanistan mission] staff in Afghanistan, including, where appropriate the privileges, immunities and further guarantees necessary for the completion and smooth functioning of [EUPOL Afghanistan mission] shall be laid down in an agreement to be concluded in accordance with Article 37 of the [EU] Treaty.2. The State or EU institution having seconded a member of staff shall be responsible for answering any claims linked to the secondment, from or concerning the member of staff. The State or EU institution in question shall be responsible for bringing any action against the person seconded.3. The conditions of employment and the rights and obligations of international and local civilian staff shall be laid down in contracts between the Head of [EUPOL Afghanistan mission] and the members of staff.’

Italian law

6Article 2 of regio decreto n. 941 – Indennità al personale dell’Amministrazione dello Stato incaricato di missione all’estero (Royal Decree No 941 – Allowances paid to staff of the State administration staff on overseas mission) of 3 June 1926 (GURI No 134 of 11 June 1926; ‘Royal Decree No 941/26’) provides, in respect of persons taking part in international missions, that the mission allowance referred to therein is payable ‘from the day where the border is crossed or from the day of disembarkation abroad until the day on which the border is crossed or the day of embarkation for return.’

7Article 39 vicessemel, paragraph 39, of decreto-legge n. 273 – Definizione e proroga di termini, nonché conseguenti disposizioni urgenti (Decree-Law n^o 273 – Definition and extension of the deadlines and the resulting emergency provisions), of 30 December 2005 (GURI No 303 of 30 December 2005), converted into law, with amendments, by legge n. 51 (Law No 51) of 23 February 2006 (GURI No 49 of 28 February 2006), provides:‘Article 1 of [Royal Decree No 941/26], Article 1(1)(b) and Article 3 of Law No 642 of 8 July 1961, and Article 4(1)(a) of Law No 838 of 27 December 1973 must be interpreted as meaning that the emoluments provided for therein are ancillary in nature and are paid as compensation for the disadvantages and risks associated with employment, the obligations of on-call duty and availability at unsocial hours, and by way of replacement for overtime pay.’

8Article 3(1) of Legge No 108 – Proroga della partecipazione italiana a missioni internazionali (Law No 108 – Extension of Italian participation in international missions) of 3 August 2009 (GURI No 181 of 6 August 2009; ‘Law No 108/2009’) provides:‘From the date of entry into the territory, territorial waters and airspace of the countries concerned until the date of exit from those countries in order to return to national territory because of the end of the mission, staff involved in the international missions referred to in this Law shall receive, net of any deductions, for the entire duration of the period and in addition to their salary or salary and other fixed and continuous allowances, the mission allowance referred to in [Royal Decree No 941/26], up to the amounts indicated below, less any allowances and contributions paid on the same basis directly to the persons concerned by international bodies …’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9The applicant in the main proceedings, who is a member of the Carabinieri, joined, in that capacity, the EUPOL Afghanistan mission in June 2011.

10He was paid at national level a daily allowance (‘per diem’) provided for in Article 3 of Law No 108/2009. He also received emoluments from the EUPOL Afghanistan mission, comprised of three types of allowances, referred to respectively as the ‘per diem allowance’, ‘hardship allowance’ (an allowance for difficult working conditions) and ‘risk allowance’.

11In March 2012, the Defence Authorities initiated, on the basis of Law No 108/2009, the recovery, from the applicant in the main proceedings, of sums received in respect of the mission allowance paid to him in accordance with Royal Decree No 941/26. Article 3(1) of Law No 108/2009 provides, in essence, that for persons involved in international missions, the allowance owed to them in accordance with Royal Decree No 941/26 is to be paid to them after deduction of any allowances that they receive directly from international bodies. At the end of its analysis, that authority, in December 2020, thus decided to recover an amount of EUR 25 131.80 from the applicant in the main proceedings.

12The applicant in the main proceedings brought an action against that decision claiming, inter alia, that it was apparent from a letter dated 11 August 2011, sent by the Legal Adviser to the Head of the EUPOL Afghanistan mission to the Inter-forces Administrative Centre of the Italian Armed Forces Contingent in Afghanistan that, under Article 7 of Decision 2010/279, the Member States should bear the costs of seconded staff, including travel expenses, medical cover and the applicable allowances. According to the applicant in the main proceedings, the allowances paid in connection with the EUPOL Afghanistan mission were to be added to those paid under Italian law. In support of his position, he also relied on the English language version of Article 7(3) of Decision 2010/279 and submitted that the words ‘other than’ set out therein should be understood as meaning ‘in addition to’.

13As the court of first instance rejected the action brought by the applicant in the main proceedings, he brought an appeal against that decision before the referring court, the Consiglio di Stato (Council of State, Italy).

14Before that court, the applicant in the main proceedings restated his argument put forward at first instance and claimed that the Defence Authorities are required, in accordance with the principle of the primacy of EU law over national law, to pay the Italian mission allowances whereas the EU allowances, namely the per diems, the hardship allowance and the risk allowance should, as stated by the Legal Adviser to the Head of Mission of EUPOL Afghanistan, be paid separately, as they are provided for by a joint action and therefore do not come under the competence of the national authorities. In support of his interpretation of Article 7(3) of Decision 2010/279, the applicant in the main proceedings relies, again, on the English-language version of that provision and claims that it is apparent from that version that the national allowances must be paid ‘in addition to’ those paid on the same basis by the European Union.

15The referring court has doubts as to the exact meaning to be given to the expression ‘other than’ in the English-language version of Article 7(3) of Decision 2010/279. According to that court, although that expression may be translated into Italian either by ‘in addition to’ or ‘except’, other language versions of that decision, in particular the French-language version, are not open to interpretation in that they use the wording ‘à l’exclusion des’ (except), like the Italian-language version which uses the term ‘diverse da’ (‘apart from, different from’).

16In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) What is the correct interpretation of Article 7(3) of [Decision 2010/279], that is to say, was the intention behind that provision to provide that allowances paid by a Member State were to be received [concurrently] with those granted by EUPOL?(2) In the event that that interpretation leads to the conclusion that the allowances described above can be received [concurrently], according to the interpretation provided by the Court referred to above, does Article 7(3) of [Decision 2010/279] preclude a national rule, such as the rule resulting from the provisions of Article 3(1) of legge n. 108/2009 (Law No 108/2009), in so far as it provides that ‘… the staff involved in the international missions referred to in this law shall be paid, after tax and social security deductions, throughout the period, in addition to salary or pay and other fixed and continuous allowances, the mission allowance provided for by [Royal Decree No 941/26], … less any allowances and contributions paid on the same basis directly to the persons concerned by international bodies’, and by Article 1 of [Royal Decree No 941/26], Article 1(b) and Article 3 of Law No 642 of 8 July 1961 and Article 4(1)(a) of Law No 838 of 27 December 1973, the purpose of that rule being to prohibit the cumulation of allowances?’

17On 11 July 2024, the Court invited, on the basis of Article 24(2) of the Statute of the Court of Justice of the European Union, the EU High Representative for Foreign Affairs and Security Policy to provide information concerning the objectives pursued by Article 7(3) of Decision 2010/279.

The jurisdiction of the Court

18The Romanian Government is of the view that, under the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not have jurisdiction to interpret a provision relating to the common foreign and security policy (CFSP), such as Article 7(3) of Decision 2010/279. The European Commission contends that the Court does have jurisdiction to interpret that provision.

19In that regard, it must be borne in mind that, in accordance with the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court of Justice of the European Union does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions. Those provisions introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court of Justice of the European Union to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly (judgments of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraphs 39 and 40; of 10 September 2024, Neves 77 Solutions, C‑351/22, EU:C:2024:723, paragraph 35; and of 10 September 2024, KS and Others v Council and Others, C‑29/22 P and C‑44/22 P, EU:C:2024:725, paragraph 62).

20Further, the final sentence of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275 TFEU expressly establish two exceptions to that principle, namely the Court’s jurisdiction, first, to monitor compliance with Article 40 TEU and, second, to give rulings on actions brought subject to the conditions laid down in the fourth paragraph of Article 263 TFEU, concerning the review of the lawfulness of decisions of the Council of the European Union adopted on the basis of provisions relating to the CFSP, which provide for restrictive measures against natural or legal persons (judgments of 10 September 2024, Neves 77 Solutions, C‑351/22, EU:C:2024:723, paragraph 36 and of 10 September 2024, KS and Others v Council and Others, C‑29/22 P and C‑44/22 P, EU:C:2024:725, paragraph 63 and the case-law cited).

21It must be stated, in the present case, that the questions referred for a preliminary ruling do not come under any of those exceptions.

22It is therefore still necessary to assess whether the jurisdiction of the Court may be based on the fact that the acts at issue in the main proceedings are not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the European Union in the context of the CFSP, since, in the absence of any direct link to those political or strategic choices, the Court has jurisdiction, inter alia, to interpret those acts (see, to that effect, judgment of 10 September 2024, KS and Others v Council and Others, C‑29/22 P and C‑44/22 P, EU:C:2024:725, paragraphs 116 and 117 and the case-law cited).

23In that regard, the Court has already held that the scope of the limitation, by way of derogation, on the jurisdiction of the Court of Justice, which is laid down in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, is not so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs, at theatre level, of a mission such as the EUPOL Afghanistan mission, when the EU judicature has, in any event, jurisdiction to review such acts where they concern staff members seconded by the EU institutions (see, to that effect, judgment of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraph 55).

24Any other interpretation would, in particular, have the consequence that, where a single act of staff management relating to ‘field’ operations concerns both staff members seconded by the Member States and staff members seconded by the EU institutions, the decision rendered with regard to the former would be liable to be irreconcilable with that rendered by the EU judicature with regard to the latter (judgment of 19 July 2016, H v Council and Others, C‑455/14 P, EU:C:2016:569, paragraph 57).

25In the present case, first, Article 7(3) of Decision 2010/279, an interpretation of which is sought by the present request for a preliminary ruling, concerns expenditure relating to staff seconded in the context of the EUPOL Afghanistan mission, with the result that that provision is not directly related to the political or strategic choices made by the institutions, bodies, offices and agencies of the European Union in the context of the CFSP (see, by analogy, judgment of 10 September 2024, KS and Others v Council and Others, C‑29/22 P and C‑44/22 P, EU:C:2024:725, paragraph 128).

26Second, and notwithstanding the fact that that provision is not an act of staff management relating to ‘field’ operations, the fact remains that it concerns, on the same basis, staff members seconded by the Member States and by the EU institutions respectively as regards the defrayal of that expenditure. In order to ensure a uniform interpretation of that provision and to avoid a situation in which decisions concerning staff seconded by the Member States are irreconcilable with those made by the EU judicature concerning staff seconded by the EU institutions, within the meaning of the case-law referred to in paragraph 24 above, it must be held that the Court has jurisdiction to interpret that provision.

27Accordingly, it must be concluded that the Court has jurisdiction to interpret Article 7(3) of Decision 2010/279.

Consideration of the questions referred

The first question

28By its first question, the referring court asks, in essence, whether Article 7(3) of Decision 2010/279 must be interpreted as providing for the applicable per diems as well as hardship and risk allowances, paid by the European Union to a member of staff of the police mission extended by that decision, to be received concurrently with allowances of the same kind paid to a member of staff in respect of the performance of the same duties with that police mission by the Member State of that member of staff.

29In the present case, the referring court’s doubts as to the correct interpretation of Article 7(3) of Decision 2010/279 arise from the fact that, according to the applicant in the main proceedings, the wording ‘other than’, in the English-language version of that provision, must be understood as meaning ‘in addition to’ and not ‘except’.

30In that regard, according to settled case-law, the need for a uniform interpretation of provisions of EU law makes it impossible for the text of a provision to be considered, in case of doubt, in isolation but requires that it be interpreted and applied in the light of the versions existing in the other official languages. Moreover, where there is divergence between the various language versions of an EU text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 15 April 2010, Handelsgesellschaft Heinrich Heine, C‑511/08, EU:C:2010:189, paragraph 51 and the case-law cited). By contrast, where the literal interpretation of a provision makes apparent that the wording of it is perfectly clear and unequivocal, there is no need to seek another interpretation of that provision (see, by analogy, judgment of 11 April 2024, OSTP Italy, C‑770/22, EU:C:2024:299, paragraph 47 and the case-law cited).

31As regards, in the present case, the wording of Article 7(3) of Decision 2010/279, it must be noted that, according to the referring court, the words ‘other than’ in the English-language version of that decision may be understood as meaning, in that language, both ‘except’ and ‘in addition to’.

32That said, it must be noted that the French-language version of that provision states that each Member State or EU institution is to 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 ‘à l’exclusion des’ (except) applicable per diems as well as hardship and risk allowances.

33The wording ‘à l’exclusion des’ (except) in the French-language version of Article 7(3) of Decision 2010/279 is equivalent, in essence, to many other language versions of that provision, in particular the Italian-, Czech-, Danish-, German-, Estonian-, Croatian-, Latvian-, Lithuanian-, Hungarian-, Dutch-, Portuguese-, Slovenian-, Finnish- and Swedish-language versions of that provision. By using, respectively, the terms ‘diverse da’, ‘s výjimkou’, ‘bortset fra’, ‘anderer […] als’, ‘välja arvatud’, ‘osim’, ‘izņemot’, ‘išskyrus’, ‘kivételével’, ‘en andere vergoedingen dan’, ‘com excepção das’, ‘razen’, ‘muista […] kuin’ and ‘andra […] än’, those language versions have that meaning.

34Since the wording ‘other than’ in the English-language version of Article 7(3) of Decision 2010/279 can mean ‘except’ and that meaning is fully consistent with the wording used in the other language versions of that provision, it must be held that only that meaning can be accepted and that there is therefore no disparity between the different language versions of that provision.

35As is apparent from paragraphs 32 and 33 above, the different language versions support the conclusion that the wording of Article 7(3) of Decision 2010/279 does not provide for applicable per diems as well as hardship and risk allowances, paid by the European Union to a member of staff of the EUPOL Afghanistan mission, to be received concurrently with allowances of the same kind given to a member of staff in respect of the performance of the same duties with that police mission by the Member State of that member of staff. As the wording of that provision is sufficiently clear and unambiguous, there is no need to interpret that provision by reference to the general scheme and purpose of Decision 2010/279.

36In the light of the above considerations, the answer to the first question is that Article 7(3) of Decision 2010/279 must be interpreted as not providing for the applicable per diems as well as hardship and risk allowances, paid by the European Union to a member of staff of the police mission extended by that decision, to be received concurrently with allowances of the same kind paid to that member of staff in respect of the performance of the same duties with that police mission by the Member State of that member of staff.

The second question

37Since the referring court has asked its second question only in the event that the first question is answered in the affirmative, there is no need to answer that second question.

Costs

38Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules: Article 7(3) of Council Decision 2010/279/CFSP of 18 May 2010 on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN)must be interpreted as not providing for the applicable per diems as well as hardship and risk allowances, paid by the European Union to a member of staff of the police mission extended by that decision, to be received concurrently with allowances of the same kind paid to that member of staff in respect of the performance of the same duties with that police mission by the Member State of that member of staff.