8. Implementation of the Duty of Care by the European Union

Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, OJ P 45, 14 June 1962, with subsequent amendments, pp. 1385 ff. On the categories of EU staff to which the Staff Regulations apply see Sect. 8.3.3 of the present chapter.

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, OJ L 183, 29 June 1989, pp. 1 ff. See also COM(2017) 12 final, Safer and Healthier Work for All—Modernisation of the EU Occupational Safety and Health Legislation and Policy, 10 January 2017.

EU Civil Service Tribunal, Livio Missir Mamachi di Lusignano v. Commission, 12 May 2011, Case F-50/09, para 127 (see Annex II, Case 6). See also EU Civil Service Tribunal, Laleh Aayhan et al. v. Parliament, 30 April 2009, Case F-65/07, para 116 (see Annex II, Case 8).

See Council 2006. The guidelines enshrined in the PSC’s policy specifically address civilian ESDP missions as well as to the deployment of EU Special Representatives. They do not cover military operations.

General Secretariat of the Council 2008.

Commission decision (EU, Euratom) 2015/443 of 13 March 2015 on Security in the Commission, OJ L 72, 17 March 2015, pp. 41 ff.

EEAS 2016.

Decision 2013/C of the High Representative of the Union for Foreign Affairs and Security Policy of 19 April 2013 on the security rules of the European External Action Service, OJ C 190, 29 June 2013, pp. 1 ff. A general obligation on security (including the security of staff) was already enshrined in Article 10 of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service, OJ L 201, 3 August 2010, pp. 30 ff.

In recital 2 of the EEAS security decision of 2013, the EEAS acknowledged the necessity to ‘decide on security rules for the EEAS covering all aspects of security regarding the functioning of the EEAS, so that it can manage effectively the risks to staff placed under its responsibility, to its physical assets, information, and visitors, and fulfil its duty of care responsibilities in this regard’. As we will see, the variety of regulations and guidelines, covering different aspects of the Duty of Care of each EU institution, may produce uncertainties as to the applicable regime and to the consequences of violations of protection obligations.

The Council has a regulation on security as well, although it covers only the security of classified information. See Council Decision 2001/264/EC of 19 March 2001 adopting the Council's security regulations, OJ L 101, 11 April 2004, pp. 1 ff.

See on the issue Chaps. 14 and 17 of this volume.

See ECJ, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp., 24 November 1992, Case C-286/90; A. Racke GmbH Co. v. Hauptzollamt Mainz, 16 June 1998; Case C-63/09, A. Walz v. Clickair SA, 6 May 2010, Case C-162/96. In this regard, see Wouters and Van Eeckhoutte 2002; Gianelli 2012, pp. 93 ff.

For the analysis of specific obligations arising in these cases, see Sect. 8.4 of this chapter.

The ECHR and the case-law of the European Court of Human Rights form part of the general principles of EU law. Moreover, according to Article 52(3) of the EU Charter of Fundamental Rights ‘[i]n so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’.

On these aspects, see Sect. 8.4 of the present chapter.

Duty of care obligations also cover military operations and armed forces, although in different terms and through different mechanisms. See, for some references, de Guttry 2012.

See in this sense de Guttry 2015, p. 681. The author underlines that duty of care provisions (in particular those related to the Commission staff) shall not be restricted to buildings and areas surrounding the location of the workplace. The obligations of the duty of care need to be applied, as far as it is reasonably possible, ‘to protect the employee wherever he/she carries out his/her duties’.

See Decision No 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism, OJ L 347, 20 December 2013, pp. 924 ff. See also Gestri 2012, pp. 117 ff.

EU Civil Service Tribunal, Livio Missir Mamachi di Lusignano, paras 116 ff. Article 2(a) of the 2006 Commission decision defines the Commission workplaces as the places ‘intended to house workstations on the premises of the Commission and any other place within the area of these premises to which the Staff has access in the course of their work’. This conclusion flows also from the rule enshrined in Article 5(2) of the Annex X of the SR, according to which ‘[i]f the institution provides the official with accommodation which corresponds to the level of his duties and to the composition of his dependent family, he shall reside in it’.

Council 2006, Annex, para 2.

The content of these agreements is examined in the next section the present contribution on subjects responsible for the implementation of the duty of care.

See Article 1, Annex X of SR.

See Article 1a of SR.

For the definition of these different roles see Articles 2–5a of CEOS.

See Articles 10 and 28 of CEOS.

See respectively Articles 80(5) and 81 and Articles 126(2) and 127 of CEOS.

Article 4 CEOS.

See Article 124 CEOS mentioning all the rules of the SR applicable by analogy to local staff.

This issue will be dealt with in the next section.

See especially Chaps. 16 and 17 of this volume.

For an analysis of the host country’s obligations, see Chap. 4 of this volume.

CSDP missions are not the only case in which the EU concludes such agreements. In the context of the EU’s Election Observation Missions, the European Commission seeks to sign memorandums of understanding (MoU) with the state and electoral authorities of the host country before the deployment of the mission. The memorandums set out the role and responsibilities of the mission and EU observers and the corresponding role and responsibilities of the host country authorities. See EEAS 2016, pp. 127–128. The distinction with SOMAs, however, lies in the fact that these MoUs are not considered binding under international law.

On the issue see Sari 2008, pp. 68–69. This contribution does not take into consideration the practice of Status of Force Agreements (SOFAs) as they usually deal only with the presence of foreign military forces. See generally Bowett 1997, p. 266; Erikson 1994, p. 137.

See e.g. Council Decision 2014/486/CFSP (EUAM Ukraine), Article 9.

Agreement between the European Union and the Republic of Guinea-Bissau on the Status of the European Union Mission in Support of Security Sector Reform in the Republic of Guinea-Bissau, OJ L 219/66, 14 August 2008, Article 9.

Agreement between the European Union and the Islamic Republic of Afghanistan on the Status of the European Union Police Mission in Afghanistan, OJ L 294/2, 12 November 2010, Article 9; Agreement between the European Union and the Republic of Niger on the status of the European Union mission in Niger CSDP, OJ L 242/2, 11 September 2013, Article 9. All of these provisions follow the common pattern inserted in the EU model for SOMAs adopted by the Council in document no. 17141/08 of 15 December 2008.

See also Council 2006, p. 12, para 30: the conclusion of an agreement with the host country ‘[…] does not obviate the requirement for the European Union to take adequate steps of its own to ensure the security of its personnel, particularly where state authority is limited or non-existent’.

The duty of protection of EU forces and personnel (SOFA) imposed on the host country is sometimes more burdensome and detailed. See for instance Agreement between the European Union and the Republic of Uganda on the Status of the European Union-led Mission in Uganda, OJ L 221/2, 24 August 2010, Article 13(1) (‘[t]he Host State shall take all appropriate measures to ensure the safety and security of EUTM Somalia and its personnel, including those necessary to protect its facilities against any external attack or intrusion’) and Article 13(2) (The EU Mission Commander may establish a military police unit in order to maintain order in EUTM Somalia facilities’).

The question of whether the EU has a duty to conclude a SOMA with the host State in order to guarantee the full implementation of duty of care obligations is analysed in the next section.

For an overview of the EU’s practice see Koutrakos 2013, pp. 192–193.

See e.g. Council Joint Action 2008/736/CFSP (EUMM Georgia), Article 11(2); Council Joint Action 2005/797/CFSP (EUPOL COPPS), Article 12(2).

See Wouters and Duquet 2011, p. 6; Kerres and Wessel 2015.

EEAS Decision, Article 5(1).

Certain provisions of the Vienna Convention, such as the most favoured nation requirement, are per se not applicable to the Establishment Agreement. See Wouters and Duquet 2011, p. 15. For a template of the Establishment Agreement see Kuijper et al. 2013, pp. 51–52.

1961 Vienna Convention on Diplomatic Relations, Article 22(2).

ICJ, Case Concerning United States Diplomatic and Consular Staff in Teheran, 20 May 1980, I.C.J. Reports 1980, p. 3, para 63, where the Court recognised that ‘the Iranian Government failed altogether to take any ‘appropriate steps’ to protect the premises, staff and archives of the United States’ mission against attack by the militants, and to take any steps either to prevent this attack or to stop it before it reached its completion’. On Article 22 of the 1961 Vienna Convention see Denza 2016, pp. 110 ff.

ICJ, Case Concerning Armed Activities on the Territory of Congo (Democratic Republic of Congo v. Uganda), 19 December 2005, I.C.J. Reports 2005, p. 168, para 342: ‘The Vienna Convention on Diplomatic Relations not only prohibits any infringements of the inviolability of the mission by the receiving State itself but also puts the receiving State under an obligation to prevent others – such as armed militia groups – from doing so’.

When the host State is materially incapable of guaranteeing the security of the mission, one might argue that the whole set of duty of care obligations rests solely on the EU. In any event, each specific obligation needs to be construed by taking into consideration the concrete powers that the EU is able to exercise when acting in a foreign country.

de Guttry 2012, p. 281. See also Chap. 3 of this volume.

Generally on the organization of CSDP civilian mission, see Koutrakos 2013, pp. 57 ff. and pp. 134 ff.; Bossong 2013, pp. 94 ff. On past EU civilian missions, see also Naert 2007, pp. 61 ff.

See for instance Council Joint Action 2007/405/CFSP of 12 June 2007 on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo), Article 14(2); Council Joint Action 2008/736/CFSP of 15 September 2008 on the European Union Monitoring Mission in Georgia (EUMM Georgia), Article 12(2); Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger), Article 11(2); Council Decision 2014/219/CFSP of 15 April 2014 on the European Union CSDP mission in Mali (EUCAP Sahel Mali), Article 11(2); Council Decision 2014/486/CFSP of 22 July 2014 on the European Union Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine), Article 11(2); Council Decision 2017/1869/CSFP of 16 October 2017 on the European Union Advisory Mission in support of Security Sector Reform in Iraq (EUAM Iraq), Article 11(2).

See e.g. Council Decision 2014/219/CFSP (EUCAP Sahel Niger), Article 5(7); Council Decision 2017/1869/CSFP (EUAM Iraq), Article 5(6).

CSDP civilian missions are not clearly defined in the Treaties, but their core element lies in the absence of military objectives and instruments. See however the definition provided in European Council 2003, p. 7, according to which ‘civilian crisis management helps restore civil government’.

This would allow reverting the command of seconded staff to Member States in exceptional situations. On the concept of command and control in EU civilian missions, see Council 2008.

Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), Article 6(2); Council Joint Action 2008/736/CFSP (EUMM Georgia), Article 6(2); Council Decision 2014/219/CFSP (EUCAP Sahel Niger), Article 6(2). While the illustrated mechanism only applies in the context of CSDP civilian missions, there are examples of secondment from the Member States following a similar pattern, as in the case of Civilian Response Teams (CRT) and Security Sector Reform Units. See Marhic 2011, pp. 248–249. CRTs, for instance, can be deployed before the adoption of the decision establishing the civilian mission and can be entrusted with fact-finding tasks. In this case too, notwithstanding the absence of the Head of Mission, they fall under the chain of command of the Council Secretariat. When they are deployed in support of a EUSR, CRTs work under the authority of the EUSR. See Council 2005, para 14.

Depending on whether the seconded staff come from a Member States or a EU institution. See Council Joint Action 2007/369/CFSP of 30 May 2007 on establishment of the European Union Police Mission in Afghanistan, Article 8(2); Council Decision 2014/219/CFSP (EUCAP Sahel Mali), Article 8(2); Council Decision 2017/1869/CSFP (EUAM Iraq), Article 7(2). Claims may relate to the treatment of staff by seconding State. See for instance Council Decision 2014/486/CFSP (EUAM Ukraine), Article 8(2): ‘[e]ach Member State […] 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 daily allowances’.

Council Joint Action 2005/797/CFSP of 14 November 2005 on the European Union Police Mission for the Palestinian Territories (EUPOL COPPS), Article 6(2); Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), Article 6(5); Council Decision 2014/219/CFSP (EUCAP Sahel Niger), Article 6(2).

See e.g. Council Decision 2014/219/CFSP (EUCAP Sahel Niger), Article 11(1): ‘[t]he Civilian Operation Commander shall direct the Head of Mission’s planning of security measures and ensure their proper and effective implementation by EUCAP Sahel Niger in accordance with Article 5’.

See Civilian Planning and Conduct Capability Directorate 2016. On the distribution of costs between Member States and the EU in relation to seconded personnel see also Council, Guidelines for allowances for seconded staff participating in EU civilian crisis management missions, doc. 7291/09, 10 March 2009; Council, New method of calculation of the per diem for seconded staff participating in EU civilian crisis management missions and EUSRs teams, doc. 9084/13, 30 April 2013.

See Koutrakos 2013, p. 61.

Article 32 TEU: ‘Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment that could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity’.

See more generally on this issue Buscemi, Chap. 5, Sect. 5.​3.​2.

This is also evident from the nature of the mentioned TEU provision, which constitutes a special application of the principle of sincere cooperation, enshrined in Article 4(3) TEU. On the principle of sincere cooperation and on its role in regulating Member States’ competences see Blanke 2013, pp. 232 ff. and Thies 2012, pp. 326 ff.

EU Civil Service Tribunal, Missir Mamachi di Lusignano, para 132. The acknowledgment of duty of care obligations and the findings on the responsibility of the Commission towards Mr. Missir Mamachi and his heir have been recently confirmed by the General Court of the EU (Appeal Chamber), Stefano Missir Mamachi di Lusignano v. Commission, 7 December 2017, Case T‑401/11 P-RENV-RX (see Annex II, Case 10).

EU Civil Service Tribunal, Missir Mamachi di Lusignano, para 130. Note that also the EEAS has recognised that the duty of care entails a due diligence standard. See EEAS Security Decision, Article 3(2): ‘[t]he EEAS duty of care comprises due diligence in taking all reasonable steps to implement security measures to prevent reasonably foreseeable harm to EEAS security interests’.

EU Civil Service Tribunal, Missir Mamachi di Lusignano, para 126.

See also Directive 2008/104/EC of the European Parliament and the Council of 19 November 2008 on temporary agency work, OJ L 327, 5 December 2008, pp. 9 ff., extending certain guarantees to workers with a temporary-work agency employment relationship.

See in particular Articles 6, 8, 10 and 12 of Directive 89/391.

See Chartered Institute of Personnel and Development 2016. In 2014, a ‘Joint Action on Mental Health and Well-being’ was launched with support from the EU Health Programme, ‘seeking to create a framework for action in mental health policy at European level’. However, a specific set of provisions dealing with mental health, also in relation to EU personnel, is still missing. Some references to the obligation to guarantee mental health of employees in workplaces can be found in Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ L 348, 28 November 1992, pp. 1 ff.

de Guttry 2012, p. 283.

Council 2006, p. 7.

EU Civil Service Tribunal, Missir Mamachi di Lusignano, para 135.

General Secretariat of the Council 2008, p. 9. On risk assessment procedures see also EEAS Security Decision, Article 10. Similar procedures are also envisaged for election observation missions, including the possibility to deploy an exploratory mission with the aim to assess the risk, while an ongoing assessment of security risks to the EU EOM will be made by the core team in consultation with the European Commission. See EEAS 2016, pp. 121–122.

General Secretariat of the Council 2008, pp. 14–17. The Head of Mission is assisted in this task by a Mission Security Officer.

Council 2006, p. 8.

EEAS Security Decision, Article 4.

Council 2006, p. 9.

See e.g. Council Joint Action 2008/736/CFSP (EUMM Georgia), Article 8(1): ‘[t]he status of the Mission and its staff, including where appropriate the privileges, immunities and further guarantees necessary for the completion and smooth functioning of the Mission, shall be agreed in accordance with the procedure laid down in Article 24 of the Treaty. The SG/HR, assisting the Presidency, may negotiate such an agreement on its behalf’.

EEAS Security Decision, Article 3(3): ‘[t]aking into account the duty of care responsibility of Member States, EU institutions or bodies and other parties with staff in Union Delegations and/or in Union Delegation premises, or such responsibility incumbent upon the EEAS when Union Delegations are hosted in above mentioned other parties’ premises, the EEAS shall enter into administrative arrangements with each of the above entities that shall address the respective roles and responsibilities, tasks and cooperation mechanisms’.

Omissions by EU institutions in this context may also be scrutinised by the ECJ under Article 265 TFEU on actions on failure to act.

See Shaw 2014, pp. 598–601. On the standard of treatment of aliens in the host country’s territory, see Brownlie 2008, pp. 524–525. Specific obligations on the treatment of individuals, irrespective of their nationality, also flow from international human rights law, especially as far as the right to life and to personal integrity are concerned. See on this issue Lillich 1984.

General Secretariat of the Council 2008, pp. 137 ff.

Ibid., pp. 167 ff.

EEAS Security Decision, Article 6.

See Chap. 2 of this volume.

Such as medical insurance. According to the ECJ, the employer has to provide the staff with various services of a social nature, which, under specific circumstances, extend to other members of the family. See ECJ, Mario Berti v. Commission of the European Communities, 7 October 1982, Case C-131/81 (see Annex II, Case 7).

See Article 10 of Annex X of the SR.

de Guttry 2012, p. 287.

See e.g. the Call for Contributions to EUAM Iraq, available at www.​eeas.​europa.​eu (accessed 14 January 2018): ‘EUAM Iraq has a High Risk Non-Family Mission status due to the present risk rating of the Mission area as high. As such, international seconded and contracted Mission Members shall at no time receive visits or be habitually accompanied by any family member in the Mission area for the duration of their tour of duty or contract. For security reasons, the Mission Members are obliged to live in restricted areas, where security responsibilities are borne by the Mission’. See also the Job Description for posts to the EUCAP Sahel Niger Mission of 2017, available at www.​eeas.​europa.​eu (accessed 15 January 2018).

ECJ, Michael Weiser, 14 June 1990, Case C-37/89.

ECJ, Lindorfer v. Council, 11 September 2007, Case C-227/04, paras 50–59.

See recently EU Civil Service Tribunal, Carlo De Nicola v. European Investment Bank, 8 December 2015, Case F-104/13.

See e.g. General Secretariat of the Council 2016, which makes reference to the Annex to the Generic Standards of Behaviour for ESDP Operations (8373/3/05, 18 May 2005). See also European Ombudsman 2001.

General Secretariat of the Council 2016, Articles 16 ff.

See especially Article 73 SR.

de Guttry 2012, p. 288.

Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC, OJ L 106/1, 24 April 2015.

Directive 2015/637, Article 11.

On the functioning of consular and diplomatic protection of EU citizens abroad see CARE 2010.

ICJ, Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, in I.C.J. Reports 1949, p. 174. See also Benlolo Carabot and Ubéda-Saillard 2010, p. 1075.

Koutrakos 2015, pp. 14–15. See also ECJ, France v Council (re: Competition Agreement with USA), 9 August 1994, Case C-327/91.

This derives from the objective (or erga omnes) nature of the organization’s international legal personality. See d’Argent 2013, pp. 450–452. No rule under international law clarifies whether, in the case of concurrent claims by the State of nationality and the organization to which the agent belongs, one claim has to take priority over the other. In this context, duties of consultation and cooperation between Member States and the EU, as established by the principle of sincere cooperation, are of the utmost importance.

Benlolo Carabot and Ubéda-Saillard 2010, pp. 1078–1079.

EU Civil Service Tribunal, Missir Mamachi di Lusignano, para 22.

Council 2006, p. 9.

EEAS Security Decision, Article 11(1).

See e.g. Council Joint Action 2008/736/CFSP (EUMM Georgia), Article 12(4); Council Decision 2014/486/CFSP (EUAM Ukraine), Article 11(4) and Council Joint Action 2008/124/CFSP (EULEX Kosovo), Article 14(5).

Council 2006, p. 14, para 34(b), which states that Member States are responsible for ensuring ‘that appropriate measures are taken at national level for the security and safety of their respective personnel seconded to crisis management operations in accordance with requirements set out in the CONOPS and/or OPLAN or other arrangements setting out specific requirements for the security of seconded personnel including, but not limited to, their training, protection and insurance’.

de Guttry 2012, p. 291.

Council 2017, para 25. According to the Council, ‘each Member State preserves full discretion with regard to the organisation of its own training system’ (para 28).

Ibid., para 29.

Article 90(2) further details the timeline for such a procedure.

See Article 91(2) SR.

See generally, ECJ, Meyer-Burckhardt v. Commission, 22 October 1975, Case C-9/75, para 7; ECJ, Pomar v. Commission, 10 June 1987, Case C-317/85, para 7; EU Civil Service Tribunal, Nonopoulos v. Commission, 11 May 2010, Case F-30/08, paras 130–133 (see Annex II, Case 9).

The relationship between this head of jurisdiction and the one under Article 340 TFEU on non-contractual liability of the Union is still debated within the ECJ. See however EU Civil Service Tribunal, Missir Mamachi di Lusignano, para 122. For recent developments on the same case see General Court of the EU (Appeal Chamber), Livio Missir Mamachi di Lusignano v. Commission, Case T-401/11 P, 10 July 2014; ECJ, Livio Missir Mamachi di Lusignano v. Commission, 10 September 2015, Case C-417/14 RX-II; General Court of the EU (Appeal Chamber), Stefano Missir Mamachi di Lusignano v. Commission 2017.

EU Civil Service Tribunal, Missir Mamachi di Lusignano, paras 209 ff.

Lenaerts et al., p. 672.

On this aspect see ECJ, Betriebsrat der Vertretung der Europäischen Kommission in Österreich, 10 July 2003, Case C-165/01.