Tuesday, 18 March 2014

Legal actions against some provisions contained in the new EU Staff Regulations

Following the introduction of the new Staff Regulations, many colleagues have shared with us their concerns about the legality of several new provisions which impact negatively on officials and other agents careers.  We shouldn't forget that, even during the legislative process, the legal services of the various Institutions expressed serious doubts on a certain number of these measures.
Following the proliferation of announcements and complaint forms, you have asked us:
  • to group the efforts of Trade Unions of all Institutions and Agencies for a better defence of the rights of our colleagues, and as  a symbol of our attachment to the same Staff Regulations;
  • to set up a strong pool of lawyers in order to maximise the chances for a successful outcome, going well beyond a simple distribution of forms;
  • to organise regular meetings with these lawyers to explain to staff all details concerning the proposed actions.
We have listened to your requests!

With this website, we wish to provide staff of all European Institutions with the best tools and information to effectively contest some of these new provisions.


This action is supported by the following Trade Unions and lists:

European Commission and Agencies










Initiative for Unified Legal Actions Against the Statute
Generation 2004 welcomes the decision by a substantial 'grouping' of unions – namely the Alliance (R&D, CONF-SFE, CISL-FIR, Solidarité Européenne), RS (U4U, USHU, SFIE) and FFPE –to "join forces for a strong common strategy" for questioning the "legality of several new provisions which impact negatively on officials' and other agents' careers". Generation 2004 will cooperate in this initiative on a case-by case-basis in the interest of all staff in general and post-2004 staff in particular.

LUXEMBOURG: European Commission, Court of Justice, Court of Auditors








Initiative for Unified Legal Actions Against the Statute
Generation 2004 welcomes the decision by a substantial 'grouping' of unions – namely R&D, US-L, SID, Solidarité Européenne, U4U and FFPE – to "join forces for a strong common strategy" for questioning the "legality of several new provisions which impact negatively on officials' and other agents' careers". Generation 2004 will cooperate in this initiative on a case-by case-basis in the interest of all staff in general and post-2004 staff in particular.

Council of the European Union



European Parliament






Committee of the Regions and Economic and Social Committee




EEAS (External Services)









Saturday, 15 March 2014

AST/SC

Deadline to introduce this complaint: 31/03/2014

As you know, since 1 January 2014 a significant number of Assistants were amazed to discover that their posts have become Secretary/Clerk (SC) posts … irrelevant of their job title and tasks!

The change came overnight, with no prior notification, no explanations as to the criteria used, and no assessment of the individual situations.

As a first urgent step we present to you a template for a complaint under Art. 90.2 of the Staff Regulations which will serve as our declaration of disagreement to the way these regulations are being implemented and which will open the path for possible further action in front of the Civil Service Tribunal.


Click here to get instructions to lodge an Art. 90


Download our Art. 90/2 template: EN
This art. 90 template has been prepared by M. Huseyin Kebapci - CX6 Ltd



In case of problems with template download, copy & paste the following text

Complaint under Article 90 § 2 of the Statute
Change of type of post from AST to AST/SC

I, the undersigned
[name], function group (…), grade (…), staff number (…), place of employment (…)
Hereby submit a complaint under Article 90(2) of the Staff Regulations (hereinafter referred to as the "SR") against a decision of the Appointing Authority as defined below.

I. Subject
This complaint contests the decision taken by the Appointing Authority to change the post to which I am appointed from AST to AST/SC which I consider to be a manifest error in the interpretation and application of the SR, without due respect to procedure and individual rights, and particularly in clear contravention to Articles 1d, 5.5 and 7.1 of the Staff Regulations and applicable case-law of the Civil Service Tribunal. On these grounds, this complaint demands that the contested decision is revoked. 
II. Facts

1. I joined the EU Civil Service on [date] as AST [grade] at the [institution]  and was appointed to the post [title of the post as stated in appointing decision] pursuant to a decision of the Appointing Authority dated [date] with effect from [date].
2. After 1 January 2014, I realised that the function group of the post to which I am appointed was changed to AST/SC in the [European Commission]'s personnel management system ["Sysper 2"]. To date, I have not received an official communication from the Appointing Authority regarding the individual circumstances pertaining to the change of the particular post I was appointed to.
3. It is my understanding that the function group of the post to which I was appointed has been changed arbitrarily and without an individual examination of the duties I perform[1], giving rise to a situation whereby the duties I perform no longer correspond to the function group of the post I am appointed to. [DELETE HIGHLIGHTED IF PARAGRAPHS 13 AND 14 ARE NOT APPLICABLE TO YOUR SITUATION]
4. The only communication of official nature I have been able to obtain from the Appointing Authority regarding the grounds of this change is an explanatory text published on the Commission's intranet site[2]. This text mentions that “The aim is to have all Commission staff assigned to jobs with a match between the Type of Post of the Person (career) and the Type of Post of the Job (level of responsibility).” It is further stated in the text that officials in the AST function group whose posts have been changed to AST/SC function group remain in the AST function group.
5. I understand from the above-referenced text that the Commission considers that the SR gives rise to a separation between "Type of Post of the Person" and "Type of Post of the Job" and acknowledges that it is indeed currently allowed by the Appointing Authority to have a situation whereby the function group of an AST official no longer corresponds to the function group of the post to which he or she is appointed.
III. Legal framework
6. Article 7.1 of the SR provides that “The appointing authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his function group which corresponds to his grade.”

7. By virtue of changing the function group of the post to which I was appointed, particularly without an individual examination of the duties I perform and in the absence of a new decision of appointment, the Appointing Authority has acted in breach of Article 7.1 of the SR.

8. It is a matter of fact that following its entry into force, the SR created three function groups (AD, AST and AST/AC) as provided under Article 5.4 and Annex I of the SR. As the AST/SC function group is new, certain transitional provisions were devised to ensure an orderly transition of certain types of posts from the previous AST function group to the new AST/SC function group. These transitional provisions are provided in Article 31 of Annex XIII of the SR, and subsequent to them I am currently classified as an "assistant in transition".

9. However, a closer examination of the relevant transitional provisions, as well as of the Commission Decision of 16.12.2013 on types of post and post titles (COM 8979/2013), reveals that there is no clear, direct or explicit mention of or distinction between the so-called "Type of Post of the Person" and "Type of Post of the Job". Therefore, the Appointing Authority's decision to interpret the SR so as to give effect to an unfounded distinction between "Type of Post of the Person" and "Type of Post of the Job" in order to justify a deviation from Article 7.1 of the SR by allowing the duties performed by an AST official to no longer correspond to the function group of the post to which he or she is appointed is without legal basis and is a manifest error in the interpretation of the SR.
10. It needs to be reminded that the Appointing Authority's attempts to implement arbitrary decisions through a teleological interpretation of the SR have previously been considered as a violation by the Civil Service Tribunal.[3] As the referenced case-law clearly underlines, in the absence of explicit transitional provisions limiting the application of a given provision of the SR, the latter remains fully applicable to all officials. Therefore, Article 7.1 must be applied fully and without limitation to all officials, whether "in transition" or not.

11. The contested decision of the Appointing Authority further constitutes a breach of Articles 1d and 5.5 of the SR. While Article 1d concerns the principle of equal treatment and non-discrimination, Article 5.5 mentions that “Identical conditions of recruitment and service career shall apply to all officials belonging to the same function group.”

12. As previously stated above, it is evident that the function group of the post to which I was appointed has been changed arbitrarily and without an individual examination of the duties I perform. Moreover, no clearly-defined criteria have been published by the Appointing Authority regarding how the decision to change certain posts from AST to AST/SC was to be implemented on an individual level. Therefore, in the absence of an individual examination and of clearly-defined criteria, it is not possible to demonstrate how the decision to change the post to which I was appointed has been taken.

13. The foregoing has indeed given rise to a situation whereby the function groups of the posts of two people performing same or similar tasks are now different. When compared to, for example, Job Number [XXXXXXX], it is seen that the duties expected of the official appointed to that post presents no essential difference than the duties expected of me as seen in Job Number [XXXXXXX] however the former's post has been retained as AST whereas my post has been changed to AST/SC.

14. According to established case-law of the Civil Service Tribunal, there is considered to be a violation of the principle of equal treatment when two people, whose factual and legal situations show no essential differences, are subjected to a different treatment. The contested decision of the Appointing Authority effectively discriminates against me by subjecting me to a different treatment than that of another official in a same or similar situation.
[DELETE HIGHLIGHTED IF NOT APPLICABLE TO YOUR SITUATION & renumber following paragraphs]
15. This discriminatory treatment also leads to a breach of Article 5.5 by placing me at a disadvantaged position in comparison to other officials belonging to the same function group particularly with regards to career prospects and conditions of service career. [4]

16. Although the Appointing Authority's above-referenced explanatory text states that I remain in the AST function group personally while the post to which I was appointed is changed to AST/SC, I consider that the contested decision gives rise to a discriminatory circumstance whereby my career prospects, including promotion and mobility, will be negatively affected by virtue of the function group of my post.

17. It is understood from the human resources policies of the Appointing Authority that the number of available AST posts are expected to decline while the number of AST/SC posts are expected to increase. This leads to limited possibilities for me in my service career as the fact that I now occupy an AST/SC post despite personally being in the AST function group would make it less likely for me to obtain an AST post, compared to other officials in AST function group who already occupy an AST post. This is not only a statistical likelihood but it also emanates from the perceptive differences, potential prejudices and additional inquiries I will be subjected to with regards to the adequacy of my professional skills and capacity when applying to an AST post, which other officials in AST function group who already occupy an AST post would not be subjected to. The current decision of the Appointing Authority does not provide me with any safeguards or guarantees to the contrary.

18. In this light, the contested decision of the Appointing Authority not only features procedural breaches of the Articles 1d and 5.5 but also damages my career prospects and opens way for indirect discrimination in my future service career by placing me in a different standing than officials belonging to the same function group.     

CONCLUSION:

In conclusion, considering the factual grounds, the manifest error made in the interpretation and application of the SR by the Appointing Authority, and particularly the breaches committed of Articles 1d, 5.5 and 7.1 of the SR, as well as in consideration of the relevant case-law of the Civil Service Tribunal, I request that the Appointing Authority's decision to transform the post to which I am appointed from AST to AST/SC to be revoked.  


Done at [city], [date]

[Full Name and signature]





[1] As evidenced in Annex 1 of this complaint [attach a screenshot from Sysper of the job description and duties performed], the duties I perform are as follows: [list the same information as presented in Sysper]
[3] Dethomas/Commission (F-93/06) Judgement of 05/07/07, para 49 -50
[4] As recognised in the order of TFPUE, September 27, 2011, Lubking/Commission, F-105/06, para 82, equal treatment with respect to career prospects are considered to be a part of the principle of equal treatment and non-discrimination. 

Thursday, 13 March 2014

Pensions

A new Art. 90 concerning pensions is upcoming... stay tuned!