Select Committee on European Scrutiny Forty-First Report




COM(02) 213

Draft Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities.

Legal base:Article 283 EC; consultation; qualified majority voting
Department:Foreign and Commonwealth Office
Basis of consideration:Minister's letter of 7 October 2002
Previous Committee Report:HC 152- xxxvii (2001-02), paragraph 4 (17 July 2002)
To be discussed in Council:No date fixed
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; awaiting revised text


  7.1  We considered a proposal for a series of amendments to the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities[9] on 17 July. We indicated that we would pay particular attention to the rules relating to the disclosure of information and the conduct of officials, and raised a number of concerns, particularly in relation to the circumscribed nature of the protection which would be given to 'whistleblowers'. We asked the Minister if he shared these concerns.

The Minister's reply

  7.2  In his letter of 7 October 2002 the then Minister for Europe (Mr Peter Hain) addresses the questions we raised. In relation to the new Article 11a of the Staff Regulations (which prohibits an official from dealing in a matter in which directly or indirectly he has any personal interest such as to impair his independence), we noted that it was left to the official to inform the institution of any case to which Article 11a applies and that no provision was made requiring an official to avoid even the appearance of a conflict of interest. The Minister replies that at this stage he believes the Government can be 'broadly supportive' of the current proposals and that he is 'particularly encouraged' by the terms of Article 11a(1) which establish that undisclosed conflicts of interest are unacceptable.

  7.3  We asked the Minister for his assessment of the compatibility of the somewhat strict rules of the Staff Regulations on confidentiality with the duty of openness arising under Regulation 1049/2001(EC)[10] . The Minister replies that we were right to raise the question of this Regulation and the recent institutional commitment to improve public access to documents. However, the Minister believes that, whilst the provisions of Article 17 on disclosure of information are somewhat strict, it is not contradictory for the Staff Regulations to encourage officials to treat documents in their possession with a degree of sensitivity, whilst at the same time having clear rules encouraging the institutions to make as much information available to the public as possible. The Minister adds that both Article 11a and Article 17 will be subject to further negotiation and that Member States' arguments concerning freedom of speech will be significant.

  7.4  In relation to our concern about the circumscribed nature of protection for 'whistleblowers' under Articles 22a, 22b and 22c, the Minister states that he believes it to be both important and necessary to have clear and comprehensive procedures to protect whistleblowers. The Minister also agrees that we are right to conclude that the Regulation as drafted does not specifically provide protection for a whistleblower who discloses information to a Member of the Commission, Council or European Parliament. However, the Minister believes that it is important for the appropriate Head of Service, or Director-General, to be alerted in the first instance, or for information to be passed direct to the European Anti-Fraud Office. The Minister adds:

"The right to inform a Member at the next stage might introduce an unnecessary delay, and I think it is true to say that the provisions in Article 22b allowing disclosure direct to the President indicate both the importance with which these provisions are regarded, and the need for total impartiality."[11]


  7.5  We thank the Minister for his reply. We accept the Minister's point that relatively strict rules on the handling of confidential information by staff are not necessarily inconsistent with a policy of making as much information available to the public as possible.

  7.6  We do not share the Minister's apparent confidence about the operation of the draft rules on 'whistleblowing'. We note that there is no underlying national law to protect staff in this situation, since their employment relationship is governed exclusively by the Staff Regulations. In these circumstances, we believe it to be particularly important that the staff member should be able to raise concerns outside his immediate line of management. We do not see any reason why this need cause delay, but neither do we accept that the risk of delay is any sufficient reason for restricting the avenues which the staff member may pursue.

  7.7  Equally, we see no reason why the protection under Article 22b should not also be available where the disclosure is made to any member of the Commission, or of the Council, or of the European Parliament, or more generally where the disclosure is made in the public interest.

  7.8  We have no further questions to put to the Minister at this stage, but we shall hold the document under scrutiny pending deposit of a revised version.

9  Council Regulation (EEC, Euratom, ECSC) No. 259/68. OJ No. L 56, 4.3.1968, p. 1. Back

10  OJ No L 145 of 31.5.2001, p.43. Back

11  Against that, it could be said that it is the business of every member of the institution, and not merely of its President, to ensure that impropriety or illegality does not take place. In comparable situations within the UK, s.43 E Employment Rights Act 1996 makes a disclosure made by a Crown employee to any Minister of the Crown (or of the Scottish Executive) a protected disclosure.  Back

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