7 Staff Regulations of officials of the
European Communities
| (a)
(23534)
8465/03
COM(02)313
(b)
(25078)
15185/03
COM(03)721
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Draft Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities
Amended draft Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities
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| Legal base | Article 238 EC; consultation; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | (a) Minister's letter of 8 August 2003
(b) EM of 5 February 2004
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| Previous Committee Report | (a) HC 152-xxxvii (2001-02), para 4 (17 July 2002), HC 152-xli (2001-02), para 7 (6 November 2002), HC 63- xxvii (2002-03), para 3 (25 June 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
7.1 Following the resignation of the Commission headed by Jacques
Santer in 1999, and the Conclusions of the European Councils in
Berlin and Cologne in that year, the present Commission has embarked
on a programme of reform with three main objectives. These are,
first, to introduce a better system for setting priorities and
allocating resources, secondly to overhaul financial management
within the Commission, and thirdly to modernise personnel policy.
The modernisation of personnel policy includes a revision of
the Staff Regulations of officials and the Conditions of Employment
of other servants of the European Communities which have applied,
essentially unchanged, to officials and other servants of the
Community institutions since 1967.
7.2 We considered this revision (document (a)) on
17 July and 6 November 2002 and 25 June 2003. In the light of
the controversies of the then recent past we paid particular attention
to the provisions governing the disclosure of information and
the conduct of officials. In this regard, we drew attention to
the provisions of Article 11a on conflicts of interest, Articles
17 and 17a on the duty of confidentiality and Articles 21a, 22a
and 22b on "whistleblowing".[11]
7.3 We did not have confidence in the likely operation
of the whistleblowing provisions and considered it particularly
important that the official should be able to raise his concerns
outside his immediate line of management. In our view, the protection
given to a "whistleblower" was unduly circumscribed
since it only protected a disclosure (other than one made to
the official's own head of service or Director General, or the
Secretary General) if made to the President of the Commission,
the Council, the European Parliament or the Court of Auditors
or to the European Ombudsman, but did not protect such disclosure
when made to a member of the Commission (e.g. a member of the
official's own nationality) or of the other institutions, or to
a third party (such as the police or press). Moreover the protection
from "adverse consequences" was subject to strict conditions,
namely that the official should honestly and reasonably believe
that the information is substantially true and that he should
first have disclosed it to OLAF[12]
or to his own institution and have allowed reasonable time for
OLAF or the institution to take action. We saw no reason why an
official should not be protected if he disclosed evidence of wrongdoing
to any member of the Commission, Council or European Parliament
other than the President, or more generally, where he made the
disclosure in the public interest.
7.4 We considered the letter of 5 June 2003 from
the Minister for Europe on 25 June. We were surprised to learn
from him that the General Affairs and External Relations Council
had reached political agreement on 19 May 2003 on a new, revised
Staff Regulation for Commission officials when the matter was
still under scrutiny. The Minister nevertheless commented that
we would still have the opportunity to scrutinise the final proposal
in detail. We asked the Minister to explain whether he took part
in the political agreement in the Council and to explain the meaning
of his comment about our continuing ability to scrutinise the
proposal.
7.5 We noted the explanation by the Minister that
the UK and Germany had succeeded, in the face of strong opposition
from some Member States, in creating a new category of official,
that of "contract agent", who would be employed for
a fixed term and would undertake manual and administrative tasks,
replacing all the existing D grades and some C grades. We asked
the Minister to explain the extent to which "contract agents"
would enjoy protection akin to that provided under Council Directive
No. 1999/70/EC). We also asked the Minister to explain if the
provisions on the protection of staff who disclose wrongdoing
("whistleblowers") had been improved, and if the points
we had made had been taken into account.
The Minister's reply
7.6 In his letter of 8 August 2003[13]
the Minister for Europe (Mr Denis MacShane) addresses these concerns.
He explains that political agreement was given to an "outline
package" at the General Affairs and External Relations Council
(GAERC) on 19 May 2003, that the Commission would be re-drafting
its proposal in line with that agreement, and that a revised proposal
would be presented to the Council by the end of 2003. The Minister
states that the Government considered that the outline package
"provided significant reforms in pensions, remuneration,
careers and other provisions which would make the EU civil service
both more effective and more efficient" and that the Government
therefore gave its agreement to the package.
7.7 In reply to our question how it was that, notwithstanding
the fact of political agreement to a proposal which was still
under scrutiny, we would still have the opportunity to scrutinise
the proposal, the Minister comments as follows:
"The Committee will now have the opportunity
to examine the Council Secretariat's document. But I recognise
that, in the light of the political agreement reached on 19 May,
the Committee will not have the opportunity to influence the Government's
position further on this issue."
7.8 We asked the Minister if the points we made about
the "whistleblowing" provisions had been taken into
account. The Minister replies that they have, but comments as
follows:
"The Government considers that in offering protection
to officials who disclose wrongdoing through an internal process
— including OLAF and the other Institutions — the
Commission's initial proposals were reasonable. Moreover, all
other Member States were broadly satisfied by the Commission's
proposals on whistleblowing, which were generally regarded as
a significant improvement on existing practice."
7.9 The Minister adds that the final provisions "resemble
those originally seen by the Committee" and draws to our
attention the fact that "these proposals are comparable to
those of the Civil Service Code, which provides for officials
to consult the appropriate authorities if they have evidence of
wrongdoing", and informs us that, within the FCO, such authorities
are internal to the Department and that if officials do not receive
a satisfactory response they may then approach the Civil Service
Commissioners.
7.10 On the status of "contract agents",
the Minister explains that these are staff not included in the
central EC budget , but provided for from the individual budgets
of the EC institutions or agencies which employ them. The Minister
adds that their conditions of engagement, working conditions,
pay and expenses and social security are provided for in Title
IV of the draft Regulations and that the draft Regulations also
provide for implementing rules governing the use of such staff.
The amended proposal for a Council Regulation
amending the Staff Regulations
7.11 Following the political agreement reached in
the Council on 19 May 2003, a Consultation Committee composed
of staff representatives, delegates from Member States and a representative
from each of the EC institutions was convened to consider the
draft proposal in the light of the Council's conclusions. The
opinion of the Consultation Committee was approved by the Council
on 29 September 2003. The Commission has taken the report of the
Consultation Committee into account in its amended proposal (document
(b)). The amended proposal contains changes relating to careers,
pay and pensions but is otherwise in substantially the same terms
as the previous version.
7.12 In relation to careers, Article 5 has been amended
to allow for entry into the two lower Administrator grades for
persons who have taken a three-year degree, without requiring
an additional year of professional experience. Entry into the
higher grades will still require a four-year degree or a three-year
degree with an additional year of professional experience. Article
6 preserves the principle of promotion on merit contained in Article
45, and also maintains the provisions in the previous proposal
providing for a certain proportion of staff to be eligible for
promotion each year. The proposal keeps the original requirement
for candidates for entry to have one other Community language
in addition to their mother tongue, but staff will be required
to reach an acceptable standard in a third language before promotion
above the entry grade.
7.13 On remuneration, the existing system for adjusting
pay, allowances and pensions (known as the "Méthode")
is to continue for a period of ten years, but provision is made
for it to be reviewed at the end of four years. The "Méthode"
takes into account domestic inflation and the average real growth
in public sector pay within the Community. A new "special
levy" will be introduced, fixed at a rate of 2.5% of basic
salary rising in annual stages to 5.5% by 2011. The levy is occasioned
by the need to fund improved working conditions and the European
schools. A new provision has been inserted (in Article 18 of Annex
XIII to the Staff Regulations) the effect of which is to ensure
that from May 2004 to December 2008, an official's net monthly
pay will not be reduced by reason of adoption of the new Staff
Regulations. This minimum income guarantee will not extend to
the effects of the annual pay adjustment, the special levy, changes
in the pension contribution rate, or changes in the arrangements
for transferring part of salary.
7.14 A number of changes have been made to pension
arrangements. Article 77 of the Staff Regulations has been amended
to increase the retirement age for new officials from 60 to 63.
The compulsory retirement age remains 65, but individual officials
may continue to work until 67 on an exceptional basis if this
is in the interests of the service. Officials aged 50 or more
who have at least 20 years' service will become entitled to a
retirement pension at 60. For other officials, the age at which
entitlement to a pension accrues will range from 60 years and
two months for an official now aged 49 to 63 years for an official
now aged 30. The pension accrual rate for new officials has been
reduced from 2% to 1.9%, which will increase the time needed to
reach the 70% final salary maximum from 35 years (at present)
to 36.8 years. The present system of pension weightings (i.e.
adjustments to take account of differences in inflation and cost
of living in the Member States) will be prospectively abolished.
7.15 Staff contributions to the pension scheme will
be determined and adjusted according to new rules in Annex XII
to the Staff Regulations, under which the Commission is to submit
a proposal to the Council for an actuarial method. Based on this
method, a new contribution rate will be set from 1 January 2004,
with revisions thereafter at five-yearly intervals. The earliest
age at which an official may retire has been increased from 50
to 55, and new provision is made for the purchase of pension rights
by officials who would not be able to reach the maximum pension
of 70% of pensionable pay by the age of 65.
7.16 The provisions on confidentiality have been
amended in the new version. The new version of Article 17 of the
Staff Regulations provides that an official "shall refrain
from any unauthorised disclosure of information received in the
course of or in connection with his duty, unless that information
has already been made public or is accessible to the public"
and that the official remains bound by this duty after leaving
the service. This is qualified by a new Article 17a which provides,
in Article 17a(1) that an official "has the right to freedom
of expression, subject to his obligation to observe the requirements
of loyalty and impartiality." Article 17a(2) obliges an official
who "intends to publish or cause to be published, whether
alone or with others, any matter dealing with the work of the
Communities" first to inform his Appointing Authority (i.e.
the Institution in which he works). Article 17a further provides
as follows:
"Where the Appointing Authority is able to demonstrate
that the matter is liable seriously to prejudice the legitimate
interests of the Communities, the Appointing Authority shall inform
the official of its decision in writing within 30 working days
of receipt of the information. If no such decision is notified
within the specified period, the Appointing Authority shall be
deemed to have had no objection."
7.17 Article 18 continues to provide that "the
Communities shall have the right to acquire compulsorily the copyright"
in works made by the official in the performance of his duties.
7.18 The provisions on "whistleblowing"
remain substantially unchanged. Article 21a continues to provide
that an official who receives orders which he considers to be
"irregular or likely to give rise to serious difficulties"
is to inform his immediate superior, and must carry out those
orders if they are confirmed by the "hierarchical authority"
immediately above, unless they are "manifestly illegal or
constitute a breach of the relevant safety standards".
7.19 Article 22a (1) provides that an official must
inform his immediate superior, or his Director-General, if he
becomes aware of "facts which give rise to a presumption
of the existence of possible illegal activity, including fraud
or corruption, detrimental to the interests of the Communities,
or of conduct relating to the discharge of professional duties
which may constitute a serious failure to comply with the obligations
of Community officials". As an alternative, the official
may inform the Secretary General or the European Anti-Fraud Office
(OLAF) direct. Article 22a(2) provides that an official who receives
such information must transmit without delay any evidence of which
he is aware to OLAF. Article 22a(3) provides that an official
"shall not suffer any prejudicial effects" as a result
of communicating information under Article 22a(1) or (2) provided
"he acted reasonably and honestly". Article 22a(4),
which disapplied these provisions within the Court of Justice
in the case of information held, created or disclosed in the course
of legal proceedings, whether pending or closed, has now been
expanded by removing the reference to the Court of Justice, so
that in all cases of pending or closed legal proceedings (irrespective
of the court concerned), the provisions of Article 22a(1) to (3)
do not apply.[14]
7.20 Article 22b(1) provides that an official who
discloses information to the President of the Commission, or of
the Court of Auditors, or of the Council, or of the European Parliament,
or to the European Ombudsman shall not "suffer any prejudicial
effects", provided that two conditions are met. The first
is that the official should honestly and reasonably believe that
the information is true. The second is that the official should
have previously disclosed the same information to OLAF or to his
own institution and has allowed the same a period of time fixed
by OLAF or the institution[15]
to take appropriate action. As before, there is no provision which
permits the official to disclose the information to a person outside
his line of management other than OLAF or the Secretary General
or President of one of the institutions. It seems from the provisions
that the official may not disclose the information to other persons
such as a member of the Commission, or to a member of a national
parliament, the local police or the press, and there is no provision
under which disclosure can be justified on general grounds of
public interest.
7.21 The provisions on "contract agents"
in Title IV of Annex II provide for fixed-term contracts of employment
of a maximum of five years for staff engaged in "non-core
tasks". Such contracts may be renewed not more than once
for a fixed period of not more than five years. For staff engaged
in "auxiliary tasks", contracts are to be concluded
for a fixed period, but the total period of employment, including
any renewal, may not exceed three years. Provision is made for
an unemployment allowance of 60% of basic salary for twelve months,
45% for the following twelve months and 30% for the subsequent
twelve months in those cases where employment is terminated other
than by resignation or disciplinary proceedings, provided the
employee has given six months' service and is not in receipt of
a retirement pension or invalidity allowance.
The Government's view
7.22 In his Explanatory Memorandum of 5 February
2004 the Minister for Europe (Mr Denis MacShane) describes the
revised version of the amendments to the Staff Regulations and
comments as follows:
"The Government welcomes the amended proposal
to reform the Staff Regulations which will promote merit, efficiency,
staff development and value for money. While the Government supported
much of the Commission's original proposal, the changes broadly
reflect the improvements sought and outlined in the political
agreement of the 19 May GAERC, later revised following conciliation
with the staff unions.
"The amended proposal will further deliver significant
long-term savings in the EU budget, in particular as a result
of reforms to the pensions system. However it still keeps pay
and pensions at the levels necessary to attract high calibre staff.
It meets more closely the main objectives of our EP write-round
in December 2002 — namely,
to secure reform of pension provision, remuneration, careers structure
and recruitment with the overall aim to create a merit-based EU
Civil service.
"The Government supports the improvements on
the Commission's original proposal on pension parameters, and
in particular the increase in the retirement age and the lower
accrual rates and bonus system. These will increase savings, while
existing staff are given a generous transition period and no serving
official over 50 or with 20 years of service is affected. In addition,
the Government agreed to support the abolition of pension weightings
as it should reduce potential for fraud, but secured the continuation
of cost of living weightings for existing pensioners, with the
bulk of the beneficiaries being UK pensioners.
"The inclusion of the special levy in the amended
proposal offsets the continuation of the 'Méthode' and
reflects the political agreement. While the Government accepted
the original Commission proposals on pay and allowances and recognises
the value of the Methode to staff in giving them greater security,
the introduction of the special levy with provisions for review
will ensure savings and budgetary discipline.
"In the areas of careers, the amended proposal
on promotion guarantees safeguards the principle of merit-based
promotion and provides for a quota of available posts, rather
than individual promotions, to prevent career bottlenecks In addition,
the inclusion of the budgetary safeguard should prevent the system
from becoming too costly.
"The Government also welcomes the amendments
to the original proposal on academic requirements for Administrative
category candidates. Graduates with a three year degree —
like most in the UK — are able to apply, without needing
to undertake a further year's relevant work experience. Similarly,
the amended proposal resists the call from some Member States
to increase the candidates' language requirements, which would
have been disadvantageous to the UK and contrary to our emphasis
on general competences and skills."
7.23 The Minister adds that, with the exception of
some technical drafting amendments that still need to be pursued
in the working group, the Government is satisfied with the provisions
in other areas, particularly those articles concerning the rights
and obligations of employees, which remain substantively the same
as in the original proposal. The Minister points out that no
substantive changes have been made to the provisions in the amended
proposal on "whistleblowing" (which had caused us to
keep the proposal under scrutiny). The Minister states that the
Government remains satisfied with the whistleblowing provisions
on the basis that "they deliver a significant improvement
on the original Regulations and are comparable to the arrangements
included in the UK Civil Service Code". The Minister adds
that "Ministers have explained this position in correspondence
with the Committee".
7.24 On the question of the proposal being the subject
of a political agreement in Council while the matter was still
under scrutiny by us the Minister comments as follows:
"The correspondence over the handling of scrutiny
also focussed on the political agreement being reached at GAERC
on the main contents of the revised package on this was reached
before completion of scrutiny.
"Since this proposal is currently under negotiation
in Group Statute (working group), Government policy on the amendments
remains sensitive at this time. Nonetheless, departments across
Whitehall continue to work together to assist representatives
involved in negotiation. The FCO remains committed to informing
the Scrutiny Committees of progress made on this dossier."
Conclusion
7.25 We note the commitment given by the Minister
to keeping us informed of progress made on this matter, but we
would have been more reassured by this if the Minister had not
been so ready to take part in a political agreement on a proposal
which was still subject to scrutiny.
7.26 The Minister states in his letter of 8 August
2003 that in consequence of political agreement being reached
on 19 May 2003 we "will not have the opportunity to influence
the Government's position further on this matter". On the
other hand, the Minister now states in his Explanatory Memorandum
of 15 February 2004 that "since this proposal is currently
under negotiation … Government policy on the amendments remains
sensitive". It seems to us that these statements are inconsistent,
and we ask the Minister to explain them further.
7.27 We invite the Minister to reflect further
on the reasons why he is satisfied with the "whistleblowing"
provisions of the proposal, notwithstanding the observations we
have made as to the excessively circumscribed protection given
to whistleblowers. We again refer the Minister to the provisions
of s.43E of the Employment Rights Act 1996 applying to Crown employees
and ask the Minister why some similar provision could not be made
to protect a whistleblower who reports a matter to any member
of the Commission or other Institution concerned. Confining the
right to report to the President of the Commission (or of the
other Institution) seems to us to be designed to discourage whistleblowing.
This seems to us to be unfortunate, given the number of cases
in which staff of the EC Institutions appear to have been disciplined
for whistleblowing and we ask the Minister for his views.
7.28 In this regard, we wish to know the reason
why it is proposed to restrict still further the protection given
to a member of staff when he discloses information relating to
proceedings pending or closed before any court. It appears to
us that the provision has the consequence that information showing
that perjured evidence has been, or is about to be, given in legal
proceedings or that a miscarriage of justice has occurred is subject
neither to the duty of disclosure nor the protection from "prejudicial
effects" under Article 22a. We ask the Minister to explain
why this was proposed and how it compares with the UK Civil Service
Code, which requires all civil servants to uphold the administration
of justice.
7.29 We shall hold the documents under scrutiny
in the meantime.
11 i.e. the protection of staff who draw attention
to wrongdoing. Back
12
The European Anti-Fraud Office, which operates as part of the
Commission. Back
13
Not received by us until 10 February 2004. Back
14
This would seem to have the effect that information suggesting
that a witnessstatement is perjured, or that a miscarriage of
justice has occurred, is covered neither by the duty of disclosure
nor the protection given to disclosures. Back
15
The previous version referred only to a reasonable period of time.
The present version allows OLAF or the institution more latitude
before a further disclosure can become justified. Back
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