1 Staff Regulations of
officials of the European Communities
| (a)
(23534)
8456/02
COM(02) 213
(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 | Minister's letter of 16 March 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)
(Both) HC 42-xi (2003-04), para 7 (25 February 2004)
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| To be discussed in Council | 22-23 March 2004 GAERC
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Cleared
(b) For debate in European Standing Committee B
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Background
1.1 Following the resignation of the Commission headed by Jacques
Santer in 1999, 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.
1.2 We have considered this revision (document (a))
on three occasions, and the revised version of it once. We paid
particular attention to the provisions governing the disclosure
of information and the conduct of officials.
1.3 We considered it particularly important that
the official should be able to raise his concerns outside his
immediate line of management. We noted that a "whistleblower"
was only protected if he made the disclosure to his own head
of service or Director General, or to the Secretary General or
to the President of the Commission, the Council, the European
Parliament or the Court of Auditors or to the European Ombudsman.
He did not appear to be protected if he made the disclosure to
a member of the Commission (e.g. a member of the official's own
nationality) or to a member of the other institutions, or to a
third party (such as the police or press). 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.
1.4 We noted that the revised version did not materially
alter these provisions and that the Minister stated that the Government
remained satisfied with them on the basis that they delivered
a significant improvement on the original Regulations and were
"comparable [with the arrangements included] in the UK Civil
Service Code". We referred the Minister again to the
provisions of s.43E of the Employment Rights Act 1996 applying
to Crown employees and asked him 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, since
confining the right to report to the President of the Commission
(or of the other institution) seemed to us to be designed to discourage
whistleblowing.
1.5 We also noted that Article 22a(4) (which disapplied
the whistleblowing 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) had been expanded
to cover all cases of pending or closed legal proceedings (irrespective
of the court concerned), so that in all such cases the provisions
of Article 22a(1) to (3) would not apply. It appeared to
us that the provision had the consequence that information showing
that perjured evidence had been, or was about to be, given in
legal proceedings or that a miscarriage of justice had occurred
was subject neither to the duty of disclosure nor the protection
from "prejudicial effects" under Article 22a. We asked
the Minister why it was 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. We
also asked the Minister how this compared with the UK Civil Service
Code, which requires all civil servants to uphold the administration
of justice.
The Minister's reply
1.6 In his letter of 16 March the Parliamentary Under-Secretary
of State, Foreign and Commonwealth Office (Mr Bill Rammell), recalls
the negotiating history of the proposal, explaining that it has
been undergoing consideration since September 2003 by a Staff
Regulations Working Group, which has been considering a version
revised to take account of agreements reached in the Council in
May 2003.
1.7 The Minister informs us of a number of further
amendments which have been made to this revised version, as follows:
- Annex XI, Article 1(4a): It
was agreed that the sample of civil servants' salaries to be used
for calculating adjustments to salaries of officials would be
composed of those from Member States representing at least 75%
of EU GDP and would be decided by the Council every year. This
protects the Methode from high real pay rises in the new Member
States and the article was also amended to ensure decision making
remains in the Council.
- Annex II (Conditions of other Servants), Article
89: The provision (inserted by the Commission in the Amended Proposal)
exempting contract staff from contributing to the special levy
was deleted. Applying the special levy to these staff will generate
millions of extra savings each year.
- Annex 12, article 13: The actuarial assessment
has been made more transparent by ensuring that Eurostat will
be advised by independent actuaries.
- Article 22b (1b): OLAF/the relevant institution
must now inform the official raising a concern of the period of
time set to take action concerning a whistleblowing complaint
within 60 days of the official initially making the complaint."
1.8 In relation to our concerns over whistleblowing,
the Minister comments as follows:
"As both Dr MacShane's predecessor, Peter Hain,
and Dr MacShane himself have explained in previous correspondence
with the Committee, the Government is satisfied with the proposals
which we consider a significant improvement on previous practice.
Rather than discourage whistleblowing, they form an important
part of the efforts to reform the Commission by better protecting
the whistleblower, in part by providing a more clearly defined
route for complaints. We also believe it is important to underline
the Commission's credibility in dealing with possible fraud and
malpractice itself by providing for initial disclosure internally
within the institution of the official raising his concern.
"The new Staff Regulations offer comparable,
though not identical, protection to that available in the UK.
As Dr MacShane pointed out in his letter to you of 8 August 2003,
the UK's Civil Service Code provides for officials to report their
concerns to the appropriate authorities (which in the FCO are
the official's line manager or his head of department or internal
personnel/financial supervision bodies). If the official is not
satisfied with the response, they then can approach the Civil
Service Commissioners. The Civil Service Code does not however
set out the framework for whistleblowing in great detail (see
paragraph 10, for example).
"The Public Interest Disclosure Act 1998 inserted
into the Employment Rights Act 1996 a new statutory framework
in the UK for whistleblowing. The inserted section 43E of the
1996 Act to which you refer allows a Crown Servant to report his
concerns to any Minister. While the provisions in the Staff Regulations
may not encompass quite the range of options available to UK civil
servants, we believe they offer a satisfactorily broad selection
of senior individuals to approach. Initially these include the
Director-General of their institution, or the Secretary-General,
or 'persons in equivalent positions', or the independent European
Anti-Fraud Office. Under regulation 22b, a report can then be
escalated to the President of the Commission or the Presidents
of the other institutions. This provision giving any official
access to the most senior members of any institution underlines
the seriousness with which this issue is being taken."
1.9 On the question why Articles 22a(4) and 22b(3)
have been amended to disapply the whistleblowing protection provisions
in respect of the disclosure of information relating to legal
proceedings, whether pending or closed, in any court, the Minister
replies as follows:
"This is because such information should be
dealt with in the course of those legal proceedings by the court
concerned, whether it is the European Court of Justice (ECJ),
the Court of First Instance (CFI) or a national court. The Government
does not consider this inconsistent with a duty to uphold the
administration of justice. As set out below, this is really about
the proper delineation of who should administer justice in particular
situations.
"It is important to note that Article 22a, unlike
the Employment Rights Act, provides for a mandatory disclosure
procedure on the part of officials once they become aware of facts
that may give rise to a presumption of possible illegal activity.
The exclusion of information held in the course of legal proceedings
reflects concern that the whistleblowing provisions would otherwise
require Court officials to disclose information that had come
to them in the course of legal proceedings, either pending or
closed. For example, the Court of First Instance deals with staff
cases, which may involve allegations of wrongdoing by officials.
If it were not for this exclusion, there would be an obligation
to begin the whistleblowing procedure. There would then be a serious
risk that this whistleblowing procedure would usurp the role of
the courts.
"As the Committee points out, articles 22a(4)
and 22b(3) have been amended to apply to legal proceedings in
all courts and are no longer limited to officials in the Court
of Justice. The removal of the latter limitation is because the
same circumstances could occur in relation to other officials,
and in particular to investigation bodies such as OLAF or the
Court of Auditors involved in legal proceedings. Similarly the
Legal Services of all the institutions could receive information
in the course of legal proceedings that they would otherwise be
obliged to disclose. And the application to national proceedings
is so they are not undermined by simultaneous investigations under
the whistleblowing procedure. It was envisaged that officials
might be asked to give evidence in national proceedings concerning,
for example, illegal subsidies which might involve allegations
of wrongdoing on the part of Community officials.
"Similarly, information suggesting that a witness
statement is perjured or that a miscarriage of justice has occurred
should also be dealt with by the court that is properly seised
of this matter. The proper course of action for an official discovering
such information would be to seek authorisation to disclose it
to the court. Article 19 of the Staff Regulations deals with disclosure
in the course of legal proceedings. It should be possible to
re-open closed proceedings, if there is evidence that the court
has been deliberately misled. For example, the Statute of the
Court of Justice (see Article 44) and the rules of procedure of
both the Court of Justice and the Court of First Instance make
provision for revision of a judgment when a previously unknown
fact comes to light (so long as this is within ten years of the
judgment).
"If there were evidence of wrongdoing in connection
with legal proceedings that somehow fell outside the scope of
the proceedings themselves, there is nothing in the Regulations
to prevent an official informing his line management or, for example,
OLAF of that wrongdoing. Although that official would not have
the protection of Articles 22a(3) and 22b(1), it can be expected
that the official will be treated sympathetically in circumstances
where that protection is not available because the information
was obtained in the course of legal proceedings notwithstanding
that the legal proceedings have not and will not consider the
particular issue.
"Finally, it should be noted that the Staff
Regulations are subject to the jurisdiction of the ECJ (Article
91). The Court would apply the general principles of Community
law, including applicable human rights provisions, when dealing
with any case under the Regulations."
Conclusion
1.10 We are grateful to the Minister for his detailed
and careful analysis of the provisions which have caused us difficulty.
We acknowledge that the provisions regulating the conduct of staff
of the EC institutions cannot precisely replicate the law and
practice in any particular Member State. Nevertheless, we consider
that the Staff Regulations could have been improved by a provision
along the lines of s.43E Employment Rights Act 1996, thus protecting
a disclosure when made to any member of the Commission or other
institution concerned, which would have increased the range of
senior individuals to approach with concerns without fear of adverse
consequences. The Minister is right to point to Article 22a as
imposing a mandatory duty to disclose and to state that in this
respect the provision is unlike those of s.43A to L Employment
Rights Act 1996, which are concerned only with the protection
of those who choose to make a disclosure. Nevertheless, and given
the all-embracing nature of the duty of confidence imposed by
Article 17, it seems to us that the limited scope of Article 22a
will have the effect of discouraging officials from raising concerns,
for example, with the Commissioner of their own nationality, and
we do not believe this is healthy.
1.11 With regard to the provisions on disclosure
in relation to court proceedings, we accept that the difficulty
the revised rule was seeking to address arises from the mandatory
nature of disclosure under Article 22a. The Minister points out
that it is open to an official to obtain permission under Article
19 of the Staff Regulations to disclose to a court or tribunal
information relating to the performance of his duties. It may
be that the application of the general principles of Community
law to the Staff Regulations would lead to the expectation that
permission could not lawfully be refused by an institution where
the information in issue showed that wrongdoing had been committed.
However, we consider that an official ought not to be obliged
to obtain authorisation before disclosing information which shows
that a miscarriage of justice has occurred, or will occur, or
that in some other way the administration of justice is being
prejudiced before any court or tribunal, including the courts
of the Member States.
1.12 We have concentrated on this issue because
of recent concerns over the position of "whistleblowers"
and as to whether the EC institutions, in particular the Commission,
were doing enough in response to these concerns. The revised Staff
Regulations do not give us complete confidence on this point,
and we consider that the issue is of sufficient public concern
for us to recommend a debate on the current version (document
(b)) in European Standing Committee B. We clear document (a)
on the grounds that it has been superseded.
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