Implementation of Article 42c of the Staff regulations

Brussels,  10 November 2016

 

NOTE TO MRS KRISTALINA GEORGIEVA

VICE-PRESIDENT IN CHARGE OF BUDGET AND HUMAN RESOURCES

 

 Subject : Placing on compulsory leave of 28 colleagues before the end of 2016 following the implementation of Article 42c

of the Staff Regulations

Ref : Note from Mrs Souka, to our attention, dated 28 October 2016

Our Note to Mrs Souka, dated 5 October 2016

 

With our abovementioned note, about the application of Article 42c of the Staff Regulations, we drew the attention of Mrs Souka to the necessity and the urgency to ensure the utmost transparency on the institution’s intentions and, if necessary, on the implementation procedure of these provisions (please see Annex 1).

It must be remembered that, by simple decision of the Appointing Authority, the colleagues involved will be indeed compulsively placed on leave in the interests of the service for organizational needs related to the acquisition of new skills within the institution.

We had thus specifically raised the fact that the stakes of this procedure and the severity of the consequences for the colleagues involved imposed to determine in advance and in consultation with the staff representatives detailed procedures to ensure the transparency and the fairness of decisions that could be adopted.

 

1) With her note dated 28 October, Mrs Souka confirmed that twenty-eight colleagues would be on leave in the interests of the service in 2016

Yet it is only through her note of 28 October that the staff and their representatives were informed, for the first time and officially, of the actual decision to apply Article 42c. 28 colleagues will thus be asked to leave the institution by the end of 2016 (please see Annex 2).

 

2) The Appointing Authority claims the power to take a decision without any rule of application, any formally established procedure, any involvement from staff representation, etc.

When replying to my aforementioned requests, Mrs Souka claims the right for the Appointing Authority to directly implement these provisions:

  • without adoption of any decision whatsoever, that would be likely to frame this implementation,
  • without any prior information and transparency concerning the procedure for selecting the colleagues involved,
  • without any anticipation of the rights of defence of these colleagues and of course,
  • without any involvement from the staff representation.

 

3) « Facta et non verba »: once again, the growing shouting gap between your political positions, videos, and … the sad reality within services has to be noted.

You will agree with us that this process is in no way respectful of all the commitments you have always taken about the highest consideration that the institution carries with regard to its staff and that this process is completely incompatible with even a semblance of social dialogue of which you bear the political responsibility.

 

4) In addition to ensuring the rights of colleagues, it is also about avoiding the risks of favouritism and nepotism

The absence of any information, formal procedure and transparency in the implementation of Article 42c of the Staff Regulations is even more serious because this is not only and primarily to prevent abuses against colleagues who do not wish to leave but also to avoid favouritism and nepotism in the selection of colleagues wishing to take advantage of these statutory provisions. It is in the interest of the institution to establish a procedure that ensures transparency and fairness of the exercise, especially as the media and the outside world are already wondering about the application of those provisions to a EESC colleague.

 

5) Growing confusion inside services

Since we asked Mrs Souka to enlighten us on the implementation of Article 42c of the Staff Regulations, we were constantly approached by colleagues but also by the heads of services that, given the absence of any established procedure and clear criteria, expressed us all the difficulties they met to formulate proposals for colleagues that may be subject to the application of these provisions.

And contrary to the reassuring answer of Mrs Souka to services, the link between Article 42c and HR management centralization exercise, as well as that regarding the mandatory mobility of heads of unit, is indeed a reality. No one can doubt that if DG HR is engaged in the implementation of such sensitive provisions, in the absence of any formal framework, both confusion and slippages will become unavoidable with the consequences that one can easily imagine.

 

6) While the Commission claims to be the guardian of the uniqueness of our Staff Regulations, since the entry into force of the new Staff Regulations, it keeps indulging over and over again in bureaucratic and restrictive approaches, thus challenging the harmonization of the application of these new provisions through institutions

On the one hand, as part of the reform, as guardian of our Staff Regulations, the Commission confirmed its determination to defend the uniqueness of the Staff Regulations also by ensuring a consistent and coordinated implementation of its provisions across all institutions. To this end, ad hoc measures are included in the new Staff Regulations as, for example, the register kept by the Registry of the Court of Justice, containing all the executive provisions decided by each institution.

On the other hand, as first union at interinstitutional level, Federal R & D supported that decision with conviction. Therefore, close coordination of sections in institutions has been established to ensure the monitoring of the different implementation measures of the Staff Regulations.

However, ever since the entry into force of the new Staff Regulations, as far as their implementation is concerned, the Commission adopts approaches that are often purely bureaucratic and lagging behind those adopted by other institutions and this, with regard to both staff rights and implementation of a genuine social dialogue. With the perverse effect of dragging in this unacceptable approach, not only other institutions but also agencies which often adopt without making any change, the implementing rules established by our institution.

Thus, concerning the implementation of Article 42c, rather than trying to convince you of the merits of our arguments, it seems more useful to draw your attention to the dichotomy between the approach envisaged by DG HR which verges the “fait du prince”, and the related application procedures existing in other institutions such as the Council (see Annex 3).

7) Comparative analysis with regard to Council on the application of Article 42c

We would like to summarize these differences in the table below:

 

8) Could this be an isolated overzealous performance of the Council?

Should there be doubts on the Council having maybe engaged in an overzealous approach as to both the implementation of the procedure and the involvement of staff representation, we would like to note that, for the implementation of Article 42c, the EEAS also published a call for expression of interest (please see Annex 4) foreseeing the involvement of staff representation, the right to defence of colleagues concerned, etc.

 

9) Is it about building a “gas factory”?

In response to the usual argument raised by the administration to avoid hampering the discretion of the Appointing Authority, which is that it is not reasonable to build a “gas factory” for selecting these 28 colleagues, we would like to note that the Council held its procedure when it had 5 possibilities  for 2015 and 4 possibilities for 2016 and that EEAS publishes its call for expression of interest when it has 2 possibilities for 2016.

The fact is that these institutions have perfectly captured the very sensitive nature of Article 42c and, accordingly, sought to reassure both their staff and the outside world about their determination to ensure a transparent and fair implementation of these provisions.

 

Conclusions

Given the above, like the other institutions, we ask you to please ensure without delay the publicity and transparency of the application procedure under Article 42c of the Staff Regulations and to submit it in consultation with staff representation.

It is in the interest of us all to ensure the publicity and transparency of the procedure and the fairness of the decisions adopted both to protect the rights of colleagues and to avoid any risk of favouritism and nepotism.

 

Cristiano SEBASTIANI

(Signed)

President

 

 

Copies: Mrs S. Alexandrova; I. Souka

MM C. Levasseur; C. Roques

The Staff

 

Annexes : 1) Notre note à l’attention de Mme Souka en date du 6 octobre 2016

2) Note de Mme Souka à mon attention du 28 octobre 2016

3) Communication du Secrétaire général au personnel du Conseil ( 07juin 201623 octobre 2015)

4) AMI EEAS: leave in the interests of the service—Year 2016 (08 november 2016)

 

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