ARTICLE 42C OF THE STAFF REGULATIONS

The Court of Justice dismisses the appeal lodged by the Commission

and confirms the Tribunal’s decision and the analysis defended by R&D!

 

By his Order of 10 January 2018, the Vice-President of the Court of Justice dismissed the Commission’s appeal against the ruling of the President of the General Court of the European Union, who had upheld the claim supported by R&D, thus forcing the Commission to suspend the forced retirement of a colleague who therefore remains in service.

 

Read the decision

 

A brief reminder of the facts: the 2016 exercise… a management worthy of the Chamber of Horrors of the European civil service…

In all our communications related to Article 42c of the Staff Regulations (7 December 2016, 5 April and 30 May 2017), we denounced the shameful and disrespectful management by DG HR of the 2016 exercise.

Indeed, DG HR had based all its decisions exclusively on the “fait du prince”.

In particular, in the Commission — and only in that institution — Article 42c of the Staff Regulations had been implemented without the adoption of any decision whatsoever, which would have framed it, without any prior information or transparency concerning the procedure of appointment of the colleagues concerned, without the slightest involvement of the staff representation and all this, without duly informing colleagues of the consequences that may affect them.

Even worse, DG HR decided to apply this measure also to colleagues having already reached the legal retirement age, thus imposing forced retirement without payment of any compensation and depriving them of the possibility to continue to increase their pension rights up to their maximum age to remain in service. This had financial consequences, in some cases dramatic, on the personal level, because of the commitments already made by these colleagues who saw their income being drastically reduced overnight.

It should be noted that no other institution has acted in this way. And all of this, while the Commission claims to be the guardian of the correct implementation of the Staff Regulations.

R&D stands with the colleagues…

Faced with this untenable and contemptuous approach, R&D had assisted and advised the colleagues who had called on us, namely in meetings with DG HR services.

With the assertive and very haughty style that now seems to be the only mode of communication it is capable of, the administration had responded to our objections by stating that they were without foundation and that we just had to read the Staff Regulations to understand that. In addition, DG HR informed us that its interpretation of the Staff Regulations had been fully validated by the Legal Service.

Faced with the unacceptable attitude of DG HR, R&D had seized the Court.

Under these circumstances, referring to the Court was the only possible option, which led R&D to follow this approach. This is how we stood beside the colleagues who turned to us.

The decision of the President of the Tribunal of 18 May 2017 sided with R&D and suspended the decision of the Commission.

In particular, in our communication of 30 May 2017 ( link ), we welcomed the decision of the President of the Tribunal, who noted DG HR disrespect of the Staff Regulations, while its role is definitely to ensure their proper implementation!

R&D had also asked Commissioner Oettinger to take the necessary measures to ensure the proper implementation of Article 42c for the 2017 exercise

For the 2017 exercise, DG HR rediscovers the administrative decency

Subsequently, we were pleased that our request was heard and that the 2017 exercise, far from being fully satisfactory and from proposing all the guarantees offered to the staff of the other institutions, was at least renewed in the context of administrative decency ( link ).

Nevertheless, the administration seemed to claim that the decision of the President of the Tribunal abovementioned, accepting the request supported by R&D , was comparable to “a legal accident”, and the administration appeared to be very confident that that decision would have been overturned by the appeal it had lodged.

This would have forced the colleague concerned to leave our institution right on the spot.

Even worse, several services told us that the administration was waiting for the favourable decision on this appeal to start again, for the 2018 exercise, putting in compulsory retirement the colleagues having already reached the statutory retirement age, without any compensation.

And these same services had drawn our attention to the fact that the administrative information published in July 2017 remained totally silent on this point, thus reserving to the administration the possibility of returning to its hateful practices in case the appeal would have been accepted.

The decision of the President of the Court of Justice of 10 January 2018 sharply rejects the appeal of the Commission and confirms the analysis of R&D …

Our colleague thus remains on duty when, by its appeal, the Commission wanted to force him to retire without even waiting the decision of the Court of First Instance on the merits of this case.

The “mercenary” vision of the public service defended by the Commission

To illustrate the level of cynicism and contempt achieved by our institution, it is sufficient to mention that, in its appeal, the Commission, in adopting the approach wrongly defended by DG HR, claims that the link between a European civil servant and her/his institution would be purely pecuniary, and that therefore the harm inflicted on a colleague subject to compulsory retirement is always reparable by a favourable decision on the merits, thus excluding any possibility of suspension of the decision by an interim decision.

Under these circumstances, it has been the Vice-President of the Tribunal’s prerogative to remind the Commission of the basic principles of our public service…

Indeed, faced with this “mercenary” vision of our public service defended by our institution, the Vice-President of the Tribunal had to remind the Commission that:

“While remuneration is an important part of the working relationship between a EU institution and its officials, this relationship is not limited to this financial link. Indeed, as the Union’s legislator and the Court have recognized, employment and work contribute to a large extent to the full participation of citizens in the economic, cultural and social life, as well as to their personal fulfilment and quality of life [see, in this respect, recital 9 of Council Directive 2000/78 / EC of 27 November 2000 establishing a general framework for equal treatment in employment and work (OJ 2000 L 303, p.16), as well as the judgment of 5 July 2012, Hörnfeldt, C-141/11, EU: C: 2012: 421, paragraph 37 and the case-law cited]“.

More clearly, the Commission claimed its right to automatically retire a colleague without any compensation. Should an appeal be lodged and then allowed, all would be solved by simply paying the wages that would have been due.

The prejudice thus became irreparable for any colleague who, disgusted by such an attitude on the part of our institution or unable to meet the costs of an appeal to the Tribunal, would have given up to contest the decision.

This was indeed the case for several colleagues who were forced to retire in the 2016 exercise and, having not contested DG HR’s decision, had to leave our institution definitively.

R&D can only welcome this clear stance and remind the Commission of the principles and values that underlie our public service, which is above all a public service in pursuit of a mission, namely the European project.

All this is not worthy of the institution we have chosen to serve with pride and enthusiasm!

R&D requests that the 2018 exercise should finally take place in an exemplary manner, and among others involve the staff representation, as is the case in all the other institutions that have recourse to Article 42c.

Here, as in other files, we kindly ask Commissioner Oettinger once again to put an end to this double talk, which, on the one hand, values, in videos and speeches, the staff of our institution, “the first wealth of the Commission”, and, on the other hand, so disdainfully treats our colleagues.

 

 

 

Related posts:

  1. State of play of the Reform of Staff Regulations 2013
  2. Proposal for a Regulation of the EP and the Council amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union
  3. R&D invites all its members to attend this information meeting about the Staff Regulations Reform
  4. Better late than never – Article 42 c
  5. BREAKING NEWS – Article 42 c
  6. Article 42c: a shamful management by DG HR

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