The appointment of the Mediator – Note to the attention of Mr Juncker, President of the European Commission and Mr Selmayr, Secretary-General of the European Commission

Brussels, 13 February 2019

Note to the attention of

M. J-C Juncker, President of the European Commission

and

M. Martin Selmayr, Secretary-General of the European Commission

 

Subject :      Unanimous Opinion of the Central Staff Committee of 9 January asking for the publication of a new vacancy notice for the appointment of the Mediator and for opening a consultation with the staff unions in order to analyse the measures finally allowing this service to accom­plish its missions

Ref:              Our noteto you on 5 December 2018 regarding the decision of DG HR to “resuscitate” the former procedure organized in 2016 instead of proceeding to a new publication

Judgment of the General Court T-688/16of 22 November 2018 annulling the appointment of the Mediator

 

Further to Judgment T-688/16 of 22 November 2018 (read) annulling the appointment of the Mediator, a post in the organizational chart of the Secretariat-General the appointment of which is the responsibility of the President of the Commission, by our note cited above (read) we requested your intervention so that the new procedure for the appointment of the Mediator is finally an exemplary one.

We recalled that according to the unanimity of the experts, a real anti-harassment strategy and effective conflict manage­ment require, first, the establishment of a real professional mediation service.

On the one hand, in order for our institution to finally obtain a real Mediation service that meets the expectations of the staff, R&D, in consultation with external specialists, has formulated operational proposals (see link).

On the other hand, it is not necessary to be an expert to understand that the Mediator must be adequately resourced and able to use procedures that will enable him to carry out his duties.

He must also be able to respond, at all times, to the principles of neutrality, impartiality, independence and confidentiality and that his service is perceived as fully respecting them from the nomination procedure.

Mediator’s independence: a prerequisite

As the European Ombudsman rightly points out, when it comes to ensuring the independence of a service, it is not only important to establish an appropriate legal framework but also to make it appear as being truly independent.

It is precisely in order to be independent, above all from DG HR, and to appear as such, that the Commission has decided to include the position of Mediator within the organization chart of the Secretariat-General rather than that of DG HR, that the appointment is decided by the President and that the Staff Committee is called upon to deliver an opinion in the framework of the appointment procedure.

Repeated “achievements” of DG HR

Unfortunately, it should be reminded that DG HR has not always seemed to understand how certain approaches are likely to weaken the role and perception of Mediator’s independence.

Indeed, the repeated dysfunctions in the appointment procedure (see link) and the chronic lack of resources prevent this Service from accomplishing its missions.

In particular, the repeated “achievements” of DG HR in connection with the appointment of the Mediator are both surpri­sing and worrying.

Indeed, by

·           first trying in 2013 to appoint the Mediator with regard to Article 7 of the Staff Regulations without publication and simply by internal mobility,

·           keeping the post vacant for 3,5 years (sic!),

·           suddenly reclassifying the post as Senior Advisor (AD 14-15) without worrying about the lack of resources avai­lable,

·         publishing finally in 2016 a vacancy notice and shortlisting only one candidate, excluding from the shortlist even the colleague who performed the duties for 3,5 years,

·           depriving the Staff Committee consultation of any useful effect by limiting it to the single shortlisted candidate,

·           and proceeding to the illegal appointment of the Mediator, as the above-mentioned judgment of the Court con­firms,

The credibility and the independence of the Mediator’s service have been seriously undermined.

However, it was not necessary to have divinatory powers to know what would be the approach of DG HR in the implementation of this judgment.

DG HR always true to itself: everything can change but the result must remain as it is!

We must admit the coherence of the approach.

Indeed, we must not forget that DG HR thinks now of itself as being the only repository of the knowledge of the Staff Regulations and its implementation procedures, it is furthermore haughty and allergic to the slightest criticism and does not tolerate any external intervention of staff representatives, the European Ombudsman, the European Parliament, the press … and also the Court … everyone is mistaken and did not understand well … that was certainly the case with the calamitous management of the implementa­tion of article 42(c) of the Staff Regulations which required the intervention of the Court (link).

In the context of the Mediator’s appointment procedure, it was not difficult to guess that the only measure implementing the judgment that DG HR would be prepared to consider would be the “resurrection” of the procedure launched in 2016, refusing to proceed to a new publication of a vacancy notice.

Indeed, if we believe that:

·          like all the others, the cancelled procedure was irreproachable – and as always and by definition religiously respectful of the letter and the spirit of the Staff Regulations and its rules of application -

·           the criticisms of R&D and the CSC were devoid of any foundation (link);

·         like all favourable judgments for the staff, the judgment of the General Court annulling the procedure for the appointment of the Mediator was the result of a misunderstanding, an overzealousness of some judges too sensitive to the reasons of the unions, the incapacity of the institution to defend its reasons …

If all this were even partly true … the only option that DG HR could envisage was to resuscitate the old procedure, to approach the CSC in the hope of obtaining an opinion confirming the approach chosen … and then in any case and whatever happens to confirm the result of the cancelled procedure.

The unanimous opinion of the Staff Committee requesting, in turn, a new publication of the procedure

However, at its extraordinary meeting on 9 January, far from endorsing the approach of DG HR, after having analysed the applica­tions submitted and the related hearings, the Central Staff Committee adopted unanimously an opinion requesting to proceed wi­thout delay to a new publication of a vacancy notice for the position of Mediator and also to open a consultation with the unions in order to analyse the measures finally allowing this service to accomplish its missions.

The foreseeable reaction of DG HR: everything can change but the result must remain as it is!

It is very easy to guess that for DG HR nothing is changing: it is a simple advisory opinion which is in no way likely to call into ques­tion the chosen approach.

Indeed, in the logic of DG HR, confirming everything without changing anything is the only way to make it clear, once and for all, to critics, that there is no point in challenging … or even winning in court, and that the opinion of the CSC is a use­less step because the staff representation plays a mere walk-on role!  

DG HR cannot in any way invoke legal arguments in support of the decision to revive the old procedure: it is DG HR itself which confirms it

As already during the organization of the procedure which was cancelled by the Court, trying to control its impulses and not wishing to openly display its contempt for the social dialogue and therefore for the opinion of the CSC … it is to be expected that DG HR re­lies again on alleged legal grounds to justify that the resurrection of the old procedure would be the only possible measure for execu­ting the judgment. Who knows, maybe by taking out of the drawer an old opinion of the Legal Service …  

In the present case, however, as the legal analysis in the annex confirms, it is not only the case-law but also DG HR itself which con­firm that the appointing authority can perfectly proceed to a new publication of a vacancy notice in the interest of the service to ex­pand its possibilities of choice.

Moreover, as regards the Mediator’s post, it is clear that this is the only way to defend the credibility and the perception of the inde­pendence of this Service.

However, as regards a post within the Secretariat-General’s organizational chart and an appointment of the Pre­sident, we are calling for your commitment to social dialogue, among other things.

In view of the above, we ask you:

·        to take into account our request and the unanimous opinion of the Central Staff Committee, to ensure the transparency of this nomination procedure and the widest choice of the best candidate by publishing a new vacancy notice for this post;

·            to accept as part of this new procedure for this highly specialized post the suggestions of both the EP and the European Ombudsman to involve external experts in the field of mediation;

·           to endow finally the service with the resources it needs to function properly and finally meet the expectations of the staff.

We would like to make it clear that there is no question of raising doubts about the merits of the colleagues who submitted an appli­cation in 2016 nor about those of the colleague who has performed the tasks so far.

It is only necessary to reiterate once again that the transparency of the appointment procedure and the intervention of the Staff Committee are indispensable prerequisites and essential elements, since they contribute to the perception of independence of the Mediator and are first and foremost in the interest of the candidate ultimately selected.

A radical change is needed and not a new recitation of empty slogans, a new collection of good intentions … and even less a new feat in the implementation of this appointment procedure…

Cristiano Sebastiani

President

 

Copies :

Ms. C. Martinez, Head of Cabinet of the President

Mr G. Oettinger, Commissioner for Budget and Human Resources

Mrs I. Souka, DG HR

Mr L. Romera Requena, DG SJ

Mrs E. O’Reilly, European Ombudsman

Ms I. Graessle, Chairperson of the CONT PE Committee

The staff

 

Annex:

Legal Analysis

DG HR cannot in any way invoke legal arguments in support of the decision to revive the old procedure: it is the DG HR itself which confirms it

In this respect, it is sufficient to recall the position of DG HR in its replies following complaints submitted in comparable situations, namely that in accordance with the case-law on the subject:

“(…) in the event that a recruitment procedure has been annulled by the judge of the Union, the annulment judgment cannot, in any case, affect the discretion of the administration to widen its possibilities of choice in the interests of the service by withdrawing the initial vacancy notice and corres­pondingly opening a new appeal procedure for the contested post (mutatis mutandis, Menidiatis v Commission, EU: F: 2012: 89, point37).”

Moreover, it is to be noted that the judgment annulled only partially – quod non – the appointment procedure, as the Court of First Instance pointed out in its judgment in Angelidis v Parliament, F-104/08 :

42 According to well-established case-law, the appointing authority is not required to follow a recruitment procedure pursuant to Article 29 of the Staff Regulations (Dehon v Parliament, paragraph 49).

This principle remains applicable even if, as in the present case, the recruitment procedure has been partially annulled by the judge.

It follows that the Angelidis judgment could in no way affect the discretionary power of the appointing authority to widen its choice in the interest of the service by withdrawing the initial vacancy notice and by correlatively opening a new appeal procedure for filling the contested post (Hochbaum v Commission, paragraph 15, and Moat v Commission, paragraphs 38 and 39). Since the appointing authority was not required to follow the initial re­cruitment procedure, the appointing authority could, all the more, open a new recruitment procedure without having to resume the initial recruitment procedure in its original state before the adoption of the illegal act.

43 Consequently, Parliament was entitled, by virtue of its discretion, to broaden its choice in the interest of the service by withdrawing the initial va­cancy notice and correspondingly opening a new recruitment procedure.

44 It should be noted that the applicant has in no way established or even sought to establish that the qualifications and knowledge required in the new vacancy notice were manifestly inappropriate in the light of the interests of the service.

45 Moreover, the fact that the Parliament did not formally terminate the initial recruitment procedure before opening a new procedure is not such as to alter the foregoing analysis, the decision to publish the new vacancy notice for the post in question necessarily entailing the abandonment of the initial procedure (Dehon v Parliament, paragraph 47).

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