Article 42c of the Staff Regulations

Brussels, 21 May 2019

 

Note for the attention of Mr Günther Oettinger

Commissioner in charge of Budget and Human Resources

 

Subject : Judgment T-170/17 of the General Court of 8 May annulling the Commission’s decision on the application of Article 42c of the Staff Regulations

Ref : our communications of 24 January 2018, 8 December 2017, 30 May 2017, 5 April 2017, 7 December 2016, 10 November 2016, 6 October 2016 (see our dos­sier)

 

Reminder of the facts

The application of Article 42c by DG HR: a shameful management, worthy of the horror museum of the European civil service….

In all of our abovementioned communications in relation to Article 42c of the Staff Regulations we have denounced the shameful and disrespectful management of DG HR.

By ignoring any duty of care and without the adoption of any decision likely to frame the implementation of this Article of the Staff Regulations, without any prior information or transparen­cy concerning the appointment procedure of colleagues concerned, without the slightest involvement of the staff representation …, DG HR put on leave, without the payment of any allo­wance and without the possibility of continuing to contribute for their pension, many colleagues already having reached the statutory retirement age.

The Commission is the only institution having demonstrated such a contempt for its staff and such an ignorance of the Staff Regulations while still pretending to be its guardian…

We have emphasized that such an approach of the Commission basing all decisions exclusively on the “fait du prince”, or “princess”, obviously the only source of law re­cognized by DG HR, was all the more unacceptable as the Commission still wants to be the guardian of the proper application of the Staff Regulations.

Faithful to our constructive approach and in order to help DG HR to finally realize the unacceptability of its approach, we even made a summary table showing the blatant discrepancies between the procedures organised by other institutions, notably compared to the procedure of EEAS which was exemplary, especially as regards the publicity during the launching of the exercise, the clarity of the applicable criteria, the full information provided to colleagues, the association of staff representatives….(read)

R&D had therefore invited DG HR to correct its approach and to ensure the correct application of this article of the Staff Regulations… alas it was again a dia­logue of the deaf!

By engaging in a caricature of the more than legitimate objections of R&D, dispensing with haughty air pseudo courses on European civil service law to explain the merits of its position, confirming that it was not concerned in any way by the procedures organised by other institutions, DG HR had confirmed its decisions and the correctness of its approach.

In particular, on the occasion of the meeting with DG HR services concerning the colleague that has been put in compulsory retirement by the decision that has just been annulled by the Court, we stated that it was absolutely unacceptable and contrary both to the letter and the spirit of the Staff Regulations to apply Article 42c to colleagues who had reached the minimum age for retirement but were entitled to work several more years.

We had denounced the fact that for DG HR, compulsory leave with all the accompanying measures provided by the Staff Regulations (payment of the allowance, possibility of continuing to contribute to one’s pension …) has become compulsory retirement without any compensation thus reducing drastically the income of the colleagues concer­ned from one day to the next.

With its assertive and very haughty style – the only mode of communication of which DG HR seems capable – the administration responded to our objections by saying that they were un­founded and that it was enough to read the Staff Regulations to realize it (sic!) …, no doubt being convinced to have once again “scrupulously and religiously respected the letter and the spirit of the Staff Regulations”!

In order to appreciate the gravity of such an attitude, one should bear in mind that DG HR’s approach had financial consequences, in some cases dramatic for the colleagues concerned.

As reported before the Court by one of these colleagues, the “brutal” reduction of income had the effect of preventing him from covering his monthly mortgage repayments, which forced him “to sell the house he owns in order to repay the remaining balance of the principal before it is auctioned at a public sale”.

Noting that it was useless to continue to explain to DG HR what it had no intention to understand, R&D, always alongside the colleagues, had therefore re­ferred the case to the Tribunal…

Indeed, faced with this unsustainable and contemptuous approach, the referral to the Court was the only possible option, which led R&D to take this step. This is how we stood beside our colleagues who turned to us for assistance.

And the judges have, ON THREE OCCASIONS, confirmed the validity of our analyzes!

Twice in the context of the proceedings for interim measures …

The President of the General Court, by his decision of 18 May 2017, ruled in favour of R&D and suspended the Commission’s decision.

The Vice-President of the Court of Justice, in his decision of 10 January 2018, curtly rejected the Commission’s appeal, once again confirming the analysis of R&D.

In order 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, claimed 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.

In those circumstances, the Vice-President of the Court had to remind the Commission of the basic principles of our civil service:

“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].

Nevertheless, DG HR continued to claim that the above-mentioned orders adopted in the proceedings for interim measures, which granted the appeal supported by R&D, were almost “a legal accident”, and informed the services that it was very confident and that its position would be validated by the judgment rendered on the merits by the General Court.

Even worse, several services told us that DG HR was waiting for such a judgment to go on with the compulsory retirements of colleagues having already reached the statutory retirement age, without any compensation.

And then in the judgment on the merits:

First, the Commission, dreading a judgment on the merits, tried to avoid it …  

The Commission went at great lengths to avoid the judicial control over the merits of its controversial decision, going so far as to claiming that the applicant had no longer interest in con­testing it. It argued that thanks to the aforementioned interim measures, the same that it had fervently contested 2 years before, the applicant was able to work until reaching his normal retirement age.

However, during the hearing its representatives had to admit that if the decision remained in force, this would allow the Commission to claim refund of the salary paid to the applicant bet­ween June 2017 and November 2018 as well as part of his pension, while promising that in any event the Commission would not do such a thing!

The Court had to remind the Commission that those were mere statements and assurances, which could not eliminate the legal uncertainty which would arise if the contested decision re­mained in the Union’s legal order.

We cannot but note that this line of defence is perfectly consistent with the above mentioned haughty and contemptuous attitude of the Commission towards its staff.

And the Court in its judgment T-170/17 of May 8th annulled the Commission’s decision, confirming the illegality of the interpretation of Article 42c advocated by DG HR …

In particular, the Court annulled the Commission’s decision of 2 March 2017 whereby the colleague assisted by R&D was put on leave in the interest of the service and, at the same time, automatically retired, and retaining in every respect the arguments developed, it confirmed that:

Consequently, concerning the interpretation of Article 42c of the Staff Regulations, it must be concluded that that provision cannot be applied to officials who, like the applicant, have reached ‘retirement age’ within its meaning. It follows that the Commission, in adopting the contested decision on the basis of that provision, in­fringed the scope of that provision, and the contested decision must therefore be annulled without it being necessary to examine the plea alleging infringement of Ar­ticles 47 and 52 of the Staff Regulations”  

This is word for word what R&D has always explained to DG HR, and lastly at the meeting with the representatives of DG HR on this colleague’s file!   

Conclusion

While, by turning to R&D and its advice, our member has had his rights successfully defended, several other colleagues, who were unlawfully forced to retire in 2016 and did not contest DG HR decision, had to leave our institution definitively with the sometimes very serious consequences mentioned above!

This shameful and contemptuous management is not worthy of the institution we have chosen to serve with pride and enthusiasm and we cannot stop there!

To this end, we call on you, Commissioner:

· Are you going to finally ask those responsible for implementing these procedures to report on them?

· Are you finally going to ensure that our administration shows the respect that the staff and its representatives deserve?

Cristiano Sebastiani

President

Copies:

M. J-C Juncker, President

M. M. SELMAYR, Secretary General

Ms  I. SOUKA, DG HR

Directors-General of the EC

M. C. Levasseur; Ms  M-H Pradines, DG HR

Ms E. O’REILLY, European Ombudsman

M. G. DI VITA, DG-BA EEAS

Staff of the European institutions

 

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