Le Lien The Link
syndicalisme européen, citoyen, participatif et unitaire
February 2014 – n°39
• Editorial: a
chance not to be missed!
On 19 February, the DG HR is finally starting an important round of negotiations with staff representatives on subjects which, because of lack of time or will, have not been able to be tackled until now, and on issues where significant differences of opinion exist between the Commission and the trade unions. You can see below the broad outline of our approach to these negotiations.
As far as U4U is concerned, the most important aim is to obtain real and positive results for both staff and institution. This is necessary if we truly want to improve staff management, the internal environment and the efficiency of the institution.
Staff are concerned about the objectives of their jobs and of the institution. Too often, proposed reforms have weakened the institutions and worsened working conditions, careers and pay.
This round of negotiations will show if the College and its President really want to do anything more than meet the expectations of the most destructive Member States. Now that we are no longer subject to external constraints, it will also show whether positive reform is yet possible for the Commission. In any case, U4U and the other trade union organisations are ready to meet the challenge.
How should we negotiate?
First and foremost, U4U wants to set out a serious framework suitable for this social dialogue. We would like to be able to deal with these issues inclusively, with regular weekly meetings on dates decided in advance. We would like the documents required for these discussions – whether they are sent by the unions or by the administration – to reach the negotiators at least a week in advance. Finally, we want these discussions to include the Director General of Personnel so that we can have someone across the table who is in a position not only to negotiate, but above all to conclude agreements.
We want to conduct a dialogue which is favourable to staff as well as strengthening our institution because, in our opinion, one goes hand in hand with the other. In addition, we want to negotiate the definition of the policies themselves and not just restrict ourselves to discussing the General Implementing Provisions (GIP). Finally, agency staff representatives should be brought into the negotiations immediately, as well as those from the EEAS, in addition to their Human Resource officers.
The most urgent issues:
1) Refusing to put up with insecurity and inequality!
We are calling for the organisation from 2014 of:
- internal competitions to reclassify post-2004 AST (from 1 to 7) and AD (5 to 9) grades, and
- internal appointment competitions for all CAs.
2) Attendance monitoring and professional incompetence
With regard to attendance monitoring, we favour simple, flexible and inexpensive solutions that are based on trust.
The independence of employees must be guaranteed because, contrary to the beliefs of Vice-President Šefčovič, there can be no independence of the European Civil Service without it. Social dialogue is required on the subject of professional incompetence: this must not be a sword of Damocles hanging over the heads of civil servants. Compulsory preventive and corrective measures must be introduced before implementation of measures arising from the assessment of incompetence.
3) End-of-service management, social protection of local agents, crèches and schools
Other very urgent measures include end-of-service management in 2014, while there is still no career policy. We must stress the need to exhaust all budgetary resources in terms of rates of promotion as well as those resources planned for the transition period. It will also be necessary to introduce a transparent and even-handed procedure, or at the very least a procedure that guarantees staff representation.
At the same time, current grants for European schools, crèches and child-care centres must be seriously discussed with a view to increasing them.
Improvement of social protection for local agents must finally be dealt with seriously, as their current situation cannot continue.
4) Issues defining a new personnel policy
It will be necessary to introduce a new career and talent identification policy which maintains and improves the skills of staff members and allows them to access the new end-of-service procedures created by the reform of Staff Regulations in the context of a significant increase in the number of working years over a lifetime.
At the same time, it will be useful to leave behind the permanently ad hoc arrangements concerning contract employees. Before any discussions about the GIP, we must prepare a contract personnel management policy, limiting the consequential insecurity and waste of resources for the institution. In this context, contract workers could, after a rigorous selection process on entry, be offered fixed-term contracts in the central departments, which could be followed, for the best of them, by permanent contracts in the agencies, offices, representative offices, delegations, etc. A better appreciation of professional experience should allow salaries to be increased at the time of recruitment. Horizontal mobility (between offices, agencies, etc.) and vertical mobility (from the departments to agencies, offices, etc. and vice versa), as well as the scheduled organisation of internal competitions and the ability to change categories (between function groups) must be included in the list of measures to be taken within the framework of the new contract personnel policy.
In addition to the above, a personnel policy should be put forward promoting recommendations with regard to participative management.
Finally, the question of equal opportunities for men and women must be considered as a reality, planned in good time and implemented in a tangible manner.
5) To be more effective: reform staff representation!
U4U believes it is necessary to review the provisions for staff representation, both statutory (staff committees) and union, in order to improve staff representation and social dialogue.
U4U has expressed its opinion on this issue many times over the last 4 years. On the statutory side, we want simultaneous elections subject to the same rules and the same scrutiny. All staff committees will have a proportional weight on the central committee. All sites where there are Commission services must be represented on the Central Committee with identical rules. Agency committees must be organically integrated within the central staff committee, like that of the EEAS.
With regard to the unions, U4U recommends raising the representation threshold to consolidate the present union groups and avoid a return to divided and therefore weak representation. Central and local social dialogue rules must be both clarified and strengthened.
Finally, resources provided for staff representation – premises, administration, exemptions from service – must be increased, in particular to prioritise a stronger local presence, also in implementing agencies, which are for the moment without resources.
Staff must be kept informed of the progress of work and be consulted on the provisional conclusions.
1,500 places on internal reclassification competitions for civil servants and appointment competitions for CAs!
The issue of insecurity and inequality has been at the heart of the action taken by U4U since its formation. Our organisation wants to create conditions that are fair for all colleagues working in the institutions, whether they are contract employees, temporary agents or civil servants, in particular those recruited after 2004.
We have asked for internal competitions to be held for TA colleagues and post-2004 civil servants, using financial resources made available by the underuse of promotion options over recent years, in order to allow those colleagues concerned to make up for the delays in their careers.
The Commission has decided on an internal competition for just 380 posts. This reduced number contributes to the growing frustration of staff.
U4U is not entirely happy with the modalities of the internal competition, nor is it happy with the limited range of fields or the number of posts offered. This is, however, a first step that must be built upon.
U4U believes this option could be of greater benefit to staff if the following were to be organised:
- at least 2 further
competitions – one in 2014 and one in 2015 – in place of the current unique
We are asking you, together with the 1,000 colleagues who have already signed this petition, to support our request for the exceptional organisation of two further internal competitions, which we will send to the DG HR, by clicking on the link below. Thank you for your support.
Furthermore, U4U supports the resolution of the General Meeting (GM) of the Contract Employees’ Collective held in Brussels on Wednesday 29 January and attended by 160 people, with several dozen more in Luxembourg.
All of the trade union organisations were present on the platform or in the hall, showing both the importance of the issue at hand and of action taken by the Collective for several years.
The main conclusion of the GM concerns the appeal to all staff and unions to support the claims of contract employees and urgently demand social dialogue with the administration in order to define a meaningful contract personnel management policy.
During the meeting, the Collective also presented an update on the petition it launched in the last quarter of 2013. This petition has currently collected 3,600 signatures of contract employees and civil servants. The GM appeals to staff to continue to sign the petition.
In addition, the GM insisted on:
- organisation of internal
competitions for all contract employees from 2014: the advance planning of
competitions must allow the staff concerned to be informed about their
More specifically, on this final point, this policy must immediately provide more secure management of contract staff. These colleagues must be offered successive fixed-term or permanent careers.
Classification at the time of recruitment must take greater account of professional experience, while promotion and both horizontal and vertical mobility possibilities, whether at inter-institutional level or between offices and agencies, etc., must become fact.
The option to change categories must be organised, if only so as not to exclude contract workers from function group 1.
The financial situation of colleagues from this group in Luxembourg must be corrected immediately: it is not worthy of the institution that the salary of these colleagues is below the minimum subsistence rate in that country.
In the medium term, the salary structure must be reviewed and, possibly in the longer term, a new unique structure created.
U4U has begun its 2014 cycle of decentralised meetings in the DGs as well as in Ispra, Alicante, Seville, Luxembourg, etc. These meetings give us a better understanding of the reality of working conditions of our colleagues, but they are also an opportunity to assess how the unions are perceived by these same colleagues.
Following the reform of Staff Regulations and the many comments from colleagues about the activities of the unions, it seems to us that some clarification is necessary.
The unions are not external bodies foreign to the institution; they are the emanation of its staff. The trade unions consist of colleagues who decide to devote all or part of their time to union and statutory activities. Statutory activity involves the presence of staff representatives on all joint committees created by the Staff Regulations where their opinion is required.
To enable the unions to function, the administration makes it possible to release some colleagues from their service in order to do union or statutory work. There are 41 releases for the EC (including the "non-Union" sections), i.e. 1 delegate for 900 members of staff. In line with the results of the elections for staff representatives, each union receives a number of release posts in proportion to the number of votes obtained. This is not a lot for an institution of 35,000 people, with a presence in all 28 countries of the EU and a further 150 non-EU countries!
However, only a few colleagues are on full time release. If all union and statutory work had to be done on the basis of this quota alone, the unions could not fulfil their responsibilities. The unions are managed and run by permanent members. In order to function, the unions assign partial releases to various colleagues, some elected and some not. These colleagues therefore complete their union and/or statutory duties while retaining their responsibilities and posts in their various departments. Finally, other colleagues give the unions a hand, either regularly or on a one-off basis, by giving up their free time. Their action is comparable to volunteer work.
Only 15% of the 35,000 co-workers in the EC are union members. 70% of them, members or not, vote in the professional elections. It is always difficult to achieve the quorum. Most of the colleagues who come to the unions with a question or a problem throughout the year are not members; and there are many requests, dealt with either by the unions or by the appeal boards of the various relevant joint committees.
Representing the staff is not a trivial task and requires a number of different skills. The unions make do with what they have, which is to say that sometimes not many people and not all skills required are available. To be more effective, we would need more people and a wider range of specific expertise: legal experts, statisticians, communications officers, translators—mostly volunteers given the limited number of release posts available (5.75 releases altogether with regard to EU and non-EU Commission departments).
A union depends on the good will of its membership. If there are only a few members, its resources, both human (based on quotas) and financial (based on contributions), are minimal. We cannot have a strong union with the means to put an argument to the administration without providing it with resources in terms of skills (human resources) and knowledge (access to data, information, statistics, legal services, etc.).
Much of the strength of the trade union resides in the legitimacy it accrues from its relations with the administration on account of its representativeness, or in other words, the number of its members and the number of votes cast during the elections. This strength also comes from its skills in discussing issues, skills that depend on the qualities of its members, whose contribution is more often than not voluntary, their involvement in their cases and their results.
The staff also note the lack of clarity over how unions differ from each other and the relatively high number of unions. If we were all alike, we would have only one union, which would by definition be prejudicial to democracy. It is, however, true that the unions are too spread out and, in some cases, not very representative. It is true that this division and the disunion it reflects no way serve our interests. They weaken us and delight the administration. It is an absolute necessity to increase the level of representativeness at elections.
Many believe that we achieved nothing in the negotiations concerning the recent reform of Staff Regulations. That is far from accurate (see the details on the negotiations website), but it is true that staff are discouraged and are not showing enough support to their representatives. When it comes to a decision to take action, the unions hesitate, because they are not sure their lead will be followed. In fact, such actions remain low key, accentuated by the growing number of regulations and the inequalities which divide employees into categories with opposing interests. The administration is well aware of this and takes advantage of it in order to flout its fundamental duty to consult the unions. In doing so, it achieves its objective: the employees lose confidence in the unions. In other words, because we, the unions, are comprised of you, members of staff begin to doubt themselves and their ability to influence the employer. And that, in itself, weakens our influence.
Any involvement undoubtedly requires effort and prior training. That is why the doors of the U4U office are open every Monday at 12.45 p.m. for interested colleagues to come and find out what is happening, the state of discussions/negotiations with the administration, ongoing appeals, important meetings, jobs to be done. That is why we produce frequent and well-argued newsletters and not simply a few simplistic leaflets.
We understand that, with increased working hours, fewer members of staff and a growing number of redistributed jobs, it is becoming more and more difficult to reconcile our private lives and our professional lives and to free up time to take action.
However, you can in your own way support our actions, whose goal is the defence of ALL staff, and not just this group or that category. You can become a sympathiser or a member, you can contribute to the cost of appeals, you can vote for us.
The unions are everyone’s business. Without them, the way will be wide open for the Member States to ride roughshod over us. Let us say once again that U4U is not against change; we can see how the world is changing, but U4U also knows in which direction certain Member States, with the complicit inertia of others, want to lead us.
This destruction of the European Civil Service, beyond the deterioration of our working conditions and the planned disappearance of our jobs, is contrary to our profound commitment to the European project, which merits better from those who serve it than the tacit acceptance of the sabotage to which it is being subjected.
Creation of a "Secondary Campus" regrouping all the S6 and S7 pupils of the Brussels European Schools.
An important proposal is quietly but steadily advancing (towards implementation?) and we wonder if many parents of the Brussels European Schools are informed properly.
In the recent General Assembly of the School Brussels III (“Ixelles”) last December (2013) was proposed to the representatives of the parents a motion giving the green light for an important change of our schools.
Until now, every proposal for a reform or a significant change was widely explained to the parents and we are used to have information meetings by the APEEE, discussions in the Education Councils, presentations to the parents in the “cantinas”, meetings with the representatives of the office of the Secretary General Mr Kivinen, the opinion of the relevant unit of DG HR etc.
This proposal, to which I refer to, is the opposite. With no previous explanations, studies etc... we learned that already 2 APEEE voted in their General Assemblies motions asking the Schools to create instead of a full 5th European School in Brussels a kind of Campus regrouping all the S6 and S7 pupils of the Brussels European Schools (with Ixelles this makes 3 APEEEs).
We are a little puzzled with this course of events, but we consider useful before expressing a firm opinion on this matter, to submit to our readers the succinct rationale presented to the parents representatives.
These explanations given briefly pretty late in the evening of the Ixelles General Assembly (Brussels III) are as follows (in italics):
“Due to continuous overcrowding of the European Schools in Brussels, a 5th school is scheduled for opening by 2019. The sites currently under discussion for such a 5th school are either the school in Berkendael (currently used for the nursery and lower primary of Uccle) or a new site in Etterbeek at Blvd. General Jacques/Av. de la Couronne (1.2 km distance from the Ixelles school). If Berkendael is chosen, the opening could happen earlier than 2019.
It is not yet clear how the 5th school will be used. It could be a classical full cycle school (from nursery to S7). The General Secretary of the European schools, Mr Kivinen, seems to favour a school offering additional space for nursery and primary pupils (where there is currently the highest demand). Some parents, notably from Uccle and Woluwe, advocate the creation of a secondary campus for all S6-S7 pupils of Brussels.
It is important to note that according to statistics provided by Mr Kivinen, there will be a lack of secondary class room space in the 4 current schools as of 2019, the time when the 5th school should open. In addition, this forecast is based on data reflecting the current overpopulation in Ixelles and not based on the official maximum capacity of 2 650 pupils for our Ixelles school.
Advantages and disadvantages secondary campus
Positive: Reduction of overcrowding in Ixelles (and other Existing schools) Better choice of options in L1 (mainly for DE EN, ES, NE sections from Ixelles)
Negative: Separation of siblings, risk particularly for isolated sections located only in one of the Brussels schools that secondary teachers will be split between S1 – S5 and S6 – S7 (relevant for the EL and CZ section in Ixelles)
Other alternatives: A classical full cycle school (from nursery to S7) could contain a 5th FR, EN and DE section as well as a 3rd ES, a 2nd EL and new sections, at least the Slovak one with the current Slovak SWALs from Ixelles. The need for such additional sections is questionable for EN, DE, ES and EL and could further reduce class levels and choice of options in L1 at Ixelles.
The European schools are currently also considering the merging of some secondary sections from the existing schools. Thoughts go in the direction of merging IT, ES and NE sections from Brussels (no details are yet available on which sections might be concentrated at which class levels and at which school). EN and DE sections are currently exempted from this consideration as a merge would create problems with the mother tongue teaching of SWALS from these sections, and as there is an agreement with the Belgian authorities that each European school in Brussels will include a linguistic section for the official Belgian languages (incl. DE).
Another possibility would be the organisation of joint classes among the BXL schools to keep the options without merging secondary sections – almost only for S6 and S7. Such options should be on Wednesday afternoon or on a half day reserved for this as agreed between the Brussels schools and, for such joint classes, the organisation of studies for S6 and S7 should be harmonised among the Brussels schools.”
We can suspect - with a risk to be wrong - that behind this proposal are standing some parents panicking a little because of the coming reform of the secondary. They may consider that a grouping of S6 and S7 could possibly give the opportunity to secure more “options” for the subjects to be offered in the years S6 and S7. Others may envisage the opportunity to create new linguistic sections, say in the primary, taking advantage of the resulting space created by the "displacement" of the S6 and S7 sections.
Possibly such a scheme can offer some advantages. But we can express the fear that such a “Campus” school (regrouping only S6 and S7) will be so complex, that its governance will be a challenge to its managers.
It is also beyond reasonable doubt that a school where all linguistic sections are present, will create an interesting APEEE, where each section can be certain to be on the board. Remains to see how such an oversized APEEE could work efficiently, but if the Council of Ministers can work, there is still hope for the “super APEEE”.
We can also ask the question if this grouping plan is really within the current intentions of the Board of Governors. Until now no official information was given.
Are we certain that the advantages and disadvantages of this plan are really only the few lines given to the parent’s representatives during the AG? As an example, does this reform means that most secondary teachers will work in 2 different schools? (Say in Ixelles or Uccle for S1 - S5 and in the “5th School” for S6 and S7)? What is the opinion of the teachers?
As a reminder, some years ago, a similar idea was proposed, i.e. the creation of a new school "Only secondary" with all years present (S1- S7). This proposal seems at first sight more reasonable. Possibly it will be even more difficult to put in place, needing even more careful planning and perhaps more space. But on the other hand, such a school (or schools) should permit real economies of scale and the possibility to offer a very large spectrum of teaching options.
“European Education” considers that the office of Mr Kivinen and the relevant unit of DG HR of the Commission should clarify the issue with detailed information sent to the parents and the pupils.
Council regulation 1324/2008 modifies the interest rate set in annex VIII of the Staff Regulations from 3.5% to 3.1%, with effect from 1 January 2009.
However, the General Implementation Provisions (GIP) which repeal the 2004 text only came into force on 1 April 2011, in order to clarify the situation in this area.
The problem is knowing which interest rate applies to transfers between 1 January 2009 and 31 March 2011.
Furthermore, which date should be taken into account: the date the file was submitted by the civil servant? The date on which the PMO contacted the pension department of the State concerned? The date of the offer of calculations made by the PMO to the civil servant or the date of agreement/refusal by the civil servant? The date of the actual transfer of capital to the Community scheme?
In such cases, the Commission has taken an extremely restrictive approach, as it considers that the date to be used is that of the actual transfer, which must have taken place prior to 1 January 2009. It appears that the Commission has made a new offer, on the basis of 3.1%, to all colleagues whose transfer had not been actually completed on this date.
Two recent rulings by the EU’s Civil Service Tribunal have clarified the situation slightly.
In the VERILE / Commission ruling, the Tribunal considered that the relevant date was that of the civil servant’s acceptance of the PMO’s transfer offer, which must have taken place no later than 31 March 2011 in order to benefit from the interest rate of 3.5%. It ruled in favour of Mr. VERILE, who had agreed to the Commission’s offer, before that date. Contrarily, in the case of TEUGHELS / Commission, the petitioner had not agreed to the offer prior to 31 March 2011, and the Tribunal dismissed the case.
According to our information, at most 200 people would find themselves in conditions identical to those of Mr. VERILE, while more than 9,000 colleagues would be in the same position as Mrs. TEUGHELS.
U4U asked the Commission to apply the VERILE case law to everyone in an identical situation. At this stage, the Commission rejects this solution and wants to appeal the VERILE ruling on the basis, apparently, that the grounds for this ruling could affect the notion of notional pension funds.
For the other 9,000 colleagues, it will be necessary to see whether the petitioner will also pursue an appeal.
U4U supports colleagues who feel short-changed by this affair, due to the poor management of the Commission in adopting the new GIP after the 2008 regulation was adopted by the Council. It is clear that the adoption of new GIPs as recently as 2011 caused legal insecurity and a substantial grey area which colleagues do not understand. This affair must be an example for management of transfer cases in the future.
U4U will inform you of the follow-ups to these rulings and on action to take in this area.
If you were not promoted in 2013 or you did not receive a grade increase, your net salary consequently fell in January 2014, undoubtedly for the first time since you were recruited.
This fall is the result of the reintroduction of the special levy at a rate of 6% (7% from AD 15/2). We should at this point remind you that the average levy between 2004 and 2012 amounted to 2.5%, meaning that the rate has more than doubled.
It should also be noted that this levy is the compensation for the Method. However, this method is not being applied in 2013 and 2014 and the Council has refused the increases for 2011 and 2012, after a freeze in 2010. Briefly, the Member States succeeded in freezing pay for 5 years, with a serious reduction of purchasing power, while having the levy paid to civil servants. You could say that they have achieved their goal of having European civil servants paid while making our system much less attractive.
We can, however, detect a little positive note in this very negative situation: the Member States finally agreed to adopt changes in pension contribution rates from 11.6% to 10.3% in 2013, which has limited the decrease in net salaries (see the recovery of the 2012 rate on a separate wage slip in January 2014 and of the 2013 rate on the wage slip for February 2014). The changes for 2011 nevertheless remain in dispute before the Court.
With regard to the salary adjustments in 2011 and 2012, after the last ruling of the Court, the College proposed an adjustment to 0.9% in 2011 and 0.9% in 2012, which was not based on any objective data. These two proposals have not yet been examined by the legislative authority. The trilogue meeting was held on 17 February 2014. A solution appears likely for the year 2012.
During this trilogue, U4U invited the Commission and Parliament to reject any adjustment below 1.2 for 2012 and 1.4 for 2011, percentages corresponding to the calculations provided for by the new method.
At the time of writing (19 February), Coreper does not want to move from its position: freezing salaries in 2011 and 2012 by refusing any change in salary. As a result, the trilogues planned for this date and tomorrow have been cancelled.
There is still a slim possibility that the Council will listen to the compromise position of the Commission for an adjustment of 0.8% for 2012, and a last resort trilogue will be held on 3 March. However, it is much more likely that we will have to face up to a salary freeze over four years: 2011 and 2012 without adjustment, 2013 and 2014 with a freeze written into Staff Regulations.
See below the possible appeal that U4U and its partners might launch against the Council’s position.
Together with the FFPE and R&D, U4U has proposed joining forces with all union organisations and coordinating their efforts to launch a series of appeals against provisions in the new Staff Regulations which are damaging and unfair to the staff.
The new Regulations, which came into force in January 2014, affect all categories of staff to different degrees: Civil servants of AD and AST grade, pre-2004, post-2004 and soon AST/SC, contract agents and temporary agents, etc.
All of these categories must be defended with the same energy in a coordinated and united approach.
To this end, and to ensure the effectiveness of the action, U4U / R&D / FFPE are proposing to all organisations that we get together to launch all pertinent appeals, jointly and without duplication of effort, against the following provisions of the Staff Regulations:
• 2014 salary freeze in spite
of the reintroduction of the solidarity levy
These appeals will have to be lodged in due course in accordance with the appropriate legal time limits and are intended to try to re-establish fairness and justice for all categories.
Call for your support
Do you feel concerned and agree with our approach? Join us because we need your participation as potential plaintiffs in one or other of our legal actions.
Access to the European justice system is far from free if we want to build cases that have some chance of success. That means significant financial risks. This is why we need your financial support. Even if you do not want to join a union, help us to defend you and challenge what will penalise all of us severely.
Make a payment to the U4U account to help us in our action:
The Court of Justice issued a ruling on 22 January 2014 (case C 270/12) giving a broader interpretation of the “Meroni” case law. This case law drastically limited the delegation of powers to clearly circumscribed powers of execution to avoid any transfer of responsibility away from those bodies provided for by the Treaties to delegated authorities.
The United Kingdom had attacked the regulation giving the European Securities and Markets Authority (ESMA) powers to regulate short selling.
The European Securities and Markets Authority is in charge of harmonising European technical standards with regard to the financial markets. It replaced the Committee of European Securities Regulators on 1 January 2011.
It constitutes one of the three new European supervisory authorities created to constitute the European System of Financial Supervision, the other two being the European Banking Authority and the European Insurance and Occupational Pensions Authority. Each Member State of the European Union has a representative at ESMA.
ESMA has the power to draw up compulsory standards and to intervene using binding measures. Its role consists of:
• improving coordination
between the regulators of securities markets;
The arguments of the United Kingdom
The action of the UK, within the context of British government policy aimed at reducing the powers of the EU, is to repatriate a number of powers to the UK.
Briefly, the UK considers that ESMA was invested with discretionary powers that are too broad and capable of bypassing national regulatory bodies. It considers that the legal basis for delegating these powers was inadequate (art. 114 TFEU, decisions based on a qualified majority).
The UK believes that the regulation authorises ESMA to adopt quasi-legislative instruments of general application and that such a faculty contravenes “Romano” case law.
The Advocate General, Niilo Jääskinen, supported the UK’s arguments to a large degree. In particular, he considered that the correct legal basis should have been art. 352 TFEU, which, by requiring unanimity, provides the UK with the right of veto. In more general terms, he argued that article 114 gives the EU powers to harmonise the internal market, but that the contested regulation went far beyond harmonisation, since ESMA can take action in the event of a failure by the national authorities, by decisions at an EU level, even if they are temporary. He was of the opinion that this transfer of decisions to the EU, possibly against the advice of the national authorities, exceeded the concept of harmonisation.
The judgement of the Court
The Court first notes that EMSA is an EU entity and that the Meroni judgement concerned a delegation of power to entities governed by private law.
It notes that EMSA has no autonomous competence going beyond the regulatory framework established by the EMSA regulation and that the exercise of delegated powers is controlled by various criteria and conditions which define its scope.
The Court therefore considers that the powers available to EMSA are closely controlled and subject to legal review with regard to the objectives set by the delegating authority. In other words, these powers do not imply that EMSA has been invested with a “broad discretionary power” incompatible with the Treaty on the FEU.
With regard to application of the “Romano” case law, the Court points out that the TFEU (article 263, first subparagraph, and article 277), specifically allows bodies, offices and agencies of the EU to adopt instruments of general application.
It reaffirms the validity of those legal texts which, approved by EU legislators, bestow the power to adopt instruments that are legally binding on natural or legal persons in specific areas, instruments which remain subject to legal review.
Finally, the Court states that a legislative instrument adopted under art. 114 TFEU must include measures relating to the reconciliation of the legislative, regulatory and administrative provisions of the Member States and have the establishment and operation of the internal market as its objective. EU legislators, in their choice of how to achieve this reconciliation and bearing in mind the margin of appreciation they have, can delegate competences to an EU body or agency that are intended to bring about the desired harmonisation. This is particularly the case when measures to be taken have to rely on professional expertise and special technique as well as on the reactive capacity of such an entity.
It is indeed possible that, in some areas, reconciling the general rules alone is not enough to ensure market unity. The notion of “measures relating to reconciliation” must now be interpreted as embracing the power of EU legislators to prescribe measures relating to a given product or category of products and, if appropriate, individual measures concerning these products.
Scope of the judgement
This judgement is potentially the source of a significant development in case law.
In the first place, it strengthens the area of application of art. 144 TFEU, on the basis of which decisions are taken by a qualified majority. It would certainly be bold to compare this to the interpretation of the USA Supreme Court, which considers that the clause of the US Constitution (section 8) giving the federal government the power to regulate commerce provides the federal level with a very broad field of activity. Nevertheless, the EU Court of Justice has just given EU legislators the right to take general and individual measures to ensure the smooth operation of the internal market.
On the other hand, the Court gives legislators the right to delegate their powers to legally established entities where professional expertise and special techniques are necessary and a reactive capacity is required.
The Court’s judgement therefore leaves the way open for EU legislators to create regulatory authorities and delegate broad powers to them, provided that they are intended to ensure the smooth operation of the internal market and are controlled by legal texts which set out the objectives, procedures and areas for action in an accurate and clearly delineated manner.
This judgement is also important in political terms. We remember that during the financial and Euro crises, the politicians deplored, often hypocritically, the fact that the Lisbon Treaty did not give them sufficient powers and that a review of the treaties was necessary to be able to take the required measures (which postponed them indefinitely).
Mr. Verhofstadt, during a conference on 29 January 2014, stated: « Since 2007 European liberals have called for establishing financial supervision at EU level. Which after all is only a logical step in an internal market where banks operate cross border and capital flows freely. But Member States have always resisted this step and have been hiding behind the so-called Meroni doctrine which is an ECJ ruling from the late 50’s. But last week the ECJ in a ruling on short selling clarified that we can actually give discretionary powers to EU authorities. And this in itself also proves that it was not necessary to entrust the ECB with supervision of banks. These powers could have been given to the European Supervisory Authorities. As we in the Parliament said at the time. »
The Court has just removed the screen of the Meroni judgement from the political authorities. The EU now has the power to prepare and introduce measures and institutions necessary for effective operation of the internal market by a qualified majority.
It is up to the citizens, through their votes at the European elections, to make sure their elected representatives take advantage of this opportunity.
One final comment: EMSA is a regulatory agency, but the ruling can undoubtedly also involve executive agencies. On January 2014, the Commission commenced an overhaul of its resources by strengthening the role of executive agencies in the management of its programmes, while more closely integrating these same agencies into its central structure. The main problem with this reform was preserving in law the definition of the policies at the Commission itself, while giving the agencies real programme management capacity, which inevitably includes quasi-political decisions at this level. In particular, when an agency is answerable to several central DGs, the coordination inevitably tends to be done at the agency level, even though the decisions are then endorsed with the relevant stamps. The Court’s ruling will undoubtedly provide executive agencies with more room for manoeuvre within the framework of well-defined rules. On the other hand, it is going to increase the overlap area between the definition of policies and implementation measures, which could in the long run force the Commission to review its structures. Indeed, their complexity could result in a loss of efficiency and increase the uncertainty surrounding the processes.
Held in Brussels on Tuesday 21/01/2014
The work of the Conference was organised by Graspe and Europe Solidaire. Georges Vlandas (Graspe) , Vlassys Sfyroeras (Europe Solidaire), Henri Weber (Member of the European Parliament), Kostas Botopoulos (former MEP, President of the Greek Financial Markets Authority), Eneko Landaburu (former Director General at the Commission, director of the Notre Europe foundation / Jacques Delors) all spoke before a large and motivated audience. A full report on this conference will appear in the Graspe Review.
An initial report can be consulted at the Europe Solidaire website. Here is an extract:
Mr Kostas Botopoulos spoke first. Europe was badly prepared for what happened. The basic problem concerned the construction of the Euro, as it was/is a currency which exists without central governance. The European Central Bank is not a political institution and does not possess competences in terms of jobs and growth. It is therefore unable to intervene effectively. Article 136 of the Lisbon Treaty did provide for economic coordination, but it has remained unheeded in practice, in spite of progress made in the crisis.
A second problem which emphasised the crisis was the lack of coordination between the countries in crisis and in particular between the four countries most seriously affected, which are not agreed on a possible joint solution to their problem.
It is indeed the lack of solidarity which has characterised management of this crisis. Of course, the money loaned was important (the sums involved meant this was the most expensive rescue in history) and welcome, but there was also a rather scornful attitude from Germany towards those countries given assistance, which caused some negative feelings towards the German government and Germany as a whole. We should recall that Greece was close to being dropped, and that it was only after intervention by the White House that Germany and Europe finally lent their support! This "anecdote" highlights the serious lack of solidarity.
In general terms, the measures designed to help the countries (in the form of Memoranda) had some serious “control” problems: they were Draconian, based on a perspective short-term growth recovery, and their economic and social impact was drastically underestimated, as shown by the recent European Parliament Report.
There are 3 lessons to be learned from this crisis:
1. We must move away from rigid memoranda and leave each of the aid programme countries (Irl, Gr, Pt) to find their own solutions.
2. We must encourage and help those countries which make a serious effort – give them a “bonus” – and corrections should be made to policies in these countries which have an exorbitant social and political cost. It is time to rebuild.
3. The people and the politicians must wake up. The time for indignation is over, it is now time to face up to reality: 30% unemployment, 30% of citizens living in poverty and a loss of 30% of GDP; that is the situation, in Greece at least, after 4 years of crisis. The societies have made tremendous efforts and are, for the time being, resisting, but it is high time to rebuild and to create, including the political and civic environment.
Mr. Eneko Landaburu then spoke about the issues of the European elections. He identified three major issues.
Firstly, the turnout. The polls are worrying and show a lack of interest in the elections among European citizens. If the turnout is low, the European Parliament will see its role weakened.
Secondly, xenophobic, nationalist and Europhobic political parties, which are gaining ground, must be denounced. If these parties win, it will be a defeat for Europe. We must not hesitate to demonstrate this and remorselessly condemn the consequences that the implementation of the policies promulgated by these parties would have.
Thirdly, solutions must be found to the economic and social crisis. Citizens will look more favourably on the European project if we can show that through Europe we will preserve our model of society and recover from the crisis. We must take stock of what has happened. The Europe of today is not the Europe we want. It has become neoliberal, insufficiently reactive to problems and without a social project. It is therefore necessary to set things out clearly and denounce these errors and the results of these policies. We cannot create Europe with punishments, unemployment and crisis. Such a Europe is bound to fail; it would be digging its own grave.
Finally, we must move towards a Social Europe. Europe must guard against globalisation, combat poverty and help the weakest. We must reject “social dumping” in our countries. We need fiscal and social harmonisation (on employment), a minimum wage, cooperation over the Euro, protection of the environment and solidarity (the wealthiest countries must play an important role here).
Mr. Henri Weber spoke next. He stressed the prospect for change in the European project. Under the effect of the crisis, Europe has made progress that the general public has generally been unaware of. Firewalls have been erected against the banking and sovereign debt crises.
However, we have to correct the errors in the construction of the Euro. We need a real Central Bank like the FED in the USA, which will be responsible for monetary and financial stability, as well as growth and employment. The FED prints 85 billion dollars every month and plays an important role in the economy and in politics. We also need a truly European budget. The USA has a federal budget in the order of 25% of GDP, while in Europe the EU has a pseudo-budget of less than 1% of GDP. Jacques Delors and supporters of the single currency hoped that that political union and integration would automatically follow monetary integration, but that has not been the case. It must happen now.
The EU and its Member States must implement differentiated strategies to recover from the crisis. The objective is not to die once healed, but to heal and recover and become stronger than before 2008. We need to kick-start consumption. We also need to revive investment: investments in Europe and energy, the Europe of transport, the Europe of nanotechnology, the Europe of research, etc. etc. We must finally achieve a social Europe with a minimum wage, for example 60% of the average salary in each country. We must combat unemployment, particularly among young and much older workers.
Mr. Georges Vlandas believes that European construction, which is increasingly necessary, can only be achieved if we draw up a critical balance sheet of what has not worked. The European budget is clearly inadequate and was decided before the European elections, thereby weakening the stakes. The Community method has taken a backward step to the benefit of an inefficient and counterproductive intergovernmental approach. Austerity policies have not been compensated for by a European recovery preparing for the future. There is a political and institutional crisis. This crisis is accompanied by a lack of social dialogue and the absence of a unifying federal project around which to rally. These failings are the responsibility of our elected representatives or other political figures who did not foresee these financial, economic, social and political crises. Politics must now be given the highest priority, particularly at a Community level, so that we can create a new vision for Europe.
PLEURS AU FUSIL*, by Philippe Tabary
July 1914. Led by the “veterans” of 1870, youngsters and reservists hurry, with flowers in their rifles, to teach the “Prussians” a lesson. Inferior equipment, an uninspired Chief of Staff: in a few days, Fate would decide otherwise. Belgium invaded, Charleroi falls, then Maubeuge. 52 months of occupation begin, just 60 km from the trenches. Between exodus and refugees, pressures and humiliations, hardships grow.
Starting with the 41 names inscribed on the monument to the dead of his commune with 1,300 inhabitants, the author makes us relive the everyday life of a village in occupied France, on the Belgian border. Many prisoners, amputees, wounded, the rank and file: in all nearly 200 enlisted men, not forgetting the hardships, the impossible or unthinkable loves, legitimate and illegitimate births, the growing number of dead, the disappearance of marriages and baptisms…
The book, published in January 2014 on the centenary of the First World War, is written in the form of an inspired and even poetic narrative. It is, however, based on historic archives, using witness accounts, which the author retraces in this book over 52 months of a terrible war, in the tormented past of the Hainaut of his childhood.
This book should be read by all: it allows us to delve into a history that can, today, appear very distant, just as unthinkable and distant as it appeared when it broke out in 1914 (they thought they would be going for a “stroll” for a week or two).
Former journalist, Philippe Tabary is a colleague, a European civil servant who specialises in agriculture and rural issues and who also has a passion for history. "Pleurs au fusil" is his latest work…
* Published by Editions du Cherche midi, Collection "Roman", 272 pages, €18.50
|U4U at your service|
équipe de rédaction : Paul Clairet, Fabrice Andreone, Sylvie Vlandas, Tomas Garcia Azcarate, Kim Slama, Gérard Hanney, Sazan Pakalin, Agim Islamaj, Yves Dumont, J.-P. Soyer