Le Lien - The Link
un syndicalisme européen, citoyen, participatif et unitaire
Jan-Feb 2010 – n°3
Salaries: state of play - Political and legal aspects
In this issue:
• Special file: salaries
As you know, the Council decided unanimously on 22 December 2009 to limit our salary increase to 1.85%, thereby rejecting the Commission’s proposal and violating the application of Annex XI of the statute, which lays down the method for salary adjustments.
The Council did not dispute the accuracy of the figures presented by the Commission but Member States disputed the appropriateness of this increase, because of the current financial and economic crisis.
However, the Council’s power in this area is circumscribed and it cannot modify the level of salary adjustment, without infringing Annex XI of the statute. The Council should therefore respect the calculation method which the Council itself laid down.
The Council Decision on the salary adjustment for 2009 infringes the staff regulations and the principle of legitimate confidence, as stated in the court case brought by the Commission against the Council on 5 juin 1973.
In this context, the College decided unanimously at its meeting on 6 January 2010 to take legal action to have the Council Regulation adjusting salaries from 1 July 2009, annulled. The President of the European Parliament, after consulting the Parliament’s Legal Affairs Committee, is prepared to be an “intervening party” in support of the Commission’s legal action; this will considerably strengthen the position of the Commission and of its staff.
The Legal Service of the Commission is expected to lodge the appeal on 28 January 2010.
The structure of the Commission’s legal action against the Council Regulation
The appeal refers to the two previous judgements of the Court of Justice in relation to the method for salary adjustments, in 1972 and 1981.
Unlike the situation at that time, since 1991, the salary adjustment method has been incorporated into the staff regulations as Annex XI. Therefore, the main argument used by the Commission is that Regulation 1296/09 of 2 December 2009 does not comply with Article 65 of the staff regulation or with Articles 1 and 3 of Annex XI.
In addition, the appeal invokes the principles of legitimate expectations of the staff and of respect by the Council of rules which itself laid down (“ Patere Legem Quam Fecisti” principle or “You just have to put up with a law which you yourself made”).
Furthermore, the appeal calls for the 1.85% salary increase paid to staff by virtue of regulation 1296/09 for the period from 1 July 2009 not to be brought into question, in case of annulation, until such time as a new regulation can be adopted, .
How long will it take to obtain a judgement from the Court in this area?
Pursuant to article 62 b of the statute of the Court of Justice, the Commission requested an urgent procedure. The Court of Justice must rule whether this request is justified, once it has heard the representative of the Council and the Advocate General. If this request is accepted, the procedure is reduced to only one exchange of written submissions and to one hearing of the parties at the Court. The Court of Justice would be obliged to change the scheduling of other cases.
Following information received by the Commission's Legal Service, it seems that the Court refused the urgent procedure in this case. Thus, the normal procedure will apply and we can not expect a ruling before the end of 2010.
Can officials lodge a complaint on an individual basis?
Each official can lodge a complaint, under Article 90 of the statute, to contest his first pay slip, dated 15 January 2010. Any such complaint must be introduced before 15 April 2010.
However, it must be noted that complaints are directed against the Commission. In addition, individual cases will be addressed to the European Public Service Tribunal and not to the Court of Justice (CJEC). Pursuant to article 71 of the rules of procedure of the Tribunal, all cases lodged by individuals will be suspended until such time as the Court of Justice rules on the annulment case brought by the Commission.
Can trade unions lodge an appeal?
Contrary to what various observers have written, it would seem that only institutions can be intervening parties at the Court, in accordance with article 40.2 of the statute of the Court of Justice.
Another option would be for a trade union to lodge an appeal for annulment under Article 263 TFEU on the basis of failure to observe regulatory provisions. However, even under this scenario the Court of First Instance, by virtue of Article 71 of its regulation, would still have to suspend any such case until the Court of Justice rules on the Commission case.
What will happen if the Court of Justice annuls the Council Regulation?
If the Commission wins its case at the Court of Justice, regulation 1296/09 of 23 December 2009 will be annulled.
The Commission would then have to re-submit its proposal to adjust salaries by 3.7% for the future plus pay the additional 1.85% for the period between 1 July 2009 and the date of adoption of the new regulation (remember that the Commission case requires the maintenance of the effects of the regulation of 23 December 2009 for the half of the salary increase already paid).
The new Commission proposal should also provide for interest on late payment at the rate laid down by the ECB.
What are the prospects for winning this legal action?
The Commission case raises a fundamental question concerning the application of the exception clause contained in Article 10 of Annex XI, which refers to serious deterioration of the economic and social situation within the Community. This will be the main argument which the Council will use in its defence. In strict legal terms, the use of Article 10 of Annex XI as a legal basis for adjusting salaries provided for in the article 3§1 of this same Annex constitutes an infringement of the staff regulation. Indeed, this article makes it possible to adopt, on the basis of Commission proposal, any decision under Article 336 TFEU, in the event of a serious and sudden deterioration of the economic and social situation in the Community. It makes it possible therefore to change Annex XI of the statute for the future, but not to apply a ceiling on remunerations calculated in application of the method.
Thus, the Council could have asked the Commission to start the procedure to invoke this exception clause. However, the clause can only be invoked following a formal proposal by the Commission under Article 336 TFEU, and according to the ordinary legislative procedure. In the meantime the Council would still have been forced to adjust our salaries under the method laid down in Annex XI.
Turning to the facts of this case, while it cannot be denied that the European economy has suffered a serious and sudden deterioration (major reduction in GDP), this crisis certainly did not originate within the Union and is not the result of unreasonable wage increases. This is clearly demonstrated by the exceptional budgetary measures taken by Member States in order to strengthen internal demand and to stabilise the purchasing power of employees in the public sector (salary increases of + 3% for civil servants in the eight principal Member States), in order to limit the impact of the crisis. Thus, in the absence of a sudden increase in inflation or wage levels and with an increase in the purchasing power in the most important Member States, the use of the exception clause contained in Article 10 of Annex XI would not appear to be justified for 2009.What happened on 1 January 2010, while awaiting the results of the Commission’s legal action?
During the Christmas holiday, the Commission made the backpayment for the 1.85% increase due for the period 1 July 2009 - 31 December 2009. The gross salary scale (Article 66 of the staff regulation) was adapted by 1,85%, as of 1 July 2009. All officials and agents will have a gross increase of 1.85% on their January 2010 pay slips. The net increase will be 1.45%, after deduction of the net increase in the temporary contribution (0.15%) and in the pension contribution (0.25%).
U4U keeps a close eye on this file. We welcome the position taken by the Commission. Our organisation also calls upon the College to continue to make sure that this file is followed up.
We at U4U will look into the usefulness of lodging individual or trades union complaints, provided that any such complaint does not obstruct action by the Commission and does not represent merely a symbolic gesture with no hope of a real result.
Letter to the Editor
I would like to share with you the following suggestion, to which I attach a lot of importance. We constantly talk about “an increase” in our salaries. This term, “increase”, leads to many misunderstandings about our wages. In practice, this salary increase is the result of “indexation” and I would therefore prefer the use of the term "indexation".
By confusing "indexation" (statutory duty) and "increase" (a gift from our employers), the public tends to believe that the European officials' privileges are being increased, instead of maintained by application of the law. Even for internal communications, I think that the term "indexing" is more relevant, because we do not speak about the subject only to colleagues in the office, but also to family and friends, unwittingly we are providing ammunition to the press.
|CDR: what can we do?|
The CDR will continue to operate in 2010, in the absence of a credible alternative, despite the widespread rejection of this system by the staff – including the management – and against a backdrop of uncertainty created by the changeover at the Commission, by attacks against the European public service and by massive and poorly managed internal restructuring.
Thus, the current difficult circumstances plus dithering within the institution have prevented us from addressing the obvious need to get rid of this system and replace it with a staff appraisal scheme which could even improve management instead of provoking dissent and distortions. The first question is to try to determine the causes while avoiding simplistic generalisations. First of all, let’s recognize our own mistakes: the administration certainly bears a heavy responsibility but we should not fall into the trap of piling the blame on them in order to try to hide our own failings.
Without pre-empting the in depth discussions which we need to hold if we really want to improve the situation, we could put forward some possible explanations why things went so wrong. A first possible explanation would be that staff representatives had difficulties submitting common proposals, which is the only way to influence the development of alternatives to our current CDR.
The second explanation and perhaps the main cause would be the weakness of the dialogue between staff representatives and the members of staff as a whole. Admittedly, it is not easy to set up such a dialogue but that does not make it less necessary, if trades unions want to represent staff and play a useful role in the discussions with the institution. On fundamental questions, staff should have the final say, resolving any differences or disagreements between organizations and imposing a unified staff position to be defended in meetings with management.
A third reason lies in the way in which the matters under discussion are presented. Technocratic and technical jargon prevent effective consultation and democratic discussion, thereby making it impossible to draft serious, well-researched, alternative policies. The choices which underlie these technical options and their consequences are rarely made clear to the staff, while they often contain hidden agendas. The various people involved are only able to assess the real effects once decisions have been taken: hence disillusionment, criticism, and a general feeling of having been shut out from a discussion reserved for specialists.
The choice of a staff appraisal system – an essential tool for management of staff – should reflect the kind of organization and the kind of society in which the staff as a whole wish to spend their working lives. Has anyone ever asked what kind of institution we would really like to represent? Or what kind of working environment would be best? Or whether in relations between colleagues co-operation might not be more useful or effective than competition? Which of these two mindsets better represents the values promoted by our institution? A new career structure has been imposed on us, which was not neutral in effect and has ended up damaging the whole institution.
A fourth reason for the failure of CDR since its reform in 2004 would be that the appraisal exercise has been made subordinate to the promotion exercise. The CDR exercise leaves staff feeling as if they have been treated like little children: both those being appraised and those drafting the appraisals.
If there must be a correlation between the two, that should be from the establishment of rigorous and clear criteria in relation to the objectives to be achieved, taking fully into account the respective characteristics of the two distinct exercises. The appraisal exercise and the promotion exercise have to meet separate and very different constraints. The promotion exercise, for example, is dependent upon the budget and in part upon the political choices of management. The appraisal exercise is not subject to these constraints. Subordinating the appraisal exercise to the promotion exercise is bound to lead to adverse effects. The result is a feeling of injustice, leading to rejection, revolt and loss of staff morale. The number of appeals has made the whole process absurd.
We think that it is possible to imagine and implement a system which is useful for both the institution and colleagues and could be considered by both sides as a success. To that end, we need to carry out a dispassionate, rigorous assessment of current practice and to reflect on what makes our institution special and what kind of values our institution should promote in its internal workings. Staff need to be heavily involved in the various stages of this necessary re-modelling.
It is up to us to take the lead in making proposals because after all, what is at stake is who we are as people, the values which we share, the particular kind of society in which we want to live and which we would be proud to defend.
These are the challenges that U4U proposes to address, together with the staff and the other trade-union organizations.
At a recent meeting (Nov. 09), the Administration and the Management Committee of the sickness insurance, unanimously (but without U4U, which does not have any representative in this Committee) came to the conclusion that the common system of sickness insurance (RCAM) was in structural deficit. They adopted an opinion to refer the matter to the College of the Heads of Administration to put an end to the structural deficit: i.e. a fall in the rate of reimbursement and/or a rise in officials’ contributions.
As a result of demarches by U4U and by some other trades unions, in particular within the PMO Administrative Council, it was decided not to pursue the course of action recommended in the above-mentioned opinion but rather to set up a working group to analyse the long term prospects for the common sickness scheme. There would not appear to be any reason to take a hasty decision on this matter.
There is no question of increasing staff contributions, since the Council would probably refuse to pay its 2/3 share of any increase. That would leave open only one solution: reduce medical services for staff members.
U4U refuses these two alternatives and proposes, if necessary, to make some savings (national convention to avoid over-charging, preventive medicine paid for by our employer etc). U4U considers that the deficit is not structural but short-term and considers premature to lower the reimbursements or to increase staff contributions.
|Partying with U4U|
More than 200 colleagues came to the European evening organised by U4U with the USHU, the Confederation SFE and the USCES/CdR to listen to the orchestra in which our colleagues played (Les Zopportunistes), to taste the mezzes and to meet new friends.
Your solidarity with Haiti
More than €1000 was collected during the European evening organised by U4U with the USHU and the USCES-CdR in partnership with the Confederation SFE. This amount will be dedicated to the families of our colleagues in Haiti.
President: Georges Vlandas;
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