Agora #92
4-9
It is this rule of law that makes it possible, in a democratic organization, to offer freedoms to everyone, freedoms that are limited only by where others' freedoms begin
“Peace cannot exist without justice, justice cannot exist without equity, equity cannot exist without development, development cannot exist without democracy, democracy cannot exist without respect for the identity and value of cultures and peoples.” — Rigoberta Menchú Tum
As a visiting professor at He2B, I have the pleasure of teaching law to computer science students. Given their backgrounds and the careers they’re aiming for, we cover entrepreneurship, employment law, contract law reflexes and data protection. However, before discovering these very practical branches of law, the program includes a compulsory first module devoted to the rule of law. Every year, I sense their reluctance to absorb and study this particularly indigestible subject. None of them has any real idea of what it’s all about. So I have to find a way around it, and together we build a definition of our democratic society and the rule of law that shapes it.
I wouldn’t blame my students. I was no more enlightened than they were at the same age about what this highly theoretical notion offered in practice, apart from the mere principle of elections and the benefit of the right to vote. In fact, at the age of 21, when I was sitting my Master 1 labor law exam, the professor asked me: “What do you think the rule of law is? I can assure you that, as a student whose head had been immersed in syllabi since she was a teenager, and who had never been taught a single course in citizenship, sociology or politics, it was hard for me to understand what this had to do with the course I was supposed to be tested on. Once the exam was over, I naturally easily directed the criticism and the reason for this failure at the Professor, accusing him of being more of a philosopher than a jurist.
In the days that followed, having swallowed the pill and reassured myself that I’d passed my year with flying colors, I decided to turn this failure into a strength by taking the time to address the issue that had left me stunned. And it was a revelation for the student that I was. While I had considered all the possible paths after my studies (criminologist first, then notary, finally tax specialist), that summer was decisive for my professional career. At the end of my Master’s degree, I left Belgium and returned on my 23rd birthday, more determined than ever to become a lawyer and specialize in litigation.
Some will certainly question the relevance of this statement to the main topic of this Agora: democracy at work. I would reply that there are a thousand ways of approaching such an article, and that its content most certainly stems from the answer I ultimately reserved for the question posed by this professor, which today more than ever makes sense for the lawyer I have become.
After this academic episode, which brought my employment law course to a close, accepting the invitation to contribute to this special issue was an obvious choice.
My first instinct was to look up the definition of “democracy” for inspiration. The Larousse defines the concept in three ways, the third of which is closest to the way most of us define democracy in the workplace: “a system of relationships established within an institution, group, etc., where the opinions of those who have to carry out the tasks ordered are taken into account at the various hierarchical levels”.
Then I turned to Curia and the case law of our European courts. Few of the judgments handed down by the General Court or the Court of Justice of the European Union in European civil service matters include the notion of democracy. On the website of the Administrative Tribunal of the International Labour Organization, it is even impossible to find a judgment referring to such a keyword.
So what could this notion possibly mean?
Democracy at work cannot mean as much in the workplace as it does on a public scale. Indeed, to demand that the employment relationship be the embodiment of democracy would be to upset the balance of power between the employee or civil servant and the institution. The subordinate nature of an employment relationship means that workers and employers cannot be considered on an equal footing. However, there are ways of bringing a little democracy back to the workplace: the right to strike, freedom of expression, the electoral process, staff consultation, respect for staff committee appointment procedures, legislative procedures, etc. Democracy is therefore expressed through the community.
The rule of law aims to define the procedural and substantive boundaries of the exercise of power, be it legislative, executive or judicial, inevitably also limiting some of the prerogatives it entails. The rule of law is necessary, it is the pillar of our society, it ensures order and security, it preserves freedoms by imposing obligations, it creates balance and shapes interactions. Thus, in the name of the rule of law, democratic principles will themselves find their limits, especially if the claim clashes with the hierarchy of norms or the division of powers between authorities.[1] However, democracy is also protected by the rule of law, which even helps it to progress, since it has its place at every level, in all areas of law and also in the workplace. As far as civil service law is concerned, it will be necessary in each individual case to ensure that the infringement of democratic principles is not abusive, in that it is out of all proportion to the advantage the employer is taking for himself.
My legal practice brings me face to face on a daily basis with nuanced discourses and ideologies which, even though they may share certain common values, differ due to the wealth of cultures offered by the European civil service. I find that the people I talk to never share the same vision of the same situation.
While some will see micro-management, complain of management by fear, perceive a decision as arbitrary, describe certain promotions as unfair, take offence at the failure to consult staff representatives before imposing a new rule, experience what they consider to be a hierarchical cut-off, suffer reprisals, or feel that their freedom of expression or right of representation has been violated.
Others will see inclusive or paternalistic management, a presumption of legality, encouragement to take on new responsibilities, a wide margin of appreciation of authority, management meetings in which superiors assume their role as intermediaries, interpersonal conflicts, or even encouragement of disloyalty…
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[1] It was in this sense that the Court of Justice ruled that democracy cannot justify conferring on the social partners a right of legislative initiative binding on the Commission and/or the Council, Case C-928/19 P, ECLI:EU:C:2021:656.
However, reality is never obvious, and convincing people that one’s vision is the one that comes closest to democratic values is no easy task.
You’d think a lawyer would be particularly schizophrenic, defending a vision one day and its opposite the next. But personally, it’s neither a vision nor an ideology that I’m defending, it’s the rule of law. It is this rule of law that makes it possible, in a democratic organization, to offer freedoms to everyone, freedoms that are limited only by where others’ freedoms begin. The law exists to offer these freedoms, of which democracy is at the origin, while itself constituting one. The law implements them. The law also controls them. These three facets of the same prism are essential to providing a balance and responding to what everyone defines as being equitable, as representing what is “just”.
Justice? How can justice rhyme with democracy?
Justice clarifies the importance of democracy within agencies and institutions,[1] and specifies its scope in the context of the implementation of their legislative prerogatives. Advocate General Sir Gordon Slynn[2] reminded the Court of its role as guarantor of fairness and democracy in the context of statutory reforms, while at the same time pointing out that it is not for the Court of the Union to impose the procedure best designed to ensure this, since it must ensure exclusively that the system chosen respects the values of the rule of law that the Court of Justice must protect.
Justice also serves to preserve democracy by monitoring the balance of respective (and reciprocal) rights and freedoms when institutions assume the role of executive power. Based on democratic values, Advocate General Dámaso Ruiz-Jarabo Colomer[3] reminds us that freedom of expression is one of the pillars of democracy. But because it is so important, its very existence requires that it be subject to restrictions that institutions are entitled to impose in the name of democracy itself.
Justice is, moreover, essential because it enables democracy to be strengthened through law. Advocate General Tamara Ćapeta[4] returned for a moment to the importance of the rule of law in the field of European civil service, which cannot be exempt from a rule as important as the principle of predictability and legal protection. Without predictability, access to justice is reduced.
And access to justice, to that justice which guarantees the rule of law, is, in this area more than in any other, all too often undermined by the fact that it is a matter of ensuring that the institutions respect the rights of their staff in carrying out an essential mission conferred on them by the Treaties.
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[1] This concept covers all EU or international entities qualified as employers within the European and international civil service.
[2] Case C-146/85, ECLI:EU:C:1987:264, concerning the amendment of electoral regulations and failure to respect the electoral process.
[3] Case C-272/99 P, ECLI:EU:C:2000:579, the Court considered a disciplinary context.
[4] Case C-54/20 P, ECLI:EU:C:2021:1025, the Court analyzes its jurisdictional competence.
By way of illustration, I would like to summarize the complaints most frequently reported during consultations, and which are a fact of everyday life:
– Access to information is more difficult than ever: no compilation of texts, by institution and by subject. However, it would be sufficient for each institution to compile texts (directives, decisions, guides, administrative information, general decisions or simple instructions) by chapter of the Staff Regulations, and to update them. At the Commission, this could involve giving lawyers a right of access (even if limited) to the IntraComm, so as to ensure that litigants do not have to compile important documents themselves to ensure that the lawyer consulted will be able to answer their questions and defend their case. Nor would it be unreasonable to ask executive agencies to do the same.
– Having the elements to reverse the burden of proof is sometimes utopian: the presumption of legality and the faith attached to the acts and decisions of institutions are too often brandished by institutions whose protection is reinforced by access to information rules, not to mention the complexity generated by the often over-restrictive interpretation of personal data protection rules.
– The principle of objective impartiality often seems to be flouted: the authority that legislates on general rules is sometimes the one that implements them, and even the one that controls them at the pre-litigation stage. In small agencies, it is often the same authority that has the power of legal representation to defend the legality of its own position.
– Access to justice is becoming a luxury that only the top brass can afford, but not without concessions: this subject, which is not taught at university, is learned by doing and mastered over time, is only practised on a daily basis by a handful of lawyers who find their way through the intricacies of European civil service law. They have to juggle individual rights, disciplinary matters, financial regulations, mobility, career development, invalidity, insurance coverage and pensions. The procedures are long and fussy, and consequently costly. Above all, in addition to their own assistance costs, civil servants run the risk of being ordered to reimburse their employer’s defense costs. Added to this financial cost is the constant fear that no retaliatory measures will be taken against them for daring to make a claim.
When one of these situations is combined with a feeling of apparent prejudice and a failure to listen to the administration, it generates a legitimate feeling of profound injustice in the worker, which can very quickly turn into negativity impacting both morale and performance. It’s easy to conclude that neither the worker nor the administration will come out a winner.
So why is it still necessary, in the first quarter of the 21st century, to devote an entire Agora to thinking about this notion, which should already be firmly anchored in our society and within our European administrations?
Because it is important to recall the values upheld by our constitutional state, and to remember that democracy has its place not only within the European Union, but also in its own relations with staff. The Court of First Instance and the European Court of Justice still have a duty, every decade or so, to update concepts and shed light on the workings of democracy, and to invite us to analyze this notion without forgetting to include it in the rule of law, which, in the name of democracy, also justifies its being regulated.
It’s also good to take a step back, rebalance one’s vision of justice and understand that multiculturalism, however rich it may be, also creates friction. Since the beginning of my decade of practice in the field, I have witnessed union battles always fueled by the ultimate conviction that institutions should demand of themselves rigor in the application of the values they are tasked with seeing deployed within member states. Transmit by example, grow through humility, and strengthen through cohesion. I won’t shock anyone by pointing out that there are, of course, some very good students within our institutions, but also some not so good. It is, however, regrettable to note that, as things stand, some public institutions are still trampling on democracy with a nonchalance and self-assurance that makes us fear the worst. Not only for their employees, but also for the societal, economic and global equilibrium that the rule of law ensures on a larger scale.
With the help of staff representatives, and through each of my cases, I am committed to re-establishing dialogue and working creatively to convince people of the importance of democracy in the workplace. I’m often welcomed by the people I deal with in the administration, and I’m sometimes at my wits’ end, but I never give up. Democracy means inclusion and intervention, discussion and negotiation. It does not mean demanding or imposing. We all stand to gain from understanding that communication is the key to a healthy and fruitful employment relationship.
A worker who is heard is a worker who feels respected; a worker who feels respected is a happy worker; a happy worker is more inclined to be loyal and dedicated; a worker who is respected and understood will always find ways to be useful and effective. Employers have everything to gain by understanding their workers and working with them to accomplish their common mission. The legislator has even enshrined this in Article 151 of the Treaty on the Functioning of the EU.
I decided to embark on my career with the ambition of upholding these values and ensuring that they are respected, and I shall continue to do so for as long as I am supported by the rule of law.
Maître Nathalie de Montigny
About The Author
De Montigny is a specialist in European civil service law. She also advises and assists her clients in economic law. In 2018, she founded her law firm LEXENTIA. She teaches European law to her young colleagues at the Brussels Bar and also organises various conference cycles on national and European law for the benefit of the staff of the European Institutions.