Louis European Law Firm
Agora #88
Pages 24 - 29
For almost thirty years now, Union Syndicale has organised free legal advice for its members and provides them with technical, legal and financial support before and during litigation proceedings, and with submitting complaints to the European Ombudsman.
In 1981, Union Syndicale negotiated the Method for the automatic adjustment of EU officials and other agents’ salaries with the European Council. An article published by Mr Günther Lorenz retraces the ups and downs of this long-drawn-out negotiation process. Following the agreement reached, on 15 December 1981 the Council adopted the Method for the automatic adjustment of salaries. In return, Union Syndicale accepted that a special levy- the name of which has changed over time-be introduced in order to take account of the specific difficulties of the economic and social situation within the Member States and undertook to maintain social order within the EU’s institutions. Thanks to the implementation of this new Method, employee’s purchasing power has been maintained at the same level for almost forty years.
When an appeal was introduced before the Court of Justice against this special levy, and thus against this Method, Union Syndicale intervened in support of the Commission and the Council. In its judgement of 3 July 1985, the Court of Justice (Grand Chamber) approved the Method, acknowledging that it was the result of an agreement reached after long negotiations between the EU institutions and the most representative trade union organisations of EU staff. The Court of Justice thus formally recognised the role of trade unions and staff associations in defending the interests of employees and the obligation of the EU institutions to respect their activities .
In its judgement of 18 January 1990 and sitting as a Grand Chamber, the Court of Justice stated that the freedom to form trade unions provided the latter with the possibility of taking in part in technical and political consultations prior to the adoption of any proposed regulations amending the Staff Regulations of officials and the Conditions of employment of other servants.
The Court of Justice thus specified the scope of article 24b of the Staff Regulations, which recognises that officials are entitled to exercise the right of association. This right has since been enshrined by articles 27 and 28 of the EU Charter of Fundamental Rights (hereinafter “the Charter”). The Court specified that the freedom to form trade unions means that the institutions are required to respect the trade union activities that may prove necessary in order to ensure the effective participation of personnel in the consultation process and that trade union and staff association representatives should benefit from time off work according to the terms to be defined by the institutions. Following this decision, the EU institutions signed the framework agreements with the trade unions and staff associations outlining the resources at their disposal to carry out, in the interests of all EU personnel, their activities in support of personnel and, in particular, allowing for their involvement in political and technical discussions and for the representation of personnel on the various joint committees, including the Joint Promotion Committee.
The right to respect for private life
In its judgement on appeal of 5 October 1994 , the Court of Justice recalled that the right to respect for private life, which includes in particular a person’ s right to keep their state of health secret, constitutes one of the fundamental rights protected by the legal order of the European Union. In the case in question, the appellant had been offered a temporary contract as an agent for a duration of six months. The Court of Justice found that he had not given his informed consent to undergo a medical test that was carried out without his knowledge and therefore overturned the decision of the Commission not to hire him on the grounds that he did not meet the physical fitness conditions. The Court stated that although the pre-recruitment examination serves a legitimate interest of the EU institutions, that interest does not justify the carrying out of a test against the will of the person concerned.
Cover against the risk of illness
The applicant was employed by the Commission as a member of the local staff for over two years and then as a member of the auxiliary staff for three years on a fixed-term contract, which was renewed ten times and under which the applicant was covered against the risk of illness by the Belgian social security system. The applicant was subsequently employed by the Commission as a member of the contract staff for auxiliary tasks for an additional fixed period of three years. However, the Commission applied a deferral clause with respect to the applicant’s health benefits due to an illness that was declared when the applicant was working as a member of the auxiliary staff.
Union Syndicale provided its support to the applicant on a human, technical and financial level, considering that they could not justifiably be left without medical cover for their declared illness as they had already been working for the institution for several years and were covered by the Belgian social security system.
In its judgement of 29 September 2009 , the European Union Civil Service Tribunal (hereinafter the “EUCST”) ruled that an EU national working in a Member State other than his State of origin does not lose his status of worker, within the meaning of article 45 of the Treaty on the Functioning of the European Union, through occupying a position within the EU and that, on that basis, they may not be refused the rights and social advantages provided by that article.
The EUCST also recalled that it is precisely in order to ensure that the exercise of the right to freedom of movement does not have the effect of depriving a worker of social security advantages to which they are entitled that the EU legislative bodies implemented the rule on the aggregation of insurance, residence and employment periods in the area of social security (Council Regulation [EEC] No 1408/71 of 14 June 1971).
It found that the medical deferral clause (articles 32 and 100 of the CEOS) should be interpreted with regard to the requirements deriving from-particularly in the area of social security-the principle of freedom of movement for workers, which is part of the foundations of the EU. The Tribunal noted that the application of article 100 of the CEOS penalised the appellant by depriving them of cover against the risk of illness and was therefore such as to produce a deterrent effect, as well as liable to impede the exercise of the right to the freedom of movement by the appellant. Having declared unlawful the deferral of the appellant’s medical cover, the Tribunal annulled the Commission’s decision.
Registered partnership
Following the accession of Austria, Finland and Sweden to the EU, an EU official of Swedish nationality, who was recognised as a registered partner under Swedish national law, saw their application for the household allowance rejected on the ground that this status was not covered by the Staff Regulations. In its judgement on appeal of 31 May 2001 , the Court of Justice rejected the appeal on the grounds that the contested decision did not breach the principle of integrity of a person’s status and did not constitute discrimination on grounds of sex, an infringement of the principle of equal treatment or a restriction of the free movement of workers.
The reasons for the dismissal of this appeal nevertheless played an important role in the adoption of Council Regulation (EC) No. 723/2004 of 22 March 2004 amending the Staff Regulations and, in particular, article 1 of Annex VII which grants the household allocation to officials and agents registered as being in a stable partnership.
Recognition of a serious illness
On 28 April 2016 , the EUCST handed down a particularly important judgement regarding the reimbursement of medical expenses and the recognition of a serious illness. In this judgement, it recalled that, under the terms of article 24 of the Charter, in all actions relating to children, the child’s best interests must be a primary consideration. It then stated that any decision relating to the recognition of the existence of a serious illness must be founded on medical opinions formed on the basis an effective examination of the health of the person concerned, and that this examination must be appropriate to the circumstances at hand, taking into account in general the medical criteria provided for by law. Lastly, the EUCST recalled that the medical officer is obliged to explain their opinion in order to allow the person concerned by the decision to know the real reasons and to ensure that all parties can make their views known in the proceedings. The Tribunal found that the reasons for this decision were both flawed and contradictory and therefore called for it to be annulled.
Right to paid annual leave
In its judgement of 19 September 2013 , the Court of Justice reviewed the judgement of the EU Tribunal on appeal. This review procedure was exceptional and was only carried out following a proposal by the First Advocate General of the Court, who considered it necessary to revise the judgement of the EU Tribunal following the appeal of a judgement of the EUCST. This procedure no longer exists since the EUCST was dissolved.
In this judgement, the Court of Justice found that, based on the general principle of interpretation, the EU Tribunal, ruling on appeal, had made an error of law by not favouring an interpretation of article 1e(2) of the Staff Regulations, which ensures the consistency of that provision with the right to paid annual leave as a principle of the social law of the European Union, now affirmed by article 31(2) of the Charter. The Court specifies that this provision should be interpreted to the effect that it allows the inclusion in the Staff Regulations and the CEOS of the substance of article 7 of Directive 2003/88 as a rule of minimum protection, supplementing the other provisions of the Staff Regulations dealing with the right to paid annual leave and, in particular, article 4 of Annex V to those regulations.
This judgement is remarkable in that it recalls the principles of interpretation of a statutory or regulatory provision applicable to EU staff and the necessity to ensure that its interpretation is consistent with the principles of EU social law affirmed by the Charter and directives, which must be respected by the institutions of the EU, even though the directives are addressed to the Member States.
The Tribunal thus referred to the principle of sincere cooperation, which was reiterated by the EUCST in its judgement of 4 June 2009 . This principle, which is outlined in article 4(3) of the EU Treaty, not only obliges the Member States to take the appropriate measures to guarantee the application and effectiveness of EU law, but also requires the institutions of the European Union to act in accordance with their mutual duties of sincere cooperation with the Member States and the other institutions themselves. The EUCST noted that, in this respect, it was the institutions’ responsibility to ensure, as far as possible, consistency between their internal conduct and their legislative action at EU level, in particular addressed to the Member States.
As such, the EU institutions must take into account, in their behaviour as employers, any legislative provisions imposing in particular minimum requirements designed to improve the living and working conditions of workers in the Member States by harmonising national laws and practices, as well as the will of the EU legislative bodies to make employment stability a major objective with regard to labour relations within the EU. The EUCST also recalled that this obligation was even more binding as administrative reform had increased the tendency to employ staff on a contractual basis within the European civil service. These principles were recalled by the EU Tribunal in its judgement of 21 September 2011 .
Non-Applicability of Statutory Limitations to Remuneration
On 27 February 2018 , the Appeal Chamber of the Tribunal issued an important judgement that specifies the scope of an official or agent’s rights regarding the payment of a portion of remuneration that was not paid due to an encoding error. In the case in question, the official’s remuneration had varied significantly as a result of successive assignments outside and within the European Union.
Moreover, he held a number of important positions in particularly difficult conditions. As a result of these very specific and complicated working conditions, he did not notice the encoding error made by the payroll department of the Commission in drawing up his pay slips. The Commission acknowledged that it had indeed made a mistake, but refused to pay the appellant all of the remuneration to which he was entitled on the ground that he had not contested his first irregular pay slip within the three-month complaint period.
In its judgement on appeal, the EU Tribunal annulled the judgement delivered in the first set of proceedings by the EUCST and, ruling on the merits, overruled the Commission’s refusal to pay the balance of the remuneration due, finding that, in the present case, the amounts necessary for the payment had been reserved and that there was no risk of jeopardising the legal situation as a result.
The Court concluded that the Commission could not plead infringement of the principle of a reasonable period of time and thus clarified the scope of article 62 of the Staff Regulations, which provides, inter alia, that an official who is duly appointed shall be entitled to remuneration and that they cannot waive their entitlement to said remuneration.
In compliance with the judgement of the Tribunal, the Commission paid the official the balance of the remuneration due, together with the default interest and defence costs relating to the appeal and first instance proceedings. Certain EU institutions systematically refuse to enter into discussions with their employees and automatically reject any claims made by their officials. In my opinion, refusing any form of negotiation does not serve to motivate staff or strengthen mutual trust. It also entails significant budget costs for the EU, which bears the operating costs not only of the departments of the institutions responsible for managing the high, if not excessive, number of pre-litigation procedures, but also of the departments of the Court of Justice.
The abovementioned judgements are just a sample of the many cases Union Syndicale has directly or indirectly supported, both to defend the interests of individuals and the general interest.
Maître Jean-Noël Louis
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