On 1 September 2016, the Civil Service Tribunal ceased to exist. Union Syndicale had already spoken out against this abolition at its congress in Dubrovnik (read the resolution). Our appeals and those of our member organisation EPSU-CJ have not been able to prevent this abolition. Union Syndicale fears that civil service litigation will be relegated to the background, to the European Union Tribunal, which deals mainly with economic litigation. Today, unfortunately, the rights of civil servants and other employees can only be safeguarded by the courts. Faced with the discretion of employers, it is becoming increasingly necessary to have recourse to the courts. However, judicial protection will be further weakened by the abolition of the Specialised Tribunal.
But there remain other shortcomings in the current procedure, which often prevent effective protection of the rights of civil servants and other employees.
Costs and expenses
Since 2003, the party who loses the case must, as a general rule, pay the costs of both parties. Already, a colleague who brings an appeal faces a bill from his or her own lawyer that can easily exceed €10,000. That’s why we strongly advise you to join a serious trade union which, thanks to its members’ subscriptions, has the skills and resources to provide its members with genuine legal assistance, such as Union Syndicale. However, if the colleague loses his/her appeal, he/she will also have to pay the bill for the AIPN that is the subject of the attack. If the administration under attack calls in outside lawyers, the total bill for an appeal can easily exceed €25,000. And we don’t know in advance whether the institution will use external lawyers or not…
This apparent symmetry between the parties is in fact a blatant imbalance. The resources of an individual civil servant or other employee are in no way comparable with the resources of an institution. In reality, these procedural rules have only one effect: to dissuade colleagues from accessing justice, thus giving free rein to the arbitrariness of employers. In short, it is financially advantageous for an administration to introduce an illegal practice, thereby making a multitude of colleagues bear its expenses (for example, in terms of reimbursement of sickness expenses), until the day when it is condemned in an individual case. In the meantime, this will have generated substantial savings for the health insurance system, estimated at around €20 million a year. Not to mention the savings in the transfer of pension rights to the EU scheme. Good management, from an accounting point of view…
The effect of a judgement on civil service litigation
Even if a colleague has had the courage to take a case to court, taking on the enormous financial risk involved, and even if such an appeal is successful, what is the real effect of a favourable judgement? Well, the individual decision being challenged is annulled. And then what happens? The Appointing Authority has to take a new decision. More and more often, the Appointing Authority simply takes the same decision, but gives slightly different reasons. And that’s it!
The national systems of administrative courts vary widely. In Germany and more recently in France, to cite just two examples, the administrative courts do not simply annul a contested decision. The claimant can obtain a ruling in favour of the merits of the case. This is the only way to effectively protect individual rights! So why doesn’t the European Court of Justice apply this practice and undermine European civil service litigation? There is nothing in the Treaty to prevent this. If the European Court rules on the substance of the dispute, this will have a significant side-effect: an appointing authority with a complaint will have to detail all the grounds for refusal from the outset; it will no longer have a second chance to invent new grounds for rejection after a possible annulment ruling.
Union Syndicale is calling for a real reform of the European Civil Service jurisdiction, making it fair and efficient!
- The institutions must always (except in the case of frustrating or vexatious costs) cover their own costs, as before 2003.
- A judgment of the Court of Tribunal must settle the dispute definitively, replacing the contested administrative decision, insofar as this is possible by its very nature.
