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Challengin the New Staff Regulation in Court
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Challenging the New Staff Regulation in Court

In some member states any citizen can challenge any law at any time in the constitutional court. The EU is far more restrictive than that; people can only file application for annulment of a regulation during the first two months after it has been published. So the publication of the new Staff Regulation opens a window of opportunity for staff unions.


The procedure for an annulment is laid down in Article 263 of the consolidated Treaty;
“Article 263
(ex Article 230 TEC)
The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.
Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

For a detailed legal analysis, see “European Union Law” by Arnull, Dashwood, Ross and Wyatt; Sweet & Maxwell 2000, ISBN 0421 680 407, pages 223 – 249.

There is already much that should have been challenged in the 2004 Staff Regulation on grounds that it violates the Charter of Fundamental Rights and other EU laws.

There is a lot of what jurists call ”indirect discrimination” in the Staff Regulation. In such cases the burden of proof is on the Institution to show that its discrimination is necessary to achieve a legitimate goal and that it is proportional to the intended gains. See “EU Law Text, Cases, and Materials” by Craig and de Búrca, Oxford University Press 1998, ISBN 0-19-876509-6, pages 364-368 for a discussion.

Staff unions in Luxembourg have tried without success to challenge a discriminatory passage in the Staff Regulation for years. If they seize the opportunity during the two months, they can have their day in the Court of Justice at last.

There are good reasons to challenge the legality of Staff Regulation Article 29, which discriminates against Contract Agents.

The working conditions of the colleagues hired after 2004 can be attacked on grounds of indirect discrimination against 12 nationalities.

The most dramatic case of new discrimination against women lies in the proposed new category of AST/SC. References are at 1, 2, 3, 4.

The minorities discriminated against will soon add up to a majority. SID proposes that all unions and staff associations willing to resist the 2013 Deform should come together to bring a joint action for annulment of the new Staff Regulation within two months of its publication. That way the workload and the financial burden will be tolerable.

What is the worst that can happen? Well, the Court of Justice might reject the action. Even then the time and money would be well spent because we gain publicity and respect by opposing injustice rather than just crying about it. There is a realistic chance that some of the most unfair parts of new Staff Regulation will be annulled.

Even a modest Court victory will be a turning point for the EU public service.








Created by: admin last modification: Monday 29 of April, 2013 [15:40:30 UTC] by admin

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