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Heads Tails 01

Heads the Commission wins; Tails You Loose? Part I
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Heads the Commission wins; Tails You Loose?

Part I

Appropriately enough, a conference on "New Developments in the Legal Protection of International and European Civil Servants" was opened on April 1, 2011 in Luxembourg. The proceedings have now been published as a book. Before you order it, note that circa three quarters of the texts are in French.

Paul Mahoney, the first President of the EU's Civil Service Tribunal, made some very clear statements, so it is worthwhile to quote him at length;
"Neither can the CST go as deeply as some – that is the applicants and their lawyers, trade unionists and staff representatives – would want to go into the wisdom or "justice" of staff management decisions challenged. The essential mission of the CST is to carry out a judicial review of the legality of contested decisions, notably to control that the administrative procedures provided for have been correctly followed and that objective, legally defined conditions and notions (such as "occupational disease," "dependent child," "habitual residence") have been properly interpreted and applied to the particular facts by the administration. But as far as regards measures involving value judgements or exercise of legitimate managerial discretion – such as in the context of the annual exercise of appraisal and promotion-, the CST cannot be expected to act as an appeals commission on the actual merits of the individual decision taken. In relation to such measures, judges are there to examine legality, including whether there has been a "manifest" error of appreciation, but not simply to take the place of the relevant actors in the administrative procedure concerned, by for example carrying out afresh the process of assessing all of the individual files of candidates for promotion to see whether they, the judges, agree with the performance appraisers, the joint consultative promotion committee and the appointing authority on the professional value of this or that staff member. There is therefore no great scandal to be denounced if, if after a promotion decision or promotion procedure has been annulled by the CST because of a procedural irregularity, the same individual decision on the merits is taken by the appointing authority at the close of a new, lawful procedure. Restoration of procedural lawfulness does not necessarily guarantee any specific – or different – outcome on the value judgement or exercise of discretion at the basis of a contested individual administrative decision." (page 77)

Here is a summary. Small and medium sized injustices committed against staff members will be cheerfully ignored by the CST because they fall below the threshold of "manifest" error. Big injustices will lead to a finding of "naughty, naughty" against the Commission. The CST focusses on formalities . As long as the paperwork is in order, the Disappointing Authority is free to do what it wants with us. If a formal rule has not been followed, then Judge Dread harshly condemns the trembling Commission to get its documents in order. But it does not have to change the decision.

Here is a quote from Petrus Kerstens, of the Statute Committee, that fits well;
"A difference of opinions, an old grudge on the boss' part, mobbing, even a simple misunderstanding of a staff report, can lead to the choice of not promoting someone. Nevertheless, the formalities of the evaluation and promotion procedure may have been observed perfectly, bringing about a negative verdict from the CST. Justice is not always the practical result." (page 127)
After twenty plus years in the EU Public Service, the present writer agrees with Mr Kerstens.

Here and now, it is bad enough that Institutions which use human rights to justify prying into the affairs of the world are so casual about the rights of their staff. There is a huge credibility gap.
The long term effects of a strictly top down HR policy are that conformists rise to the top, where they join forces with political appointees who have been parachuted into the Institutions by Member State governments. The consequences of this institutionalized conformism are both funny and dangerous as this dramatic example illustrates. Greek data was a subject of much mirth at Eurostat. The Greek colleagues there were among the first to laugh. One day, politician asked for a report on the eligibility of the Hellenic Republic to join the Monetary Union. The politicians got the result that suited their purposes. Many Eurostat workers, including Greeks, said privately that Greece was "of course not ready", but none were willing to undergo what had happened to Connolly, van Buitenen and Andreasen. Given the attitude of the CST, anyone getting in the politicians way with the truth about Greek data could have effortlessly been denied promotion for the rest of his or her non-career. A sacking would also have worked well, given proper respect for the formalities. As the whistle-blowers found out; just because what you said was true doesn't mean that you get to keep your job. Docile conformism trumps the truth.

Things look grim for staff, but there are alternatives to resigned depression. Our situation is the result of political decisions taken more than half a century ago, not of some immutable laws of nature. In the 1970s the Germans took very different decisions and established a system of limited, but real co-decision in their public service. Article 76(1)2 of the Federal Staff Representation Law gives the Staff Committee co-decision on promotions. That means that the bosses by themselves cannot promote anyone because the need the Staff Committee's written agreement to make the decision legal. If there is no immediate agreement both side negotiate as equal partners. Note; none of the debt-ridden Member States have anything like that on their statute books. What is possible in Germany is possible in Europe.

Another bright point in the picture is that according to HR around 20% of the Article 90 complaints are settled to the applicant's satisfaction in the pre-trial phase. So it still makes sense to invest some hours in researching, analysing and formulating an Article 90 complaint if you feel wronged by the Disappointing Authority. Always get a second opinion and advice from knowledgeable colleagues, perhaps those in SID. But be aware of the situation in which lawyers work. On the one hand, they are paid whether they lose or win. On the other, they need money to pay their bills. There is an understandable tendency on their part to be optimistic about the prospects. If you end up with 6000+EUROs less to your name and only a couple of pages covered in legal jargon to show for it, remember this warning. SID is advising you to take care, not to despair.

Laughter is better than tears, so let us end on a funny note. Richard Pryor, the grandmaster of Blackest humour had this to say about justice in one of his best sketches, which went something like this;
"Pryor; Your Honor, I was so busy last year I just forgot to pay my taxes.
Judge; Bet you gonna remember this year, nigger!
Pryor; Then, when I got to prison, I discovered why it's called "justice". That's because it's just us niggers in there."


Created by: admin last modification: Thursday 04 of October, 2012 [16:34:47 UTC] by admin

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