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Illegal_Article_29_B


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Re.: Unjustified Discrimination Against Contract Agents – Illegality of Art 29 b of the Staff Regulations



REGULATION No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, "Staff Regulations" and "CEOS" hereafter, allow Temporary Agents access to internal competitions and therefore to permanent posts in the EU Civil Service under the same conditions as established officials. Contract Agents are explicitly excluded from this right.

We consider this exclusion to be discrimination contrary to EU law.

I. Staff Regulations and CEOS

Article 4 of the Staff Regulations specifies that " … If the vacancy cannot be filled by transfer, appointment to a post in accordance with Article 45a or promotion, it shall be notified to the staff of the other institutions, and/or an internal competition shall be organised."

1. Before filling a vacant post in an institution, the Appointing Authority shall first consider: (a) ... (b) whether requests for transfer have been received from officials of the same grade in other institutions, and/or whether to hold a competition internal to the institution, which shall be open only to officials and temporary staff as defined in Article 2 of the Conditions of Employment of other servants of the European Communities; and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests.
Article 2 of the CEOS reads; "For the purposes of these conditions of employment, ‘temporary staff' means:
(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;
(b) staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution;
(c) staff, other than officials of the Communities, engaged to assist either a person holding an office provided for in the Treaties establishing the Communities, or the Treaty establishing a Single Council and a Single Commission of the European Communities, or the elected President of one of the institutions or organs of the Communities, or one of the political groups in the European Parliament or the Committee of the Regions, or a group in the European Economic and Social Committee;
(d) staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned.
Article 3a of the CEOS foresees; 1. For the purposes of these Conditions of Employment, "contract staff" means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:
(a) in an institution to carry out manual or administrative support service tasks,
(b) in the agencies referred to in Article 1a(2) of the Staff Regulations,
(c) in other entities inside the European Union created, after consultation of the Staff Regulations Committee, by specific legal act issued by one or more institutions allowing for the use of such staff,
(d) in Representations and Delegations of Community institutions,
(e) in other entities situated outside the European Union.
The conditions of employment for officials and temporary agents which are specified in Article 5 of the Staff Regulations are identical with those for contract agents in Article 82 of the CEOS.
Temporary staff to which Article 2(b) or (d) applies shall not be engaged for more than four years but their engagement may be limited to any shorter duration. Their contracts may be renewed not more than once for a maximum period of two years if the possibility of renewal has been provided for in the initial contract and within the limits provided for in that contract. At the end of that time, they shall no longer be employed as temporary staff under these provisions. On the expiry of their contracts, such servants may be assigned to established posts in the institutions only if they are appointed as officials in accordance with the Staff Regulations while Article 85 of the CEOS specifies that "The contracts of contract staff referred to in Article 3a may be concluded for a fixed period of at least three months and not more than five years. They may be renewed not more than once for a fixed period of not more than five years."

II. Differences between Contract Agents and Temporary Agents

The main distinction between contract and temporary agents is a pure formality; temporary agents occupy posts in the establishment plan while contract agents do not, so that the two categories are paid from different budget lines. The Institutions employ both temporary and contract agents for any kind of task (administrative, communication, consulting, engineering, architecture, etc.).
Moreover, contract agents pass entry exams held by EPSO while temporary ones take a written exam and an interview. The two procedures are not comparable.
The maximum duration of employment, which is an important consideration in determining the relation between employee and employer, are nearly the same.
We conclude that this discrimination cannot be justified by differences in qualification, nor even by the length of employment.

III. Directive 1999/70/EC

Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (Official Journal L 175 , 10/07/1999 P. 0043 – 0048) is designed to improve the quality of fixed term contract work and establishes the principle of non discrimination in its clause 4. What is more, clause 6(1) says that "Employers shall inform fixed-term workers about vacancies which become available in the undertaking or establishment to ensure that they have the same opportunity to secure permanent positions as other workers." Thus clause 4 of said Directive pursues the same goals as Article 1 of the Social Charter which is now laid down in Article 151 of the "Treaty on the Functioning of the European Union". and as the third point of the Preamble of the that Treaty, and of points 7 and 10 of the Preamble of the 1989 Community Charter of the Fundamental Social Rights of Workers, adopted at Strasbourg on December 9, 1989 which is reaffirmed by the Treaty. In this context, said principle applies not only to discrimination between permanent and temporary staff, but also to discrimination between different categories of temporary staff, as in the present case.

IV. European Union law and the hierarchy of norms

The Staff Regulations and Directive 1999/70/EC are both adopted on the basis of a Treaty Article and are thus of the same rank in the hierarchy of norms. However, it is reasonable and usefull for the Institutions to strive for a coherent application of norms in secondary legislation.The Court of Justice recognises that the general principle of equal treatment outranks secondary legislation in the hierarchy of norms. That doctrine should have been taken account of when the Staff Regulations were drafted.

V. Jurisprudence of the Court of Justice of the European u Union

Firstly, clause 4 of the framework agreement must be read as an expression of a principle of European Union social law. According to the Court's constant jurisprudence, such principles cannot be interpreted restrictively (see judgements of September 13, 2007, Del Cerro Alonso; C-307/05, Rec. page I-2483, point 114). Therefore, differences in treatment must be justified by objective reasons in terms of clause 4. According to the Court of Justice only "objective reasons" can justify different of treatment between permanent employees and temporary ones, this applies even more to two different categories of temporary employees when the difference is foreseen by a general and abstract norm (the CEOS in our case)."On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose." (Judgement Del Cerro, point 58)The administration argues that discrimination is needed for the sake of rigorous staff management, but this argument cannot even weaken our conclusion. Such an argument is irrelevant because rigorous staff management is a budgetary consideration which can never justify discrimination (see Judgement of October 23, 2003 Schönheit and Becker, C-4/02 and C-5/02, Court Record page I-2575, point 85).
Secondly, the prohibition of discrimination of clause 4 of said Directive is a specific express of the more general principle of European Union law of equality (see Judgement of October 12, 2004 Wippel, C-313/02, Court Record page I-9483, points 54 and 56).The principle implies that comparable situations must be treated equally and that distinct situations must not be treated equally, unless there is objective justification (see Judgement of December 16, 2008, Arcelor Atlantique and Lorraine , C-127/07, Court Record. page I-09895, point 23).
Finally, those rules of European Union law that are directly applicable are an immediate source of rights and obligations for all those to whom they apply. The Court of Justice has underlined that the Member States are obliged to protect these individual rights by setting aside all rules infringing them, both those that came into effect before and those that came into effect after an individual right was established in European Union law (see Judgement of March 9, 1978, Simmenthal 106/77, Court Record. page 629). The judgment applies to European Union Institutions by analogy. It follows that the Institutions must do all they can to eliminate legal rules that obstruct effective access to directly applicable norms of European Union law.

VI. Conclusions

The Staff Regulations deny access to the European civil service to contract agents, while granting it to another category of temporary staff; the temporary agents. This discrimination is illegal and must be set aside because it violates the general European Union law principle of equal treatment and Directive 1999/70/EC without being justified by a genuine need, is not appropriate for achieving the objective pursued and is not necessary for that purpose. According to the Court of Justice's constant jurisprudence individual rights may not vary as a function of which national or Community Institution has violated them. In these comparable circumstances there is no justification for imposing differing regimes on the Member States and the Community. It is for the Institutions to repair the damage that they have done to contract agents.
In addition, it is worth pointing out that permitting contract agents to participate in internal competitions so as to better achieve the goals of Article 27 of the Staff Regulations will not lead to the creation of new permanent posts, making that decision neutral from a budgetary point of view.

For SJE

Henryk Mazur
President SJE

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Created by: admin last modification: Wednesday 10 of November, 2010 [14:57:43 UTC] by admin

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