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Two systems of industrial democracy for the civil service
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This paper was written in 2002, b e f o r e the Treaty of Lisbon was ratified.

Certain details have been changed at Lisbon, but the essence of the analysis remains valid.




Two systems of industrial democracy for the civil service

CONTENTS
1. Introduction 5
2. The Commission’s System of Industrial Democracy in the Civil Service 6
2.1 The Legal Base 6
2.2 Other servants 7
2.3 Rules laying down the composition and operation of the Staff Committee 7
2.4 Other legal and administrative rules 7
2.5 Fundamental Rights 7
2.5.1 The Charter of Fundamental Social Rights 7
2.5.2 The Charter of Fundamental Rights 8
2.6 Betriebsrat v Commission 13
2.7 The Committees 14
2.7.1 The Staff Committee 16
2.7.2 Joint Committees 17
2.7.3 Disciplinary Boards 17
2.7.4 Invalidity Committee 18
2.7.5 The Local Staff Committees 18
2.7.6 The Specialized Committees 19
2.8 Staff Unions 22
2.8.1 Established Unions 22
2.8.2 New Unions 23
3. Industrial Democracy in the German Civil Service 25
3.1 The Federal Staff Representation Act 25
3.2 Some Core Provisions of the BPerVG 26
3.2.1 Loyal Cooperation. 26
3.2.2 The Monthly Meeting 27
3.2.3 General Principles 27
3.2.4 Tasks of the Staff Representation 28
3.2.5 Codetermination 29
3.2.6 Initiative 30
3.2.7 The Conciliation Body 30
3.2.8 Consultation 31
3.2.9 Agreements 32
3.2.10 Topics for Codetermination 32
3.3 Problems 35
4. Comparison between the two Systems of Industrial Democracy 37
4.1 Textual Comparison 37
4.2 Paired Examples 38
4.2.1 The Joint Committee 38
4.2.2 Steering Committee on Training 39
4.2.3 Joint Committee on Grading 39
4.2.4 Joint Committee on Mobility 40
4.2.5 Joint Committee on Staff Reports 40
4.2.6 Promotions Committee 40
4.2.7 Social Services Administrative Board 41
4.2.8 Joint Committee on Restaurants and the Staff Shop 42
4.2.9 Contact Committee 43
4.2.10 The Informal Contact Committee 44
4.2.11 The Local Contact Committee 44
4.2.12 Commission Decision on Outside Activities 45
4.2.13 Competitive Examinations 45
4.2.14 Discipline 46
5. Conclusions 47
BIBLIOGRAPHY 48
Articles, Reports, Minutes and other brief Texts 48
Books 54
Cases 56
Legislation and Soft Law 57


1. Introduction
The three pillars of industrial democracy of industrial democracy (information, consultation and participation) are listed in Paragraphs 17 and 18 of the “Community Charter of the Fundamental Social Rights of Workers” . The democratic deficit of the EC has been discussed and criticized extensively, but little has been written about the deficit, balance or surplus of industrial democracy in the EC.
A comparison between the system of industrial democracy in the German federal civil service and in the Commission of the EC will be made. There is too little space available to give a full description of even one of the two systems; instead the focus will be on those components that protect the three fundamental rights. Those readers who are already thoroughly familiar with one or both of the systems need not read the descriptive parts and can proceed directly to the comparison.
In arithmetic, a simple subtraction would suffice to determine whether the balance is negative, zero or positive. Instead of a subtraction, there will be the examination of paired examples. A series of incidents that were legal under the rules in force at the Commission, but that violated one of the three rights, will be re-examined for legality according to German law. The question of which system offers better protection for staff rights will be answered.


2. The Commission’s System of Industrial Democracy in the Civil Service
“The structure of the European civil service was modeled on the administrations in the six founding states of the EEC, especially the French administration.” This is true for industrial relations; with a view to forestalling a repetition of the May 1968 civil disturbances, the de Gaulle administration officially recognized six unions as being representative enough to speak for labor in the social dialogue. The role of people who represent the staff of only one institution, or enterprise, is more modest than that of groups declared to be representative by the highest authorities.

2.1 The Legal Base
Arrangements for industrial democracy are based on two comparatively brief documents; the Staff Regulation and the Framework Agreement.
“The Staff Regulations are a sort of “outline law” but contain highly specific rules and are binding on all institutions equally.” There is by far too little hard law text to adequately regulate the industrial relations of 30.000 sophisticated Europeans from presently fifteen Member States working in nearly thirty linked organizations.
Article 9, Paragraph 1 of the Staff Regulations declares that the following Committees shall be set up: Staff, Joint, Reports, Invalidity and one or more Disciplinary Boards. Further down, there will be brief descriptions of those committees and their subcommittees. There Annex II and the remainder of Article 9 will be reviewed.

2.2 Other servants
The “Conditions of employment of other servants of the European Communities” are the equivalent of the Staff Regulations for temporary and auxiliary employees. Article 7 gives the right to vote in Staff Committee elections to those with contracts good for at least six months. Those whose contracts are for more than one year, or for an indefinite period may stand for election.

2.3 Rules laying down the composition and operation of the Staff Committee
This agreement between the administration and three unions supplies implementation guidelines for Article 9 of the Staff Regulations . Each institution has its own version of this soft law, which depends inter alia on the number of staff and of sites it is working with.

2.4 Other legal and administrative rules
“Admittedly, this legal situation is not overly transparent, particularly given the sheer volume of such rules the institutions have issued- 2000 by the Commission alone in the last 40 years, for example.” The publication of the Administrative Guide with its general explanations and of the rules themselves, now on the Commission’s Intranet, are steps towards transparency, but they reveal a system of internal governance that has developed ad hoc, with no recognizable architecture.

2.5 Fundamental Rights
2.5.1 The Charter of Fundamental Social Rights
The unanimity requirement in Article 137 Paragraph 3 TEC keeps the implementation of these fundamental rights to the minimum found in Directive 2002/14/EC, which remains a law on industrial pre-democracy because it protects only two of the three fundamental rights. Half a decade after the last reluctant Member State agreed to the Social Charter, the greatest common denominator in Council is too small to allow any codetermination.
Article 283 TEC requires only a qualified majority for decisions about Staff Regulations, to be taken in Counsel, and the Charter of Fundamental Rights Article 27 reaffirms the rights to information and consultation of workers. There is potential for building industrial democracy within the European civil service because all Member States support the entire Charter. The next two questions are what this potential is precisely and whether it has been fully utilized.

2.5.2 The Charter of Fundamental Rights
Chapter IV, entitled “Solidarity”, begins with Article 27 “Workers’ right to information and consultation within the undertaking”. It is brief enough to quote in full: “Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.”
The draft constitution for the EU contains an Article II-27 which is identical to the one quoted above, except that the word “Union” replaces “Community”.
The two rights are conspicuously absent from the Staff Regulations. The question is whether there are legitimate reasons for not applying Article 27. In December 1999 the European Parliament, Council and Commission jointly adopted the Charter with a solemn declaration rather than include it in a Treaty or simply pass it as a regulation. Initially, there was some concern that it might prove to be one more gust of hot air from Brussels because the three institutions were the ones empowered to draft and pass binding legislation. Experience with the Social Charter was discouraging, especially for advocates of industrial democracy. But advocates general and judges of both Courts began to refer to Charter articles in their opinions and verdicts soon after its publication. They have continued to do so and in several verdicts have based their answer to a question of law solely on the Charter.
Seeing that Article 27 is likely to have some legal effect because of the case law of the two Courts, it is of interest to examine the Charter in more detail. Chapter VII (“General Provisions”) begins with Article 51 (“Scope”); “1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers”. Concerns regarding subsidiarity cannot stand in the way of the Commission promoting the application of Article 27 in its own house. In a working paper the Commission declares that updating the Staff Regulations and their implementing texts is a core objective of administrative reform and lists four concrete requirements which must be fulfilled, the fourth one being “taking account of new developments in the legal and administrative environment such as the adoption of the Charter of Fundamental Rights or the creation of new European Bodies” .
Article 52 (“Scope of guaranteed rights”), Paragraph 1 begins: “1. Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms.” The only text in the field of internal industrial relations of the Commission that can be called a law is the Staff Regulations. They simply fail to mention any right to information, therefore they cannot be said to lawfully limit it. The word “consultation” appears in the Regulations, but it is used in a way that has nothing to do with its meaning in Article 27: it can safely be regarded as a mere homonym. Both of the Article 27 fundamental rights are not lawfully limited for Commission staff at this time, making their interpretation the business of judges rather than of administrators.
The second and last sentence of Paragraph 1 reads: “Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.” Accordingly, the first conceivable ground for limiting Article 27’s application might be that it somehow impedes an objective of general interest. Here the burden of proof falls heavily on those who argue for a limitation of fundamental freedoms because the Commission has a tradition of missed benchmarks . Such a system cannot be fully compatible with the general interest recognized by the Union. On the other hand, the German system of public sector industrial democracy has given officials the two Article 27 rights and more for half a century. While federal and regional officials enjoyed their rights, the country rose from ruins to the G7, becoming the greatest exporter on the world market during some years. One conclusion is that industrial democracy does not clash with the general interest, at least not always and everywhere.
The Commission has developed and documented a method of consulting stakeholders as part of the early phase of preparing Community legislation, but it does not presently recognize its staff as stakeholders in personnel policy. The guidelines on stakeholder consultation are clear; “For consultation to be equitable, the Commission should ensure adequate coverage of the following parties in a consultation process: those affected by the policy, those who will be involved in implementation of the policy, or, bodies that have stated objectives giving them a direct interest in the policy.” Commission staff are stakeholders in personnel policy under this definition. The guidelines also warn that “Consulting on decisions already taken is a waste of resources and will alienate the public. The next consultation exercise will suffer as a result.”
Informing stakeholders is an implicit part of consultation. The Green and White Papers provided by the Commission have consistently been of at least satisfactory quality, some of them have been excellent. The Commission has proven its ability to live up to Article 27.
The other permissible ground for limiting the scope of Article 27 would be that endangers the rights and freedoms of others. No one has yet openly postulated a right for high ranking officials to take decisions behind the backs of their more modest colleagues, nor to have their orders obeyed blindly, with no questions asked from below. After half a century of industrial democracy practiced even by police, border guards, the women and men in the various armed services and the intelligence agencies working for national security internally and internationally, the Federal Republic of Germany remains intact. If anything, industrial democracy protects other people’s rights and freedoms, making it difficult to use Paragraph 1 of Article 52 as a brake on Article 27.
The next consideration is linked to Paragraph 2 of Article 52: “2. Rights recognized by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.” Whether Article 27 can be said to be “based” on Article 137 TEC is debatable because there information and consultation are treated as a means to achieve the objectives of Article 136, and not as basic rights. The limits in Paragraph 6 of the Article 136 are irrelevant to the present question. Much the same argument can be made for Paragraphs 17 and 18 of the Community Charter of Fundamental Social Rights of Workers. Nor can Article 283 TEC which makes Council the sole legislator for Staff Regulations be interpreted to imply that staff rights must necessarily be limited as severely as they are now. It is not likely that enough “limits” and “conditions” will be found in the Treaties to cut Article 27 down to the size of current Staff Regulations.
In summary, at the European level, civil servants are being denied two of their fundamental rights under the Charter by the same institutions who proclaimed it.

2.6 Dunnet and Others v EIB
Article 17 of Annex VII of the Staff Regulations allows an EC official to receive part of her salary in a currency other than that of the country in which s/he works. That sum is multiplied by a correction coefficient before it is paid out, so that it will be reduced for countries with a low cost of living and increased for the more expensive parts of Europe. The EIB Staff Regulations had a provision that was similar in substance, but that was worded in terms of a “special conversion rate”. This benefit increased salaries by circa 3.5 percent on average. The third stage of EMU brought misfortune to EIB staff because the administration decided that the provision about the revocable fixing of exchange rates meant that special exchange rates would now become illegal and, consequently staff would have to make do with 96.5 percent of their habitual income in the future. Danes, Swedes, British and Greeks were included in this cut because, as was explained, to spare them would be to “reward the nationals of a country which has a negative attitude towards the euro” . The EIB’s College of Staff Representatives attempted consultations with the Human Resources Department in accordance with Article 24 of the EIB Staff Regulations. The Department’s role in the consultation was to patiently and mechanically repeat that the special conversion rates must be abolished when they became illegal. When staff representatives discovered evidence that the EIB’s Management Committee had decided the abolition, at least in principle, before the consultations were complete, they sued to have that unilateral decision annulled.
The applicants presented six pleas in support of their claim that the EIB-decision of 11 June 1998 was unlawful, the third one being that there had been no proper consultation of staff representatives. Significantly, the Court of First Instance concentrated on that claim to the exclusion of the other five. It was found that the EIB had decided to freeze the special conversion rates for pensions on 1 January 1999 and then reduce them by 25 percent each following year. “If, as the Bank alleges, the introduction of the euro had made the application of the system of special conversion rates impossible, it would not have been possible to provide for any transitional period before the abolition of the advantage for retired staff.” Further: “it must be held that the Bank breached the general principle of employment law expressed in Article 24 of the Convention in that it did not hold bona fide consultations with staff representatives before adopting the decision of 11 June 1998. Accordingly, the decision of 11 June 1998 to abolish the system of special conversion rates is unlawful”.
It is to be retained that the CFI considers consultation in good faith to be a general principle of employment law which applied to civil servants, even before the CFR was proclaimed.

2.6 Betriebsrat v Commission
Austrians working for the Commission’s Representation in Vienna elected a Work’s Council in accordance with national labor law in March 1998. In October of that year the Work’s Council became aware that information from the magnetic cards used to open doors at the Representation was being stored electronically, making it possible to keep staff under thorough surveillance. Legislation on industrial democracy in the alpine republic strongly resembles that of is northern neighbor. Electronic surveillance of employees is only permitted after completing a codetermination procedure. The Work’s Council went to court and followed through to the Supreme Tribunal (“Oberster Gerichtshof”) which referred two questions to the Court of Justice. First it asked whether the phrase “in accordance with current rules and practice in the place where they are to perform their duties” in Council Regulation 259/68 was “to be understood as a reference to the relevant national law”. Second, it wanted to know whether the Staff Regulations are “to be interpreted as laying down exhaustive rules on collective employment law and the rights of codetermination of local staff”. The Court decided that if the “current rules and practice” were taken to include labor laws of the host country there would be an intolerable fragmentation of regimes for Commission staff; therefore Austrian labor law would be disregarded. This was taken to answer both questions.
Several jurisdictions, including the USA, use electronic surveillance devices as substitutes for prison cells; the Court was ordering the Austrian employees to make a substantial sacrifice for the unity of the Staff Regulations. Thoughts of George Orwell may have inspired Paragraph 50 of the judgement: “It was not argued before the Court that the details of that system, as they follow from Regulation 259/68, were contrary to any higher-ranking provision of Community law, or were inadequate for ensuring the defense of the interests of the staff of the Community institutions in a form appropriate to the needs of the institutions and the accomplishment of their tasks.”
The CFR and the CFSR outrank Regulation 259/68. It should not be the task of a Commission Representation to establish a precedent of electronically shackling staff.

2.7 The Committees
Each institution has its own Staff Committee plus the various subcommittees and joint committees to which it appoints members. There is no simple answer to the question, “What is an EC institution?.” The following table lists those organizations referred to as institutions in Article 7 TEC.

Table 1 The "core" institutions of the EC
Commission
Council
Court of Auditors
Court of Justice
European Parliament

The next table shows six further ‘institutions’ that are listed as such by the Administrative Guide .

Table 2 The "non-core" institutions of the EC
Committee of the Regions
Economic and Social Committee
European Central Bank
European Investment Bank
European Investment Fund
Office of the Ombudsman

Beyond the eleven treated in the Guide, there is still the European Data Protection Supervisor, whose office has the status of an institution for the purposes of the Staff Regulations . If the Court of First Instance is counted as an independent institution, there are thirteen.
A further eleven agencies with nearly 2,000 employees have references to the Staff Regulations and the “Conditions of Employment of other Servants of the Communities” in their foundation acts, although the Staff Regulations do not mention them. They are shown in the following table.

Table 3 : European Agencies, Offices and Centres
Community Plant Variety Office
European Agency for Reconstruction
European Agency for Safety and Health at Work
European Agency for the Evaluation of Medicinal Products
European Centre for the Development of Vocational Training
European Environment Agency
European Monitoring Centre for Drugs and Drug Addiction
European Monitoring Centre on Racism and Xenophobia
European Training Foundation
Office for Harmonisation in the Internal Market
Translation Centre for the Bodies of the European Union

There is the European Foundation for the Improvement of Living and Working Conditions with its specific Staff Regulations, as does the European Investment Bank.
Some twenty-three organizations, or perhaps establishments, are involved in the EC system of industrial relations . Whether the title “institution” is restricted to the first five or given to more or all of them has no impact on rights and duties.

2.7.1 The Staff Committee
Article 9 of the Staff Regulations lists the tasks of the Staff Committee. First, it represents staff interests to the institution and establishes permanent contact between the two. Second, the SC brings questions of general interest about the Staff Regulations to the institution’s attention.
The idea that staff and institution are two shores requiring a bridge to establish permanent contact is antiquated. Modern thinking would see staff as the most important component of an institution and might have trouble conceiving of an institution that is disconnected from the people whose work brings it to life.
Third, the SC can be consulted about the interpretation of the Staff Regulations. The answers are not binding. Many trained lawyers work for the Commission as officials, particularly in the Legal Service, or as consultants. Binding interpretations can only come from the Courts of First Instance and of Justice.
Fourth and fifth, it submits suggestions concerning the organization and functioning of the institution as well as about the staff’ living and working conditions to the attention of the competent organs.
Sixth and seventh, the SC participates in the administration of social services provided for staff and may start new services with the institution’s approval.
There is one more function based on the final Paragraph of Article 14 of the soft law “Rules laying down the composition and operation of the Staff Committee” which is the most important in practice; the SC selects staff representatives who serve on a host of committees. These committees are too numerous to hold separate elections; there is a practical need to appoint their members.
Annex II is entitled “Composition and procedure of the bodies provided for in Article 9 of the Staff Regulations”.
Section 1 covers the Staff Committee and repeats in more detail that there is to be one such body, which can optionally be organized in local sections that come together in a central committee. The right to stand and to vote belongs to all officials “and also to the servants referred to in the first paragraph of Article 7 of the Conditions of employment of other servants of the Communities” .
Elections to a Staff Committee are valid if two thirds of the officials take part. Failing this quorum, a second vote is taken which is valid if the majority of officials participate. This rule applies both to a committee that serves as the only staff representation of its institution and to each of the local sections of a geographically distributed SC.

2.7.2 Joint Committees
Section 2 of the Annex lays down the provisions for Joint Committees which are that an equal number of staff and administration representatives will be presided over by a chairman chosen by the appointing authority, who shall vote only on questions of procedure. Each member shall have an alternate and the Joint Committee meetings will be valid only if every member or her alternate are present. This is by far the most common format. Joint Committees are also very common beyond the realm of industrial relations as instruments of dialogue between the European Commission and other bodies, be they international organizations, states, associations of recognized stakeholders, etc..

2.7.3 Disciplinary Boards
Section 3 deals with the Disciplinary Board or Boards, whose chairperson is selected by the appointing authority; s/he in turn draws lots to determine the four members of the Board. The Staff Committee and the appointing authority each submit a list of potential Board members which ideally contains two officials from each grade of every category. This is important because “Members of the Disciplinary Board shall not be of a lower grade than that of the official whose case the Board is to consider” .
The final sentence of paragraph 2 of Article 5 reads; “The chairman shall inform each member of the composition of the Board”. This rule becomes relevant in cases that are handled by a purely written procedure.

2.7.4 Invalidity Committee
Section 4 covers the Invalidity Committee which consists of three doctors; one appointed by the official, one by the institution and one agreed on by the two preceding ones. If there are problems regarding the appointment of the second or third doctor, the President of the Court of Justice makes the selection. Of all the committees under consideration, this is the one where there is a balance of power between staff and administration. There are no others with this structure or anything similar.

2.7.5 The Local Staff Committees
The Commission has offices and staff in Brussels, Luxembourg, Ispra, Petten, Karlsruhe, Geel, and Culham. For historical reasons, the personnel who work in France are treated as a distinct group. Hence the need for Local Staff Committees (LSC) that are the geographically distributed sections of the Staff Committee. Additionally, there are several press offices and numerous delegations scattered around the globe. Their staff has had its representation since 1999 .
The basis of the LSCs is in the “Rules laying down the composition and operation of the Staff Committee”. The relationship between SC and LSCs is that in addition to the 19 Brussels members of the SC, seven each are delegated from Luxembourg and Ispra, three for staff working outside the territory of the EU Member States, and one member each for staff working in Karlsruhe, Geel, Petten, Culham and France. Matters that concern two or more local sections of staff will usually be discussed in the SC, but there is no simple subordination between the central and local committees.

2.7.6 The Specialized Committees
The Staff Committee delegates what authority it has to representatives on fifty specialized committees where contact with administration representatives is maintained.
Two contrary forces have shaped the evolution of the committee system: the desires to specialize and to coordinate. Whenever an existing committee sprouts a subcommittee that eventually becomes independent, there is a refinement of the division of labor which narrows the fields of expertise that the members of the two bodies need to learn. The separate Committees on Grading, Staff Reports, and Promotions are examples of this tendency to organize in accordance with subtle differences. This specialization in turn makes it possible to boost the quality of the deliberations because the facts and rules on which discussions are based come from a narrow, easily mastered domain. But this gain is offset by the need for more and better coordination, since the results of the independent discussion groups should be integrated into a coherent policy. Hence the Joint Committee, Common Joint Committee, Contact Committee Staff-Administration?, Central Contact Committee SC-Administration, Central Contact Committee on Research, Local Contact Committee, Local Contact Committee on Research have developed.
It will be noticed that several committees are duplicated, with the second committee having the word “Research” tagged on to its titled. One reason for this is that the Joint Research Centre is in Ispra, far away from Brussels. Another is that research staff are by definition highly specialized, making it difficult for laymen to manage their working conditions.


Table 4 Committees that Deal with Staff Matters
AdHoc? Working Party on Rules for the Application of the Recruitment Procedure for DG XII
Advisory Committee on Welfare Grants and Loans
Building Loans Committee
Buildings Policy Committee
Central Contact Committee – Central Staff Committee – DG Admin
Central Contact Committee on Research
Committee of European Inter-Institutional? Centre in Overijse
Committee of the Early Childhood Centre
Committee on Safety and Health at Work
Common Joint Committee
Consultative Committee on Appointments
Contact committees staff – administration
Disciplinary Board
Interdepartmental Group on Requests and Complaints under Article 90
Inter-Institutional? Welfare Appropriations Committee
Joint Berlaymont Monitoring Group
Joint Committee
Joint Committee on Equal Opportunities
Joint Committee on Grading
Joint Committee on Information Policy
Joint Committee on Mobility
Joint Committee on Part-Time? Work
Joint Committee on Research Staff Grading
Joint Committee on Restaurants and the staff shop
Joint Committee on Staff Reports
Joint Ecology and Administration Working Party
Joint Welfare Committee
Joint Working Party – Food and Veterinary Office – DG XXIV – Dublin
Joint Working Party for the Periodic Review of the Grading of Local Staff
Local committee on Research
Local Contact Committee – Brussels Staff Committee – DG Admin
Local Contact Committee on Research
Local Staff in the Offices of the European Union
Local Training Committee
Management Committee for the Joint Sickness Insurance Scheme
Promotion Committee: B
Promotion Committee: C
Promotion Committee: D
Promotion Committee: A
Promotion Committee: LA
Reports Committee
Research Promotion Committee: A
Research Promotion Committee: B
Research Promotion Committee: C
Social Services Administrative Board
Staff Regulations Committee
Steering Committee on Training
Working Party on Local Staff Serving in Commission Offices in the European Union
Working Party on Tele-Working?
Working Party on the Monitoring of the Selection of Research Staff
These title gives an indication of the committee’s function. Several examples of dis-functionality will be described in the fourth section of this paper.


2.8 Staff Unions
2.8.1 Established Unions
The Agreement on the relations between administration and unions follows the French model of industrial relations. Some of the concessions are generous, but it is dangerous to rely on them because Article 13 reminds that the Agreement can be annulled by either side with one month’s notice.
The rights to form unions, bargain collectively and to strike are recognized in the Agreement. Annex 1 is entitled “Provisions for Work Stoppages” and has ten Articles plus a brief “Declaration”. Cooling down periods and the necessary notice to be given before a strike are covered. Article 8 and 9 protect those who choose to strike or to work from “let or hindrance”.
The Agreement establishes a certain kind of structured negotiation between unions and administration that is called “concertation”. Whether concertation comes closer to a non-binding consultation or to codetermination depends on the relative power of the partners. Some general considerations can be given before delving deeper into detail. Many private sector companies are subject to competition, making them adverse to prolonged strikes because with each day of lost production the risk that a competitor will, at least temporarily, encroach on their share of the market grows. Public authorities enjoy monopolies that are guaranteed by law, sometimes constitutionally. There is a long list of international organizations that operate in Europe: UN, OECD, WTO, NATO, even the remnants of EFTA, but none of these can begin to take over the functions of the Commission, for instance. If the administration were ever to face a long-term general strike of the 30,000 EU officials it would not be under the pressure that automobile manufacturers face, for instance.
Unsatisfactory concertations have led to a number of work stoppages, which in turn brought about compromises that were more favorable to staff. The administration prefers to avoid negative publicity, which accompanies industrial action. Another, more important, factor is that officials on strike are protesting in the strongest way. They are sacrificing a part of their income while taking an unequivocal stance in front of their colleagues and superiors. In the long term the administration needs cooperative staff and is ready to make limited concessions.
These considerations imply that concertations, while falling short of codetermination, have the potential of solid consultations. The situation remains unsatisfactory from staff representatives’ viewpoint because they need massive backing from their constituents before they can achieve a dialogue. In a democracy no one should have to beg or threaten in order to be heard.
Article 7 of the Agreement lists the three levels of concertation according to the addressee of staff demands; at the Directorate level they are “administrative”, with Directors General they are “technical”, if the Commissioner in charge of Personnel and Administration is involved they are called “political”.

2.8.2 New Unions
Small, young unions struggle for sheer recognition. Article 4 of the Framework Agreement sets challenging thresholds for new staff organizations that would be recognized as representative and thus be admitted to the concertation process. In summary, an association is recognized as representative under this Agreement if it has gotten ten percent of the vote at the last Staff Committee elections and can prove conclusively that 1,000 officials are active, meeting-attending and dues-paying members. Even the largest and oldest union would be excluded from concertation if these rules were to be applied rigorously, so that cordial relations with the administration are an attractive survival strategy under this regime. The uneven geographic distribution works strongly against equal representation because 16,000 of the 23,000 electors are concentrated in Brussels while the remaining 7,000 are spread over seven locations. Luxembourg is the second largest institutional site with nearly 3,000 votes on offer. A newly founded organization would need to eventually gain over three quarters of these 3,000 in order to participate in concertations and thus become a recognized union. This is so difficult that Luxembourg-based officials enjoy nearly no freedom of choice with regard to new staff organizations. The remaining 5,000, spread over five locations , are in effect disenfranchised except for unions that are already recognized.
The Declaration following the last Article of the Annex on Work Stoppages is testimony to the exaggerated level of the threshold of representation; “Non-representative organizations that are signatories to this Agreement shall be entitled to take part in the negotiations provided for in Article 5 of Annex 1 in an expert capacity if those trade unions and staff organizations are not already represented by a representative organization in the concertation body.” To declare that a small organization is at once “non-representative” and “entitled to take part in the negotiations” is contradictory. But the Declaration will enable both sides to gracefully sidestep the fiasco of an effective strike whose end can never be agreed because the union that organized it was unable to obtain recognition.
The administration has demonstrated a strong will to impose higher thresholds than those that result naturally from the limitations on the number of seats in the various local staff committees. Excluding 9.9 percent , more than 2,000 voters, from concertation does not bother its democratic conscience in the least. It first attempted to introduce the “ten percent + 1,000” bar in an agreement with big unions that was entitled “Operational Rules on Consultation Levels, the Consultation Body and related Procedures”. A small union successfully challenged these Operational Rules as a violation of the Framework Agreement. The Commission proceeded to revoke the Framework, add the desired Operational Rules and then readopt it in agreement with the big unions.


3. Industrial Democracy in the German Civil Service
Fredrick William I of Prussia said in his authoritarian, but folksy style; “To hell with me, if my officials don’t dance to my tune. You have to serve with body and soul, all that is yours, conscience and honor. You have to sacrifice everything, except salvation, which is from God. But all else must be mine.” Some milestones of progress toward industrial democracy were the first draft legislation in 1848, the first legislation in 1890, the earliest version of the present federal statute in 1951, the massive reforms of 1974. The history of industrial democracy in the public and private sectors of Germany is well over a century old and has become entwined with many other long-term developments.

3.1 The Federal Staff Representation Act
Industrial democracy in the German civil service at the federal level is codified in the 119 articles of the Bundespersonalvertretungsgesetz ( “BPerVG”), which have spawned extensive jurisprudence during the past half century. A standard commentary, widely used by practioners, is 1,342 pages long and weighs in at nearly two kilograms. It assumes that readers have extensive background knowledge about German law; a thorough explanation that could be readily understood by those unfamiliar with the country’s constitutional, labor and administrative law would need to be as much as double as massive.
The basic idea is straightforward; civil servants working in a federal German institution elect a Staff Representation which exercises the three rights on their behalf according to the procedures of the BPerVG.
Emphasis will be on those parts of the law that have an immediate bearing on the realization of the three fundamental rights. The majority of the legal text dealing with the election and internal procedures of the Staff Representation, its term of office, the division of staff into categories, the relations with public authorities at various levels, must be left aside .

3.2 Some Core Provisions of the BPerVG
3.2.1 Loyal Cooperation.
Article 2, paragraph 1 imposes the duty of loyal co-operation on both staff representation and director. They are to take the BPerVG as method for coming to agreement on the way towards common goals, not as book of rules for fighting about what the goal is to be. When interests or personalities clash, loyal cooperation becomes difficult.
Article 66, paragraph 2 defines the two sides’ duty to cooperate faithfully with one another in order to further their mutual interests. Possible breaches of this duty by staff representatives include publishing pamphlets that strongly criticize the director and implicitly demand his resignation, organizing the review of trainers’ performance by the trainees and making the results known, urging staff to disobey lawful orders. For his part the director may not publish information about the time and money expended by staff representatives with the intention of defaming them as parasites. Staff representatives may participate in lawful industrial action as simple staff members, but the staff representation as such must observe strict neutrality.
Loyal cooperation means that both parties must systematically seek to settle differences within the institution before bringing in third parties which have a power to intervene based on law, such as tribunals or ministries. Both trade unions and employers’ associations lack that power and can therefore be brought in at the discretion either side. Public media may not be drawn into internal disputes, but both sides enjoy freedom of the press which entitles them to run their own internal publications. This right extends as far as the publication of anonymous letters to the editor.

3.2.2 The Monthly Meeting
Article 66, paragraph 1 obliges the director and staff representatives to meet once a month. Naturally, the details of time and place are left to their discretion, but it can be skipped only by mutual agreement. If one of the two sides asks to hold the meeting there is automatically a legal obligation for the other side to attend and participate.
All matters of concern to the institution and its staff can be discussed at the monthly meeting. The agenda can contain items that are just for discussion because they will be decided by higher authorities, such as planned privatization of the institution. Both sides of the monthly meeting must work for compromise seriously, although they are not sanctioned if they fail in that effort. It is not enough to merely listen passively and it is too much to attempt to force one’s will on the other party. There is no right to give in to demands that are seen to be clearly unlawful.

3.2.3 General Principles
Article 67, paragraph 1 binds the institution and the staff representation to actively guard the rights of staff, especially to prevent any form of illegal discrimination. Rights are those that spring from law, including case law, and from unwritten customs, but not, for an example, the natural law. Beyond ensuring that staffers enjoy their rights, the institution and the representatives are bound to take the particulars of each individual case and the general idea of equity into account when they take decisions.

3.2.4 Tasks of the Staff Representation
Paragraph 1 of Article 68 lists three general and five specific tasks.
The general tasks are first, to propose actions that will benefit the institution and its staff. Second, to ensure that laws, decrees, union contracts, agreements and directives favorable to staff are fully applied. Third, to negotiate with the director in order to win his acceptance of those staff suggestions and complaints that the representatives deem justified.
The five specific tasks are to support both the hiring and career advancement of handicapped workers, equal treatment for women, the integration of foreign workers, and the interests of apprentices and young employees.
Paragraph 2 requires timely and comprehensive information of staff representatives, including the submission of relevant documents. However, a personnel file can only be passed to staff representatives with its subject’s approval. Staff evaluations can be revealed to the representatives only at the evaluee’s explicit request.
The right to information is construed in a very extensive way because of the representation’s duty to safeguard all rights given to staff under German law. Staff representatives must have access to very nearly all of the directors stock of information. Taking a staff selection procedure as an example, the representation has a right to see the c.v.’s of all candidates, including those not selected and even those of candidates hopelessly unqualified. Failing this, the selection process can be blocked. Pleadings of “technical difficulties” or even “excessive cost” are no defense in such a case. If the director were given the right to keep secrets from the representation it would automatically loose some of its ability to discharge its duty under Article 68. The lists of matters that fall under the rights of consultation and codetermination cannot be construed as limits to the right of information. On the contrary, the representation must be provided with enough information about all matters under management consideration in order for it to decide whether or not it wants to claim a right to be consulted or even to participate in the decision.

3.2.5 Codetermination
Article 69 contains the general provisions for the process of codetermination. Paragraph 1 states the obvious: that those measures which fall under codetermination can only be taken with the staff representation’s consent. According to paragraph 2, the director is to apply to the representation for its consent and must then wait ten days, after which he can take silence to mean consent. In urgent cases he may ask for a decision within three days. The representation, may ask to be given his reasons in writing, except in the cases that affect only one individual staff member. Paragraph 3 gives the director the right to seek approval at the next higher level of the administrative within six days of it being refused by his staff representation. Here it should be born in mind that the director’s hierarchical superior is still subject to the BPerVG and must now seek approval of the Staff Representation of his institution, so this is the opposite of an escape clause. If this higher level director and his corresponding Staff Representation also fail to agree, Paragraph 3 is applied iteratively and the dispute climbs up to the next level. Paragraph 4 deals with the tie break. There is a conciliation body (“Einigungstelle”) which takes the final decision, except in cases covered by Articles 76 and 86, where it can only make a non-binding recommendation leaving the final decision to the supreme federal director general. The conciliation body consists of an equal number of staff and administration representatives plus a neutral chair person who must be appointed by consensus. It should complete its task within two months of being called upon.
The ten days allowed for codetermination begin when the staff representation receives full information about the measure proposed by the director. It must take its decision about that measure in a full plenary meeting, not in committee or by delegation to one of its members. If it misses the ten day deadline, its right is forfeit. The only shorter period under the law is three days; intermediate periods cannot be chosen, even if both parties agree to them.
Here, the staff representation has the same extensive rights to information as it does in most matters. Importantly, it may refuse its assent if it is provided with inadequate information.

3.2.6 Initiative
Article 70 takes codetermination beyond being a mere veto power by giving a right of initiative to the staff representation. Paragraph 1 states that in those matters falling under codetermination the representation’s proposal will be dealt with according to those rules. According to Paragraph 2, all other initiatives will come under the rules of consultation.
The representation’s proposal must remain within the confines of what the director can legally decide. He does enjoy one advantage over staff representatives because there is no formal ten day deadline for him to observe in deciding whether or not to agree to an initiative. Administrative tribunals have interpreted the principle of partnership between director and representation to mean that on average he should answer within the ten days that his partners are bound to, but in individual cases he has a right to run over that delay.

3.2.7 The Conciliation Body
Article 71 Paragraph 1 structures the conciliation body, three staff representatives plus three for management and a neutral chair person. If no agreement about the chair person can be reached by the parties, the presiding judge of the Federal Administrative Tribunal (“Bundesverwaltungsgericht”) appoints to the chair person. Paragraph 2 makes the committee’s meetings nonpublic and gives the two parties the right to have their positions heard. By agreement, the parties can present their arguments in written form.
According to Paragraph 3, it decides by majority vote within the limits of the law, particularly of the law governing budgetary matters. Finally, Paragraph 4 makes its decisions binding on both parties with the sole exception of decisions about the careers of established officials.
The committee decides with a simple majority of the votes cast, discounting abstentions. Its decisions are final, subject to judicial review by an administrative tribunal, with one exception. That is the case when the disagreement concerns a career decision for an official, then the committee’s decision counts only as a nonbinding recommendation for the director at the highest level.

3.2.8 Consultation
In comparison with the codetermination right, that of consultation treated in Article 72 appears to be less exciting because it does not lead to formal power sharing between directors and representations. Paragraph 1: the consultation must be held in good time and in detail. The representation has ten days to raise objections (Paragraph 2) which the director may override partially or in full, provided that he supplies reasons in written form (Paragraph 3). Within three days of the director’s rejection of its objection, the representation may apply to the next higher institution which has a staff representation (Paragraph 4). In that case the director is bound to wait for his superior’s decision before going ahead with implementation according to Paragraph 5.
Conceptually, consultation is the equivalent of codetermination with the final conciliation step removed. With that difference, the other principles, rights and duties apply fully.

3.2.9 Agreements
Some matters are resolved once and for all members of the civil service by law or collective agreement. Other matters must be dealt with individually through consultation and codetermination. Between these poles there are those matters which can be decided once for an entire institution or group of institutions by concluding a service agreement (“Dienstvereinbarung”) in accordance with Article 73. A service agreement is to be signed by the director and the staff representation and must be made known (Paragraph 1). If there is a conflict between a service agreement drawn up for a set of institutions and another one that applies only to a subset of those same institutions, then the one applying to the subset must yield to one with the wider range of application (Paragraph 2).
The legal nature of service agreements is that they are enforceable contracts under public law. The subject matter which can give rise to a service agreement is drawn from the list of topics for codetermination given in Article 75, Paragraph 2.

3.2.10 Topics for Codetermination
While the rights to information and consultation apply to nearly everything that goes on in the institutions, the issues over which the staff representation has codetermination are listed exhaustively in Article 75. There is a sharp distinction between established and non-established civil servants, with the non-established getting better protection. The distinction is necessary because of a, perhaps questionable, interpretation of constitutional law by the highest courts which cannot be discussed here. Non-established public sector workers need the protection provided by staff representatives more often and more urgently than their established colleagues, making the outcome equitable.

Table 5 In the absence of legislation and collective agreements, the staff representation can participate in decisions on the following on behalf of all civil servants:
Scheduling the beginning and end of work and breaks as well as the distribution of work to the days of the week
Time, place and method of paying the civil servants
Scheduling annual holidays if the director and an individual civil servant cannot come to agreement
Methods of calculating wages (such as piece work versus time work)
The creation, management and dissolution of institutions designed to promote the civil servants welfare (such as daycare or holiday centers)
Prevention of accidents and of occupational health hazards
Measures designed to mitigate the impact of rationalization on civil servants, including retraining
Derogations from the general duty to advertise free posts
Rules of conduct
The physical characteristics of the work place (such as lighting, ventilation, noise, office equipment etc.)
Installation and operation of technical devices designed to monitor the conduct and productivity of civil servants
Measures designed to increase output or to simplify work
Continual training
Introduction of new methods of work
Internal guidelines concerning the selection of employees for hiring, reassigning and terminating
Measures to promote equality between men and women



Table 6 In matters concerning the interests of non-established civil servants the representation has codetermination in the following cases:
Hiring
Promotion and demotion
Transfer between grades
Transfer from one institution to another
Secondments that last more than three months
Measures that limit an officials freedom to choose the location of his home
Refusal to grant permission to take on a second job and retraction of such a permission
Refusal to grant permission for transfer to part time work
Extension of work beyond the onset of the pension age
Selection of participants in continual training measures
Personnel questionnaires
Guidelines for evaluating performance
Appointment to the official post of medical officer of the institution

These lists of competences are exhaustive as far as codetermination is concerned.
From time to time there have been agreements between administration and staff representatives to go beyond them. Legally, these are ladies’ and gentlemen’s agreements that cannot be enforced and that cannot give rise to legitimate expectations.
Though they are exhaustive, these lists leave a margin of interpretation to administrative tribunals which has been filled with case law. Some examples are that transfer from part-time to full-time work and from a fixed term to a permanent contract of employment fall under codetermination. Here gaps in the lists are being filled in the way which is most consistent with the text and intent of the BPerVG. In other cases, the general provisions in the text were given an interpretation that was precise enough to be operational; it has been decided that re-assignment of an employee to a place of work twenty or more kilometers from the limits of the municipality in which he or she currently works constitutes a geographic transfer and therefore entails codetermination. Many delineations in case law derive from the principle of proportionality; staff representatives cannot rely on codetermination to stop the employer from asking prospective health-care workers about a possible HIV infection, but they can definitely do so in the case of office workers.

3.3 Problems
One general criticism relates to this law’s sophistication which makes it difficult to apply for non-specialists. There are those who criticize the division of civil servants into tenured officials, blue and white collar workers as legal fossil from the nineteenth century. Others feel that the civil service has too many rights, or too few.
Some of the best documented criticisms pertain to procedural and case law. After examining in detail how a Staff Representation was deprived of its codetermination, in one case, by the combination of a fast director and a slow court, Eberhard Baden concludes: “According to a legal proverb, procedural law is the handmaiden of substantial law. … Staff Representation law has apparently gotten a somewhat incompetent maiden, half blind and quite lame.”
Giovanni Sabottig has accused the administrative tribunals of systematically placing Staff Representation cases at the bottom of the roster, where they may wait for as much as a year before questions of modest complexity are decided. “If these procedures provide neither interim protection nor quick decisions, then they do not protect rights and serve no purpose.” In another article, he compiled statistics showing that one particular Higher Administrative Tribunal had decided just seven percent of its cases in favor of staff representations. He expresses the suspicion that directors who take liberties with the BPerVG are hoping that “solidarity within the community of the highest civil servants, of which judges are members, will pull them through”.
There have been several challenges to industrial democracy on constitutional grounds. The most serious cases came about in 1959 and in 1995, when parts of ambitious regional laws concerning the civil service were declared unconstitutional. The briefest summary of these arguments is that in a parliamentary democracy the executive must be accountable to parliament above all other institutions. The codetermination discussed above is considered to remain below a certain threshhold, above which the rights of staff representations risk clashing with those of parliament. The rights conferred by the two regional laws were struck down because they were seen to have exceeded the limit and thus conflicted with parliamentary prerogatives. Ratayczak reports on how the “landscape of codetermination is being changed radically in favor of an authoritarian, strictly regimented and hierarchical administration” through deliberate over-interpretations of the 1995 verdict. He criticizes the Bundesverfassungsgericht for having needlessly “revived pre-democratic orientations and views that dominated constitutional law at the beginning of the century”.
There are no explicit guarantees of the three fundamental rights in Germany’s Basic Law. Attempts to interpret various basic rights as implicitly protecting industrial democracy have been rejected by the majority of the legal scholars.


4. Comparison between the two Systems of Industrial Democracy
4.1 Textual Comparison
The CFR is currently the EU document that comes closest to being constitutional and it supports two of the three most important rights.
There is no explicit reference to industrial democracy in Germany’s Basic Law and all attempts to interpret various articles as bases have been rejected by an overwhelming majority of legal scholars. At the most abstract level, EU law has improved the protection of two staff rights in Germany.
Staff Regulations’ provisions for industrial democracy are minute or non-existant. There are no such rights and no institutions or procedures to defend them. In contrast, the BPerVG with its jurisprudence define the three rights extensively and provide a legal arsenal that is adequate to defend them.
Below the level of the Staff Regulations proper there is only soft law at the Commission; unilateral administration decisions, sometimes agreements between administration and cooperative unions. Below the federal level in Germany there are the sixteen regional personnel representation laws, each one fully enforceable through the courts.
In four decades circa 2,000 amendments to Staff Regulations and their implementing soft-laws have been accumulated. In five decades the BPerVG has been changed circa twenty times; all of these updates have been codified into the text of the law.
Commission officials enjoy very little judicial protection because there are no injunctions against EC institutions . Rights under the BPerVG can be defended in court.

4.2 Paired Examples
Some examples, drawn from practice at the Commission will illustrate where the systematic differences lead. The paradigm for examining differences between the two systems is to take a case that occurred under the Commission’s system, transpose it into the German system by assuming that it was a Staff Representation that was dealing with a German administration. Then the BPerVG would apply and one can see how different the outcome would be.
There are a number of reasons to consider Commission officials as more similar to German non-established than to established officials. The employment relationship with the European appointing authority is established through a normal employment contract, while in Germany appointment to an official post is an act of the sovereign which gives the appointee a right, perhaps very limited, but real, to act on behalf of the sovereign. Legally, even the most senior Directors General play no such role. Another clear distinction is that established officials are not allowed to strike in Germany while the Commission gives them that right.

4.2.1 The Joint Committee
There were so many problems with the administration’s follow-up to JC opinions in the past that a dedicated Follow-Up? Group which attempts to get reactions from the internal administration as systematically as possible was formed. The JC is based directly on the Staff Regulation and counts as a relatively important body, yet it must plead for administration attention. Because half of the members are administration representatives, its opinions are necessarily endorsed by at least one of them, but that does not always save them from the waste paper basket.
German directors would find themselves before an administrative tribunal answering to charges of having violated Articles 66, 67 and either 69 or 72 of the BPerVG, if they attempted to brush staff representatives aside in this way.

4.2.2 Steering Committee on Training
This Committee did not meet in 1997-1999, and not in 2000. Staff unions had to begin formal concertation with the appointing authority in order to resume meetings. The Brussels CLP notes that “in recent years training policy has in practice failed to live up to the principles and ambitions set out in the ‘new training policy’ adopted by the Commission in 1991”.
Article 66 BPerVG compels the director to meet with staff representatives every month, even when there is no threat of a strike. Article 75(2) 6 and 7 give the staff representation codetermination in training matters so that it could take the initiative. If the director continued to boycott discussions, the content of the initiative would become his official training policy by default.

4.2.3 Joint Committee on Grading
The Alexopoulou case forced the Committee to wait for Court of First Instance to hand down its ruling and then for the appeal to the Court of Justice to be decided. Then there were disputes about the extent to which the Alexopoulou case law should be applied retroactively. It was in 2002, after at least seven years of legal uncertainty that work could resume on the 118 accumulated applications for regrading.
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Created by: admin last modification: Thursday 28 of March, 2013 [12:29:32 UTC] by admin


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