Select Committee on European Scrutiny Thirty-Seventh Report



4. STAFF REGULATIONS FOR OFFICIALS OF THE EUROPEAN COMMUNITIES

 

(23534)

8456/02

COM(02) 213

Draft Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities (Revision of the Staff Regulations).

Legal base:

Article 283 EC; consultation; qualified majority voting

   

Document originated:

24 April 2002

Deposited in Parliament:

5 June 2002

Department:

Foreign and Commonwealth Office

Basis of consideration:

EM of 11 July 2002

Previous Committee Report:

None

To be discussed in Council:

No date fixed

Committee's assessment:

Legally and politically important

Committee's decision:

Not cleared; further information requested

 

Background

    1. Following the resignation of the Commission headed by Jacques Santer in 1999, the European Councils in Berlin and Cologne have charged his successor with the task of reforming the Commission. The Commission adopted a White Paper on 1 March 2000 which set out five principles of reform, namely, efficiency, accountability, transparency, responsibility and service. The White Paper also defines three main objectives. First, to introduce a better system for setting priorities and allocating resources, secondly to overhaul financial management in the Commission, and thirdly to modernise personnel policy.
    2. The present proposal concerns the third objective, and introduces a series of amendments to the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities[3] which, as the Commission explains, have not been substantially amended since 1967. The Staff Regulations and Conditions of Employment apply to officials and other servants of all the Community institutions.
    3. The proposed Council Regulation

    4. The proposed draft Council Regulation makes a series of amendments to the Staff Regulations and Conditions of Employment dealing with such matters as equal opportunities, flexible working patterns, harassment, mobility, appraisal systems, whistleblowing, management of poor performance and disciplinary procedures. The amendments also re-classify officials into two categories — 'AST' and 'AD' — in place of the old categorisation into A, B, C and D grades which depended on secondary and tertiary education.
    5. The amendments also define more clearly the rights and obligations of officials and other servants in relation to impartiality and conflicts of interest, the seeking of public office, confidentiality and the duty of openness towards the public and rules on freedom of expression.
    6. In relation to impartiality and conflicts of interest, the amendment would insert a new Article 11a which prohibits an official from dealing in a matter 'in which directly or indirectly he has any personal interest such as to impair his independence, and, in particular, family and financial interests'. Article 11a(2) leaves it to the official to inform the institution of any case to which Article 11a applies.[4] Article 11a(3) contains a similar rule on the holding of interests in undertakings, where the official is prohibited from holding any interest 'of such kind or magnitude as might impair his independence in the performance of his duties'[5].
    7. A new Article 15 requires an official intending to stand for public office to notify his institution, which will then consider inter alia whether or not the official should be required to apply for leave on personal grounds, or be authorised to continue his duties.
    8. Article 17 imposes a relatively strict rule of confidentiality which prohibits the official from disclosing any document or information to any person not authorised to have access to that document or information unless it has already been made available to the public.[6] The official is to continue to be bound by this obligation after leaving the service.
    9. Article 17a is a new provision dealing with publications by officials. An official is required to give notice of his intention to publish. The institution may refuse permission 'only where it is able to demonstrate with full reasons that the matter is liable seriously to prejudice the interests of the Community'. Article 18 provides that 'the Community shall have the right to acquire compulsorily the copyright in such works'.[7]
    10. 'Whistleblowing' is covered by new Articles 21a, 22a and 22b. If an official is given an order which he 'considers to be irregular or likely to give rise to serious difficulties' he is required under Article 21a to inform his immediate superior who is to decide whether or not to confirm the order in writing. Where an order is so confirmed, the official is required to carry them out 'unless they constitute a breach of criminal law or of the relevant safety standard'.[8]
    11. By virtue of Article 22a the official is obliged to inform his head of service or Director-General (or the Secretary General or OLAF) if he becomes aware of evidence 'which gives rise to a presumption of the existence of illegal activity, including fraud or corruption, detrimental to the interests of the Communities,[9] 'or of other misconduct liable to result in disciplinary proceedings. Article 22b provides that an official who makes a further disclosure to the Presidents of the Commission, Court of Auditors, Council or European Parliament is not to suffer any adverse consequences if he honestly and reasonably believes that the information disclosed is substantially true and if he has previously disclosed the same information to OLAF or his institution.[10]
    12. The Government's view

    13. In his Explanatory Memorandum the Minister for Europe (Mr Peter Hain) provides a helpful summary of the proposed amendments and explains that negotiations commenced on 5 July and that the Council has agreed to complete these by June 2003. He further explains that the Government broadly supports reform of the Staff Regulations as a timely exercise which will result in institutions which are more efficient and transparent, with more effective human resource management which is more in line with best public sector practice.
    14. Conclusion

    15. We note that these proposals are at an early stage and we welcome the Minister's undertaking to keep us informed of progress in this matter.
    16. Given the controversies of the recent past, we shall pay particular attention to the provisions relating to the disclosure of information and the conduct of officials. At this stage, we ask the Minister if he shares our concern that the provisions on conflicts of interest do not appear to impose an objective standard or to require officials to avoid even the appearance of a conflict of interest.
    17. We also ask the Minister for his assessment of the compatibility of the somewhat strict proposals on confidentiality with the duty of openness under the recently adopted Regulation 1049/2001 (EC).
    18. We also ask the Minister if he shares our concern that the protection for 'whistleblowers' in the proposal is so circumscribed, and in particular that disclosure to members of the Commission other than the President, or to members of the Council or European Parliament, is not protected under Article 22b. We ask the Minister if he shares our view that there should be some general provision giving protection in any case where disclosure is in the public interest.
    19. We shall hold the document under scrutiny pending the Minister's reply.

 


3  Council Regulation (EEC, Euratom, ECSC) No. 259/68. OJ No. L 56, 4.3.1968, p. 1. Back

4  There is, however, no objective test for establishing any risk of a conflict of interest, or of the need to avoid any appearance of a conflict. Back

5  It is not clear from this whether any kind of objective test is intended. Back

6  It is not clear if the right of access under Regulation 1049/2001 (EC) makes the member of the public an authorised person for this purpose. Back

7  The basis of such compulsory acquisition of copyright is not clear, since any such question must be a matter for the national law of the Member State in which the institution is situated. Back

8  Presumably, this is a reference to any rule of criminal law in the Member States to which the official would make himself subject by carrying out the order, and is not confined to the criminal law of the Member State in which the institution is situated. Back

9  It is not clear why this additional qualification is necessary or desirable. Back

10  Although these provisions correspond, to some extent, to s.43 A-L Employment Rights Act 1996, there appears to be no possibility of protection where the disclosure is made to a Member of the European Commission, or of the European Parliament, or of the Council, let alone to the press or in any other case where there is a public interest reason for making the disclosure. Back

 
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Prepared 26 July 2002