19 February 1992

Doc. 6579

1403-18/2/92-1/E

Report

on the European civil service: concept and prospects

(Rapporteur: Mr SPEED, United Kingdom, Conservative)

Problem

      At its meeting in Helsinki on 28 June 1991, the Standing Committee approved an amendment which would delete any reference to the European civil service from the report expressing an opinion on the Council of Europe's general accounts and budgets for 1989, 1991 and 1992. The view of the Committee on the Budget and the Intergovernmental Work Programme was that if the Standing Committee's report meant that it was opposed to the very notion of a European civil service, it was liable to bring to nought a long and painstaking effort.

Proposed solution

      The Committee on the Budget and the Intergovernmental Work Programme decided to submit a draft order to the Standing Committee, restating the fundamental principles regarding a European civil service which the Assembly has always upheld and instructing the Committee on the Budget and the Intergovernmental Work Programme to continue and extend its work along the same lines.

       I. DRAFT ORDER

1.       The Assembly has always displayed considerable interest in matters concerning the status of Council of Europe staff.

2.       The most recent texts of note include:

i.       Recommendation 944 (1982) on salary negotiation policy in the "co-ordinated organisations";

ii.       Recommendation 1000 (1984) on the European civil service;

iii.       Recommendation 1102 (1989) on the conclusions of the Colloquy on relations between administrations and their staff (national civil services and international civil service) (Trieste, 15-16 November 1988).

3.       The reply by the Committee of Ministers to Recommendation 944 (1982), delayed until 1991, is quite unsatisfactory in that it reduces the right of negotiation as defined in the Social Charter to a plain right of consultation.

4.       In its reply to Recommendation 1000 (1984), the Committee of Ministers states that there might be grounds for seeking a progressive approximation of the "employment conditions" of staff in the European Communities and the Council of Europe; it is regrettable that no progress in this direction has been recorded to date.

5.       The Committee of Ministers has not yet replied to Recommendation 1102 (1989), a text which is truly a cornerstone of the Assembly's work on the subject.

6.       The above-mentioned Trieste Colloquy established that the staff regulations of all international civil services, the Council of Europe included but the European Communities excepted, perpetuate an archaic situation by present-day standards and have not kept up with the development of national civil services as they move towards liberalisation and greater conformity with private sector conditions.

7.       The advancement of a European civil service essentially consists in an effort to encourage the adoption of definite measures to bring the rights of Council of Europe staff into line with those of civil servants in the member countries.

8.       Considering that of all the international organisations, only the European Communities have embodied in their Staff Regulations the social rights secured to the civil servants of democratic countries, it is understandable that the Assembly should look to the Communities as a model, although there is no question of automatic alignment to their solutions.

9.       It is especially urgent that the Council of Europe staff should at long last be granted the right to bargain collectively as set forth in Article 6 of the European Social Charter, one of our organisation's proudest achievements, and likewise that the rights secured to national civil servants by the International Labour Organisation's Convention No. 151 on labour relations in the public service should be extended to them.

10.       Significant efforts must be made as regards legal protection, career arrangements and inter-institutional mobility for Council of Europe staff.

11.       The discrepancy between Council of Europe and Community staff salaries must be constantly watched with a view to possible corrective measures.

12.       For these reasons, the Assembly instructs its Committee on the Budget and the Intergovernmental Work Programme to persevere in its efforts towards the establishment of a European civil service in keeping with the guidelines and considerations put forward in this order and, as a first priority, the establishment of negotiation rights for Council of Europe staff.

       II. EXPLANATORY MEMORANDUM

presented by Mr Speed

TABLE OF CONTENTS

Page

Foreword        5

Recommendation 1102 (1989): cornerstone of the Assembly's

work on the European civil service        5

Recommendation 944 (1982) and the Committee of Ministers'

reply        6

Recommendation 1000 (1984) and the Committee of Ministers'

reply        7

The chief facets of the European civil service        8

In particular: legal protection of Council staff        10

Conclusion        12

Appendix (Memorandum by Mr Speed)        13

Foreword

1.       At its meeting on 20 September 1991 the Committee on the Budget honoured me with the appointment of Rapporteur for the prospects of the European civil service. This assignment, accompanied by very detailed terms of reference, is the upshot of a particularly rewarding discussion. It should be recalled that the committee discussion arises from a vote taken by the Standing Committee at the meeting in Helsinki on 28 June 1991, when an amendment was adopted for the purpose of deleting all reference to the European civil service from the report expressing an opinion on the Council of Europe general accounts and budgets for 1989, 1991 and 1992 (Rapporteur: Mr Eicher). This move alarmed and perplexed all the Budget committee members and in particular the members of the Sub-Committee on the European civil service, as the vote is liable to bring to nought a long and painstaking effort which has led to the adoption of major texts by the Parliamentary Assembly. The Committee on the Budget wishes to satisfy itself that the vote taken in Helsinki is not to be construed as a disavowal by the Standing Committee. It has accordingly decided to draw up a report for submission to the Standing Committee at its meeting in Strasbourg on 26 November 1991 and asked me to be Rapporteur. In particular, my instructions were to reassert in my report the fundamental principles upheld by the Budget Committee regarding the European civil service and to produce a draft order instructing the committee to continue its work along the same lines. It was with personal conviction as to the validity of the views held by the Budget Committee as a whole that I accepted my assignment as Rapporteur.

Recommendation 1102 (1989): cornerstone of the Assembly's work on the European civil service

2.       The Rapporteur feels that Recommendation 1102 (1989), a sequel to the Trieste Colloquy on Relations between Administrations and their Staff (national civil services and international civil service), Trieste, 15-16 November 1988, forms the clearest indication of the key ideas underlying the European civil service concept. This recommendation is truly a cornerstone of the Assembly's work on the subject. It was adopted in the aftermath of a colloquy where the national civil services of the democratic countries and the various international civil services were minutely analysed thanks to contributions by an impressive list of experts and figures with a role in society. As my predecessor Mr Villalonga wrote in his preface to the record of the colloquy, "It is because of this comparison, which has never before been attempted on this scale, that we can endorse the conclusions of Mr Valticos, who stated that the colloquy had 'marked a step forward'". The Assembly has indeed been able to draw conclusions on two essential aspects:

-       comparison with civil servants in the member states. In this context we should remember that the statement by the Chairman of the Committee of Ministers of the Council of Europe in November 1982 at the end of the 71st session to the effect that "the Council of Europe's staff should not be less favourably treated [as regards negotiation] than civil servants in the member states";

-       comparison with the European Communities with the aim of approximating the employment conditions of both institutions' staffs.

3.       The Assembly has made a series of recommendations referring to the various rights and to employment. In this report I shall endeavour to highlight all such aspects constituting the various facets of the "European civil service" concept.

4.       I hasten to point out that the Committee of Ministers has not yet replied to Recommendation 1102 1989. I understand that the reply is in preparation but am eagerly awaiting it in order to pinpoint the future prospects of the European civil service within the Council.

5.       Before coming to grips with the subject, may I recall two other texts pre-dating Recommendation 1102 and forming two important stages in the development of the Parliamentary Assembly's "philosophy" in this matter.

Recommendation 944 (1982) and the Committee of Ministers' reply

6.       In Recommendation 944 (1982) the Assembly addressed the problem of the absence of a right to negotiation for the staff of the co-ordinated organisations1.

      Proceeding from Article 6 paragraph 1 of the Social Charter and the practice of member states, it noted that "in most member countries the right of employees to participate fully in salary negotiations has been firmly established for many years in both the private and the public sector". It deplored on the one hand the fact that this right was not recognised in salary discussions in the co-ordinated organisations and on the other that it did not exist within the co-ordinated bodies responsible for the system of remuneration for the organisation's staff. The Assembly noted the unique situation in the European Communities, whose staff have an effective right of negotiation and considered "that this difference in treatment between the staff of the European Communities and of the co-ordinated organisations further accentuates the gap between them, thus giving rise to two categories within the European civil service". This recommendation long remained the earliest of the Assembly Recommendations to which the Committee of Ministers had not made a final reply (an interim reply was given in April 1983). Only in September 1991 did the Committee of Ministers forward to the Assembly its final reply, contained in a separate document (AS/Bud (43) 9). This reply is far from satisfactory, since the Committee of Ministers merely recalls that in November 1990 it approved Regulations concerning the co-ordination system identical to the text already approved in 1988 by the OECD Council. The recommendation came into force in 1991 after being approved by the supreme bodies of all the co-ordinated organisations. However, in Recommendation 1102, the Assembly severely and pointedly criticised these regulations. In particular, it asked the Committee of Ministers "to reject the plan recently adopted by the OECD Council for reforming the "co-ordinated organisations" system in that it precludes any prospect of the co-ordinated organisations' staff significantly participating in the procedure for fixing and adjusting their remuneration". The Committee of Ministers senses the inadequacy of its reply; after stating that "these Regulations provide for consultation of a Committee of Staff Representatives at the level of the co-ordinated organisations", it adds that "the Committee of Ministers is conscious that this consultation does not go as far as the requests of the Assembly ...".

7.       It may be worth reiterating the distinction - very clearly established by the Trieste Colloquy - between "consultation", "concertation" and "negotiations":

-       Consultation requires that the legal power lies with the person or institution responsible for taking decisions. The person to whom the decisions apply can only give an opinion on the proposed terms thereof. Consultation is viewed in some cases as a procedure which may be optional or compulsory depending on the matters dealt with.

-       Concertation is qualitatively superior to mere consultation of one partner by another; it takes place within bodies comprising representatives of the two parties so as to foster an exchange of opinions between them, the establishment of such dialogue as will facilitate the convergence of their views, and the conclusion of an agreement between them.

-       Negotiation goes still further than concertation, in that it is based on legal equality between the partners and aimed directly at the conclusion of an agreement between the parties concerned.

8.       The conclusions of the Trieste Colloquy clearly revealed that negotiation is now the universal means of determining the conditions of service of civil servants in democratic countries. The bilateral agreements arising from negotiation have two features: firstly, they may not be unilaterally amended; secondly, they can provide a basis for legal action in that each party may apply to a court to ensure their observance. This is the general tendency in the Council of Europe member states, though admittedly there are differences. In Sweden and Denmark, for example, the outcome of negotiation with the trade unions is binding on parliament, whereas in Norway parliament has the last word. In the countries of Western and Southern mainland Europe, contractualisation of collective relations between the public authority and its officials is taking place. The writers of the background study for the Trieste Colloquy on the systems of those countries stated that "employment relations are rubbing off here onto one of the most fundamental elements of the legal system governing the public service".

9.       For the foregoing reasons, it is inescapable that the Council of Europe falls far short of the situation which applies in the national civil services. Is the lag apparent to the Committee of Ministers? The writer is by no means sure. The one positive aspect of the reply to Recommendation 1102 occurs in the final paragraph where the Committee of Ministers divulges that it has "invited the Secretary General to keep it informed of the functioning of co-ordination throughout the trial period of the new Regulation". This is therefore a matter for attentive monitoring, in close liaison with the Secretary General and the staff representatives.

Recommendation 1000 (1984) and the Committee of Ministers' reply

10.       In Recommendation 1000 (1984) the Assembly returned to several problems raised by the system and conditions of salary adjustment for Council of Europe staff and made a step forward in recommending that the Committee of Ministers "establish, in contact with all parties concerned, a European civil service offering a common status to the staff of the institutions and organisations involved in the process of European unification, and inform the Assembly what measures it intends to take to this end".

11.       The Committee of Ministers adopted a final reply to Recommendation 1000 which firstly disclaims the Assembly's position in stating that it would not be possible for the staff of the Communities and the Council of Europe to be given a single set of regulations in the foreseeable future. However, this does not constitute a rejection out of hand. According to the Committee of Ministers, "there might be grounds for seeking a progressive approximation of the employment conditions of the two institutions' staffs, [which] would have to be done with full regard to the differences in nature and procedures between the Council of Europe and the European Communities as well as with regard to the system of the co-ordinated organisations, which is today the focal point for financial matters regarding the Council of Europe's staff ...".

The chief facets of the European civil service

12.       The conclusions of the Trieste Colloquy very plainly showed that the rights of the Council of Europe's staff are by no means aligned to those of national civil servants in the democratic countries. It is especially demoralising to note that the rights of Council of Europe staff are not aligned to the texts which, like the Social Charter in particular, are the pride of the organisation.

13.       Indeed, the Social Charter and the Protocol thereto lay down a number of important principles, namely:

-       the right to bargain collectively (Article 6 of the Social Charter)2;

-       the right to information and consultation (Article 2 of additional Protocol)3;

-       the right to take part in the determination and improvement of the working conditions and working environment (Article 3 of the Protocol)4;

14.       At international level, this development is reflected in Article 7 of ILO Convention No. 151 on labour relations in the public service, which states that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and the public employees' organisations or of such other methods as will allow representatives of public employees to participate in the determination of these matters".

15.       In the Council of Europe, these rights have generally remained ineffectual as far as its staff are concerned, although they have contributed intellectually to their formulation and, by assisting the competent bodies, take part in supervision of their application by the states which have ratified the Social Charter and Protocol.

16.       Against this background, the Assembly has raised a number of specific points:

a.       the introduction of a provision to the effect that at least one of the 21 Staff Committee members is entitled to secondment for full-time performance of his committee functions;

b.       relations between the staff representatives (Staff Committee and Council of Europe Staff Trade Union) and the Committee of Ministers should be enhanced and intensified. In short, they should cease to be exceptional and become the rule;

c.       study the possibility of appointing a mediator (or ombudsman) with responsibility for examining, at a precontentious stage, potential conflicts of interests or of a legal nature;

d.       a conciliation procedure should be introduced as a means of overcoming possible deadlock in negotiations both on wage issues and on the other matters relating to conditions of service.

In particular: legal protection of Council staff

17.       The legal protection of Council staff is a focal point of efforts to promote a European civil service. As the keystone of the legal protection system, the Appeals Board should undergo several improvements as advocated in Recommendation 1102.

18.       If the Appeals Board is to be made the custodian of legality in the organisation it needs to have broader competence, and thus more flexible conditions for the referral of cases. In this respect, the Assembly puts forward two significant reforms which are to a large extent complementary.

      1.       Grant the staff representatives the right to submit cases to the Appeals Board or at least to intercede for the staff as a whole 1in disputes before it involving individual staff members. Currently, the Staff Committee may in fact oppose a decision applying to it or directly endangering its prerogatives, but if it wishes to complain of measures inconsistent with staff rights it can only offer financial, technical or moral support to anyone agreeing to act as spokesman for their colleagues. An arrangement which is often no more than a fiction inconveniencing the staff would therefore be dispensed with.

      2.       Authorise the Secretary General to have the legality of Committee of Ministers decisions verified by the Appeals Board. The Committee of Ministers takes measures whose legality eludes all judicial review unless they are embodied in a decision by the Secretary General. It would therefore be advisable to follow the example of the Communities, where the Commission (acting somewhat as the Secretariat of the European Communities) may refer decisions by the Council of Ministers to the Court of Justice and thereby plays a valuable part in upholding legality.

19.       On the basis of the conclusions of the Trieste Colloquy ably presented by Mr Valticos, who thought that "having good judges is the main problem", the Assembly recommended that the Committee of Ministers ensure "that those members of the Appeals Board who are appointed by the Committee of Ministers offer full guarantees of competence and independence, which implies, amongst other things, that they should not also exercise or have exercised functions that might suggest a lack of impartiality on their part". Of course, since 1981 the Appeals Board has been chaired by a judge of the European Court of Human Rights who, together with his substitute, is elected by the Court. Clearly, this innovation has not only bolstered the authority of the institution but has also enhanced its independence. However, the Appeals Board's independence and impartiality are threatened by impending "diplomatisation" of the functions of two other judges.

20.       To speak plainly, measures must be taken against Appeals Board appointment for members who have carried out their governments' instructions for several years and been regarded by the staff as their "employer", or who are direct colleagues of the Permanent Representatives stationed in Strasbourg. There are several possible ways of averting the risk of "diplomatisation" and building the staff's confidence in a body which represents the ultimate surety for their rights: election by the Parliamentary Assembly on nomination by the Committee of Ministers; election of one member by the Committee of Ministers and of the other by the Staff Committee; election by the European Court of Human Rights from within or outside it, etc.

21.       These are intended simply as future lines of enquiry for our committee, and the possibility of appeal likewise. The Communities in fact have a court of first instance whose competence embraces the settlement of disputes between a staff member and one of the institutions. Its judgments are appealable before the Court of Justice. Thus Community staff are now covered by a twofold jurisdiction. The same could apply at the Council of Europe if the member states agreed to give the European Court of Human Rights authority to review Appeals Board decisions. This is only an idea put forward to stimulate future debates on the subject. These ideas as a whole show that the concept of a European civil service is not static but evolutive and that many further useful lessons could be learned from ongoing comparison between the rights of Council staff, the rights of civil servants in the democratic countries and the rights of European Communities staff.Conclusion

22.       The move to create a European civil service basically signifies an effort to bring the rights of Council staff into line with the rights of civil servants in the member countries. Yet of all the international organisations, only the European Communities have succeeded in adapting their staff regulations to the demands of social progress by incorporating the social rights secured to civil servants in other democratic countries. In so doing, they have adapted national civil service arrangements to the imperatives typifying the structure and decision-making processes of the international organisations. It is therefore perfectly natural that the Assembly should long have regarded the European Communities as an example worth following. It should be stressed that there is obviously no question of an automatic imitation of the Community provisions. Rather, they should be used as a guide so as to select only those best suited to the Council of Europe method of working. One such area is the right to bargain collectively set forth in Article 6 of the European Social Charter, a right relating to working conditions as a whole and also to salary problems. Another is the legal protection of staff, on which subject the writer has endeavoured to draw conclusions taking account of the fact that of all the international organisations, only the European Community has set up an internal protection system which has twofold jurisdiction and offers all requisite guarantees of impartiality and professionalism. There are many other examples, but here I need only mention the problem of careers which is under very detailed investigation by the Sub-Committee on the European civil service. Only when all these problems are solved will it be possible to look at the actual conditions of an inter-institutional mobility which for the time being is just wishful thinking.

23.       The problem of Council of Europe staff salary rates compared to those of the European Communities is not the most pressing problem among the matters of principle mentioned in this report, but deserves rational consideration. A crucial fact which should immediately be stressed in this connection is that despite the very significant salary differences which worsened as from 1 July 1991 when the emergency levy on Community salaries was discontinued, the Council of Europe staff have shown considerable reserve in this connection whenever the Committee on the European civil service has met their Staff Committee or trade unions. For some years now, no demands for alignment to the Community rates have been put forward by the staff. The re-emergence of such demands at the initiative of the staff or of the Secretary General will require the sub-committee and the full committee to consider them in the light of the principles which they uphold and which are summarised in this report.

24.       My conclusion, which I invite the Standing Committee to support by adopting the draft order accompanying this report, is that our committee's efforts should continue for the benefit of the organisation as a whole and for the sake of its internal coherence and smooth operation.

A P P E N D I X

Memorandum prepared by Mr Speed, Rapporteur

      Further to the discussion which took place at the meeting of the Committee on the Budget and the Intergovernmental Work Programme on 22 October 1991, I think it is worth making a number of points which may throw some light on the important issue which concerns us, with a view to the adoption of the report, scheduled for the first week in February 1992.

A.       The Council of Europe and the European Community share the basic principles of a European civil service: permanence, independence and competence

      If the Assembly is looking to the European Communities as a model, even though "there is no question of automatic alignment to their solutions", it is not only for the reasons set out in paragraph 8 of the draft order, but also on account of the following considerations:

i.       Both the Council of Europe and the European Community base their civil service on three principles, which our Assembly has often had the occasion to highlight: permanence, independence and the competence of the civil servants. Other international organisations, whether at world level (the United Nations and others) or at European level (EFTA, for example), have wholly or partly abandoned the principle of permanence and opted for a body of civil servants consisting of national civil servants seconded to the organisation for a period of time. In such circumstances, the second principle - that of independence - is jeopardised. How, in such circumstances, can a civil servant be independent of his or her national government? The practice in international organisations over the last two decades reveals a dangerous trend, which is undermining the independence of international civil servants. Even though this independence is enshrined in the organisation's statute, it is in practice drained of its content, at least in part. The European Community and the Council of Europe are a fortunate exception to this trend: the fact that the Secretariat is independent of member states and national interests and the fact that the civil servants are permanent members of staff can be considered to constitute two of the three pillars of the European civil service (the third being competence).

ii.       The structure of the Council of Europe is more similar to that of the European Community than to that of other international organisations, particularly because it includes a Parliamentary Assembly. The Council of Europe staff have, in the Assembly, an attentive, active interlocutor that is lacking in other international organisations. Community civil servants have the same type of interlocutor in the European Parliament.

B.       The European civil service is an established concept

      As far as I am concerned, there can be no question of abandoning the concept of a "European civil service". The Budget Committee has devoted a considerable proportion of its discussions to this concept and has set up a Sub-Committee on the European civil service, of which I am Chairman. It instigated a very large number of instruments (recommendations and resolutions) in which the Assembly strongly supported the concept and principles of a European civil service.

      In its reply to Recommendation 1000 (1984), the Committee of Ministers endorses the concept of a European civil service, interpreting it as a desire to bring the terms of employment of the staff of the two institutions progressively into line. In other words, the Committee of Ministers sees the concept of a European civil service as a viable one - an important step as far as the Assembly is concerned - if two conditions are met:

i.       The concept does not mean giving the staff of the Community and the Council of Europe the same status in the foreseeable future;

ii.       The co-ordinated organisations system remains the reference framework for financial matters concerning Council of Europe staff.

C.       The co-ordination system should be improved and not

rejected

      It would be senseless to try and establish a system for fixing salaries that is specific to the Council of Europe. Such a system necessitates statistical tools and labour market surveys, which in themselves require the appointment of a body of civil servants to monitor such trends from day to day and carry out the necessary calculations. Such is the case at the United Nations and the European Community. That is also why the six co-ordinated organisations all rely on an Inter-Organisations Section (based in Paris and employing about fifteen people) for work of this kind. It would be extremely expensive for the Council of Europe to set up a similar system and it would be inappropriate to take decisions concerning salaries without such resources. It is therefore only natural that the Committee of Ministers should - if it does not want the Council of Europe to join the Community system - insist that the Council of Europe remain in the co-ordinated organisations system. Our Committee is currently considering a reform of the co-ordination arrangements. We hope to be able to improve the system and are allowing ourselves three years in which to do so. The idea is to incorporate the principles of negotiation in the system and we must therefore work towards this end. It is also important to ensure mobility for the Organisation's civil servants, so that they can move to the other co-ordinated organisations, which offer similar pay. If the Council of Europe lost this link with the co-ordinated organisations, mobility between institutions, which unfortunately already leaves something to be desired, would be severely affected.

D.       Salary levels affect the independence of European civil servants

      The staff of the European institutions comprises civil servants who are independent of their countries of origin and who work in the joint interest of all the countries concerned. Some government delegates have set themselves the objective of reducing staff pay (whether in the Community or in the co-ordinated organisations). The result would be that the status of European civil servants would become less attractive; fewer and fewer people would choose to leave their country to come and work in Strasbourg (or, in the case of the Community, in Brussels or Luxembourg), and national governments would second staff of their choice to the European institutions. In fact this process has already begun - it started a few years ago. There are many national experts and civil servants in the Commission of the European Communities. In addition to their national salary, these experts receive special-assignment allowances such that their overall level of pay is at least equal to the salary of a European civil servant. Such a system cannot ensure the required independence.Committee responsible for the report: Committee on the Budget and the Intergovernmental Work Programme.

Budgetary implications for the Assembly: None.

Reference: Standing mandate.

Draft order: Adopted by the committee on 6 February 1992 by 12 votes in favour, none against and 1 abstention.

Members of the committee: MM. Oehler (Chairman), Parisi (Alternate), Mrs Haglund (Alternate) (Vice-Présidents), MM. Bender, Biefnot, Cox (Alternate: Parry), Mrs Err, Mr Fahey, Mrs Gjřrv, Mr Gunnarsson, Mrs Hacklin, MM. Jürgens, Maass, Manzolini, Martinez, Martins, Meimarakis, Mrs Özver, Mrs Persson, MM. Pini, Psaila Savona, Rowe, Sinesio, Steiner, Strimitzer, Ternak, Thoft, Thyraud (Alternate: Lemoine).

N.B.: The names of the members who took part in the vote are underlined.

Secretary to the committee: Mr Palmieri.

1 1       NATO, OECD, ESA, WEU, European Centre for Medium-Range Weather Forecasts and Council of Europe.

2 2       "With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: