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Doc. 8554

1 October 1999

Negotiating rights of Council of Europe staff

Report

Committee on the Budget

Rapporteur : Lord Ponsonby, United Kingdom, Socialist Group

Summary

The Council of Europe's Parliamentary Assembly has addressed the issue of the negotiating rights of Council staff on several occasions and made recommendations on this subject to the Committee of Ministers.

The Assembly's pronouncements have not yet led to any progress in this area. In particular, the following problems are still outstanding:

Three main proposals are put forward with regard to fields other than salaries, namely:

a.       the Secretary General and staff representatives might consider introducing on a trial basis a negotiation procedure modelled on that in force at the European Space Agency (ESA) and adapted to the specific structure of the Council of Europe. For this purpose, the ESA's practical experience of the system and the goals achieved through its use would also need to be analysed and taken into account;

b.       the representatives of the staff should be invited by the Committee of Ministers to a kind of annual colloquy similar to that held in OECD between its Council, at Ambassador level, and the heads of the Staff Association;

c.       the Rapporteur Group on Administrative and Budgetary Questions should introduce routine informal exchanges of views with staff representatives (elected officers of the Staff Committee and delegates of the Staff Trade Union and the European Civil Service Federation (FFPE).

In the area of salaries, the following proposals concerning the co-ordination system are put forward:

a.       reform of the Chairmanship of the CCR;

b.       the granting of voting rights to the representatives of the Secretaries General and the staff;

c.       the introduction of conciliation machinery.

The proposals set out below are also intended to prevent a deterioration in labour relations which would be detrimental to the sound management and smooth running of the Organisation.

I.       Draft recommendation

1. The Parliamentary Assembly of the Council of Europe has on several occasions made recommendations to the Committee of Ministers concerning the negotiating rights of Council of Europe staff, particularly in Recommendations 944 (1982) on salary negotiation policy in the "Co-ordinated Organisations"; 1000 (1984) on the European civil service; and 1102 (1989) on the conclusions of the Colloquy on Relations between Administrations and their Staff (national civil services and international civil service).

2. The Assembly regrets that these recommendations have not yet led to any significant progress.

3. In particular, the following problems are still outstanding:

i.       the granting to Council of Europe staff of the rights embodied in Article 6 of the European Social Charter (right to bargain collectively) and in Articles 2 (right to information and consultation) and 3 (right to take part in the determination and improvement of working conditions and the working environment) of the Additional Protocol thereto;

ii.       the application to Council staff of the rights set forth with regard to national civil servants in the ILO Labour Relations (Public Service) Convention (No 151).

4. It is important first of all to differentiate between negotiation and two similar concepts, namely consultation and concertation:

i.       consultation implies 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 being dealt with;

ii.       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 a dialogue such as to facilitate the convergence of their views, and the conclusion of an agreement between them;

iii.       negotiation goes still further than concertation in that it is based on legal equality between the partners and aims directly at the conclusion of an agreement between the parties concerned.

5. There is also a need for separate consideration of the area of salaries, in view of the Council of Europe's participation in the "co-ordination" system, and other fields which come under the Organisation's internal law.

6. The Council of Europe's Staff Regulations lay down procedures for consultation and concertation between staff and their employer, but make no provision for negotiation in the strict sense.

7. Relations between the Committee of Ministers and staff are rather limited and of a sporadic nature, as may be seen both from the texts in force and from actual practice.

8. The Assembly recalls that the implementation of procedures for consultation, concertation and negotiation is a guarantee of the Organisation's smooth running and efficiency since such procedures, which are in the mutual interest of the staff and the Organisation, enable the former to express an opinion on their working conditions and the latter to be informed about the needs and views of the staff whom it is called upon to administer.

9. In order to improve the present situation, a realistic approach demands that account be taken of the experience of other international organisations. In particular, the procedures devised at the European Space Agency have produced significant results in the field of labour relations and reflect a progressive approach to relations between the Head of the Secretariat and the staff.

10. Whereas in all democratic regimes employees take part in salary negotiations with employers on an equal footing, under the "co-ordination" system relations between the government representatives on the Co-ordinating Committee on Remuneration (CCR) and the staff representatives on the Committee of Staff Representatives (CRP) do not go beyond the consultation stage.

11. The latest decisions of the Councils of the co-ordinated organisations, adopted following proposals from the CCR, have created the conditions for de facto "de-co-ordination" between the six organisations participating in the system, particularly through the introduction of an "affordability" clause and the failure to adopt a salary adjustment method worthy of the name.

12. It is regrettable, moreover, that neither governments nor the representatives of the Secretaries General have devoted the requisite attention to the goal of staff mobility between the six organisations.

13. Despite these limitations, there is no valid alternative to Council of Europe participation in the co-ordination system if salary decisions are to be based on in-depth, up-to-date studies of pay policies in the member states and in other groups of international organisations, as well as in the European Union.

14. In the light of the above considerations, the Assembly recommends that the Committee of Ministers:

i.       urge the Secretary General and staff representatives to consider introducing on a trial basis a negotiation procedure modelled on that in force at the European Space Agency (ESA) and adapted to the specific structure of the Council of Europe. For this purpose, the ESA's practical experience of the system and the goals achieved through its use should also be taken into account;

ii.       invite the representatives of the staff to an annual colloquy similar to that held at OECD between its Council, at Ambassador level, and the heads of the Staff Association, while devoting the necessary time to this matter and endeavouring to establish a genuine dialogue with the staff representatives;

iii.       repeat this exercise on an ad hoc basis when exceptional circumstances so require;

iv.       submit proposals for a reform of the regulations concerning the co-ordination system in accordance with Article 7 in fine thereof, including in particular:

a. efforts to reform the Chairmanship of the CCR in order to ensure that it is fully impartial, by providing in particular for it to be held by a person chosen by mutual agreement between the three parties (representatives of governments, the Secretaries/Director-General and staff);

b. provision for decisions in the co-ordination system's fields of competence to be taken by new bodies bringing together the three existing ones, in which the Committee of Representatives of the Secretaries/Director-General (CRSG) would have two votes and the Committee of Staff Representatives (CRP) one vote;

c. the introduction of conciliation machinery based on that existing in the European Communities, for sensitive issues and cases of serious disagreement, in order to resolve major conflicts and prevent legal disputes.

II.        Explanatory memorandum by the Rapporteur

Contents

I.       The issue

II.       Negotiation in statutory fields other than salaries

B.        Proposed reforms

III.       Salary negotiation

B.        Proposed reforms

IV.       Concluding remarks

1. THE ISSUE

1. The Council of Europe's Parliamentary Assembly has addressed the issue of the negotiating rights of Council staff on several occasions and made proposals on this subject to the Committee of Ministers (see in particular Recommendation 944 (1982) on salary negotiation policy in the "Co-ordinated Organisations"; Recommendation 1000 (1984) on the European civil service; and Recommendation 1102 (1989) on the conclusions of the Colloquy on Relations between Administrations and their Staff (national civil services and international civil service).

2. The Assembly's pronouncements - which, moreover, have focused almost exclusively on salary negotiation - have not yet led to any progress in the area of the staff's right to negotiate. In particular, the following problems remain outstanding:

3. The failure to grant these rights is deplorable not only from the political point of view and that of sound administration, but also from the legal point of view. In this connection, it should not be forgotten that the Council of Europe's Appeals Board (which later became the Administrative Tribunal) held that the principles contained in the Organisation's most important conventions were applicable to its internal law (where the European Social Charter is concerned, see the Appeals Board's decision on appeals nos 52-75/1981 (Farcot & others v. Secretary General)). The Appeals Board also explicitly recognised the existence of a right of negotiation for Council of Europe staff in the decision on appeals nos 101-113/1984 (Stevens & others v. Secretary General).

4. To enable the Organisation to progress towards a solution to this problem, it seems appropriate to deal separately with salary negotiation and negotiation in other fields.

5. For the sake of clarity, the first step should be to define the exact scope of three terms which are often confused, namely consultation, concertation and negotiation in the strict sense.

6. It emerges from the Assembly's past work, and in particular the Colloquy on Relations between Administrations and their Staff (national civil services and international civil service) (Trieste, 15-16 November 1988) (hereinafter "Trieste Colloquy"), that these three terms may be defined as follows:

7. In the following sections we shall first review the current position with regard to negotiation both in statutory fields other than salaries and in the area of salaries. It will be easy to see that while the right to consultation is well established everywhere, machinery for concertation is uncommon and negotiation procedures are lacking. In formulating our proposals we shall therefore bear in mind the magnitude of the task to be accomplished in order to establish a real right of negotiation comparable to that which is afforded to national civil servants, and we shall endeavour to adopt a realistic attitude, preferring small, practical steps to rather unrealistic large-scale plans which would be likely to leave the situation at the Council of Europe unchanged.

8. The division of the subject into two parts stems from a precise legal fact: for all matters relating to salaries, allowances and pensions, the Council of Europe belongs to the "co-ordination" system, whereas it is free in all other areas to introduce specific procedures for consultation, concertation and negotiation.

II. NEGOTIATION IN STATUTORY FIELDS OTHER THAN SALARIES

Current position

9. The Council of Europe Staff Regulations lay down procedures for consultation and concertation between staff and their employer. It might be more accurate to talk about employers in the plural since the Organisation's staff - in common with the staff of most other international organisations - come both under the authority of the Secretary General, who is head of the Secretariat, a pyramid-shaped bureaucratic structure, and under that of the Committee of Ministers, a decision-making body with legislative and regulatory powers. While the machinery for consultation and concertation in the context of the staff's relations with the Secretary General is quite highly developed, as we shall see, provision for relations between the staff and the Committee of Ministers is incomplete, not to say embryonic. This is a point on which imaginative and innovative solutions are called for.

10. As regards first of all the staff's relations with the Secretary General, certain principles are set forth in the Staff Regulations, whose appendices include a set of "Regulations on Staff Participation" (this is the first of 11 appendices). These regulations include an Article 7 on relations with the Committee of Ministers. We shall return to this provision below.

11. The implementation of consultation and concertation procedures is also a guarantee of the Organisation's smooth running and efficiency, as such procedures are in the mutual interest of the staff and the Organisation. It is important for the former to be able to express an opinion on their working conditions, and for the latter to be informed of the needs and views of the staff whom it is called upon to administer.

12. The General Meeting of Staff is the forum in which all staff members are entitled to express their opinions, in particular on their conditions of employment and work. The Staff Committee is the General Meeting's executive body. Staff representatives are elected by the staff. Staff members who have been in post for at least six months are entitled to vote; those who have been in post for at least one year are entitled to stand for election. The members of the Staff Committee enjoy certain statutory guarantees. In particular, it is specified that the duties which they perform in this context are considered as part of their work and that they may not suffer any disadvantage as a result of the performance of these duties.

13. The Staff Committee represents and defends the professional and welfare interests of the staff, and provides them with a channel for the expression of their opinions. It should be noted that, at the Council of Europe, the Staff Committee "may also defend the interests of retired staff and other beneficiaries of the Pension Scheme" (Regulations on Staff Participation, Article 4, para 1).

14. The Council of Europe also has two trade unions set up under Article 47 of the Staff Regulations, which recognises the right of staff members to associate and to belong to trade unions or professional organisations.

15. Although the two trade unions (the European Civil Service Federation - FFPE - and the Council of Europe Staff Trade Union - SACE) are not statutory bodies, their representatives are involved in most consultations on conditions of employment and work.

16. It should be noted that the situation at the Council of Europe, as in the other co-ordinated organisations, differs from the situation in the European Union, where the European Commission took a decision in 1974 on union recognition and signed an agreement with the trade unions under which they were given a role in decision-making on staff matters. It should also be noted that, in the European Union, the trade unions and professional organisations are recognised as legal entities and, subject to certain conditions, may institute proceedings before the court of first instance and the Court of Justice, whereas, in the Council of Europe, only the Staff Committee is recognised as having legal personality and the right to take proceedings, not the trade unions as such.

17. The Staff Committee has inter alia a power of initiative and a right to be consulted. As regards its power of initiative, the Regulations on Staff Participation explicitly confer on it the power to propose either amendments to texts concerning the staff or the adoption of new provisions. Here, a distinction must be drawn between texts coming under the Secretary General's discretionary power and statutory texts and regulations, which fall within the competence of the Committee of Ministers.

18. Where the former are concerned, "the Staff Committee may propose (to the Secretary General) any draft implementing provisions relating to the Staff Regulations, as well as any measures of a general nature to be taken by him or her concerning the staff" (Article 5, para 2).

19. Where statutory provisions and regulations are concerned, the Staff Committee may submit to the Committee of Ministers, through the Secretary General, any proposal for alteration or amendment of the Staff Regulations, or implementing regulations, and any proposal for the adoption of new regulations.

20. Consultation may be mandatory or optional.

21. The Secretary General is obliged to seek the Staff Committee's opinion on any draft provision for the implementation of the Staff Regulations. Consultation is optional, however, in the case of any other measure of a general kind concerning the staff. Consultation between the Secretary General and the Staff Committee is again mandatory in the case of any draft that either intends to submit to the Committee of Ministers.

22. It is important to note that the Staff Committee's opinions are by no means binding on the Secretary General.

23. The staff also play a role on certain very important bodies in the area of staff management:

-       the Bureau of the Appointments Board, which is responsible for ensuring observance of the relevant provisions, convenes the Transfers and Promotions Panel and supplies the Secretary General with an opinion on the choice of appointment procedure. The Bureau must consult a staff member "duly appointed by the Staff Committee" before taking its decision. In practice, the Staff Committee participates in the meetings of this body in an advisory capacity.

-       the Recruitment Panels and Transfers and Promotion Panel. These bodies include, as appropriate, one or two staff members appointed by the Staff Committee.

24. In addition, the staff are represented on the Disciplinary Board, which has to be consulted by the Secretary General before he or she can take the most serious disciplinary measures against a staff member. They are also represented on the Advisory Committee on Disputes, a joint body to which complaints may be referred either on the Secretary General's initiative or on that of the complainant, after an administrative complaint has been lodged and before the matter is referred to the Administrative Tribunal.

25. The Council of Europe's Joint Committee deserves a special mention. Since it comprises equal numbers of representatives of the staff and the Secretary General, genuine concertation is possible between the two sides. The opinions of the staff are not simply "heard" by the Administration but are examined and discussed, with both sides giving their views. The Joint Committee met recently in connection with the changeover to a private social insurance scheme and gave a detailed opinion on this question. The Joint Committee is provided for in Article 9 of the Staff Regulations5.

26. However, the fact that the Joint Committee's opinions, ie the conclusions reached jointly by the representatives of the staff and the Administration, are not binding on the Secretary General detracts to some extent from their concerted nature.

27. Relations with the Committee of Ministers are governed by Article 7 of the Regulations on Staff Participation. Under this provision: "(1) the Staff Committee may communicate to the Committee of Ministers any proposal on the matters referred to in Article 6, paragraph 1; (2) the Committee of Ministers may consult the Staff Committee in the most appropriate manner in any proceedings relating to the matters referred to in Article 6, paragraph 1; (3) any written communication or written consultation between the Committee of Ministers and the Staff Committee shall take place through the Secretary General. Oral consultations shall be held in his or her presence; (4) documents drafted by the Staff Committee for the Committee of Ministers shall be transmitted by the Secretary General within one week of his or her receiving them".

28. Relations between the Committee of Ministers and the Staff Committee are therefore viewed in terms of written or oral communication taking place through the Secretary General or in his/her presence, as the case may be. Pursuant to this provision, a number of Staff Committee documents have been submitted to the Committee of Ministers over the years, and it has granted hearings to the Chair of the Staff Committee or to small Staff Committee delegations.

B. Proposed reforms

29. The limitations of the system existing at the Council of Europe have emerged throughout the above description: the legal framework remains one of consultation. One cannot speak of any real staff negotiation with either the Secretary General or the Committee of Ministers. How is this inherently unsatisfactory situation to be improved?

30. We feel that a realistic approach would be to draw on the experience of other international organisations. Negotiating rights are at a far more advanced stage in the European Space Agency. The procedure, which came into force in August 1985, provides for the setting up of negotiating bodies composed of representatives of the Administration and the staff.

31. It should be borne in mind that the European Space Agency has its headquarters in Paris and three establishments (Darmstadt in Germany, Frascati in Italy, and Noordwijk in the Netherlands). Under the procedure, there is provision at both local and central level for negotiating bodies composed of representatives of the Administration and the staff. The local joint committees (one for each establishment) deal with local conditions of employment and work. Matters relating to the conditions of employment or other concerns of the staff as a whole, or a group or category, may be referred to the Central Joint Committee. The Central Joint Committee is chaired by the Director-General or his/her representative, the local joint committees by the heads of the respective establishments. Each committee endeavours to reach a consensus on the matters under discussion. In practice, joint working groups are set up for important issues in order to arrive at a detailed understanding of the different points of view and find common ground. When the relevant joint committee has reached a consensus, the Director-General takes the corresponding decision or proposes a draft amendment or measure to the body competent to take the decision. Should the Central Joint Committee fail to reach a consensus, the procedure continues and negotiations are undertaken within a Joint Panel.

32. This body comprises two members and two alternates appointed by the Director-General and two members and two alternates appointed by the Central Staff Committee. The Chair is appointed by the Director-General from among the members of the Joint Panel. The Joint Panel must submit its conclusions to the Central Joint Committee, which examines them and endeavours to reach a consensus on the matter.

33. If the Central Joint Committee reaches a consensus, the matter is referred to the body competent to take the decision. In the case of an amendment to the Staff Regulations, for example, that body is the Council. Amendments to the Staff Rules have to be approved by the Administrative and Financial Committee.

34. However, if, after the Joint Panel's opinion has been given, the Central Joint Committee still fails to agree on a draft amendment submitted by the Director General, the draft in question is referred to a Conciliation Board.

35. The Conciliation Board comprises six members, who must be conversant with the running of international organisations, staff relations, labour legislation, financial and budgetary management etc. They are appointed by the Central Joint Committee, if possible by consensus. The members of the Board are independent: they may neither be ESA staff members nor belong to a member state delegation. The Board meets in camera and its deliberations are secret. It draws up a report containing its proposals for a solution. The report is adopted by a majority and each member may append his or her individual opinion thereto.

36. The Board's report is submitted to the Joint Central Committee. Should the latter fail to reach a consensus after examining the Board's report, the Director General may propose to the competent body his/her draft amendment to the Staff Regulations or Rules. He/she also forwards to them the comments of the Central Staff Committee and the Conciliation Board's report. If no consensus is reached under the same circumstances on a draft amendment to the Instructions, the Director General may promulgate the amendment, setting out his/her reasons. He/she forwards a statement of these reasons to the Central Staff Committee.

37. The procedure provides an excellent framework for negotiation between the Administration and staff of the European Space Agency. Matters are usually settled in the Central Joint Committee. The Joint Panel and the Conciliation Board serve mainly as a safety net.

38. On the basis of the above information and comments, we feel that it is possible to put forward two proposals concerning on the one hand relations between the Secretary General and staff representatives, and on the other, relations between staff representatives and the Committee of Ministers.

(a) The Secretary General and staff representatives might consider introducing on a trial basis a negotiation procedure modelled on that in force at the ESA and adapted to the specific structure of the Council of Europe. For this purpose, the Agency's practical experience of the system and the goals achieved through its use should also be analysed and taken into account.

(b) The representatives of the staff should be invited by the Committee of Ministers to a kind of annual colloquy similar to that held in OECD between its Council, at Ambassador level, and the heads of the Staff Association. The Committee of Ministers should devote the requisite time to such a colloquy and endeavour to engage in dialogue with the staff representatives rather than merely listen to their views. The exercise could of course be repeated on an ad hoc basis when exceptional circumstances so required, and would on no account rule out the submission of documents and written proposals to the Ministers' Deputies.

39. In addition, the Rapporteur Group on Administrative and Budgetary Questions (GR-AB) should introduce routine informal exchanges of views with staff representatives (elected officers of the Staff Committee and representatives of the trade unions, namely Staff Trade Union and European Civil Service Federation).

III.        SALARY NEGOTIATION

A. Current position

40. In any democratic system, employees take part in salary negotiations on an equal footing with the employer. This is the case in the private sector and in the civil services of the Council of Europe member states. It can rightly be said - as did Professor Ortega of the University of Castilla La Mancha (Spain) at the Trieste Colloquy - that negotiation (collective bargaining) has become the general rule for fixing civil servants' working conditions. Negotiation results in bilateral agreements. These have two main characteristics:

41. At the Trieste Colloquy, national rapporteurs outlined the situation in their respective countries. It emerged that in Sweden and Denmark the results of negotiation with the trade unions are binding even on Parliament, whereas Parliament has the final say in Norway. In the countries of western and southern mainland Europe, a contractualisation of collective relations between the public authority and its officials is taking place.

42. As Belgian constitutional lawyer Delpérée pointed out, this contractualisation is becoming a fundamental element of the legal system governing the public service.

43. Within the co-ordination system, the situation is quite different. It should be noted that this system comprises the following six international organisation: European Space Agency (ESA), Organisation for Economic Co-operation and Development (OECD), Council of Europe, Western European Union (WEU), North Atlantic Treaty Organisation (NATO), and European Centre for Medium-Range Weather Forecasts (ECMRWF).

44. As regards the operation of the co-ordination system, it should be remembered that the regulations provide for three bodies: the Co-ordinating Committee on Remuneration (CCR), the Committee of Representatives of the Secretaries/Director-General (CRSG), and the Committee of Staff Representatives (CRP). The three committees are far from being on an equal footing. The CCR makes recommendations to the co-ordinated organisations' governing bodies, while the other two committees merely have the right to be consulted. In particular, Article 5(e) of the Regulations provides as follows: "Before the CCR makes its recommendations, it shall meet jointly with the CRSG and the CRP to discuss the proposals. The Chairman of the CCR shall preside over joint meetings". In addition, Article 5(d) is careful to point out that the CRSG's proposals relating to matters which fall within the competence of the CCR must be submitted to the CCR "after consultation with the CRP" and be "accompanied by any comments and views of the CRP".

45. It is important first of all that there should be no doubt about the meaning of "co-ordination", which has become an increasingly relative concept over the years. When the co-ordination system was set up in 1958, initially on an entirely informal basis, and a Co-ordinating Committee of Government Budget Experts (CCG) was established, the aim was to provide international civil servants in post in Europe (other than those coming under the European Communities and the United Nations system) with uniform conditions of employment, both for reasons of fairness and with a view to harmonisation of the international civil service. The intention was of course commendable. Among other things, it is clearly in the interests of international civil servants themselves and of the organisations which employ them to aim for a high degree of mobility. It should be possible for staff to move to another international organisation without facing any obstacles or hindrances due to differences of treatment. Unfortunately, this aim has only been partially achieved, although the lack of relevant statistics is regrettable.

46. With time, people have tended to lose sight of this initial aim. In the first instance, neither the government experts nor the representatives of the Secretaries-General have devoted the requisite attention to the issue of inter-institutional mobility. Apart from a very basic information system limited to the advertising of vacancies in other international organisations, there are no special arrangements for encouraging mobility. For example, it would have been possible, and indeed desirable, to introduce selection procedures involving several stages: staff of one of the co-ordinated organisations could have been allowed to apply, on an equal footing with internal candidates, for posts thrown open to internal competition in another co-ordinated organisation; or arrangements could have been made for a second competition open only to officials of the co-ordinated organisations in the event of the first competition having failed to produce a positive result.

47. However that may be, the centrifugal tendencies within the co-ordination system have been exacerbated by conflicting decisions.

48. It is a well-known fact that each of the co-ordinated organisations has an administrative court of its own, known as Administrative Tribunal at the Council of Europe and OECD, and Appeals Board in the other co-ordinated organisations. These courts are totally independent from one another, and have issued conflicting decisions at quite an alarming rate over the last 15 years. The inconsistencies have arisen as a result of the decisions handed down on "collective disputes", ie actions through which the staff of the co-ordinated organisations have sought to prevent a deterioration of their salary conditions.

49. Some of these cases are outlined below.

50. In 1983 the CCG's 191st Report introduced a temporary levy on the salaries of A and L-grade staff. The legality of the levy was challenged by staff members - with the backing of the respective staff associations and committees - before the Appeals Boards of the Council of Europe, OECD, NATO and the ESA. Only the Council of Europe's Appeals Board declared the levy to be illegal, in its decision of 15 May 1985 (Appeals nos 101-11/1984), whereas the other four Appeals Boards held it to be legal, each relying on different arguments.

51. The 191st Report also substantially altered the system for periodically adjusting the salaries of B and C-grade staff. Unlike the other two Appeals Boards before which cases were brought (those of OECD and the ESA), the Council of Europe Appeals Board declared the appeals lodged by B and C-grade staff inadmissible on the ground that they had not been lodged within the requisite time (decision of 30 April 1986 on appeals 115-58/1985). However, in an important obiter dictum, the Appeals Board stated that the decision did not prevent the statutory bodies from taking steps to avoid any unjustified differences of treatment between staff (cf para 69). In the light of this decision, the Council of Europe's Committee of Ministers refunded to B and C-grade staff, partially at least, the sums which had been deducted following the introduction of the salary adjustment method.

52. The issue of the inclusion of the special deduction known as "inhouding" in calculating the net remuneration of civil servants in the Netherlands was brought before the Council of Europe's Appeals Board and the ILO Administrative Tribunal (the case was brought before the latter by staff members of the EPO, which was one of the co-ordinated organisations at the time). The Appeals Board held the inclusion of the inhouding to be unlawful with regard to the calculation of pension adjustments, but lawful with regard to the salaries of serving staff (decision of 3 August 1987 on Appeals Nos 133-145/11986). However, the ILOAT held the inclusion of the inhouding to be unlawful for both serving and retired staff (Judgment No 936/1988, Geisler No 2).

53. The provisions of the CCG's 254th Report concerning the salary adjustments of B and C-grade staff were brought before three administrative courts: the Council of Europe's Appeals Board, the OECD Administrative Tribunal and the NATO Appeals Board. The first two annulled the decisions appealed against, while the NATO Appeals Board held them to be lawful. The consequence of this is that there are now two salary scales for B and C-grade staff working in France: one applies to OECD and Council of Europe staff; the other, prescribing lower rates, to the staff of the other co-ordinated organisations based in France (ESA, NATO and WEU).

54. Where the Council of Europe is concerned, it is important to note that the Appeals Board criticised the fact that the CCG, in adjusting the salary scales, had taken account of the deductions made in France on the reference remuneration of employees of the "best employers" in the private and public sectors by way of compulsory contributions to the French unemployment insurance scheme. Since there is no such scheme in the co-ordinated organisations, the Appeals Board held that this deduction violated the principle of a proper balance between costs and benefits. The Council's staff were not covered for a risk in respect of which they were required to bear costs without any benefit in return.

55. The issue of the application in January 1997 of the provisions of the 22nd Report of the Co-ordinating Committee on Remuneration (CCR), with particular reference to the "affordability" clause, was brought before the OECD Administrative Tribunal, which gave its decision on 25 June 1997, and the Council of Europe's Administrative Tribunal, which gave its decision on 29 January 1998. The two administrative tribunals gave a uniform interpretation of the applicable texts. However, the decision of the Council of Europe's Committee of Ministers was annulled by the Organisation's Administrative Tribunal on the ground that insufficient reasons had been given in support of it.

56. The conflicting decisions mentioned are a reflection of the serious conflicts existing between the parties to the co-ordination system, and especially between the government representatives and the staff representatives. The introduction of regulations that are not always clear and often of doubtful fairness has damaged the system, and there is currently a risk that this might cause it to "implode".

57. The salary adjustment method currently in force, the 80th Report of the CCR, provides in Article 8 that the CCR may make different recommendations to the Councils of the co-ordinated organisations, and hence recommendations calculated to produce differences in salary scales. This represents a departure from one of the basic assumptions underlying the co-ordination system and its operation, namely the goal of uniformity of treatment between the staff of the co-ordinated organisations. Furthermore, even in the absence of a recommendation from the CCR, the Councils of the various organisations can, subject to certain conditions, apply salary scale increases at different times, eg by postponing them to a later date in the same calendar year. In short, an adjustment scheduled to take effect on 1 January in a given year could, according to a literal interpretation of the provision in question, be postponed to 31 December in the same year.

58. The CCR has thus created the conditions for de facto "de-co-ordination" between the six co-ordinated organisations. At the same time it has dealt a severe blow to the goal of mobility, to which we referred above. The question is now whether there is still any point in maintaining such a complex and cumbersome mechanism as the co-ordination system once the harmonisation of salary conditions has been abandoned.

59. In our opinion, this question can only be answered in the affirmative. The work of adjusting the salaries of the staff of international organisations, determining their allowances and designing an appropriate pension scheme is not something that can be done in a vacuum. On the contrary, this work must be based on reliable technical data. It is for a very good reason that, every four years, the CCR commissions sometimes expensive but nevertheless essential comparative studies of the three "recruitment markets" for international civil servants. These markets are: the private sector, the international civil service, and national civil services, including expatriate national officials. These are complex studies. The services of consultants have to be called upon, and in some cases close co-operation with and between national civil services is necessary. Furthermore, these studies do not obviate the need for constant scrutiny of the pay policies pursued in the member countries of the co-ordinated organisations. For many years now, the principle of parallelism has prevailed. According to this principle, the same economic policies are applied to the staff of international organisations as are applied to the civil servants of a certain number of member states (currently seven "reference" countries). This involves in-depth work, which has to be carried out on a scientific basis by specialists (statisticians, actuaries, economists etc). An "Inter-Organisations" Section has been set up for this purpose at OECD and is financed by each of the co-ordinated organisations on a proportional basis.

60. The abolition of the co-ordination system would mean the disbandment of this section and, of course, would put an end to these studies. As a result, the decisions on these matters would be taken without it being possible to supply the decision-makers with the necessary information. There would thus be a serious danger of reaching superficial, hasty and hence bad decisions. No international system for determining salaries operates in this way: neither that of the United Nations (the UN common system being at least as complex and sophisticated as the co-ordination system), nor that in force in the European Union. The co-ordinated organisations would also represent an exception in a trend towards rationalisation which can be seen throughout the international civil service and which must become established above all in the interest of states and, ultimately, international co-operation. In this connection, it should not be forgotten that a large number of medium-sized organisations (such as the Customs Co-operation Council in Brussels) and small organisations (such as the Rhine Commission in Strasbourg or UNIDROIT in Rome) automatically bring their scales into line with those adopted in the co-ordinated organisations. In this way they comply with the need to take decisions on a sound technical basis without burdening themselves with a study and consultation system of their own, which would be somewhat disproportionate in relation to their means.

61. Furthermore, if the Council of Europe were to abandon the co-ordination system, there would be an urgent need to introduce new negotiation machinery within it, meeting the requirements of the European Social Charter and the Administrative Tribunal's case-law. How could such machinery be set up unless provision were made at the same time for the carrying out of objective scientific studies of the economic situation in the recruitment markets and in national civil services? In any event, such a system cannot be improvised and it would be unreasonable not to draw on the "memory" and experience of the inter-organisations section.

62. Ultimately, the Councils of the co-ordinated organisations were motivated by considerations of this kind when they decided to set up the co-ordination system, and the same considerations now argue in favour of maintaining the system.

Proposed reforms

63. What proposals could be put forward in order to adapt the existing system to the requirements brought out in the introductory part of this report?

64. First of all, the temptation to make rapid, unduly drastic changes must be resisted. It is important to be realistic and bear in mind the general deterioration in labour relations between the staff and governments. The member states - or most of them at least - are not ready for initiatives that are too bold and might seem revolutionary. The Parliamentary Assembly should nevertheless stress that, if the Council of Europe wants to remain true to its role as custodian of the values proclaimed in the European Social Charter, it must not lag behind in this area. The Committee of Ministers might therefore propose a review of the system in accordance with Article 7 in fine of the Regulations concerning the co-ordination system ("after three years of operation of the system, it may be reviewed"), a provision which has never been implemented. The following reforms might accordingly be suggested.

65. Under the Regulations, it is for the Chairman of the CCR to act as "the impartial Chairman of the whole co-ordination process". However, the Chairman of the CCR, who is appointed by the government experts (ie by one of the parties), regularly chairs their committee at the preparatory meetings for the tripartite meetings. From both the theoretical and the practical point of view, this state of affairs is hard to reconcile with the requisite impartiality. It would be more appropriate to provide for the appointment of a person chosen by mutual agreement between the three parties, the CCR, the CRSG and the CRP. It should not be too difficult for the three committees to reach a consensus on a person whose expertise and personal qualities (fairness, mediation skills, discretion etc) are beyond doubt. This solution would not only be viable but would represent a major step forward towards more dispassionate and trusting relations between the three bodies.

66. The CCR currently comprises only the government representatives, each of whom has the right to vote. The representatives of the Secretaries General and the staff take part in discussions in a non-voting capacity. A major step towards negotiation would be the granting of two votes to the representatives of the Secretaries General and one to the staff representatives. The government representatives' supremacy would be unlikely to be challenged since the governments represented normally number around 15, and some 45 are entitled to send representatives. However, the search for a consensus, which is the primary concern of the CCR's Chairman, would make the representatives of the Secretaries General and the staff full partners, in contrast to the current situation.

67. In conclusion, the three committees would continue to exist and to meet separately. However, decisions would be taken within a new body on which all three would be represented and which would be chaired by a genuinely impartial Chairman elected by the three parties.

68. We have drawn attention above to the adverse effects of protracted disagreements and disputes. Objective, constructive co-operation at international level means seeking agreements on the basis of equitable parameters and procedures. In the European Communities, where pay issues have certainly aroused concern in the past (and, recently, have even led to strike action), two "safety valves" have made it possible to overcome the difficulties in relations between the Commission, governments and staff representatives. These two elements are:

69. The introduction of similar conciliation machinery for cases of serious disagreement might prove very useful for resolving major conflicts, or indeed "political" conflicts, between the three parties represented on the co-ordinating bodies, and for preventing legal disputes.

70. In difficult cases, the conciliator's report would therefore replace the Chairman's report provided for in Article 5(h) of the current regulations ("in the event that no consensus has been reached after an item has been examined at three joint meetings of the CCR, the Chairman shall submit his report to governing bodies on the different views expressed in the CCR, outlining as far as possible the broad lines of consensus").

IV. CONCLUDING REMARKS

71. As we saw in the introduction to this report, the progress made by the Council of Europe in this important field has been negligible since the Parliamentary Assembly drew attention to it in Recommendation 944 (1982). Furthermore, there are currently tensions within the co-ordination system owing to restrictive policies and practices in this field, which sometimes go so far as to render consultation meaningless (when, for example, the government experts reach an agreement at their private meetings which is then submitted on a purely formal basis to the representatives of the Secretaries General and the staff). As a result, the latter are aware of being less and less able to influence the decisions which will be made and feel driven to take strong action (such as the half-day strike to protest against the threat to pensions). The proposals contained in this report are also intended to remedy this situation and ultimately prevent a deterioration in labour relations which would be detrimental to the sound management and smooth running of the Organisation.

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Reporting Committee: Committee on the Budget

Budgetary implications for the Assembly: none

Draft recommendation unanimously adopted by the committee on 22 September 1999

Members of the committee: MM Goovaerts (Chairman), Koulouris (Vice-Chairman), Aleffi, Anusz, Begaj, Ms Belohorska, MM Bojars, Bordas, Bulic, Buwitt, Caceres, Calin, Debono Grech, Duivesteijn, Gill, Graas, Gregory (Alternate: M. Kiely), Ivanov, Ms Jäger, Karlsson (Alternate: M. Linzer), MM Kittis, Lento, Lotz, Ms Luhtanen, MM Luis, Matvienko, Naydenov, Oorzhak, Plattner, Lord Ponsonby, MM Rise, Rupar, Sakvarelidze, Schreiner, Soendergaard, Ms Stanoiu, MM Svoboda, Telek, von der Esch, Zhirinovsky.

N.B. The names of those members present at the meeting are printed in italics

Secretary to the committee: Mr Stefano Bertozzi

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

1. to promote joint consultation between workers and employers;

2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;

3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise:

4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into".

2 "With a view to ensuring the effective exercise of the right of workers to be informed and consulted within the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice:

a. to be informed regularly or at the appropriate time and in a comprehensible way about the economic and financial situation of the undertaking employing them, on the understanding that the disclosure of certain information which could be prejudicial to the undertaking may be refused or subject to confidentiality; and

b. to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking".

3 "With a view to ensuring the effective exercise of the right of workers to take part in the determination and improvement of the working conditions and working environment in the undertaking, the Contracting Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice, to contribute:

a. to the determination and the improvement of the working conditions, work organisation and working environment;

b. to the protection of health and safety within the undertaking;

c. to the organisation of social and socio-cultural services and facilities within the undertaking;

d. to the supervision of the observance of regulations on these matters".

4 Article 7 of the Convention provides as follows: "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 public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters".

5 "With a view to facilitating co-operation between the Administration and the staff on matters of a general nature concerning the staff, there shall be set up a Joint Committee whose attributions and mode of operation shall be laid down in Appendix I to these Regulations. The Secretary General shall appoint the Chair of the Joint Committee. The other members and their substitutes shall be appointed in equal numbers by the Secretary General and the Staff Committee".