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03.05.09, 10:49
How Commission Services Circumvent Decisions of the European Civil Service
Tribunal
www.neurope.eu/articles/93986.php
In brief, three years ago Commissioner Wallstrom made an unlawful appointment,
though warned, because in bona fide she trusted her team. Now, the
Commissioner is before a similar situation and if she keeps trusting the same
people, she will be drawn into a new mistake concluding her political career
in the European Commission by …circumventing a Decision of the European Court
of Justice. The practice of ignoring European Civil Service Tribunal Decisions
is a rather popular practice in the European Commission.
There is, indeed, a specific Directorate General which is using this practice
all the time. The procedure is quite simple. When a Court Decision cancelling
an appointment is issued, the Service does not recall the employee in question
but it keeps him on job, temporarily, till the post is filled through a new
concourse. The status under which the dismissed employee maintains his
position as temporary is called “fonction faisant.” The service then, calls
for a new concourse where the requirements for the position are modified to
fit to the fonction faisant functionary who was dismissed by the Court and was
kept on the job by the service with the excuse of covering the post temporarily.
The dismissed functionary applies in the new call for the post and since the
requirements this time are completely in line with his CV, is selected the
more so that he presents as previous experience for the post, the years that
was occupying the position illegitimately. This practice, in real terms, means
cheating on European citizens and offending the supreme institution of our
society, which is the justice system. President Barroso, the more so that he
wants to be re-selected, has to issue has to instruct his services to respect
all Court Decisions concerning Commission employees, provide for the immediate
recall of all dismissed employees to the Directorate General for
Administration awaiting for relocation, and exclude dismissed employees to
apply for the post they were dismissed when it will be proclaimed, again.
Two letters for Commissioner Margot Wallstrom....
Last week’s Kassandra’s analysis generated strong, justified reactions by
several European Commission officials, most of which, non directly involved
with the matter. It seems that the violation of Community law committed in the
case of the appointment of Mr. Ierotheos Papadopoulos is common practice in
the Department of Press and Communication of the European Commission (DG
COMM). This requires special attention of the political leadership of the
European Commission, in particular President Jose Manuel Barroso who seeks his
re-election.
We have names and contact details of the writers of both letters but we do not
publish them for obvious reasons. We have also a third letter, full of names,
which explains how the Commissioner was decei - ved by her subordinates and
approved the appointment of the dismissed Director. We preferred not to print
it, however, because it includes several names. By now the Commissioner should
not need additional information to understand how was she deceived and by
whom. The essence of the two letters published below, however, stands with the
fact, that the three Court Decisions constitute case-law for several other
similar appointments of the Directorate General of Communication which in
terms of good and transparent administration should be annulled.
LETTER 1
The decision of the Commission appointing Mr. Ierotheos Papado - pou los Head
of Representation in Athens was annulled by the EU’s Public Administration
Court as illegal. What is particularly striking is that the procedure itself,
used by the Commission since the Kinnock reform in 2004 to appoint tens of
Repres entation Heads, is illegal. The legal basis for appointing Heads of
Repres entation used since 2004 was identical to that of appointing
Commissioners associates i.e. Cabinet Members (Art 37A of the Staff
Regulation). The EU’s Public Administration Court considers that the
administrative role of the Head of Representation is incompatible with that of
a Cabinet Member that presupposes a relationship of confidence “intuitu
personae” between him/her and the Commissioner.
LETTER 2
End to nepotism. This was the message sent by the European Civil Service
Tribunal to the European Commission by way of three judgments (F-128-129/07
and F-143/07) that were issued last week and annulled the nomination of the
Head of the Commission’s Representation in Greece. Most importantly this
case-law declared the procedure followed by the Commission for the
appointments of Heads of Representations in the Member States that was
consisting in a detachment based on confidence with the Commissioner for
Communication –likewise with the appointment of Cabinet members- inappropriate.
Instead the Tribunal held that the appointment of Heads of Representations
should be based on qualitative criteria –merit- and an objective selection
with the view to better serving their sensitive mission that is to get the EU
closer to its citizens. A flagrant example was the case at hand in which the
chairperson of the pre-selection committee was the best-man of the finally
appointed official who according to the claimants not only was far behind from
their qualifications and levels but didn’t either meet the formal requirements
of the post. No wonder after that how the EU despite all its pro-citizens
projects managed to increase the gap with them and loose their, until
recently, unequivocal support.
…and a circular from the Deputy Director General of Press to his staff…
…. As some of you might be aware, the Civil Service Tribunal issued on 2 Apnl
2009 a judgment according to which the nomination of lerotheos (Papadopoulos)
as head of Representation in Greece, is annulled. The annulment is solely
based on reasons related to the procedure chosen for the appointment; the
qualifications of Ierotheos for the post were neither questioned nor examined
at all in this judgment. The Civil Service Tribunal is of the opinion that HoR
(Head of Representation) cannot be appointed by secondment in the interest of
the service under Article 37, 38 of the Staff Regulations as it is currently
the case under the Commission decision C(2004) 2662.
HQ (Head Quarter) is currently examining together with DG ADMIN (Directorate
General of Administration, chef de file for the nomination procedure) and the
Legal Service (chef de file for the Court case) the consequences of this
judgment and the possible options (appeal, future and ongoing nomination
procedures, etc.) There is no need for urgent decisions. Therefore please be
ensured that, in the meantime, all HoR will stay in place in order to ensure
the continuity of the service. We will keep you informed. …
… and now our lawyer
“the qualifications of Ierotheos for the post were neither questioned nor
examined at all in this judgment”: the main argument of the applications was
the complete lack of qualifications in the person of the official who was
finally appointed as Head of Representation (HoR) and in a subsidiary manner
the manifest error in the appreciation by the appointing authority of his
qualifications in comparison to the exceptionally high qualifications of the
other candidates at the level of senior Heads of Units and of Deputy Director
General (A13- A16); hence the qualifications were empathetically questioned.
That is the reason why the Tribunal examined them by addressing to the parties
a specific written question that was elaborated by them during the hearing on
the parental relationship
