European Ombudsman
Beslut i ärende 3008/2005/OV - Oskäliga avtalsvillkor
Beslut
Ärende 3008/2005/OV - Undersökning inledd den 18/10/2005 - Beslut den 26/07/2007
De fyra klagandena var anställda som internationell civilpersonal inom ramen för Europeiska unionens polisuppdrag "Proxima" i Skopje i f.d. jugoslaviska republiken Makedonien. När deras "Proxima I"-avtal löpte ut uppmanades de att underteckna "Proxima II"-avtal, som skulle träda i kraft följande dag. De klagande noterade påtagliga förändringar i de nya kontrakten i fråga om lön, socialförsäkringsavgifter, flyttbidrag och lönegradsplacering.
Eftersom alternativet var att bli arbetslösa nästa dag undertecknade de kontrakten.
I sitt klagomål till ombudsmannen hävdade klagandena att de informerades om villkoren i de nya kontrakten alltför sent och att de tvingats underteckna kontrakten under påtryckningar.
De klagande krävde i huvudsak även att de borde fortsätta att åtnjuta samma villkor som tidigare i fråga om lön, socialförsäkringsavgifter, flyttbidrag och lönegradsplacering.
I sitt yttrande förnekade kommissionen att de klagande hade varit utsatta för påtryckningar.
När det gäller de klagandes krav ansåg kommissionen att de klagande genom att
underteckna de nya kontrakten, som inte var förlängningar av de föregående kontrakten, hade godtagit villkoren i dessa.
Ombudsmannens ståndpunkt var att kommissionen hade underlåtit att i god tid informera de klagande om deras nya anställningsvillkor och att detta var ett administrativt
missförhållande. Förseningen hade dock i sig inte inneburit att de klagande var utsatta för påtryckningar.
När det gäller de klagandes krav fann ombudsmannen inte något administrativt missförhållande, eftersom ett meddelande från kommissionen från augusti 2004
tillhandahöll en grundval enligt vilken "Proxima II"-avtal kunde innehålla andra villkor än de som tillämpades för "Proxima I"-avtal.
När det gäller de klagandes krav rörande socialförsäkringsavgifterna fann ombudsmannen att informationen till de klagande om deras socialförsäkringsskydd hade försenats
ytterligare, och att de klagande på grund av denna försening hade fortsatt att betala in avgifter för sina privata försäkringar i onödan. Ombudsmannens sekretariat kontaktade de klagande i juni 2007 i avsikt att föreslå en vänskaplig förlikning med avseende på denna aspekt av ärendet. De klagande tillkännagav dock att de inte ville göra bruk av den möjligheten. Ombudsmannen avslutade därför ärendet. Beslutet om att avsluta ärendet innehöll två kritiska anmärkningar rörande det administrativa missförhållande som hade konstaterats.
Strasbourg, 26 July 2007
Dear Mr M., Mr F., Mr K. and Mr V.,
On 16 and 19 September 2005, you made a complaint to the European Ombudsman
concerning alleged maladministration by the European Commission and the Head of Mission of the European Police Mission "Proxima" in Skopje ("EUPOL Proxima") in the conclusion of new contracts with you as International Contracted Civilians.
Following a thorough analysis of your complaint, I came to the conclusion that it should be interpreted as being directed only at the Commission. Therefore, on 18 October 2005, I forwarded the complaint to the President of the Commission. In my letter of 18 October 2005, in which I informed you of the opening of the inquiry, I also informed you that the first of the five claims was not admissible as you had not made the appropriate prior
administrative approaches to the Commission with regard to that claim.
On 26 November 2005, you sent an e-mail concerning your complaint to my Office. My Office replied to you by e-mail of 5 December 2005. On 5 December 2005, you sent another e-mail concerning your complaint. I replied to you by letter of 16 January 2006.
The Commission sent its opinion on 7 February 2006. I forwarded it to you with an invitation to make observations, which you sent on 22 March 2006. On 22 March 2006, you also sent another letter in which you reiterated the first of the five claims in your original complaint.
On 31 May 2006, I wrote to the President of the Commission with a request to submit an opinion by 30 June 2006 on this fifth claim and on two further allegations. I informed you of these further inquiries in a letter of the same day. By letter of 28 June 2006, the Commission asked for an extension of the deadline for its opinion until 31 July 2006. By letter of 3 July 2006, I accepted the Commission's request, and I informed you in a letter of the same day.
The Commission sent its additional opinion on 2 August 2006 and I forwarded it to you with an invitation to submit observations, which you sent on 27 October 2006.
On 13 February 2007, you sent an e-mail inquiring about the status of the inquiry. I replied to you by letter of 7 March 2007.
On 30 May 2007, my Office contacted you by telephone in order to inform you about the situation of the inquiry and to let you know that the possibility of proposing a friendly solution to your complaint was currently being examined.
After a detailed analysis of the evidence submitted to me, my Office contacted you by telephone on 25 June 2007 in order to discuss the possibility of a friendly solution between you and the Commission with regard to the issue of the social security costs. You replied that you needed some time in order to evaluate whether you could agree to the proposal for a friendly solution.
By e-mail of 2 July 2007, you informed my Office that you did not wish to pursue a friendly
solution and that you wished for a decision from the Ombudsman instead.
I am writing now to let you know the results of the inquiries that have been made.
I apologise for the length of time it has taken to complete the handling of your complaint.
THE COMPLAINT
The four complainants were employed as International Contracted Civilians with the European Union Police Mission "Proxima" in Skopje (the Former Yugoslav Republic of Macedonia), (hereafter "EUPOL Proxima"). According to the complainants, the relevant facts were, in summary, as follows:
The contractual construction of the complainants' employment
The complainants point out, first, that the contractual construction of their employment, namely, being personally employed by the Head of Mission of EUPOL Proxima, instead of being given temporary contracts with the European Commission or the Council in the framework of the CFSP (Common Foreign and Security Policy) missions, is intended to avert any responsibility from the European institutions. In the complainants' view, this should be changed. The fact that International Contracted Civilians have no contractual relationship with the Commission, but only with the Head of Mission, and that Article 1 of their contracts provides for the application of national law, makes it impossible for them to seek external remedies in case of contractual disputes. Considering that there will be more such CFSP missions in the future, the complainants advocate a change in employer for International Contracted Civilians.
After one year of employment, and on the day of the expiry of their old contracts ("Proxima I contracts"), the complainants were invited to sign new contracts ("Proxima II" contracts), which extended their employment with the Head of Mission of EUPOL Proxima, and were based on the Commission Communication C(2004)2984 of 6 August 2004 (1) (hereafter the
"Commission Communication"). On 14 December 2004, when the complainants were about to sign the Proxima II contracts, which were foreseen to take effect on the following day, they noticed that significant changes had been introduced compared to their Proxima I contracts, with regard to (i) their salary, (ii) the social security contributions, (iii) the removal allowances, and (iv) their grading. Feeling the pressure of being unemployed the next day, and as the Head of Mission had to leave the country the next day, all parties, although expressing their objections, finally signed the Proxima II contracts. Immediately after the signature, they again expressed their objections by telephone or by e-mail to the Head of Personnel. In meetings of 16 December 2004 and 18 January 2005 between the International Contracted Civilians and the Head of Personnel and the Head of Mission, the latter promised solutions to the objections raised. The four issues on which significant changes in the contracts were introduced were the following:
(i) Decrease in salary
Considering that all parties to the Proxima II contracts see these contracts as a continuation of the Proxima I contracts and not as new contracts, the complainants allege that the decrease in salary of about EUR 300, from EUR 5 800 to EUR 5 500, whilst the complainants remained in the same job positions, was not in accordance with the labour law prevailing in European countries.
Alternatively, even if the Proxima II contracts were to be considered as new contracts and not as an extension of the previous contracts, the complainants consider that they would still have been misled about the basic conditions of the Proxima II contracts, the content of which they were only informed on the first day of these contracts. The complainants stress that they would have searched for a new job if the decrease in salary had been communicated to them in due time. The complainants therefore consider that they are entitled to
compensation to be determined by a court.
(ii) Cancellation of the contribution to social security costs
The Proxima I contracts provided under point 6 (Social security) that EUPOL Proxima
contributes towards the social security costs with a monthly flat fee of EUR 250. The Proxima II contracts do not provide for such a contribution. According to the complainants, this change should have been communicated to them in advance of signing the Proxima II contracts. The complainants allege therefore that they have suffered a damage of EUR 250 per month, that is, EUR 3000 for those staying until the end of the mission. Page 5 of the complaint contains a detailed evaluation of the damage for each of the four complainants.
Alternatively, the complainants stated that, at the meeting of 16 December 2004, the Personnel section of EUPOL Proxima could not clarify the content of the new insurance. At the meeting of 18 January 2005, the complainants were expressly told by the Head of
Personnel to keep their private health insurance, since the content of the new insurance was not clear yet. The terms and conditions of the insurance were not given to the complainants until February 2005. Only after a period of four and a half months, the complainants finally received their insurance cards, the arrival of which was announced to them in an e-mail from the Personnel service of 28 April 2005. The complainants calculated a resulting damage amounting to EUR 1250 per complainant, due to the failure of the mission to provide them with details of their insurance for at least five months.
(iii) Removal allowances
EUPOL Proxima decided to deny the parties an entitlement to a removal allowance, which was explicitly foreseen in the Proxima I contracts. Article 9(b) of the Proxima II contracts provided for a removal allowance of 50% of the net salary, " since the staff member is obliged to change his place of residence in order to reside either in the place of employment (...) ". With regard to the wording of Article 9(b), the complainants contended that "since" is in fact a legal fiction. However, by e-mail of 27 January 2005, six weeks after the Proxima II contracts entered into force, the Administration of EUPOL Proxima informed the complainants that "
following our intensive consultation with the relevant services of the Commission, we can now confirm that removal allowance (...) cannot be granted to contracted international staff having joined the Mission before the 15th of December 2004 ".
The complainants did not receive any removal allowance upon signing the Proxima I
contracts, but only the reimbursement of a one-way plane ticket. As there is no clause in the Proxima II contracts which excludes an allowance in case the employee already lived in the country or worked for the mission, the complainants consider that all contracted civilians are entitled to a removal allowance whether or not they already reside in the city, that is in the present case, Skopje, in which they are assigned to perform their job.
Alternatively, even if it were to be found that the complainants are not entitled to a removal
allowance, the complainants state that on several occasions they were informed by the Head of Personnel, that they could receive the allowance under certain circumstances. For
instance, in the meeting of 16 December 2004, the Head of Personnel stated that those who had already been in the mission the previous year were not eligible per se, but could provide evidence that they did move in order to continue to work for the mission. Most International Contracted Civilians agreed to find a way to produce such evidence, and this was also the case of one of the complainants, Mr M., who finally received a negative answer from the Head of Personnel.
Page 8 of the complaint contains a calculation of the damage allegedly suffered by the complainants because of the non-entitlement to the removal allowance.
(iv) Regrading
In the Proxima II contracts, the complainants were graded in step 1 of the new grading system, although some of them had already worked for more than five years in international missions or had held comparable jobs in other missions involving higher steps. This topic was brought to the attention of the Head of Mission together with the other issues in January 2005. According to the complainants, the Head of Mission promised that a re-evaluation would take place and that he would consider individual upgrading. However, with the exception of one complainant, Mr V., who was upgraded one step, no upgrading was communicated to the complainants. Page 8 of the complaint contains a description of each of the complainants' individual working experience, on the basis of which they consider that they should be upgraded retroactively (2) .
All four issues mentioned above were addressed to the Head of Mission, but, according to the complainants, have not been resolved.
On 16 and 19 September 2005, the complainants lodged with the Ombudsman the present complaint against the Commission and made the following five claims :
- The Commission should stop the practice of providing International Contracted Civilians in CFSP missions with contracts providing for the respective Head of Mission as their sole contractual partner, thereby avoiding all obligations and liability on the side of the Commission.
- Under the new "Proxima II" contracts, the complainants should receive the same salary as the one they had under the original "Proxima I" contracts.
- Under the new "Proxima II" contracts, the complainants should be entitled to the same contribution of EUR 250 by the Mission to their social security costs as under the original
"Proxima I" contracts.
- The complainants should be entitled to a removal allowance.
- The complainants should be regraded in order to take account of their work experience.
In his letter of 18 October 2005, the Ombudsman informed the complainants that the first claim was inadmissible in light of Article 2(4) of the Statute of the European Ombudsman which provides that " [a] complaint (...) must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. " (emphasis added) The Ombudsman suggested that the complainants write first to the Commission with regard to that claim. An inquiry was opened as regards the remaining four claims.
THE INQUIRY The Commission's opinion
In its opinion, the Commission made, in summary, the following comments:
I. Background of the case
All four complainants had been International Contracted Civilians, employed by Mr Jürgen Scholz (3) , the Head of EUPOL Proxima, in the Former Yugoslav Republic of Macedonia (4) , for a duration of one year, namely, the first year of the mission, which ran from 15 December 2003 to 14 December 2004.
On 15 December 2004, they signed for EUPOL Proxima (5) the Proxima II contracts, under which they were to serve as International Contracted Civilians for a one-year extension period to run from 15 December 2004 to 14 December 2005. Mr F. left the mission on 31 January 2005 and Mr K. on 31 July 2005. Mr M. and Mr V. left when the mission expired on 14 December 2005.
II. General remarks and admissibility
(a) The complainants participated in an EU Mission financed under the CFSP budget.
According to Article 14 of the Treaty on European Union ("TEU"), the legal basis for such CFSP missions are Joint Actions. The Commission is obliged to take the relevant financial
implementation steps in line with Article 274 of the EC Treaty. The Council decides on a Joint Action as well as on the budgetary resources required for its implementation. Where, in accordance with Article 28(3) TEU, the operating expenditure is charged to the EC budget (Chapter 19 03 of the General Budget of the EU), the Commission thus commits, contracts and disburses the budget allocated to the action in question. In accordance with the principles of sound financial management (Article 274 of the EC Treaty), the Commission bears sole responsibility for the implementation of the CFSP budget.
(b) In accordance with the Commission Communication C(2004)2984 of 6 August 2004, the Commission employed Mr Scholz, appointed by the Political and Security Committee ("PSC"), as remunerated CFSP Special Adviser, in order to entrust him with the agreed amounts from the CFSP budget. In this manner, Mr Scholz was in a position to meet the expenditure arising from the implementation of the said Joint Action. The Head of a CFSP Mission is a CFSP Special Adviser and the provisions of Articles 5, 123 and 124 of the Conditions of Employment of Other Servants of the European Communities ("CEOS") are applicable.
However, a CFSP Special Adviser contract is a sui generis contract set up exclusively to allow a natural person to act on behalf of the Council in the field of the CFSP. Its legal form has been agreed through intensive inter-service consultations between the Directorate-General for Administration, the Secretariat-General, the Legal Service, the Directorate-General for Budget and the Directorate-General for External Relations of the Commission. It was endorsed also by the Court of Auditors in its 2001 report on the CFSP. As Head of Mission, the CFSP Special Adviser acts under the authority and operational direction of the High Representative for the CFSP and the Political and Security Committee. In line with the Joint Action and the CFSP Special Adviser contract, he/she is responsible to the Commission for the financial administration of the mission budget.
(c) The European Union currently has 11 Heads of Mission in various crisis and post
crisis-scenarios. CFSP missions are set up on an ad hoc basis in the form of Council decisions, that is, Joint Actions. Given their unique structure, the precarious conditions in the field, the
overall need for quick deployment and operability and the limited duration of such
operations, the EU Council, by way of contracting by the Commission, entrusts the Head of a CFSP Mission with the recruitment and employment of the staff he/she needs for the
implementation of the objectives set by the Council. The overwhelming majority of staff in such missions consists of seconded officials from Member States, such as police officers.
Recourse to international or local staff is normally only undertaken with respect to administrative or advisory tasks. The number of staff to be recruited is based on the operational budget foreseen for the mission and hence pre-decided by the Member States when adopting a Joint Action. This guarantees a speedy set-up and staffing of a mission and the needed flexibility to react to volatile situations.
Consequently, the contract of a CFSP Special Adviser with the Commission, following his appointment by the Council or the PSC, foresees that the Head of Mission shall conclude contracts of employment on his own behalf, applying the rules for staff employed by or seconded to Special Advisers as set out in the Commission Communication.
(d) "International Staff" are employed by a Special Adviser on his own behalf through an employment contract. The employment contract itself is subject to the labour law of the Member States of the members of staff. The remuneration of International Staff is part of the expenditure arising from the implementation of the Joint Action, charged to the CFSP appropriations.
The employment contract employing a person as International Staff of a CFSP Special Adviser is thus signed by the CFSP Special Adviser on his own behalf. These contracts contain the necessary clauses imposed by the applicable national social and labour law, including an arbitration clause, the grading in grade and step according to the table in Annex 3 to the Commission Communication, the remuneration and an appropriate clause regarding liability of the employee. More particularly, they stipulate that any dispute between the CFSP Special Adviser and International Staff shall be submitted to an arbitration board under the
conditions defined in the arbitration clause.
Article 1 (General Provisions) of the standard contract of employment for international staff states that: " Any rights and obligations not falling within the provisions of this contract, its annexes or the OPLAN (6) shall be governed by the national substantive law in force in the staff member's state of citizenship ". Further, Article 12 (Non-disciplinary appeals) and Article 13 (Settlement of claims) of the contract foresee specific procedures for disputes. Article 12 provides that
" [t]he staff member may submit an appeal against an act adversely affecting him/her to the Head of Mission within one month of the date of the act. Appeals shall be submitted to the Head of Mission through the immediate superior of the staff member, except where it concerns that superior, in which case it may be submitted directly to the Head of Mission. "
Article 13 specifies that
" [t]he parties hereby expressly declare that any dispute arising between them as regards the
interpretation of performance of this contract will be referred to an arbitration body. Such referral may not take place until the internal appeal procedure mentioned in Article 12 above (...) has come to an end. It shall be without prejudice to referral of the dispute to the court having jurisdiction under the national substantive law in force in the staff member's state of citizenship ".
(e) From the relevant documentation, namely, the complaint to the Ombudsman, internal files and communications, it is not clear that the complainants have pursued the appropriate procedures foreseen in their contracts. This also raises the question as to why such
procedures were not followed but instead a complaint was submitted to the Ombudsman, before even considering a non-disciplinary appeal as foreseen in Article 12, a settlement of claims by arbitration as foreseen in Article 13, or the application of national labour law as foreseen in Article 1 of their contracts.
III. Comments on the claims
(1) As regards the first claim of the complainants, which the Ombudsman considered
inadmissible in his letter of 18 October 2005, the Commission pointed out that, by e-mail of 9 November 2005, the complainants asked the Commission " to stop the current practice of providing International Contracted Civilians in CFSP missions with contracts with the respective Head of Mission as their sole contractual partner. Instead, civilians should be given a contract with the responsible body for such mission, i.e. either the European Commission or the Council of the European Union ". The Commission stated that it replied to the complainants on 14 December 2005 along the lines outlined above.
(2) As regards the second claim that under the Proxima II contracts, the complainants should receive the same salary as the one they had under the Proxima I contracts, the Commission observed that, pursuant to the invitation made by the Court of Auditors (7) , a general framework of rules for the sound financial management of employment conditions for CFSP Special Advisers, EU Special Representatives and their staff was laid down in the Commission Communication. This framework did not exist on 1 March 2004, when the complainants were recruited and signed their Proxima I contracts (entitled "letters of appointment") establishing their working relation with the CFSP Special Adviser. It was consequently not applicable at that time. This is made particularly clear in point 6.4 of the Communication as regards International, Seconded and Local Staff:
" (a) The provisions of the present Communication shall apply from 1 July 2004 to staff employed by or seconded to CFSP Special Advisers and EUSRs, when their starting date of employment or secondment occurs on or after this date.
(b) The provisions of the present Communication shall not apply to staff employed by, or seconded to, CFSP Special Advisers and EUSRs before 1 July 2004, if the CFSP Special Adviser or EUSRs fulfils a mandate or is entrusted with the implementation of an operational action which has begun before 1 July 2004 and continues after this date. After the termination of such employment or
secondment, point 6.4 (a) shall be in application ".
On 15 December 2004, the complainants signed the Proxima II contracts, and not extensions of previous working relations in the mission. It is clear from these contracts that they
establish a new working relationship. There is no mention of previous working relations in the mission in the Proxima II contracts. With their signature under these contracts, which furthermore do not bear any individual remarks or alterations, they accepted the salary, the remunerations, benefits and specific conditions of these contracts, in short everything they dispute in their complaint. Article 1 (General Provisions) makes it furthermore clear that " [b]y signing this contract the staff member hereby confirms acceptance and compliance with the terms and principles set out in this contract, its annexes and the EUPOL Proxima Operation Plan (OPLAN)
".
In accordance with Articles 1 and 3 of the contract, the parties, with their signature, accepted the contents of the contracts and were bound to the rights and obligations as stipulated therein for the duration of their contracts. The Proxima I contracts/letters of appointment stated clearly: " This is a temporary appointment which may be renewed or extended at the absolute discretion of EUPOL Proxima. Neither party should expect that this contract will be renewed ". As clearly stated in the letters of appointment, the working relationship governed by these contracts ended on 14 December 2004. To the Commission's knowledge, no renewal or extension was ever mentioned to, proposed to, or contracted with the
complainants, nor did the complainants ever ask for any extension or renewal. Indeed, in their own complaint, they refer repeatedly to "signing the first contract" and "our new contracts". In this context, it is also important to note that the underlying Joint Action
establishing the Proxima mission is annual. Therefore, the contract between the Commission and the Head of Mission is also annual, whereby in particular the eligibility of costs to be covered by the budget received under this contract is limited to each operational phase of the mission, that is, one year. In other words, the Head of Mission is able to enter into employment contracts on an annual basis only.
The first working relationship in the mission did not determine the future salary for the Proxima II contracts which the complainants signed on 15 December 2004. There were two independent contracts signed for two different periods of time. The salaries calculated in the Proxima I contracts did not have as a basis the remuneration grid laid down in Annex 3 of the Commission Communication, used for the calculation of the salaries in their Proxima II contracts.
Furthermore, the staff employed by or seconded to CFSP Special Advisers and EUSRs (EU Special Representatives) can at no moment be considered as directly employed by, or seconded to the European Communities. They are not subject to nor beneficiaries of the Staff Regulations or CEOS, unless seconded by an Institution of the European Communities themselves (8) . The Head of Mission therefore always remains the contracting authority.
According to the indicators mentioned in the Commission Communication and its Annex 3, the Head of Mission correctly graded the complainants, and fixed their salary accordingly in the Proxima II contracts.
No maladministration by the Commission can therefore be established in this regard.
(3) As regards the third claim that the complainants should be entitled to the same
contribution of EUR 250 by the Mission to their social security costs as under the Proxima I
contracts, the Commission again pointed out that two different contracts are to be
considered in this case. There is no continuation between them, there is hence no obligation automatically to transfer or extend benefits or specific social security contributions from one contract to the other.
While the social security contributions due under the local law still remain the responsibility of the individual staff member (9) in the Proxima II contracts, these contracts offer additional coverage for the employee (10) :
" The staff member shall be covered by a high-risk insurance scheme concluded for that purpose by the European Commission with the insurance company J. van Breda International. The staff member shall be offered the possibility for reimbursement of medical expenditure under the scheme. Family members of the staff member may join these schemes at their own cost ".
This follows strictly the instructions given in point 5(1), last paragraph, of the Commission Communication.
The Commission offered this additional coverage in order to take maximum care to ensure that international staff working in hostile environments is de facto and de jure receiving adequate insurance coverage in all cases. This is distinct from the fact that relevant national laws relating to social security and pension are to be respected by the mission and its staff members. The Head of Mission correctly applied the Commission Communication
concerning the issue of social security in all contracts in question. No maladministration by the Commission can therefore be established in this respect.
(4) As regards the fourth claim that the complainants should be entitled to a removal allowance, the Commission stated that, under the Proxima I contract with this mission (11) , and in accordance with their entitlements stipulated in the Commission Communication (12) , all complainants received upon their appointment a plane ticket plus excess luggage allowance, to move from their respective countries of residence.
The Proxima II contracts (13) stated that
" [s]ince the staff member is obliged to change his/her place of residence in order to reside either in the place of employment or at no greater distance therefrom as is compatible with the proper performance of his/her duties, he/she shall receive a removal allowance of 50% of one monthly basic gross salary as set out above ".
In order to apply this entitlement in a just manner, actual moves (inbound or outbound) are taken into account. Consequently, the granting of a 50% removal allowance to the
complainants will have to be considered if they fulfil the requirements of Article 9(1)(b) in connection with Article 14(2)(a) at the end of their current mission. This was already
communicated to the complainants by their Head of Mission (14) . No maladministration by the Commission can therefore be established in this respect.
(5) As regards the fifth claim that the complainants should be regraded in order to have their
work experience taken into account, the Commission stated that the grading of the complainants was done in accordance with the grid in Annex 3 to the Commission Communication. All of them were international staff directly employed by the Head of Mission. As regards the individual situation of the four complainants, the Commission made the following comments:
(a) In the case of Mr M., it was mentioned in the complaint itself that " since this is his first international mission, he is content with the grading ". Accordingly, this aspect of the complaint is not relevant for him.
(b) Mr V.'s complaint remains unclear, as it talks about " his downgrading as an unlawful alteration of his contract with the PROXIMA Head of Mission ". As his grading was made under a new contract there can be no alteration. He worked in Proxima I under the old "letter of appointment" from 19 April 2004 to 14 December 2004, that is, seven months, and seems to have had no relevant prior professional experience. At the moment he signed his Proxima II contract on 15 December 2004 and contrary to his allegation, he had not " been at one step in that (category III) grade for a period of one year ", but in application of the Commission
Communication he would have been graded in step 1 of that grade.
Mr V. was granted an upgrading of one step by the Head of Mission after authorisation by the Commission in line with the Commission Communication. To grant him the Junior Expert level at grade III step 2 was therefore in accordance with the Communication, account being taken of the experience gained during his prior period of employment in the mission. Since Mr V. was rightly graded at grade III, and was even granted an additional step (step 2), there seems to be no substance to his claim.
(c) Mr K. applied for retroactive re-grading according to his relevant professional experience.
He participated in the Proxima mission for 11 months, from 5 February 2004 to 14 December 2004, as Project Manager and was subsequently graded under the Proxima II contract in grade III, step 2.
The grading of Mr K. by the Head of Mission under the Proxima II contract was in line with the Commission Communication which in point 5.1 reads as follows:
" (...) the CFSP Special Adviser or EUSR shall classify the persons concerned in category and step taking into account the professional experience of the persons concerned in application of Annex 3 of the present Communication. Any person employed as International Staff shall be recruited at the initial step of a given grade. By derogation to this rule, taking into account organisational responsibilities associated with the post to which a person is recruited, the CFSP Special Adviser of EUSR may (a) award one additional step within a category or (b) propose to the Commission to recruit International Staff in a category immediately above the category to which he/she was entitled on the basis of prior professional experience. Any person employed as International Staff shall automatically advance to the next step in a grade provided that he/she has been at one step in that grade for a period of one year and that he/she continues to work for a CFSP Special Adviser or EUSR, who fulfils an already-adopted or renewed mandate or is entrusted with the
implementation of an already-adopted, or renewed operational action ".
According to Annex 3 of the Commission Communication, a Support Function with five to 20 years of professional experience should be in grade III and a person with less than five years of professional experience in grade IV. In his complaint, Mr K. mentions that he had " almost 5 years of relevant mission experience including Proxima I ". In correct application of the Commission Communication he was put in grade III as he had just completed five years of professional experience and was graded in step 2.
(d) Mr F. applied for retroactive regrading according to his relevant professional experience.
In his complaint, he mentions that he had " at least 8 years of relevant job experience in European and international affairs, of which some 2.5 years in missions, including OSCE and Proxima I ". He was recruited in a Support Function. In accordance with the correct
application of the Commission Communication, he was put in grade III as he had more than five years of professional experience, and was graded in step 2.
The Commission concluded that all the complainants were correctly graded, and one granted exceptionally an additional step, despite the fact that he had not been at the preceding step in that grade for a period of one year. The grading is undertaken by the Head of Mission as employer whereby he has to follow the criteria laid down in the Commission
Communication. The Head of Mission, however, has a limited discretion in granting derogations. Due to the principle of sound financial management, the Commission supervises the correct application of the Communication and derogations have to be authorised by the Commission. In all cases where the Head of Mission used his discretion to ask for derogation, such an authorisation was granted by the Commission upon having analysed whether the criteria for derogation were fulfilled. In the view of the Commission there are no indications whatsoever that the Head of Mission did not exercise his
management responsibility correctly.
No maladministration by the Commission can therefore be established in this regard.
Conclusions
The Commission concluded that the Head of Mission as contracting authority and employer of the complainants acted in accordance with the instructions of the Commission as laid down in the Commission Communication C(2004)2984 of 6 August 2004 and with the rules and regulations of proper financial management of the Community budget. The Commission stressed that it acted on the basis of the underlying European Treaties, the rules and
regulations of proper financial management of the Community budget and the relevant Council and Commission decisions.
The complainants' observations
In their observations, the complainants made, in summary, the following comments:
The complainants pointed out that, on several occasions in its opinion, the Commission referred to their first claim concerning the contractual construction of the employment of International Contracted Civilians. In this regard, the complainants stated that they submitted a new complaint along with their observations (see below).
With regard to the admissibility of their complaint, the complainants stated that when, at the
very beginning of their new/extended contracts, problems arose, several meetings with senior staff, namely, the Head of Personnel and the Head of Mission, were arranged at their request. These meetings could clearly be interpreted as a non-disciplinary appeal according to Article 12 of their contracts. After no progress was made on the issue by spring 2005, the complainants came back to raise their concerns on several occasions. When they asked about the arbitration boards foreseen in Article 13 of their contracts, nobody from the senior staff was able to provide them with any information as to the composition of such boards or the relevant procedure. Instead they were asked by the Head of Mission to be patient and await communications and guidelines from Brussels. Finally, in September 2005, when it became apparent that there was still no fully satisfactory answer from the Head of Mission, the complainants decided to turn to the Ombudsman.
The complainants stated that they fulfilled the requirement of a non-disciplinary appeal, but the arbitration board mentioned in their contracts did not exist, nor was there any intention from the Head of Mission to set it up.
On the substance of their claims, the complainants made the following comments:
The complainants recalled again that they were given the Proxima II contracts only on the last day of their Proxima I contracts and that the Head of Mission was not in the country at that moment. In case of refusal to sign, they were facing unemployment as of the next day.
Mr V. originally refused to sign the contract, but was asked to sign by the Head of Mission and the Special Adviser and he was promised that the whole subject of the "new contracts"
would be addressed for all employees after the Head of Mission returned in January 2005. All the other complainants immediately complained about the new conditions. None of the senior staff from the Administration was present the afternoon of the signing. In the meetings that followed the signature of the contracts, all questions raised by the complainants were declared to depend upon decisions from Brussels.
As regards their third claim concerning the social security costs, the complainants still consider the two contracts as relating to the same employment, and therefore the employer is not allowed unilaterally to revoke the contribution of EUR 250. As pointed out in their original complaint, the complainants stated that the Head of Mission and the Head of Personnel urged them, at the meeting of 18 January 2005, to keep all private insurances, since the mission was not able to provide them at that time with any information as to the scope of the new coverage.
As regards their fourth claim concerning the removal allowance, the complainants stated, with regard to the reference by the Commission to an actual move (inbound or outbound), that this was against the letter and spirit of the contract which stipulated a lump sum, not a reimbursement of actual costs. Again, the complainants stated that Article 9(1)(b) of the contract contained a legal fiction and not a fact which had to be proven.
As regards their fifth claim concerning re-grading, the complainants stated that the argumentation of the Commission regarding Mr V. was misleading and distorting on a number of accounts. First, contrary to the Commission's assertion that he disposed of no
relevant working experience prior to his employment with Proxima, his prior assignments included 22 months in Kovoso, 4 months with the Council of Europe in Strasbourg and 10 months with the Organisation for Security and Co-operation in Europe (OSCE) border observation mission in Georgia. He had also responded to a vacancy for Political Adviser to the Head of Mission and was graded as member of the "senior staff" of that Mission. His salary had been equivalent to grade 2, step 1, that is, EUR 6000.
Since, according to Council Joint Action 2004/789/CFSP of 22 November 2004 on the extension of the EU Police Mission in the Former Yugoslav Republic of Macedonia, the Council extended the Mission rather than creating a new one, Mr V continued to assert that his Proxima II contract should be regarded as an extension of his Proxima I contract, in particular because he continued in the same position with the same range of responsibilities.
In light of these facts, he maintained that the reduction in salary in the Proxima II contract was unlawful. The Commission also failed to point out that Mr V. initially refused to sign the Proxima II contract.
As regards Mr K.'s request to be regraded, the complainants pointed out that, prior to his employment with Proxima, he was employed by the Swedish Armed Forces as a political analyst based in Sarajevo. In addition, he started his professional career in the Balkans in 1995. He was therefore of the opinion that he had accumulated more then enough relevant work experience to be put in a higher grade.
New complaint
Along with their observations, the complainants also submitted another complaint in which they reiterated the first claim of their original complaint. The new complaint is directed against the current practice of CFSP missions to issue contracts only between the Head of Mission and the contracted civilians.
The main objection to this construction is that those individuals who commit themselves to working for CFSP missions and assume considerable risks in the line of duty in crisis regions, should be treated with due respect and be given the loyalty and security of the institutions for which they are working. In these cases, this would clearly be the Commission, and not the Head of Mission as a natural person. Whereas the seconded personnel have all the security and protection of their seconding countries, International Contracted Civilians are left completely on their own.
Despite clear regulations in the contract, the Head of Mission receives contradictory instructions from the Office of the Directorate-General for External Relations A.2. The complainants were informed that the Head of Mission had to wait for "binding instructions"
from Brussels. The Head of Mission himself considered that the Commission was the body in charge of the contractual relationships as he wrote in his letter of 8 February 2005 that "
[n]evertheless, if there are still doubts, please do not hesitate to submit your written comments, so they can be forwarded to the above mentioned relevant Office of the European Commission ".
The fact that Article 1 of the contract provided for the application of the national substantive law in force in the staff member's state of citizenship resulted in the impossibility for
International Contracted Civilians to seek external remedies in case of contractual disputes.
The contracts instead should provide for an alternative employment scheme and allow for the possibility jointly to seek external remedies in disputes.
The complainants concluded that the Commission's contracting practice deprives
International Contracted Civilians in CFSP missions of fundamental rights they would have in each EU Member State, clearly falling short of "best European practice". The complainants therefore claimed that the employment structure of International Contracted Civilians should be changed. The complainants wrote to the Commission in this regard on 8 November 2005, and the Commission replied on 14 December 2005, stating that it was not planning to propose to the Council to change the current practice.
Further inquiries
After careful consideration of the Commission's opinion and the complainant's observations and new complaint, it appeared that further inquiries were necessary.
On 31 May 2006, the Ombudsman therefore wrote to the Commission, asking it to submit an opinion on the "new" complaint in which the complainants reiterated the first of the five claims of their original complaint, namely, that:
The Commission should stop the practice of providing International Contracted Civilians in CFSP missions with contracts with the respective Head of Mission as their sole contractual partner, thus avoiding all obligations and liability on the side of the Commission.
The Ombudsman also informed the Commission that he considered it appropriate to deal with this claim as part of the present complaint. The Ombudsman further asked the
Commission to submit an opinion on two further allegations to which the complainants had again referred in their observations, contained in section "II. The individual contractual issues - background", on page 2 of the original complaint:
(1) The complainants alleged that they were informed, without any prior notice, of the new contracts and their detrimental conditions (compared to the old contracts) on 14 December 2004, namely on the date of the expiry of their old contracts and only one day before the signature of the new contracts and the starting date of these contracts, and that therefore they had to sign the contracts under pressure. In this context, the complainants also pointed out that one of them, Mr V., originally refused to sign the contract, but was asked to sign by the Head of Mission.
(2) The complainants alleged that, in meetings with the Head of Personnel and the Head of Mission held after the signature of the contracts, they were promised that an acceptable solution would be found to the various issues raised by them, but that these promises were not followed up.
The Commission's additional opinion
As regards the first claim , the Commission stated that it answered the complainants on 14 December 2005. Furthermore, the Commission outlined its position in detail in its opinion to the Ombudsman of 7 February 2006. In its new opinion, the Commission entirely repeated its position.
The Commission is of the opinion that the procedure in force not only guarantees a speedy and efficient implementation of CFSP missions based on Council Joint Actions, but also
provides the staff of such missions, employed by the respective Head of Mission, with all the necessary provisions and guarantees an employee would benefit from in his place of origin.
The Commission stated that it " is not planning to change the current practice ".
As regards the two further allegations , the Commission stated that the contracts for personnel employed by Proxima I mission ended on 14 December 2004. The Proxima II mission started on 15 December 2004. As of this day, Mr Scholz was appointed as Head of Mission. The Head of Proxima I, Mr d'Hooge, who was in charge of the Proxima I mission until the end of the mandate on 13 December 2004, was not entitled to sign any contract for the new mission, either before 14 December 2004 or afterwards. The Commission
Communication C(2004)2984, which was adopted on 6 August 2004, had to be applied to all new CFSP missions, including contracts of employees of the Head of Mission of the Proxima II mission. All Heads of Mission were informed accordingly, including the Proxima I Head of Mission at the time, Mr d'Hooge. The Proxima II contracts were signed by the Head of the Proxima II Mission, Mr Scholz, on 14 December 2004.
The Commission stated that the complainants' two further allegations were of a more personal nature and it is not in a position to verify such personal statements, either of the complainants or of the Head of Mission or other staff involved. However, the Commission contacted the former Head of Mission and asked him to comment on the allegations brought forward by the complainants.
As regards the pressure allegedly put on employees to sign the new contracts, Mr Scholz made the following personal statement (15) :
" A few contracts had not been signed (on December 14th) by the employees and I was told this had not been possible due to the time pressure.
In the beginning of January 2005 (10th or 11th), I was informed by the Head of Personnel that there was some uneasiness about the contracts by some of the international contracted personnel.
They especially were unsatisfied with their grading and/or with other parts of their contracts. This was the first time I heard about that.
After an additional briefing by the Head of Administration, who told me that the Commission had issued new regulations for contracts shortly before the end of Proxima I, it became clear that the mission had been obliged to follow these new provisions.
At that time, it was an open question, whether or not Proxima II was a new mission or just a prolongation of Proxima I. It was the opinion of Administration [ sic ] and me that Proxima II is a new mission. Some members of the senior staff saw this differently. It also became clear that the international contracted personnel had so far not been informed in depth about the new regulations.
Therefore I decided to fix a meeting mid January, in which Administration [ sic ] informed about the new regulations and the reasons for the contractual decisions taken. In this meeting it was made clear that there were new guidelines from the Commission to follow. Different points of view
presented whether Proxima has to be seen as a new mission or as a prolongation of Proxima I could not be solved in this meeting. The same goes for a requested re-grading of some of the personnel.
Thus, I informed the staff that I will get in touch with the Commission in order to find final
solutions and to clarify whether Proxima II has to be considered a new mission or not. Of course, it had been made clear before that mission management considers Proxima a new mission.
The contact with the Commission was made very soon afterwards. In the following weeks and months an exchange of several mails/documents followed, in which the various options were discussed with the Commission. In addition, other meetings took place between
Administration/Personnel section and international contracted staff. I did not attend these meetings.
The entire process ended up with the possibility for some alterations for some contracts, as well known. I would like to emphasize that these options were only given due to the activities
(suggestions) by the mission management and the flexibility of the Commission to accept such suggestions. This discussion process took indeed a long time, but the complainants, e.g. Mr K., were aware of the steps taken.
It is correct that I asked the personnel for patience to give the mission time to clarify the points at issue with the Commission. But at no time I received a letter or statement, that meetings were requested as non-disciplinary appeal. Therefore, there was no need to set up an arbitration board.
I clearly reject any allegations about any pressure put on anybody ".
As regards the alleged pressure on Mr V. to sign the Proxima II contract, Mr Scholz made the following statement:
" I at no time put Mr V. under pressure to sign his contract. He several times spoke with me about his matter, explaining his standpoint (all these meetings took place in January, not in December).
My answer was a hint on my obligation to act in accordance with the regulations. It was not up to me to make promises, and I did not. What I said was that I will try to reach a better step in the salary scale for him, because I see a chance for that (...) Mr V. spoke several times with me about his view on the items and explained, why he did not want to sign the contract. My position was as described earlier. But no pressure was put on him in any way. By the way, there was no other valuable candidate for the position of the POLAD (16) . I assume, Mr K. [ sic ] knew that and therefore putting him under pressure had not made any sense at all. (...) He at the end signed his contract, as others had done before, knowing from the meeting described above that the mission would get in touch with the Commission. As far as I remember Mr V. was the last one of the internationals who signed his contract. But once again, at no time any pressure has been put on any person ".
As regards the alleged promise to find an acceptable solution, Mr Scholz made the following statement:
" I have not made such a statement nor does the Head of Personnel remember such a statement.
During the meetings, esp. the additional ones (see above) the mission tried to clarify the legal situation and its point of view, which was based on the feedback received from the
Commission. Once again, the mission was not in a position to make promises in whatever way ".
As in particular the salaries or the expectation of rising salaries for the consecutive mission of the complainants were affected by the new grading and classification system, they seem to have been a major reason for this complaint. In this context, the Commission would like to recall that Mr M. was content with his grading, that Mr V. was granted an upgrading of one step by the Head of Mission after authorisation by the Commission, and that Mr K. was recruited to a grade immediately above the grade to which he was entitled on the basis of prior professional experience, following a proposal by his Head of Mission.
The Commission concluded that it maintained its position as outlined in its first opinion, and that no relevant new elements were introduced by the complainants in their reiterated claims and further allegations. In none of the complaints can any maladministration of the Commission be substantiated.
The complainants' additional observations
In their observations, the complainant maintained their position.
According to the complainants, EUPOL Proxima was only the EU's second police mission of its kind. Therefore, some problems, such as the contractual situation of civilians, might be excusable as a start-up problem. But given that the EU now already runs more than a dozen such missions, the complainants strongly believe that civilian personnel in such missions should receive contracts comparable to those of the UN and the OSCE, that is, directly with the respective organisation, and not with the Head of Mission in person. The Commission's statement that it " is not planning to change the current practice " clearly demands an action from the Ombudsman.
As regards the explanations relating to the alleged pressure put on Mr. V., the complainants observed that Mr. V. demanded for a period of more than two weeks that the contract be amended in order to repeal those changes that had been made to his disadvantage, that is, concerning his lower salary. He was however told by the Head of Mission that the choice was between signing the contract in its unchanged and disadvantageous form or not being employed at all. He is of the opinion that, in light of the fact that his Proxima I contract had evidently expired even before the new one was offered, the threat of losing his employment in case of his continued refusal to accept the amended terms of employment, amounted to
"pressure".
As regards the statement of the Head of Mission that it was " not true that the mission
management advised the international contracted personnel to keep paying for private premiums in 2005 " (17) , the complainants maintained their position. They had expressly been told at a meeting on 18 January 2005 to keep their private insurance, since the mission administration was not able to give them any details of the insurance contracts. This statement was made by the then Head of Personnel in the presence of all International Contracted Civilians , as well as some senior staff. Details could be found in the complainants' former
correspondence.
The Ombudsman's efforts to achieve a friendly solution
The Ombudsman's Office contacted the complainants by telephone on 25 June 2007. During this conversation, the Office informed them of the Ombudsman's provisional conclusion that there had been maladministration as regards the social security costs. In light of the above, the Office informed the complainants of the Ombudsman's intention to make a proposal for a friendly solution between the complainants and the Commission concerning this issue. The Office also informed the complainants that the friendly solution proposal would consist in asking the Commission to consider making an ex gratia payment of an appropriate amount to the complainants. The complainants indicated that the main issue for them was not to obtain compensation but to have the contractual structure of the employment of
International Contracted Civilians changed. By e-mail of 2 July 2007, the complainants stated that they did not want to pursue the possibility of a friendly solution and that they agreed to ask the Ombudsman for a decision in the case.
THE DECISION 1 Preliminary remarks concerning the order of analysis of the claims and allegations and the rejection by the complainants of the proposal for a friendly
solution
1.1 The four complainants were employed as International Contracted Civilians with the European Union Police Mission "Proxima" in Skopje (the Former Yugoslav Republic of Macedonia), ("EUPOL Proxima"). According to the complainants, after one year of
employment, and on the day of the expiry of the old contracts ("Proxima I contracts"), they were invited to sign new contracts ("Proxima II contracts"), which extended their employment with the Head of Mission of EUPOL Proxima. On 15 December 2004, when the complainants were to sign the new contracts, they noticed that significant changes had been introduced in the contracts, with regard to (i) their salary, (ii) the social security contributions, (iii) the removal allowances, and (iv) their grading. Feeling the pressure of being unemployed the next day, all complainants finally signed the contracts, but expressed their objections by telephone or e-mail to the Head of Personnel. In their original complaint of 16 September 2005 and their further complaint of 22 March 2006, the complainants made five claims and two allegations concerning their contracts.
1.2 As regards the order of the analysis of the claims and allegations of the present
complaint, the Ombudsman considers it useful first to make some remarks on the issue of admissibility. It is appropriate to deal then with the general (first) claim concerning the contractual structure of the employment relationship, before examining the two allegations, made in the complainants' observations, concerning the conditions under which the
contracts of 15 December 2004 were signed. After this analysis, the Ombudsman will
examine the four claims concerning the conditions themselves of the contracts signed on 15 December 2004.
1.3 On 25 June 2007, the Ombudsman's office contacted the complainants by telephone in order to see whether they would agree with a proposal for a friendly solution. It was
explained to the complainants that this friendly solution proposal was based on a provisional finding of maladministration by the Ombudsman with regard to the delay in informing the complainants of their social security entitlements. The friendly solution proposed to the complainants would have consisted in asking the Commission to consider making an ex
gratia payment of an appropriate amount to the complainants. During the telephone conversation, the complainants however indicated that the main issue for them was not to obtain compensation but to have the contractual structure of the employment of
International Contracted Civilians changed. The complainants therefore, in an e-mail of 2 July 2007, indicated that they did not want to pursue the possibility of a friendly solution.
1.4 Given that the main issue for the complainants was their claim concerning the
contractual structure of their employment (see point 3 below), the Ombudsman understands that it was reasonable that the complainants did not want to pursue the friendly solution which was proposed to them. On this basis, the Ombudsman has reconsidered his provisional finding of maladministration and came to the conclusion that it had to be maintained. The Ombudsman therefore, on the basis of his considerations in points 4.6 and 7.11 of this decision, makes a critical remark below.
2 Remarks concerning the admissibility of the complaint
2.1 The Ombudsman notes that, in its opinion on the complaint, the Commission pointed out that, from the documentation in the file, it appeared that the complainants had not
exhausted the procedures foreseen in the contract. The Commission raised the question why a complaint was submitted to the Ombudsman before a non-disciplinary appeal in
accordance with Article 12 of the contract or a referral to an arbitration body in accordance with Article 13 of the contract. The Ombudsman would like to refer to the following
considerations with regard to the points raised by the Commission:
2.2 First, the Ombudsman would like to note that the complainants in the present case are not staff of the Community institutions and that, therefore, the Staff Regulations do not apply to them. Article 2(4) of the Ombudsman's Statute foresees that complaints to the Ombudsman " must be preceded by the appropriate administrative approaches to the institutions and bodies concerned " (emphasis added).
2.3 Second, it appears from the file, and more particularly also from the Head of Mission's statement of 3 July 2006, that all parties involved appear to have understood from the very beginning that the complainants were unhappy with the contracts they signed. It further appears that the complainants unsuccessfully tried to settle the matters that were to
become the subject of their complaint to the Ombudsman in two meetings with the Head of Personnel and the Head of Mission held at their request on 16 December 2004, that is, the day after the contacts were signed, and on 18 January 2005. In his statement of 3 July 2006, the Head of Mission furthermore declared that he " informed the staff that I will get in touch with the Commission in order to find final solutions and to clarify whether PROXIMA II has to be considered a new mission or not ". In these circumstances, the Ombudsman considers that Article 2(4) of his Statute did not require that the complainants also lodge a formal complaint in the sense of Article 12 of their contract before turning to him. The Ombudsman therefore considers that the complainants have made "appropriate" administrative approaches and that there is no reason to question the admissibility of the complaints made to the
Ombudsman. The Ombudsman moreover notes that, in its opinion, the Commission has commented on the substance of the various claims and allegations made by the
complainants.
3 The claim concerning the contractual structure of employment
3.1 The complainants claim that the Commission should stop the practice of providing International Contracted Civilians in Common Foreign and Security Policy ("CFSP") missions with contracts allowing for the respective Head of Mission to be their sole contractual
partner, thus avoiding all obligations and liability on the side of the Commission. With regard to this claim, the complainants argued that the fact that they have no contractual
relationship with the Commission, but only with the Head of Mission, and that Article 1 of their contracts provides for the application of national law results in the impossibility for International Contracted Civilians to seek external remedies in case of contractual disputes.
The complainants furthermore pointed out that the main objection to this construction is that those individuals who commit themselves to working for CFSP missions and assume considerable risks in the line of duty in crisis regions, should be treated with due respect and be given the loyalty and security of the institutions for which they are working. In their view, this would clearly be the Commission. The complainants also underlined that, despite clear regulations in the contract, the Head of Mission received contradictory instructions from the Office of the Directorate-General for External Relations A.2. They added that they were also informed that the Head of Mission had to wait for "binding instructions" from Brussels. The complainants concluded that the Commission's contracting practice fell short of "best European practice".
3.2 In its first opinion, the Commission stated that International Staff are employed by the CFSP Special Adviser on his own behalf through an employment contract. The employment contract itself is subject to the labour law of the Member State of the employee, or of the country of citizenship of the employee, if he or she is recruited from a third state contributor.
These contracts contain the necessary clauses imposed by the applicable national social and labour law, including an arbitration clause, the grading in grade and step according to the table in Annex 3 to the Communication from the Commission on Specific Rules for Special Advisers of the Commission entrusted with the implementation of operational CFSP actions (C(2004) 2984 of 6 August 2004), (the "Commission Communication"), the remuneration, as well as an appropriate clause regarding liability of the employee. More particularly, they stipulate that any dispute between the CFSP Special Adviser and International Staff shall be submitted to an arbitration board under the conditions defined in the arbitration clause. The Commission furthermore stated that Articles 12 (Non-disciplinary appeals) and Article 13 (Settlement of claims) of the contract foresee specific procedures for disputes.
In its second opinion, the Commission added that the procedure in force not only guarantees a speedy and efficient implementation of CFSP missions based on Council Joint Actions, but also provides the staff of such missions, employed by the respective Head of Mission, with all the necessary provisions and guarantees an employee would benefit from in his place of origin. The Commission stated that it " is not planning to change the current practice ".
3.3 In their additional observations, the complainants observed that EUPOL Proxima was only the EU's second police mission. Therefore, some problems, such as problems
concerning the contractual situation of civilians, might be excusable as a start-up problem.
But given that the EU now already runs more than a dozen of such missions, the complainants strongly believed that civilian personnel in such missions should receive contracts comparable to those of the UN and the OSCE, that is, directly with the respective
