The Commission's most important asset is its staff. However, no organisation is immune to the risk of untoward conduct on the part of individuals. This may range from officials who do not discharge their duties satisfactorily, to staff who behave corruptly or fraudulently. In this respect the Commission is aware not only of its great responsibility to taxpayers, but also of the need to set an example as the joint authority for 25 - and soon more - Member States. The Commission's work can be successful and meet with citizens' approval only if its policies are credible and honest. The reform therefore aims to maintain within the Commission a culture of clear ethical rules which are constantly self-renewing and self-reinforcing.
The Commission is also endeavouring to place the whole sphere of underperformance, discipline, wrongdoing and the reporting of wrongdoing on a new footing. The aim is to ensure that untoward developments are detected as soon as possible and that effective but fair and consistent disciplinary measures can quickly take effect.
- Early detection of professional incompetence
- Disciplinary proceedings
- Making damage good: financial responsibility
- Whistleblowing: reporting serious
- Mediator: settling disputes
- Conflict of interest
The key aspects of this context are poor level of performance, such as poor timekeeping or working to rule. Hitherto, the only disciplinary procedures available were those applicable in the case of serious wrongdoing, such as refusal to carry out duties, conspicuously frequent absences from the workplace or breach of criminal law. Consequently, management often failed to take action against it or, if it did and disciplinary proceedings were initiated, this was tantamount to using a sledgehammer to crack a nut.
The new annual appraisal system monitors efficiency, ability and conduct of officials continuously, so that professional incompetence can be detected at an early stage.
For this purpose, the Commission Decision C (2004) 1597 dated 28 April 2004 sets out the measures to be adopted to maintain the performance of Commission staff at a level compatible with the requirements of the European civil service.
If an official’s standard is found to be insufficient, the reporting officer (RO, normally the direct superior) should immediately take every supportive and remedial actions s/he considers necessary. In a dialogue with the jobholder concerned, the RO has to identify the reasons for the insufficient performance/underperformance and decide on the appropriate action to be taken (supportive and remedial programme, see below).
It is necessary to stress at this stage on the following point : Personal difficulty: Where the performance problem appears to be related to a personal difficulty, either medical or social, appropriate steps shall be taken in the light of the outcome of the consultation between jobholder and the relevant services (under the strict respect of data protection rules) ; but in any case those specific difficulties are out of the area of the decision on maintaining individual professional standards.
Where the CDR gives an overall score between 9,5 and 7,5 points out of 20 the RO draws up a supportive and remedial programme on targets to be achieved within one year for the staff member concerned.
If after one year difficulties have been overcome (with an overall score of ten points or more out of 20) this will be notified in the CDR for the current year, and the procedure shall be terminated.
If the difficulties have not been resolved, this will
be notified in the CDR, too, the official can be required to endeavour to
achieve an adequate level of performance within a period of six
months, and trigger subsequent remedial action:
- Where the performance problem seems to be caused by a mismatch
between the training and skills of the official and the requirements
of the job, s/he might be assigned different tasks within the same unit
or to another unit. The official concerned must be informed and consulted
- Specific individual programme may be drawn up, incorporating, for example, a limited number of specific job targets, clear criteria for success, progress reviews and a final evaluation, including tailor-made retraining specifically designed to improve the requisite skills. The official concerned must undertake to follow such training. Also the performance standards to be attained within one year is to be indicated. Where the official is clearly unwilling to cooperate in the process, the procedure shall be taken further (see below).
Where an official's CDR shows an overall score of seven points or less, such a specific individual and reinforced programme (see before) is to be initiated without delay.
If it turns out that after a further dialogue with the official and reassessed of her/his performance in a new CDR, it has become adequate, the procedure can be terminated.
If performance remains insufficient, the official can be required to endeavour to achieve an adequate level of performance within a period of six months. If, at the end of the six-month period, the level of performance remains insufficient, the procedure provided for a dismissal or downgrading (Art. 51) may be initiated.
Thus, in any case/in both cases, the official has had at least
18 months to improve or her/his performance from the date of the
first CDR clearly indicating that it is inadequate.
Within three months of being informed of the continued inadequacy, the Appointing Authority has to initiate the dismissal procedure according to Article 51 of the Staff Regulations. It submits a reasoned report (also to be included in the official's personal file) to the Joint advisory Committees on professional incompetence (JAC), which will immediately provide a copy of the report to the official.
The official is entitled to submit observations in writing and/or orally before the JAC and to call witnesses.
The JAC has to give a reasoned opinion within two months, indicating what decision, if any, it considers to be appropriate.
The Appointing Authority takes the final decision within two months from
the opinion of the JAC and after hearing the official. Final decisions shall
be substantiated and shall indicate the date on which it takes effect.
- Administrative inquiries
- Disciplinary procedures (Disciplinary board and penalties, Outcome of disciplinary procedure)
- Training and a pro-active approach
The disciplinary system applies to any failure by an official or former official to comply with his or her obligations under the Staff Regulations, whether intentionally or through negligence. The Commission's Investigation and Disciplinary Office (IDOC), part of DG ADMIN and headed by a Director, is entrusted with the task of conducting impartial, coherent and professional administrative inquiries and of preparing disciplinary procedures. The rights of defence of the official concerned are ensured at all procedural steps.
There is a clear separation between, on the one hand, (1) administrative
inquires and, on the other hand, (2) disciplinary procedures:
Administrative inquiries (Articles 1 and 2 of annex IX to the Staff Regulations and Commission decision C(2004) 1588 final/4 of 28.4.2004) can be conducted either by OLAF or by IDOC. While OLAF's mandate covers irregularities harming the Communities' financial interests as well as serious failures relating to the discharge of professional duties, IDOC's administrative inquiries deal with all other matters relating to possible failures to comply with the various obligations incumbent on Commission staff. IDOC is therefore under an obligation to consult OLAF before opening an administrative inquiry, in order to make sure that OLAF is not itself undertaking an investigation into the same issue. If this is not the case, then an administrative inquiry may be opened by the Director General for Personal and Administration in agreement with the Secretary-General. IDOC then conducts this inquiry and establishes a report which sets out the facts and circumstances in question; this report must also establish whether the rules and procedures applicable to the situation were respected and determine any individual responsibility, with due regard of aggravating or mitigating circumstances.
As soon as an administrative inquiry suggests that an official may be personally involved in the matter under investigation, that official shall be informed, provided that that information does not hinder the inquiry. In any case, conclusions referring to an official by name may not be drawn at the end of the inquiry unless that official has had the opportunity to express an opinion on all the facts which relate to him or her. The conclusions shall record that opinion.
The outcome of an administrative inquiry is either that the case is dropped, that a warning is addressed to the official or that a disciplinary procedure is opened.
Disciplinary board and penalties
Disciplinary procedures can be conducted with or without involvement of the Disciplinary Board, a consultative body consisting of members nominated by the Appointing Authority as well as by the staff committee. The Disciplinary Board must be consulted if the Appointing Authority considers that a penalty with financial impact may be appropriate (i.e. every penalty beyond written warning or reprimand).
Under the reform, further important changes regarding the conduct of these disciplinary procedures have been introduced in the Staff Regulations (see the new Annex IX):
- Concerning disciplinary sanctions, new penalties were added and
existing penalties modified in order to have a more detailed and appropriate
choice of such sanctions. Sanctions can be classified in penalties without
financial impact, i.e. those of a written warning and reprimand, and in
penalties with financial impact. The latter range from deferment of advancement
to a higher step for a specified period to removal from post, including,
where appropriate, reduction of pension or withholding of an amount from
an invalidity allowance. It should be noted that the procedures laid down
for disciplinary matters must also be observed in the case of a procedure
concerning the pecuniary responsibility of an official under Article 22
of the SR.
A catalogue of criteria was added in order to ensure the proportionality between the misconduct and the disciplinary penalty.
- The Commission's Disciplinary Board will now have a more stable, permanent and independent structure. The Board will consist of a president and of 2 chambers, one for the most senior officials (AD 15 and AD 16) and the other for all officials below these grades. The president cannot be a serving official but must be a former official or former member of a European institution. The composition of these chambers follows the principle of "being judged by one's pairs". The term of office will be a maximum period for three years, renewable.
Outcome of disciplinary procedure
For the disciplinary procedure itself, the following changes were introduced in order to accelerate and strengthen this procedure:
- If the official concerned acknowledges his misconduct, the Appointing
Authority has the possibility to withdraw a case from the Disciplinary
- The official may choose to comment in writing or be represented by a
person of his choice if he or she cannot be heard for objective reasons.
- The Appointing Authority is represented before the Disciplinary Board
by the Director of IDOC and will have the same rights as the official
- The Appointing Authority can now decide without consulting the Disciplinary Board on the deletion of a disciplinary penalty from the personal file.
In case accusations of serious misconduct are brought against an official and s/he is suspended, the period for the suspension of parts of his or her remuneration is prolonged from 4 to 6 months; for officials in detention, this period can be further extended until the official concerned is released.
Costs incurred on the initiative of the official concerned shall in principle be borne by the official where the disciplinary procedure results in any of the disciplinary sanctions; under the former Staff Regulations, these costs were reimbursed when a minor sanction (written warning or reprimand) was imposed.
Overall, more transparency of the disciplinary system has been achieved by putting together all rules governing discipline in one coherent part of the Staff Regulations: annex IX.
The Court of First Instance is competent for disputes arising under these provisions after internal appeals have been lodged.
The decisions on disciplinary matters taken by the appointing authority or a summary of those decisions are published once a year. The names of the officials and any other information which could identify them have to be omitted.
Officials appointed as members of the Disciplinary Board receive specific introductory training as soon as possible after their appointment.
Prevention and publicity: IDOC also participates in a pro-active approach through information and transparency which should help to avoid disciplinary measures. For this purpose, the Administrative Guide, which sets out the rights and obligations of officials, the rules of conduct they are required to follow and the consequences which violations of those obligations may engender and examples of faults, must be regularly updated and made accessible to all members of staff.
Commission decision (C 2004, 1588 final/4) of 28.04.2004 on general implementing provisions on the conduct of administrative inquiries and disciplinary procedures Administrative notices N° 86-2004 /30.06.2004
Presence of a person chosen by an official involved in disciplinary procedures to assist him or her Administrative notices N° 45-2004 / 25.05.2004.
In the event of difficulties between the administration and staff, the mediator is to provide rapid solutions by helping to resolve disputes in an unbureaucratic manner. The mediator is not directly empowered to take decisions, but is instead to act as an arbitrator and conciliator. He/she deals with individual cases only, is independent and does not participate in devising and implementing overall staff policy.
Nevertheless, the mediator's office can well avoid a good deal of difficult administrative work elsewhere by settling differences of opinion at an early stage, thus obviating the need for a hearing before, for instance, the European Court of Justice. In addition, complaints under Article 90 of the Staff Regulations can well become unnecessary or their numbers could at least be reduced if they could be settled quickly, informally and unbureaucratically by other means.
Under the reform, the mediator's office's has been given a more significant and prominent role in resolving difficulties between staff and the administration:
- to guarantee its complete independence it is now an autonomous department which, administratively, is answerable to the Secretariat-General instead of to the Directorate-General for Administration, where conflicts of interest may arise;
- the mediator and his/her deputies are appointed by the President;
- the mediator reports directly to the College;
- Commission staff is made more aware of the advantages of having the mediator's office deal with any complaints they may have;
- staff at the mediation office has been increased accordingly.
Where appropriate, the mediator is able to send departments written recommendations for resolving disputes. If such comments are rejected in writing, the mediation office is entitled to demand a written explanation from the department rejecting them. In the event of continued disagreement with that department, the mediation office is if necessary to be able to submit the case for consideration and decision by the Director-General responsible.
The services of the mediator's office are not intended to be available to individual officials/servants only; Commission departments too are to be allowed to have recourse to the mediator. However, the mediator's office is not to act if investigations by the Anti-Fraud Office or legal proceedings before the Court of First Instance are still pending. The mediator's office is henceforth to be allowed to present annual reports, which may contain general recommendations for improving relations between staff and the administration and avoiding similar problems in future.
The mediator is to be assigned two deputies, since enhancing the role of the mediator's office's will add to the demand for its services. Implementation of the staff reforms are also expected to result in additional work for the mediator's office.