Brussels, 27 April 2021
The President of the General Court confirms R&D’s legal analyses of the unacceptable nature of the restrictions imposed on teleworking outside the country of employment during the health crisis
By his Order of 13 April 2021, the President of the General Court upheld an application for interim measures submitted by a colleague assigned to the European Institute of Innovation and Technology (EIT) against the decision to refuse her the opportunity to telework outside the country of employment during the health crisis
This Order is particularly interesting as the EIT applies much more flexible rules than those applied at the Commission, as the EIT allowed teleworking outside the country of employment during the health crisis up to two weeks per month.
And yet, it is to these rules, which are much more flexible than those applied by our institution, that the Order imposes the suspension.
Our colleague who lodged the application for interim measures complained, inter alia, that the restrictions imposed on teleworking outside the country of employment prevent her from seeing her two minor children regularly for an indefinite period.
Indeed, due to the COVID-19 pandemic, as for many other members of our staff, the possibilities for this colleague to travel regularly to see her family were compromised due to travel restrictions, possible limitations on the number of flights operated and higher flight cancellation rates.
Furthermore, the existing quarantine measures also threatened to reduce the time she could have spent with her family and children, while the prolonged social distancing and distance learning accentuated the role and importance of monitoring and support that parents must provide to their children.
In this regard, it should be borne in mind that the possibility of being close to their children is one of many of the reasons put forward by the Commission staff and of which we have informed our administration, for requesting the relaxation of the rules on teleworking outside the country of employment during the health crisis.
And we have repeatedly pointed out that the interests of the service must be balanced against the interests and personal situations of colleagues, in line with the duty of care.
As the Order points out, the present case was concerned with balancing, on the one hand, the interest in preventing serious and irreparable harm to colleagues because of the impossibility of maintaining regular contact with their minor children while carrying out their professional duties in the challenging context caused by the COVID-19 pandemic, and, on the other hand, the institution’s interest on the colleague working at her place of employment. Interest in working at the place of employment, which is all the less crucial given the current 100 % teleworking scenario adopted by our institution.
And this obligation of balance is, of course, the same where the request is motivated by the need to be with his or her spouse, his or her elderly or suffering parents, or by other significant difficulties with respect to family life. In order to assess the seriousness of these difficulties, it is sufficient to refer to the testimony given by the colleagues of the “TWA” group, sent to Commissioner Hahn on 12 April.
And contrary to what DG HR claims regarding the indisputable clarity of the scope and effectiveness of Article 20 of the Staff Regulations, the President of the General Court confirms that:
“(…) so far, the Union courts have not yet made an interpretation of Article 20 of the Staff Regulations and of the possible adjustments to the obligation arising from that provision in the context of exceptional circumstances such as those arising from the COVID-19 pandemic. Moreover, the existing case-law does not allow for an easy answer to that question, which requires, on the contrary, a thorough examination in the main proceedings… it follows from the foregoing that the main action raises an important and delicate novel question which warrants an in-depth examination, which cannot be carried out by the judge hearing the application for interim measures in the context of an examination of the merits, prima facie, of the main action, but must be the subject of the main proceedings.”
This is what we have consistently said and we are far away from the legal certainty that DG HR has constantly claimed, feeling entitled to accuse other institutions who had adopted a more flexible approach to teleworking outside the country of employment during the health crisis, of failing to comply with the Staff Regulations.
DG HR’s position is all the less understandable, as it proposes a much more flexible approach to teleworking outside of the country of employment in the context of the “New Normal” than during the health crisis, which is simply an insult to the colleagues who were denied their requests.
And the President of the General Court recalls, as we have consistently pointed out, the obligation for the institution to comply with the DUTY OF CARE and that:
“it should be noted that, although the institutions have a wide discretion in the organisation of their services and the organisation of the working conditions of staff in accordance with the constraints associated with the health situation, the exercise of that discretion must nevertheless be carried out in compliance with the duty of care. This reflects the balance of reciprocal rights and obligations that the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants of the European Union have created in relations between the public authority and civil servants.That balance means, in particular, that, when deciding on the situation of a member of staff, the authority must take into consideration all the factors which may determine its decision and that, in so doing, it must take into account not only the interests of the service but also, in particular, that of the staff member concerned… This is all the more true in the context of the current COVID-19 pandemic, which calls for the adoption of more important measures of care and support to respond to personal situations which make the performance of the duties particularly difficult’
It is in this context that the President of the General Court confirms that, as we have always stated, weighing up the interests tends in favour of our colleague, who should be allowed to telework from her children’s place of residence, provided that the situation related to the COVID-19 pandemic so warrants and without prejudice to the obligation to travel on an ad hoc basis to the place of employment for reasons related to the interests of the service, at the request of her institution.
In view of the above, we reiterate our request that the Commission, as well as to the other institutions, relax the current rules on teleworking outside the country of employment during the health crisis.
It is not a question, as DG HR claims, of calling into question and/or jeopardising the basic principles of our European civil service, which R&D has always defended with the utmost determination. It is not natural to imagine that the President of the General Court of the European Union could also be accused of it.
It is simply a question of taking into account the sometimes dramatic seriousness of the difficulties that colleagues may encounter because of the terrible COVID 19 pandemic.
Throughout this terrible pandemic, staff have continued to show exemplary dedication, enabling our institution to continue to carry out its mission.
It is now a matter of simply demonstrating that our institution is able to recognise these efforts by showing the attention and trust that our staff more than sufficiently deserves.