Brussels, 23 March 2018
Note to Mr Günther OETTINGER
Commissioner in charge of Budget and Human Resources
Subject : Your reply of 9 March to our note of 28 February concerning the College’s decisions of 21 February on the appointment of Mr Selmayr as the new Secretary-General and on several other appointments of Directors-General and Deputy Directors-General.
In our note dated 28 February (link) we had drawn your attention to the deep perplexity voiced by the staff of the Commission and other institutions vis-à-vis these appointments, and we had relayed various questions to you.
As part of the frank and open dialogue with staff representatives that you wished to establish, we would like to express our disappointment on the clarifications put forward in your reply of 9 March (link). Unfortunately, these do not meet the questions we are entitled to ask ourselves and, above all, they remain surprisingly silent on some of them.
Regarding the massive support reactions of our colleagues to our approach
As a starting point, I would like to inform you that, after the circulation of our notes on this hot topic to your attention as well as to Mr Selmayr’s (who still hasn’t unanswered to this day…), we recorded unprecedented support and strong encouragement to relentlessly continue our efforts for the general interest, and we would like to sincerely thank the hundreds of colleagues who have shown their support to the difficult task of calling you to greater lucidity on the events and on their potential consequences.
These reactions are all the more significant given the heavy climate of fear and forced loyalty that broke out within the services to which the brutal dismissal of our three colleagues Directors-General has undoubtedly contributed. This is how most of our colleagues confirmed the informal nature of their signs of support.
The message we are sending you, on behalf of our colleagues, is very clear: in the name of the general interest, your staff is not willing to pay the consequences of the political and media crisis triggered by the appointment of the new Secretary-General, and even less keen to be imposed a new reform of the Staff Regulations.
A major political crisis that severely damages the reputation of our institution
It is with consternation that the staff became aware of the spate of articles from an indignant press (see press review in annex) of the stormy climate of your hearing at the EP (Commission’s Integrity Policy, in particular the appointment of the Secretary-General of the Commission … see the video), and of the 140 questions that COCOBU (link) has just sent to the Commission as part of the ongoing investigation in view of the vote of the plenary of the EP, planned for 18 April.
This is purely and simply a first!
However, we note that, about the appointment of the new Secretary-General, your answer firmly resumes the same arguments you put forward during your hearing of 12 March at the European Parliament — hearing which did trigger major outcry —, immediately relayed by a press, as indignant as the MEPs, unanimously highlighting the Commission’s lack of awareness of the seriousness of the situation.
Your attempt to convince your political and media interlocutors that the criticisms they expressed against this appointment would be unfounded, that the Commission had, in this case, “religiously respected the letter and the spirit of the Staff Regulations” in a gesture worthy of the “2018 Ideal Procedure Award”, proved to be perfectly vain, if not counter-productive.
The clearly predictable consequence of your speaking in Parliament will have been — as MEP Verhofstadt, who is certainly not a Eurosceptic or an enemy of our institution, confirmed to President Juncker (link) — that, for the first time of this legislature, ALL the deputies, regardless of their political orientation or the strength of their commitment to the European project, rebelled against and totally rejected your explanations.
Everybody accused the Commission of “treating them as children” or “as fools” or that “you had to be blind, deaf and stupid” to believe your words.
And to highlight the seriousness of the crisis of confidence, Mr Verhofstadt openly said that the Juncker Commission was taking the risk of following the fate of the Santer Commission.
Yesterday it was the turn of the delegations in the Council to express their criticism by inviting the Commission to cooperate loyally with the EP.
No, Commissioner, the Staff Regulations has nothing to do with it, and it is out of the question that the staff will undergo yet another punitive reform, as in 2004.
Worse still: by trying at all costs to convince that, in proceeding with this appointment, the Commission had simply religiously respected the Staff Regulations, you suggested that the Commission could soon do it again with other jobs / officials.
It was therefore inevitable that the only possible political response to your defense tactics was to urgently demand you… a change in Staff Regulations! This is exactly what several members told you during your hearing.
However, in your reply, it was with great surprise that we took note of your response to the MEPs about a possible reform of our Staff Regulations: “if you want to change it, we will have to talk about it” and that “(…) the Staff Regulations can be changed.”
However, in this controversy, the Staff Regulations have nothing to do with it: the general principles of equal treatment of potential candidates, publicity and transparency of the selection procedures of officials within the Union’s institutions are well stated in our Staff Regulations and are fundamental rules to which the institution cannot derogate.
This is what we are asking you to strongly reaffirm during your hearing on March 27 before the COCOBU.
The Commission’s implementation decisions need to be improved in-depth
The internal decisions and procedures of the Commission implementing these provisions must be amended to meet the expectations of the press, the EP, the European Ombudsman, the public opinion but also and above all, of your staff, who has the right to ensure that the vocation of staff to pursue a career within the institution is taken into account, in order to avoid the massive use of transfers in the interest of the service, so as to not publish the posts and to not make a real comparative analysis of the applications, or to abruptly dismiss colleagues and totally politicize the nominations, etc.
Similarly, we must put an end once and for all to the hateful practice of the “elevator”, namely the appointment, sometimes even through an “external” procedure, of a cabinet member to a managerial position that s/he will actually never hold, to be seconded right after to a cabinet, sometimes the same, having thus acquired the grade and level of a job never practiced, and to the “parachuting” of which Mr Selmayr himself — with very clear and praiseworthy remarks — so well recognized the harmful consequences, subsequently denied by the facts and that we obviously were the only ones to take seriously (read our notes of 28/02/2018, 09/01/2018, 02/06/2017, 16/05/2017, 22/03/2017, 06/02/2017).
In addition, it is also necessary that the Administration commits to fully assuming its role of guardian of our Staff Regulations and ceases to appear as a simple and docile linchpin!
This commitment is all the more urgent as many more “parachuting” have already been announced before the end of the Juncker Commission.
As to the rest, we believe it is appropriate to deal, without further delay though with humility and lucidity, with the reservations expressed towards this appointment and to provide the explanations, which the Commission must communicate, in a transparent manner.
We must start by immediately correcting a disastrous communication strategy that has largely contributed to the outbreak of the current political crisis.
Procedures “à la carte”?
In the Commission’s first press statements, it was quite inappropriate to let believe that in our institution the choice of the procedure for filling the posts would be left to the candidate’s discretion (but obviously not just any…), like a menu of the day.
Instead of contributing to the confusion, the Commission should have clarified the basic difference between the grade of a staff member and the level of her/his employment as a result of her/his normal career progression, and those which can to be attributed to her/him during a temporary secondment to a cabinet.
Articles 37 and 38 of the Staff Regulations are unambiguous in this respect: the level of the job held within a cabinet and the corresponding grade are, by nature, only temporary.
At the end of such secondment, the officer resumes her/his career at the grade and level of employment s/he held before her/his secondment.
Insofar as Article 29 of the Staff Regulations strictly regulates the way the institution can provide for the employment of Deputy-SG, the explanations initially given, claiming that Mr Selmayr would have chosen the “most difficult” procedure, not only lack any legal basis, but they have undeniably added legal controversy to political polemics, suggesting that, in our institution and with regard to our Staff Regulations, the choice of procedure would be left to the discretion of the candidate (but obviously not just any…), à la carte!
How many applications for the post of Deputy Secretary-General? “Several”, then “Less than four”, then “only two” and finally “only one”… Will anyone go lower?
Likewise, it is inconceivable to have surrendered as the Commission did, to contradictory successive statements as to the number of candidates for the post of Deputy Secretary-General, varying (depending on the outside temperature?) from “several” to “less than four”, to “only two”… to end up admitting that “only one”, that of Mr Selmayr, remained in competition after the other candidature was withdrawn just before the beginning of the evaluation procedure.
During your hearing at the EP, we noted that you have not denied the statements made by the press or contradicted those of the Members on this issue. They all tended to say that, during the selection procedure for the filling of the post of Deputy Secretary-General, no comparative analysis of the candidatures had been possible, since the only other application submitted by the President’s deputy head of cabinet had been withdrawn before the start of the evaluation procedure and that only Mr Selmayr was a candidate for the post.
Without waiting for this to be revealed and thus sparing our institution the suspicion of non-transparency, which has hung over it ever since in the international press, the Commission should have therefore confirmed in all sincerity and from the outset how the procedure had unfolded.
To that end, why did you try to trivialize the process of appointing the Deputy Secretary-General, stating as you do in your reply, that it is normal, in the context of a nomination procedure, that “certain applications are withdrawn “?
You forgot that, in the present case, not only were there only two applications, but the second was almost immediately withdrawn and came from a colleague who was subject to the direct authority of the successful candidate and who, once the appointment was decided, took the place that had remained free!
To cut short and to appreciate the so-called banal character of such a situation, can you tell us if such a situation has already been verified, even just once, in the history of our institution?
Rather than trying to claim that Mr Selmayr’s choice was made following the comparative analysis of several candidates, the Commission would have done better to assume its political responsibility by waiving its right to re-publish the call for applications to create new ones.
It is now urgent to provide the appropriate explanations in relation to aspects that it is useless to continue to deny and the Commission must assume the political responsibility for its decisions.
It is perfectly useless to deny the unique nature of the concomitance between the appointment of Mr Selmayr as Deputy Secretary-General and his transfer, the next minute, to the Secretary-General’s seat, which was still warm by the incumbent who had just resigned.
The Commission can at most try to defend the full legality of this unique phenomenon of perforation of the administrative space-time on the grounds that there is no legal provision expressly prohibiting it, according to a model stating that it would be “forbidden to forbid what is not”.
To cut short and in order to appreciate the supposedly ordinary nature of the approach that the Commission is trying to defend, can you tell us in how many other cases this double procedure has been followed in such a small space-time?
It is equally useless to deny the unprecedented nature of the choice of a Secretary-General who has never previously exercised responsibility for an operational service. Just as it is futile to refuse to assume the political responsibility for such a choice, which undoubtedly constitutes a profound break with the usual practice in this area ever since the creation of our institution.
To date, the secretaries-general \who succeeded Mr Emile Noel had come from the ranks of colleagues, all of whom had actually held senior management positions, even Director-General in a DG.
Our aim is not to question the professional qualities of Mr Selmayr or the formal legitimacy of the President to appoint the Secretary-General of an institution he presides.
Nevertheless, it is impossible to deny that, in this case and for the first time in the history of our institution, the choice fell on a colleague who had no experience of supervising a European operational service.
Explaining and assuming the political responsibility for such a surprising break with past practices: this is what your interlocutors have kept asking you, tirelessly, without ever getting an answer.
Blunt dismissal of management of three Directors-General: Unum castigabis, centum emendabis?
We also note that in your reply you did not feel it was necessary to answer our questions concerning the treatment, for the least expeditious, reserved to three of our colleagues Directors-General who were informed, within a few minutes of interview and without prior notification, of the irrevocable decision to terminate their duties immediately, a decision to be ratified the morning after by the College.
We had, however, pointed out that your explanations on this issue were all the more necessary because an imaginative press was already fantasizing about the possibility that these decisions actually came from the future-ex-head of cabinet of the president / future-new Secretary-General, who would have begun to shape the Commission “by dismissing Directors-General he did not like”.
Should we regard your silence on this aspect of the case as a benevolent guarantee of the method used?
Did the Commission also “religiously respect the spirit and the letter of the Staff Regulations” since they contain no written provision prohibiting such a procedure — quickly and informally implemented, in half an hour, from 6pm to 6:30pm — and they do not establish any specific format for the composition of the high-level delegation responsible for announcing the “good news”?
Why bother with these brief interviews the day before when a tweet would have done the deal, especially because “it is not prohibited”?
From the Commission “is not the Montessori School” to the set of “The Apprentice” (“You are fired!”): Is this the first application of a new management culture?
To stay with the television metaphor introduced by the press, which considers that the Commission suddenly became the set of “House of Cards”, we are more tempted here by the scenario of “The Apprentice: “You are fired!”.
As several members asked you during your hearing, it is necessary to deny unambiguously that it would actually be a question of implementing a new managerial style based on fear and no longer on loyal collaboration, definitely favouring blind obedience to the detriment of initiative and the collective independence of its staff. This would be a direct attack on the interests of the Union, its institutions and its public service.
This is also what we are asking you to strongly deny.
It is necessary to deny as clearly and equally, any political will to question the independence of our Legal Service, a real pride of our institution!
In the same vein, the staff was particularly shocked by the press articles and the questions raised by the deputies, reporting an alleged will to question the independence of our Legal Service, which carries out every day, as Politico says, a “sanity check” of our institution, and to place it under the authority of the Secretary-General.
Such a dismantling of the service responsible for ensuring respect for the rule of law in the Commission since 1958 would further aggravate the crisis of confidence between officials and the public vis-à-vis the institution.
We must not forget that the independence and excellence of our Legal Service is also a fundamental guarantee for European citizens who are entitled to be reassured that all the decisions adopted by our institution are fully respectful of the legal framework in force.
The rather timid and very vague denials, so far pronounced, are far from being able to allay these fears.
We are therefore asking you to reassure the staff and external observers by formally confirming that the Commission, all throughout the duration of its mandate, has no intention to:
Þ modify the organizational chart of the Legal Service;
Þ transfer it under the authority of the Secretary-General;
Þ change the structure, functioning and tasks of the Legal Service as they currently exist;
Þ take any action whatsoever that would undermine the independence of the Legal Service, or prevent it from providing the College with frank, objective and complete legal advice;
Þ prevent the Legal Service from continuing to file written submissions in all the prejudicial questions referred to the Court of Justice for a preliminary ruling.
In addition, in order to dispel the information reported in the press, announcing that this post will be subject to a further “parachuting” by simple transfer in the interest of the service, it is urgent to also confirm that, in the event that the current Director-General of the Legal Service would retire before the end of the term of office of this Commission, the choice of his successor will be the subject of the publication of an open and transparent selection procedure, since the appointment for the post of Head of the Legal Service is one of the most sensitive,
Conclusion
In view of the foregoing, we would be grateful if you could answer our questions, so that we could actually answer the questions of our colleagues, in the collective interest, and to safeguard the reputation of the whole institution already weakened by the unfortunate management of the Barroso case, and now undermined by this new political and media crisis that should have been carefully avoided while the European project is being challenged and subjected to populist attacks from all sides.
Cristiano Sebastiani,
President
CC:
Mr J-C Juncker, President
Ladies and Gentlemen College Members
Mr M. Selmayr, Secretary General
Mr L. Romero Requena, DG SJ
Ms I. Souka, DG DGHR
Mr C. Roques, Mr L. Duluc DG HR
Mr Verhofstadt, MEP
Staff of the European institutions