Brussels, 5 December 2018

 

Note to attention of Mr J-C Juncker, President of the European Commission and

Mr Martin Selmayr, Secretary-General of the European Commission

 

Subject :    Request for publication of a new vacancy notice for the appointment of the Mediator

Ref :            Judgment of the General Court T-688/16 annulling the appointment of the Mediator and the intention of DG HR to “resuscitate” the old procedure organized in 2016 instead of proceeding to a new publication

 

 

As this is a post in the Secretariat-General’s organizational chart whose appointment is the responsibility of the President of the Commission, we request your intervention so that the new procedure for the appointment of the Mediator is finally an exemplary one.

Indeed, it is time to finish with DG HR’s approaches clearly aiming at weakening the role and the perception of the Mediator’s independence through repeated dysfunctions in the appointment procedure (see below) and by a chronic lack of resources that does not in any way allow this Service to accomplish its missions. Except of course if this is the goal to be achieved…

There is a consensus among the experts that a real anti-harassment strategy and effective conflict management require, first of all, the establishment of a real professional mediation service.

This is also what emerged from the seminar organized in 2015 by the Committee on Budgetary Control chaired by Ms Graessle.

It is not necessary to be an expert to understand that the Mediator must be able to use procedures that will enable her or him to fulfil her or his tasks. He or she must also respect at all times the principles of neutrality, impartiality, independence and confidentiality, and her or his service must be perceived as fully respecting these principles since the nomination procedure.

However, the repeated DG HR’s “exploits” concerning the appointment of the Mediator are as surprising as they are worrying.

Indeed, by

• first trying in 2013 to appoint the Mediator with regard to Article 7 of the Staff Regulations without publication and simply by internal mobility,
• keeping the post vacant for 3 years (sic!),
• suddenly reclassifying the post as Senior Advisor without worrying about the lack of resources available,
• publishing finally in 2016 a vacancy notice by retaining only one candidate and excluding from the short list even the colleague who performed the duties for 3 years,
• depriving the Staff Committee consultation of any useful effect by limiting it to the single shortlisted candidate and, finally,

• resurrecting the procedure launched in 2016 and refusing to proceed to a new publication of a vacancy notice following the annulment of the appointment by the Court…,

DG HR is taking measures to deprive this appointment of all the guarantees necessary to ensure the independence of the role.

As for the possibility that the “resurrection” of the 2016 procedure without publishing a new vacancy notice is imposed by the judgment of the General Court, as DG HR seems to claim, it suffices to recall DG HR’s position in its replies following complaints made in comparable situations:

“(…) in the event that a recruitment procedure has been annulled by the by the Courts of the European Union, the annulling judgment cannot in any way have any effect on the discretionary powers of the administration to extend its choice in the interests of the service by withdrawing the vacancy notice and by opening, at the same time, a fresh procedure to fill the contested post (see, mutatis mutandis, judgment in Menidiatis v Commission, EU: F: 2012: 89, paragraph 37)”

In view of the above, as the case concerns a post in the organizational chart of the Secretariat-General whose appointment is the responsibility of the President of the Commission, we ask you to:

• ensure the transparency of this appointment procedure and the widest choice of the best candidates by publishing a new vacancy notice for this post;
• go along, in the framework of this new procedure for this highly specialized post, with the suggestions of both the EP and the European Ombudsman to involve external experts in the field of mediation;
• finally provide this Service with the resources it needs to function properly and meet the expectations of the staff.

As part of the procedure for appointing the new Secretary General, you have already been able to appreciate how a poorly organized appointment procedure makes the choice questionable and weakens the perception of independence of the successful candidate, without prejudice to its merits.

R&D does not call into question the merits of the colleagues who submitted their candidatures in 2016, nor those of the colleague who introduced the appeal, or indeed of the Mediator whose appointment has just been annulled.

Our intention is merely to emphasise, once again, that the transparency of the appointment procedure and the involvement of the Staff Committee are essential prerequisites and essential elements as they contribute to the Mediator’s independence perception and, above all, are in the interest of the candidate finally chosen.

A radical change is needed and not a new profusion of empty slogans, a new collection of good intentions … and even less a new exploit in the implementation of this appointment procedure…

Please find below further details regarding the elements supporting our requests.

Cristiano Sebastiani

President

 

Copies :

Ms. C Martines President’s Head of Cabinet

Mr G. Oettinger, Commissioner in charge of Budget and Human Resources

Mrs I. Souka, DG HR

Mr L. Romero Requena, DG SJ

Mrs E. O’Reilly, European Ombudsman

Ms I. Graessle, president of the EP CONT Committee

The staff

 

Annex

Restatement of the facts

The Mediation Service of the Commission: … lots of verba … and no facta!

R&D has always denounced the discrepancy between, on the one hand, the political declarations and the zero tolerance strategy accompanied by the observation of ONLY ONE case of proven HARASSMENT and, on the other hand, the sad reality of a deplorable management of harassment recognized by colleagues themselves, whether they have been abused or simply called to testify at IDOC, particularly when the allegations concerned middle or senior management.

It is clear that the Mediation Service is currently unable to meet the needs of our institution and is completely unable to do justice to the growing number of colleagues who call on it.

While R&D uses the best specialists in the field and presents concrete and operational proposals …

Faithful to its commitment to always support our critics with constructive proposals, R&D organized a seminar by inviting specialists to present its concrete and operational proposals to finally provide our institution with a mediation service which meet the needs and expectations of staff (read the conclusions).

… the only moment when DG HR seems to be interested in the Mediator is during the appointment procedure …

Everyone should understand that the transparency of the appointment procedure and the involvement of the Staff Committee are essential prerequisites and essential elements as they contribute to the perception of the independence of the Mediator.

However, rather than examining the functioning, the means and the resources made available to the Mediation Service … DG HR, faithful to its vocation as an “appointment machine” seems to show an interest in this service only in the course of each appointment of the Mediator ….

Because under the “fait du prince’s” rule, there is no room for a real mediation service …

It is not surprising that an administration inspired more and more by the “fait du prince”, as the basic principle of its decisions, being more and more haughty and intolerant with respect to any criticism… naturally always convinced to know the best candidate … may have already collected timeless “exploits”.

… with DG HR which collects a series of timeless “exploits”…

The saga begins in 2013, by the attempt of DG HR and SG to proceed to the appointment of the Mediator by simple internal mobility and without publication …

On that occasion, DG HR and the SG had envisaged to make use of Article 7 of the Staff Regulations and proceeded to appoint the Mediator without prior publication of the post, to be filled by mere internal mobility, obviously in the interest of service…

We had immediately indicated that the first result of this procedure would be to deprive the appointed colleague of any credibility regarding his independence from the administration and hence destroy the credibility of the Mediation Service itself … except of course if this was the objective sought … in which case the approach chosen was the best one possible.

Given the absolutely untenable nature of this approach and the very strong reaction of the staff representation, the administration had finally given up the idea of appointing the Mediator by simple mobility and without any transparency.

Between 2013 and 2016, that is THREE YEARS (sic!), we were only entitled to an acting Mediator!

Apparently unable to prepare the announcement of this post, it is only in 2016, 3 years later, that the administration finally proceeded to the publication of a vacancy notice.

Clearly, keeping an acting Mediator for such a long time must have been seen by DG HR as a solution to enhance the perception of her independence…

Just before relaunching the appointment procedure, the post of Mediator is requalified as Senior Advisor

In this respect, we immediately stressed that it was not by re-qualifying the post of Mediator as a senior advisor, which the successful candidate would be assigned to, that this Service would be able to overcome the operational difficulties noted in its activity reports.

In 2016, the appointment procedure is finally launched … depriving the opinion of the Staff Committee of any useful effect…

If after 3 years DG HR could overcome its aversion to wasting energy by finally publishing the post, it was obviously too much to ask DG HR to ensure compliance with the obligation to obtain the opinion of the Staff Committee imposed by the 2002 decision.

Obviously, under the “fait du prince’s” rule, this is a useless step and an unacceptable obstacle to the complete freedom in choosing the best candidate for this post.

Like R&D, the Staff Committee immediately denounced the unacceptable nature of this approach and asked that it be able to obtain all the information concerning the comparison of the merits of the candidates and be able to give a detailed opinion.

Needless to point out that DG HR had then rejected all the requests and had arrived at decreeing that it was entitled to note the absence of opinion of the CSC, thus proceeding without delay to the nomination of the selected candidate.

In 2018, as R&D had indicated and by repeating our criticisms word for word in its judgment … the Court notes the illegality of the decisions of DG HR and annuls the appointment of the Mediator (read)…

In order to appreciate the lack of trust and demotivation of the staff, it is sufficient to note that in response to our communication, while welcoming the Court judgment, many colleagues have expressed their conviction that the administration would simply relaunch the procedure, this leading to the same result.

This is not only to demonstrate that the opinion of the Staff Committee has no impact and serves no purpose but also to demonstrate that challenging an appointment before the Court is useless even in the event of a favourable judgment.

In view of the foregoing, R&D calls for a new publication of a vacancy notice for the post of Mediator, and for adopting all organizational measures to ensure the best conditions for this selection.