*Update 28.10.2024 we’ve added a status on the case(s) at the bottom of this article. Thank you all for your support!*
Original article: We start with a story[1]. There was once an EU Member State whose government was repeatedly named as a cause for concern with regards to its record on the rule of law (2020, European Parliament), the rights of women (2022, UN) and those of minorities (2022, Amnesty International) That government was also named as a cause of concern with regards to allegations of oppressing independent journalists and media freedom (2023, MFRR)[2].
After some initial hesitation and after an increase in the number of allegations of violating EU law (allegations subsequently confirmed and upheld in judgments of the EU Court of Justice), the Commission also expressed its words of concern. As a bonus, that same government was also accused of violating the Convention of Human Rights by the European Court of Human Rights, an accusation which was subsequently confirmed by rulings of that court.
In the face of the above, at that same time, a loyal Commission official, who believed in “European values” and who was a citizen of this same Member State, wrote a private and personal protest, from his private email address, to a representative of this Member State in Brussels. After discovering somehow that the sender of that email was an official and was working for the Commission, this Member State representative decided to forward that private-email protest to the Commission.
You might have expected that the Commission would have decided to defend its employee?
Unfortunately, this was not the case [3].
A disciplinary procedure was opened against the official. The Investigation and Disciplinary Office of the Commission (IDOC) investigators drafted a report accusing the official of breaching 3 articles (11, 12 and 17a) of the rules stating the fundamental conditions of service, together with the basic rights, duties and obligations of staff, the staff regulations. The case was then referred to the Disciplinary Board and after a year and half the procedure terminated with a disciplinary sanction (you can find the case, highlighted by IDOC, on page 10 of the 2023 IDOC report).
This was not the end of the matter: the repercussions went further. DG HR removed the official from the final promotion list published in November 2022, even though his name had been on that list in June[4], later explaining that this had been done:
“…taking into account the interest of the official and including the principle of presumption innocence”
The contradiction here could be inspired by Orwell.
You might think that probably the official deserved it?
Well, in an organisation which respects its rules and existing laws, that would indeed probably be the case, but in practice it is not always how things work. Within the Commission some of the potential issues are as follows:
– IDOC is a unit of DG HR and reports directly to the Director General of HR, which would appear to undermine investigative independence.
– The same person, called the Appointing Authority (normally the Director General of HR) opens the investigations and is responsible for their thoroughness and the time taken to investigate. That same person who effectively decides on disciplinary sanctions also decides on promotions and so has the authority to remove a name from a draft promotion list without any staff consultation. That same person is the last authority for all and any Article 90.2 complaints. This is an unnecessarily narrow focus of huge and potentially conflicting responsibilities in one person.
– In the case above, the IDOC report contained accusations which were subsequently largely rejected by the Disciplinary Board (only the breach of Article 12 was upheld)
– That Disciplinary Board indicated that IDOC’s chosen interpretation of events may well violate the freedom of expression of the individual (Article 42 of their report). This fact did not cause a visible reflection and did not influence the sanction decision.
You might think that such a system cannot guarantee fair treatment and impartiality?
You are right.
In 2019, on the occasion of a revision of the general implementing provisions (GIPs) on the conduct of administrative inquiries and disciplinary proceedings, staff representatives harshly opposed the proposed changes and issued a negative opinion. Nevertheless…nothing changed, DG HR would not accept redistributing or reducing this extremely wide range of powers.
The Commission would appear to have the potential to violate individual rights because there would appear to be no internal independent entity with the power to object to administration decisions.
At the end of any administrative procedure when your Article 90.2 complaint is rejected, you will be politely advised that you can go to court. The cost of a court procedure is currently around 20.000€ and if you lose you may well have to reimburse the Commission’s legal costs.
Such prohibitive legal costs make defending our rights purely theoretic, as most of us will not continue to object to the arbitrary decisions due to the cost and the uncertainty of the outcome.
I, Rafal STANECKI, am that official and I decided to fight
As a European I am disappointed that it is the European Commission that I have to sue against a violation of our rights, but someone has to be the first.
I brought 2 cases to the Court of Justice of the European Union due to differences in the procedural steps.
T-569/23 – against arbitrary removal from the promotion list (for being under a disciplinary procedure)
T-108/24 – against violations of the Charter of Fundamental Rights (freedom of expression & good administration)
If you also think that the current disciplinary system in the Commission and arbitrariness of DG HR’s decisions should be judicially verified, you can help me by contributing to the elevated legal costs via the Go Fund Me platform.
If I am successful and the Commission is obliged to reimburse my legal costs, you will be duly reimbursed.
I would like to thank you for reading this text and for your possible contribution.
If you think that defending our fundamental rights is worth your contribution, please share the story and the link with your friends and colleagues.
I went to court because I do believe that defending our staff and civil rights is extremely important and if not stopped the system will continue to deteriorate.
Feel free to contact me for details, to share your own stories or to offer encouragement!
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[1] Generation 2004 does not take any stance on Member State politics, but is outraged by the treatment received by this member of staff. We give full support to this colleague and we give him the floor in our newsletter.
[2] The resulting Media Freedom Rapid Response (MFRR) publication Media freedom at a crossroads: Journalism in Poland faces uncertain future ahead of election Mission report on media capture and vexatious lawsuits in poland by the media freedom rapid response was cofunded by the European Commission.
[3] The Staff Regulations contain a promise of assistance to staff in Article 24.
[4] The promotions and reclassification lists published in June are drafts only, the definitive list is published in November. We have previously outlined how an IDOC investigation might negatively impact your career progression, even if the accusations are later considered to be unfounded.
Update as of 28 October 2024
Some of you asked me for un update for a case. A very good idea!
On 24.9.2024 there was a 2.5 hour hearing at the EU Court of Justice in Luxembourg in the case T-569/23 (removal from a promotion list).
I would like to thanks all of you who could be present in the court.
A date for judgment is unknown, but it seems to me logically cumbersome to give a judgment in a case whose whole reason would be judged later (the case T-108/24).
The case T-108/24 is about the disciplinary sanction and the disciplinary procedure.
The Commission was eager to negotiate it to sweep it under the carpet, but I refused because the violations of our rights are structural.
The Commission has time till mid December 2024 to reply to my court plea. I expect the court hearing in the case T-108/24 early next year.
If there is any news you will hear from me.
Stay tuned!
