Were British Hats really left at the door?

The result of the June 2016 Brexit referendum was a massive shock for all colleagues in the EU institutions, but it was even more of a shock for British colleagues in terms of both the impact on their country and on their careers.

On the very dark day after the referendum one tiny glimmer of light for British colleagues was the message received from ex-President Juncker offering solidarity, saying that upon joining the institution we had left our “national ‘hats’ at the door”. The message went on to promise that the Staff Regulations would be “read and applied in a European spirit”. There seemed a general agreement among British colleagues that this message hit just the right note, and gave the necessary immediate assurance possible at that moment that Juncker would do his best.

British colleagues also were generally comforted by the many individual messages of support from colleagues and management alike at all levels.

Now, nearly four years on Brexit has happened, and while much may well still be to come in the tortuous Brexit saga, what of the British hats and the application of the staff rules in a “European spirit”? What has been the fate of British staff since those promises?

A key step was the March 2018 administrative decision (in French) of the College that the Commission would not seek to terminate the service of UK nationals who no longer fulfilled the provisions of the Staff Regulations because they were no longer a national of an EU Member State. This decision seemed to be the promised application of the Regulation in a “European spirit”. While some felt that the Commission might have gone further, by actively applying to British staff the derogation in the Regulations that allows the appointment of third country nationals, in general British staff were grateful for what they got.

In parallel though, many British colleagues who were eligible, applied for and many have now obtained citizenship of Belgium, or of other Member states, and this clearly gives greater certainty. However, obtaining the citizenship of the country where you work (e.g. Belgium) generally has the unfortunate effect of you losing the Expatriation Allowance, unless no time was ever spent living there prior to recruitment. However, some British staff have made this sacrifice, and not only are they no longer eligible for the 16% expatriation allowance, as nationals of the country where they work, they are also not eligible for the 4% foreign-residence allowance and lose their entitlement to the annual payment of travel expenses (see Case T‑18/19, 5 October 2020).

While the job-security aspects of having arrived with a British hat might have been largely addressed by the March 2018 decision, what about the other aspects?
Well, it must be noted that there has been a specific effort made by the Commission and the other EU institutions to address the issues facing British staff. A dedicated webpage was set up, information sessions were organised, and attempts were made to answer the many questions that have arisen. All this, to some extent, mitigated the effects of the referendum result for British staff.

However, there are still areas where British staff have lost out.

One area is career advancement. While, clearly British officials will still get promoted in grade like anyone else, (and presumably at the same rate), the question arises of whether British AD officials are really still eligible to be appointed to management positions.

Former Commissioner Oettinger, in a 2019 information session for British staff, said yes they were, and gave a hypothetical example of how a British colleague applying for a Head of Unit position should still be appointed if they are the best candidate. This seems fair, but there is general scepticism as to whether this would really be the case in practice. While it seems somewhat early to say, anecdotal evidence is that post-referendum British middle management appointments have been few and far between.

In addition, in a little-known 2018 HR report on geographical balance of EU officials, the Commission provides data to the Council comparing staffing levels by nationality with populations of Member states. There is specific data on management roles which are what Member states care most about.

The report has a “guiding rate” for fair representation of staff based on the proportions of the EU population from each Member State, however for British staff the rate is stated as 0%! The moment the UK left the EU, British staff went from being under-represented to being overrepresented. The report drily notes “…it does not seem appropriate at this stage to set a guiding rate for the representation of UK nationals in the future.”

With no allowance made for the British staff who have already begun their careers, the implication seems quite clear…

Would changing nationality help? As mentioned, many British staff have obtained a second EU nationality, they have then often changed their primary nationality in Sysper. The report states: “staff members from the United Kingdom who declare a change of nationality after 29 March 2017 shall still be considered to have kept the UK nationality as first nationality… Unless they provide evidence that they have irrevocably abandoned the UK nationality.” Ouch! It seems it is not so easy to lose that British hat.

As a consequence of the lack of management opportunity, British AD staff effectively become capped at a maximum grade of AD12, since promotion to higher grades is only open to Heads of Unit and above (unless you obtain a so-called ‘senior expert’ post).

As for the more politically influenced senior-management appointments, there seems to be a weary acceptance that these will stop completely for British staff.

Well, if you cannot be a manager how about the option of seeing the world? Many colleagues entertain ideas of one day serving in Commission delegations. Even if many never actually get around to doing it, colleagues value the fact that the possibility is there.

Unfortunately, a July 2018 note from the Commission and the European External Action Service (EEAS), clarifies that EU staff who have only UK citizenship can no longer serve in delegations. While obtaining another EU citizenship gets around this rule, is the rule fair or necessary?

The reason the institutions give is a legal one based on first point of Article 8 of the 1961 Vienna Convention of Diplomatic Relations, which states “Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State”.

However, while this provision read in isolation may arguably seem to exclude British staff from serving in EU delegations, the 2nd and 3rd points of the same article set out that a exemption can be made with consent of the “receiving state”.

Since, it is difficult to imagine that any host ‘receiving’ state would really have any objection to a UK national serving in an EU delegation in their territory, the Commission and EEAS position seems heavy-handed. Could they not simply seek receiving-state consent for each appointment?

Indeed, the note itself seems to confirm that this is legally possible by citing Article 8(3) with regard to the possibility that some British staff could have remained in delegations beyond the originally planned Brexit date.

Is there really then another non-legal reason behind this note? Well, it is clear that British staff should ideally not be involved in things where a conflict of interest is clear, such as trade negotiations with the UK. However, conflicts of interest in relation to our Member States are an everyday reality in the Commission, with many staff dealing frequently with their own Member state, including for linguistic reasons.

That is not to suggest that British staff should be appointed to senior roles such as Head of Delegation. As for senior-management posts there is a tacit acceptance that British staff will no longer get such roles.

It is true that British staff can apply for another citizenship if they are interested in serving in a delegation, but the reality is that for most British staff this means applying for Belgian citizenship, with usually an associated loss of the Expatriation Allowance whenever they return to Brussels. Is it at all fair that British staff uniquely should suffer this?

For British colleagues who are prepared to suffer this loss, the logistics of applying for a delegation position in a situation where you are not sure to get one, can mean losing the Expatriation Allowance for nothing. It seems again the British hat is hard to lose.

Finally, a word on British temporary staff. There remain a very small number of British contract and temporary agents serving in the institutions who were recruited before Brexit and who would normally be eligible for further contract extensions. These staff have loyally served the EU and should not be denied any further extensions purely based on their British hats.

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