*Update 23.06.2023 the Commission is to apply the judgment, but not to officials [1].* *Update 19.12.2022 C-366/21 P was successful [2]! Well done to everyone involved! Here’s an external evaluation [3] of the case and our own update [4].*
Original article: Legally speaking, is a contract renewal really a contract renewal? Is a second (or subsequent) contract considered to be a new stand-alone agreement or is it a continuation of an already-existing agreement? Given that Contract Agents (CAs) are now 25% of Commission staff [1]and will all require at least one contract renewal if they are to have their maximum (6 years plus the ‘unicorn’ year [5]), the outcome of the long-drawn-out Picard case (T-769/16 [6]) affects a growing number of colleagues. This is particularly important in the context of long-standing rumours on the reopening of the staff regulations and potential further erosion of salaries, careers and pensions. We ask all of you to please register and sign our ongoing CA petition at the European Parliament (EP) [7]. Even if you signed our original 2020 petition, please sign the one at the EP: the system does not allow us to transfer the original 1415 signatures.
Is it ever legally (or morally) defensible to be opaque in a contract renewal [8]?
Note that non-permanent staff have a particularly opaque situation in general, this in addition to the items listed above e.g. for CA colleagues a change in function group (notoriously difficult to achieve) may (or may not) result in a salary increase (compare FGI grade 3 with FGII grade 5 [9]) or, look at how the 2017 change in CA entry grades [10] means it no longer matters whether a candidate brings 6 or 26 years of professional experience with them, they will earn the same.
‘As the use of contract staff becomes increasingly common, there has been a corresponding increase in the diversity of status and pay of the Commission’s workforce. For example, GFIV contract staff meeting the same minimum recruitment requirements (education and experience) as junior administrators [AD5-6] may earn 28 % less than the latter. Currently around 6 % of staff, all of them GFI and GFII contract staff, earn less than the lowest paid official (AST/SC1 [secretaries and clerks], with a basic yearly salary around €32 400). Another third of staff (across all categories) earn up to twice that amount.’ (Paragraph 61, ECA Special report no 15/2019 [11])
Back to the Picard case, Generation 2004, together with other OSPs, have shared the costs of the pension-rights appeal of a CA colleague. We describe here the current state of play in this important case-law, while we await the final decision.
Context and timeline
- 2008 Maxime Picard (MP) signed the first contract as a CA in function group (FG) I at the PMO
- 2011 MP received a permanent contract
- 2013 (22 October) the second Staff Regulation reform
[12]
- 2014 (June) MP accepted a Commission proposal of a new contract in a higher functional group (FG II) via contract agent screening.
- MP received official decision from PMO on pension rights:
- accrual rate [13] changed from 1.9% to 1.8% for the same contribution
- pensionable age increased [14] from 63 years to 66.
| Recruitment date | Accrual rate | Normal pensionable age |
|---|---|---|
| Staff recruited from 01/01/2014 | 1,8% | 66 |
| Staff recruited between 01/05/2004 and 31/12/2013 | 1,9% | Between 63 and 65 |
| Staff recruited before 01/05/2004 | 2,0% | Between 60 and 65 |
- MP opened a formal complaint (Article 90(2) [15]): unsuccessful
- MP followed up with legal action: General Court of the EU
- 2021 (24 March) General Court dismissed the case
- 2021 (9 June) MP submitted an appeal against the General Court’s judgment.
- 2022 (14 July) Advocate General opinion (C‑366/21 P [16]):
- notes that the rights acquired under the first contract are not affected by the signing of a second contract; before recalling, by way of warning, that the conditions of membership of the pension scheme are likely to change in the future.
- proposes that the original dismissal of the court case (24 March 2021) should be annulled.
As above, the repercussions of this case are enormous for Article 3a [17] [2] CA colleagues who manage the almost-impossible task of achieving an exceptional upgrade from a lower functional group to a higher one. The general implementing provisions (GIPs [18]) 2017 (Changing function group) set out the process for a general ‘screening’ or ‘upgrade’ process which can be organised, by way of exception, by the administration, taking into account the numbers of potentially eligible staff and available funds[3].
CA 3a colleagues have to meet the following criteria:
-
have the qualifications required for advancing to the function group for which they are applying as part of the exercise;
-
have served as CA 3a staff at the Commission for at least three years;
-
not be reclassified in the next grade in the same function group, in accordance with Article 87(3) of the CEOS. (GIPs [18], Article 13)
Where successful, a CA 3a moves to the next (higher) function group and signs a new contract in accordance with the provisions of Article 5(2), (3) and (4)(a) of Annex III [18]. The administration has organised some screening exercises in Luxembourg and Brussels (OIL, OIB, PMO), however we have no information on any plans for future exercises. The outcome of the Picard case will tell us to what extent such a contract is really new or a renewal.
As always, we would love to hear from you. Please do not hesitate to get in touch with us [19] or leave a comment below.
If you appreciate our work, please consider becoming a member of Generation 2004 [20].
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[1] Using the ECA calculation method of officials, temporary and contract staff only (Figure 14, ECA Special report no 15/2019) CAs were 24% in 2019 (Point 43, ECA Special report no 15/2019 [11]) and are now 25% of Commission staff.
July 2022 [21] total of 32233 is reduced to 30073 on removal of staff in category ‘others’ (2160).
| Function group (FG) | Number of staff |
|---|---|
| I | 710 |
| II | 2011 |
| III | 1417 |
| IV | 3419 |
| TOTAL | 7557 |
| Year | CA staff as a percentage of Commission staff (officials, temporary and contract staff only) |
|---|---|
| 2013 | 20 |
| 2018 | 24 |
| 2022 | 25 |
*Update 09.04.2024 the Central Staff Committee (CSC) has again requested clear numbers on the numbers of CA staff at the Commission:
| Sending date n° Ares |
Title of Central Staff Committee note | Reply & date |
| 06/02/2024 (2024)887510 |
Renewed request for Statistical Data on the use of Contract Staff [22] | |
| 25/04/2023 (2023)2911987 |
Request for Annual Report on the use of Contract Agents and statistic data [23] | HR [24] Annex 1 [25] Annex 2 [26] |
[2] There are different rules for CA colleagues employed under contract 3b [27] (« 3 ter » or « agents contractuels auxiliaires »). Figures can be found in Annex 2 [26] in the table above: 3bs make up over half of all contract staff.
| 3a | 3b | total | |
| 2020 | 3496 | 3947 | 7443 |
| 2021 | 3529 | 3949 | 7478 |
[3] Update 10.04.2024 here are the CSC communications on contract agent screening exercises.
| Sending date n° Ares |
Title of Central Staff Committee note | Reply & date |
| 11/01/2024 (2024)173489 |
Contract Agent Career perspectives – participation to the screening exercises (Art 13(2) of Commission decision C(2017)6760) [28] | HR [29] 21/03/2024 |
| 22/03/2023 (2023)2081459 |
Contract agents — “screening” inventory and accelerated reclassification [30] | HR [31] 27/04/2023 CCP [32] 15/11/2023 |