# C_2010291EN.01000101.xml

| 27.10.2010 | EN | Official Journal of the European Union | C 291/1 |
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27.10.2010

EN

Official Journal of the European Union

C 291/1

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OPINION No 5/2010

(pursuant to Article 336 of the Treaty on the Functioning of the European Union (TFEU))

(pursuant to Article 336 of the Treaty on the Functioning of the European Union (TFEU))

concerning a proposal for a regulation of the European Parliament and of the Council amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of those Communities

2010/C 291/01

THE COURT OF AUDITORS OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 336 thereof, which provides that the European Parliament and the Council shall, acting by means of regulations in accordance with the ordinary legislative procedure and after consulting the other institutions concerned, lay down the Staff Regulations of Officials of the European Union and the Conditions of Employment of other servants of the Union,

Having regard to the proposal (1) for a regulation of the European Parliament and the Council amending the Staff Regulations of Officials of the European Communities (hereinafter the Staff Regulations) and the Conditions of Employment of Other Servants of those Communities (hereinafter the CEOS), mainly as regards the European External Action Service (hereinafter the EEAS),

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Having regard to the Council’s request for an opinion on the abovementioned proposal received at the Court on 21 June 2010,

HAS ADOPTED THE FOLLOWING OPINION:

Structure of the European External Action Service

Structure of the European External Action Service

| 1. | The draft regulation of the European Parliament and of the Council on which the Court’s opinion is requested aims to amend the current Staff Regulations and the CEOS, mainly in order to adapt their rules to the specific nature of the EEAS (2) which shall assist the High Representative of the European Union for Foreign Affairs and Security Policy in fulfilling her mandate pursuant to Article 27(3) of the Treaty on European Union (EU Treaty). The Treaty provides that the EEAS shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. |
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1.

The draft regulation of the European Parliament and of the Council on which the Court’s opinion is requested aims to amend the current Staff Regulations and the CEOS, mainly in order to adapt their rules to the specific nature of the EEAS (2) which shall assist the High Representative of the European Union for Foreign Affairs and Security Policy in fulfilling her mandate pursuant to Article 27(3) of the Treaty on European Union (EU Treaty). The Treaty provides that the EEAS shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States.

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| 2. | The organisation and functioning of the EEAS was established by a Council decision, adopted on 26 July 2010 (3) pursuant to Article 27(3) of the EU Treaty. |
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2.

The organisation and functioning of the EEAS was established by a Council decision, adopted on 26 July 2010 (3) pursuant to Article 27(3) of the EU Treaty.

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| 3. | According to the proposal for a regulation, the EEAS will be treated as an institution for the purposes of the Staff Regulations. Furthermore, it is proposed that EEAS staff will initially comprise only officials from the General Secretariat of the Council, officials of the Commission and personnel seconded from the diplomatic services of the Member States. It is also proposed that personnel coming from the diplomatic services of the Member States will be appointed as temporary agents. In the preamble of the Council decision, the High Representative is required to consider applications of officials from other EU institutions from 1 July 2013 onwards when filling a vacant post in the EEAS (4). |
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3.

According to the proposal for a regulation, the EEAS will be treated as an institution for the purposes of the Staff Regulations. Furthermore, it is proposed that EEAS staff will initially comprise only officials from the General Secretariat of the Council, officials of the Commission and personnel seconded from the diplomatic services of the Member States. It is also proposed that personnel coming from the diplomatic services of the Member States will be appointed as temporary agents. In the preamble of the Council decision, the High Representative is required to consider applications of officials from other EU institutions from 1 July 2013 onwards when filling a vacant post in the EEAS (4).

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| 4. | According to the Council decision, the EEAS will be made up of a central administration and of the Union Delegations to third countries and to international organisations. Each Union Delegation will be led by a Head of Delegation who will have authority over all staff in the Union Delegation, including Commission officials not belonging to the EEAS who work in Union Delegations. |
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4.

According to the Council decision, the EEAS will be made up of a central administration and of the Union Delegations to third countries and to international organisations. Each Union Delegation will be led by a Head of Delegation who will have authority over all staff in the Union Delegation, including Commission officials not belonging to the EEAS who work in Union Delegations.

General comments

General comments

| 5. | The Court considers that it will be a major challenge to form, from the different components of the EEAS, a homogeneous service with an appropriate esprit de corps to serve the interests of the Union. A precondition for success will be that staff from all components of the EEAS will be treated in an equal manner, having the same rights and obligations, regardless of whether they are officials of the EU or temporary agents coming from the diplomatic services of the Member States. |
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5.

The Court considers that it will be a major challenge to form, from the different components of the EEAS, a homogeneous service with an appropriate esprit de corps to serve the interests of the Union. A precondition for success will be that staff from all components of the EEAS will be treated in an equal manner, having the same rights and obligations, regardless of whether they are officials of the EU or temporary agents coming from the diplomatic services of the Member States.

| 6. | The Court recalls that the EEAS will be a functionally autonomous body of a sui generis nature, benefiting from its own section of the budget, while, at the same time, the EEAS will remain at Union Delegation level the relevant service to the Commission for the implementation of a wide range of operational appropriations from the ‘Commission’ section of the budget. |
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6.

The Court recalls that the EEAS will be a functionally autonomous body of a sui generis nature, benefiting from its own section of the budget, while, at the same time, the EEAS will remain at Union Delegation level the relevant service to the Commission for the implementation of a wide range of operational appropriations from the ‘Commission’ section of the budget.

sui generis

| 7. | The staff in Union Delegations will comprise EEAS staff and Commission staff. The Heads of Delegation will have authority over all staff in the Union Delegation, whatever their status, and for all its activities. They shall be accountable to the High Representative but the Commission will also be entitled to issue instructions to Union Delegations, which shall be executed under the overall responsibility of the Heads of Delegation. This will mean that the Heads of Delegation will report to two different authorities which may give rise to conflicts of priority. |
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7.

The staff in Union Delegations will comprise EEAS staff and Commission staff. The Heads of Delegation will have authority over all staff in the Union Delegation, whatever their status, and for all its activities. They shall be accountable to the High Representative but the Commission will also be entitled to issue instructions to Union Delegations, which shall be executed under the overall responsibility of the Heads of Delegation. This will mean that the Heads of Delegation will report to two different authorities which may give rise to conflicts of priority.

| 8. | As already stressed in its Opinion No 4/2010 (5), the Court considers of utmost importance to preserve and enhance accountability, responsibility, and quality of management at Union Delegation level. |
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8.

As already stressed in its Opinion No 4/2010 (5), the Court considers of utmost importance to preserve and enhance accountability, responsibility, and quality of management at Union Delegation level.

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| 9. | The Court notes that the proposal comprises three components: amendments to the Staff Regulations mainly through the inclusion of a new Title with special provisions applicable to the EEAS (Article 1); amendments to the CEOS (Article 2); and other provisions in connection with the setting-up and operating of the EEAS which will not be incorporated into the text of the Staff Regulations or of the CEOS (Article 3). |
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9.

The Court notes that the proposal comprises three components: amendments to the Staff Regulations mainly through the inclusion of a new Title with special provisions applicable to the EEAS (Article 1); amendments to the CEOS (Article 2); and other provisions in connection with the setting-up and operating of the EEAS which will not be incorporated into the text of the Staff Regulations or of the CEOS (Article 3).

Specific comments

Specific comments

On the amendments to the Staff Regulations

On the amendments to the Staff Regulations

| 10. | The proposed new Article 95 stipulates that the High Representative shall exercise the powers conferred on the Appointing Authority. However, in respect of Heads of Delegation, the powers concerning appointments shall be exercised on the basis of a list of candidates on which the Commission has agreed within the framework of the powers that the Treaties confer on it. For the sake of clarity, the Court suggests that the text should be more precise and clearly stipulate what powers conferred on the Commission are referred to in this context. It should also be specified whose task it will be to establish the proposal for the list of candidates on which the Commission has to agree. |
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10.

The proposed new Article 95 stipulates that the High Representative shall exercise the powers conferred on the Appointing Authority. However, in respect of Heads of Delegation, the powers concerning appointments shall be exercised on the basis of a list of candidates on which the Commission has agreed within the framework of the powers that the Treaties confer on it. For the sake of clarity, the Court suggests that the text should be more precise and clearly stipulate what powers conferred on the Commission are referred to in this context. It should also be specified whose task it will be to establish the proposal for the list of candidates on which the Commission has to agree.

| 11. | The proposed Article 96 stipulates in its first paragraph that a Commission official working in a Union Delegation shall take instructions from the Head of Delegation, in particular on organisational and administrative matters and on the implementation of the Union budget, in accordance with legal acts adopted under Article 322 of the TFEU. As this provision concerns officials who are not members of staff of the EEAS, it would be appropriate to introduce a reference to this provision in Article 11 of the Staff Regulations, which governs the obligations of Commission officials. Furthermore, in its current wording, the provision could be understood in the sense that there might be cases where the Commission official working in a Union Delegation is not obliged to take instructions from the Head of Delegation. However, Article 21a of the Staff Regulations sets out already a clear procedure for cases where an official considers that an order received is irregular. The Court notes that the wording of recital 4 of the proposal is clearer in this respect than the proposed text for Article 96 and avoids any ambiguity. |
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11.

The proposed Article 96 stipulates in its first paragraph that a Commission official working in a Union Delegation shall take instructions from the Head of Delegation, in particular on organisational and administrative matters and on the implementation of the Union budget, in accordance with legal acts adopted under Article 322 of the TFEU. As this provision concerns officials who are not members of staff of the EEAS, it would be appropriate to introduce a reference to this provision in Article 11 of the Staff Regulations, which governs the obligations of Commission officials. Furthermore, in its current wording, the provision could be understood in the sense that there might be cases where the Commission official working in a Union Delegation is not obliged to take instructions from the Head of Delegation. However, Article 21a of the Staff Regulations sets out already a clear procedure for cases where an official considers that an order received is irregular. The Court notes that the wording of recital 4 of the proposal is clearer in this respect than the proposed text for Article 96 and avoids any ambiguity.

| 12. | The proposed Article 98(1) provides that, at the latest from 1 July 2013, the High Representative, when filling vacant posts in the EEAS, shall consider applications not only of officials of the Council, the Commission and the EEAS or of staff from national diplomatic services but also applications from officials of other institutions. This proposal of the Commission, which is supported in the preamble of the Council decision establishing the organisation and functioning of the EEAS (see paragraph 3), is not in line with the requirements laid down in Article 27(3) of the EU Treaty which stipulates that the EEAS shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services. |
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12.

The proposed Article 98(1) provides that, at the latest from 1 July 2013, the High Representative, when filling vacant posts in the EEAS, shall consider applications not only of officials of the Council, the Commission and the EEAS or of staff from national diplomatic services but also applications from officials of other institutions. This proposal of the Commission, which is supported in the preamble of the Council decision establishing the organisation and functioning of the EEAS (see paragraph 3), is not in line with the requirements laid down in Article 27(3) of the EU Treaty which stipulates that the EEAS shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services.

| 13. | The proposed Article 98(2) stipulates that, when filling a vacant post in the Council or the Commission, the Appointing Authority shall consider officials of the EEAS who are former officials of the institution concerned as internal candidates. As this provision does not concern the EEAS, it would be more appropriate to introduce it under Article 29(1)(a) of the Staff Regulations. |
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13.

The proposed Article 98(2) stipulates that, when filling a vacant post in the Council or the Commission, the Appointing Authority shall consider officials of the EEAS who are former officials of the institution concerned as internal candidates. As this provision does not concern the EEAS, it would be more appropriate to introduce it under Article 29(1)(a) of the Staff Regulations.

| 14. | The proposed Article 99(1) stipulates that the Disciplinary Board of the Commission shall also serve as the Disciplinary Board for the EEAS, unless the High Representative decides to establish a Disciplinary Board for the EEAS. The latter option should be used very judiciously to avoid any unnecessary duplication of tasks, functions and resources. Furthermore, the Court draws attention to proposed amendments to the Financial Regulation (6) which provide that Heads of Delegation, when acting as sub-delegated authorising officers of the Commission, shall be submitted to the same duties, obligations and accountability as any other sub-delegated authorising officer of the Commission and shall refer to the Commission as their institution. These provisions would need to be taken into account when defining the scope of the competences of a distinct Disciplinary Board for the EEAS. |
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14.

The proposed Article 99(1) stipulates that the Disciplinary Board of the Commission shall also serve as the Disciplinary Board for the EEAS, unless the High Representative decides to establish a Disciplinary Board for the EEAS. The latter option should be used very judiciously to avoid any unnecessary duplication of tasks, functions and resources. Furthermore, the Court draws attention to proposed amendments to the Financial Regulation (6) which provide that Heads of Delegation, when acting as sub-delegated authorising officers of the Commission, shall be submitted to the same duties, obligations and accountability as any other sub-delegated authorising officer of the Commission and shall refer to the Commission as their institution. These provisions would need to be taken into account when defining the scope of the competences of a distinct Disciplinary Board for the EEAS.

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On the amendments to the Conditions of Employment of Other Servants

On the amendments to the Conditions of Employment of Other Servants

| 15. | Article 8 of the CEOS lays down the provisions for the duration of engagement of the different categories of temporary staff. For reasons of coherence, it would be appropriate to include in this article also the specific provisions concerning staff seconded from national diplomatic services engaged to fill temporarily a permanent post in the EEAS rather than introducing them in the proposed new Article 50b(2). |
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15.

Article 8 of the CEOS lays down the provisions for the duration of engagement of the different categories of temporary staff. For reasons of coherence, it would be appropriate to include in this article also the specific provisions concerning staff seconded from national diplomatic services engaged to fill temporarily a permanent post in the EEAS rather than introducing them in the proposed new Article 50b(2).

| 16. | The proposed new Article 50c(1) allows staff seconded from national diplomatic services in order to fill temporarily a permanent post in the EEAS to be seconded further outside the EEAS under the same conditions as an established official as long as such secondment is not extended beyond the term of the contract. In practice, such secondments during secondment could result in situations where staff leave the EEAS again shortly after having been seconded to it. The Court fails to see the need for such a provision which is not in the interest of a smooth functioning of the EEAS and may result in cumbersome and non-transparent arrangements. |
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16.

The proposed new Article 50c(1) allows staff seconded from national diplomatic services in order to fill temporarily a permanent post in the EEAS to be seconded further outside the EEAS under the same conditions as an established official as long as such secondment is not extended beyond the term of the contract. In practice, such secondments during secondment could result in situations where staff leave the EEAS again shortly after having been seconded to it. The Court fails to see the need for such a provision which is not in the interest of a smooth functioning of the EEAS and may result in cumbersome and non-transparent arrangements.

| 17. | The proposed new Article 50c(3) makes provisions for allowing temporary staff coming from national diplomatic services to carry on working until the age of 67. The Court notes that introducing such provisions only for temporary staff working with the EEAS but not for other temporary staff would not be in line with the principle of equal treatment of all staff in the same category (7). |
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17.

The proposed new Article 50c(3) makes provisions for allowing temporary staff coming from national diplomatic services to carry on working until the age of 67. The Court notes that introducing such provisions only for temporary staff working with the EEAS but not for other temporary staff would not be in line with the principle of equal treatment of all staff in the same category (7).

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| 18. | The proposed new drafting of Article 121 provides that, in addition to fulfilling responsibilities for the payment of social security contributions under regulations in force in the place of employment, an autonomous or complementary system of social security may be set up under specific circumstances. The Court notes that this provision should be the legal basis for requiring definitive rules for the operation of the autonomous or complementary social security system. The provision should also address the institutions’ responsibility for the safeguarding and the return of the fund’s assets and for defining the detailed provisions for the settlements of the staff’s rights (8). |
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18.

The proposed new drafting of Article 121 provides that, in addition to fulfilling responsibilities for the payment of social security contributions under regulations in force in the place of employment, an autonomous or complementary system of social security may be set up under specific circumstances. The Court notes that this provision should be the legal basis for requiring definitive rules for the operation of the autonomous or complementary social security system. The provision should also address the institutions’ responsibility for the safeguarding and the return of the fund’s assets and for defining the detailed provisions for the settlements of the staff’s rights (8).

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On the other provisions in connection with the EEAS

On the other provisions in connection with the EEAS

| 19. | Article 3 of the proposal contains other provisions in connection with the setting-up and operation of the EEAS, notably a provision that would allow the High Representative to give priority to candidates from national diplomatic services of the Member States in order to guarantee adequate representation. In their current form, these provisions will not be incorporated into the text of the amended Staff Regulations or of the amended CEOS. This is not consistent with the purpose of the proposal to amend the Staff Regulations and the CEOS. For reasons of clarity and legal certainty, all provisions should be laid down in the body of the text of the amended Staff Regulations and CEOS or in their annexes. |
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19.

Article 3 of the proposal contains other provisions in connection with the setting-up and operation of the EEAS, notably a provision that would allow the High Representative to give priority to candidates from national diplomatic services of the Member States in order to guarantee adequate representation. In their current form, these provisions will not be incorporated into the text of the amended Staff Regulations or of the amended CEOS. This is not consistent with the purpose of the proposal to amend the Staff Regulations and the CEOS. For reasons of clarity and legal certainty, all provisions should be laid down in the body of the text of the amended Staff Regulations and CEOS or in their annexes.

This opinion was adopted by Chamber IV, headed by Mr Igors LUDBORŽS, Member of the Court of Auditors, in Luxembourg at its meeting of 28 September 2010.

For the Court of Auditors

Vítor Manuel da SILVA CALDEIRA

President

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(1)  COM(2010) 309 final of 9 June 2010.

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(2)  The Financial Regulation will also be adapted to the specific needs of the EEAS. See in this respect Opinion No 4/2010 of the Court (OJ C 145, 3.6.2010, p. 4).

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(3)  Council Decision 2010/427/EU (OJ L 201, 3.8.2010, p. 30).

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(4)  Council Decision 2010/427/EU, recital 11.

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(5)  Opinion No 4/2010, paragraph 7 (OJ C 145, 3.6.2010, p. 5).

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(6)  See COM(2010) 85 final of 24 March 2010, Article 1(6) and (8) of the proposed amending regulation.

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(7)  As far as officials are concerned, the current Staff Regulations already allow them, on an exceptional basis, to carry on working until the age of 67.

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(8)  See the Court’s Annual Report concerning the financial year 2008, paragraph 11.13 (OJ C 269, 10.11.2009, p. 219).

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