COUNCIL DECISION
of 24 September 2004
concerning the Staff Regulations of the European Defence Agency
(2004/676/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (1), and in particular Article 11(3)(3.1) thereof,
HAS DECIDED AS FOLLOWS:
TITLE I
GENERAL PROVISIONS
Article 1
1. These Staff Regulations shall apply to staff engaged under contract by the European Defence Agency (hereinafter referred to as ‘staff member’ and ‘Agency’ respectively).
Such staff shall be:
-
temporary staff,
-
contract staff.
2. For the purpose of these Staff Regulations, the authority authorised to conclude contracts (hereinafter referred to as ‘AACC’) shall be determined in accordance with the relevant provisions of the Joint Action 2004/551/CFSP.
3. Any reference in these Staff Regulations to a person of the male sex shall be deemed also to constitute a reference to a person of the female sex, and vice-versa, unless the context clearly indicates otherwise.
TITLE II
TEMPORARY STAFF
CHAPTER 1
General provisions
Article 2
For the purposes of these Staff Regulations, “temporary staff” means staff engaged to fill temporarily a post included in the list of posts appended to the budget of the Agency.
Article 3
Temporary staff shall not be engaged for more than four years but their engagement may be limited to any shorter duration. Their contracts may be renewed not more than once for a maximum period of two years if the possibility of renewal has been provided for in the initial contract and within the limits provided for in that contract. At the end of that time, they shall no longer be employed as temporary staff under these provisions.
Article 4
Temporary staff shall not be engaged for any purpose other than that of filling, in accordance with these Staff Regulations, vacant posts included in the list of posts appended to the budget of the Agency.
Article 5
1. In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.
For the purposes of these Staff Regulations, non-marital partnerships shall be treated as marriage provided that all the conditions listed in Article 1(2)(c) of Annex V are fulfilled.
2. With a view to ensuring full equality in practice between men and women in working life, which shall be an essential element to be considered in the implementation of all aspects of these Staff Regulations, the principle of equal treatment shall not prevent the Agency from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
3. The Agency shall determine, after consulting the Staff Committee, measures and actions to promote equal opportunities for men and women in the areas covered by these Staff Regulations, and shall adopt the appropriate provisions notably to redress such de facto inequalities as hamper opportunities for women in these areas.
4. For the purposes of paragraph 1 of this Article, a person has a disability if he has a physical or mental impairment that is, or is likely to be, permanent. The impairment shall be determined according to the procedure set out in Article 37.
A person with a disability meets the conditions laid down in Article 36(2)(d) if he can perform the essential functions of the job when reasonable accommodation is made.
‘Reasonable accommodation’, in relation to the essential functions of the job, shall mean appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.
5. Where persons covered by these Staff Regulations, who consider themselves wronged because the principle of equal treatment as set out above has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the Agency to prove that there has been no breach of the principle of equal treatment. This provision shall not apply in disciplinary proceedings.
6. While respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy.
Article 6
1. Members of temporary staff in active employment shall have access to measures of a social nature adopted by the Agency and to services provided by the Staff Committee. Former members of temporary staff may have access to limited specific measures of a social nature.
2. Members of temporary staff in active employment shall be accorded working conditions complying with appropriate health and safety standards at least equivalent to the minimum requirements applicable under measures adopted in these areas pursuant to the Treaties.
Article 7
1. The posts covered by these Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in an administrators' function group (hereinafter ‘AD’) and an assistants' function group (hereinafter ‘AST’).
2. Function group AD shall comprise twelve grades, corresponding to administrative, advisory, linguistic and scientific duties. Function group AST shall comprise eleven grades, corresponding to executive, technical and clerical duties.
3. Appointment shall require at least
(a)
in function group AST:
(i)
a level of post-secondary education attested by a diploma, or
(ii)
a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years, or
(iii)
where justified in the interests of the service, professional training or professional experience of an equivalent level.
(b)
in function group AD for grades 5 and 6:
(i)
a level of education which corresponds to completed university studies of at least three years attested by a diploma, or
(ii)
where justified in the interest of the service, professional training of an equivalent level.
(c)
in function group AD for grades 7 to 16:
(i)
a level of education which corresponds to completed university studies attested by a diploma when the normal period of university education is four years or more, or
(ii)
a level of education which corresponds to completed university studies attested by a diploma and appropriate professional experience of at least one year when the normal period of university education is at least three years, or
(iii)
where justified in the interests of the service, professional training of an equivalent level.
4. A table showing types of posts is given in Annex VII. By reference to this table, the Agency shall define the duties and powers attaching to each type of post after consulting the Staff Committee.
Article 8
1. The AACC shall, acting solely in the interest of the service and without regard to nationality, assign each member of temporary staff by appointment or transfer to a post in his function group which corresponds to his grade.
A member of temporary staff may apply for a transfer within the Agency.
2. A member of temporary staff may be called upon to occupy temporarily a post in a grade in his function group which is higher than his substantive grade. From the beginning of the fourth month of such temporary posting, he shall receive a differential allowance equal to the difference between the remuneration carried by his substantive grade and step, and the remuneration he would receive in respect of the step at which he would be classified if he were appointed to the grade of his temporary posting.
The duration of a temporary posting shall not exceed one year, except where, directly or indirectly, the posting is to replace a member of temporary staff who is seconded to another post in the interests of the service, called up for military service or absent on protracted sick leave.
Article 9
1. The grade and step at which temporary staff are engaged shall be stated in their contract.
2. Assignment of temporary staff to a post carrying a higher grade than that at which they were engaged shall be recorded in an agreement supplementary to their contract of service.
CHAPTER 2
Rights and obligations
Article 10
1. A member of temporary staff shall carry out his duties and conduct himself solely with the interests of the Agency in mind; he shall neither seek nor take instructions from any government, authority, organisation or person outside the Agency. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Agency.
2. A member of temporary staff shall not without the permission of the AACC accept from any government or from any other source outside the Agency to which he belongs any honour, decoration, favour, gift or payment of any kind whatever, except for services rendered either before his appointment or during special leave for military or other national service and in respect of such service.
Article 11
1. A member of temporary staff shall not, in the performance of his duties and save as hereinafter provided, deal with a matter in which, directly or indirectly, he has any personal interest such as to impair his independence, and, in particular, family and financial interests.
2. Any member of temporary staff to whom it falls, in the performance of his duties, to deal with a matter referred to above shall immediately inform the AACC. The AACC shall take any appropriate measure, and may in particular relieve the member of temporary staff from responsibility in this matter.
3. A member of temporary staff may neither keep nor acquire, directly or indirectly, in undertakings which are subject to the authority of the Agency or which have dealings with the Agency, any interest of such kind or magnitude as might impair his independence in the performance of his duties.
Article 12
A member of temporary staff shall refrain from any action or behaviour which might reflect adversely upon his position.
Article 13
1. Members of temporary staff shall refrain from any form of psychological or sexual harassment.
2. A member of temporary staff who has been the victim of psychological or sexual harassment shall not suffer any prejudicial effects on the part of the Agency. A member of temporary staff who has given evidence on psychological or sexual harassment shall not suffer any prejudicial effects on the part of the Agency, provided the member of temporary staff has acted honestly.
3. ‘Psychological harassment’ means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.
4. ‘Sexual harassment’ means conduct relating to sex which is unwanted by the person to whom it is directed and which has the purpose or effect of offending that person or creating an intimidating, hostile, offensive or disturbing environment. Sexual harassment shall be treated as discrimination based on gender.
Article 14
1. Subject to Article 16, a member of temporary staff wishing to engage in an outside activity, whether paid or unpaid, or to carry out any assignment outside the Agency, shall first obtain the permission of the AACC. Permission shall be refused only if the activity or assignment in question is such as to interfere with the performance of the member of temporary staff's duties or is incompatible with the interests of the Agency.
2. A member of temporary staff shall notify the AACC of any changes in a permitted outside activity or assignment, which occur after the member of temporary staff has sought the permission of the AACC under paragraph 1. Permission may be withdrawn if the activity or assignment no longer meets the conditions referred to in the last sentence of paragraph 1.
Article 15
If the spouse of member of temporary staff is in gainful employment, the member of temporary staff shall inform the AACC. Should the nature of the employment prove to be incompatible with that of the member of temporary staff and if the member of temporary staff is unable to give an undertaking that it will cease within a specified period, the AACC shall, after consulting the Staff Committee, decide whether the member of temporary staff shall continue in his post or be transferred to another post.
Article 16
1. A member of temporary staff who intends to stand for public office shall notify the AACC. The AACC shall decide, in the light of the interests of the service, whether the member of temporary staff concerned:
(a)
should be required to apply for leave on personal grounds, or
(b)
should be granted annual leave, or
(c)
may be authorised to discharge his duties on a part-time basis, or
(d)
may continue to discharge his duties as before.
2. A member of temporary staff elected or appointed to public office shall immediately inform the AACC. The AACC shall, having regard to the interests of the service, the importance of the office, the duties it entails and the remuneration and reimbursement of expenses incurred in carrying out those duties, take one of the decisions referred to in paragraph 1. If the member of temporary staff is required to take leave on personal grounds or is authorised to discharge his duties on a part-time basis, the period of such leave or part-time working shall correspond to the member of temporary staff's term of office.
Article 17
A member of temporary staff shall, after leaving the service, continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits.
Members of temporary staff intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service shall inform the Agency thereof. If that activity is related to the work carried out by the member of temporary staff during the last three years of service and could lead to a conflict with the legitimate interests of the Agency, the AACC may, having regard to the interests of the service, either forbid him from undertaking it or give its approval subject to any conditions it thinks fit. The Agency shall, after consulting the Staff Committee, notify its decision within 30 working days of being so informed. If no such notification has been made by the end of that period, this shall be deemed to constitute implicit acceptance.
Article 18
1. A member of temporary staff shall refrain from any unauthorised disclosure of information received in the line of duty, unless that information has already been made public or is accessible to the public.
2. A member of temporary staff shall continue to be bound by this obligation after leaving the service.
Article 19
1. A member of temporary staff has the right to freedom of expression, with due respect to the principles of loyalty and impartiality.
2. Without prejudice to Articles 12 and 18, a member of temporary staff who intends to publish or cause to be published, whether alone or with others, any matter dealing with the work of the Agency shall inform the AACC in advance.
Where the AACC is able to demonstrate that the matter is liable seriously to prejudice the legitimate interests of the Agency, the AACC shall inform the member of temporary staff of its decision in writing within 30 working days of receipt of the information. If no such decision is notified within the specified period, the AACC shall be deemed to have had no objections.
Article 20
1. All rights in any writings or other work done by any member of temporary staff in the performance of his duties shall be the property of the Agency to whose activities such writings or work relate. The Agency shall have the right to acquire compulsorily the copyright in such works.
2. Any invention made by a member of temporary staff in the course of or in connection with the performance of his duties shall be the undisputed property of the Agency. The Agency may, at its own expense, apply for and obtain patents therefor in all countries. Any invention relating to the work of the Agency made by a member of temporary staff during the year following the expiration of his term of duty shall, unless proved otherwise, be deemed to have been made in the course of or in connection with the performance of his duties. Where inventions are the subject of patents, the name of the inventor or inventors shall be stated.
3. The Agency may in appropriate cases award a bonus, the amount of which shall be determined by the Agency, to a member of temporary staff who is the author of a patented invention.
Article 21
A member of temporary staff shall not, without permission from the AACC, disclose on any grounds whatever, in any legal proceedings information of which he has knowledge by reason of his duties. Permission shall be refused only where the interests of the Agency so require and such refusal would not entail criminal consequences as far as the member of temporary staff is concerned. A member of temporary staff shall continue to be bound by this obligation after leaving the service.
The provisions of the first subparagraph shall not apply to a member of temporary staff or former member of temporary staff giving evidence before the Appeal Board or before the Disciplinary Board on a matter concerning a member of temporary staff or former member of temporary staff.
Article 22
A member of temporary staff shall reside either in the place where he is employed or at no greater distance therefrom as is compatible with the proper performance of his duties. The member of temporary staff shall notify the AACC of his address and inform it immediately of any changes of address.
Article 23
A member of temporary staff, whatever his rank, shall assist and tender advice to his superiors; he shall be responsible for the performance of the duties assigned to him.
A member of temporary staff in charge of any branch of the service shall be responsible to his superiors in respect of the authority conferred on him and for the carrying out of instructions given by him. The responsibility of his subordinates shall in no way release him from his own responsibility.
Article 24
1. A member of temporary staff who receives orders which he considers to be irregular or likely to give rise to serious difficulties shall inform his immediate superior, who shall, if the information is given in writing, reply in writing. Subject to paragraph 2, if the immediate superior confirms the orders and the member of temporary staff believes that such confirmation does not constitute a reasonable response to the grounds of his concern, the member of temporary staff shall refer the question in writing to the hierarchical authority immediately above. If the latter confirms the orders in writing, the member of temporary staff shall carry them out unless they are manifestly illegal or constitute a breach of the relevant safety standards.
2. If the immediate superior considers that the orders must be executed promptly, the member of temporary staff shall carry them out unless they are manifestly illegal or constitute a breach of the relevant safety standards. At the request of the member of temporary staff, the immediate superior shall be obliged to give such orders in writing.
Article 25
A member of temporary staff may be required to make good, in whole or in part, any damage suffered by the Agency as a result of serious misconduct on his part in the course of or in connection with the performance of his duties.
A reasoned decision shall be given by the AACC authority in accordance with the procedure laid down in regard to disciplinary matters.
The Appeal Board shall have unlimited jurisdiction in disputes arising under this provision.
Article 26
1. Any member of temporary staff who, in the course of or in connection with the performance of his duties, becomes aware of facts which gives rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Agency, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of members of temporary staff of the Agency shall without delay inform either his immediate superior or, if he considers it useful, the Chief Executive of the Agency.
Information referred to in the first subparagraph shall be given in writing.
2. A member of temporary staff shall not suffer any prejudicial effects on the part of the Agency as a result of having communicated the information referred to in paragraph 1, provided that he acted reasonably and honestly.
3. Paragraphs 1 and 2 shall not apply to documents, deeds, reports, notes or information in any form whatsoever held for the purposes of, or created or disclosed to the member of temporary staff in the course of, proceedings in legal cases, whether pending or closed.
Article 27
1. A member of temporary staff who further discloses information as defined in Article 26 to the President of the Council of the European Union or of the European Parliament, shall not suffer any prejudicial effects on the part of the Agency provided that both of the following conditions are met:
(a)
the member of temporary staff honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and
(b)
the member of temporary staff has previously disclosed the same information to the Agency and has allowed the Agency the period of time set by the Agency, given the complexity of the case, to take appropriate action. The member of temporary staff shall be duly informed of that period of time within 60 days.
2. The period referred to in paragraph 1 shall not apply where the member of temporary staff can demonstrate that it is unreasonable having regard to all the circumstances of the case.
3. Paragraphs 1 and 2 shall not apply to documents, deeds, reports, notes or information in any form whatsoever held for the purposes of, or created or disclosed to the member of temporary staff in the course of, proceedings in legal cases, whether pending or closed.
Article 28
The Agency shall assist any member of temporary staff, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.
It shall compensate the member of temporary staff for damage suffered in such cases, in so far as the member of temporary staff did not either intentionally or through grave negligence cause the damage and has been unable to obtain compensation from the person who did cause it.
Article 29
The Agency shall facilitate such further training and instruction for member of temporary staffs as is compatible with the proper functioning of the service and is in accordance with its own interests.
Such training and instruction shall be taken into account for purposes of promotion in their careers.
Article 30
Members of temporary staff shall be entitled to exercise the right of association; they may in particular be members of trade unions or staff associations.
Article 31
Members of temporary staff may submit requests concerning issues covered by these Staff Regulations to the AACC.
Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the member of temporary staff concerned. Any decision adversely affecting a member of temporary staff shall state the grounds on which it is based.
Specific decisions regarding appointment, establishment, promotion, transfer, determination of administrative status and termination of service of a member of temporary staff shall be published in the Agency. The publication shall be accessible to all staff for an appropriate period of time.
Article 32
The personal file of a member of temporary staff shall contain:
(a)
all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;
(b)
any comments by the member of temporary staff on such documents.
Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be used or cited by the Agency against a member of temporary staff unless they were communicated to him before they were filed.
The communication of any document to a member of temporary staff shall be evidenced by his signing it or, failing that, shall be effected by registered letter to the last address communicated by the member of temporary staff.
A member of temporary staff's personal file shall contain no reference to his political, trade union, philosophical or religious activities and views, or to his racial or ethnic origin or sexual orientation.
The precedent paragraph shall not however prohibit the insertion in the file of administrative acts and documents known to the member of temporary staff which are necessary for the application of these Staff Regulations.
There shall be only one personal file for each member of temporary staff.
A member of temporary staff shall have the right, even after leaving the service, to acquaint himself with all the documents in his file and to take copies of them.
The personal file shall be confidential and may be consulted only in the offices of the administration or on a secure electronic medium. It shall, however, be forwarded to the Appeal Board if an action concerning the member of temporary staff is brought.
Article 33
Members of temporary staff shall have the right to acquaint themselves with their medical files, in accordance with arrangements to be laid down by the Agency.
Article 34
Any decision requiring damage suffered by the Agency as a result of serious misconduct to be made good, as provided for in Article 25, shall be taken by the AACC after observing the formalities provided for in cases of dismissal for serious misconduct.
Decisions relating to individual members of the temporary staff shall be published as provided for in Article 31.
Article 35
The privileges and immunities enjoyed by members of the temporary staff are accorded solely in the interests of the Agency. Members of the temporary staff shall not be exempt from fulfilling their private obligations or from complying with the laws and police regulations in force.
When privileges and immunities are in dispute, the member of the temporary staff concerned shall immediately inform the Agency.
CHAPTER 3
Conditions of engagement
Article 36
1. The engagement of temporary staff shall be directed to securing for the Agency the services of persons of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States participating in the Agency.
Temporary staff shall be selected without distinction as to race, political, philosophical or religious beliefs, sex or sexual orientation and without reference to their marital status or family situation.
2. A member of the temporary staff may be engaged only on condition that:
(a)
he is a national of one of the participating Member States and enjoys his full rights as a citizen;
(b)
he has fulfilled any obligations imposed on him by the laws concerning military service;
(c)
he produces the appropriate character references as to his suitability for the performance of his duties;
(d)
he is physically fit to perform his duties; and
(e)
he produces evidence of a thorough knowledge of one of the languages of the European Union and of a satisfactory knowledge of another language of the Union to the extent necessary for the performance of his duties.
3. The Steering Board shall adopt specific provisions on the procedures for recruitment of temporary staff, as necessary, within the framework of the Joint Action 2004/551/CFSP.
Article 37
Before being engaged, a member of the temporary staff shall be medically examined by a medical officer authorised by the Agency in order that the Agency may be satisfied that he fulfils the requirements of Article 36(2)(d).
Where a negative medical opinion is given as a result of the medical examination provided for in the first subparagraph, the candidate may, within 20 days of being notified of this opinion by the Agency, request that his case be submitted for the opinion of a medical committee composed of three doctors chosen by the AACC from among the Agency's medical officers. The medical officer responsible for the initial negative opinion shall be heard by the medical committee. The candidate may refer the opinion of a doctor of his choice to the medical committee. Where the opinion of the medical committee confirms the conclusions of the medical examination provided for in the first subparagraph, the candidate shall pay 50 % of the fees and of the incidental costs.
Article 38
A member of the temporary staff may be required to serve a probationary period not exceeding six months.
Where, during his probationary period, a member of the temporary staff is prevented, by sickness or accident, from performing his duties for one month or more, the AACC may extend his probationary period by the corresponding length of time.
Not less than one month before the expiry of the probationary period, a report shall be made on the ability of the member of the temporary staff to perform the duties pertaining to his post and also on his conduct and efficiency in the service. The report shall be communicated to the person concerned, who shall have the right to submit his comments in writing. A member of the temporary staff whose work has not proved adequate to justify retention in his post shall be dismissed.
However, the AACC may, in exceptional circumstances, extend the probationary period for a maximum of six months, and possibly assign the member of the temporary staff to another department.
A report on the probationary member of temporary staff may be made at any time during the probationary period if his work is proving obviously inadequate. The report shall be communicated to the person concerned, who shall have the right to submit his comments in writing. On the basis of the report, the AACC may decide to dismiss the member of the temporary staff before the end of the probationary period by giving him one month's notice.
Article 39
1. A member of temporary staff shall be recruited at the first step in his grade.
The AACC may allow additional seniority up to a maximum of 24 months to take account of his professional experience. General implementing provisions shall be adopted to give effect to this Article.
2. Where a member of the temporary staff is assigned to a post corresponding to a higher grade, as provided for in the second paragraph of Article 9, he shall be placed in the initial step in that grade. However, members of the temporary staff in grades AD 9 to AD 13 carrying out the duties of head of unit who are appointed to a higher grade shall be placed in the second step of the new grade. The same arrangement shall apply to any member of the temporary staff who upon promotion is appointed director or director-general.
Article 40
The ability, efficiency and conduct in the service of each member of temporary staff shall be the subject of a periodical report made at least once every two years. The Chief Executive shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before lodging a complaint as referred to in Article 167(2).
As of grade 4, for members of temporary staff in function group AST, the report may also contain an opinion as to whether, on the basis of performance, he has the potential to carry out an administrator's function.
The report shall be communicated to the member of temporary staff. He shall be entitled to make any comments thereon which he considers relevant.
CHAPTER 4
Working conditions
Section A
Parental or family leave
Article 41
A member of temporary staff shall be entitled to up to six months of parental leave without basic salary for every child, to be taken during the first twelve years after the birth or adoption of the child. The duration of the leave may be doubled for single parents recognised under general implementing provisions adopted by the Agency. The minimum leave taken at any one time shall not be less than one month.
During parental leave, the member of temporary staff's membership of the social security scheme shall continue; the acquisition of pension rights, dependent child allowance and education allowance shall be maintained. The member of temporary staff shall retain his post, and continue to be entitled to advancement to a higher step or promotion in grade. The leave may be taken as full-time or half-time leave. Where parental leave is taken in the form of half-time leave, the maximum period provided for in the first paragraph shall be doubled. During parental leave, the member of temporary staff shall be entitled to an allowance of EUR 798,77 per month or 50 % of such sum if on half-time leave but may not engage in any other gainful employment. The full contribution to the social security scheme provided for in Articles 67 and 68 shall be borne by the Agency and calculated on the basis of the basic salary of the member of temporary staff.
However, in the case of half-time leave this provision shall apply only to the difference between the full basic salary and the proportionally reduced basic salary. For the part of the basic salary actually received, the member of temporary staff's contribution shall be calculated by using the same percentages as if he were in full-time employment.
The allowance shall be EUR 1 065,02 per month, or 50 % of such sum if the member of temporary staff is on half-time leave, for the single parents referred to in the first subparagraph and during the first three months of parental leave where such leave is taken by the father during maternity leave or by either parent immediately after maternity leave or during or immediately after adoption leave. The amounts mentioned in this Article shall be adapted in line with remuneration.
Article 42
In the case of medically certified serious illness or disability of a member of temporary staff's spouse, relative in the ascending line, relative in the descending line, brother or sister, the member of temporary staff shall be entitled to a period of family leave without basic salary. The total period of such leave shall not exceed nine months over the member of temporary staff's entire career.
The second subparagraph of Article 41 shall apply.
Section B
Hours of work
Article 43
Members of temporary staff in active employment shall at all times be at the disposal of Agency. However, the normal working week shall not exceed 42 hours, the hours of the working day to be determined by the AACC. Within the same limits, the AACC may, after consulting the Staff Committee, determine the hours to be worked by certain groups of members of temporary staff engaged on particular duties.
A member of temporary staff may, moreover, be required because of the exigencies of the service or safety rules to remain on standby duty at his place of work or at home outside normal working hours. The Agency shall lay down detailed rules for the application of this paragraph after consulting the Staff Committee.
Article 44
1. A member of temporary staff may request authorisation to work part time.
The AACC may grant such authorisation if this is compatible with the interests of the service.
2. The member of temporary staff shall be entitled to authorisation in the following cases:
(a)
to care for a child under 9 years of age,
(b)
to care for a child aged between 9 and 12, if the reduction in working time is no more than 20 % of normal working time,
(c)
to care for a seriously ill or disabled spouse, relative in the ascending line, relative in the descending line, brother or sister,
(d)
to take part in further training, or
(e)
as of the age of 55 during the last five years before retirement.
Where part-time is requested in order to take part in further training, or as of the age of 55 the AACC may refuse authorisation or postpone its date of effect only in exceptional circumstances and for overriding service-related reasons.
Where such entitlement to authorisation is exercised to care for a seriously ill or disabled spouse, relative in the ascending line, relative in the descending line, brother or sister, or to take part in further training, the total of all such periods shall not exceed five years over the member of temporary staff's career.
3. The AACC shall reply to the member of temporary staff's request within 60 days.
4. The rules governing part-time work and the procedure for granting authorisation are laid down in Annex II.
Article 45
A member of temporary staff may request authorisation to work half-time in the form of job-sharing in a post identified by the AACC as appropriate for that purpose. The authorisation to work half-time by job-sharing shall not be limited in time. It may, however, be withdrawn by the AACC in the interests of the service giving the member of temporary staff six months' notice. Likewise, the AACC may, on application of the member of temporary staff concerned and giving at least six months' notice, withdraw the authorisation. In this case, the member of temporary staff may be transferred to a different post.
Article 53 and, except for the third sentence of paragraph 2, Article 3 of Annex II shall apply. The AACC may lay down detailed rules for the application of this Article.
Article 46
A member of temporary staff may not be required to work overtime except in cases of urgency or exceptional pressure of work; night work and all work on Sundays or public holidays may be authorised only in accordance with the procedure laid down by the AACC. The total overtime which a member of temporary staff may be asked to work shall not exceed 150 hours in any six months.
Overtime worked by members of temporary staff in function group AD, and in function group AST 5 to 11 shall carry no right to compensation or remuneration.
As provided for in Annex IV, overtime worked by members of temporary staff in grade AST 1 to AST 4 shall entitle them either to compensatory leave or to remuneration where the requirements of the service do not allow compensatory leave during the month following that in which the overtime was worked.
Article 47
A member of temporary staff who is expected to work regularly at night, on Saturdays, Sundays or public holidays shall be entitled to special allowances when doing shiftwork which is required by the Agency because of the exigencies of the service or safety rules and which is regarded by it as a regular and permanent feature.
The AACC shall determine the categories of members of temporary staff entitled to such allowances, and the rates and conditions thereof.
The normal working hours of a member of temporary staff on shiftwork must not exceed the annual total of normal working hours.
Article 48
A member of temporary staff shall be entitled to special allowances when required in accordance with a decision taken by the AACC because of the exigencies of the service or safety rules to remain on standby duty at his place of work or at home outside normal working hours.
The AACC shall determine the categories of members of temporary staff entitled to such allowances, the conditions for granting the allowances and also the rates thereof.
Article 49
Special allowances may be granted to certain members of temporary staff to compensate for particularly arduous working conditions.
The Agency shall determine the categories of beneficiaries, and the rates and conditions of such special allowances.
Section C
Leave
Article 50
Members of temporary staff shall be entitled to annual leave of not less than 24 working days nor more than 30 working days per calendar year, in accordance with the same rules as those laid down by common accord of the Community institutions.
Apart from this annual leave a member of temporary staff, may, exceptionally on application, be granted special leave. The rules relating to such leave are laid down in Annex III.
Article 51
Pregnant women shall, in addition to the leave provided for in Article 50, be entitled on production of a medical certificate to twenty weeks of leave. The leave shall start not earlier than six weeks before the expected date of confinement shown in the certificate and end not earlier than 14 weeks after the date of confinement. In the case of multiple or premature birth or the birth of a handicapped child, the duration shall be of 24 weeks. Premature birth for the purposes of this provision is a birth taking place before the end of the 34th week of pregnancy.
Article 52
1. A member of temporary staff who provides evidence of being unable to carry out his duties by reason of illness or accident shall be entitled to sick leave.
The member of temporary staff concerned shall notify the Agency of his incapacity as soon as possible and at the same time state his current address. He shall produce a medical certificate if he is absent for more than three days. This certificate must be sent on the fifth day of absence at the latest, as evidenced by the date as postmarked. Failing this, and unless failure to send the certificate is due to reasons beyond his control, the member of temporary staff's absence shall be considered as unauthorised.
The member of temporary staff may at any time be required to undergo a medical examination arranged by the Agency. If the examination cannot take place for reasons attributable to the member of temporary staff, his absence shall be considered as unauthorised as from the date that the examination is due to take place.
If the finding made in the examination is that the member of temporary staff is able to carry out his duties, his absence shall, subject to the following subparagraph, be regarded as unjustified from the date of the examination.
If the member of temporary staff considers the conclusions of the medical examination arranged by the AACC be unjustified on medical grounds, he or a doctor acting on his behalf may within two days submit to the Agency a request that the matter be referred to an independent doctor for an opinion.
The Agency shall immediately transmit the request to another doctor agreed upon by the member of temporary staff's doctor and the Agency's medical officer. Failing such agreement within five days of the request, the Agency shall select a person from a list of independent doctors to be established for this purpose each year by common consent of the AACC and the Staff Committee. The member of temporary staff may within two working days object to the Agency's choice, whereupon the Agency shall choose another person from the list, which choice shall be final.
The independent doctor's opinion given after consultation of the member of temporary staff's doctor and the Agency's medical officer shall be binding. Where the independent doctor's opinion confirms the conclusion of the examination arranged by the Agency, the absence shall be treated as unjustified from the date of that examination. Where the independent doctor's opinion does not confirm the conclusion of that examination, the absence shall be treated for all purposes as having been justified.
2. If, over a period of 12 months, a member of temporary staff is absent for up to three days because of sickness for a total of more than 12 days, he shall produce a medical certificate for any further absence because of sickness. His absence shall be considered to be unjustified as from the thirteenth day of absence on account of sickness without a medical certificate.
3. Without prejudice to the application of the rules on disciplinary proceedings, where appropriate, any absence considered to be unjustified under paragraphs 1 and 2 shall be deducted from the annual leave of the member of temporary staff concerned. In the event that the member of temporary staff has no outstanding leave entitlement, he shall lose the benefit of his remuneration for the corresponding period.
4. The AACC may refer to the Invalidity Committee the case of any member of temporary staff whose sick leave totals more than 12 months in any period of three years.
5. A member of temporary staff may be required to take leave after examination by the Agency's medical officer if his state of health so requires or if a member of his household is suffering from a contagious disease.
In cases of dispute, the procedure laid down in the fifth to seventh subparagraph of paragraph 1 shall apply.
6. Members of temporary staff shall undergo a medical check-up every year either by the Agency's medical officer or by a medical practitioner chosen by them.
In the latter case, the practitioner's fees shall be payable by the Agency up to a maximum amount fixed for a period of no more than three years by the AACC.
Article 53
The annual leave of a member of temporary staff who is authorised to work part time shall, for as long as he is so authorised, be reduced proportionally.
Article 54
Except in case of sickness or accident, a member of temporary staff may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the member of temporary staff concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period.
If a member of temporary staff wishes to spend leave elsewhere than at the place where he is employed he shall obtain prior permission from the AACC.
Special leave and parental and family leave shall not extend beyond the term of the contract.
The paid sick leave provided for in Article 52 shall not, however, exceed three months or the length of time worked by the member of the temporary staff, where the latter is longer. The leave shall not extend beyond the term of his contract.
On expiry of these time limits, a member of the temporary staff whose contract is not terminated, notwithstanding that he is unable to resume his duties, shall be placed on unpaid leave.
However, where a member of the temporary staff contracts an occupational disease or sustains an accident in the performance of his duties, he shall continue to receive his full remuneration throughout the period during which he is incapable of working until such time as he is awarded an invalidity allowance under Article 76.
Section D
Public holidays
Article 55
A list of public holidays shall be drawn up by the Agency.
Article 56
1. In exceptional circumstances a member of the temporary staff may at his own request be granted unpaid leave on compelling personal grounds. The AACC shall determine the length of such leave, which shall not exceed one quarter of the length of time already worked by the member of temporary staff or:
-
three months if the member of temporary staff's seniority is less than four years;
-
twelve months in all other cases.
2. Any period of leave granted in accordance with the preceding paragraph shall not count for purposes of the application of the ninth paragraph of Article 59.
3. While a member of the temporary staff is on unpaid leave his membership of the social security scheme provided for in Article 67 shall be suspended.
However, a member of the temporary staff who is not gainfully employed may, not later than one month following that in which unpaid leave begins, apply to continue to be covered against the risks referred to in Article 67, provided that he bears half the cost of the contributions provided for in that Article for the duration of his leave; the contribution shall be calculated by reference to his last basic salary.
Moreover, a member of the temporary staff who proves that he cannot acquire pension rights under another pension scheme may apply to continue to acquire further pension rights throughout the period of unpaid leave, provided that he bears the cost of a contribution equal to three times the rate laid down in Article 89; the contributions shall be calculated by reference to the basic salary for his grade and step.
Article 57
A member of the temporary staff who is called up for military service, alternative services or reserve training or who is recalled to serve in the armed forces shall be assigned leave for national service; such leave may in no circumstances exceed the duration of the contract.
A member of the temporary staff who is called up for military service or alternative service shall cease to receive his remuneration but shall retain his right under these Staff Regulations to advancement to a higher step. He shall also retain his right to severance grant if, after completing his military service or alternative service, he pays up his pension contributions retroactively.
A member of the temporary staff who is called up for reserve training or who is recalled to service in the armed forces shall, during the period of training or recall, continue to receive his remuneration subject to deduction of an amount equal to his service pay.
CHAPTER 5
Remuneration and expenses
Article 58
The remuneration of temporary staff shall comprise basic salary, family allowances and other allowances.
Article 59
1. The remuneration of the members of the temporary Staff shall be expressed in euro. The weightings, the deductions, the annual review and the adjustments shall be determined according to the same rules as those set out in Articles 63, 64, 65, 65a and 66a of the Staff Regulations of Officials of the European Communities, as laid down in Regulation (EEC, Euratom, ECSC) No 259/68 (2), hereinafter referred to as ‘the EC Staff Regulations’ and in Regulation (EEC, Euratom, ECSC) No 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (3). The deductions set out in the EC Staff Regulations shall be for the benefit of the budget of the Agency except for the contributions on sickness, accident and unemployment insurance schemes.
2. The basic salaries shall be determined according to the same rules as those set out in Article 66 of the EC Staff Regulations.
3. The family allowances shall comprise:
(a)
household allowance;
(b)
dependent child allowance;
(c)
education allowance.
4. Members of temporary staff in receipt of family allowances specified in this Article shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex V.
5. The dependent child allowance may be doubled by special reasoned decision of the AACC based on medical documents establishing that the child concerned is suffering from a mental or physical handicap which involves the member of temporary staff in heavy expenditure.
6. Where, by virtue of Articles 1, 2 and 3 of Annex V, such family allowances are paid to a person other than the member of temporary staff, these allowances shall be paid in the currency of the country in which that person is resident, calculated where applicable on the basis of the exchange rates referred to in the second subparagraph of Article 63 of the EC Staff Regulation. They shall be subject to the weighting for the country in question if it is inside the European Union or to a weighting equal to 100 if the country of residence is outside the Union.
Paragraphs 4 and 5 shall apply where family allowances are paid to such a person.
7. The expatriation allowance shall be equal to 16 % of the total of the basic salary, household allowance and dependent child allowance to which the member of temporary staff is entitled. The expatriation allowance shall be not less than EUR 442,78 per month.
8. In the event of a member of temporary staff's death, the surviving spouse or dependent children shall receive the deceased's full remuneration until the end of the third month after the month in which the death occurred.
In the event of the death of a person entitled to an invalidity allowance, the above provisions shall apply in respect of the deceased's allowance.
9. A member of temporary staff who has been at one step in his grade for two years shall automatically advance to the next step in that grade.
Article 60
The payment of family allowances and expatriation allowance shall be determined according to Articles 1, 2, 3 and 4 of Annex V.
Article 61
Subject to Articles 62 to 65, a member of the temporary staff shall be entitled, in accordance with Articles 5 to 16 of Annex V, to reimbursement of expenses incurred by him on taking up appointment, transfer or leaving the service, and also to reimbursement of expenses incurred in the course of or in connection with the performance of his duties.
Article 62
A member of the temporary staff engaged for a period of not less than 12 months shall, as provided for in Article 9 of Annex V be entitled to reimbursement of his removal expenses.
Article 63
1. A member of the temporary staff engaged for a period of not less than one year shall receive an installation allowance as provided for in Article 5 of Annex V amounting, for an expected period of service of:
-
not less than one year but less than two years,
to one third
of the rate laid down in Article 5 of Annex V
-
not less than two years but less than three years,
to two thirds
-
three years or more,
to three thirds
2. The resettlement allowance provided for in Article 6 of Annex V shall be granted to temporary staff who have completed four years' service. A member of the temporary staff who has completed more than one year's but less than four years' service shall receive a resettlement allowance proportionate to his length of service.
3. However, the installation allowance provided for in paragraph 1 and the resettlement allowance provided for in paragraph 2 shall not be less than:
(a)
EUR 976,85 for a member of temporary staff who is entitled to the household allowance; and
(b)
EUR 580,83 for a member of temporary staff who is not entitled to the household allowance.
In cases where a husband and wife who are both members of temporary staff of the Agency are both entitled to the installation allowance or resettlement allowance, this shall be payable only to the person whose basic salary is the higher.
In cases where the husband or wife of a member of the temporary staff of the Agency is an official or other servant of the European Communities who is entitled to the installation or resettlement allowance and is in receipt of a higher basic salary, such an allowance shall not be payable to the member of the temporary staff.
Article 64
The daily subsistence allowance shall be as set out in Article 10 of Annex V. However, a member of the temporary staff who is engaged for a fixed period of less than 12 months and who furnishes evidence that it is impossible for him to continue to live in his place of residence shall be entitled to the daily subsistence allowance for the duration of his contract or for a maximum of one year.
Article 65
Article 8 of Annex V on annual payment of travel expenses from place of employment to place of origin, shall apply only to temporary staff who have completed not less than nine months' service.
Article 66
Payment of sums due shall be as set out in Articles 17 and 18 of Annex V.
CHAPTER 6
Social security benefits
Section A
Sickness and accident insurance, social security benefits
Article 67
1. A member of temporary staff during the period of employment, during sick leave and during the periods of unpaid leave referred to in Articles 16 and 56 in accordance with conditions laid down therein, or when in receipt of invalidity allowance, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants within the meaning of Article 2 of Annex V, and recipients of a survivor's pension are insured against sickness up to 80 % of the expenditure incurred subject to the same rules as those drawn up by agreement between the Community institutions pursuant Article 72 of the EC Staff Regulations. This rate shall be increased to 85 % for the following services: consultations and visits, surgical operations, hospitalisation, pharmaceutical products, radiology, analyses, laboratory tests and prostheses on medical prescription with the exception of dental prostheses. It shall be increased to 100 % in cases of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the AACC as of comparable seriousness, and for early detection screening and in cases of confinement. However, reimbursement at 100 % shall not apply in the case of occupational disease or accident having given rise to the application of Article 68.
The unmarried partner of a member of temporary staff shall be treated as the spouse under the sickness insurance scheme, where the first three conditions in Article 1(2)(c) of Annex V are met.
One third of the contribution required to meet such insurance cover shall be charged to the member of temporary staff but so that the amount charged to him shall not exceed 2% of his basic salary.
2. A member of temporary staff whose service terminates and who provides evidence that he is not in gainful employment may, not later than one month following that in which his service terminates apply to continue, for a maximum of six months after termination of service, to be insured against sickness as provided for in paragraph 1. The contribution referred to in paragraph 1 shall be calculated by reference to the last basic salary received by the member of temporary staff, half the contribution being borne by him.
By decision of the AACC taken after consulting the Agency's medical officer, the period of one month for making application and the six months' limit specified in the first subparagraph shall not apply where the person concerned is suffering from a serious or protracted illness which he contracted before leaving the service and of which he notified the Agency before the end of the six months' period specified in the first subparagraph, provided that the person concerned undergoes a medical examination arranged by the Agency.
3. Where the ex-spouse of a member of temporary staff, a child who ceases to be a member of temporary staff's dependant or a person who ceases to be treated as a dependent child within the meaning of Article 2 of Annex V can provide evidence that he or she is not in gainful employment, he or she may continue for a maximum of one year to be insured against sickness as provided for in paragraph 1, in his or her capacity as insured persons covered under that member of temporary staff's insurance; this cover shall not give rise to the levy of a contribution. This one-year period shall commence on the date of the decree absolute of divorce or of the loss of status of dependent child or of person treated as a dependent child.
4. A member of temporary staff who has remained in the service of the Agency until the age of 63 years or who is in receipt of an invalidity allowance shall be entitled to the benefits provided for in paragraph 1 after he has left the service. The amount of contribution shall be calculated by reference to the amount of pension or allowance.
Those benefits shall also apply to the person entitled to survivor's pension following the death of an member of temporary staff who was in active employment or who remained in the service of the Agency until the age of 63 years, or the death of a person entitled to an invalidity allowance. The amount of contribution shall be calculated by reference to the amount of the survivor's pension.
5. Persons entitled to an orphan's pension shall not receive the benefit provided for in paragraph 1 unless they apply for it. The contribution shall be calculated by reference to the orphan's pension.
6. In the case of persons entitled to a survivor's pension, the contribution referred to in paragraphs 4 and 5 may not be less than that calculated by reference to the basic salary corresponding to the first step in grade 1.
7. Where the total expenditure not reimbursed for any period of 12 months exceeds half the member of temporary staff's basic monthly salary, special reimbursement shall be allowed by the AACC, account being taken of the family circumstances of the person concerned, in the manner provided for in the rules referred to in paragraph 1.
8. Persons entitled to the foregoing benefits shall declare the amount of any reimbursements paid or which they can claim under any other sickness insurance scheme provided for by law or regulation for themselves or for persons covered by their insurance.
Where the total which they would receive by way of reimbursement exceeds the sum of the reimbursements provided for in paragraph 1, the difference shall be deducted from the amount to be reimbursed pursuant to paragraph 1, with the exception of reimbursements obtained under a private supplementary sickness insurance scheme covering that part of the expenditure which is not reimbursable by the sickness insurance scheme of the Agency.
Article 68
1. A member of temporary staff, during the period of employment, during sick leave and during the periods of unpaid leave referred to in Articles 16 and 56 in accordance with conditions laid down herein is insured, from the date of his entering the service, against the risk of occupational disease and of accident subject to the same rules as those drawn up by common agreement of the Community institutions pursuant to Article 73 of the EC Staff Regulations. He shall contribute to the cost of insuring against non-occupational risks up to 0,1 % of his basic salary.
Such rules shall specify which risks are not covered.
2. The benefits payable shall be as follows:
(a)
In the event of death:
Payment to the persons listed below of a lump sum equal to five times the deceased's annual basic salary calculated by reference to the monthly amounts of salary received during the 12 months before the accident:
-
to the deceased member of temporary staff's spouse and children in accordance with the law of succession governing the member of temporary staff's estate; the amount payable to the spouse shall not, however, be less than 25 % of the lump sum;
-
where there are no persons of the category above, to the another descendants in accordance with the law of succession governing the member of temporary staff's estate;
-
where there are no persons of either of the two categories above, to the relatives in the ascending line in accordance with the law of succession governing the member of temporary staff's estate;
-
where there are no persons of any of the three categories above, to the Agency.
(b)
In the event of total permanent invalidity:
Payment to the member of temporary staff of a lump sum equal to eight times his annual basic salary calculated on the basis of the monthly amounts of salary received during the 12 months before the accident.
(c)
In the event of partial permanent invalidity:
Payment to the member of temporary staff of a proportion of the sum provided for in subparagraph (b), calculated by reference to the scale laid down in the rules referred to in paragraph 1.
As provided for in these rules an annuity may be substituted for the payments provided for above.
The benefits listed above may be paid in addition to the benefits provided for in Section B.
3. The following shall also be covered in manner provided for in the rules referred to in paragraph 1: medical, pharmaceutical, hospital, surgical, prosthesis, radiography, massage, orthopaedic, clinical and transport expenses and any other similar expenditure incurred as a result of the accident or occupational disease.
Reimbursement shall, however, only be made where the amount paid to the member of temporary staff under Article 67 does not fully cover the expenditure incurred.
Article 69
1. Contributions of the temporary staff and of the Agency to the sickness and accident insurance scheme shall be entirely paid to the sickness and accident insurance scheme set out in the EC Staff Regulations.
2. If, however, the medical examination provided for in Article 36 shows the servant to be suffering from sickness or invalidity, the AACC may decide that expenses arising from such sickness or invalidity are to be excluded from the reimbursement of expenditure provided for in Article 67.
If a member of the temporary staff proves that he cannot obtain cover under any other sickness insurance scheme provided for by law or regulation, he may, on application made at the latest within one month following the expiry of his contract, continue to benefit from the sickness cover provided for in Articles 67 and 68, for a period of not more than six months after the expiry of his contract. The contributions provided for in Article 67(2) shall be based on his last basic salary and half thereof shall be charged to him.
3. The rate of contribution shall be reviewed and adapted as necessary by the Council after a period of six years in the light of the sickness and accident risk of the temporary staff of the Agency.
4. The AACC may, after obtaining the advice of a medical officer authorised by the Agency, decide that the one month time limit within which the application must be made and the six month limit provided for in the paragraph 2 shall not apply where the person concerned is suffering from a serious or protracted illness contracted during his employment, which he has reported to the Agency before the end of the six month period provided for in the paragraph 2, on condition that the person concerned undergoes a medical examination arranged by the Agency.
Article 70
1. A former member of the temporary staff who is unemployed when his service with the Agency has been terminated:
-
who is not in receipt of an invalidity allowance from the Agency,
-
whose service is not terminated by resignation or by cancellation of the contract for disciplinary reasons,
-
who has completed a minimum of six months' service,
-
and who is resident in an EU Member State,
shall be eligible for a monthly unemployment allowance under the conditions laid down below.
Where he is entitled to unemployment benefits under a national scheme, he shall be obliged to declare this to the Agency. In such cases, the amount of those benefits will be deducted from the allowance paid under paragraph 3.
2. To be eligible for this unemployment allowance, a former member of the temporary staff shall:
(a)
be registered, at his own request, as seeking employment with the employment authorities of the EU Member States in which he establishes his residence;
(b)
fulfil the obligations laid down by the law of that EU Member State for persons in receipt of unemployment benefits under that law;
(c)
forward every month to the Agency, a certificate issued by the competent national employment authority stating whether or not he has fulfilled the obligations and conditions referred to in subparagraphs (a) and (b).
The allowance may be granted or maintained by the Agency, even where the national obligations referred to under subparagraph (b) have not been fulfilled, in cases of illness, accident, maternity, invalidity or a situation recognised as being similar or where the national authority, competent to meet those obligations, has given a dispensation.
The Steering Board shall lay down such provisions as it deems necessary for applying this Article.
3. The unemployment allowance shall be set by reference to the basic salary attained by the former member of the temporary staff at the time of the termination of his service. The allowance shall be set at:
(a)
60 % of the basic salary for an initial period of 12 months,
(b)
45 % of the basic salary for the 13th to the 24th month.
Other than during an initial six-month period, in which the lower limit specified below is applicable but the upper limit is not, the amounts thus calculated may neither be less than EUR 1 171,52 nor exceed EUR 2 343,04. These limits shall be adjusted according to the same rules as those set out in Article 66 of the EC Staff Regulations, in accordance with Article 65 of those Regulations.
4. The period during which the unemployment allowance is payable to a former member of the temporary staff may not be more than 24 months from the date of termination of service and shall in no case exceed the equivalent of one third of the actual length of service completed. However, if, during that period, the former member of the temporary staff ceases to fulfil the conditions laid down in paragraphs 1 and 2, payment of the unemployment allowance shall be suspended. Payment shall resume if, before the expiry of that period, the former member of the temporary staff again fulfils the said conditions and is not entitled to national unemployment benefit.
5. A former member of the temporary staff who is eligible for the unemployment allowance shall be entitled to the family allowances according to the same rules as those provided for in Article 67 of the EC Staff Regulations. The household allowance shall be calculated on the basis of the unemployment allowance under the conditions laid down in Article 1 of Annex V.
The person concerned shall be obliged to declare any allowances of the same kind paid from other sources to himself or to his spouse; such allowances shall be deducted from those to be paid on the basis of this Article.
A former member of the temporary staff who is eligible for the unemployment allowance shall be entitled, as provided for in Article 67 to insurance cover against sickness without having to make any contribution.
6. The unemployment allowance and family allowances shall be paid from the Special Unemployment Fund in euro. No correction coefficient shall be applicable.
7. Members of the temporary staff shall contribute one third of the financing of the unemployment insurance scheme. That contribution shall be set at 0,81 % of the basic salary of the person concerned after deducting a standard allowance of EUR 1 065,02 and without taking account of the correction coefficients provided for in Article 64 of the EC Staff Regulations.
The contribution shall be deducted each month from the salary of the person concerned and paid, together with the remaining two thirds to be borne by the Agency, into the Special Unemployment Fund set up in accordance with Article 28a of the Conditions of Employment of other servants of the Communities, as laid down in Regulation (EEC, Euratom, ECSC) No 259/68 (hereinafter referred to as ‘CEOS of the EC’). The rate of contribution shall be reviewed and adapted as necessary by the Agency after a period of 6 years in the light of the unemployment risk of the temporary staff of the Agency.
8. The unemployment allowances paid to a former member of the temporary staff who is unemployed shall be subject to the same rules as those provided for in Regulation (EEC, Euratom, ECSC) No 260/68.
9. The national departments with responsibility for employment and unemployment, acting in accordance with their national legislation, and the Agency shall cooperate with each other in an effective manner in order to ensure that this Article is properly applied.
10. The detailed arrangements for applying this Article shall be subject to the same rules as those laid down by mutual agreement between the Community institutions without prejudice to the provisions of the final subparagraph of paragraph 2.
Article 71
1. On the birth of a child to a member of temporary staff, the person who has actual care of the child shall receive a grant of EUR 198,31.
The same grant shall be paid to a member of temporary staff who adopts a child who is less than five years of age and is a dependant within the meaning of Article 2(2) of Annex V.
2. This grant shall also be payable in the event of termination of pregnancy after not less than seven months.
3. The recipient of a grant on the birth of a child shall declare any grants of the same nature received from other sources for the same child; such grants shall be deducted from the grant provided for above. Where both parents are member of temporary staff of the Agency, the grant shall be paid once only.
Article 72
In the event of the death of a member of temporary staff, a member of temporary staff's spouse or dependent child, or any other dependent person within the meaning of Article 2 of Annex V who lived as part of the member of temporary staff's household, the Agency shall reimburse the costs involved in transporting the body from the member of temporary staff's place of employment to his place of origin.
However, in the event of a member of temporary staff's death during a mission, the Agency shall bear the costs involved in transporting the body from the place where death occurs to the member of temporary staff's place of origin.
Article 73
Gifts, loans or advances may be made to temporary staff during the term of their contract or after expiry of the contract where, as a result of serious protracted illness contracted or a disability, or of an accident sustained, during his employment, the member of temporary staff is incapable of working and proves that such illness or accident is not covered by another social security scheme.
Section B
Insurance against invalidity and death
Article 74
Temporary staff members are insured in accordance with the following provisions against the risk of death and of invalidity occurring during their employment.
The payments and benefits provided for in this Section shall be suspended if the remuneration which a member of the temporary staff receives in respect of his employment, is suspended pursuant to these Staff Regulations.
Article 75
Where the medical examination made before a member of the temporary staff is engaged shows that he is suffering from sickness or invalidity, the AACC may, in so far as risks arising from such sickness or invalidity are concerned, decide to admit him to guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the Agency.
The member of the temporary staff may appeal against this decision to the Invalidity Committee that shall be established by the Agency. Pursuant to an agreement between the Agency and the Council of the European Union, the Agency can make use of the Invalidity Committee of the Council.
Article 76
1. A member of the temporary staff who is suffering from total invalidity and who, for that reason, is obliged to suspend employment with the Agency shall be entitled, for as long as the invalidity lasts, to an invalidity allowance, the amount of which shall be determined as follows.
If a member of the temporary staff, recipient of an invalidity allowance, reaches the age of 65, the general rules on the severance grant shall be applied. The amount of the severance grant shall be based on the salary for the grade and step occupied by the servant when he became an invalid.
2. The invalidity allowance shall be 70 % of the final basic salary of the member of the temporary staff. However, it shall not be less than the minimum subsistence figure, i.e. the basic salary of an member of temporary staff of the EC at the first step of Grade 1. The invalidity allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance.
3. Where the invalidity of the member of the temporary staff arises from an accident in the course of or in connection with the performance of his duties, from an occupational disease, from a public-spirited act or from risking life and limb to save another human being, the invalidity allowance shall not be less than 120 % of the minimum subsistence figure. In such cases the pension contributions shall be borne by the budget of the Agency.
4. In the case of invalidity deliberately brought about by the member of the temporary staff, the AACC may decide that he should receive only the grant provided for in Article 85.
5. Persons entitled to an invalidity allowance shall also be entitled to the family allowances determined in accordance with article 59(3). In accordance with Annex V, the household allowance shall be determined on the basis of the recipient's allowance.
Article 77
1. Invalidity shall be established by the Invalidity Committee referred to in Article 75.
2. The Agency may require periodic examinations of the recipient of an invalidity allowance to establish that he still fulfils the conditions for payment of that allowance. If the Invalidity Committee finds that these conditions are no longer fulfilled, the member of the temporary staff shall resume service with the Agency, providing his contract has not expired.
However, if it proves impossible to employ the person concerned in the service of the Agency, the contract may be terminated subject to payment of an amount corresponding to the remuneration that would have been paid during the period of notice and, where applicable, to the compensation for termination of contract provided for in Article 95. Article 85 shall also apply.
Article 78
The persons entitled under a deceased member of the temporary staff, as determined according to the same rules as those laid down in Chapter 3 of Annex VI, shall be entitled to the survivor's pension as provided for in Articles 79 to 82.
Where a former member of temporary staff in receipt of an invalidity allowance dies, the persons entitled under the deceased member of temporary staff, as defined in Chapter 3 of Annex VI, shall be entitled to the survivor's pension as provided for in that Annex.
Where the whereabouts of a member of the temporary staff, or of a former member of temporary staff in receipt of an invalidity allowance are unknown for more than one year, the provisional pensions to his spouse and to persons recognised as his dependants shall be determined according to the same rules as those set out in Chapters 5 and 6 of Annex VIII to the EC Staff Regulations.
Article 79
The right to receive payment of pension shall have effect from the first day of the month following that in which death occurred or, where applicable, on the first day of the month following the period during which the deceased's surviving spouse, orphans or dependants receive his emoluments under Article 59(8).
Article 80
The surviving spouse of a member of the temporary staff shall be entitled to a survivor's pension in accordance with Chapter 3 of Annex VI. The pension shall be not less than 35 % of the final basic monthly salary received by the member of the temporary staff, nor less than the basic salary of an EC member of temporary staff at the first step of grade 1.
A person drawing survivor's pension shall be entitled, under the conditions laid down in Annex V to the family allowances specified in Article 59(3). However, the dependent child allowance shall be equal to twice the amount of the allowance provided for in Article 59(3)(b).
Article 81
Where a member of temporary staff or person entitled to an invalidity allowance dies leaving no spouse entitled to a survivor's pension, the children dependent on the deceased within the meaning of Article 2 of Annex V at the time of his death shall be entitled to orphans' pension in accordance with Article 10 of Annex VI.
The same pension entitlement shall apply to children who fulfil the above conditions in the event of the death or remarriage of the spouse in receipt of a survivor's pension.
Where a member of temporary staff or person entitled to an invalidity allowance dies but the conditions set out in the first paragraph are not satisfied, the dependent children within the meaning of Article 2 of Annex V shall be entitled to orphans' pension in accordance with Article 10 of Annex VI; the pension shall, however, be equal to half the pension calculated in accordance with that Article.
For persons treated as dependent children within the meaning of Article 2(4) of Annex V, the orphan's pension may not exceed an amount equal to twice the dependent child allowance.
No orphan's pension shall be payable where a natural parent who has been replaced by an adoptive parent dies.
Orphans shall be entitled to an education allowance in accordance with Article 3 of Annex V.
Article 82
In the case of divorce or where there is more than one category of survivor who qualifies to claim survivor's pension, such pension shall be apportioned in manner provided for in Annex VI.
Article 83
1. Notwithstanding any other provisions, notably those concerning the minimum amounts payable to persons entitled to a survivor's pension, the total amount payable by way of survivor's pension plus family allowances less tax and other compulsory deductions to the widow and other entitled persons may not exceed the following:
(a)
in the event of the death of a member of temporary staff being either on active employment, leave on personal grounds, leave for military service, parental leave or family leave, the amount of the remuneration which the member of temporary staff would have received in the same grade and step if he had still been in the service, plus any family allowances received by him in that case and less tax and other compulsory deductions;
(b)
for the period following the date on which the member of temporary staff referred to in (a) above would have reached the age of 65, the amount of the severance grant to which he would have been entitled thereafter, had he been alive, based on the same grade and step at the time of death, plus any family allowances which he would have received, less tax and other compulsory deductions;
(c)
in the event of the death of a former member of temporary staff entitled to an invalidity allowance, the amount of the pension to which he would have been entitled, had he been alive, subject to the allowances and deductions referred to in subparagraph (b).
2. For the purposes of paragraph 1, weightings shall be disregarded, which could affect the various amounts in question.
3. The maximum amount as defined in subparagraphs (a) to (c) of paragraph 1 shall be apportioned among the persons entitled to a survivor's pension in proportion to their respective entitlements, paragraph 1 being disregarded for this purpose.
The second and third subparagraphs of Article 84(1) shall apply to the amounts thus apportioned.
Article 84
1. The pensions provided for above shall be calculated by reference to salary scales in force on the first day of the month in which entitlement commences.
No correction coefficient shall be applicable to pensions.
Pensions expressed in euro shall be paid in one of the currencies referred to in Article 29 of Annex VI.
2. Where, in accordance with Article 59, the remunerations are adapted, the same adaptation shall be applied to pensions.
3. The provisions of paragraphs 1 and 2 shall apply by analogy to recipients of an invalidity allowance.
Section C
Severance grant
Article 85
On leaving the service, a member of temporary staff shall be entitled to the payment of the severance grant or the transfer of the actuarial equivalent of his retirement pension rights in accordance with article 1 of Annex VI.
Article 86
Where a member of the temporary staff has exercised the option provided for in Article 90, his severance grant shall be reduced proportionately in respect of the period in which the sums were withdrawn.
The first subparagraph shall not apply to a member of the temporary staff who, in the three months following application of these Staff Regulations to him, asks to be allowed to repay such sums plus compound interest at the rate of 3,5 % per year, which may be revised following the procedure laid down in Article 87.
Article 87
1. The rate for the calculation of compound interest shall be the effective rate referred to in paragraphs 2 and 3 and shall, if necessary, be revised on the occasion of the five-yearly actuarial assessments.
2. The interest rates to be taken into consideration for the actuarial calculations shall be based on the observed average annual interest rates on the long-term public debt of the EU Member States as published by the Commission of the European Communities. An appropriate consumer price index shall be used to calculate the corresponding interest rate net of inflation as needed for the actuarial calculations.
3. The effective annual rate to be taken into consideration for the actuarial calculations shall be the average of the real average interest rates for the 12 years preceding the current year.
Section D
Funding of the invalidity and life assurance scheme and of the pension scheme
Article 88
1. Benefits paid under the social security scheme provided for in Sections B and C shall be charged to the budget of the Agency. Member States participating in the Agency shall jointly guarantee payment of such benefits in accordance with the scale laid down for financing such expenditure.
2. Salaries and invalidity allowances shall in all cases be subject to deductions of the contribution of the social security scheme provided for in Section B.
3. The funding of the social security scheme provided for in Sections B and C shall be as set out in Article 89 of these Staff Regulations and Articles 21 and 22 of Annex VI.
4. Contributions of the temporary staff and of the Agency to the social security scheme provided for in Sections B and C shall be entirely paid to the budget of the Agency.
Article 89
Members of temporary staff shall contribute one third of the cost of financing this pension scheme. The contribution shall be 9,25 % of the member of temporary staff's basic salary, the weightings provided for in Article 59 not being taken into account. It shall be deducted monthly from the salaries of member of temporary staff. The contribution shall be adjusted in accordance with the same rules as those laid down in Annex XII of the EC Staff Regulations.
Article 90
In accordance with conditions to be laid down by the Agency, a member of the temporary staff may request the Agency to effect any payments which he is required to make in order to constitute or maintain pension rights in his country of origin. The Agency may also decide to effect any payments which a member of the temporary staff is required to make in order to constitute or maintain pension rights in his country of origin, even in absence of request from such member of the temporary staff. In such case, the Agency must duly justify its decision.
Such payments shall not exceed twice the rate provided for in Article 89 and shall be charged to the budget of the Agency.
Section E
Settlements of claims by temporary staff
Article 91
The invalidity scheme or the survivor's pension scheme are set out in Articles 19 to 23 of Annex VI.
Section F
Payment of benefits
Article 92
1. Payment of benefits shall be made in accordance with Articles 83 and 84 of these Staff Regulations and with Article 28 of Annex VI.
2. Any sums due from a member of the temporary staff to the Agency under this insurance scheme at the date when the benefits are payable shall be deducted from the amount of his benefit or from the benefits payable to those entitled under him. The deduction may be spread over a number of months.
Section G
Subrogation in favour of the Agency
Article 93
1. Where the death, accidental injury or sickness of a person covered by these Staff Regulations is caused by a third party, the Agency shall, in respect of the obligations incumbent upon them under these Staff Regulations consequent upon the event causing such death, injury or sickness, stand subrogated to the rights, including rights of action, of the victim or of those entitled under him against the third party.
2. The subrogation provided for by paragraph 1 shall extend inter alia to the following:
-
continued payment of remuneration in accordance with Article 52 to the member of temporary staff during the period when he is temporarily unfit to work,
-
payments effected in accordance with Article 59(8) following the death of a member of temporary staff or of a person entitled to an invalidity allowance,
-
benefits paid under Articles 67 and 68 and their implementing rules, relating to insurance against sickness and accident,
-
payment of the costs involved in transporting the body, as referred to in Article 72,
-
supplementary family allowances paid in accordance with Article 59(5) and with Article 2(3) and (5) of Annex V in respect of a dependent child suffering from serious illness, infirmity or handicap,
-
invalidity allowances paid in the event of accident or sickness resulting in permanent invalidity preventing the member of temporary staff from performing his duties,
-
survivor's pensions paid in the event of the death of a member of temporary staff or of a former member of temporary staff or the death of the spouse of a member of temporary staff or of a former member of temporary staff entitled to a pension, where the spouse is not a member of temporary staff,
-
orphan's pension paid regardless of age to the child of a member of temporary staff or former member of temporary staff where that child is prevented by serious illness, infirmity or handicap from earning a livelihood after the death of the person on whom he was dependent.
3. However, the Agency shall not be subrogated to rights of compensation in respect of purely personal damage such as non-material injury, damages for pain and suffering or compensation for disfigurement and loss of amenity over and above the allowance granted for those headings under Article 68.
4. The provisions of paragraphs 1, 2 and 3 may not be a bar to direct action by the Agency.
CHAPTER 7
Recovery of overpayments
Article 94
Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.
The request for recovery must be made no later than five years from the date on which the sum was paid. Where the AACC is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed.
CHAPTER 8
Termination of employment
Article 95
Apart from cessation on death, the employment of temporary staff shall cease:
(a)
at the end of the month in which the member of temporary staff reaches the age of 65 years;
(b)
on the date stated in the contract; or
(c)
at the end of the period of notice specified in the contract giving the member of the temporary staff or the Agency the option to terminate earlier. The period of notice shall not be less than one month per year of service, subject to a minimum of one month and a maximum of three months.
For temporary staff whose contracts have been renewed the maximum shall be six months. The period of notice shall not, however, commence to run during maternity leave or sick leave, provided such sick leave does not exceed three months. It shall, moreover, be suspended during maternity or sick leave subject to the limits aforesaid. If the Agency terminates the contract, the member of the temporary staff shall be entitled to compensation equal to one third of his basic salary for the period between the date when his duties end and the date when his contract expires; or
(d)
where the member of temporary staff no longer satisfies the conditions laid down in Article 36(2), point (a), subject to the possibility of authorising an exception under that provision. Should the exception not be authorised, the period of notice referred to in point (c) shall apply.
Article 96
Employment may be terminated by the Agency without notice:
(a)
during or at the end of the probationary period in accordance with Article 38;
(b)
if the member of the temporary staff is unable to resume his duties at the end of a period of paid sick leave as provided for in Article 52. In such case, the member of the temporary staff shall receive an allowance equal to this basic salary, plus family allowances at the rate of two days per month of service completed.
Article 97
1. After the disciplinary procedure provided for in Title V has been followed, employment may be terminated without notice on disciplinary grounds in serious cases of intentional or negligent failure of temporary staff to comply with their obligations. A reasoned decision shall be taken by the AACC, after the member of temporary staff concerned has been given an opportunity of submitting his defence.
Before his employment is terminated, a member of the temporary staff may be suspended, in accordance with Article 160.
2. Where employment is terminated in accordance with paragraph 1, the AACC may decide:
(a)
to limit the severance grant provided for in Article 85 to repayment of the contribution provided for in Article 88, plus compound interest at the rate of 3,5 % per annum;
(b)
to withhold in whole or in part the resettlement allowance provided for in Article 63(2).
Article 98
1. The employment of a member of the temporary staff shall be terminated by the Agency without notice if the AACC finds:
(a)
that at the time of his engagement he deliberately furnished false information concerning his professional qualifications and experience or his ability to fulfil the requirements of Article 36(2), and
(b)
that the false information furnished was a determining factor in his being engaged.
2. In such cases the AACC shall, after hearing the member of temporary staff concerned, and after the disciplinary procedure provided for in Title V, has been followed, declare that his employment is terminated.
Before his employment is terminated, a member of temporary staff may be suspended in accordance with Article 160.
The provisions of Article 97(2) shall apply.
Article 99
Without prejudice to Articles 97 and 98, any intentional or negligent failure by a member of the temporary staff or of a former member of the temporary staff to comply with his obligations under these Staff Regulations shall render him liable to disciplinary action in accordance with Title V of these Staff Regulations.
TITLE III
CONTRACT STAFF
CHAPTER 1
General provisions
Article 100
For the purposes of these Staff Regulations, ‘contract staff’ means staff not assigned to a post included in the list of posts appended to the budget of the Agency and engaged for the performance of full-time or part-time duties.
Article 101
1. Contract staff shall be paid from the total appropriations for the purpose under the budget of the Agency.
2. The Steering Board shall adopt specific provisions governing the use of contract staff, as necessary, within the framework of the Joint Action 2004/551/CFSP.
3. The Agency shall provide indicative yearly forecasts for the use of contract staff per function group, in the context of the budget procedure.
Article 102
1. Contract staff shall be subdivided into four function groups corresponding to the duties to be performed. Each function group shall be subdivided into grades and steps.
2. The types of duties and corresponding function groups shall be as shown in the following table:
Function group
Grades
Duties
IV
13 to 18
Administrative, advisory, linguistic and equivalent technical tasks, performed under the supervision of temporary staff.
III
8 to 12
Executive tasks, drafting, accountancy and other equivalent technical tasks, performed under the supervision of temporary staff.
II
4 to 7
Clerical and secretarial tasks, office management and other equivalent tasks, performed under the supervision of temporary staff.
I
1 to 3
Manual and administrative support service tasks, performed under the supervision of temporary staff.
3. Based on this table, the Agency shall define the powers attaching to each type of duties.
4. Article 6 shall apply by analogy.
CHAPTER 2
Rights and obligations
Article 103
Articles 10 to 34 shall apply by analogy.
CHAPTER 3
Conditions of engagement
Article 104
1. Contract staff shall be selected on the broadest possible geographical basis from among nationals of participating Member States and without distinction as to racial or ethnic origin, political, philosophical or religious beliefs, age or disability, gender or sexual orientation and without reference to their marital status or family situation.
2. Recruitment as a member of the contract staff shall require at least:
(a)
in function group I, successful completion of compulsory education;
(b)
in function groups II and III:
(i)
a level of post-secondary education attested by a diploma, or
(ii)
a level of secondary education attested by a diploma giving access to post secondary education, and appropriate professional experience of at least three years, or
(iii)
where justified in the interest of the service, professional training or professional experience of an equivalent level;
(c)
in function group IV:
(i)
a level of education which corresponds to completed university studies of at least three years attested by a diploma, or
(ii)
where justified in the interest of the service, professional training of an equivalent level.
3. A member of the contract staff may be engaged only on condition that he:
(a)
is a national of one of the Member States participating in the Agency and enjoys his full rights as a citizen;
(b)
has fulfilled any obligations imposed on him by the laws concerning military service;
(c)
produces the appropriate character references as to his suitability for the performance of his duties;
(d)
is physically fit to perform his duties; and
(e)
produces evidence of a thorough knowledge of one of the languages of the European Union and of a satisfactory knowledge of another language of the European Union to the extent necessary for the performance of his duties.
4. In the initial contract, the AACC may waive the requirement that the person concerned should produce documentary evidence that he fulfils the conditions in points (a), (b) and (c) of paragraphs 2 and 3 where his engagement is for not more than three months.
5. The Steering Board shall adopt specific provisions on the procedures for engagement of contract staff, as necessary, within the framework of the Joint Action 2004/551/CFSP.
Article 105
Before being engaged, a member of the contract staff shall be medically examined by a medical officer authorised by the Agency in order that the Agency may be satisfied that he fulfils the requirements of Article 104(3)(d).
Article 37 shall apply by analogy.
Article 106
1. A member of the contract staff whose contract is concluded for a duration of at least one year shall serve a probationary period for the first six months of his period of employment if he is in function group I and the first nine months if he is in any other function group.
2. Where during his probationary period a member of the contract staff is prevented by sickness or accident from performing his duties for one month or more, the AACC may extend his probationary period by the corresponding length of time.
3. Not less than one month before the expiry of the probationary period, a report shall be made on the ability of the member of the contract staff to perform the duties pertaining to his post and also on his conduct and efficiency in the service. The report shall be communicated to the person concerned, who shall have the right to submit his comments in writing. A member of the contract staff whose work has not proved adequate to justify retention in his function shall be dismissed. However, the AACC may, in exceptional circumstances, extend the probationary period for a maximum of six months, and possibly assign the member of the contract staff to another department.
4. A report on the probationary member of the contract staff may be made at any time during the probationary period if his work is proving obviously inadequate. The report shall be communicated to the person concerned, who shall have the right to submit his comments in writing. On the basis of the report, the AACC may decide to dismiss the member of the contract staff before the end of the probationary period by giving him one month's notice.
5. A dismissed member of the contract staff shall be entitled to compensation equal to one third of his basic salary per month of probation completed.
Article 107
The contracts of contract staff may be concluded for a fixed period of at least three months and not more than four years. They may be renewed not more than once for a fixed period of not more than five years. The initial contract and the first renewal must be of a total duration of not less than six months for function group I and not less than nine months for the other function groups.
Article 108
1. Contract staff shall only be recruited
(i)
in grades 13, 14, or 16 for function group IV,
(ii)
in grades 8, 9 or 10 for function group III,
(iii)
in grades 4 or 5 for function group II,
(iv)
in grade 1 for function group I.
The grading of such contract staff within each function group shall take account of the qualifications and experience of the persons concerned. To address specific needs of the Agency, labour market conditions prevailing in the European Union may also be taken into account. Within their grade, such contract staff shall be recruited in the first step.
2. Where a member of the contract staff moves to a new post within a function group, he shall not be classified in a lower grade or step than in his former post.
Where a member of such contract staff moves to a higher function group, he shall be classified at a grade and step such that his remuneration is at least equal to that to which he was entitled under the preceding contract.
Article 109
1. The first subparagraph of Article 40 shall apply by analogy to contract staff engaged for a period of not less than one year.
2. A member of the contract staff who has been at one step in his grade for two years shall automatically advance to the next step in that grade.
3. In the case of contract staff, classification in the next higher grade in the same function group shall be by decision of the Agency. It shall be effected by classifying such contract staff in the first step of the next higher grade. Such advancement shall be exclusively by selection from among contract staff with a contract of at least three years who have completed a minimum period of two years in their grade, after consideration of the comparative merits of such contract staff eligible for advancement to a higher grade and of the reports on them. When considering comparative merits, the AACC shall in particular take account of the reports on the members of contract staff, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge in accordance with Article 104(3)(e) and, where appropriate, the level of responsibilities exercised by them.
4. A member of the contract staff may change to a higher function group only through participation in a general selection procedure.
CHAPTER 4
Working conditions
Article 110
Articles 41 to 57 shall apply by analogy.
CHAPTER 5
Remuneration and expenses
Article 111
Articles 58 to 66 shall apply by analogy, subject to the amendments set out in Articles 112 and 113.
Article 112
The scale of basic salaries shall be determined according to the same scale as the one set out in Article 93 of the CEOS of the EC.
Article 113
Notwithstanding Article 63(3), the installation allowance provided for in paragraph 1 and the resettlement allowance provided for in paragraph 2 of that Article, shall not be less than:
-
EUR 734,76 for a member of the contract staff who is entitled to the household allowance; and
-
EUR 435,62 for a member of the contract staff who is not entitled to the household allowance.
CHAPTER 6
Section A
Social security benefits
Article 114
Articles 67 to 69 shall apply by analogy. However, Article 67(4) and (5) shall not apply to a member of the contract staff who has remained in the service of the Agency until the age of 63, unless he has been employed for more than 3 years as a member of such staff.
Article 115
1. A former member of the contract staff who becomes unemployed when his service with the Agency is terminated, and:
(a)
who is not in receipt of an invalidity allowance from the Agency,
(b)
whose service is not terminated by resignation or by cancellation of the contract for disciplinary reasons,
(c)
who has completed a minimum of six months' service,
(d)
who is resident in an EU Member State,
shall be eligible for a monthly unemployment allowance under the conditions laid down below.
Where he is entitled to unemployment benefits under a national scheme, he shall be obliged to declare this to the Agency. In such cases, the amount of those benefits shall be deducted from the allowance paid under paragraph 3.
2. To be eligible for this unemployment allowance, a former member of the contract staff shall:
(a)
be registered, at his own request, as seeking employment with the employment authorities of the EU Member State in which he establishes his residence;
(b)
fulfil the obligations laid down by the law of that EU Member State for persons in receipt of unemployment benefits under that law;
(c)
forward every month to the Agency a certificate issued by the competent national employment authority stating whether or not he has fulfilled the obligations and conditions referred to in subparagraphs (a) and (b).
The allowance may be granted or maintained by the Agency, even where the national obligations referred to in subparagraph (b) have not been fulfilled, in cases of illness, accident, maternity, invalidity or a situation recognised as being similar or where the national authority, competent to meet those obligations, has given a dispensation.
The Steering Board shall lay down such provisions as it deems necessary for applying this Article.
3. The unemployment allowance shall be set by reference to the basic salary attained by the former member of the contract staff at the time of the termination of his service. The allowance shall be set at:
(a)
60 % of the basic salary for an initial period of 12 months,
(b)
45 % of the basic salary for the 13th to the 24th month,
(c)
30 % of the basic salary for the 25th to the 36th month.
Other than during an initial six-month period, in which the lower limit specified below is applicable but the upper limit is not, the amounts thus calculated may neither be less than EUR 878,64 nor exceed EUR 1 757,28. These limits shall be adjusted, in the same way as the salary scales set out in Article 66 of the EC Staff Regulations, according to the same rules as those set out in Article 65 of those Regulations.
4. The period during which the unemployment allowance is payable to a former member of the contract staff may not be more than 36 months from the date of termination of service and shall in no case exceed the equivalent of one third of the actual length of service completed. However, if, during that period, the former member of the contract staff ceases to fulfil the conditions laid down in paragraphs 1 and 2, payment of the unemployment allowance shall be suspended. Payment shall be resumed if, before the expiry of that period, the former member of the contract staff again fulfils the said conditions and is not entitled to national unemployment benefit.
5. A former member of the contract staff who is eligible for the unemployment allowance shall be entitled to the family allowances according the same rules as those provided for in Article 67 of the EC Staff Regulations. The household allowance shall be calculated on the basis of the unemployment allowance under the conditions laid down in Article 1 of Annex V of these Staff Regulations.
The person concerned shall be obliged to declare any allowances of the same kind paid from other sources to himself or to his spouse; such allowances shall be deducted from those to be paid on the basis of this Article.
A former member of the contract staff who is eligible for the unemployment allowance shall be entitled, as provided for in Article 67, which shall apply by analogy, to insurance cover against sickness without having to make any contribution.
6. The unemployment allowance and family allowances shall be paid from the Special Unemployment Fund in euro. No correction coefficient shall be applicable.
7. Members of the contract staff shall contribute one third of the financing of the unemployment insurance scheme. That contribution shall be set at 0,81 % of the basic salary of the person concerned after deducting a standard allowance of EUR 798,77 and without taking account of any correction coefficients as those provided for in Article 64 of the EC Staff Regulations. The contribution shall be deducted each month from the salary of the person concerned and paid, together with the remaining two thirds to be borne by the Agency, into the Special Unemployment Fund set up in accordance with Article 28a of the CEOS of the EC. The rate of contribution shall be reviewed and adapted as necessary by the Council after a period of 6 years in the light of the unemployment risk of the contract staff of the Agency.
8. Unemployment allowances paid to former members of the contract staff who are unemployed shall be subject to the same rules as those laid down in Regulation (EEC, Euratom, ECSC) No 260/68.
9. The national departments with responsibility for employment and unemployment, acting in accordance with their national legislation, and the Agency shall cooperate with each other in an effective manner in order to ensure that this Article is properly applied.
10. The detailed arrangements adopted on the basis of Article 70(10) shall be applicable for this Article, without prejudice to the provisions of the third subparagraph of paragraph 2 of this Article.
Article 116
Articles 71 and 72 shall apply by analogy.
Article 117
Gifts, loans or advances may be made to contract staff during the term of their contract or after expiry of the contract where, as a result of serious protracted illness contracted or a disability, or of an accident sustained, during his employment, the member of contract staff is incapable of working and proves that such illness or accident is not covered by another social security scheme.
Section B
Insurance against the risk of invalidity and death
Article 118
Contract staff shall be insured in accordance with the following provisions against the risk of death or invalidity occurring during their employment.
The payments and benefits provided for in this Section shall be suspended if the remuneration which a member of such staff receives in respect of his employment is suspended under these Staff Regulations.
Article 119
Where the medical examination made before a member of the contract staff is engaged shows that he is suffering from sickness or invalidity, the AACC may, in so far as risks arising from such sickness or invalidity are concerned, decide to grant him guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the Agency.
The contract staff member may appeal against this decision to the Invalidity Committee provided for in Article 75 of these Staff Regulations.
Article 120
1. A member of the contract staff who is suffering from total invalidity and who, for that reason, is obliged to suspend employment with the Agency shall be entitled, for as long as the invalidity lasts, to an invalidity allowance, the amount of which shall be determined as follows.
If a member of the contract staff recipient of an invalidity allowance, reaches the age of 65, the general rules on severance grant shall be applied. The amount of the severance grant shall be based on the salary for the grade and step occupied by the member of the contract staff when he became an invalid.
2. The invalidity allowance shall be 70 % of the final basic salary of the member of the contract staff. However, it shall not be less than the basic monthly salary of a member of the contract staff in function group I, grade 1, step 1. The invalidity allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance.
3. Where the invalidity of the contract staff member arises from an accident in the course of or in connection with the performance of his duties, from an occupational disease, from a public spirited act or from risking life and limb to save another human being, the invalidity allowance shall not be less than 120 % of the basic monthly salary of a function group I, grade 1, step 1 contract staff member. In such cases the pension contributions shall be borne by the budget of the former employer.
4. In the case of invalidity deliberately brought about by the contract staff member, the AACC may decide that he should receive only the grant provided for in Article 128.
5. Persons entitled to an invalidity allowance shall also be entitled to the family allowances determined in accordance with Article 59(3), in accordance with Annex V; the household allowance shall be determined on the basis of the recipient's allowance.
Article 121
1. Invalidity shall be established by the Invalidity Committee provided for in Article 75.
2. Entitlement to an invalidity allowance shall take effect on the day following that on which the contract staff member's employment is terminated under Articles 95 and 96, which are applicable by analogy.
3. The Agency may require periodic examinations of the recipient of an invalidity allowance to establish that he still fulfils the conditions for payment of that allowance. If the Invalidity Committee finds that these conditions are no longer fulfilled, the contract staff member shall resume service with the Agency, providing his contract has not expired.
However, if it proves impossible to employ the person concerned in the service of the Agency, the contract may be terminated subject to payment of an amount corresponding to the remuneration that would have been paid during the period of notice and, where applicable, to the compensation for termination of contract provided for in Article 95. Article 128 shall also apply.
Article 122
1. The persons entitled under a deceased contract staff member, determined according to the same rules as those laid down in Chapter 3 of Annex VI shall be entitled to a survivor's pension as provided for in Articles 123 to 126.
2. In the event of the death of a former contract staff member in receipt of an invalidity allowance, the persons entitled under the deceased former contract staff member, as defined in Chapter 3 of Annex VI, shall be entitled to a survivor's pension as provided for in that Annex.
3. Where the whereabouts of a contract staff member or of a former contract staff member in receipt of an invalidity allowance, are unknown for more than one year, the provisional pensions to his spouse and to persons recognised as his dependants shall be determined according to the same rules as those laid down in Chapters 5 and 6 of Annex VIII to the EC Staff Regulations.
Article 123
The right to receive payment of pension shall have effect from the first day of the month following that in which death occurs or, where applicable, on the first day of the month following the period during which the deceased's surviving spouse, orphans or dependants receive his emoluments under Article 59(8).
Article 124
The surviving spouse of a contract staff member shall be entitled to a survivor's pension in accordance with Chapter 3 of Annex VI. The pension shall not be less than 35 % of the final basic monthly salary received by the contract staff member, nor less than the basic monthly salary of contract staff in function group I, grade 1, step 1.
A person drawing a survivor's pension shall be entitled, on the conditions laid down in Annex V to the family allowances specified in Article 59(3). However, the dependent child allowance shall be equal to twice the amount of the allowance provided for in Article 59(3)(b).
Article 125
1. Where a member of contract staff or a former member of contract staff in receipt of an invalidity allowance dies leaving no spouse entitled to a survivor's pension, the children deemed to be dependent on him shall be entitled to an orphan's pension in accordance with Article 81, which shall apply by analogy.
2. The same entitlement shall apply to children who fulfil the foregoing conditions in the event of death or remarriage of a spouse who is entitled to a survivor's pension.
3. Where a member of contract staff or a former member of contract staff in receipt of an invalidity allowance dies but the conditions set out in paragraph 1 are not satisfied, the provisions of the third paragraph of Article 81 shall apply by analogy.
4. The orphan's pension of a person treated as a dependent child as defined in Article 2(4) of Annex V, may not exceed twice the dependent child allowance. However, entitlement to the pension shall cease if a third party is liable for maintenance under the national laws applicable.
5. No orphan's pension shall be payable where a natural parent who has been replaced by an adoptive parent dies.
6. Orphans shall be entitled to an education allowance in accordance with Article 3 of Annex V.
Article 126
In the case of divorce or where there is more than one category of survivor who qualifies to claim survivor's pension, such pension shall be apportioned in the manner provided for in Chapter 3 of Annex VI.
Article 127
Articles 83 and 84 shall apply by analogy.
Section C
Severance grant
Article 128
On leaving the service, a member of contract staff shall be entitled to the payment of the severance grant or the transfer of the actuarial equivalent of his retirement pension rights in accordance with Article 1 of Annex VI.
Article 129
1. Where a member of the contract staff has exercised the option provided for in Article 131, the contract staff member's severance grant shall be reduced proportionately in respect of the period in which the sums were withdrawn.
2. The preceding paragraph shall not apply to a contract staff member who, in the three months following application of these Staff Regulations to him, asks to be allowed to repay such sums plus compound interest at the rate of 3,5 % per year, which may be revised following the procedure laid down in Article 87.
Section D
Funding of the invalidity and life assurance scheme and of the pension scheme
Article 130
Articles 88 and 89 shall apply by analogy.
Article 131
In accordance with conditions to be laid down by the Agency, a member of the contract staff may request the Agency to effect any payments which he is required to make in order to constitute or maintain pension rights, unemployment insurance, invalidity insurance, life insurance and sickness insurance in the country where he has last been covered by such schemes. The Agency may also decide to effect any payments which a member of the contract staff is required to make in order to constitute or maintain pension rights in his country of origin, even in absence of request from such member of the contract staff. In such case, the Agency must duly justify its decision. During the period of these contributions, the contract staff member shall not benefit from the Agency sickness insurance scheme. Moreover, for the period corresponding to these contributions, the contract staff member shall not be covered by the Agency life assurance and invalidity schemes and shall not acquire rights under the Agency unemployment insurance and pension schemes.
The actual period of such payments for any contract staff member shall not exceed 6 months. However, the Agency may decide to extend this period to one year. The payments shall be charged to the budget of the Agency. Payments to constitute or maintain pension rights shall not exceed twice the rate provided for in Article 89.
Section E
Settlements of claims by contract staff
Article 132
The invalidity scheme or the survivor's pension scheme are set out in Articles 19 to 23 of Annex VI.
Section F
Payment of benefits
Article 133
1. Articles 83 and 84 of these Staff Regulations shall apply by analogy, as well as Article 29 of Annex VI.
2. Any sums due from a contract staff member to the Agency under this insurance scheme at the date when the benefits are payable shall be deducted from the amount of his benefit or from the benefits payable to those entitled under him. The deduction may be spread over a number of months.
Section G
Subrogation in favour of the Agency
Article 134
The provisions of Article 93 shall apply by analogy in favour of the Agency.
CHAPTER 7
Recovery of undue payment
Article 135
The provisions of Article 94 shall apply by analogy.
CHAPTER 8
Termination of employment
Article 136
Articles 95 to 99 shall apply by analogy to contract staff.
In the event of disciplinary proceedings against a contract staff member, the Disciplinary Board referred to in Article 142 shall meet with two additional members from the same function group and grade as the contract staff member concerned. These two additional members shall be appointed according to an ad hoc procedure agreed upon by the AACC and the Staff Committee.
TITLE IV
STAFF REPRESENTATION
Article 137
1. A Staff Committee shall be formed according to modalities to be determined by the Steering Board.
2. The Staff Committee shall represent the interests of the staff vis-à-vis the Agency and maintain continuous contact between the Agency and the staff. It shall contribute to the smooth running of the service by providing a channel for the expression of opinion of the staff.
It shall bring to the notice of the competent bodies of the Agency any difficulty having general implications concerning the interpretation and application of these Staff Regulations. It may be consulted on any difficulty of this kind.
The Staff Committee shall submit to the competent bodies of the Agency suggestions concerning the organisation and operation of the service and proposals for the improvement of staff working conditions or general living conditions.
The Staff Committee shall participate in the management and supervision of social welfare bodies set up by the Agency in the interests of its staff. It may, with the consent of the Agency, set up such welfare services.
TITLE V
DISCIPLINARY PROCEDURE
Section A
General provisions
Article 138
1. Any failure by a staff member or former staff member to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.
2. Where the AACC becomes aware of evidence of failure within the meaning of paragraph 1, they may launch administrative investigations to verify whether such failure has occurred.
Article 139
1. Whenever an internal investigation reveals the possibility of the personal involvement of a staff member, or a former staff member, that person shall rapidly be informed, provided this is not harmful to the investigation. In any event, conclusions referring by name to a staff member may not be drawn once the investigation has been completed without that staff member concerned having been given the opportunity to comment on facts concerning him. The conclusions shall make reference to these comments.
2. In cases that demand absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the staff member to comment may, in agreement with the AACC, be deferred. In such cases, no disciplinary proceedings may be opened before the staff member has been given a chance to comment.
3. If, following an internal investigation, no case can be made against a staff member about whom allegations have been made, the investigation in question shall be closed, with no further action taken, by decision of the Head of the Agency, who shall inform the staff member in writing. The staff member may request that that decision be inserted in his personal file.
4. The AACC shall inform the person concerned when the investigation ends, and shall communicate to him the conclusions of the investigation report and, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him.
Article 140
On the basis of the investigation report, after having notified the staff member concerned of all evidence in the files and after hearing the staff member concerned, the AACC may:
(a)
decide that no case can be made against the staff member, in which case he shall be informed accordingly in writing; or
(b)
decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the staff member; or
(c)
in the case of failure to comply with obligations within the meaning of Article 138:
(i)
decide to initiate the disciplinary proceedings provided for in Section D of this Title, or
(ii)
decide to initiate disciplinary proceedings before the Disciplinary Board.
Article 141
A staff member who, for objective reasons, cannot be heard under the provisions of this Title may be asked to comment in writing or may be represented by a person of his choice.
Section B
Disciplinary Board
Article 142
1. A Disciplinary Board shall be established in the Agency. The Disciplinary Board shall include at least one member, who may be the chairman, chosen from the staff of the Council of the European Union.
2. The Disciplinary Board shall consist of a chairman and four full members, who may be replaced by alternates, of which at least one member shall have the same function group as the member of staff subject to disciplinary proceedings.
Article 143
1. The AACC and the Staff Committee referred to in Article 137 shall each appoint two members and two alternates at the same time.
2. The chairman and alternate for the chairman shall be appointed by the AACC.
3. The chairman, the members and the alternates shall be appointed for a period of three years. However, the Agency may provide for a shorter period for members and alternates, subject to a minimum of one year.
4. The staff member concerned shall be entitled to reject one of the Disciplinary Board members within five days of the Disciplinary Board's establishment. The Agency shall also be entitled to reject one of the Disciplinary Board members.
Within the same time limit, Disciplinary Board members may ask to be excused from duty for legitimate reasons and shall withdraw if a conflict of interests exists.
Article 144
The Disciplinary Board shall be assisted by a secretary appointed by the AACC.
Article 145
1. The chairman and members of the Disciplinary Board shall be completely independent in the performance of their duties.
2. The deliberations and proceedings of the Disciplinary Board shall be secret.
Section C
Disciplinary Measures
Article 146
1. The AACC may impose one of the following penalties:
(a)
a written warning;
(b)
a reprimand;
(c)
deferment of advancement to a higher step for a period of between one and 23 months;
(d)
relegation in step;
(e)
temporary downgrading for a period of between 15 days and one year;
(f)
downgrading in the same function group;
(g)
classification in a lower function group, with or without downgrading;
(h)
removal from post and, where appropriate, withholding, for a fixed period, of an amount from an invalidity allowance; the effects of this measure shall not extend to the staff members' dependants. In case of such reduction however, the income of the former staff member may not be less than the minimum subsistence figure corresponding to the basic salary of a member of temporary staff at the first step of grade 1, with the addition of any family allowances payable.
2. Where the member of staff is in receipt of an invalidity allowance, the AACC may decide to withhold an amount from the invalidity allowance for a given period; the effects of this measure shall not extend to the staff members' dependants. The income of the member of staff may not, however, be less than the minimum subsistence figure corresponding to the basic salary of a member of temporary staff at the first step of grade 1, with the addition of any family allowances payable.
3. A single case of misconduct shall not give rise to more than one disciplinary penalty.
Article 147
The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of:
(a)
the nature of the misconduct and the circumstances in which it occurred,
(b)
the extent to which the misconduct adversely affects the integrity, reputation or interests of the Agency,
(c)
the extent to which the misconduct involves intentional actions or negligence,
(d)
the motives for the misconduct of the staff member,
(e)
the grade and seniority of the staff member,
(f)
the degree of the personal responsibility of the staff member,
(g)
the level of the duties and responsibilities of the staff member,
(h)
whether the misconduct involves repeated action or behaviour,
(i)
the conduct of the staff member throughout the course of his career.
Section D
Disciplinary proceedings not involving the Disciplinary Board
Article 148
The AACC may decide on the penalty of a written warning or reprimand without consulting the Disciplinary Board. The staff member concerned shall be heard before such action is taken by the AACC.
Section E
Disciplinary proceedings before the Disciplinary Board
Article 149
1. The AACC shall submit a report to the Disciplinary Board, stating clearly the facts complained of and, where appropriate, the circumstances in which they arose, including any aggravating or extenuating circumstances.
2. The report shall be communicated to the staff member concerned and to the chairman of the Disciplinary Board, who shall bring it to the attention of the members of the Disciplinary Board.
Article 150
1. On receipt of the report, the staff member concerned shall have the right to obtain his complete personal file and take copies of all documents relevant to the proceedings, including exonerating evidence.
2. The staff member concerned shall have not less than 15 days from the date of receipt of the report initiating the disciplinary proceedings to prepare a defence.
3. The staff member concerned may be assisted by a person of his or her choice.
Article 151
1. If, in the presence of the Chairman of the Disciplinary Board, the staff member concerned acknowledges misconduct on his part and accepts unreservedly the report referred to in Article 148 of these Staff Regulations, the AACC may, in accordance with the principle of proportionality between the nature of the misconduct and the penalty being considered, withdraw the case from the Disciplinary Board. Where a case is withdrawn from the Disciplinary Board, the Chairman shall deliver an opinion on the penalty considered.
2. Under this procedure the AACC may, by derogation from Article 148, impose one of the penalties provided for in Article 146(1)(a) to (d).
3. The staff member concerned shall be informed before acknowledging his misconduct of the possible consequences of such acknowledgement.
Article 152
Before the first meeting of the Disciplinary Board, the chairman shall give one of its members the task of preparing a general report on the matter and shall inform the other members of the Disciplinary Board accordingly.
Article 153
1. The staff member concerned shall be heard by the Disciplinary Board; at the hearing, he may submit observations in writing or orally, whether in person or through a representative. He may call witnesses.
2. The Agency shall be represented before the Disciplinary Board by a staff member mandated by the AACC to this effect and having rights equivalent to those of the staff member concerned.
Article 154
1. If the Disciplinary Board does not consider that it has sufficiently clear information on the facts complained of or the circumstances in which they arose, it shall order an investigation in which each side can submit its case and reply to the case of the other side.
2. The Chairman or a member of the Disciplinary Board shall conduct the investigation on behalf of the Disciplinary Board. For the purposes of the investigation, the Disciplinary Board may call for any documents relating to the matter before it. The Agency shall comply with any such request within the time limit, if any, set by the Disciplinary Board. Where such a request is addressed to the member of staff, note shall be taken of any refusal to comply.
Article 155
After consideration of documents submitted and having regard to any statement made orally or in writing and to the results of any investigation undertaken, the Disciplinary Board shall, by majority vote, deliver a reasoned opinion as to whether the facts complained of are established and as to any penalty to which those facts should give rise. This opinion shall be signed by all the members of the Disciplinary Board. Each member may attach to the opinion a divergent view. The Disciplinary Board shall transmit the opinion to the AACC and to the staff member concerned within two months of the date of receipt of the report of the AACC, provided that this time limit is commensurate with the degree of complexity of the case. Where an investigation has been held at the Disciplinary Board's initiative, the time limit shall be four months, provided that this period is commensurate with the degree of complexity of the case.
Article 156
1. The Chairman of the Disciplinary Board shall not vote on matters before it, except as regards matters of procedure or where votes are tied.
2. The Chairman shall ensure that the decisions of the Disciplinary Board are implemented and shall bring all information and documents relating to the case to the attention of each of its members.
Article 157
The secretary shall draw up minutes of meetings of the Disciplinary Board. Witnesses shall sign the minutes recording their evidence.
Article 158
1. Expenses incurred on the initiative of a staff member concerned in the course of disciplinary proceedings, and in particular fees paid to a person chosen to assist the member of staff or for his defence, shall be borne by the staff member where the disciplinary proceedings result in the imposition of one of the penalties provided for in Article 146.
2. However, the AACC may decide otherwise in exceptional cases where the burden on the member of staff concerned would be unfair.
Article 159
1. After hearing the member of staff, the AACC shall take its decision as provided for in Articles 146 and 147 within two months of receipt of the opinion of the Disciplinary Board. Reasons must be given for the decision.
2. If the AACC decides to close the case without imposing any disciplinary penalty, it shall so inform the staff member concerned in writing without delay. The staff member concerned may request that this decision be inserted in his personal file.
Section F
Suspension
Article 160
1. If the AACC accuses a staff member of serious misconduct, whether through a failure to honour his professional obligations or through an infringement of the law, it may immediately suspend the person accused of that misconduct for a specified or indefinite period.
2. The AACC shall take this decision after hearing the staff member concerned, save in exceptional circumstances.
Article 161
1. The decision suspending a staff member shall state whether the staff member is to continue to receive his full remuneration during the period of suspension or what part thereof is to be withheld. The amount paid to the staff member shall not under any circumstances be less than the minimum subsistence figure corresponding to the basic salary of a member of temporary staff at the first step of grade 1, with the addition of any family allowances payable.
2. The situation of a suspended staff member must be definitively settled within six months of the date on which the suspension takes effect. If no such decision is taken within six months, the staff member concerned shall be entitled to again receive full remuneration, subject to paragraph 3.
3. Remuneration may continue to be withheld in part after the six-month deadline referred to in paragraph 2, if the staff member concerned is the subject of criminal proceedings for the same acts and is in custody as a result of those proceedings. In such cases the staff member shall not receive full remuneration until the competent court has ordered his release.
4. Sums withheld under paragraph 1 shall be repaid to the staff member if the final decision imposes a disciplinary penalty no more severe than a written warning, reprimand or deferment of advancement to a higher step, or if no disciplinary penalty is imposed; in the latter case, the repayment shall be made with compound interest at the rate defined in Article 87.
Section G
Parallel criminal prosecution
Article 162
Where the member of staff is prosecuted for those same acts, a final decision shall be taken only after a final judgment has been handed down by the court hearing the case.
Section H
Final provisions
Article 163
A staff member against whom a disciplinary penalty other than removal from post has been ordered may, after three years in the case of a written warning or reprimand or after six years in the case of any other penalty, submit a request for the deletion from his personal file of all reference to such measure. The AACC shall decide whether to grant this request.
Article 164
Where new facts supported by relevant evidence come to light, disciplinary proceedings may be reopened by the AACC on its own initiative or on application by the member of staff concerned.
Article 165
If no case has been made against the staff member pursuant to Article 159, the staff member shall be entitled to request that the damage suffered should be made good through suitable publicity for the decision of the AACC.
Article 166
The Steering Board shall adopt implementing arrangements for these procedures.
TITLE VI
APPEALS
Article 167
1. Any person to whom these Staff Regulations apply may submit to the AACC a request that it takes a decision relating to him. The AACC shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If, at the end of that period, no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph.
2. Any person to whom these Staff Regulations apply may submit to the AACC a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by these Staff Regulations. The complaint must be lodged within three months. The period shall start to run:
-
on the date of publication of the act if it is a measure of a general nature;
-
on the date of notification of the decision to the person concerned, but in no case, later than the date on which the latter received such notification, if the measure affects a specified person; if, however, an act affecting a specified person also contains a complaint against another person, the period shall start to run in respect of that other person on the date on which he receives notification thereof but in no case later than the date of publication;
-
on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request as provided for in paragraph 1.
The AACC shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If, at the end of that period, no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 169.
TITLE VII
APPEAL BOARD
Article 168
1. An Appeal Board is created to exercise the jurisdiction in any dispute between the Agency and any person to whom these Staff Regulations may apply.
2. The Appeal Board shall consist of four judges, appointed for a period of six years by the Council of the European Union from among candidates presented by the participating Member States after consulting the Court of Justice of the European Communities. However, for the first Appeal Board, two judges shall be appointed for three years and two judges for six years. When the Appeal Board fails to reach a majority decision, the President shall have a casting vote.
3. The judges shall elect the President of the Appeal Board from among their number for a term of three years. He may be re-elected.
4. Every three years there shall be a partial replacement of the judges. Retiring judges may be reappointed.
5. The judges of the Appeal Board shall be independent. They may not be bound by instructions.
6. The judges cannot exercise other functions in the Agency during their mandate.
7. The Appeal Board shall appoint its Registrar and lay down the rules governing his service.
Article 169
1. An appeal to the Appeal Board shall lie only if:
-
the AACC has previously had a complaint submitted to it pursuant to Article 167(2) within the period prescribed therein, and
-
the complaint has been rejected by express decisions or by implied decision.
2. Appeals under paragraph 1 shall be filed within three months. The period shall begin:
-
on the date of notification of the decision taken in response to the complaint;
-
on the date of expiry of the period prescribed for the reply where the appeal is against an implied decision rejecting a complaint submitted pursuant to Article 167(2); nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.
3. By way of derogation from paragraph 1 of this Article, the person concerned may, after submitting a complaint to the AACC pursuant to Article 167(2), immediately file an appeal with the Appeal Board, provided that such appeal is accompanied by an application either for a stay of execution of the contested act or for the adoption of interim measures. The proceedings in the principal action before the Appeal Board shall then be suspended until such time as an express of implied decision rejecting the complaint is taken.
4. Within the limits and conditions set out by the rules of procedure, the parties may be assisted by a person of his or her choice.
5. The Appeal Board shall establish its rules of procedure, which need approval by the Council of the European Union in agreement with the Court of Justice of the European Communities. The Appeal Board can amend the rules of procedure. The amendments need the approval from the Council in agreement with the Court of Justice.
6. Until the entry into force of the rules of procedure of the Appeal Board, the Rules of Procedure of the Court of First Instance of the European Communities shall apply mutatis mutandis.
7. The Appeal Board shall rule on the costs of a case. Subject to the specific provisions of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs should the Appeal Board so decide.
TITLE VIII
FINAL PROVISIONS
Article 170
1. The provisions of these Staff Regulations concerning the rights and obligations (Articles 10 to 34 and 103), the conditions of recruitment (Articles 36, with the exception of 2(a), to 40 and Articles 104 to 109, with the exception of Article 104(3)(a), the working conditions (Articles 41 to 57 and Article 110), the termination of employment (Article 95 to 99 and Article 136) and the disciplinary procedure (Articles 138 to 166), may be amended, to the extent necessary, by the Steering Board of the Agency, acting in accordance with Article 9(1)(1.10) and Article 11(3)(3.1) of the Joint Action 2004/551/CFSD. Any such proposed amendments shall be transmitted to the Council. These amendments shall be deemed approved, unless the Council, within two months and acting by qualified majority, shall decide to modify them.
2. Amendments to other provisions of these Staff Regulations, in particular those concerning remuneration, allowances and social security benefits, shall be adopted by the Council, acting by unanimity, upon proposal from the Steering Board.
Article 171
Within three years after the entry into force of these Staff Regulations or upon the entry into force of the Treaty establishing a Constitution for Europe, whichever is the earliest, the Council of the European Union shall evaluate and amend these Staff Regulations or take a decision on its expiration, as appropriate.
Article 172
This Decision shall take effect on the day of its publication in the Official Journal of the European Union.
Done at Brussels, 24 September 2004.