Initiative of the Kingdom of Belgium, of the Grand-Duchy of Luxembourg and of the Kingdom of the Netherlands with a view to adopting the Council Act amending the Staff Regulations applicable to Europol employees

(2002/C 161/07)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Convention on the establishment of a European Police Office (Europol Convention)(1), and in particular Article 30(3) thereof,

Having regard to the initiative of the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Management Board of Europol,

Whereas:

(1) It is desirable to amend the Staff Regulations applicable to Europol employees, as laid down in the Council Act of 3 December 1998(2), in particular in order to establish the procedures for the nomination of the Director and Deputy Directors and for the application of other powers in their respect by the authority vested with nominating powers.

(2) It is for the Council, acting unanimously, to lay down detailed arrangements applicable to Europol employees, and subsequent amendments thereto,

HAS ADOPTED THIS ACT:

Article 1

The Staff Regulations applicable to Europol employees (hereinafter referred to as "the Staff Regulations") shall be amended as follows:

1. The following sentence shall be added to Article 1(2): "In particular, procedures with respect to their selection and retirement and the application of disciplinary powers are set out in Appendix 8."

2. Appendix 8 shall be replaced(3) by the following:

"Appendix 8

Special provisions concerning the Director and Deputy Directors

CONTENTS

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CHAPTER 1

SELECTION PROCEDURES

Article 1

The preparation of the opinion of the Management Board on the appointment of the Director or a Deputy Director to be provided to the Council pursuant to Article 29(1) of the Europol Convention shall take place in accordance with the provisions of this Chapter.

Article 2

Selection for the post of Director or Deputy Director of Europol shall have the objective of securing for Europol the services of persons of the highest standard of ability, efficiency and integrity.

Article 3

1. A post for Director or Deputy Director of Europol shall be deemed to be vacant:

- as from nine months before the end of the term of office of the Director or a Deputy Director,

- upon receipt by the Council of a letter of resignation of the Director or a Deputy Director, in accordance with Article 14,

- upon a decision of the Council on compulsory resignation, in accordance with Article 15,

- upon a decision of the Council on retirement in the interest of the service, in accordance with Article 16,

- upon a decision of the Council on dismissal, in accordance with Article 17,

- as from nine months before the date on which the Director or Deputy Director reaches the age of 65,

- upon the death of the Director or a Deputy Director.

2. For each vacant post, an advertisement shall be drawn up by Europol describing in detail the nature of the post, including remuneration, the duties to be performed, and the qualifications, skills and experience required. The profile shall be drafted by Europol and shall be adopted by the Management Board by simple majority.

Applicants shall submit their applications in writing, accompanied by a curriculum vitae, to the Chairman of the Management Board within 90 days of the date of publication of the advertisement, referred to in the first subparagraph, as specified in the advertisement.

The said advertisement shall also provide information on the security screening to be applied to the successful applicant in compliance with the confidentiality regulations adopted pursuant to Article 31 of the Europol Convention.

Article 4

1. A vacancy for a post of Director or Deputy Director shall be advertised in all Member States by Europol directly, using the Official Journal of the European Communities and such other media as to ensure maximum exposure in all the Member States.

Europol shall also inform the Europol national units of a vacancy for a post of Director or Deputy Director. The national units shall inform the relevant agencies within their Member State of the vacancy. The competent national authorities shall be responsible for ensuring that the vacancy is brought to the attention of the agencies and all the personnel concerned.

2. For all vacant posts, both internal and external applications shall be considered.

3. Europol shall send an acknowledgement of receipt to the applicants.

Article 5

1. A Management Board Selection Committee (hereinafter referred to as "Selection Committee") shall be set up by the Management Board. It shall prepare the Management Board's opinion on the candidates' suitability to be submitted to the Council in accordance with Article 29(1) of the Europol Convention.

2. For the post of Deputy Director, the Selection Committee shall consist of the Director or his/her delegate. Furthermore, four Member States indicated to this effect by drawing lots by the Management Board, shall assign a representative to serve as a member of the Selection Committee.

3. For the post of Director, five Member States indicated to this effect by drawing lots by the Management Board, shall assign a representative to serve as a member of the Selection Committee.

4. The members of the Selection Committee assigned to serve pursuant to paragraphs 2 and 3 shall serve as members of the Committee until the selection procedure has been completed.

5. Where there is reason to believe that a member of the Selection Committee has a personal relationship with one of the applicants for the post, he/she shall not participate in the selection process. In such cases, the Member State which presented the member shall propose to the Management Board that he/she be replaced.

6. The secretariat of the Management Board shall provide the secretariat of the Selection Committee.

Article 6

1. At the first meeting of the Management Board Selection Committee, the members shall indicate one of its members as Chairman.

2. The Management Board Selection Committee may request the assistance of one or more assessors for the performance of its tasks. Such request shall be addressed to the Chairman of the Management Board who shall decide on the matter. Assessors shall not have the status of members of the Management Board Selection Committee.

3. The tasks of the Management Board Selection Committee shall include:

(a) making an initial selection of applicants on the basis of applications received;

(b) interviewing selected candidates;

(c) reporting to the Management Board.

Article 7

1. On the basis of qualifications, experience, the profile sought and any pre-selection as provided for in Article 24 of the Staff Regulations, the Selection Committee shall make an initial selection from the applications received.

2. Where it is deemed appropriate, the Selection Committee may decide to organise a specific post-related written or any other test procedure. The Selection Committee shall decide on the specific necessities.

In that case, the test(s) shall be prepared by the Selection Committee in order to appraise the specific qualifications and expertise of the applicants for the post concerned. The results of the test(s) shall be marked - on the basis of anonymity - by the Selection Committee.

3. The Selection Committee shall interview all applicants who passed the initial selection referred to in paragraph 1 and, where applicable, paragraph 2, with a view to testing their professional qualifications and experience. The interviews shall also be used to test the applicants' knowledge of the official languages of the European Union with reference to Article 30(2) of the Europol Convention and Article 1 of this Appendix.

4. Where considered necessary by the Committee, a second round of interviews for all or some of the candidates may be held.

Article 8

The tests and interviews shall be held in The Hague. Travel expenses and any subsistence and hotel accommodation expenses shall be reimbursed to the applicants, the members of the Selection Committee and the assessors in accordance with the rules laid down in Appendix 5.

Article 9

Once the interviews have been completed, the Selection Committee shall draw up a report, containing the list of the successful applicants in the order in which they are, in the opinion of the Committee, most suitable for nomination. The decision of the Selection Committee shall be taken by simple majority. The said report shall be forwarded to the Management Board as soon as possible after the interviews have been held, together with the curriculum vitae of the candidates.

The Selection Committee shall ensure that applicants on the list to be forwarded to the Management Board meet the conditions for engagement provided for in Article 24(2) and (3) of the Staff Regulations.

Article 10

The Management Board shall, based on the report received from the Selection Committee, draw up its opinion in the form of a list of three candidates for nomination in order of merit. The Management Board may, if it deems this necessary, hear some or all of the successful applicants before drawing up its opinion. Its opinion shall be adopted by a two-thirds majority. If it so happens that a member of the Management Board is also on the list of applicants, he/she shall not be present when drawing up the opinion of the Management Board.

The Chairman of the Management Board shall forward the opinion of the Management Board to the Council as envisaged by Article 29(1) of the Europol Convention.

Article 11

Members of the Selection Committee, assessors, as well as members of the Management Board and Europol officials involved, shall maintain the strictest confidentiality with regard to the candidates and the results of the selection procedure.

Article 12

Where the terms of office of the Director or a Deputy Director can be renewed in accordance with Article 29(1) or (2) of the Europol Convention, the Management Board may decide, by majority vote, to derogate from the procedure established in this Chapter. In such cases the Management Board shall draw up, at the latest twelve months before the term of office ends, an opinion advising the Council to renew the term of office. The procedure laid down in this Chapter shall be followed when the Council decides not to renew the nomination or when the Council fails to take a decision in this respect within three months after the receipt of the Management Board opinion.

CHAPTER 2

TERMINATION OF SERVICE

Article 13

The service of the Director or a Deputy Director of Europol shall be terminated by:

(a) resignation;

(b) compulsory resignation;

(c) retirement in the interests of the service;

(d) dismissal;

(e) retirement; or

(f) death.

SECTION 1

Resignation

Article 14

1. A Director or Deputy Director who wishes to resign before the end of his/her term of office shall state unequivocally in writing his/her intention to leave the service of Europol. The letter of resignation shall be addressed to the President of the Council, with a copy to the Chairman of the Management Board.

2. The Council shall take its decision confirming the resignation within two month of receiving the letter of resignation. The Council may, however, refuse to accept the resignation if disciplinary proceedings against the person concerned are in progress at the date of the receipt of the letter or if such proceedings are started within the following 60 days.

3. Resignation shall take effect on the date specified by the Council. That date shall not be later than three months after the date proposed by the person concerned in his/her letter of resignation. However, the Council may stipulate that such resignation shall not take effect until his/her successor has taken up his/her duties.

SECTION 2

Compulsory resignation

Article 15

The service of the Director or a Deputy Director may be terminated by the Council upon request of the Management Board, without notice, where the conditions referred to in Article 95(b) or (c) of the Staff Regulations are met.

SECTION 3

Retirement in the interests of the service

Article 16

1. The Director or a Deputy Director may be retired in the interests of Europol by a decision of the Council. The Council shall take such a decision after obtaining the opinion of the Management Board and hearing the person concerned, with a two-thirds majority. Such retirement shall not constitute a disciplinary measure.

2. The Director or Deputy Director thus retired shall receive an allowance as follows:

(a) for three months, a monthly allowance equal to his/her basic salary;

(b) for the fourth to the sixth month, a monthly allowance of 85 % of his/her basic salary;

(c) for the following period until the date envisaged for the end of his/her term of office, a monthly allowance of 70 % of his/her basic salary.

3. Income received by the persons concerned from any new employment during the period in which they receive an allowance in accordance with paragraph 2 shall be deducted from the allowance provided for in that paragraph if that income and the allowance together exceed the total remuneration last received by the official calculated by reference to the table of salaries applicable on the first day of the month for which the allowance is to be paid. The person concerned shall furnish such written proof as may be required and inform Europol of any facts liable to affect his/her entitlement.

4. During the period of entitlement to the allowance, and for the first six months thereafter, the person concerned shall be entitled, in respect of himself/herself and persons covered by his/her insurance, to benefits under the sickness insurance scheme provided for in Article 56 of the Staff Regulations, on condition that he/she pays the appropriate contribution calculated by reference, as the case may be, either to his/her basic salary, or the percentage thereof specified in paragraph 2 of this Article and that he/she cannot be covered by any other public scheme against the same risks.

5. At the end of the period referred to in paragraph 4 and on the conditions laid down therein, the person concerned may, at his/her request, continue to receive the benefits under the sickness insurance scheme on condition that he/she bears the whole of the contribution referred to in Article 56(1) of the Staff Regulations. When his/her entitlement to the allowance ceases, his/her contribution shall be calculated by reference to the monthly allowance last received.

SECTION 4

Dismissal

Article 17

After the disciplinary proceedings provided for in Chapter 3 have been followed, service may be terminated by the Council in accordance with Article 29(6) of the Europol Convention on disciplinary grounds in serious cases of intentional or negligent failure of the Director or a Deputy Director to comply with his/her obligations.

SECTION 5

Retirement

Article 18

The service of the Director or a Deputy Director shall cease on the last day of the month in which the person concerned reaches the age of 65.

CHAPTER 3

DISCIPLINARY PROCEEDINGS

SECTION 1

Disciplinary measures

Article 19

1. Any failure by the Director or a Deputy Director to comply with his/her obligations under the Staff Regulations or the Europol Convention, whether intentionally or through negligence on his/her part, shall make him/her liable to disciplinary action.

Such a failure shall include the deliberate furnishing of false information as to either his/her professional ability or the requirements of Article 24(2) of the Staff Regulations, where the false information furnished was a determining factor in his/her being engaged.

2. Disciplinary measures shall take one of the following forms:

(a) written warning;

(b) reprimand;

(c) reduction of his/her basic monthly salary up to a maximum amount of 25 % for a period not exceeding six months;

(d) removal from post and, where appropriate, reduction or withdrawal of entitlement to retirement pension.

3. Article 88(3) to (6) of the Staff Regulations shall apply in the case of disciplinary proceedings against the Director or a Deputy Director.

Article 20

1. The Director shall have the right to issue a written warning or a reprimand to the Deputy Director on his/her own initiative without consulting a Disciplinary Board. The person concerned shall be informed of this in writing, and be heard by the Director before such action is taken.

2. The Management Board shall have the right to issue a written warning or a reprimand to the Director on its own initiative without consulting a Disciplinary Board. The person concerned shall be informed of this in writing, and be heard by the Management Board before such action is taken.

Article 21

Where an allegation of serious misconduct is made against the Director or a Deputy Director, whether this amounts to failure to carry out his/her official duties or to a breach of law, the Management Board, acting by a two-thirds majority and after having given the person concerned the opportunity to state his/her views, may order that he/she be suspended forthwith, under the conditions laid down by Article 90 of the Staff Regulations. Such decision shall be duly motivated.

SECTION 2

Special provisions for the case provided for in Article 29(6) Europol Convention

Article 22

1. Without prejudice to Article 20, the Council may decide to order any of the disciplinary measures indicated in Article 20(2) after the disciplinary proceedings provided for in this section have been completed. Disciplinary proceedings shall be initiated by decision of the Management Board on its own initiative, after hearing the person concerned.

2. A Disciplinary Board shall be set up by the Management Board. It shall prepare the Management Board's opinion on the need for disciplinary measures indicated in Article 20(2) to be submitted to the Council in accordance with Article 29(6) of the Europol Convention.

3. The Disciplinary Board shall consist of a representative of the Member State holding the Presidency of the Management Board at the time when the Management Board took the decision as referred to in paragraph 1, a representative of the Member State which held the Presidency immediately preceding, a representative of the Member State holding the Presidency immediately afterwards, and representatives of two other Member States, to be determined by lot.

4. The Chairman of the Board shall also be determined by lot, but may not be the representative of the Member State holding the Presidency. The representatives must be of a higher or comparable rank or level of seniority as the Director or Deputy Director concerned, and may not at the same time be a member of the Management Board.

5. Within five days of the formation of the Disciplinary Board, the Director or Deputy Director charged may make an objection in respect of any of its members.

Within the same period, any member of the Disciplinary Board may ask to be excused from serving, provided he/she has legitimate grounds.

The Management Board shall, by drawing lots, fill any vacancies arising ensuring that there is no more than one representative per Member State in the Disciplinary Board.

6. The members of the Disciplinary Board intended to fill the vacancies, as provided for in paragraph 5, shall serve as members of the Board until the tasks of the Disciplinary Board in the disciplinary procedure have been completed.

7. Where there is reason to believe that a member of the Disciplinary Board has a personal relationship with the Director or the Deputy Director charged, he/she shall not participate in the disciplinary process. In such cases, the Member State which presented the member shall propose to the Management Board that he/she be replaced.

8. Members of the Disciplinary Board shall be completely independent in the performance of their duties. The proceedings of the Board shall not be made public.

9. The secretariat of the Management Board shall provide the secretariat of the Disciplinary Board.

Article 23

1. A report shall be submitted to the Disciplinary Board by the Management Board, stating clearly the facts complained of and, where appropriate, the circumstances in which they arose.

2. The Management Board shall appoint a representative in the disciplinary proceedings.

3. The report referred to in paragraph 1 shall be communicated to the Chairman of the Disciplinary Board, who shall bring it to the attention of the members of the board and the Director or Deputy Director charged.

4. On receipt of the said report, the Director or Deputy Director charged shall have the right to see his/her complete personal file and to take copies of all documents relevant to the proceedings.

Article 24

At the first meeting of the Disciplinary Board, the members shall indicate one of its members as Chairman and appoint one of its members to prepare a general report on the matter.

Article 25

1. The Director or Deputy Director charged shall have not less than 15 days from the date of receipt of the report initiating disciplinary proceedings to prepare his/her defence.

2. When the Director or Deputy Director appears before the Disciplinary Board he/she shall have the right to submit observations in writing or orally, to call witnesses and to be assisted in his/her defence by a person of his/her own choice.

Article 26

The Management Board shall likewise have the right to call witnesses.

Article 27

1. If the Disciplinary Board requires further information concerning the facts complained of or the circumstances in which they arose, it may order an inquiry in which each side may submit its case and reply to the case of the other side.

2. The inquiry shall be conducted by the rapporteur. For the purpose of inquiry, the Disciplinary Board may call for the submission or productions of any documents relating to the matter before it.

Article 28

After consideration of the documents submitted and having regard to any statements made orally or in writing by the Director or Deputy Director concerned and by witnesses, and to the results of any inquiry undertaken, the Disciplinary Board shall, by majority vote, deliver a duly motivated opinion on the disciplinary measure appropriate to the facts complained of and transmit the opinion to the Management Board and to the Director or Deputy Director concerned within one month of the date on which the matter was referred to the Board. This time limit shall be three months where an inquiry has been held on the instructions of the Board.

Article 29

1. The secretariat shall keep minutes of the meetings of the Disciplinary Board.

2. Witnesses shall sign the minute recording their depositions.

3. The duly motivated opinion provided for in Article 28 shall be signed by all members of the Disciplinary Board.

Article 30

Costs incurred on the initiative of the Director or Deputy Director concerned in the course of disciplinary proceedings, in particular fees due to a person chosen for his/her defence, shall be borne by the Director or Deputy Director concerned where the disciplinary proceedings result in any of the measures provided for in Article 19(2)(c) or (d).

Article 31

1. Upon receipt of the report by the Disciplinary Board, the Management Board shall decide whether an opinion is to be submitted to the Council in accordance with Article 29(6) of the Europol Convention, and, if so, deliver a duly motivated opinion on the disciplinary measure, indicated in Article 19(2), appropriate to the facts complained of.

2. The Management Board shall take the decision referred to in paragraph 1 as soon as possible. Before drawing up its opinion it shall give the Director or Deputy Director concerned the opportunity to be heard.

3. The Chairman of the Management Board shall forward the opinion of the Management Board to the Council as envisaged by Article 29(6) of the Europol Convention, and a copy thereof to the Director or Deputy Director charged.

4. Should the Management Board decide that no opinion is to be submitted to the Council in accordance with Article 29(6) of the Europol Convention, it shall have the right to issue a written warning or a reprimand in accordance with Article 20.

Article 32

1. Upon receipt of the opinion from the Management Board, the Council shall, in accordance with Article 29(6) of the Europol Convention, after having given the Director or Deputy Director concerned the opportunity to state his/her views, decide whether a disciplinary measure is to be applied.

2. Should the Council decide that a disciplinary measure as referred to in Article 19(2) is to be applied, it shall indicate in its decision the precise nature of the measure as well as the date from which the measure is to be applied. The decision shall be duly motivated and shall be notified to the person concerned and to Europol.

3. The Council shall take the decision referred to in paragraph 1 without undue delay.

Article 33

1. Where there are new facts which are supported by relevant evidence, disciplinary proceedings may be reopened upon request by the Director or the Deputy Director concerned.

2. Where the final disciplinary measure is taken by the Director, the request shall be submitted to the Director. The Director shall decide whether to grant the Deputy Director's request.

3. Where the final disciplinary measure is taken by the Management Board, the request shall be submitted to the Management Board. The Management Board shall decide whether to grant the Director's or the Deputy Director's request.

4. Where the final disciplinary measure is taken by the Council, the request shall be submitted to the Management Board. The Management Board shall decide whether to submit an opinion to the Council advising the Council to grant the Director's or the Deputy Director's request.

CHAPTER 4

APPEALS

Article 34

1. Complaints pursuant to Article 92(2) of the Staff Regulations shall be directed to, and treated by, the authority which took the definitive decision in the matter.

2. Appeals to the Court of Justice of the European Communities as referred to in Article 93 of the Staff Regulations shall lie only if the authority which took the definitive decision in the matter has previously had a complaint submitted to it pursuant to paragraph 1 and that complaint has been rejected by express decision or implicit decision. However, the person concerned may, after submitting a complaint pursuant to paragraph 1, immediately file an appeal with the Court of Justice of the European Communities, under the conditions set out in Article 93(4) of the Staff Regulations.

CHAPTER 5

SPECIAL PROVISIONS CONCERNING THE DIRECTOR

Article 35

1. Wherever the Director wishes to exercise a right conferred upon Europol officials by the Staff Regulations with respect to himself/herself, and the power to take a decision in the matter under the Staff Regulations is conferred upon the Director, he/she shall inform the chairman of the Management Board thereof. In such cases the Chairman may decide to put the case to the Management Board for final decision.

2. Where the Director is temporarily unable to exercise his/her functions for a period of more than one month, or the position of Director is vacant, his/her functions shall be exercised by the Deputy Director. The Management Board shall indicate the order of replacement each time a new Deputy Director has been nominated.".

Article 2

This Act shall enter into force on the day after its adoption.

Article 3

This Act shall be published in the Official Journal of the European Communities.

Done at ...

For the Council

The President

...

(1) OJ C 316, 27.11.1995, p. 1.

(2) OJ C 26, 30.1.1999, p. 23.

(3) The taxation provisions of the original Appendix 8 to the Council Act of 3 December 1998 are covered by the Decision of the Europol Management Board of 16 November 1999 (OJ C 65, 28.2.2001).