Document : Assessment of TA and AC in
the context of Brexit
Implementation of Articles 47 and 119 of the Conditions of Employment of
Other Servants (CEOS) in the context of the withdrawal of the UK from the EU
N° 03-2021 / 11.01.2021
This Administrative Notice concerns the modalities of the
case-by-case assessment of the derogation possibilities to the nationality
requirement for temporary and contract agents who no longer satisfy the
condition of being a national of one of the Member States of the Union as a
result of the United Kingdom's withdrawal from the European Union.
The Commission is legally bound to perform a case by case
analysis in order to authorise duly justified exceptions to the nationality
requirement as provided by Articles 47 and 119 of the CEOS. However, the College
took the undertaking that the Authority Empowered to Conclude Contracts (AECC)
will make a generous and transparent application of this derogation possibility
and that its assessment will be based on the interest of the service.
To implement the commitment undertook by the College on 28
March 2018 and make a generous interpretation of the derogation possibilities,
the merits of each staff member will be assessed individually to determine
whether it is justified to grant an exception in the interest of the service.
When deciding on the possibility to grant a derogation to the
nationality requirement, the AECC will assess whether – when assessed together –
all the criteria laid down in the
Annex to this Administrative Notice are fulfilled.
This case by case assessment will take place between January
and March 2021 and the colleagues concerned will be heard to ensure that all
relevant elements are available to the AECC when taking a decision on the
possibility to grant a derogation(1).
The final decisions will be adopted before April 2021.
(1) These criteria will be assessed by the relevant AECC as
defined under Decision C(2016) 1881 and the possible sub delegations adopted,
where relevant.
Brexit, où en sommes-nous?
La Commission a adopté une position conforme à ce que nous réclamions depuis
le début. Pour l'essentiel, le personnel, qu'il soit fonctionnaire ou
temporaire, reste en place. Cette prise de position est favorable au personnel
britannique mais aussi à toute la fonction publique dont le statut sort renforcé
de cette épreuve. Les sections anglophones sont maintenues au sein des écoles
européennes. En cas de départ des enseignants britanniques, ils pourront
facilement être remplacés compte tenu de leur faible nombre (53).
What’s happening with Brexit?
The Commission adopted a position that was in line with our own from the
outset. For the most part, the workforce, both officials and temporary
staff, remains in place. This position is favourable for British staff and
for the Civil Service as a whole, whose Staff Regulations have been
strengthened by this experience. The English-speaking sections are being
maintained at the European Schools. The low number of British teachers
leaving (53) means that they can easily be replaced.
A few hints on BREXIT for EU Staff British nationals with no other EU
nationality :
The AIPN will not make use of art 49 of the Staff
Regulations on ‘compulsory resignation’ and British civil servants will
continue to hold their post. They will no longer be employed in Delegations
after UK withdrawal (on 30/03/2019 in case of no deal or end of transition
period). They will be transferred to headquarters by September 2019. Contract
agents will then serve in headquarters for a maximum of 4 years. British
Seconded National Experts or seconded Temporary Agents will return back to the
UK on the date of the withdrawal. The process to grant exceptions will use
precise and transparent criteria and there will be a right to be heard. The
process will last at least 3 months.
Temporary or contract agents also can no longer be
employed by the EU after UK withdrawal, but current contracts will continue
and not be renewed.
Acquired pension rights are valid and costs will be
borne by the EU budget. British staff are covered by the sickness insurance as
long as they are contributors. Only active employees are covered by accident
insurance.
Persons not under the Staff Regulations
(Commissioner, MEP, CJUE judges…) will be dismissed. Parliamentary assistants
to British MEPs will leave, whatever their nationality and duration of
contract.
For European schools, with the withdrawal agreement, UK stays until the end
of the school year that is ongoing at the end of the transition period. UK shall
recognize the European Bac for pupils graduated before 31/08/2021. Without a
deal, seconded teachers will leave when the UK ceases to be a party of the EE
Convention (31 August 2020). Contracts will still be valid for locally recruited
16/02/2019
Impact of Brexit on the legal
status of European Union officials and other servants of British nationality
This study, commissioned by the European Parliament’s Policy
Department for Citizens’ Rights and Constitutional Affairs at the request of the
JURI Committee, focuses on the legal status of EU active and retired officials
and other servants of British nationality in the context of the UK leaving the
EU under Article 50 TEU. It examines the legal position of EU officials and
other servants of British nationality with their rights and possible remedies.
It further explores avenues towards solutions for open legal questions.
(November 2017)
Commissioners Oettinger and King meet UK staff
on 15/01/2019
Commissioners Günther H. Oettinger and Julian King met
around 400 UK staff yesterday for an information session and to answer their
Brexit-related questions. The event, in the CHAR building in Brussels, was
also followed on video conference by nearly 60 UK staff in Luxembourg and
Ispra, with another 417 webstream viewers.
Commissioner King opened the session by thanking
Commissioner Oettinger for his engagement and determination in following up
the steer provided by President Juncker in defence of British colleagues,
and for the great respect he had shown towards them. Commissioner Oettinger
started by recalling everything that had happened since the last such
meeting at the end of January last year, and reconfirming the commitment the
College made towards British staff with its decision of 28 March 2018 (link
below). He said that he continued to work with determination to deliver on
that commitment, adding: “We will implement what we have promised.”
In a wide-ranging speech, he clarified a number of
important issues related to job security, pensions, schooling, acquiring a
second nationality, contract agents and temporary agents, executive agencies
and decentralised agencies, delegations and representations in a deal or a
no deal scenario.
The floor was then opened to questions from all three
sites. These too covered a wide range of issues, including conflict of
interest, staff on indefinite contracts, the correction coefficient for
pensions, difficulties faced in Brussels communes, changes to the
nationality law in Italy, and the situation in the EIB, among others.
For full details, follow the recording of the event at the
link below.
Questions and Answers : I am British,
what will happen to my rights ?
I am in activity, will I be
fired on the day UK leaves the EU ?
Civil servants having been appointed before the Brexit, are lawfully appointed
according to the rules applicable at the time and therefore, their
appointment or contract is valid and should continue its natural term.
Of course, pension rights and other allowances acquired by virtue of
these are equally valid (see below for exceptions).
These costs should be borne by the EU budget
irrespective of the composition of the EU Member States.
Is there a risk for my
dismissal ?
The employer could decide to use some clauses
of the Staff regulations such as the ‘early retirement’ (art 42c),
‘compulsory resignation’ (art 49, which makes an explicit reference to the
loss of the citizenship mentioned in art. 28(a) as a condition for
appointment) or the ‘retirement in the interests of the service’ (art 50).
These clauses might be used on a case by case basis by
the EU institutions to adapt to the reductions
of budgets, of missions and geographical scope of EU action.
They may also be applied to non-British Staff.
Particular case of TA and CA
Temporary agents & Contract agents
are ruled by art 47 of the RAA (art 119 for CA) which states that their
employment shall cease when they no longer satisfy the conditions laid in
art. 12(2)a (being a national of one Member State) unless an exception is
authorised.
I am a contract agent, my
contract will expire after the likely date for an effective Brexit. Can I
expect its renewal ?
The Institutions may hire non
EU staff by derogation (civil servants : art 28.a SR; temporary agents
: art 12.2.a RAA; contract agents : art 82.3.a RAA ) but you should expect
that your contract will not be renewed after the withdrawal
of the UK from the EU.
Are there categories of staff more threatened
by Brexit ?
Non-civil servants (Commissioners, Seconded
national experts, MEPs and their parliamentary assistants …) may expect that
their contract or functions be discontinued at the end of
the two-year negotiation phase foreseen by the
Treaty (which may
be extended). Director generals would have to leave their functions
at the same moment, but could find less prominent
roles (counselors, experts…).
I am still in activity, will I be entitled to a EU pension ?
Yes. The normal process still applies. If, according to the
Staff regulations, you are entitled to a pension, then it will be served.
But I heard that if UK no longer contributes to the EU
Budget, my pension will be in jeopardy.
Your pension is paid through the EU budget. Furthermore,
as
explained in this document, pensions are a deferred salary. You
accumulated your pension rights throughout your career and they cannot be
stripped from you.
This is totally independent from any political
arm-wrestling where UK will be asked to face its commitments regarding the
guarantee about the pension fund.In note 9 (page 11)
of the Joint report from the negotiators of the
European Union and the United Kingdom Government on progress during phase 1
of negotiations under Article 50 TEU, we can note the following
encouraging wording : "The UK’s share of the
liability related to pension and other post-employment benefits for Union
staff and staff from the European Defence Agency, the European Union
Institute for Security Studies and the European Union Satellite Centre as
established on 31 December 2020 will be paid when these amounts fall due,
unless an earlier schedule is agreed."
I am a pensioner, is my EU pension in danger ?
No, as explained above.
I am a pensioner, will my fiscal situation change ?
No. The current rules will still apply.
Your fiscal status is affected by your country of residency, not by your
nationality. It is worth remembering that fiscal rules may
be volatile.
I am a pensioner living in EU
but outside UK, are my residency rights
threatened ?
Possibly yes. Your rights are linked to the EU citizenship,
that you will lose. However, this political question is high on the
negotiation agenda. Our current assessment is that an agreement will be
reached and that all EU country will
uphold the residency rights of all lawful current EU
residents.
I am a pensioner (not necessarily British) and
I want to live in UK. What will be the impact on my pension ?
After the Brexit, you will be considered
as resident of a country outside the EU (art 45 of Annex VIII SR).
Art 82 SR
foresees that no correction coefficient applies to pensions, with the
exception of acquired rights before 2004 if payable in EU Member States (Art
3.5.b Annex XI SR). If this is not your case, nothing will
change. If you are a pensioner residing in UK and having acquired pension
rights before 2004, you enjoy a correction coefficient of 134,7. As soon as
UK leaves the EU, this coefficient will revert to 100.
See
also this
UK Policy Paper on residency rights in case of no deal.
I am a pensioner, is there any
risk losing the benefit of the Sickness Fund ?
As long as you contribute to
the Sickness fund via a withdrawal on your salary or pension, you are
covered. As is your family, as stipulated by art. 72 of the Staff
Regulations.
Regarding your Accident insurance, only the active
employee is covered (contribution deducted from the payslip); as a pensioner,
you should have contracted a personal Accident insurance.
How will my expatriation allowance be affected
if I acquire Belgian citizenship?
NB : The
TFP,in
its decisionJakob Ohrgaard,clearly excludedthe internships at
the Commission as being « performance
of duties in the service of an international organisation » as
defined by art.4.1b of Annex VII.
If a British official acquires the nationality of
the Member state where he is employed, he /she can no
longer claim the benefit of the allowance (see
EU CST
judgment, 26 June 2013, F-21/12: « an official’s change of nationality may
be regarded as an event capable of substantially changing his situation and,
accordingly, constitutes a fact warranting review of
his situation »)
Will I lose my travel expenses
if I acquire Belgian citizenship ?
Yes, only officials
entitled to the expatriation or foreign allowance residence can claim travel
expenses (see Art. 8 of annex
VII SR)
What about my tax regime while
I am in activity ?
The
Protocol on privileges and immunities of the EU
will continue to apply if you are a resident of an EU Member State.
Art. 12 PPI states : « Officials and other
servants of the Union … shall be exempt from national taxes on salaries,
wages and emoluments paid by the Union. ».
However, UK may no longer apply this PPI after the Brexit
(issue to be settled during the withdrawal negotiations). A possible
difficulty may arise from its Art. 13 : "if establishment to [Belgium]
from [UK] solely for the performance of service of
the Union [the individual is] deemed to remain tax
resident of [UK] provided that [UK]
is a member of the Union". Your
fiscal residence may therefore change.
I am not a Trade Union member yet: in the
forthcoming negotiations what do they propose to do to defend our rights?
As explained here, Trade Unions represent their members and U4U is
looking for more British members to join its ranks in order
to defend British colleagues as efficiently as possible .
U4U is a highly responsive and reactive trade union which forms its
positions and views from its members directly. We are and will be defending
the rights of our British members in the Brexit 'social dialogue'. We invite
British colleagues to contact us for more
information and for taking part into our action .
I work in an EU delegation,
will I be able to stay in function ?
Work in a delegation will not be possible
anymore (due to the Vienna Convention), therefore a phasing out of British
staff serving abroad will have to be organised (mobility back to HQ).
See also Annex X SR art.1 second §, which excludes the
recruitment of non-EU staff for posts outside Union.
On what basis
do you consider that: Work in a delegation will not be possible
anymore (due to the Vienna Convention), therefore a phasing out of British
staff serving abroad will have to be organized
?
Notre compréhension est que le statut
diplomatique ne peut être demandé que pour du personnel ayant la nationalité
de l'entité demanderesse, sauf exception. Par conséquent, en ce qui nous (UE)
concerne, si le RU ne fait plus partie de l'UE (après bien entendu la
sortie effective de l'UE), nous ne pourrons plus demander la couverture par
statut diplomatique des ressortissants britanniques travaillant pour nous…
il est vrai que l’art 8.1 énonce un principe auquel on peut déroger, mais
l’art 8.3 soumet cette exception à autorisation de l’état-hôte.
En pratique, on peut penser que les Etats accréditants, ici l’UE, useront avec parcimonie de
cette possibilité d’exception, vu la nature particulière de ces postes et du
niveau de confiance requis pour leurs titulaires.
Le texte de la Convention de Vienne
:
Art. 8.1. Les membres du personnel diplomatique de la mission auront en
principe la nationalité de l'Etat accréditant.
2. Les membres du personnel diplomatique de la mission ne peuvent être
choisis parmi les ressortissants de l'Etat accréditaire qu'avec le
consentement de cet Etat, qui peut en tout temps le retirer.
3. L'Etat accréditaire peut se réserver le même droit en ce qui concerne les
ressortissants d'un Etat tiers qui ne sont pas également ressortissants de
l'Etat accréditant.
My children are enrolled in a
European School, will they have to leave ?
Latest info : Declaration of Mr
Oettinger on 29/01/2018 : "European Schools – UK will cease to be a party of
school convention, with effect at end of school year. However if UK staff
remain in service, their kids will be able to stay in the European Schools.
UK hasn’t set out position".
My child is in the
Baccalauréat Cycle in the European Schools, are there
alternatives to 3rd level courses in UK universities ?
Yes, you can
look to Dublin City University
(DCU) or other universities in Ireland.
If you are posted in Luxembourg, a copy of a DCU prospectus is available at
the Central Library in the BECH.
I am currently on invalidity:
a) am I considered to be an active member of staff or a pensioner?
b) will I be fired on the day UK leaves the EU ?
c) please see first question in table of Q&As – does this also apply to me?
d) will my rights be protected?
e) will I still be able to return to work?
f) will my children still be entitled to attend their European school?
a) Pensioner
until you go back to work
b) No (if the institutions keep their word that they will
not apply art. 49 SR)
c) Yes (same condition as b)
d) Yes (same condition as b)
e) Yes, if the conditions which
justify your invalidity cease to apply
f) Yes (same condition as b)
Messages to the Staff from our
Administration
Message to staff from President J-C. Juncker :
Dear colleagues,
Yesterday, the citizens of the United Kingdom voted to leave the European Union.
This result makes me personally very sad – but I respect their choice.
I know that many of you are concerned about your future after this vote. I fully
understand that. So I want to send a clear message to you, colleagues, and
especially to colleagues of British nationality.
According to our Staff Regulations, you are "Union officials". You work for
Europe. You left your national 'hats' at the door when you joined this
institution and that door is not closing on you now. As European civil servants
you have always been loyal to our Union, contributing tremendously to our common
European project. And so it will be in this spirit of reciprocal loyalty that I
will work together with the Presidents of the other European institutions to
ensure that we can all continue counting on your outstanding talent, experience
and commitment. I know you all have legitimate expectations about your rights
and duties, your families who might have followed you to Brussels and your
children who might be enrolled in schools here.
Let me assure you that I will do everything in my power as President of the
Commission, to support and help you in this difficult process. Our Staff
Regulations will be read and applied in a European spirit.
In the coming days and weeks, you will all have the opportunity to show the
European Commission at its best. The eyes of the world will be upon us,
expecting us to provide stability, act decisively and uphold Europe's values. I
have every confidence in you. Together we will rise to that task.
(24 June 2016)
Message of the High Representative
Federica Mogherini to all EEAS Staff :
Dear colleagues,
Further to the referendum, the British people decided to leave the European
Union. We all very much regret this decision, but we have to respect it.
I want to pay here a specific tribute to all our British colleagues, who worked
hard – and will continue to work hard with us, and in particular to those who
could not vote and are now impacted by the result of the referendum. Your
loyalty and commitment to the European cause is undisputed, as you belong to
Europe and are true Europeans. The EEAS is a family and it is your family.
In the meeting we had yesterday in the EEAS premises, I made clear I am aware of
the concerns that many of you – and not just the British colleagues - have
regarding their future in the EEAS. I, together with the other European
Institutions, with the EEAS senior management and staff representatives will
work towards solutions that provide the highest possible degree of certainty on
a wide-range of issues that could affect you and your families.
This commitment is shared by the Presidents of the European institutions and
will be taken into account in the negotiation process that will start when the
United Kingdom government will trigger the procedure under Article 50 of the
Treaty on European Union. Until then, nothing changes in our approach and
dealings with UK staff.
Be assured that you will be kept posted of any development, initiative and steps
that the European Institutions will take in the next few days to deal with and
to answer the questions that will inevitably arise. I will make sure that the
EEAS management in the Headquarters and in the Delegations do share all
information in real time.
(25/06/2016)
Message from the Secretary-General of the European Schools,
Mr Kari Kivinen, following the UK referendum
Dear all,
One of the fundamental values of the European Union is democracy.
Under Article 50 of the Treaty on European Union, any Member State may decide to
withdraw from the Union in accordance with its own constitutional requirements.
The outcome of the UK referendum has been a sad piece of news for Europe and for
the European School community.
The UK Government has to invoke Article 50 of the Lisbon Treaty to start the
process of EU exit. Once this has been done, a two-year negotiation period will
begin. It is far too early to speculate on how these negotiations will evolve as
far as the European Schools are concerned.
In my estimation, the UK referendum will not have any immediate major impact on
the daily operation of the European Schools.
We are closely monitoring developments in the situation and we are ready and
willing to initiate negotiations with the EU and UK authorities in order to
safeguard the smooth operation of our schools in the coming years.
Message from Mrs Helga Maria SCHMID, Secretary general of
the EEAS, to all EEAS Staff :
Dear colleagues,
The ongoing discussions between the EU and the UK on Brexit and the future
relationship impact significantly on the professional and private life of our
colleagues who hold only a British passport.
I fully understand that this is causing considerable uncertainty for our EEAS
colleagues of British nationality. I wish to inform you that, in agreement with
the HRVP, and as a first step, the EEAS aligns to the Commission decision
regarding the application of the provisions of Article 49 of the Staff
Regulations and Articles 47 and 119 of the Conditions of Employment of other
servants as a result of the UK's decision to leave the European Union
(attached). The European Parliament has adopted a similar line of action.
In short, this means that: British EEAS officials will not be asked to resign
because they no longer possess an EU nationality and will be able to continue
their employment within the EEAS.
For contract and temporary agents, Articles 47 and 119 CEOS provide that, in
principle, employment is terminated if an agent no longer has the nationality of
a Member State. However, the EEAS will follow a case by case approach to allow
the Appointing Authority to grant exceptions to the nationality clause to extend
contracts (before 29/3/2019), seeking the best solution in the interest of the
service and of the individuals concerned.
As regards staff of British nationality in EU Delegations, there are a number of
issues which need to be resolved and the EEAS is working closely with the
Commission to establish a common approach. We will communicate the results of
this common work as soon as possible.
Let me seize this opportunity to stress once again how much the HRVP and I
highly appreciate the work of our British EEAS colleagues and their dedication
to our common project. (May 29th, 2018)
Brexit, what will happen to me ?
According to
official statistics, there are 1126 British in the
Commission. First are Belgians, then, in decreasing order,
Italians, French, Spaniards, Germans, Poles,
Romanians and Greeks.
Contextualisons la crise de confiance dans l'UE : un
entretien avec G. Vlandas
Communiqué de U4U à la suite du référendum britannique :
Rebondir !
Le Royaume-Uni vient de voter sa sortie de l'Union européenne. Les compromis
malheureusement acceptés par les autres membres de l'Union avant le référendum
n'ont pas suffi à convaincre une majorité de Britanniques de
rester dans l'Union. Ces compromis ont plutôt conduit à ce que d'autres membres
de l'Union préconisent un moins disant communautaire. Ces reculades ont
été précédées par bien d'autres, notamment au moment de l'adoption des
perspectives financières de l'Union pour 2014/2019.
L'Union européenne s'est enfoncée dans une crise qui, nourrissant le
scepticisme, l'a éloignée de ses citoyens. Avec le vote britannique, l'Union
paye ses reculades, sa stagnation, l’abandon d’une vision sociale et culturelle
de l’Europe. Les citoyens ne voient désormais dans la construction européenne
que ses échecs et non ses réalisations et ses potentialités, pourtant réelles
dans de nombreux domaines comme la politique régionale, la recherche ou la
concurrence.
Il est encore temps de réagir en tentant de rétablir la confiance et la
conviction que les approches communes sont plus efficaces que le chacun pour
soi. Il nous faut relancer la construction européenne de façon concrète et
dans les domaines les plus urgents. Les institutions européennes, et en
particulier Commission européenne, doivent prendre des initiatives en ce sens.
La méthode de travail communautaire, garante de l’intérêt général, doit être
privilégiée, à partir d’une orientation politique commune, négociée au niveau du
Conseil.
La Commission qui est garante de l'application des Traités,
doit conduire la négociation avec le Royaume-Uni pour lui
permettre de quitter rapidement l'Union tout en nouant avec lui de nouveaux
partenariats.
Les institutions européennes doivent mobiliser leur personnel et lui redonner
confiance et fierté dans ses missions.
Georges Vlandas
Président
Bouncing back!
The United Kingdom has just voted to leave the European Union. The
compromises unfortunately agreed by the other members of the Union before
the referendum were not enough to persuade a majority of British voters to
remain in the Union. Rather, these compromises resulted in other members of
the Union recommending a watered down Community, with each member looking
out for its own interests. This climb down was preceded by others,
especially when the EU’s financial outlook for 2014/2019 was adopted.
The European Union has dug itself into a crisis which, by fuelling
scepticism, has distanced it from its citizens. With the British vote, the
EU is now paying for its climb downs, stagnation, and for abandoning a
social and cultural vision of Europe. Citizens now only see the failings of
the European construction, rather than its achievements and potential,
although these are significant in numerous fields such as the regional
policy, research and competition.
There is still time to respond by re-establishing confidence and the
belief that a joint approach is more effective than every man for himself.
We have to give new impetus to European integration in a concrete manner,
and where it is most urgently needed. The European institutions, and in
particular the European Commission, must take the initiative in this
direction. The Community working method, protector of the general interest,
must be given priority, from a joint political approach negotiated at
Council level.
The Commission, which ensures the application of the Treaties, must
conduct negotiations with the United Kingdom to enable it to leave the EU
quickly, while at the same time forming new partnerships with it.
The European institutions must motivate their staff and re-establish
confidence and pride in their missions.
