i przesyłam relacje naocznego świadka z rozprawy (troche długie, ale warto przeczytać)
Pozdrawiam
Rafal
Oto treść:
Dear all,
yesterday I went to Luxembourg; it was a pleasure to meet again people who
have led the fight for justice since the very first days (Helen, Raymond, …),
to greet Patricia and Ian, and above all, to be present at the T-58 CFI
hearing. It was quite an experience.
I am sorry that I don’t know the names of most professional actors involved,
but I’ll try to identify them properly, in the unlearned and biased
account (although I don’t belong to this first case, certainly I’m not impartial) that
I wanted to share with you, as far as I was able to remember and write it down
yesterday evening.
The hearing took all morning, from a few minutes after 9:30 till 13:00, with
just a brief pause around noon. The court was composed of five magistrates; in
front of it, on the right side, sat the counsel of the complainants, and on
the left side sat the counsel of the Commission and that of the Council. Some
silent court clerks peppered the scene. Proceedings were wholly conducted in
French, now and then heavily accented, with occasional textual quotations in
English. Lots of public animated the spacious, comfortable and well-lit
courtroom –although most of them were visiting law students. Around 20
laureates were present, something quite striking, taking into account that
about 6.000-7.000 career-years were at the stake (plus a fistful of euros). I
also missed some participation of R & D, which has been supporting the whole
revindication.
The president of the court opened the hearing asking from both parties
clarifications about some subjects argued about during the written part of the
procedure. The main one concerned “information”: as the Commission had claimed
that people recruited after the Reform had been properly informed about the
new conditions, and that they had explicitly accepted them, Maître Lévy, on
behalf of the complainants, proceeded to dissect the insufficiencies of that
claim: it referred to web pages which didn’t contain proper information;
detailed information was not available till late April 2004, much later than
the Commission had claimed it was; intermediate documents were incomplete and
obscure, as Commission’s officials had themselves acknowledged; and so on.
Another technical question concerned “interests” to be paid by the Commission
to the complainants’ in case of a hypothetical sentence conceding them the
case.
Then the president allowed both parties to plead for their case, providing the
court with an overview of their positions. Approximately half an hour was
allocated to each party. The complainants’ counsel started. Roles were
obviously distributed between the lawyers; Maître Lévy adopted an analytical
approach, and she calmly delivered the facts supporting the two main legal
claims argued for the complainants: 1) unequal treatment, and thus
discrimination, 2) legitimate expectations. She carried that on with the help
of selected specific cases. Her senior partner chose a complementary approach,
and depicted with warm, simple words the practical impact on a typical
complainant of the development of the actual case, underlining how the
sequence of actions and omissions of the Commission along the competition and
the recruitment procedure related to the issues previously argued by his
colleague.
The Commission’s counsel, also represented by two lawyers, had then the
possibility to counterplead. Their plead was opened by a rather quizzical
claim of the “extreme importance of the case” (referring to what? to its
economical implications?), and then they chose a quite dry and technical
approach, quoting profusely case law (my impression was that a bit too much
profusely; had they identified a really relevant point, I guess they would
have delivered it in a much more concise and forceful way), then describing
the lawmaking process leading to the Staff Regulation’s reform and its
difficulties, trying to justify the soundness of the solution finally chosen
(in what it looked like a “least bad” argumentation), and at the end flatly
denying, as expected, both main claims of the complainants. I think it is
worth to comment that the counsel recognised once that the surest way for
dealing with the Reform would have been to cancel all remaining reserve lists
before May 1st, 2004; they repeated it later, in what seems a muted partial
acknowledgment of the painful mess the Commission is now in, and where they
have dragged almost 900 other persons.
The Council’s counsel was represented by just one lawyer. She charged straight
on, choosing an edgy and quite strained approach –something which showed in
her voice–, trying to reverse the discrimination claim on its head, arguing
that maintaining for people recruited after May 1st 2004 the conditions
offered in their competition notice, and confirmed throughout most of the
process, would have created real discrimination against other people recruited
from other competitions. And then she offered a second comparable idea: new
Staff Regulations had not created discrimination, since they had been applied
to all officials of the Commission. You could feel the perplexed skepticism
that her intervention raised in most people present in the court –including,
I’d bet, some human beings dressed in flowing black silk robes. Well, at least
she was quite brief.
After plead and counterplead, the most interesting part of the hearing began.
It was conducted by the president of the court, asking specific questions to
both parties –plus, of course, allowing the adversary party to comment on the
answer. My impression was that the court’s questions reflected a thorough
analysis and understanding of the case, that they were very much to the point,
and that they were looking for specific clarifications which will become
necessary for the court in order to develop and delivery a fair sentence;
somehow, you could discern behind each and every question a clear line of
thought. And they were both dispassionate and fairly difficult to answer; you
could feel the counsels, when questioned, revving up their brains in order to
meet the challenge.
I am not capable to go through all of them in detail, but I’ll try to
summarise the main themes which emerged from the discussion, and which I think
will be relevant for the position that the court will reach.
• Regarding the equality/discrimination issue, two are the main points:
1) the role attributed to the different parts of the competition & recruitment
process, and specially to its milestones (i.e. date of publication of contract
notice; validity dates of the reserve list; date of publication of vacancy;
date of medical exams; date of interviews and final job offer; date of
entering service; date of nomination, …) in defining the legal rights to which
a recruited officer is entitled; 2) the definition of the group(s) regarding
which the discrimination hypothesis is advanced, or denied. Defendants’
counsel maintains that only the date of nomination determines rights;
complainants’ counsel, while recognising the role of that date, maintains that
the whole process, and specially the conditions published in the competition’s
notice, defines those rights.
• Regarding the legitimate expectations issue, defendants’ counsel
maintains that no legitimate expectations exist, since the presence in a
reserve list gives no rights whatsoever; complainants’ counsel maintains that
the presence in a reserve list gives right to equal treatment to that received
by other candidates, according to the conditions established in the
competition’s notice.
• Regarding the Staff Regulations themselves, whether it can be argued
that they include measures allowing for a “progressive application” taking
into account “legitimate expectations”, as asked by the mandate reflected in
their initial considerations. Commission’s counsel argued for a restrictive
reading of those requests, raising some eyebrows in the Court, which had just
commented, through its president, about the “différence brutale” (sic),
enacted on May 1st.
• Regarding the lawmaking process, whether the late change of the “class
equivalence” Table to be applied to recruitments after May 1st, had respected
the usual standards of the consultation procedure, as the final version of the
Table had not been submitted to the Parliament (the one swapping the
equivalence initially suggested A6/A7=A*7 by the equivalence finally adopted
A6/A7=A*6). Commission’s counsel explained that as it was deemed an
unimportant change, it had not been submitted again for consultation.
• Regarding the transition period, the number of officials actually
recruited in late April 2004 was discussed in detail, so as the
Commission’s 'idiosyncratical' e-mail circulated internally some weeks before,
warning services about the impending new situation, and offering them the
possibility to carry out accelerated recruitment “for service needs”. Attempts
of explanation by the Commission’s counsel were rather unsatisfactory, to put
it mildly, and the figures they provided incurred in a blatant contradiction
with a written answer of Commissioner Kallas to a Parliament’s question, as
Maître Lévy deftly exposed. When asked by the Court whether they regarded
these last-minute recruitment practices as irregular, complainants’ counsel
chose not to express any opinion about that.
• The relevance of the material differences for complainants between the
new Staff Regulations and the old one was also discussed. The complainants’
counsel stressed their importance, whereas the Commission’s counsel tried to
glide over it (not in full coherence, by the way, with its initial remark
regarding the “extreme importance of the case”, see above).
• Regarding the legislative freedom of the Council. The defendants’
counsel tried quite an extreme approach, maintaining that recognition of the
complainants’ case against the Staff Regulations would be tantamount to
denying legislative freedom to the Council. The complainants’ counsel
countered explicitly that interpretation.
Two other members of the court took their opportunity to question the
Commissions’ counsel, mainly about number of people recruited at each
different stage of the process, and about its opinion on how relevant were
grade and financial conditions for a candidate taking a final decision about a
specific job offer. The answer to the first was they they didn’t have
available the requested data; to the second was rather poor, trying to
downplay the importance of grade and financial conditions.
Closing interventions by all three C’s (complainants, Commission, Council)
didn’t add anything terribly new.
And that for a summary of contents. If you reached this point, and you also
allow me to add on top of that a critical, personal assessment:
• most material facts central to the case were clearly described and
discussed, with reasonable agreement of all parties (while wildly differing in
their interpretation, of course),
• a pretty clear picture was drawn (with the unwilling contribution of
the defendants’ counsel) of shallow, dreary shoddiness in the lawmaking,
planning and implementation processes of the new Staff Regulations,
• all main legal issues were treated and discussed.
As for the performers:
• Complainants’ counsel appeared competent, fact-based, and delivered
its points in an understandable, logical way. Under questions, and commenting
on their adversaries’ answers, they normally chose a conservative, surefooted
approach which probably didn’t fully voice the ardent feelings (& reasonings)
of many complainants, but it must be recognised that their strategy seems
sensible in a general context of moral and technical advantage.
• Defendants’ counsel had a challenging morning. Although I believe that
the position they are forced to defend is unfair and unethical, I think that
the colleagues to whom this difficult task was assigned were fairly gallant,
both personally and professionally, and tried their best in the uphill
struggle they were fighting. Notwithstanding that, I found their reasonings
difficult to follow, and, as remarked by the court itself, they introduced
once and again subjects which were irrelevant to the case, and repeated
themselves quite a lot. Now and then, I was quite thrilled with their
interventions, since I believe they scored a few points against themselves. As
I said before, theirs were difficult cards to play.
• I found the court brilliant, both listening actively, and conducting
sharp, relevant, decisive questioning. To my unsophisticated eyes, they meant
business: they knew what they wanted, and they went for it. In my view, its
president was the focal performer of the whole hearing.
After a quick and savoury meal at the CFI restaurant, I returned to Brussels
with a good feeling and a fair deal of respect for the Court of First
Instance. After so many months of collectively brooding over theoretical and
distant issues, the hearing has left me the impression of something very
concrete, quite technical & logical, no-nonsense, and that has been deeply
satisfying. Julio, who drove me safely forth and back, shared some of these
views (beware, folks, of two engineers talking about law!). My reasonable
guess (just a guess, I underline): justice will be done. I do hope that for
the sake of the Institutions –and ours.
I’ll be really grateful if other people who attended the hearing do correct my
misstatements. I’m sure they will be plenty of them.
Peace,
