Correspondence 2003

By Fax, Post & E-Mail

22nd October 2003

Dear Ms. Quinton,

Complaints No 2001/5005 and 2002/4443

Your Letter of Response Dated 22nd August 2003

I am in receipt of your letter dated 22 August 2003, which I received on 28 August. This reply constitutes a formal response to your letter containing new and authoritative arguments as requested in the last paragraph of your reply, and which challenge the factual, legal, and logical basis of the conclusions you appear to have reached. For ease of reference, the paragraphs and points are henceforth numbered.

1. The Commission has already accepted that LEAF's complaint has validity in crucial respects.

1[a] Your response of 22 August 2003 makes significant observations in regard to point (1) above, in that you acknowledge the difficulties and problems encountered by Lecturers that were brought about, ipso facto, by the incorporation of colleges in England and Wales in 1993, pursuant to the Further & Higher Education Act [1992]. You state the matter thus:

"I can assure you that the Commission is fully aware of the importance, seriousness, consequences and implications of the issues and problems encountered by numerous Lecturers, but in principle the national courts constitute the proper legal framework for dealing with conflicts such as the ones raised in your complaints". (Letter 22-08-03, paragraph. 2)

1[b] The Commission's response acknowledges that as a result of the transfer, numerous (in fact about 100,000) Lecturers have suffered grave disadvantage. Many have suffered continued disadvantage up to this day because, and in spite of the fact that they have sought the protections afforded to them in European Law. This is a most serious matter, which if not properly addressed by the Commission, will have very significant consequences for the integrity and authority of the Commission itself. I will deal at length later in this response to the position as far as the national courts of the United Kingdom is concerned, even though I have sought to clearly explain the difficulties we faced in, and with, the national courts in earlier communications.

1[c] The issues and problems at stake have been brought to your attention not only by means of LEAF's formal complaints, but also by the many Lecturers who have complained to the Commission, or to their European parliamentary representatives about their plight resulting from the change of their employer. This process in turn has led to the involvement of the European Parliaments Petitions Committee Vice President, as well as the leader of the Labour Group in the European Parliament. Much of this representative work has gone unacknowledged by the Commission's Services. The failure of your services to respond accurately or at all to my correspondence on this matter is another point that I will deal with separately later.

1[d] Further concrete proof that the Commission has accepted the validity of LEAF's complaints can be evidenced from discussions held between LEAF Officers and the Commission's staff in 2002, which led to the Commission's correspondence with the United Kingdom Authorities. Following a meeting in September 2002, the Commission wrote to the United Kingdom, to raise concerns that had been expressed during our earlier meetings and through our lengthy and detailed correspondence.

1[e] In its letter to the United Kingdom dated 23 September 2002, the Commission stated that the United Kingdom's actions had led to problems with the proper operation of the Directive. The Commission's views were at that time completely consistent with LEAF's analysis that the operation of the directive (as evidenced in our complaint) has been defective.

1[f] The United Kingdom's response to the points set out in the Commission's letter was peremptory, and in our view, and that of senior officers of the Commission's services I spoke to on the matter, unintelligent and circular in reasoning. Indeed the United Kingdom's response avoided completely any commentary or explanation of the reasons or justification for victimising staff who chose to remain on their transferred contracts of employment (ie, maintained their ARD rights), and were:

[i] Denied pay increases which were awarded to staff who gave up their ARD rights,

[ii] Denied the opportunity to progress their careers in any way and thereby were denied the freedom and opportunity to benefit from promotion and career progression, as was the case under the pre-transfer employment relationship. These employees have therefore been denied the right to enjoy the same benefits after the transfer as existed before the transfer.

1[g] Neither the United Kingdom Authorities nor the Commission have commented any further on the failure of Colleges of Further & Higher Education (emanations of the state) to treat equally those staff who sought to uphold their public Law rights. Further, as the letter from the Commission to the UK Authorities dated 23 September 2002, and signed by yourself cited problems with the proper operation of the directive, I fail to see how your next communication with this union, also signed by yourself, can say that your services have found no elements to make them believe that there was a breach of the directive in regard of its transposition or application. (Letter, 22 August 20.03, paragraph 4)

1[h] You will see from a reading of the two letters, separated by a period of about a year, that you have made two definitive assertions that are logically incompatible. Unless you have repudiated your letter to the UK Authorities of 23 September 2002, or unless you have received a more detailed explanation from the United Kingdom authorities to the contents of your letter, which I am unaware of, you will see that it is logically impossible to have made the statement in your letter to me of 22 August 2003, on which your entire conclusion appears to rest.

1[i] I suggest that this is an example of the Commission, under pressure, attempting to substitute a response which is politically convenient for one which is: [a] grounded in European Law, [b] cognisant of the facts that have been so clearly presented by this union, and [c] demonstrates a concern for the proper operation of the directive. This is indeed a serious matter, and cannot be left unchallenged. I am presently also taking advice on whether this in itself constitutes a maladministration by the Commission. It is certainly a complete failure to act in the role of Guardian of the Treaty, which is a solemn duty of the Commission. Given that the Commission is still under a cloud of suspicion for its behaviour in other areas, which I am sure you are well aware of, I would suggest that you and your colleagues examine very carefully how and why you are proposing to suggest a termination at a forthcoming meeting of a complaint that you have declared had caused you concern without first resolving those concerns.

1[j] At this juncture I must make it clear to you that a key officer of the Commission's services advised me by telephone in December 2002 that we may run into problems in regard of the political will of the Commission. The reason given by your official was, because the complaint involved the United Kingdom. The member of your staff clearly stated in that conversation that, if our complaint had been levelled against the likes of Portugal or Greece, the Commission would have been more motivated to take action. As it was, our complaint was against a more influential member state and we should be aware that this very fact could result in difficulties of a political nature. The unsolicited telephone conversation that I had with that official was relayed to Roy Perry MEP and to Elspeth Attwooll MEP by e-mail at or around the time it took place. A record of the conversation exists.

1[k] The Commission's own Code of Practice states that staff shall always act objectively and impartially, in the Community interest and for the public good. The Code states that they shall act independently within the framework of the policy fixed by the Commission and, personal or national interest or political pressure shall never guide their conduct. It is our firm belief that the guiding principles of the Commission's Code of Good Administrative Behaviour have not been respected in this regard, and that in a number of other ways our complaint has been the subject of maladministration.

2. The first complaint (2001/5005) Failure to uphold employees rights following a transfer

2[a] Following a meeting involving LEAF officers and senior figures from your services on 1 April 2003, I wrote to you on 14 May 2003 to provide written confirmation of the key points we had made at that meeting, attended also by Ms Elspeth Attwooll a United Kingdom MEP, as well as a research assistant for Mr Roy Perry MEP. In my letter I cited two key judgements of the European Court of Justice that supported our contention that national Law needed to be amended to ensure the proper and effective operation of the Acquired Rights Directive. During the meeting, your senior officers were unable to cite any case Law that supported their contrary view, but instead mentioned a recent case in France which contained evidence that purported to support their view. At the time, they could offer no further supporting argument, such as the name or title of the case, or refer us to any particular sections in the case. It was only later, after repeated requests, that we were referred to the case known as Mayeur in the municipality of Metz, which was apparently the reference made.

2[b] In your letter of response dated 22 August, you finally cited the Opinion of the Advocate General in the case in question (Case C-175/99, Mayeur ECR2000, p.1-07755) in support of the flimsy and insubstantial new argument you sought to advance. As a response to our complaint on the principal issue of the incorrect transposition of the directive, this is clearly inadequate. It requires an explanation of why you are prepared to substitute the Opinion of Advocate General Leger on this otherwise unrelated case (an Opinion which did not even find its way into the conclusions of the Court in Mayeur], a case which as I have made clear, does not have any direct bearing on our complaint. That is unacceptable and in our view cannot be considered to constitute a reasoned and transparent analysis of our complaint, which is a requirement of the Commission's Code of Practice. To put it quite bluntly, if I had offered an Advocate Generals Opinion as a counter to relevant case Law of the European Court that you had cited in support of your argument, you would have very quickly told me that an Advocate Generals Opinion is not binding.

2[c] The unwillingness of the Commission to comment on the validity of the judgments cited by this union in Case C-65/01 (Commission v Italy) and Case C-165/82 (Commission v United Kingdom) is quite unacceptable, and requires a clear explanation as to why the Commission has chosen to ignore our references which provide a clear line of reasoning grounded in the case Law of the European Court of Justice. We ask the Commission to provide an explanation and a justification in Law and procedure as to why the Advocate Generals Opinion has been accorded super-ordinate status over EU case Law, in particular when the Advocate Generals Opinion did not even find its way into the courts conclusions. In our view this is another clear example of the Commission substituting a view based upon political considerations for one based, as it should be, on considerations grounded in European Law. The Commission's duty to ensure that decisions are consistent with the overall aim of promoting the integrity of Community Law is of paramount importance. In my view this is again a possible maladministration, and is certainly a conclusion which the Commission, with its massive resources and access to the best legal advice, has not even attempted to properly justify. As you will be aware, in accordance with the third paragraph of Article 249 EC, directives are binding, as to the result to be achieved, upon each member state to which they are addressed.

Article 249 (2)-(5) EC33 states that Recommendations and Opinions shall have no binding force. See the Opinion of the Advocate General Fennelly delivered on 5 February 1998 in C-170/96 Commission of the European Communities v Council of the European Union.

Collective Agreements

2[d] At this point I wish to remind you of the points made by this union at our meeting of 1 April, and which were subsequently mentioned in the letter of 14 May 2003, but which were not responded to by your officers at the time or by you until 22 August 2003. My reference is to the European Commission's National Report: The Regulation of Working Conditions in Member States of the European Union 1998 (vol.2). This report gives clear guidance on the Commission's tacitly accepted view on this critical matter, which is at the heart of our complaints. At page 242 (column 2) of the Report, the effect of non-binding collective agreements on the application of European Community Law is considered. The Report refers to the judgement in Case 165/82 (Commission v United Kingdom) as substantiating a line of argument that collective agreements must be construed as legally binding in the event of a transfer.2[e] The report dealt with these critical points and stated the following:

(i) In Infringement proceedings in 1984, the United Kingdom government argued that the non-binding nature of collective agreements removed the UK from the field of application of article 4(b) of Directive 76/207 EC. Mrs Advocate General Rozes favoured the Commission's position that the directive was intended to create a legal safeguard against discrimination in agreements, in particular by reason of the requirements of clarity and legal certainty. The European Court of Justice rejected the UK Governments argument, and held that the Directive covers all collective agreements without distinction as to the nature of the legal effects they do or do not produce.

Case 165/82 (Commission v United Kingdom) provides a clear line of argument that collective agreements should be construed as binding on a transferee employer following a transfer. The Commission must accept that new rights were accorded to employees when Directive 77/187 was introduced. Prior to the introduction of the directive the transferee employer was given a free hand to worsen an employees terms and conditions, a matter of some significance that the directive was intended to remedy; i.e. to protect an employees rights on a transfer of employer because this situation had long been identified as one in which employees rights were put at significant risk. Nevertheless, in the United Kingdom, the national legislation transposing the Directive 77/187 EC, the Transfer of Undertakings (Protection of Employment) Regulations, appear to continue to preserve the non-enforceability of collective agreements as against the transferee of an undertaking.

2[f] The reference in (i) above to Infringement Proceedings Case 165/82- clearly reinforces the fact that, for the effective operation of the Directive, collective agreements must be construed to be legally binding on the transferee.

The statement reproduced above in the Commission's National Report, recognises the circumvention of the spirit and purpose of the Directive by virtue of the interaction between the way in which transposition of the Directive has been conducted, and a national Law (in the UK) which is in conflict with that spirit and purpose.

2[g] The Report therefore accurately anticipates and acknowledges the conflict that is inherent in the claim made by the United Kingdom authorities in the first sentence of paragraph 3 of its letter of response to the Director General, but the Commission has failed to take any action whatsoever to rectify the problem. When the points reproduced above were made to your officers at the meeting of 1 April 2003, your Mr Feenstra who remarked that they had no validity and that the views were merely an opinion, peremptorily dismissed them. Mr Feenstras dismissive remarks can be seen to have been pure sophistry in this context, particularly since he and you are seeking yourselves to substitute an Advocate Generals Opinion for the authority of EU case Law, to which we have drawn your attention, and which it is clear you have done in order to justify your view that no action by the Commission is warranted on our complaints. Once again, we regard Mr Feenstras stance on this matter as evidence of the Commission's willingness to use a politically expedient decision in place of a reasoned argument that is grounded in Law and the clear duties of the Commission to uphold the integrity of EU Law.

2[h] With reference to the findings of the UK Employment Appeals Tribunal (EAT), mentioned in paragraph 3 of the UK authorities letter, this reference simply highlights the fact that, in the Ralton proceedings, the national court decided the case on a national Law basis despite the fact that LEAF's counsel was able to successfully argue that the employer was an emanation of the State and that consequently the employees were entitled to rely on the Directive itself, rather than the more limited and conditional TUPE regulations.

2[i] As I am sure you will appreciate, the terms and conditions of millions of workers in the United Kingdom are governed by collective agreements. The Commission must therefore act to ensure that the Directive it promulgated is effective in providing the protection intended. If the national courts fail to provide this protection or Law is incorrectly applied and or transposed, the Commission has a duty to intervene when a complaint is made. This duty is particularly strong when the complaint is made against the national government or against a body or employer that is an emanation of the state. The reason for this is obvious in our case. The mechanism by which the relevant transfer was effected was legislation in the UK Parliament, controlled by the UK government itself, which was also the employer of the last resort of the staff, and which had effective control over both the transferor and the transferee. Not to ACT would indicate that powerful corporate interest can have disproportionate influence and control over the interpretation of directives which are intended to protect citizens rather than corporate interests.

2[j] In this small unions view, the Commission has allowed itself to voice the interests of a large and powerful corporate interest (the United Kingdom authorities), as against those of a small minority (UK Further Education Lecturers European Citizens), to the detriment of the integrity of European Law. Once again, this represents the substitution of politically convenient reasoning for legally correct reasoning. I believe that the Commission's remarks in your letter to me of 22 August, that you are fully aware of the importance, seriousness, consequences, and implications of the issues and problems at stake encountered by numerous Lecturers (Letter, paragraph 3) is another way of saying that you have decided for your own reasons to put the interests of the UK authorities before those of EU citizens. It will be the integrity of European Law, as well as the interests of Lecturers, which will be a casualty if this stance is not reviewed urgently.

2[k] During the Ralton proceedings, our counsel asked the court to make a reference to the European Court of Justice (ECJ) on two key points that required interpretation:

– to establish a Community Law meaning for the term collective agreement. This was because collective agreements in the United Kingdom are presumed not to be legally binding, rendering ineffective all references to collective agreements in the Acquired Rights Directive

– to establish a Community Law meaning for the term employment relationship. The judge in the national case at appeal refused to acknowledge the term employment relationship as having any validity in the UK, thereby rendering ineffective all reference to an employment relationship in the Acquired Rights Directive.

The judge in Ralton refused requests for a reference to the European Court of Justice on these very important and contentious points, arguing in his judgment that the issues were clear. We found this to be a very unsatisfactory judgment, because the judge himself had said at the outset that not only did he not understand the term employment relationship, but that the matters which our counsel wished to raise and argue relating to collective agreements in European Law, were a mystery to him. The point I would make here is that by dismissing our requests for a ruling on these crucial questions, the judge was able to dismiss our appeal on a purely national Law basis. Our case stood very squarely on the application of European Law to the applicants individual cases. It is clear from what has been said to the UK authorities, that the Commission too believes that EU Law questions need to be clarified and determined.

2[l] It is also patently clear that the Directive cannot have full and proper effect in circumstances where a transferee employer can simply bring collective agreements to an end on a whim. All that a new employer would be required to do, given the UK's analysis of the situation, would be to give notice that the collective agreement is to be repudiated. The ability of the new employer to simply repudiate a collective agreement in the event of a transfer clearly defeats the protections the Directive is meant to afford to employees. It is important to state here that we are not referring to a situation that is merely theoretically possible. This has happened to many thousands of Lecturers, with disastrous consequences for their personal and professional lives, as the Commission has acknowledged in the passage from your letter to me that I have already quoted.

2[m] Since you obviously have accepted the factual account we have previously supplied of how this lamentable situation came about, and since you have conceded that the practices in the United Kingdom present problems for the operation of the directive, I fail to see how you cannot conclude that action is necessary to bring about a remedy to this deplorable state of affairs.

2[n] The only argument you have advanced for not taking the action that is clearly within your power and duties, is that, as you have put it in the letter to me, in principle the national courts constitute the proper legal framework for dealing with conflicts such as the ones raised in your complaints. I must again say that this statement, which I recognise from an earlier response which predated our most recent letter, represents the substitution of politically convenient reasoning for sound judgement based upon Law and the Commission's duties. It was made very clear to you and your colleagues at the meeting of 1 April 2003, that the judge in the Ralton proceedings, whose stance I have summarised above, refused LEAF the right to appeal against his decision.

2[o] The reference to the findings of the EAT in the second sentence of paragraph [3] of the United Kingdom authorities response to the Commission's letter, which was signed by you, therefore highlights the fact that in the Ralton proceedings the national court decided the case on a national Law basis, even though the employer was conceded to be an emanation of the State and the employees were entitled to rely on the Directive itself. Further, in the United Kingdom, the Employment Appeal Tribunal cannot Lawfully adjudicate in cases involving employees of an emanation of the State, because of the proximity of the service to an arm of government. T. Smith v The Secretary of State for Trade & Industry EAT [1999]. Moreover, appeals to the EAT can only be based on a point of Law. The facts of a case cannot be reconsidered on appeal. You were made aware of these problems in 1999.

2[p] Under the first paragraph of Article 10 EC, member states are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty, or resulting from actions taken by the institutions of the Community. It is common ground that a member state must adopt measures to comply with directives.

2[q] As I am sure you will appreciate, the terms and conditions of millions of workers in the UK are governed by collective agreements. The Commission must therefore act to ensure that the Directive promulgated by the Commission provides UK citizens with the intended protections.

2[r] As the Commission is well aware,

– LEAF argues that the United Kingdom has failed to adopt measures for the full incorporation of the Acquired Rights Directive into the legal order of its system of national Laws and that many thousands of workers in the United Kingdom have lost, and may in the future lose entitlements as a consequence of the UKs failure to correctly transpose the Directive.

– That as a result of the incorrect application of Law by the national courts, the protection of Community Law has been denied to many thousands of workers.

2[s] The Commission's internal guidelines on enforcement and use of Article 169 led to the following conclusions on improving the Commission's working methods for infringement procedures. The Commission on 30 July 1996 adopted the guidelines, and on the basis of those guidelines, it was proposed that the Commission apply the following priority in dealing with complaints:  Infringements which cause the greatest damage to the Community legal order, i.e. failure to transpose legislation and failure of national legislation generally to comply with Community Law;  Horizontal cases of incorrect application, in particular when these are detected on the basis of a series of specific complaints by individuals:  Infringements that seriously harm the interests which the transgressed Law is intended to protect.

The Commission has, in our view wrongly applied the first two priorities and has ignored the third.

2[t] In the Commission's letter of response dated 22nd August 2003, it is stated that the Commission as Guardian of the Treaty must in the first place be responsible for ensuring that EU Directives are properly applied by Member States and, secondly, ensure that they are not contravened by generalised national practices. The paragraph continues with an incomplete sentence that reads; However, its role is not to intervene in individual cases of.

2[u] On the assumption that this truncated sentence actually means that the Commission will only entertain cases involving the misapplication of Community Law that arise from a series of specific complaints, the Commission's attention is drawn to priority [2] above. The wording clearly does not preclude individual cases from receiving priority for analysis. The wording merely puts the emphasis on incorrect applications that result in a series of specific complaints and does not refer to a series of separate incorrect applications as the Commission has led us to believe.

2[v] The Commission has made reference to the fact that it is for the national court to determine whether the terms of a collective agreement are binding on the transferor, and points to the fact that the national court in Ralton found that the collective agreements of Lecturers were not binding on the new employer.

2[w] It is absolutely crystal clear from the appointment letters of Lecturers in colleges of further & higher education across the United Kingdom, that the collective agreement was expressly incorporated into the contracts of Lecturers and therefore have legal force in exactly the same way that it was determined that the collective agreement was binding on the transferee employer in Beckmann. Under the Commission's own guidelines, the Commission must scrutinise and rectify this major error, which has led directly to the incorrect application of Community Law. In this context I cite the following guidelines the Commission must follow in dealing with Article 169 complaints, as agreed by the Commission itself.

– Horizontal cases of incorrect application, in particular when these are detected on the basis of a series of specific complaints by individuals:

– Infringements that seriously harm the interests which the transgressed Law is intended to protect.

THE COLLECTIVE AGREEMENTS OF LECTURERS ARE LAWFULLY BINDING

2[x] The Commission has copies of the appointment letters of Lecturers, that follow a common text for all Lecturers across the United Kingdom who were employed by a local authority employer pre-transfer. The letters clearly state that the collective agreement is expressly incorporated into the individual contracts of Lecturers; thereby giving the collective agreement contractual force.

2[y] Under the Commission's Guidelines we say it is the duty of the Commission to examine this very important point, which is clearly recorded in the appointment letters of Lecturers, and available for the Commission to inspect. We say the Commission has a duty to do so under this guideline, because the incorrect application of the Law by the national court has directly led to the incorrect application of Community Law and the denial of the protections intended to be afforded by the Directive.

2[z] Under the Commission Guidelines we say it is the duty of the Commission to take appropriate steps to examine and to rectify the incorrect application of the national court, to which we refer, because it has resulted in serious harm to the interests of those which the transgressed Law is intended to protect. Thousands of Lecturers have been denied their mandatory contractual right to premature retirement and a pension and lump sum as accrued; a right enshrined in a collective agreement that is legally binding as a consequence of its clear and obvious incorporation into every Lecturers local authority pre-transfer contract. It is difficult to conceive of a complaint that relates so directly to this guideline priority. We estimate that around 100 000 workers have been affected by the transfer of Colleges of Further & Higher Education and that the actions of the transferee employer, an emanation of the State, has resulted in serious harm to those employees that the Law is intended to protect.

3[a] [Complaint 2002/4443] - Entitlements to Premature Retirement Benefits

3[b] LEAF's complaint [2002/4443], concerned Lecturers who remained on their local authority pre-transfer contracts, which continued in force after the transfer, examples of which still remain effective even today. In the case of these Lecturers employed by Colleges of Further & Higher Education, no amendments were made to their contracts of employment after the transfer as they simply continued on their pre-transfer terms.

3[c] While it is true that the new employer can vary the terms of employment in accordance with national Law, the Lecturers with whom we are concerned, under complaint [2002/4443], did not vary their contracts and in those circumstances the purpose of the Directive cannot be circumvented.

3[d] It was held in the Judgment in Beckman, that it is irrelevant whether rights and obligations which transfer to the transferee under Article 3(1) or (2) of the Directive derive from statutory instruments or what the practical arrangements for their implementation are. It is therefore irrelevant that the rights to early retirement benefits were governed by statute. The obligations of the former employer derive from the employment relationship and the collective agreement and consequently transfer to the transferee under Article 3(1) and (2) of Directive 77/187.

3[c] With reference to the Opinion of the Advocate General Case C-4/01, the Southbank University case, cited by the Commissioner in her letter to Roy Perry MEP, if the applicants had continued to be employed by the National Health Service there would have been no changes and they would have had no reason to accept any deterioration in their conditions of employment as regards benefits payable on early retirement. The identical position holds for Lecturers in Further & Higher Education Colleges who chose to retain their pre-transfer conditions. The new employer made no changes to the early retirement benefits of those Lecturers who retained and continued to work to their pre-transfer contracts. The changes to Lecturers early retirement benefits resulted from a change to the regulations brought about by the Secretary of State. By amending the regulations affecting the early retirement entitlements of Lecturers, the Secretary of State circumvented the contractual entitlements protected by the Directive. As the Advocate General states in the Southbank University case; On a proper construction of Article 3 of Directive 77/187, the obligations applicable in the event of the dismissal of an employee, arising from a contract of employment, an employment relationship or a collective agreement binding the transferor as regards that employee, are transferred to the transferee subject to the conditions and limitations laid down by that article, regardless of the fact that those obligations derive from statutory instruments or are implemented by such instruments and regardless of the practical arrangements adopted for such implementation. [Opinion of the Advocate General – Case C-4/01]

3[d] Further, the Court of Justice held in Tellerup v Daddys Dance Hall that an employee cannot waive the rights conferred on him by the mandatory provisions of Directive 77/187, even if the disadvantages resulting from his waiver are offset by such benefits that, taking the matter as a whole, he is not placed in a worse position. Article 3 of Directive 77/187 is a mandatory provision and not in the discretion of the parties to a contract. The rights conferred on an employee by the Directive cannot be curtailed even with his consent. [Opinion of the Advocate General – Case C-4/01].

3[c] It is very important to understand that the former employer, the local authority, could not have made that change, because the local authority was not empowered to make such changes to the regulations.

3[d] Moreover, according to the Advocate General, case [C-4/01], Articles 3(1) and/or 3(2) of Directive 77/187 preclude the transferee of an undertaking from offering transferred employees the option of taking early retirement on the basis of early retirement benefits that are less beneficial than those to which they are entitled under the Directive, if the transferor could not have made such a change and if it is a result of the transfer of the undertaking as such. It is clearly the case that the local authority employer was not empowered to bring about changes to the pension scheme, as only the Secretary of State was allowed to effect changes under the enabling legislation. Whatever powers the Secretary of State has, he or she cannot circumvent the protections afforded by Community Law, which is what has happened. The Commission must therefore address this matter urgently.

3[e] Further, and in any event, the collective agreements of Lecturers employed by Further Education Colleges in the United Kingdom were expressly incorporated into their contracts of employment in exactly the same way as the collective agreement was incorporated into the contract of Ms Beckmann in [Beckmann v Dynamco, Whichloe, MacFarlane Ltd.]. The national court in Ralton acted wrongly and outrageously by refusing to acknowledge that collective agreements had contractual force, and therefore denied thousands of Lecturers the protections intended to be afforded by Community Law in the event of a transfer of employer.

3[f] To summarise, we ask for your carefully considered response and impartial and reasoned analysis to the arguments raised in defence of the correctness of our complaint in the body of this letter, and specifically including the following points within one month of the date of this letter

{1] The Commission is required to provide a properly reasoned view on that part of our complaint concerning the incorrect transposition of the Directive, which includes a reasoned analysis of the effect of the judgments of the European Court that we cited in support of our position.

[2] The Commission is required to explain why it feels able to accord super-ordinate status to the Advocate Generals Opinion over the case Law of the Court of Justice.

[3] The Commission is required to explain why it has chosen to interpret its internal guidelines in a way that relates only to generalised national practices, when the guidelines clearly allow for individual complaints of misapplication to be dealt with.

[4] The Commission is required to respond to our complaint that transferred employees have been victimised by having to endure a 10 year pay freeze, as a direct consequence of adhering to their Community Law rights.

[5] The Commission is required to respond to our complaint that transferred employees have been victimised by having their careers blighted, as a direct consequence of adhering to their Community Law rights.

[6] Regardless of its assertion that it is for the national courts to determine, if necessary, whether a collective agreement is binding on a transferee employer, the Commission must examine and comment upon those documents [appointment letters] which clearly state that the Silver Book collective agreement was and is binding in the contracts of Lecturers, because it was expressly incorporated into the pre-transfer contracts of employment of every Lecturer in the United Kingdom. Indeed, the Silver Book collective agreement still governs the contracts of a small although unknown number of Lecturers – more than 10 years after the transfer. In this regard we refer you to the Commission's guidelines for dealing with infringements that seriously harm the interests which the transgressed Law is intended to protect.

I look forward to your reasoned, logically compatible and transparent response.

Yours sincerely,

David F. Evans