LEAF RESPONDS TO THE COMMISSION’S REPLY TO THE OMBUDSMAN

 

Dear Mr. Diamandouros,

Re: Your communication of the 3rd June 2004 - 0480/2004/TN

Thank you for your letter together with the enclosures and comments from the European Commission. I wish to state at the outset that we stand by the correctness of our complaint to you regarding the Commission’s maladministration of our complaint, which concerned the treatment of Lecturers in Colleges of Further and Higher Education, following a transfer of employer, pursuant to the Further & Higher Education Act [1992].

At this juncture I wish to make it absolutely clear that the basis of our complaint to you is not simply that there is a disagreement between LEAF and the Commission on the interpretation of Community Law, as the Commission claims in its conclusion, but rather that there are several counts of maladministration of our complaint by the Commission. Indeed, we are fully aware that differences in understanding of the law or facts are not within the remit of the Ombudsman.

Our complaint to you concerns the Commission’s abject failure to give a reasoned analysis and proper response on issues which, are properly its responsibility. These issues and the Commission’s role in the maladministration of them are brought to your attention in connection with the Commission’s failure to observe its own guidelines for dealing with complaints and its failure act within those guidelines and protocols.

In response to the Commission’s absurd assertion that we had not provided any concrete evidence for our claim of maladministration, we will reiterate in this reply in the most concrete manner possible, our grounds for claiming that the Commission has failed to fulfil its fundamental role as guardian of the Treaty under Article [10] EC, and consistently flouted its guidelines for dealing with complainants.

In the first complaint we placed before the Commission, we pointed to an area of concern with the ARD regime as it currently applies to collective agreements following a transfer of employer.

We told the Commission that, in the United Kingdom, the legal status of collective agreements renders entirely ineffective all those aspects of the Acquired Rights Directive that relate to collective agreements, even where such agreements are given legal force through their incorporation in individual contracts of employment.

We provided the Commission with clear evidence that the National Courts of the United Kingdom had misapplied the Acquired Rights Directive and the Transfer of Undertakings [Protection of Employment] Regulations in cases involving a transfer of employer. The failure of the ARD and domestic legislation to protect the employment rights of workers enshrined in a collective agreement is bolstered and reinforced by the United Kingdom’s reply to the Director-General’s letter dated 20th October 2002. The Director-General’s letter as you will be aware, expressed the concern that there may be problems with the United Kingdom’s compliance with the requirements of the Directive.

In a nutshell, the United Kingdom’s reply stated – “there is no legal requirement on either the old employer or the new employer in a transfer to remain bound by the terms of a particular collective agreement, such as the Silver Book”. The seriousness of this finding by the National Court and the United Kingdom authorities, and the abject failure of the Commission to take any action on the matter, is brought into sharp focus in the case of the workers concerned in this complaint. That is because the collective agreement represents the entirety of the contract of employment of the subjects of the complaint to the European Commission.

There was no document other than the collective agreement that stated the terms and conditions under which these workers were employed. On appointment they simply received a letter that stated the collective agreement was expressly incorporated and therefore contractually binding. The findings of the National Court and legal analysis proffered by the United Kingdom authorities on the matter, led to a position where there was no protection at all for the pre-contractual status of this group of workers, following the transfer of employer.

The findings of the National Court that the ARD offered no protection whatsoever to the terms and conditions contained in any collective agreement, is a serious misapplication of Community Law in itself, since the object of the ARD is to ensure that such agreements continue to be observed. Moreover, it is a serious misapplication that is consequent upon a failure of the Member State to properly transpose the ARD by amending the domestic legislation so as to ensure that the Directive had full effect.

To bring to the Commission’s attention the fact that the Lecturers who are the subject of the Article 169 complaint have no protection at all under the ARD even though their entire contractual position is contained in a collective agreement, and regardless of the fact that the agreement has legal force under domestic law, and then to reflect upon the fact that the Commission has blankly refused to take any action to rectify this situation, beggars belief.

Indeed the findings of the National Court and the interpretation of the United Kingdom authorities on the matter of collective agreements in the letter of reply to the Director-General’s stated concerns, plainly flies in the face of the words and spirit of both Article 3(1) ARD (transfer of employment rights) and Article 3(2) ARD (continued observation of collective agreement).

The Commission’s guidelines for dealing with complaints clearly cover horizontal cases of the misapplication of Community Law by the National Courts, and do not prevent individual cases from being dealt with under those guidelines. Yet the Commission has in the end refused to take any steps to rectify these very serious problems, choosing to selectively interpret the guidelines by referring us back to the National Court as the adequate legal framework – thereby abdicating its responsibilities to investigate and act under its own guidelines. By ignoring its responsibility to police the serious failure of the Directive to protect the collective agreements of workers, the Commission has failed to act independently and impartially. Nor has it fulfilled its critical role as guardian of the Treaty under Article 10 EC. The complaint we made to the Commission is a very significant one indeed. It did not concern simply a handful of employees. It concerned about 100,000 workers who were Lecturers in Colleges of Further and Higher Education in the UK. We specifically invited the Commission to consider whether, in permitting such a state of affairs to develop and to continue, the United Kingdom is complying with its obligations under the ARD and with the general duty of co-operation imposed upon it by Article 10 EC (ex Article 5).

The Commission has failed to address the serious issues outlined in our complaint and has not provided any information that challenges the basis of our complaint of maladministration. Instead the Commission has contented itself in summarising some (but not all) of the communications that have passed between itself and LEAF since 2001. Indeed, the fact that the Commission has not informed you properly of the full extent of the communications it has had with us, and has omitted to describe and note significant letters and meetings, is a further indication of an attempt by the Commission to give a one-sided, partial and therefore misleading account of its dealings with LEAF. What is certain is that the failure of the Commission to act independently and impartially has marked its dealings with us.

In the bundle of documents that you forwarded to me is the copy of the Director-General’s letter to the United Kingdom’s Permanent Representative to the European Union dated 23rd October 2002. The Director-General states in paragraph two of her letter, that the Commission’s services had written to us stating that the National Courts constitute the adequate legal framework to deal with the conflicts relating to the incorrect application of the Directive. However, as I have said above, the Commission’s own guidelines state that it [the Commission] must give priority to dealing with complaints that concern “horizontal cases of incorrect application”. The Director-General has clearly chosen to ignore the Commission’s own guideline, consistently referring us back to the National Courts and abstaining from any analysis or action that may lead to rectifying the misapplications, as is clearly set down in the Commission’s guidelines. We are entitled to expect the Commission to consider, and to provide a reasoned analysis of the misapplication under its guidelines for dealing with complaints.

The Commission’s failure to observe and act upon its own guidelines for dealing with complaints in our view constitutes a serious maladministration.

The above example is exacerbated by the fact that, as the guardian of the Treaty, under Article [10] EC the Commission has a duty to make certain that Member States take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community. The Commission must also ensure that Member States facilitate the achievement of the Community’s tasks and require them to abstain from any measure that could jeopardise the attainment of the objectives of the Treaty.

The above point was raised in our initial complaint to the Commission. A question is therefore raised as to what steps were or were not taken by the Commission, to ensure that the Member States obligations under that Article were upheld in regard to the legal force of collective agreements under the ARD.

Further evidence of the maladministration of our complaint is to be found in the abject failure of the Director-General to take any action to enforce the protections intended by the Acquired Rights Directive in the event of a transfer, subsequent to her letter of concern dated 23rd October 2002 and the Permanent Representative’s reply to her of the 29th November 2002. Nor did she follow up the very significant and obvious omissions in the United Kingdom’s reply, which I shall deal with later.

To sum up the aforementioned points, the United Kingdom authorities and the National Court made it patently clear that collective agreements had no protection under the Directive and that the contracts of Lecturers could be simply set aside following the transfer of employer. Nevertheless, the Commission chose to abstain from taking any steps to restore the protection the Directive purports to give to workers in the event of a transfer of employer. That in our view is a very serious maladministration of our complaint and a failure of the Commission to act as guardian of the Treaty.

The Commission’s guidelines for dealing with complaints, as established at 30th July 1996, state that the Commission must give the following priority to complaints.

1. 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.

We submit that the failure of the Acquired Rights Directive to protect the terms and conditions contained in the collective agreements of Lecturers, which formed the whole of their contract of employment owing to the express incorporation of those terms, fits exactly into guideline [1]. It also closely links with guideline [3]. I cannot envisage a more serious situation in which the interests of the workers concerned is left unprotected by the Member State when the “transgressed law” is intended to protect those interests, and where the Commission wilfully neglects its role as guardian of the Treaty and refuses to take any action to remedy the situation.

2. Horizontal cases of incorrect application, ‘in particular’ when these are detected on the basis of a series of specific complaints by individuals.

We submit that the misapplication of Community Law by the National Courts is a rightful matter for the Commission to deal with under guideline [2]. The Commission consistently sought to avoid taking any action on this aspect of our complaint by referring us back to the National Courts because the Commission did not deal with individual cases.

[a] The guideline does not exclude individual complaints. [b] The complaint we submitted to the Commission was based on thousands of individual complaints. At one point the Commission complained that it was receiving too many contacts from affected individuals.

3. Infringements that seriously harm the interests which the transgressed law is intended to protect.

I now wish to return to the letters exchanged between the Director-General and the United Kingdom authorities. I do not intend to rehearse the points raised in the Director-General’s letter to the Permanent Representative, as you will have full access to that communication. I merely wish to draw your attention to certain key points the Director-General makes.

She says at paragraph [3] of her letter: “There are, nevertheless, two points I would like to draw your attention to, which have not been dealt with by the EAT and could be problematic in terms of compliance with the requirements of the Directive”.

You will note first of all that the two points she refers to as being potentially problematic in terms of compliance with the requirements of the Directive, are her points not ours. Further, you will note at page [3] paragraph [5] of the Commission’s response to our complaint of maladministration, the Director-General’s remarks are said to only be a “summary of the points made in our complaint, to bring them to the attention to the UK authorities”.

The abject failure of the Director-General to take responsibility for the two points she says had not been dealt with by the EAT and what she says “could be problematic in terms of compliance with the requirements of the Directive”, constitutes a blatant attempt to extricate herself from the responsibility of exercising the authority of the Commission as guardian of the Treaty in defence of the citizen workers rights under Community Law. Instead of causing the Member State to fulfil its obligations under Article [10] EC, and to rectify the clear and obvious failures in the operation of the Directive to which she had personally referred in her letter to the Permanent Representative at [page [1] paragraph [3] of her letter dated 23rd October 2002], she opts to shirk her responsibility.

We consider the Director-General’s refusal to accept responsibility for her own words in her letter to the Permanent Representative to the European Union, to be a further significant example of the maladministration of our complaint. Her words and the manner in which they are couched are incapable of being construed in any other way than as being her own, yet her desire to excuse herself from ownership of those critically important lines constitutes an abdication of her responsibilities and duties. Her failure to own the questions she raises in paragraph [3] of her letter of 23rd October 2002, or to seek a full and proper response to the questions she raised about the United Kingdom’s compliance with the requirements of the Directive, in our view constitutes a serious abdication of the Commission’s duty to assess the merit of a complaint. Indeed, not to seek a full and proper response from the United Kingdom constitutes a further example of maladministration.

It must be obvious even to the eyes of the casual bystander, that the reply from the United Kingdom authorities not only raises critical questions about the proper operation of the Directive by the reference to the exclusion of collective agreements from the protection of the Directive, but fails completely to address very significant questions put to the authorities by the Director-General. Yet the Director-General chose not to pursue these very significant points that she herself had raised.

The Director-General asked the United Kingdom authorities in her letter of the 23rd October key questions about the effect of collective agreements. She states in paragraph [4] of her letter that Lecturers employment contracts incorporated the terms of a collective agreement known as the ‘Silver Book’; the incorporation of the terms of the collective agreement giving it legal force under United Kingdom law. Indeed, the terms of the collective agreement known as the Silver Book, as we have recorded elsewhere, represents the Lecturers’ pre-transfer employment contract – in its entirety. As has already been said, there are no further documents to identify a Lecturer’s contract of employment, other than a Letter of Appointment. The collective agreement and contract are therefore synonymous. It is clearly wrong to allow a situation to continue in which this group of workers have no protection at all following a transfer.

The reply from the United Kingdom authorities of 29th November 2002 states that there is no legal requirement on either the old employer or the new employer in a transfer to remain bound by the terms of the Silver Book. While this clearly contravenes Article [1] of the ARD, and in any event could not apply in circumstances where the collective agreement is incorporated into a Lecturers pre-transfer contract and constitutes the entirety of a Lecturers contract of employment, the Commission accepted the United Kingdom’s position without any further questions.

It is by any stretch of the imagination, a maladministration of the Commission not to have reinforced the fact to the United Kingdom authorities, that the collective agreement applicable in the case of the complainants had legal force under United Kingdom law, had not expired, and that no other collective agreement had entered into force or application. The Commission simply accepted the United Kingdom’s reply without contesting any of the points in that reply or asking the United Kingdom to reply to points [1] & [2] on page [2] of the Director-General’s letter.

The Director General had asked for the United Kingdom’s comments on why staff who chose to stay on the Silver Book collective agreement/contract had been denied pay increases since 1994 and had no possibility to progress in their career. The question raised an important point regarding the protections afforded by the Directive to ‘continue to enjoy the pre-transfer employment relationship’; which included the prospect of progressing one’s career, and was therefore a justified question. This was especially so in the context of the role of the Member State in a transfer effected by an Act of parliament, and the fact that the statutory corporations that were formed by the F&HE Act 1992, were emanations of the State.

The Commission received no reply to this question and to the best of our knowledge the Commission raised no follow up questions. Certainly, having raised the question in response to our complaint, no comments were relayed to us the claimant.

This is a further reason why we say there has been maladministration of our complaint. By remaining content to have important questions set aside by the Member State, which the Commission itself said could be “problematic” in terms of compliance with the requirements of the Directive, the Commission has not acted impartially.

The United Kingdom’s response to the points set out in the letter of the Director-General was evasive and circular. Indeed the UK’s letter of reply to the Commission completely avoided any commentary or explanation of the reasons for victimising staff who chose remain on their transferred terms and were denied pay increases, and the opportunity to progress in their careers whilst remaining on their transferred and collectively agreed terms and conditions.In particular, the Commission was made aware that the United Kingdom government had specified quite clearly that staff who remained on the pre-transfer terms must be treated less favourably than those who were persuaded to sign over. The Commission has access to those letters from ministers of Her Majesty’s government, but has chosen to ignore them, as did the National Courts. Another clear example of maladministration of our complaint.

The ability to continue to enjoy the pre-transfer employment relationship as one is entitled to do under the Directive, including the pre-transfer entitlement to progress on the basis of merit, was disregarded by the National Court which decided that 'employment relationship' should be given a restrictive National Law interpretation, even though the respondent body was an emanation of the State and the Applicants were entitled to have their case reviewed under Community Law. Indeed, the National Court was asked to refer questions to the ECJ regarding, among other things, establishing a Community Law meaning for ‘employment relationship. It refused to do so.

Neither the Commission nor the United Kingdom have commented any further on the failure of Colleges of Further and Higher Education [emanations of the State] to treat equally those staff who sought to uphold their public law rights. That in itself is a damming indictment of the Commission, which holds itself out as the ‘guardian of the Treaty’, and an abdication of its duty to properly analyse and comment upon the merit or otherwise of a complainants grounds for complaint, and if appropriate, to act on the complainants behalf to seek redress.

Further, in our letter to Commissioner Diamantopoulou dated the 14th May 2003, LEAF 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. The Commission, has responded to our complaint on the principal issue of incorrect transposition by substituting an Advocate General’s Opinion for a reasoned analysis of our complaint based upon the Case Law of the European Courts. That is unacceptable and in our view cannot be considered to constitute a reasoned and transparent analysis of our complaint and is therefore maladministration of our complaint.

In response to our complaint of maladministration, the Commission states on page [3] point [3] of its reply that it had not placed undue emphasis on any Advocate General’s Opinion, but that the reference was simply for reasons of clarity. We consider the unwillingness of the Commission to comment on the validity of the Judgements in Case C-65/01 [Commission v Italy] and Case C-165/82 [Commission v UK], and the substitution of an Advocate General’s Opinion as breathtaking maladministration.

A clear explanation is required as to why the Commission have chosen ignore our reference to these two important Judgements and favour a totally unrelated Opinion of an Advocate General. Article 249 (2)-(5) EC33 states that Recommendations and Opinions shall have no binding force and it raises questions as to why the Commission saw fit at all to include an irrelevant Opinion over established Case Law, if it were not but an effort to provide a “red herring”.

At this juncture, I wish to reiterate the points made in the European Commission’s National Report: The Regulation of Working Conditions in Member States of the European Union 1998 [Vol. 2]. At page 242 [column 2] of the Report, the effect of non-binding collective agreements on the application of EC law is considered. The Report refers to a 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. The Report states: “In Infringement proceedings in 1984, the UK Government argued that the non-binding nature of collective agreements removed them from the field of application of Article 4[b] of Directive 76/207EC. 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 Government’s 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.

The reference in the report to Infringement proceedings – Case 165/82 – clearly reinforces the fact that, for the effective operation of the Directive, collective agreements must be construed as legally binding on the transferee, contrary to the position laid down by the United Kingdom in its reply to the Director-General’s letter, and which went unchallenged by the Commission.

Further, the Report states: “In the United Kingdom, the national legislation transposing the Directive 77/187EC, the Transfer of Undertakings (Protection of Employment) Regulations, appears to preserve the non-enforceability of collective agreements as against the transferee of an undertaking”. The above statement 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 that is in conflict with that spirit and purpose.

The Report therefore recognises 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 to the Director-General, but the Commission has failed to take any action to rectify the problem or to comment on the validity of the cases concerned or the Report itself. The Commission has simply chosen to remain silent on the matter. The Commissions deliberate decision not to provide a reasoned analysis of the relevance of a case that is clearly directly in point, in our view constitutes maladministration by omission.

The terms and conditions of millions of workers in the UK are governed by collective agreements. The Commission’s failure to take action to ensure that the Directive it promulgated provides UK citizens with the intended protections is maladministration of considerable magnitude.

It is absolutely 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 the new employer would be required to do, given the UK’s analysis of the situation, is 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 employees.

The Commission’s acceptance of the position as laid down in the United Kingdom’s letter of response to the Director-General, constitutes a failure of the Commission as guardian of the Treaty to ensure the protections afforded by the Directive to workers in Member States are upheld under Article [10] EC - and by extension constitutes maladministration of our complaint.

The primary purpose of the Acquired Rights Directive is to protect the rights of employees’ in the event of a transfer of employer. In a situation such as I have described, which the UK authorities have now reinforced by letter, the employee could have his protection wiped out on the whim of a new employer. The employee’s Community Law right to continue to enjoy the pre-transfer employment relationship and his rights identified in a collective agreement, including the transfer of bargaining machinery and other employment related mechanisms and procedures, could, in the UK’s analysis be brought to an end in ‘one fell swoop’ following a transfer.

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.

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 UK’s failure to correctly transpose the Directive. Despite copious evidence to support our complaint, the Commission has categorically failed to protect the citizen worker, and instead has bent over backwards to ingratiate itself with the Member State. 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. The Commission has failed to apply its internal guidelines on enforcement and dealing with complaints brought under Article 169.

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 and Higher Education, no amendments were made to their contracts of employment after the transfer as they simply continued on their pre-transfer terms.

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.

It was held in the Judgement 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. Once again the significance of the collective agreement and its impact on contractual rights to pension benefits can be readily seen. The Commission’s failure on these matters and its unwillingness to challenge the United Kingdom authorities is once again brought into clear relief as maladministration of monstrous proportions.

With reference to the Opinion of the Advocate General Case C-4/01 in the Southbank University case, as reported to the Commission, 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 and 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. These entitlements, which should be protected by the ARD, concerned rights contained in collective agreements, and as a consequence of the incorporation of the collective agreement in the individual contracts of employees – the contracts themselves. The Commission’s failure to take any action on this matter is another major maladministration.

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]

Further, the Court of Justice held in Tellerup v Daddy’s 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].

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. Once again, the Commission has failed entirely to address this question or to follow up the reply it received on the matter from the United Kingdom authorities; a further serious maladministration of our second complaint to the Commission which has cost the transferred employee very dearly indeed in terms of his/her pension entitlements.

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 acted outrageously by refusing to acknowledge this point in the Lecturers case, and denied thousands of Lecturers the protections intended to be afforded by Community Law in the event of a transfer of employer.

Once again, the Commission failed to follow up the questions it had raised with the United Kingdom but to which it did not receive a reply. The Commission failed to ask critical further questions and no attempt, that we are aware of, was made to get a full and proper response from the UK authorities. Since this important matter, affecting the pension entitlement of thousands of workers was not followed through, the Commission is in our view culpable of serious maladministration.

You will note from the Commission's submission - reply from the Commission, page [1) that the Commission outlines what it claims are the communications between its services and LEAF. We have detailed evidence of much more discussion and of the Commission's broad agreement with our complaint, prior to its completely illogical and unexpected proposal to reject the complaint in a letter dated 22 August 2003 (Annex 12 of the Commission's submission).

In fact the Commission has omitted most of the key communications and responses between ourselves and them in their comments to you, which we can only interpret as an attempt to place its own one-sided and therefore biased view as the correct one. I believe this to be an attempt to persuade the Ombudsman to reject our complaint by accepting the Commission’s version of the events as true and complete, a claim we will demonstrate to be untrue.

The Commission's response mentions a meeting that took place between LEAF and the Commission's Services in September 2002. This meeting took place after much communication between LEAF and the Commission's Services. One element of our complaint is that the Commission failed to properly address the points raised by us, and at times failed to respond at all. I am attaching to this response, examples of communications sent to the Commission as far back as 2001, in which we repeatedly complain at the failure of the Commission to reply or even acknowledge our letters and calls.

This was a repeated failure by the Commission for the three years of our dealings with them, and we can cite many more examples of this, since we have kept clear records of our communications.

This caused us to adopt the habit of heading up most of our letters to read 'BY FAX, E-MAIL AND POST’ in order to prevent the Commission's Services from claiming that they had not received our communications. I enclose, for your interest one of several letters written by my National Officer in Greek to Anna Diamantopoulou, drawing her attention to our complaint. I apologise if the grammar of the letter is poor, but our object was to try to better communicate with the Commissioner. That is how seriously we took our responsibility to let the Commission know of our serious concerns at the problems with the Acquired Rights directive in the United Kingdom. We wanted to let the Commission know of our integrity and seriousness in this matter. This letter, like many others to her and her senior officers on aspects of our claim, was neither acknowledged nor responded to.

The attached letter written by me on 11 December 2001 noted our concern that the Commission had responded to our complaint of September 2001 by proposing to terminate the case. This had been communicated to a number of British Labour MEPs who had attended a meeting with the Commission's Services on 4 December 2001, to discuss our complaint.

This meeting had been arranged by the Commission's Services and the group of UK government MEPs following our request to these MEPs for assistance in pursuing our complaint. The meeting was arranged without our knowledge and agreement, and we were forbidden to attend the meeting, even though the subject was our complaint. We thought that this was wrong, since we fully understood what the nature of the complaint was. When we protested, the MEPs threatened to cancel the meeting. We have e-mail evidence of this fact. It has not been explained to us to this day why we were forbidden to take part in the meeting, but it has been suggested that the MEPs were acting on the advice of Neil Kinnock, who himself closely liaised with the UK authorities. Shortly after the meeting, I was informed by one of the MEPs secretaries that the Commission had informed the group of MEPs that the Commission proposed to take the complaint no further and to formally reject it. The letter of 11th December 2001 records our dismay and incredulity at this decision.

This letter, which is not mentioned by the Commission in its comments to you, evidences our opposition to this proposal, since the Commission could not have properly analysed the arguments, as we had not yet supplied the full file of evidence, nor developed the arguments.

We believe that the Ombudsman will be even more concerned that earlier than this I had received a communication from the Labour MEP Gary Titley in early October 2001, less than two weeks after the Complaint was sent to Mr.s Diamantopuolou, in which he informed me that the complaint was to be terminated by the Commission. This information, which alarmed us at the time, and which was given more substance following the meeting of 4 December 2001 which LEAF was not allowed to participate in, and which was subsequently confirmed by the Commission, confirms our view that the Commission had determined from the outset to reject a proper investigation into our complaint, and substitute a politically convenient form of reasoning for one based upon sound judgement grounded in European Law.

We ask you as Ombudsman to seriously consider how the Commission's Services could have proposed to terminate a case before they had given it any serious consideration, or received the full file of evidence?

If you compare this account and our evidence, which can be further supported and substantiated on this point, to that supplied to you by the Commission in its comments of 11TH of May 2004, you will see that the Commission makes no mention of either the meeting of 4 December 2001, or of correspondence from LEAF up to and after the meeting. It could not have been possible, either practically or logically, for the Commission to have properly considered our complaint by the time they let it be known that they intended to reject it, and you will see from the Commission's own statement to you that it formally registered the complaint on 16 October 2001. Clearly, the Commission had let it be known that they would reject the complaint even before it had been properly analysed.

As mentioned earlier, LEAF Officers met with the Commission's Services in September 2002, following the submission of considerable additional and supporting factual and legal evidence which we considered then (and still consider) to prove our claim that the UK Government has followed practices in relation to the issues we highlighted, which presented problems for the proper operation (that is, the proper legal operation) of the Acquired Rights Directive.

Although the Commission acknowledged that this meeting took place, it was one of three meetings we held with the Commission. We believe that the omission of what was said and agreed at the last two meetings is quite deliberate, and would have the effect, if not corrected, of possibly persuading the Ombudsman of a different dialogue to the one that actually took place. In fact, we met with the Commission's officers once before the meeting of 12 September 2002, when Mr. Flynn was the Commissioner, and once after the September 2002 meeting, in April 2003, by when Mrs. Diamantopoulou was the Commissioner. All of these meetings took place at the Commission's offices in Brussels, and we would urge that the Ombudsman consider carefully the accounts we have of these meetings, and the evidence we adduce to support the veracity of our accounts.

We asked for the meeting of September 2002 to be formal and for minutes to be taken. We have no evidence that the Commission acceded to this request. We asked for this because we had earlier submitted further concrete evidence to substantiate our complaints, and brought to the meeting further and detailed arguments pertaining to the application of community law in Member States, including EU Case Law which had been subject to detailed analysis by legal opinion.

It is important for an understanding of our complaint of maladministration that the Ombudsman understands that the meeting of 12 September ended in broad agreement on a number of fundamental questions. The letter sent by the Commission would make no sense to any observer without this understanding. It was said to us at the conclusion of the 12 September 2002 meeting that the Officers would need further legal advice and then clearance at the very top of the Directorate before any critical letter could be sent.

We were able to follow this process but only became aware of the letter after it was sent. No influence was brought by LEAF on the contents of the letter, and it is patently false of the Commission to try to explain that the letter represented the views of LEAF rather than the Commission, or that the letter merely brought matters to its attention.A reading of the letter will confirm that the Commission brought a number of specific concerns to the attention of the UK authorities. Indeed, the letter fairly accurately represented the Commission's Officer’s agreement on the apparent breach by the UK Authorities of the protection of EU Law in the areas concerned, which had prompted the complaint in the first place.

On a very mundane level, it can be observed that the letter was indeed signed by a senior official, the Director-General Odile Quinton. I did not sign the letter, and I was not consulted on its content prior to its despatch. Nevertheless, the Commission refused to accept ownership of it.

I had to ask for permission to see the letter of reply to the Director-General’s letter, and after some delay, I was sent a copy. The letter of course fails to answer or even comment on some of the questions posed, and no effort is made to make any kind of response which would satisfy the Commission, if it (the Commission) seriously intended to provide a definitive response to LEAF on issues it had finally agreed were valid. In a telephone conversation about this, an officer of the Commission commented to me if the matter had involved a smaller and less influential member state such as Portugal or Greece, it would have been much easier to proceed with an infringement proceedings (presumably since smaller countries have less political influence on the Commission). This conversation was relayed by e-mail to a number of MEP’s with whom we had contact at the time; Roy Perry and Elspeth Attwooll being but two.

While I understood the difficulties of the Officer concerned, his comments once again underlined our concerns that the Commission was encountering political difficulties and political resistance, which the Ombudsman will agree is antithetical to an impartial and independent stance. Nevertheless, the Commission promised to seek further clarification and provide a full response.

My Officers and I met with the Commission's services in Brussels once again on the 1st of April 2003. The Commission was represented by a number of individuals. Snr. Gonzalez Dorrego, who had led the previous meeting, and with whom we had reached broad agreement culminating in the despatch of a letter from the Commission was however absent. In his place was a Mr. Feenstra, who introduced himself as the Head of the Infringements Committee of the Commission.

This meeting was not minuted as far as we know, and the tone adopted by Mr. Feenstra was extremely hostile and aggressive from the start. His hostility, which moved over into outright abuse at times, was perplexing at the time and caused most of those in the room to feel a sense of embarrassment. The reason for this hostility, I would suggest, was that the Commission had made a decision sometime before the meeting not to question the UK Authorities further, and instead to terminate LEAF's case. Mr. Feenstra's task it seems was to provoke us into anger or to intimidate us, and therefore be able to justify closing the meeting.

When I raised the matter of the serious questions raised by Odile Quinton in her letter of 23 October 2002, he dismissed the points, claiming that the letter was from LEAF; that is to claim the points were not made from the Commission, but from LEAF n a patently absurd claim, repeated by the Commission to you in its Comments of 11th May 2004.

When I asked him to read the letter, and particularly to consider the question of those Lecturers whose pay had remained frozen since September 1993 (an element of our complaint, endorsed by Odile Quinton in her letter), Mr. Feenstra refused to read the letter and said that the point was irrelevant.

It was clear to us at this meeting that Mr. Feenstra had attended the meeting for a reason; that is, the Commission had for political reasons decided that LEAF's complaint must fail, and therefore the issues upon which the Commission and LEAF had agreed were to be left unchallenged. We commented on this, and complained that the Commission was attempting to make decisions based on political expediency rather than on legal and constitutional principles. We noted that he had failed to address our claims seriously, and had continued to ask for 'concrete details' which when supplied, were dismissed out of hand without any reasoned explanation. We asked if the Commission proposed to pursue the UK authorities for a proper response to the two questions asked. Mr. Feenstra was emphatic that the issue would be left to lie.

Towards the end of this meeting, which was brought to a close by Mr. Feenstra, who claimed to have another appointment, my colleague asked what advice the Commission could offer to Lecturers who had taken advantage of the Directive to protect their terms and conditions, and who had found that the same Directive had been used by the UK Authorities to justify freezing their pay, thus producing the opposite effect to that envisaged by the Directive, Mr. Feenstra answered that he would advise them that 'they should have voted differently in the 1980's.

It was difficult to believe that this answer was coming from a senior official in response to a very serious question, and so we asked the question again, adding that the question was a serious one and required a serious reply. Mr. Feenstra repeated the same sarcastic answer. Again, we invite the Ombudsman to conclude that this is evidence of a Commission serving political rather than legal or constitutional interests. All in the room will provide proof that this and the other remarks were made.

If the Ombudsman has difficulty verifying LEAF's account of this, I would advise that he contact the office of Elspeth Attwooll MEP, who also attended the meeting and will no doubt confirm the truth of the account.

The fact that the Commission subsequently has confirmed its decision to terminate our case is of no surprise. The Commission, regrettably, has been unwilling or unable to act independently or impartially on LEAF's case, and has resorted to straightforward or apodictic rejection of the arguments with which it has been confronted, to the advantage of the UK Authorities, which by their own admission sought to avoid the scope and purpose of the Directive, and to the serious and permanent disadvantage of Lecturers, who are also EU citizens the Directive was supposed to protect.

We invite the Ombudsman to consider carefully this response, which can be elaborated upon if requested. It is quite clear to us from the Commission's response that the Commission has:

Failed to address properly the claims in LEAF's complaint made to the Ombudsman

Provided its own one sided, tendential and, therefore, inaccurate summary of its processing of the complaint

Omitted to describe to you properly or at all critical meetings, correspondence and decisions

Placed undue emphasis on opinions and arguments which are not grounded in EU Law to the detriment of arguments supplied by LEAF which are grounded in EU Law

Chosen to operate in a manner which has clearly disadvantaged a section of UK employees represented by LEAF

Called into question the integrity and independence of the Commission itself by suggesting that the Director General allowed herself to represent LEAF's views to the UK authorities rather than the authoritative view of the Commission itself

Failed to follow up issues it has raised with the UK Authorities, thus setting a wrong precedent of compliance with political pressure

Allowed itself to represent the interests of the UK authorities as opposed to EU citizens who have sought help in rescuing their EU Law rights which were promulgated by the Commission (the Directive is to protect workers not governments)

Brought into serious question the ability of the Commission to effectively ensure compliance with EU Directives, to the detriment of the EU itself, and the confidence that citizens may place in its institutions

Made more likely the prospect of UK citizens turning away from the EU and relying instead solely on UK based institutions to regulate their lives and working conditions, to the detriment of the whole EU.

I invite the Ombudsman to pursue these matters vigourously, and I am happy to supply further information or clarification as required.

 

David Evans

General Secretary, LEAF

30th July 2004

 

 

Further supporting documentation referred to:

 

24 June 2003

Dear Commissioner Diamantopoulou,

I refer to the reply you gave to my Oral Question on the 3rd of June 2003 for which I was very grateful.

Your reply commented on the significance of a judgement of the European Court concerning a collective agreement reached within the National Health Service of the United Kingdom, but did not provide any further information on the case.

I would therefore be grateful if you could let me know:-

1. The names of the parties to the proceedings

2. The Case Number

3. The date on which the judgement was handed down

4. The paragraph and sentence concerned

You also say in your reply that Article 3[2] does not oblige a Member State to change the legal status of collective agreements. Your remark seems inconsistent with the recent case of the Commission v Italy [Case C-65/01], and the Commission v United Kingdom [Case C-165/82] and appears to accept my proposition that the Directive has not been applied correctly.

I look forward to receiving the information I have requested, and, shall be interested to learn of your view, as to the significance of the cases cited above, on the Commission’s legal analysis that the Directive has been correctly transposed.

Yours sincerely,

Roy Perry MEP

 

 

Further supporting documentation referred to:

 

Commissioner Anna Diamantopoulou

Employment and Social Affairs

European Commission

Rue de la Loi, 200

B-1049 Brussels

BY FAX

BY POST

BY E-MAIL

15th January 2002

Dear Commissioner,

Re: Complaint Reference Number 2001/5005, SG [2001] A/11176

I wrote to you in regard of the above Complaint on the 11th and 20th December 2001. In my letter of the 20th December I remarked that, regardless of having sent my communication of the 11th to you by airmail, fax and e-mail, you had failed to even acknowledge receipt of my letter. Unfortunately the problem does not end there. I wrote a letter to Mr. Dennis Batta at the office of the Secretary General on the 2nd November. The letter explained that the file of evidence was incomplete and that we would be making the full file of evidence available to the Commission at the earliest opportunity. Simultaneously, I drew Mr. Batta’s attention to the fact that we did not want to take advantage of the confidentiality provision. No acknowledgement was received. Once again the letter was airmailed, faxed and e-mailed to the relevant party, as is our practice when circumstances allow and the importance of the information dictates it.

In order to ensure this critical communication had been received, I had to telephone the Department to get an officer to orally confirm that it had been received. I was informed that Mr. Batta’s department did not reply to communications it received, but simply passed the communications on to the relevant area. The officer made it clear to me that it was the responsibility of the person charged with the duty of dealing with the complaint to reply to mails passed to them. Needless to say, no reply or acknowledgement was ever forthcoming from the end receiver.

Following my request for information in connection with the outcome of your meeting with Stephen Hughes and his colleagues on the 4th December, I was informed by e-mail on the 6th December that you had said no action could be taken by the Commission on our complaint. The e-mail from Stephen Hughes assistant, Mr. Michael Contes also recorded that you would be asked to provide a detailed justification for your view. To date, neither LEAF nor its legal representatives have been directly informed of your view and/or the justification that underpinned it. We find this to be astonishing. Moreover, your actions/omissions appear to be in contravention of the Commission’s own procedures. Paragraph 2 of the Commission’s letter to our lawyers dated 16th October 2001 states, “You will be informed direct of the findings and of the course of any infringement procedure opened”.

We have now received a copy of your letter to Mr. Roy Perry dated 18th December 2001. This most recent communication confirms again that our complaint has been registered, and adds that the Commission would need to be “convinced” that the United Kingdom had failed to fulfil its obligations under Community Law before it could proceed. The contents of your letter to Mr. Perry appear to be logically incompatible with the information we had been given by those MEPs who attended a meeting with you on the 4th December 2001.

Our problem with the many “indirect communications” we have received from the Commission concerning our complaint is that they appear to contradict one another. That is why we have repeatedly written to you asking for a meeting and a dialogue with your officials. My national officer, David Robinson, wrote to you on two separate occasions requesting meetings with you. Indeed, for your convenience, his letters were translated into Greek. Once again, you failed to even acknowledge receipt of these.

This organisation has clear and convincing evidence that the United Kingdom Government prepared a strategy, and executed a plan, to worsen Lecturers’ terms and conditions of employment - contrary to the protection afforded by the Acquired Rights Directive. That this protection was disabled by means of national legislation, in the Government’s full knowledge of the relevance of the ARD to the transfer and the protection it afforded to the categories of staff involved, is a very serious matter indeed.

Our central concern is to be given the opportunity of ensuring that the Commission receives a full range of evidence and background facts that will provide the “convincing evidence” the Commission is seeking. Our concerns are exacerbated by a complete lack of direct communication from the Commission on the matters we have raised.

As you may expect, recent events are leading us to question whether the Commission really has the “political will” to ensure that Community Law is upheld. If it chooses to sideline our complaint when the Member State is clearly identified as having taken steps to circumvent its Community Law obligations, the Commission will by default allow a massive injustice to pass without comment or remedy. To do so will in our view render the ARD useless in future government created statutory corporations involving the transfer of public services. It cannot for example be right that, by taking advantage of the protection of Community Law, the employee is disadvantaged by the application of an eight year long pay freeze for refusing to accept the imposition of new and much worse terms.

Your urgent response is required, and I hope you will feel able to do so on this occasion.

Yours sincerely,

David F. Evans

General-Secretary [LEAF]

 

 

Further supporting documentation referred to:

 

Commissioner Anna Diamantopoulou

Employment and Social Affairs

European Commission

Rue de la Loi, 200

B-1049 Brussels

BY FAX

BY POST

BY E-MAIL

11th December 2001

 

Dear Commissioner.

Re: Complaint Reference Number 2001/5005, SG [2001] A/11176

I believe that a group of Members of the European Parliament led by Stephen Hughes met with you on the 4th December 2001 to discuss our Formal Complaint against the United Kingdom. Mr. Hughes office informed me by e-mail on the 6th December that the Commission had decided not to take any further action in regard of the above Complaint.

So far, we have not had a formal response from the Commission in regard of its decision, nor have we been informed of the reasoning that led to it. However, even in the absence of such reasoning, we fail to see how such a decision could have been reached when the Commission is not in full possession of the facts.

On the second of November, I wrote to Mr. Dennis Batta at the Secretariat-General, Unit SG-A-2, in the following terms: -

“In line with the explanation of proceedings for non-compliance with Community Law, we want to make it clear to the Commission that we Do Not wish our complaint to be treated as confidential. Further, we are aware that the complaint file needs to be complete and accurate. The documents relating to our complaint, currently in the possession of the Commission, serve only to trace through the factual background to the transfer. We are in the process of preparing and sending to the Commission a complete and detailed complaint file relating to all those events, pre-transfer and post-transfer, which we believe clearly show that the United Kingdom removed Further Education Colleges from Local Authority control by way of an Act of Parliament, with the deliberate intention of circumventing Community Law. In order that we can assist the officer responsible for examining our complaint to grasp the complexities of the transfer, I would be grateful if you could let me know the name of the officer responsible and the means of making contact with him/her”.

To ensure that the documents safely reached the Commission, I had intended to bring these to Brussels by hand, and had delayed doing so on the ground that I expected to attend a meeting with you once Mr. Hughes had managed to make arrangements. In fact, following my prompting, Mr. Hughes informed me by e-mail late on the afternoon of Monday the 3rd December that a meeting with you was to take place on Tuesday the 4th. Further, I was told that you had made it clear that my attendance at the meeting would not be accepted.

Among that mountain of documentary evidence is the following; which is drawn from the archive records of the activities of Committee [F] of the House of Lords - Amendments to the F&HE Bill - [12 December 1991] - two years before colleges were in fact incorporated!

[Speaking for the Government] - Lord Cavendish of Furness: “The purpose of Clause 26 of the [F&HE Bill] is to transfer contracts of employment. It is right that staff transferring to the new corporations should have such contracts safeguarded, as is set out in the clause. It is entirely another matter to extend such a principle to any collective agreement which may have been entered into by a previous employer. That might significantly constrain the new corporations’ freedoms to manage their own affairs in an efficient and cost effective manner”…[..]…”In other words, these institutions must be allowed to start with a clean sheet with respect to collective agreements and not be hidebound or constrained by the policy or practice of their predecessors”.

This is only one of a string of documents that clearly show the Member State’s intention, two years before the event, - to wreck collective agreements in the sector. Indeed the Member State persisted in its action against Lecturers’ even after the National Association of Teachers’ in Further & Higher Education had successfully brought a Judicial Review on the matter and an Order had been made by the High Court.

In your letters of response to Members of the Parliament who had written to you in support of the Complaint, you expressly stated that your services - “would undertake a detailed examination of the documents in this matter”.

How is it possible for your services to have undertaken a detailed examination of the documents when your services were advised that the file was presently incomplete?

I look forward to your response.

Yours truly,

David F. Evans

General Secretary [LEAF}

 

 

 

Further supporting documentation referred to:

 

E-Mail

November 2001

Dear Mr. Titley,

I understand that you met with David Barnes and Supnesh Morris on 16th November 2001 and that LEAF’s complaint to the European Commission was discussed.

David and Supnesh, who are members of LEAF, reported to me that you had told them the noises coming from the Commission were that our complaint was a national and not an EU matter and that meetings with the Commissioner on the matter had been cancelled.

We found your comments to our members surprising, given the fact that our complaint was now formally registered with the Secretariat-General. Further, that the Procedures for Non-Compliance with Community Law, which accompanied the letter from the Secretariat-General, advises that we instigate national proceedings for financial redress in parallel with the complaint being investigated by the Commission. This step will involve us in incurring significant legal costs as it will involve the preparation of a High Court action, and is a matter our lawyers are presently looking into.

I have received an e-mail communication from Stephen Hughes, who has informed me that, as yet, he has had no formal response from the Commissioner. Insofar as your reference to the cancellation of meetings goes, he has told me that he has had difficulties trying to make arrangements and that such arrangements are never easy to make. I have no doubt that is the case.

However, if you have evidence that, regardless of the formal registration of our complaint, the Commission does not propose to take the complaint seriously, we would like to know about it.

The complaint we have made is of a very serious nature and we believe involves the deliberate circumvention of Community Law by the UK. This legal sleight of hand by the former Tory government, has had a massive and very damaging impact upon the lives of thousands of Lecturers employed in the Further Education sector since 1993.

The Formal Complaint was drafted by Dr Eleanor Sharpston QC, who is a specialist in European law and was leading counsel for the Applicants in the national case against Havering College of F&HE. The claims made in the complaint are backed by our solicitors, who are specialists in employment law.

If you have not had an opportunity to have read the Formal Complaint in full or indeed, at all, the paragraph below, which is drawn from the Formal Complaint, will clearly indicate the gravity of the issues involved. I am sure that you will agree that it is highly unlikely that leading counsel would make such a claim in the absence of irrefutable evidence to back that claim.

“Considerable evidence exists - and was placed before the National Court - to demonstrate that the Further and Higher Education Act 1992 (i.e. the law transferring the Colleges out of state control to the new corporations) and its subsequent application were specifically designed to circumvent the existing collective agreements and the rights and protection that workers derived thereunder. We annex to this letter a selection of that documentary material. We strongly maintain that this is, indeed, a remarkable instance of an Act of Parliament being used deliberately and intentionally so as to 'break' the protection conferred by the ARD”.

I look forward to hearing from you in regard of the substance of the comments you made to our members David Barnes and Supnesh Morris.

David Evans

 

 

 

Further supporting documentation referred to:

 

E-Mail

November 2001

Dear Mr. Titley,

Thank you for your e-mail.

I am sorry that you considered my previous e-mail to you as aggressive, it was certainly not intended to be construed in that way. May I further apologise for an error in my understanding with regard to Supnesh Morris, whom I had thought was in attendance with David Barnes at your meeting with him on the 16th November.

You say that in your response, “As to the rest of your e-mail, I cannot see what purpose it fulfils”.

My purpose Mr. Titley was to appraise you of the gravity of our complaint, and further, to acquaint you with the fact that we are currently considering commencing High Court action in parallel with the Commission’s analysis of our complaint; as is recommended in the Commission’s own Procedures for Non-Compliance to Community Law.

If you have evidence that the Commission does not propose to deal with the Complaint, or that the Commission has a perspective/agenda in regard of this matter that is different to that formally expressed to our lawyers, we would clearly like to know. Apart from the many other sound reasons why we would like you to confirm or deny your comment to Mr. Barnes, your answer could affect our intention to instigate court action in the United Kingdom and perhaps save us from wasting costs on an action in the National Courts.

So far you have failed to comment on your remark to Mr. David Barnes; that you had learned that the Commission had suggested our complaint was not a matter the EU should be dealing with.

I still await your response in regard of the substance of your comments to our member on the 16th November, and hope you will feel able to do so for the reasons I have given.

David Evans

 

 

 

Further supporting documentation referred to:

BY FAX, E-MAIL & POST

10 July 2002

Dear Senor Dorrego,

Re: Your Letter Reference (DG EMPL/3/RGD/FP/op 02/D/43588)

Thank you for your response of 7th July 2002 to our earlier request for a meeting with your services in Brussels, aimed at explaining and clarifying our two complaints against the United Kingdom. I believe that the 11th or 12th September could be suitable dates, but would like first to ask a small number of MEPs who have expressed an interest in our complaints if the dates you have given enable them to join us at our meeting. I will respond with a definite proposal for a date very soon.

With regard to your assertion that two hours is an adequate length of time to deal with the matters at issue, I am afraid that I cannot agree with this. We do understand that the purpose of a meeting with the Commission's services is to explain and clarify, so your concern about the inappropriateness of 'bilateral discussions' can be safely set aside. Our purpose in seeking to hold the meeting is simply to explain our arguments and claims. It is for the United Kingdom Government to explain its arguments to you separately. Presumably your Commission's services are charged with analysing the information.

On the latter point, our complaints were submitted to the Commission on the express condition that they were not to be treated as confidential. Our purpose in doing so was to ensure that we had a right of access to all communications on the complaints that took place between the Commission and the United Kingdom. There is of course no doubt that communications in regard of our complaint have been exchanged between the Commission and the United Kingdom, and we wish to have complete and unfettered access to these. Perhaps you can arrange for us to receive these communications ahead of our meeting.

Further, we recognise that it is highly probable that bilateral discussions have taken place between the Commission and the United Kingdom, and in circumstances that have not been truncated by the application of a two-hour guillotine.

In order for us to be able to adequately present our case, which involves two separate, but related complaints, a day needs to be set aside. It was very apparent to us from your response to complaint 2001/5005, which you described as representing the Commission's 'detailed position' that the complaint had not been fully (or at all) understood by your services. It is, of course, possible that the complaint was not studied in any detail whatsoever prior to your decision.

You will recall that we notified you that a Labour MEP, Gary Titley, had inadvertently let it be known shortly after the complaint had been submitted in September 2001, that a decision had been reached to reject the complaint.

The reasons he gave, which were communicated to us only a short time after the complaint had been acknowledged by the Commission, were accurately represented in your decision some months later. When we submitted a request for a meeting in late 2001 with your services, Stephen Hughes MEP informed me that the Commission had forbidden us to attend the meeting arranged for 4th December 2001; a meeting we had requested.

Furthermore, with regard to the first complaint, you may or may not be aware that following receipt of your decision, and in accordance with the offer at the end of the letter, we submitted further detailed information, which ran to six typed pages. No response has ever been forthcoming from your services.

I have to inform you that we are not content with the manner in which our complaint has been handled by your services. On almost every count the Commission has failed to adhere to its own code of practice. In the event that we are prevented from gaining reasonable access to the Commission's services, it would be our intention to raise this matter as a formal complaint with the European Ombudsman.I therefore respectfully ask that our request for a reasonable amount of time, to explain our arguments, which are complex but which will clearly add to the validity of the complaint, be granted.

You are forewarned that, following the judgement against the United Kingdom in [Wilson & the National Union of Journalists, Palmer, With & the National Union of Rail, Maritime & Transport Workers, Dollar & Others v. The United Kingdom – ECHOER 2nd July 2002, on a matter closely related to our first complaint, a further (third) complaint will be lodged with the Commission very soon.

Could you please send me by return a copy of the document referred to in your letter (Do Com (2000) 141final).

I look forward to your response.

Yours sincerely,

David Evans

 

 

 

Further supporting documentation referred to:

 

BY FAX, POST & E-MAIL

10th January 2003

Dear Sirs,

UNITED KINGDOM’S RESPONSE TO COMMISSION’S LETTER REGARDING LEAF’S COMPLAINT

We are aware that the United Kingdom has sent the Commission a response to its letter, concerning our formal complaint on behalf of Lecturers in Further Education establishments. We look forward to receiving a copy of the letter that the Commission has received from the United Kingdom authorities, as was formally requested some time ago.

In the interim, we would like to revisit two areas of concern with the ARD regime as it currently exists, or is currently applied by the National Courts. These points were raised in our complaint to the Commission submitted through our solicitors A.J. Hows & Partners.

1) It is too easy for National Courts to avoid the effects of the ARD by applying too strict an approach as to whether the transfer was the sole cause of the change in contract.

2) In the United Kingdom the non-binding nature of collective agreements renders entirely ineffective all those aspects of the ARD that relate to collective agreements, even where such agreements are given legal force through their incorporation in individual contracts of employment.

Indeed, our lawyers specifically invited the Commission to consider whether, in permitting such a state of affairs to develop and to continue, the United Kingdom is complying with its obligations under the ARD and with the general duty of co-operation imposed upon it by Article 10 EC (ex Article 5).

In relation to the Commission’s letter to the United Kingdom regarding the freezing of pay and career prospects, I now wish to draw your attention to the question of whether or not there was a causal link between the transfer and those specific post-transfer events.

In this connection, your attention is drawn to the fact that a policy to freeze the pay, career prospects, and, consequently, the pension entitlements of staff, has operated within the Further Education sector, post-transfer, for nine years. The policy, with extremely limited variations, is national, and is uniquely directed at those staff who sought the protection of Community Law. Two clear points emerge from these facts.

1. The action taken against the staff is a serious and we believe unlawful form of discrimination, as it is consequent upon the determination of employees to uphold their rights under Community Law.

2. The action taken against staff is notorious, the policy being now in its ninth year of operation. In our view therefore, the United Kingdom authorities cannot possibly succeed with the defence that the action taken against these staff is not connected with the transfer.

In relation to that aspect of our complaint, concerning the entitlement of staff to their pension as accrued in the event of their redundancy, we would like to make the following observations. It is clear that the entitlement to which we refer is enshrined in a collective agreement known colloquially as the Silver Book. It is also clear that the National Courts have adhered to the English law position that, collective agreements are presumed not to be legally enforceable. The consequence of adopting the National Law position, in preference to meeting the obligations imposed by the Directive upon the Member State, is to render completely ineffective all of those aspects of the Acquired Rights Directive that relate to collective agreements.

It is worth recalling that the National Law position on collective agreements went right to the heart of the Employment Appeal Tribunal proceedings. Indeed, our counsel requested a Reference to the European Court of Justice on the matter, but was blankly refused. We believe the Employment Appeal Tribunal committed an error of law, in that in the event of a transfer, collective agreements must be construed to be legally binding.

We refer you to Case 165/82 [Commission v the United Kingdom of Great Britain and Northern Ireland].

The case concerned the failure of a State to fulfil its obligations regarding equal treatment for men and women and dealt with the effect of non-binding collective agreements on the operation of the Equal Treatment Directive.

We believe the case supports our view that, in the event of a relevant transfer, collective agreements must be construed as legally binding by the National Courts. If this is not made clear from Case 165/82, we ask the Commission to refer the question to the European Court of Justice for a clear answer.

Below, we reproduce some relevant sections from Case 165/82

9] The United Kingdom’s argument to the effect that the non-binding character of collective agreements removes them from the field of application of the Directive, cannot be accepted; even if account is taken of the United Kingdom’s observation that individual contracts of employment entered into within the framework of a collective agreement are rendered void by Section 77 of the 1975 Act.

11] The Directive thus covers all collective agreements without distinction as to the nature of the legal effects that they do or do not produce. The reason for that generality lies in the fact that, even if they are not legally binding as between the parties who sign them or with regard to the employment relationships which they govern, collective agreements nevertheless have important de facto consequences for the employment relationships to which they refer, particularly in so far as they determine the rights of workers, and in the interests of industrial harmony give undertakings, satisfy or need not satisfy.

The need to ensure that the Directive is completely effective therefore requires that any clauses in such agreements, which are incompatible with the obligations imposed by the Directive upon the Member State, may be rendered inoperative, eliminated or amended by appropriate means.

With reference to our complaint that staff employed on contracts governed by the Silver Book collective agreement have been denied their entitlement to receive their pension as accrued if made redundant, we rigourously argue that the United Kingdom cannot claim that the relevant clause is invalid on the ground that collective agreements are presumed not to be legally binding under English law, and refer to the above case in support of our view.

We look forward to receiving the United Kingdom’s response to the Commission’s letter and to learning of the Commission’s observations on the defence that has been offered. We hope that our observations will be of help to you and trust that there will not be a prolonged delay in sending to us the copy of the letter, relying on the United Kingdom’s espoused position of “open government”.

Yours faithfully,

David F. Evans

 

 

Further supporting documentation referred to:

 

E-mail

June 2002

Dear Mr. Periera,

On the 4th June 2002 the ECJ handed down its judgement in case C-164/00. The judgement is entirely consistent with the Advocate General’s Opinion of 13th December 2001. Moreover, it upholds our contention that the United Kingdom, by way of the implementation of a statutory instrument, deliberately and intentionally circumvented Community Law in regard of Further Education Lecturers’ pre-transfer contractual entitlement to an early retirement pension and lump sum in the event of redundancy. Indeed our complaint against the United Kingdom is bolstered by the United Kingdom’s support for Mrs. Beckmann’s position on the matter of her pension rights.

I am aware from our past communications that your services will need time to assimilate the Judgement of the Court and that a meeting on the conjoined matters raised in the two complaints formally registered with the Commission, is unlikely to take place before September 2002. I would therefore like you to now give serious consideration to agreeing a date at which these matters can be fully and meaningfully discussed.

In order for the complaints to be properly addressed, full day will needed for the meeting. We have additional important documentary evidence to present, which we have been prevented from presenting in the past but which will effectively and critically inform the Commission’s decision-making capacity in regard of first complaint. We will then require time to discuss the implications of the Judgement of the Court in Beckmann in regard of our second complaint. Please let me know, at your earliest convenience, what dates will be available for a meeting. I am hopeful that on this occasion we will be able to agree a date that is also suitable to Roy Perry, Elspeth Attwooll, and Graham Watson, whom we would like to be in attendance.

In order that the Commission’s services are able to intelligently respond to the points we intend to raise at the meeting, I will set out in the form of a letter those key areas