Ombudsman Ewropew
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Strasbourg, 7 March 2002
Mr Pat CoxPresidentEuropean ParliamentRue WiertzB - 1040 Brussels
Mr President,
I have recently received the text of the draft Decisions concerning the establishment, organisation and functioning of a European Recruitment Office. To my surprise and dismay, they include a provision that would allow the Management Board of the Office to decide to impose age limits(1).
Article 6 (2) of the Treaty on European Union states that the Union shall respect fundamental rights as general principles of Community law. On 7 December 2000, the Presidents of the European Parliament, Council and Commission proclaimed the Charter of Fundamental Rights of the European Union(2). This action taken in the name of the highest authorities of the European Union entitles citizens to believe that the fundamental rights that the Union promises to respect, in the above-mentioned Article 6 (2), are those set forth in the Charter.
The Presidency conclusions of the Nice European Council welcomed the proclamation of the Charter, noting that it combines in a single text the civil, political, economic, social and societal rights hitherto laid down in a variety of international, European or national sources(3).
The then President of the European Parliament, Mme Nicole Fontaine, stated:
"A signature represents a commitment (...). Let all citizens of the Union understand that from now on (...) the Charter will be (...) the law of the Assembly. It will henceforth be the point of reference for all acts of the Parliament which have a direct or indirect bearing on the lives of citizens throughout the Union."
The President of the Commission, Mr Romano Prodi, stated:
"In the eyes of the European Commission, by proclaiming the Charter of Fundamental Rights, the European Union institutions have committed themselves to respecting the Charter in everything they do and in every policy they promote (...). The citizens of Europe can rely on the Commission to ensure that the Charter will be respected (...)."
In a communication to Commission staff in March 2001 concerning the proclamation of the Charter, Mr Prodi and the responsible Commissioner Mr Vitorino, stated:
"The Commission, like the other institutions, must look to the practical implications of this historic event and make compliance with the rights contained in the Charter the touchstone for its action.This must be an overriding requirement in the Commission's day-to-day business, both in relations with the general public and with those to whom our decisions are addressed and in our internal rules and procedures."(4)
"The Commission, like the other institutions, must look to the practical implications of this historic event and make compliance with the rights contained in the Charter the touchstone for its action.
This must be an overriding requirement in the Commission's day-to-day business, both in relations with the general public and with those to whom our decisions are addressed and in our internal rules and procedures."(4)
These statements gave citizens reason to feel confident that the Charter will be properly followed by the institutions whose Presidents signed it.
The European Ombudsman has taken a number of initiatives to promote the Charter and assist in the task of ensuring that the European Union institutions respect the Charter in everything they do. I am disappointed that the responses have mostly been rather lukewarm and uninterested. My main concern, however, is that certain institutions and bodies are openly negative towards the Charter as regards the use of age limits in recruitment.
Article 13 of the EC Treaty, added by the Treaty of Amsterdam, empowers the Council to take appropriate action to combat discrimination based on age, amongst other grounds. The Charter of Fundamental Rights goes further. Its Article 21 (1) directly prohibits:
"Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation"(emphasis added).
Article 21 of the Charter is the first provision addressed, amongst others, to the Union institutions and bodies to mention age as a prohibited ground of discrimination. Citizens therefore have the right to expect the Union institutions and bodies to end the traditional practice of imposing age limits on recruitment, unless there is an objective justification and a legal basis for such limits.
An own-initiative inquiry by the Ombudsman has shown that more modern bodies such as the European Central Bank, Europol and most of the executive agencies have never used age limits. Perhaps this is because they never formed part of the old-fashioned traditional administrative culture, which is proving so resistant to change.
It seems that even supporters of age discrimination recognise that age limits have no legal basis at present, since the Commission's proposal for amendment of the Staff Regulations includes, for the first time, a provision to authorise exceptionally, for recruitment to the European civil service, a discriminatory policy based on age. This draft provision seems to be designed to give EU institutions and bodies carte blanche to do what ever they like, by providing that the use of age limits can never be discriminatory.
Other than discriminatory remarks against older people, the reasons that have been given for continued use of age limits mostly consist of economic arguments. Such arguments cannot justify discrimination whether based on race, gender, age or any other prohibited ground(5). There have also been references to the staff unions, but I do not believe that respect for fundamental rights can legitimately be made conditional on negotiations with staff representatives. Extracts from a court judgement in 1972 have also been cited. Such reliance on remarks made 30 years ago is not only an obstacle to a modern and service-minded administration, it also shows a disturbing failure to understand the development of Community law on fundamental rights.
The institutions that have never used age limits seem to have well functioning administrations, with motivated staff. Many of them have expressed admiration for the experience, wisdom and stability that older people have brought to their working environment.
I am sorry to have to inform you, Mr President, that the administration of the Institution that you preside still uses age limits. Your Institution is thereby setting an example to employers throughout the EU and the applicant States that people over 45 (the most frequently used age limit) can legally be discriminated against and banned from the labour market, thus not respecting the Charter of Fundamental Rights.
Age limits also tend to disadvantage women who wish to begin or resume their careers after bringing up a family.
Is this the right message, the human message, that the European Union should give to its labour market?
High officials have defended the current practice to me by saying that the Charter of Nice is not binding on anyone, but merely a political declaration. This seems to imply that European citizens should understand that even the most solemn promises made by politicians are not intended to be taken seriously. To me, this attitude indicates contempt for the democratic process.
In my view, there is a vital principle at stake here. At Nice in December 2000, during the French Presidency, an important commitment was made to European citizens. It must be respected and put into practice by those that have the power to do so. If they do not deliver, this will have a corrosive effect on the already poor relations between the European Union and its citizens.
The European Recruitment Office can only be established if you and I, together with the presidents of the other Institutions and bodies involved, first sign the necessary decision.
For the reasons set out above, I cannot agree to sign any decision that does not make clear that the European Recruitment Office must not discriminate on the grounds, including age, that are prohibited by the Charter of Fundamental Rights of the European Union, solemnly proclaimed in Nice in December 2000.
I therefore ask you, Mr President, to take measures to achieve the following:
It is in your power to achieve this. I do hope that you will use this power to turn the rhetoric of fundamental rights into a living reality for the European citizens in this respect.
Yours sincerely,
Jacob SÖDERMAN
(1) SG D(2002) D/8487 27 February 2002.
(2) OJ 2000 C 364/1.
(3) Presidency Conclusions, Nice European Council meeting, 7, 8 and 9 December 2000, paragraph 2.
(4) SEC(2001)380/3.
(5) As regards sex discrimination, see Case C-343/92 De Weerd and Others [1994] ECR I-571 para 36; Case C-226/98, Jørgensen, [2000] ECR I-2447, para. 29.
