Report on the European Ombudsman´s inspection of documents and meeting in case 2042/2017/AMF on the European Commission’s Communication and Staff Working Document on Air Traffic Management allegedly not respecting the fundamental right to strike
Inspection Report - Date Tuesday | 24 July 2018
Case 2042/2017/AMF - Opened on Friday | 16 February 2018 - Decision on Friday | 14 December 2018 - Institution concerned European Commission (No maladministration found )
REPORT ON THE EUROPEAN OMBUDSMAN’S
INSPECTION OF DOCUMENTS AND MEETING
Case title: The European Commission’s Communication and Staff Working Document on Air Traffic Management allegedly not respecting the fundamental right to strike
Date: Thursday, 24 May 2018
Physical location: Rue De Mot 28, 1040 Brussels
Staff Member, Legal Officer, Inquiries Unit 4
Staff Member, Legal Officer Inquiries Unit 4
Trainee, Inquiries Unit 4
Staff Member, SG.F.3
Staff Member, MOVE.DDG1.B.5
Staff Member, MOVE.DDG2.E.3
Staff Member, MOVE.DDG2.E.3
Staff Member, EMPL.A.2
Purpose of the inspection of documents and meeting
The purpose of the meeting was for the Ombudsman’s inquiry team to clarify certain matters, namely to obtain explanations regarding (i) what steps the Commission has taken to ensure that the Communication and Staff Working Document are compatible with the fundamental right to strike, and (ii) how it assessed the complainant’s argument that some suggestions in the Communication and Staff Working Document may entail serious safety consequences.
Introduction and procedural information
The Ombudsman’s inquiry team introduced themselves and explained the background of the complaint and the purpose of the meeting. The inquiry team also informed the Commission that, in accordance with the European Ombudsman’s Implementing Provisions, the Ombudsman will not disclose any information identified by the Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Commission’s prior agreement. Information of this kind will moreover be deleted from the European Ombudsman’s files shortly after the inquiry has ended.
The Commission provided the Ombudsman team with the documents in its file on the issue:
(i) Complaint about maladministration from ATCEUC and ETF to the Ombudsman
(ii) Commission Communication on Aviation: Open and Connected Europe
(iii) Commission Staff Working Document on Practices Favouring Air Traffic Management continuity
(iv) Final Report of study on Options to improve Air Ttraffic Management Service Continuity in the event of strikes (Ricardo Energy & Environment with York Aviation)
(v) Letters from ATCEUC and ETF to Commissioners Bulc and Thyssen and their replies following the adoption of the Communication
(vi) Three MEP question and Commissioner Bulc’s replies concerning the fundamental right to strike
(vii) Minutes of the Fast-track Interservice Consultation Meeting (confidential)
The Commission identified Document (vii) as confidential.
The Commission explained that the main purpose of the Communication and the Staff Working Document (hereinafter ‘Communication’ and 'SWD') was a response to policy actions in the Commission’s Aviation Strategy, which included identifying practices favouring air traffic management service continuity. The Communication addressed other topics as well such as competitiveness, PSO rules, etc. The Staff working Document sought to set out a bench mark for how to handle the negative spill-over effects of strikes to other Member States efficiently, while at the same time not infringing the fundamental right to strike. To achieve this purpose, the Commission engaged with stakeholders and representatives of social partners, such as the complainants. The Commission also underlined that the Communication and Staff Working Document do not have legally binding effect, and that it is for the Member States to determine the rules applicable to strikes.
More specifically, when adopting the Communication, the Commission followed its usual working procedure (“Interservice Consultation”). According to the Commission’s Aviation Strategy, it investigated the impact of strikes on aviation and carried out a study on options to improve Air Traffic Management service continuity in the event of strikes. When conducting the study, the Commission invited the stakeholders to get involved. It had not anticipated that some stakeholders would decline to participate (as was the case of the complainants). In order to find a solution, the Commission´s Directorate General for Mobility and Transport (DG MOVE) organised a workshop in 2016 so that stakeholders could express their view on the content of the study. The workshop was attended by social partners on the employers' side and professional associations – a list of the participants can be found in annex. The two complainants, however, did not participate. They did send a letter beforehand with their positions. At this stage, DG MOVE explained that it was not intending to regulate in the area, which was met with positive feedback from the majority of stakeholders.
The draft final report of the study was sent to the complainants. The study was made available to the public as soon as it was completed and accepted by the Commission. Before the Communication was finalised, the Directorate General for Mobility and Transport consulted the Commission’s Legal Service and the Directorate General for Employment, Social Affairs and Inclusion. After this Inter Service Consultation procedure, it adopted both documents.
The Commission further explained that the Communication was adopted in June 2017 and that Air Traffic Controllers have continued to exercise their right to strike since the adoption of the Communication. It is for other actors to regulate in this area, such as the Member States and the Communication has not so far had a significant impact in changing the landscape of Air Traffic Management in Member States.
Moreover, the Commission explained that the measures presented in the Communication are a compilation of best practices already existing in some Member States. Some of these practices might not apply to Air Traffic Controllers in some Member States, but to other professions in the Aviation sector, such as pilots. In those Member States, the measures are already implemented without being challenged as infringing the right to strike.
The Commission stated that it kept an open dialogue with the complainants. Commissioners Bulc and Thyssen met with the complainants after the Communication had been adopted. The Commission will of course continue to include the complainants in future reforms in the area.
Concerning the safety concerns raised by the complainants, the Commission said that it was not suggesting new measures but only mentioning ones that were already being applied by some Member States. Stakeholders whose main concern is aviation safety, such as the Air Navigation Service Providers (who are the employers of Air Traffic Controllers), did not make any comments in the course of the study relating to safety consequences. The Commission pointed out that the Communication and the Staff Working Document aimed at increasing predictability in Air Traffic Management, and that the more predictable the Air Space is, the safer it becomes. Safety is priority number one in the EU airspace, as it is the part of the world with the most air traffic, and it is increasing.
Conclusion of the inspection of documents and meeting
The Ombudsman’s inquiry team thanked the Commission for the information and explanations it provided.
 Articles 4(8) and 9(4) of the European Ombudsman’s Implementing Provisions.