Background to the complaint

1. The complainant is a security agent working for the European Parliament. The complainant is expected to do ‘shiftwork’, which means working regularly at night, as well as on Saturdays, Sundays and public holidays. To compensate for the inconvenience as regards their personal lives, staff members doing shiftwork receive a special allowance in addition to their salaries.^[1]

2. According to the rules in place,^[2] the special allowance is suspended if the staff member is prevented from doing shiftwork for more than one month. The rule is formulated as follows in English:

An official who can show that for a period not exceeding one month he was prevented from doing shiftwork on grounds of illness, accident, shutdown, leave for attendance at training courses or annual leave, shall retain his entitlement to the allowance. If the period during which he is prevented from doing shiftwork extends to more than one month, his entitlement to the allowance shall be suspended at the end of that month until he resumes work. (emphasis added)

In French, the same rule is formulated as follows:

Le fonctionnaire qui justifie être empêché, pendant une période ne dépassant pas un mois, d'effectuer le service continu ou par tour par suite de maladie, d'accident, d'arrêt des installations ou de congé pour cours de recyclage, ou qui se trouve en congé annuel, conserve le droit à l'indemnité. En cas de prolongation de cet empêchement au-delà d'un mois, le droit à l'indemnité est suspendu à la fin de ce mois jusqu'à la reprise du travail. (emphasis added)

3. In summer 2018, the complainant was on annual leave during a period of 38 days. Parliament suspended his shiftwork allowance for eight days, with reference to the rule described above.

4. The complainant made an administrative complaint^[3] against Parliament’s decision to suspend the shiftwork allowance. He argued that, according to the French version of the rule, annual leave is not relevant for the suspension of the shiftwork allowance. According to the complainant, this is due to the use of the relative pronoun “qui” [“qui justifie, (...) ou qui se trouve...”] in the rule. The complainant argued that, in line with the French text, he should have retained his entitlement to the shiftwork allowance as he was on annual leave.

5. Parliament rejected the complainant’s administrative complaint. It argued that, in line with the case-law of the Court of Justice of the EU, all linguistic versions of a legal text are ‘equally authentic’. In case of differences between language versions, the text should be interpreted in light of the overall objective of the rule. Parliament stated that the objective of the rule is to limit the payment of the shiftwork allowance when the staff member is absent from work for more than one month.

6. Dissatisfied with the outcome, the complainant turned to the Ombudsman in June 2019, arguing, in particular, that the rule predates English as an official EU language and that the French version should thus take precedence. The complainant also argued that, if the French version is wrong, the fact that it has not been corrected during the 45 years in which it has been applied is maladministration.

The Ombudsman’s findings

7. The Ombudsman considers Parliament’s position to be convincing. When applying EU rules, no language version takes precedence because that language has been an official EU language for longer than other languages. The complainant’s argument about the French version taking precedence is therefore not relevant.

8. The Ombudsman acknowledges that the French version of the rule could have been better formulated. It should, however, be interpreted in light of the purpose of the rule, which is to suspend the shiftwork allowance when the staff member is absent from work for longer than one month. Therefore, the French version cannot be deemed wrong in the sense argued by the complainant.

9. It is also clear from internal rules and guidelines of the European Parliament^[4] that the shiftwork allowance will be suspended when the staff member in question is on annual leave for longer than one month. The risk that staff would be misled by the French version of the rule is therefore limited.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Parliament in its decision to suspend the complainant’s shiftwork allowance for eight days.^[5]

The complainant and the European Parliament will be informed of this decision.

 

Tina Nilsson

Head of Inquiries - Unit 4

Strasbourg, 21/10/201

 

[1] The conditions are detailed in Article 56a of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501

[2] Article 1(3) of Council Regulation No 300/76 of 9 February 1976 determining the categories of officials entitled to allowances for shiftwork, and the rates and conditions thereof, available at https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=CELEX:31976R0300&from=GA

[3] Under Article 90(2) of the Staff Regulations.

[4] See e.g. the “Règles internes - Prévention, Surveillance, Réception et Accréditation - DG SECURITE ET

PROTECTION“ of 10 September 2015, as well as the “Décision du Directeur de l'Administration des ressources humaine sur l'octroi de l'indemnité pour service continu ou par tours“ of 17 May 2018. 

[5] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions. Information on the review procedure can be found on the Ombudsman’s website: http://www.ombudsman.europa.eu/en/resources/otherdocument.faces/en/70669/html.bookmark