Among the many thorny issues that have arisen in the wake of the UK referendum vote to leave the European Union on 23 June 2016, the question of the potential consequences of a withdrawal from the Union for UK staff working at the EU institutions has so far not been exactly at the center of the attention, yet is likely to prove one of the difficult legal and political issues to be tackled in the years to come.
Whilst political signals, in the form of reassuring messages, appear to have been given by the highest EU authorities (see for example the messages sent to UK staff of the Commission and the European Parliament by President Jean-Claude Juncker and President Martin Schulz respectively), on the strictly legal plane no clear-cut and comprehensive answers can at present be offered. Nevertheless, a few general principles and guidelines may be briefly highlighted already.
The Negotiations Period
First, there should be no changes until the UK exit of the EU effectively takes place. According to Article 50 of the Treaty on European Union, the withdrawal becomes effective upon entry into force of the withdrawal agreement to be concluded between the Member State concerned and the Union, or, failing that, two years after the notification, by the Member State concerned, of its intention to withdraw, unless the EU and the Member State concerned decide to extend this period. Therefore, in the meantime, current UK staff cannot be forced to leave their employment on account of their nationality, and should even be treated on an equal footing with other officials as far as their career is concerned (promotion, mobility, etc.); similarly, UK citizens should in principle not be barred from regular recruitment, provided that they fulfill the necessary conditions to that effect. Until Brexit is effective, any other conclusion would amount to a discrimination based on nationality.
The Withdrawal Agreement
Second, it is possible that some aspects of the situation of UK staff will be dealt with in the withdrawal agreement to be concluded between the UK and the Union, as Article 50 of the Treaty on the European Union contemplates that such agreement will set out ‘the arrangements for [the] withdrawal’ without further specification. Obviously, it is however difficult to anticipate the content of such possible provisions on UK staff, all the more so as it might actually depend on the outcome of the negotiations on other, unrelated topics.
The Staff Regulations
Third, subject to specific, tailored solutions devised in the withdrawal agreement, the EU Staff Regulations (SR) and Conditions of Employment of Other Servants (CEOS) do contain a number of potentially relevant provisions.
Under Article 28(a) of the SR, ‘[a]n official may be appointed only on condition that (…) he is a national of one of the Member States of the Union, unless an exception is authorized by the appointing authority.’ Accordingly, once Brexit is effective, UK nationals can be appointed officials only on the basis of a special authorization by the appointing authority, unless they also possess the citizenship of another Member State.
Article 49 of the SR reads as follows: ‘An official may be required to resign only where he ceases to fulfil the conditions laid down in Article 28(a) (…). Reasoned decisions requiring officials to resign shall be taken by the appointing authority after consulting the Joint Committee and hearing
the official concerned.’ This provision, by definition, has never been used to date in the context of the withdrawal of a Member State. This being said, it undoubtedly provides, as such, a legal basis for compulsory resignation of officials who, as a result of the withdrawal of the Member State of their nationality, and failing any simultaneous nationality of another Member State, would no longer be ‘a national of one of the Member Sates’ within the meaning of Article 28(a). The compulsory resignation is however not automatic: it needs to be decided on a case-by-case basis, by a reasoned decision of the appointing authority. Whether the appointing authorities will effectively make use of this power remains to be seen. Arguably, there should at the very least be a common approach among the various EU institutions and bodies. Furthermore, the general principles of EU civil service law would, in any event, govern the exercise of the above power to require resignation (inter alia the principle of good administration and duty of care).
Turning to servants others than officials, Article 12(2)(a) of the CEOS provides: ‘A member of the temporary staff may be engaged only on condition that (…) he is a national of one of the Member States of the Union, unless an exception is authorized by the authority [authorized to conclude the contracts].’ Similar provisions can be found in Article 82(3)(a) of the CEOS for contract staff and in Article 128(2)(a) of the CEOS for parliamentary assistants.
According to Article 47(b)(iii) and (c)(ii) of the CEOS, ‘the employment of temporary staff shall cease (…) where the servant no longer satisfies the conditions laid down in point (a) of article 12(2), subject to the possibility of authorizing an exception under that provision.’ This rule is extended to contract staff in Article 119 of the CEOS, and a similar provision can be found in Article 139(1)(e) of the CEOS for parliamentary assistants. Therefore, by contrast to officials, the contracts of UK temporary staff, contract staff as well as parliamentary assistants will be terminated once the UK has effectively left the Union, unless an exception is granted by the competent authority.
Whether for officials or for other servants, there is – aside from acquired pension rights – no systematic, comprehensive social security package provided for the period after the termination of their employment. In particular, virtually nothing is foreseen in respect of officials who would be required to resign in accordance with Article 49 of the SR. However, alternative legal bases in the SR (such as Article 41 on non-active status, Article 42c on leave in the interest of the service, or Article 50 on retirement in the interests of the service) might be favored in the specific situations that they contemplate, in which case the officials concerned would be entitled to certain benefits.
It is likely that, at any rate, a collective approach will generally be privileged, and that the terms and conditions of possible reductions of the size of the UK staff and of possible related compensation and entitlements will therefore be negotiated also at some point with the staff representatives.