European Council of Police Trade Unions (CESP) against France
Complaint No. 68/2011
(Adopted by the Committee of Ministers on 11 June 2013
at the 1173rd meeting of the Ministers’ Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 18 May 2011 by the European Council of Police Trade Unions (CESP) against France;
Having regard to the report transmitted by the European Committee of Social Rights, in which it concluded unanimously:
The fact that a complaint relates to a claim has already examined in the context of a previous complaint is not in itself a reason to find it inadmissible. The submission of new evidence during the examination of a complaint may prompt the Committee to re-assess a situation it has already examined in the context of previous complaints and, where appropriate, take decisions which may differ from the conclusions it adopted previously.
The examination of the circumstances relating to the admissibility of the complaint highlighted new evidence pertaining to the merits of questions raised in the context of previous complaints linked to the same subject matter. This evidence concerns the command bonus awarded to senior police officers, its increase and the circumstances of the payment of this bonus to the officers in question.
To the violation of Article 4§2 of the Revised Charter
The fresh assessment2 of the situation does not stem from a misinterpretation of the applicable domestic legal provisions in the examination of previous complaints, but is based on the provision of new information by the complainant organisation concerning the payment of the command bonus.
The rules in force, which based the compensation for overtime by senior police officers on a particular system centring on a specific bonus, cannot in principle be considered to be in breach of Article 4§2.
It is not the purpose of the command bonus in itself to compensate for overtime; it is only the extra amount added to the bonus since 2008 in the form of an increase that is intended to compensate for the overtime worked by senior police officers.
In order for the requirements of Article 4§2 of the Charter to be met, the aforementioned system cannot be considered, in practice, without taking proper account of the amount of the increase in the command bonus. In practice, the increase in the command bonus applied could compensate only for a very small number of hours of overtime. Therefore, the increase in the command bonus is not in conformity with Article 4§2 of the Charter.
Moreover, some duties cannot give rise to compensatory time off because they are taken into account as part of the payment system connected with the command bonus. As the arrangements for compensatory time off provide in other cases that senior police officers working overtime when performing certain duties may only claim equal or equivalent rest periods calculated on an hour for hour basis, they are not in conformity with Article 4§2 of the Charter.
Having regard to the information communicated by the French delegation at the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) on 9 April 2013,
1. takes note of the statement made by the respondent government and the information it has communicated in the framework of the follow-up to the decision of the European Committee of Social Rights (see Appendix to the resolution);
2. looks forward to France reporting, at the time of the submission of the next report concerning the relevant provisions of the Revised European Social Charter, on any new developments regarding the implementation of the Revised European Social Charter.
Appendix to Resolution CM/ResChS(2013)10
Observations by France submitted at the GR-SOC meeting of 9 April 2013 (translation)
Collective complaint No. 68/2011 – European Council of Police Trade Union (CESP)
Submissions by the government in reply to the ECSR’s report
On 23 October 2012, the European Committee of Social Rights (ECSR) submitted its report to the Committee of Ministers on Complaint No. 68/2011 by the European Council of Police Trade Unions against France.
In its decision, published on 13 March 2013, the ECSR found unanimously:
- that the flat-rate payment awarded for overtime work to the national police officers of the command corps (senior police officers) who were covered by the hours-of-overtime-worked system was not in conformity with Article 4§2 of the European Social Charter, which entitles workers to an increased rate of remuneration for overtime work. More specifically, the ECSR held that the regulations applicable to such police officers prevented them from benefiting from a higher than normal rate of remuneration;
- that the arrangements for compensatory time off for overtime worked by these officers were at variance with Article 4§2 of the Social Charter because they failed to offer a recovery time greater than the actual overtime hours worked.
In response, the government wishes to make certain observations on the admissibility of the complaint and the merits.
1) The government reiterates its comments on the admissibility of the complaint submitted. The government considers that this complaint is intended to challenge the ECSR’s decision of 1 December 2010 on Complaint No. 57/2009. This complaint therefore equates to a request for review, for which no provision is made in the Additional Protocol to the European Social Charter providing for a system of collective complaints, which makes it inadmissible.
It should be pointed out that, in its decision on Complaint No. 57/2009, the Committee found, also unanimously, that the same system for the payment of the overtime of the aforementioned senior police officers, which is based on a special bonus, was such as to satisfy the provisions of Article 4§2 of the Charter requiring overtime work to be compensated at a higher rate than the normal wage rate.
2) The government also questions the finding of a violation of Article 4§2 of the Social Charter because of the arrangements for compensatory time off for overtime worked by senior police officers. This matter was never raised in the CESP’s complaint, which related solely to the arrangements for the payment of these officers’ overtime. The government therefore considers that the finding of a violation which the ECSR arrived at on this second matter (compensatory time off) exceeds the powers assigned to it by Article 8 of the Additional Protocol.
II. The merits
The government regrets that the Committee failed to take account of the full consequences for the members of the national police command corps of the agreement concluded on 5 December 2007 (attached), namely that it gave them managerial status. In recognition of their new responsibilities, these officers have benefited since 2008 from higher salary scales and a new system of payments covering the additional services which they are required to provide. The statement of conclusions signed on 5 December 2007, which the government submitted to the ECSR, also refers to the increase in funds allocated for the payment of on-call services, the recalculation of duty allowance and an increase in the number of operational posts, all of which were granted in addition to the increase in the command bonus.
In a report published in March 2013, the Cour des Comptes (national audit office), which is an independent authority whose task under Article 47-2 of the Constitution is to ensure that public funds are well used and keep citizens informed, also described the various measures from which these officers benefited, showing that the increase in the command bonus was only one of a number of measures taken (see the figures appended taken from the Cour des Comptes’ report).
France submits these items to the Committee of Ministers for its consideration.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the following Contracting Parties to the European Social Charter or the Revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.
2 See European Council of Police Trade Unions (CESP) against France, Complaint No. 57/2009.