Resolution CM/ResChS(2013)9
Collective Complaint No. 57/2009
by the European Council of Police Trade Unions (CESP) against France

(Adopted by the Committee of Ministers on 29 May 2013

at the 1171st 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 7 May 2009 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 that:

- there is a violation of Article 4§2 of the Revised Charter on the ground of the flat rate compensation for overtime work payable to ordinary members of “the supervision and enforcement corps” since 1 January 2008 makes the financial compensation for their overtime work payable at a flat rate, thus preventing those concerned from benefiting from a higher than normal rate of remuneration.

The principle of Article 4§2 is that work performed outside normal working hours requires an increased effort on the part of the worker. Not only must the worker receive payment for overtime, therefore, but also the rate of such payment must be higher than the normal wage rate (Conclusions I, Statement of Interpretation of Article 4§2, p. 28). Where remuneration for overtime is entirely given in the form of time off, Article 4§2 requires that this time be longer than the additional hours worked (Conclusions XIV-2, Belgium).

The measures at issue in this complaint provide for differences in treatment in the remuneration of overtime for police officers according to which corps they belong to – the corps of senior or the “corps of ordinary police officers”.

From 1 January 2008, Decree No. 2008-199 of 27 February 2008 granted members of the corps of “ordinary police officers” an overtime payment based initially on a single index point – gross salary point 342.

According to the detailed data and calculations supplied by the CESP in its submissions, since 1 January 2008, concerning the corps of “ordinary police officers”, a majority of ordinary police officers’ grades and steps (19 out of 27) have been paid for overtime at a lower rate than the normal hourly pay under Decree No. 2008-199, ranging from 73.28% (police sergeant major RULP grade) to 96.61% (senior police constable 4th step).

By failing to take account of the actual remuneration linked to each individual grade and step, the payment continues to be flat-rate in nature, which means that those concerned do not enjoy the higher rate of remuneration required by Article 4§2 of the Revised Charter.

Therefore, the flat-rate nature of the remuneration for overtime worked by police officers of the “corps of ordinary police officers” since 1 January 2008 constitutes a violation of Article 4§2 of the Revised Charter.

- there is no violation of Article 4§2 of the Revised Charter arising from the rules applicable since 15 April 2008 to members of the national police command corps performing intermediate management duties, because the special bonus they receive as compensation for overtime work is such as to comply with Article 4§2 of the Revised Charter which requires overtime work to be compensated at a higher rate than the normal wage rate.

Since 15 April 2008, the legislation and its associated regulations, establishing a specific system for compensating members of the national police command corps for overtime, cannot be regarded as being contrary to Article 4§2, particularly as they can be justified by the particular circumstances attached to the performance of intermediate management functions within the national police force.

Having regard to the information communicated by the French delegation at the 1114th meeting of the Ministers’ Deputies on 25 May 2011,

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 this 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)9

Observations by France in reply to the report of the European Committee of Social Rights on Complaint No. 57/2009, submitted by the Representative of France at the 1114th meeting of the Ministers’ Deputies (25 May 2011)

On 3 December 2010, the European Committee of Social Rights sent the Committee of Ministers a report containing its decision on the merits of Complaint No. 57/2009 submitted by the European Council of Police Trade Unions against France.

In this decision, published on 4 April 2011, the European Committee of Social Rights unanimously concluded that the flat-rate compensation paid to members of the supervision and enforcement corps of the national police force (urban police and lower ranks) for overtime work was not in conformity with Article 4§2 of the European Social Charter which entitled workers to an increased rate of remuneration for overtime work. More specifically, the Committee held that the regulations applicable to such police officers prevented them from benefiting from a higher than normal rate of remuneration.

In this same decision, the Committee also concluded unanimously that there was no violation of Article 4§2 of the Charter arising from the rules applicable since 15 April 2008 to members of the national police command corps performing intermediate management duties, because the special bonus they received as compensation for overtime was such as to comply with Article 4§2 of the Charter which required overtime work to be compensated at a higher rate than the normal wage rate.

France welcomes the second part of the decision of the European Committee of Social Rights. It is disappointed, however, that the Committee has disregarded its explanations concerning compensation for overtime worked by urban police and lower ranks.

The Committee of Ministers is due to consider this matter on 25 May and must decide whether or not to adopt a recommendation addressed to France.

With this in mind, France wishes to return to a difference of interpretation with the European Committee of Social Rights.

French regulations state that compensation for overtime for operational members of the national police force is first and foremost compensation in the form of time off, with financial compensation being paid only if there is no compensation in the form of leave.

Article 22 of Decree No. 95-654 of 9 May 1995, amended, establishing general provisions applicable to members of the national police force accordingly states that: “Duty performed beyond the standard working week shall be compensated by equal or equivalent rest periods, which must be granted at the earliest opportunity, subject to the needs of the service, or, under conditions established by decree, by a suitable overtime payment system.

In pursuance of these provisions, Decree No. 2000-194 of 3 March 2000 setting the conditions for the payment of overtime to operational members of the national police force, states, in Article 1, that: “Operational members of the national police force, with the exception of members of the senior planning and management corps and of the command corps, may, when they are required to perform extra services that cannot be recovered, benefit from a compensatory payment for extra services.

Article 4§2 of the Revised European Social Charter states that:

“With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake: (…)

2. to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases; (…)”.

The Committee has consistently accepted that “granting leave to compensate for overtime is in conformity with Article 4§2, on condition that this leave is longer than the overtime worked” (Digest of Case Law, page 44).

For example, in conclusions XIV-2, Belgium, p. 134, the Committee stated that:

“the aim of Article 4§2 is to ensure that the additional occupation of workers during overtime is rewarded. Under this provision such reward must take the form of an increased rate of remuneration. However, the Committee recognises reward in the form of time off, provided that the aim of the provision is met. This means, in particular, that where remuneration for overtime is entirely given in the form of time off, as in the present case, Article 4§2 requires that this time be longer than the additional hours worked.” (Digest of Case Law, page 220).

Similarly, in conclusions XIV-2, in a statement of interpretation of Article 4§2, p. 35:

“The Committee recalls that the principle of this provision is that work performed outside normal working hours requires an increased effort on the part of the worker, who therefore should be paid at a rate higher than the normal wage. The Committee allows additional time off to replace increased remuneration.” (Digest of Case Law, page 220).

The French Government is disappointed that the Committee has failed, in this instance, to follow this case law and stands by its assertion that the dual arrangements for compensating members of the supervision and enforcement corps of the national police force for overtime worked are fully consistent with the requirements of Article 4§2 of the Charter.

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 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.



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