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Act 91-715 of 26-07-1991, adding an art. 5 bis to Act 83-634 of 13-07-1983 concerning the rights and obligations of civil servants, implemented in French law the principle of the free movement of workers, made applicable to the administrations of the Member States by the jurisprudence of the Court of Justice of the European Communities (CJCE) which has defined, progressively, the rules opening exemptions to the provisions of paragraph 4 of the art. 39 of the Treaty establishing the European Community (ex art. 48 of the Treaty of Rome) excluding administrations from the free access to employment system. Since the art vote. 5 bis, in the public service of the State more than thirty decrees were published in order to open bodies of officials meeting the criteria defined by the aforementioned law. The Minister responsible for the public service wished to give a new impetus to the implementation of the Community principle of the free movement of workers in the administration by providing: - on the one hand, the registration of the principle of the access of community nationals to the public service of the State in nine decrees establishing common statutory provisions applicable to approximately 150 bodies of central government officials, external services and public institutions belonging to categories Bsim and C Prior to this, the Conseil d'État was seized with a request for an opinion to lift a number of captions as to the interpretation of the provisions of art. 5 bis of the 1983 Act, in particular with regard to the possibility of establishing by a single decree the rules of classification of community nationals in their host bodies. In its opinion rendered on 31-01-2002, the Council of State specified that the decree provided for in the last art. 5 bis of the 1983 Act may, inter alia, address the common issues posed by the access to the public service of nationals of other member states of the European Community or a party to the agreement on the European Economic Area and their careers that would not be resolved by the particular statutes. This decree, composed of two titles, sets out the general rules relating to the situation (Title I) and the terms of classification (Title II) of nationals of the Member States of the European Community or of another State Party to the agreement on the European Economic Area, appointed in a body of officials of the State or its public institutions. Its provisions therefore apply to all bodies open to date. Title I sets out the general provisions relating to the situation of only nationals of the Member States of the European Community or of another State Party to the agreement on the European Economic Area other than France. In accordance with the jurisprudence of the CJCE and the opinion rendered by the Council of State on 31-01-2002, art. l recalls the principle of equal treatment between French officials and those who are nationals of another Member State of the European Community or another State Party to the agreement on the European Economic Area; Art. 2 however excludes these same nationals from the inseparable employment of the exercise of sovereignty or direct or indirect participation in the exercise of public power prerogatives, not only for their first assignment, but also at all stages of their career development. In order for community nationals wishing to compete in a recruitment examination in one of the open bodies to be informed that they will not be able to occupy certain jobs, art. 3 provides that notices of examination must expressly mention reservations set out in article 2. Title II sets out the general provisions relating to the classification terms in the host bodies. It applies to all nationals of the Member States of the European Community or of another State Party to the Agreement on the European Economic Area that have performed services in the public sector of one of these States other than France. Taking into account the services previously carried out to the public service in France requires identifying the nature of the services actually performed by the agent, and thus defining the scope of the public sector in the Member State of origin. Art. 4 defines services that may be taken into account by reference to those carried out in administrations, agencies or institutions whose missions are considered to be of a similar nature to those of administrations, services or public institutions to which civil servants, referred to in art. 2 of the 1983 Act, perform their duties. Thus, in addition to the services carried out in institutions comparable to the state administrations and their public institutions, the previous services carried out with the administrations of the territorial authorities and their public institutions, as well as hospital facilities, are taken into account as, for the common-law bodies, the services performed in one of the other public offices are taken into account. The general principle of the Commission of the European Communities in relation to the jurisprudence of the CJCE is the application of the legal regime specific to the host Member State. Accordingly, Art. 5 of this Order sets out the principle of ranking of community nationals according to the rules established by the statutory provisions governing the host body, except for any provision relating to the maintenance of the level of remuneration prior to entry into the public service. This exclusion is not contrary to community law as France is not bound by the employer's salary policy in the original Member Ftat. In addition, community law requires taking into account the diversity of the legal nature of the commitments that bind community nationals to their employer in the Member States of origin. Accordingly, s. 6 determines the terms and conditions under which the services performed must be taken into account, according to the common law rule applicable in the administration, organization or establishment of the Member State of origin, by embracing both statutory public functions and public employment functions whose staff are under public law or under private law contract. Art. 7 provides that the officer must provide the documents necessary for his classification in French or in default translated by an authorized translator. In order to assist jurisdictions in the classification of officers, ensuring the harmonization of practices between departments, art. 8 institutes a procedure of prior notice, rendered by the commission of equivalence of the European public services established by decree 2002- 759 of 02-05-2002 relating to the reception in detachment of officials of a Member State of the European Community or of another State party to the agreement on the European Economic Area other than France in the public service of the State and amending the decree 85-986 of the 16-09-1985 concerning the By this decree, it is proposed that the commission render an opinion on the nature: - of the missions of the administration, organization or establishment of the Member State of origin, within which the agent served, in relation to the missions of the administrations and public institutions in which the civil servants mentioned in the art. 2 of the Act of 1983 referred to above perform their functions; - the legal commitment that binds the agent to his employer, or his successive employers in the Member State of origin; - and the duration of the services taken into account.

Keywords

PUBLIC FUNCTION, REFORM OF THE EAT , FUNCTIONAL , POSITION , DETACHEMENT , AFFECTATION , DUREE , CANDIDATURE , ETAT MEMBRE , COMMUNAUTE EUROPEEN , CE , ESPACE ECONOMIQUE EUROPEEN , EEA , LEGAL ,

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JORF n°251 of 26 October 2002 page 17796
text No. 33



Decree No. 2002-1294 of 24 October 2002 establishing the general provisions relating to the situation and the conditions of classification of nationals of the Member States of the European Community or of another State party to the agreement on the European Economic Area, appointed in a body of officials of the State or its public institutions

NOR: FPPX0200122D ELI: https://www.legifrance.gouv.fr/eli/decret/2002/10/24/FPPX0200122D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2002/10/24/2002-1294/jo/texte

President of the Republic,
On the report of the Prime Minister, the Minister of Economy, Finance and Industry and the Minister of Public Service, State Reform and Land Management,
In light of amended Act No. 83-634 of 13 July 1983 on the rights and obligations of civil servants, together with amended Act No. 84-16 of 11 January 1984 on statutory provisions relating to the public service of the State;
In view of the amended Decree No. 85-986 of 16 September 1985 on the particular regime of certain positions of State officials and certain modalities for the final termination of functions;
In view of Decree No. 2002-759 of 2 May 2002 on the reception in detachment of officials of a Member State of the European Community or of another State party to the agreement on the European Economic Area other than France in the public service of the State and amending Decree No. 85-986 of 16 September 1985 on the particular regime of certain positions of the officials of the State and on certain modalities of final termination of functions, including its Article 5;
Having regard to the opinion of the Supreme Council of the Public Service of the State (Commission of Statutes) of 22 May 2002;
The State Council (Finance Section) heard;
The Council of Ministers heard,
Decrete:

• PART I: PROVISIONS RELATING TO THE SITUATION OF THE RESOLUTIONS OF THE MEMBERS OF EUROPEAN COMMUNITY OR TO A PART OF THE ACCORD ON EUROPEAN ECONOMIC SPACE OTHER THAN FRANCE, USED IN A CORPORATE OF FUNCTIONALS OF THE STATES OF THE Article 1

  
  Nationals of the Member States of the European Community or of another State Party to the agreement on the European Economic Area other than France, appointed in a body of officials of the State or its public institutions, are governed by the statutory provisions of the body under the same conditions as the French officials.

  Article 2

  
  The persons referred to in Article 1 shall not be employed in the body to which they belong, or in the host body under the provisions of the aforementioned Decree of 16 September 1985, whose powers are not separable from the exercise of sovereignty or involve direct or indirect participation in the exercise of prerogatives of public power.
  Their grade, body promotion or appointment in a job is within the same limits.

  Article 3

  
  Notices of examinations published for recruitment in the bodies to which nationals of the Member States of the European Community or of another State Party have access to the agreement on the European Economic Area other than France must expressly mention the terms of Article 2.

• PART II: PROVISIONS RELATING TO THE MODALITIES OF THE RESOLUTIONS OF THE EUROPEAN COMMUNITY MEMBER STATES OR TO A PART OF THE AGREEMENT ON THE EUROPEAN ECONOMIC SPACE, UMED IN THE FUNCTIONAL CORPORATIONS OF THE STATES OF THE Article 4

  
  The provisions of this title shall apply to nationals of the Member States of the European Community or of another State Party to the Agreement on the European Economic Area which justify services performed in an administration, agency or institution of the Member State of origin whose missions are comparable to those of the administrations and public institutions in which the civil servants mentioned in Article 2 of the Law of 13 July 1983 referred to above perform their duties.
  For the purposes of this title, the Member State of origin is defined as the last Member State of the European Community or a party to the agreement on the European Economic Area other than France in which the agent was in office before his appointment in a body of officials of the State or its public institutions.

  Article 5

  
  During their first appointment in a body of state officials, the agents mentioned in Article 4 are classified according to the rules of taking into account the previous services established by the statutory provisions governing the host body, except for any provision that provides for the maintenance, individually, of the level of remuneration attained prior to their access to the French public service.

  Article 6

  
  The modalities for taking into account the services performed are determined in relation to the legal nature of the undertaking that binds the agent to his employer in accordance with the regulations governing the personnel of the administration, organization or institution in the Member State of origin.
  The determination of the legal nature of the undertaking is as follows:
  1° Where, in the administration, organization or establishment of the member State concerned, the staff is normally placed in a statutory and regulatory situation within the meaning of the law of 13 July 1983 referred to above:
  (a) The officer in a statutory and regulatory situation shall be classified according to the rules established by the statutory provisions governing the host body applicable to public servants;
  (b) An officer who justifies a contract of work of public law, regardless of its duration, shall be classified in the host body according to the rules established by the statutory provisions governing the host body, applicable to non-public law officers;
  (c) The services performed by the officer who justifies a contract of private law work are taken into account when the rules set out in the statutory provisions governing the host body provide for it. Periods of activity must have been performed in conditions comparable to those required by French nationals and are taken into account in the same rules.
  2° Where, in the administration, organization or establishment of the member State of origin, the staff is normally governed by the provisions of a public law contract:
  (a) An agent who justifies a contract of public law for an indefinite period of time or for a fixed term of time that is renewable without limitation shall be classified according to the rules set out in the statutory provisions governing the host body applicable to public servants;
  (b) An agent who justifies a revolving fixed-term public law contract within a maximum limit shall be classified according to the rules established by the statutory provisions governing the host body, applicable to non-public law officers;
  (c) The services performed by the officer who justifies a contract of private law work are taken into account when the rules set out in the statutory provisions governing the host body provide for it. Periods of activity must have been performed in conditions comparable to those required by French nationals and are taken into account in the same rules.
  3° When, in the administration, organization or establishment of the original Member State, the staff is normally governed by the stipulations of a private employment contract:
  (a) An agent who justifies an indeterminate or non-renewable fixed-term contract of work of private law shall be classified according to the rules set out in the statutory provisions governing the host body applicable to public servants;
  (b) An agent who justifies a revolving fixed-term contract of private law within a maximum limit is classified according to the rules set out in the statutory provisions governing the host body, applicable to non-public law officers.

  Article 7

  
  With a view to its classification in the body of officials to which it has acceded, the agent is required to provide to the administrative host authority all the documents necessary for the re-establishment of his career, in accordance with Article 6, issued and authenticated by the competent authorities of the Member State of origin.
  When these documents are not written in French, the agent produces a translation certified by a certified translator.

  Article 8

  
  Prerequisitely to any decision of classification, the equivalency commission established by the above-mentioned decree of 2 May 2002 is seized for advice by the host administrative authority. She decides:
  (a) The nature of the duties of the administration, organization or establishment of the member State of origin, within which the agent served, in the light of the duties of the administrations and public institutions in which the civil servants referred to in Article 2 of the Act of 13 July 1983 referred to above perform their duties;
  (b) The legal nature of the undertaking referred to in Article 6 that bound the agent to his employer in the Member State of origin;
  (c) The level of the category of the body, employment or functions carried out in the Member State of origin in relation to the terms of classification in the reception body of the public service of the State;
  (d) The duration of the services taken into account.

  Article 9

  
  The Prime Minister, the Minister of Economy, Finance and Industry, the Minister of Public Service, State Reform and Land Management and the Minister Delegate for Budget and Budget Reform are responsible, each with regard to the application of this Order, which will be published in the Official Journal of the French Republic.

Done in Paris, October 24, 2002.

Jacques Chirac

By the President of the Republic:

The Prime Minister,

Jean-Pierre Raffarin

The Minister of Public Service,

of State Reform

and landscaping,

Jean-Paul Delevoye

Minister of Economy,

finance and industry,

Francis Mer

Minister for Budget

and budgetary reform,

Alain Lambert

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