European Ombudsman
1. The complainant worked for the European Commission as a temporary agent until 28 February 2007. His latest grade was AST 6 step 5. Having passed an open competition, he was appointed as a probationary official on 1 March 2007. He was placed in an AST 3 step 2 grade. The complainant considered that he should have been allowed to retain his step 5 in the new, lower grade. He, therefore, made a complaint pursuant to Article 90(2) of the Staff Regulations.
2. In this complaint, the complainant relied on Article 5(2) of the General Implementing Decision concerning the criteria applicable to classification in grade and step on appointment or engagement of 7 April 2004 ('the GID'), which provides as follows:
"Any temporary staff who are appointed as permanent officials in a lower grade immediately after their period of temporary employment shall be classified according to one of the following options, whichever is most favourable:
- as new recruits,
- in the same step and with the same seniority in step in the grade acquired as a member of the temporary staff, or
- with the same seniority in step, but in the step which they would have occupied had they been hired as temporary staff in the grade to which they are appointed as permanent officials."
3. In its reply of 27 September 2007, the Appointing Authority agreed that this provision was applicable but upheld the contested decision. In this regard, it pointed out that, as a result of the change in the salary systems, a multiplication factor was introduced at the time the Staff Regulations were reformed. This multiplication factor served to level the differences between the old and the new salary grids. Taking this factor into account, the classification in grade AST 3 step 2, which took into account the complainant's professional experience, was the most favourable for him within the meaning of Article 5(2) of the GID.
4. In his complaint to the Ombudsman, the complainant maintained his view that the Commission's decision was incorrect. He submitted that the Commission was wrong to take into account the multiplication factor and thus downgrade him.
5. The Ombudsman opened an inquiry into the complainant's following allegation and claim.
Allegation:
The Commission wrongly decided to classify him in step 2 of grade AST 3 on his appointment as a probationary official.
In support of this allegation, the complainant submitted that Article 5(2) of the GID does not allow for the application of a multiplication factor and thus for his downgrading from step 5 to step 2.
Claim:
The Commission should withdraw its decision and classify him in step 5.
6. In its opinion, the Commission did not make any new comments on the substance of the complaint. It simply referred the Ombudsman to the reasoning contained in the Appointing Authority's decision on the complainant's complaint under Article 90(2) of the Staff Regulations.
7. Given that the Ombudsman (a) had taken the reasoning contained in this decision into account in his considerations on whether or not to open an inquiry, and (b) had drawn the Commission's attention to the complainant's specific argument regarding the application of the multiplication factor, he regretted that the Commission limited itself to referring the complainant to the Appointing Authority's decision.
8. Therefore, before inviting the complainant to make observations, the Ombudsman decided to ask the Commission for additional information regarding the following issues:
9. The Commission's reply to these requests was forwarded to the complainant with an invitation to make observations. The complainant did not send any observations by the relevant deadline of 31 October 2008. However, in a telephone conversation with the Ombudsman's services on 12 January 2009, he made clear that he was still interested in resolving the matter and that he maintained the position he expressed in his complaint.
10. On 6 March 2009, the Ombudsman submitted a friendly solution proposal to the Commission. The Commission sent its reply on 10 June 2009 which was forwarded to the complainant with an invitation to make observations. The complainant did not send any observations by the relevant deadline of 31 July 2009. Nor did he do so at a later date.
Arguments presented to the Ombudsman
11. The Commission agreed with the complainant that Article 5(2) of the GID was applicable to his situation. However, it took the view that its correct application did not automatically mean that he should retain his step 5. It went on to argue that, in applying the provision, one had to bear in mind the grounds behind it, namely, to preserve a former temporary agent's advancement in his or her former grade, expressed in terms of revenue, given that a step was nothing but a percentage of the holder's basic salary.
12. According to the Commission, the third option referred to in the provision could be excluded, since there was no difference between the grading in step of permanent officials and temporary staff.
13. Therefore, the first two options had to be compared. However, although maintaining step 5 would appear, at first sight, to be more favourable for the complainant, it had to be borne in mind that, due to the change of the salary systems, a multiplication factor was introduced at the time the Staff Regulations were reformed. This multiplication factor served to level the differences between the old and the new salary grids. As the basic pay under the old system was normally lower than that under the new system, the multiplication factor was in most cases below 1. In the complainant's case, it was 0.86. This meant that the complainant was not previously paid the amount foreseen for AST 6 step 5 in the new salary grid, but substantially less. Conversely, his new grade and step as an official carried no multiplication factor.
14. As the multiplication factor depended on the individual situation, that is, the grade, step and seniority in step at the moment the system was changed, it could not be applied automatically to a new situation in which a former temporary agent was recruited as an official in a lower grade. The multiplication factor applied to the former grade would have to be retranslated into seniority without a multiplication factor in his/her former grade. This meant that, in the second option, the complainant's last actual salary as a temporary agent had to be compared to the new grid in order to establish which step and seniority in step he would have had as an AST 6, if his multiplication factor had been 1. Only if this recalculated step had led to a salary higher than that accruing to step 2 would such step (and seniority in step) have to have been applied to the complainant's new grade.
15. In practice, when the complainant's basic salary in the old grade (EUR 4 392) was compared to the new salary grid, the nearest step in AST 6 to his basic salary turned out to be step 1 (EUR 4 539). This meant that the Commission was obliged to consider him as being in grade AST 6 step 1 at the moment he changed status, leading to a classification in grade AST 3, step 1.
16. Therefore, it was clear that the classification in grade AST 3 step 2, which took into account his professional experience, was more favourable for the complainant within the meaning of Article 5(2) of the GID.
17. In reply to the Ombudsman's question concerning the application of a multiplication factor, the Commission acknowledged that Article 5(2) of the GID did not explicitly mention such a factor. However, according to the Commission, the reason why a multiplication factor should be applied was that two different salary grids were being used: the one existing before the reform of the Staff Regulations and a new one existing after the reform. To achieve a transition from one system to the other, the multiplication factor was applied to the salaries of the servants who entered into service before the reform. The first option mentioned in Article 5(2) allowed the new salary grid to be applied directly and, therefore, did not have to take into account the multiplication factor. The second and third options took into account the fact that the official had been working for the European institutions before the appointment. Therefore, they implicitly contained the application of the multiplication factor as a transitional element. Of the three options provided by Article 5(2), the most favourable one needed to be applied. In the complainant's case, the first option was the most favourable, as a consequence of which no multiplication factor was applied. The Commission submitted that, under these circumstances, the fact that the multiplication factor was not mentioned in Article 5(2) appeared to be irrelevant.
18. In reply to the Ombudsman's question concerning the practice in other Community institutions, the Commission stated that, to the best of its knowledge, the issue raised by the complainant had not been discussed at either of the inter-institutional bodies competent for such matters (the "Comité de Préparation pour les Questions Statutaires" or the "Collège des Chefs d'administration"). According to the Commission, the reason for this could well be the fact that the GID, whose application was at issue, was internal to the Commission. The Commission added that it was not its policy to comment on the internal affairs of other Community institutions and bodies. Therefore, it stated that it was unfortunately unable to supply the information requested by the Ombudsman.
19. The complainant did not make any observations on the Commission's submissions.
The Ombudsman's preliminary assessment leading to a friendly solution proposal
20. The Ombudsman noted that the complainant did not contest his classification in a lower grade (AST 3 instead of AST 6) when he was appointed as an official, but rather the fact that he was classified in a lower step within this grade than the one he had reached as a temporary agent (step 2 instead of step 5). As regards this question, both the complainant and the Commission relied on Article 5(2) of the GID, which meant that the Ombudsman could limit his analysis to this provision.
21. According to the Commission, it had to be examined whether it was more favourable for the complainant to be classified (a) as a new recruit or (b) in the same step and with the same seniority in step in the grade acquired as a member of the temporary staff.
22. The Ombudsman noted that, based on a literal reading of the text, option (b) seems to be clearly more advantageous, resulting in a grading in AST 3 step 5 whereas option (a) incontestably leads to a grading in AST 3 step 2. However, the Commission argued that, in applying option (b), a multiplication factor had to be taken into account. This was introduced in order to level the differences between the old and the new salary system which had been in force since 2004. It thus appeared that, according to the Commission, the multiplication factor was decisive for the outcome of the comparison between options (a) and (b). The Ombudsman thus had to examine whether it was justified for the Commission to apply the multiplication factor in the way it did in the complainant's case.
23. The application of the multiplication factor is regulated in Annex XIII to the Staff Regulations. According to Article 1(1) of the Annex to the Conditions of Employment of Other Servants of the European Community, Annex XIII also applies to other servants such as temporary agents. Article 7(2) of Annex XIII provides:
"For each official, a multiplication factor shall be calculated at 1 May 2004. This multiplication factor shall be equal to the ratio between the basic monthly salary paid to an official before 1 May 2004 and the applicable amount defined in Article 2(2) of this Annex.
The basic monthly salary paid to the official on 1 May 2004 shall be equal to the product of the applicable amount and the multiplication factor.
The multiplication factor shall be applied in order to determine the official's basic monthly salary following advancement in step or adjustment of remunerations."
24. On this basis, the application of the multiplication factor to the basic monthly salary of officials, and other servants as regards ongoing employment, appeared to be well-founded and intended by the legislator. However, the issue at hand was whether the Commission was entitled to rely on the multiplication factor in order to effectively re-determine the complainant's classification at the end of his contract as a temporary agent.
25. The Commission acknowledged that the multiplication factor is not mentioned in the GID. However, it argued that it was clear from the purpose of the GID that the factor was implicitly contained in option (b).
26. The Ombudsman agreed that the Commission may have intended for the provision to be understood in the way advocated by it in the present case. However, he wondered why, if this were the case, it did not make this explicit in the GID. To his knowledge, all institutions adopted very similar GIDs and modified them when the new Staff Regulations came into force. The Commission's GID was adopted in April 2004. The Ombudsman found it rather puzzling that a decision, which was revised specifically due to the coming into force of the new Staff Regulations, did not take into account a problem resulting from the necessary transitional arrangements, namely, the issue regarding the application of the multiplication factor.
27. The Ombudsman was disappointed to note that, in its reply to his request for further information, the Commission did not provide him with any explanations in this respect. In the absence of an explicit reference to the multiplication factor in Article 5(2), and on the basis of the information provided to him, he provisionally considered that the way in which the Commission interpreted the second option contained in this Article could constitute maladministration.
28. In addition, whilst the Ombudsman had some understanding for the Commission's interpretation of the first and second options provided for in Article 5(2), he had serious doubts as regards its interpretation of the third option. He noted that the complainant had not commented on the Commission's view that the third option was not relevant in his case. However, in view of the importance of this issue, he, nevertheless, considered it justified to include it in his assessment.
29. The Commission argued that, since there was no difference between the grading in step of officials and temporary staff, the third option could be excluded. However, to the Ombudsman's knowledge, there never was such a difference in grading. Therefore, if the Commission's reading of the provision was correct, he wondered what useful purpose it could serve.
30. As far as the Ombudsman could see, and based on his understanding of the application of similar provisions by other institutions, the third option implied a virtual reconstruction of a newly appointed official's career, in which it is assumed that he/she started his/her career as a temporary agent in the grade to which he/she is appointed as an official. In the complainant's case, the Commission would thus have to assume that, when he first started working as a temporary agent, the complainant was classified in grade AST 3 but would have benefited from the normal step advancement until his recruitment as an official.
31. Taking account of this automatic advancement in step until the time of the complainant's appointment as an official in 2007, the Ombudsman considered that an application of the third option provided for in Article 5(2) could indeed lead to an advantageous result for him.
32. In light of the above, the Ombudsman came to the preliminary conclusion that the Commission failed to classify the complainant correctly within his new grade as an official and that this could amount to an instance of maladministration. He, therefore, made the following proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman:
"Taking into account the Ombudsman's above findings, in particular regarding the third option provided for in Article 5(2) of the GID, the Commission could reconsider the complainant's classification within grade AST 3."
The arguments presented to the Ombudsman after his friendly solution proposal
33. In its reply to the Ombudsman's friendly solution proposal, the Commission pointed out that the Ombudsman himself accepted that it may have intended the second option provided for in Article 5(2) of the GID to refer implicitly to the application of a multiplication factor. According to the Commission, the second option provided for in Article 5(2) of the GID took into account the fact that an official was working for the European institutions before his/her appointment. An explicit reference to a multiplication factor was, therefore, not required.
34. The Commission also stated that the revised Staff Regulations were adopted on 22 March 2004. They entered into force on 1 May 2004. The GID, adopted on 7 April 2004, was thus clearly intended to bring the relevant rules in line with the revised Staff Regulations. By way of example, the Commission referred to Article 4 of the GID, which mentions the renaming of the grades (A*/AD function group) as of 1 May 2004 without explicitly referring to Article 2(1) of Annex XIII to the Staff Regulations. In light of the transitional measures set out in Annex XIII to the Staff Regulations and the fact that the GID was adopted after the revised Staff Regulations, Article 5(2) of the GID could only be understood as requiring the changes to the salary grid to be taken into account when determining the most favourable option for the staff member concerned. There was no need for an explicit reference to the multiplication factor.
35. As regards the Ombudsman's interpretation of the third option provided for in Article 5(2) of the GID, the Commission reiterated that its own interpretation is different. In its opinion, the third option was not relevant in the complainant's case. The Commission also submitted that the complainant did not contest its decision in this respect.
36. The complainant did not make any observations on the Commission's submissions.
The Ombudsman's assessment after his friendly solution proposal
Preliminary remark
37. In its reply to the friendly solution proposal, the Commission stated that the complainant did not contest its decision in respect of the third option. It is not clear whether the Commission, therefore, wishes to challenge the Ombudsman's competence to look into this particular aspect. It is true that, in his friendly solution proposal, the Ombudsman noted that the complainant did not comment on the Commission's relevant view. However, in his Article 90(2) complaint, the complainant stated that he wished to complain about the Commission's relevant decision, without specifying any of the options provided for in Article 5(2) of the GID. The Ombudsman also considers that the issue as to the possible relevance of the third option is covered by the complainant's allegation. If the Commission intended its relevant remark as a challenge to his competence to look in to this aspect of the case, the Ombudsman, against this background, would see no reason to limit his assessment only to the first two options of Article 5(2) of the GID. In any event, in view of the importance of the matter, the Ombudsman considers it justified to include this issue in his assessment.
The Ombudsman's assessment of the Commission's response
38. In the following, the Ombudsman has to examine whether the Commission's reply to his friendly solution proposal contains a convincing response to that proposal.
39. The Ombudsman's preliminary finding of maladministration was based on: (i) the Commission's interpretation of the second option of Article 5(2) of the GID as implicitly referring to the multiplication factor; and (ii) its view regarding the irrelevance of the third option in the complainant's case. It is, therefore, appropriate to examine both aspects in turn.
40. As regards the application of the multiplication factor, the Commission submitted that an explicit reference to the multiplication factor was not necessary for essentially the following reasons:
41. It is true that the second option of Article 5(2) of the GID covers circumstances where an official was working for the European institutions before the appointment. However, and as already pointed out in the Ombudsman's friendly solution proposal, the question at issue here was whether the Commission was entitled to rely on the multiplication factor in order to effectively re-determine the complainant's classification at the end of his contract as a temporary agent. It is clear that the mere fact that an official was working for the European institutions before the appointment cannot justify the application of the multiplication factor as such.
42. It is equally true, and has already been pointed out in the friendly solution proposal that the GID was revised in April 2004 with a view to bringing it in line with the revised Staff Regulations. However, the Commission did not provide any reasons as to why, in its view, a decision intended to accommodate the entry into force of the revised Staff Regulations did not need explicitly to take into account the issue of the application of the multiplication factor, resulting from the necessary transitional arrangements. In the Ombudsman's view, the mere fact that Annex XIII to the Staff Regulations provides for transitional measures cannot justify applying the multiplication factor, without there being an explicit reference to it.
43. The Ombudsman continues to believe that the Commission may have intended for Article 5(2) of the GID to be interpreted in the way advocated by it in the present case. However, the Commission did not provide him with a satisfactory explanation as to why, in the absence of an explicit reference to it, the multiplication factor should apply to the second option of Article 5(2) of the GID.
44. Concerning the possible relevance of the third option of Article 5(2) of the GID, the Ombudsman regrets to note that, in its reply to his friendly solution proposal, the Commission merely reiterated its view and stated that its own interpretation was different to that of the Ombudsman. It, therefore, did not address the contents of the Ombudsman's considerations set out in paragraphs 28 to 30 of his friendly solution proposal. In these circumstances, the Ombudsman can only conclude that the Commission's reply does not contain a convincing response in relation to this aspect.
45. In view of the above, and on the basis of the information provided to him, the Ombudsman concludes that the Commission failed correctly to apply Article 5(2) of the GID or sufficiently to explain its application of this provision. This constitutes maladministration.
46. When the Ombudsman finds that there has been an instance of maladministration, he makes, if this is feasible, a friendly solution proposal to the institution concerned. If the proposal for the friendly solution is rejected, the Ombudsman can address a draft recommendation to the said institution.
47. The Ombudsman notes that the complainant did not submit any observations in the course of the inquiry. Such observations would have been useful, in particular regarding the possible relevance of the third option of Article 5(2) of the GID. In these circumstances, the Ombudsman considers that it would not be appropriate to make a draft recommendation in this case. However, a critical remark should be made, thus giving the Commission the opportunity to reconsider its general policy on this issue within the framework of the follow-up to the Ombudsman's critical remarks[1].
48. On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:
It is good administrative practice for an Appointing Authority to base its decisions on the classification of staff on the relevant rules and, if necessary, to provide a convincing explanation as to how it applied these rules. In the present case, the Ombudsman considers that the Commission failed correctly to apply Article 5(2) of the GID or sufficiently to explain its application of this provision. This constitutes maladministration.
49. The complainant and the Commission will be informed of this decision.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 22 December 2009
[1] As of 2006, the Ombudsman decided to conduct an annual study on the follow-up made by the institutions and bodies to critical and further remarks he has addressed to them. This follows a resolution passed by the European Parliament, with an eye to monitoring the level of compliance of the different institutions with the Ombudsman's recommendations. The Ombudsman's annual studies are available on his website.
