European Ombudsman
This complaint was treated as confidential. This document has therefore been anonymised.
Dear Mr X,
On 1 August 2006, you submitted a complaint to the European Ombudsman concerning recruitment at the European Anti-Fraud Office ("OLAF"), in particular in connection with selection procedure COM/3644/2002.
On 25 September 2006, I forwarded the complaint to the Director General of OLAF. I informed you accordingly on the same day.
On 6 October 2006, you sent me a letter in which you raised a number of issues relating to the scope of my inquiry. In my reply of 19 October 2006, I clarified these issues.
OLAF sent the original English version of its opinion on 11 January 2007 and a translation of it into German on 18 January 2007. On 22 January 2007, I forwarded it to you with an invitation to make observations, which you sent on 15 February 2007.
I am writing now to let you know the results of the inquiries that have been made.
The complainant, a European Commission official, reported that, in early 1997, the Commission's anti-fraud office "Uclaf" approached him in order to discuss possible recruitment. According to him, he received a note in April 1997 from the Head of Office, Mr K., which he had to interpret as a recruitment offer conditional on overcoming organisational and budgetary difficulties. According to the complainant, Mr K. stated that Uclaf was "in principle very interested", given that the complainant's specific experience would be "of considerable interest". Mr K. referred to possible future staff reinforcement. However, the complainant stated that he was not able to obtain more concrete information in the ensuing months, during which Uclaf referred to organisational and budgetary problems or to a freeze on further recruitment. Furthermore, he stated that he did not receive replies to several letters and that, when he applied for open positions, he was never invited for an interview.
After Uclaf was transformed into OLAF in 1999, the complainant considered that his legitimate expectation to be recruited, which he believed the Commission to have established, had been transferred to OLAF. He reported that he had three meetings with OLAF's Director General, who had again pointed to organisational and budgetary problems in relation to recruitment.
The complainant submitted that, subsequently, at least one position was filled without having been published. According to him, this was against Article 4 of the Staff Regulations. He stated that, subsequently, he again applied for suitable positions within OLAF, but without success.
On 4 October 2002, procedure COM/3644/2002 was published, advertising the post of an "Administrator A7/A5 for the conception, formulation and follow up of legislation and policies on the protection of the financial interests of the Communities" in OLAF's unit A1. The complainant, who considered that his profile corresponded to the position perfectly, applied in good time. However, he alleged that, in the 20 months following the publication of the recruitment procedure, it was impossible for him to obtain information on its progress. He stated that OLAF did not reply to 11 letters he sent it, with the exception of one e-mail in which OLAF's Director General informed him that his request had been forwarded to the Head of the Human Resources Unit, Mr M.
By letter of 5 August 2004, which the complainant enclosed, Mr M. informed him that his application had been rejected and that another candidate had been selected already in 2002. Mr M. stated that the reason for the delay in his reply could be found in the complainant's accusations of incompetence and unprofessionalism against Mr M., contained in the complainant's letters to OLAF's Director General, in which he had also asked the Director General to withdraw the handling of his file from Mr M. Furthermore, according to Mr M., the complainant had accused him of having made incorrect statements. Even though Mr M. had clarified the situation, the complainant did not stop making disparaging remarks about him. Therefore, Mr M. stated that it should be understandable to the complainant that did not wish to have any more contact with him, which, furthermore, was what the complainant himself had requested.
The complainant stated that he was "surprised" by this reaction. He added that, when he asked OLAF's Director General for his opinion on Mr M.'s letter, the latter replied that he did not have anything to add to that it.
The complainant considered that, even if one assumed that he had not been entitled to being recruited, he would, on the basis of an employer's duty of care ("beamtenrechtliche Fürsorgepflicht"), have been entitled to proper consideration of his applications and thus at least to being invited to an interview. Since, according to the complainant, OLAF had ignored his letters for 20 months, it had violated this duty of care as well as binding procedural rules. In particular, the complainant referred to Commission guidelines for internal mobility ("mobilité inter-service"), according to which the Appointing Authority had to inform a candidate about a negative decision within one week. Mr M.'s failure to act according to these rules could not be justified by the "absurd reasoning" that he had been disparaged by the complainant. Furthermore, the complainant argued that Mr M. was entitled to protection under Article 24 of the Staff Regulations if he felt disparaged, and was not entitled to resort to a form of "self-redress".
The complainant considered that, due to these procedural errors, the decision in selection procedure COM/3644/2002 was unlawful. Furthermore, he took the view that some of the persons who had participated in the selection process, in particular Mr M., had been biased against him and should have abstained from participating in that selection procedure. Therefore, he argued that the decision would have to be withdrawn and be replaced by a new decision.
On 29 October 2004, the complainant lodged a complaint under Article 90(2) of the Staff Regulations. In its decision on this complaint, dated 25 February 2005, OLAF referred to its wide margin of discretion concerning recruitment and to the relevant case-law of the Community Courts. Concerning promotions and, by analogy, transfers of personnel, the Appointing Authority had to make a comparative assessment using the method it considered the most appropriate.
OLAF explained in some detail which aspects of the selected candidate's training and professional experience it had considered to outweigh those of the complainant.
As to the alleged infringement of the complainant's legitimate expectations, OLAF recalled that, according to settled case-law, one of the conditions for the existence of legitimate expectations was a precise, unconditional and consistent assurance. However, since there had never been an unconditional assurance (Mr K.'s note in particular had not contained any precise or unconditional statements), OLAF had not been bound to act in a certain way towards the complainant.
As to the late communication of the result of selection procedure COM/3644/2002 to the complainant, OLAF acknowledged that this could indeed be considered as an infringement of the principle of good administration. However, there were no indications that the procedure itself had been affected.
As to the fact that the complainant had not been invited to an interview, it was in principle up to the Appointing Authority to decide at what stage and with which candidates to hold interviews. Furthermore, according to internal rules, interviews were not necessary if a candidate had recently been interviewed for a similar post. OLAF stated that, in the case at issue, none of the candidates had been interviewed. Therefore, the principle of equal treatment had been respected.
Furthermore, the complainant had had several meetings with OLAF's Director General so that his right to be heard had not been infringed. In conclusion, OLAF took the view that the selection procedure had not been vitiated by any errors.
In his complaint to the European Ombudsman, the complainant submitted that OLAF's appraisal of his Article 90(2) complaint was erroneous. According to him, it over-emphasised its margin of discretion and it referred to irrelevant case-law.
The complainant also criticised OLAF's failure to address the issue of potential bias. Furthermore, he noted that it appeared that OLAF had not initiated any disciplinary proceedings against Mr M. for what the complainant considered to be his professional negligence.
In this context, the complainant referred to a letter OLAF's Director General had sent him on 4 October 2005. In this letter, the Director General informed the complainant that the recruitment decision had been taken exclusively on the basis of a comparison of the candidates' merits and without any influence whatsoever of persons who could have been prejudiced against the complainant. The only neglected aspect in the procedure had been that the unsuccessful candidates had been informed about the results belatedly. In this regard, he had given an order that, in future, candidates who have not been selected would be informed about the Appointing Authority's decision in writing and in good time. The Director General went on to add that, since the complainant had not taken the issue to court, he hoped that this letter would end the correspondence. Any future requests would be considered as unjustified and would not be dealt with.
The complainant suggested that the Ombudsman should look at his case from the point of view of a structural problem. He considered that OLAF was "its own judge" in personnel matters. OLAF was called "independent". However, the complainant took the view that this could only be the case in relation to its investigations. Therefore, he considered it problematic that OLAF was acting as the Appointing Authority in his case, without being supervised by the Commission's Directorate-General for Personnel.
The complainant considered that his career had been severely and adversely affected by OLAF's behaviour, given that he had trusted that he would be recruited by it and thus had refrained from applying for other suitable posts.
In summary, the complainant made the following allegations:
The complainant claimed that
The Ombudsman noted that the complainant's second allegation appeared to relate to events that had taken place in or around the year 2000 and in any event before 2004. In view of the time-limit of two years in which, according to Article 2(4) of his Statute, complaints may be made to the Ombudsman, he found that he was not entitled to investigate this allegation.
As to the complainant's fifth allegation and his related third claim, the Ombudsman noted that the complainant did not appear to have raised this issue in his contacts with OLAF and that he had not approached the Commission in this respect, either. Since the complainant had therefore not made the appropriate prior administrative approaches, in accordance with Article 2(4) of the Ombudsman's Statute, the Ombudsman found that he could not deal with this issue, either.
Therefore, the Ombudsman decided to open an inquiry into the complainant's first, third and fourth allegations and into his first and second claims.
In its opinion, OLAF recalled that, in relation to aspect (b) of his third allegation, the complainant had argued that certain persons involved in selection procedure COM/3644/2002 had been biased against him, in particular the Head of the Human Resources Unit. However, according to OLAF, the Head of the Human Resources Unit had in fact not played any part in the decision taken in the selection procedure.
As to the complainant's other allegations and claims, OLAF considered that the complainant's submission to the Ombudsman did not contain any new factual elements or allegations beyond those already addressed in the Appointing Authority's decision on the complainant's complaint under Article 90(2) of the Staff Regulations. OLAF therefore referred the Ombudsman to that decision.
In conclusion, OLAF stated that it regretted that no letter had been sent to the complainant in December 2002, at the time a successful candidate had been selected for the post at issue in selection procedure COM/3644/2002. OLAF apologised to the complainant for this "oversight". In all other respects, OLAF considered that the complainant's allegations and claims were not well founded.
In his observations, the complainant took the view that OLAF's submission to the Ombudsman had not in any way contributed to shedding light on the matter. Instead, its opinion constituted a continuation of OLAF's "sloppy and superficial administrative work" that had already characterised selection procedure COM/3644/2002. The complainant emphasised that OLAF continued to ignore his point that it had not replied to a large number of his letters and that it had only sent a (negative) reply after 20 months, although he had repeatedly brought the delay to the attention of OLAF's Director General and of the Head of the Human Resources Unit. Furthermore, the complainant considered that OLAF had tried to minimise the problem by referring to a mere "oversight".
The complainant added that it was remarkable that OLAF had apologised for the incorrect handling of his application. However, such a symbolic but legally insignificant gesture, which, furthermore, had taken OLAF five years to make, could not compensate him for the disadvantages he had suffered in relation to his career, given that, during a certain period, he had relied on being recruited by it.
Furthermore, the complainant considered that it was not safe to assume that OLAF would learn from its "intentional infringements of procedural rules", given that there had been no measures against those responsible, but that OLAF's Director General had instead "covered up" for his staff. The complainant considered that this was particularly serious because OLAF had been established in order to supervise the legality of the behaviour of the EU institutions.
1.1 The complainant, a European Commission official, submitted that, following correspondence with the Head of the Commission's then anti-fraud office "Uclaf" in 1997, he legitimately expected to be recruited by it. According to him, this expectation was transferred to the European Anti-Fraud Office ("OLAF") following its creation in 1999. In particular, the complainant took the view that he should have been recruited in the framework of selection procedure COM/3644/2002, which, he alleged, had not been conducted in accordance with procedural rules. Following an unsuccessful complaint under Article 90(2) of the Staff Regulations, the complainant turned to the European Ombudsman. In summary, he made the following allegations: (1) OLAF failed to act according to his legitimate expectation to be recruited; (2) OLAF acted unlawfully in filling certain positions without having published them; (3) selection procedure COM/3644/2002 was not handled properly, in particular in that (a) OLAF had not replied to several letters from the complainant and in that (b) certain persons who were involved in the selection procedure had been biased against him; (4) OLAF had failed to inform the complainant of the result of the procedure in good time; and (5) the fact that OLAF acted as Appointing Authority was systematically problematic. The complainant claimed that (1) the decision on selection procedure COM/3644/2002 should be annulled; that (2) he should be compensated; and that (3) OLAF should not be allowed to act as Appointing Authority.
1.2 The Ombudsman found that he could not deal with the complainant's second allegation, given that the time-limit for complaining to the Ombudsman, laid down in Article 2(4) of his Statute, had been exceeded. Furthermore, the Ombudsman was not entitled to investigate the complainant's fifth allegation and his related third claim, since they had not been preceded by the appropriate prior administrative approaches to OLAF, as required under Article 2(4) of the Ombudsman's Statute. Thus, the Ombudsman opened an inquiry into the complainant's first, third and fourth allegations and into his first and second claims.
1.3 In the decision which follows, the Ombudsman considers it useful first to discuss OLAF's alleged failure to act according to the complainant's legitimate expectations (first allegation) and then to assess the procedural questions the complainant raised in relation to selection procedure COM/3644/2002. As regards the latter, the Ombudsman will first look at the alleged bias of persons involved in the selection procedure (allegation 3(b)); then assess OLAF's alleged failure to inform the complainant of the result of the procedure in good time (fourth allegation); and finally OLAF's alleged failure to reply to letters from the complainant (allegation 3(a)). Lastly, the Ombudsman will deal with the complainant's claims.
2.1 The complainant submitted that, since 1997, he legitimately expected to be recruited by Uclaf and, subsequently, by OLAF. In support of this view, he referred in particular to a note he had received from the Head of Uclaf, Mr K., in April 1997, in which the latter had stated that Uclaf was "in principle very interested" in the complainant, given that his specific experience would be "of considerable interest". It appeared from the complainant's complaint to the Ombudsman that he considered that, since he was not recruited following this initiative by Mr K., he should have been recruited following one of his applications for open positions over the following years and at the latest in the framework of selection procedure COM/3644/2002.
2.2 In its decision on the complainant's complaint under Article 90(2) of the Staff Regulations, OLAF recalled that, according to settled case-law, one of the conditions for the existence of legitimate expectations was a precise, unconditional and consistent assurance. However, since, according to OLAF, there had never been an unconditional assurance, OLAF had not been bound to act in a certain way towards the complainant. In particular, OLAF argued that Mr K.'s note had not contained any precise or unconditional statements. In its opinion on the present complaint, OLAF did not make any additional comments.
2.3 The Ombudsman recalls that the protection of legitimate expectations is a principle of good administration, laid down in Article 10(2) of the European Code of Good Administrative Behaviour(1). He notes that, in the present case, the complainant combined his allegation that OLAF failed to act according to his legitimate expectations with a claim for compensation. In such cases, the Ombudsman has taken the view that the complainant must show that his situation fulfils the conditions set up by the Community courts concerning non-contractual liability for breach of legitimate expectations(2). According to the established case-law of the Community courts, three conditions must be satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules(3).
2.4 In so far as the complainant's view that he legitimately expected to be recruited by OLAF is based on the note he received from Mr K. in 1997, the Ombudsman observes that he has not been provided with a copy of that note. Therefore, his assessment must be based on the quotation from this note, which the complainant included in his complaint. This quotation, however, does not contain a precise and unconditional offer of employment. Instead, as OLAF pointed out correctly in its decision, Mr K. only appears to have signalled a general interest in recruiting the complainant without referring to any specific post. In his submissions to the Ombudsman, the complainant has not referred to any facts or arguments that could support his interpretation of the note. Therefore, the Ombudsman considers that the complainant has not established his view that Mr K.'s note created a legitimate expectation on his part to be recruited.
2.5 In so far as the complainant's view relates to his subsequent applications, he has not provided any details as to what statements or behaviour on the part of OLAF could have created a legitimate expectation to be recruited. It is obvious that the fact that a candidate possesses the necessary qualifications and experience for a certain job does not mean that he is entitled to expect to be recruited. In as far as selection procedure COM/3644/2002 in particular is concerned, the complainant has not referred to any assurances given to him by OLAF that he would be recruited.
2.6 On the basis of these considerations, the Ombudsman considers that the complainant has not established his position that OLAF infringed any legitimate expectations on his part to be recruited. The Ombudsman finds not maladministration in relation to this aspect of the complaint.
3.1 The complainant alleged that selection procedure COM/3644/2002 had not been handled properly from a procedural point of view. He submitted that certain persons involved in the procedure, in particular the Head of the Human Resources Unit, Mr M., had been biased against him and should thus have abstained from participating in the said procedure. Furthermore, he alleged that OLAF did not, as required by the Commission's rules on internal mobility, inform him of the result of the procedure in good time, but did so only after 20 months. He also alleged that OLAF failed to reply to several letters he had sent it. The complainant claimed that the decision on procedure COM/3644/2002 should be annulled and that he should be compensated.
3.2 In its opinion, OLAF submitted that Mr M. had not played any part in the decision taken in selection procedure COM/3644/2002. OLAF stated that it regretted that no letter had been sent to the complainant in December 2002, that is, at the time a successful candidate had been selected. It apologised to the complainant for this "oversight".
3.3 In his observations, the complainant took the view that OLAF continued to ignore his point that it had not replied to a large number of his letters and that it had only sent a (negative) reply after 20 months, although he had repeatedly brought the delay to the attention of OLAF's Director General and of Mr M. Furthermore, the complainant considered that OLAF had tried to minimise the problem by referring to a mere "oversight". The complainant added that it was remarkable that OLAF had apologised for its incorrect handling of his application. However, he considered that this symbolic gesture, which had taken OLAF five years to make, could not compensate him for the disadvantages he had suffered in relation to his career, given that, during a certain period, he had relied on being recruited. Furthermore, the complainant considered that it was not safe to assume that OLAF would learn from its "intentional infringements of procedural rules", given that there had been no measures against those responsible, but that OLAF's Director General had instead "covered up" for his staff.
3.4 As to the alleged bias of persons involved in selection procedure COM/3644/2002, the Ombudsman notes that the complainant has not commented on OLAF's assertion that the Head of its Human Resources Unit had not been involved in the decision on the selection of a candidate. As to any other persons involved in the selection who might have been prejudiced against him, the complainant has not submitted any information as to who these persons could have been and why he considered that they may have been biased against him. Therefore, the Ombudsman considers that the complainant has not substantiated his view that persons involved in the selection of a candidate were prejudiced against him. The Ombudsman finds no maladministration in this respect.
3.5 As to OLAF's alleged failure to inform the complainant in good time about the outcome of the procedure, the Ombudsman notes that OLAF acknowledged that it had failed to inform the complainant in December 2002, when a successful candidate had been selected. In view of the complainant's numerous contacts with OLAF that preceded his complaint to the Ombudsman, the Ombudsman is not entirely convinced of OLAF's characterisation of its omission as an "oversight". However, the Ombudsman is pleased to note that OLAF apologised for its failure to inform the complainant. Furthermore, the Ombudsman notes that OLAF's Director General declared, in his letter to the complainant of 4 October 2005, that he had given an order that, in the future, unsuccessful candidates would be informed of the Appointing Authority's decision in writing and in good time. The Ombudsman has no reason to doubt that this declaration has been put into practice. Under these circumstances, the Ombudsman considers that no further inquiries into this aspect of the complaint are justified.
3.6 As to OLAF's alleged failure to reply to several letters from the complainant, the Ombudsman recalls that principles of good administration require that authorities ensure that persons approaching them with questions or requests receive a reply within a reasonable time. This principle must not only apply to members of the public, but also to officials of other institutions or departments. The complainant attached to his complaint copies of a large number of e-mails, sent between February 2003 and May 2004 to a number of OLAF officials, to which, with the exception of one acknowledgement of receipt, he does not appear to have received a reply. OLAF has not commented on this issue, either in its decision on the complainant's Article 90(2) complaint, or in its opinion on the present complaint. In his letter of 5 August 2004, the Head of OLAF's Human Resources Unit, Mr M., explained that the absence of a reply from him was due to the complainant's continued accusations of incompetence and unprofessionalism against him. It is true that some of the complainant's e-mails to Mr M. as well as to OLAF's Director General contain such criticism. However, the Ombudsman considers that the critical tone of a correspondence does not in itself justify leaving such correspondence unanswered. Furthermore, the apparent conflict between Mr M. and the complainant would in any case not explain why the complainant does not appear to have received a reply from the other persons he turned to with his requests. In the absence of an explanation or apology on the part of OLAF, the Ombudsman concludes that OLAF's failure to reply to the requests the complainant sent between February 2003 and May 2004 in relation to selection procedure COM/3644/2002 constitutes an instance of maladministration. A critical remark will be made below.
4.1 In view of the fact that the Ombudsman does not have any indication that the outcome of selection procedure COM/3644/2002 was influenced by OLAF's behaviour towards the complainant, the Ombudsman considers that the complainant has not established his claim that the decision on selection procedure COM/3644/2002 should be annulled.
4.2 As to the complainant's claim that he should be compensated, the Ombudsman considers that, since the complainant has not established that he was entitled legitimately to expect to be recruited by OLAF, and since its appears that the outcome of selection procedure COM/3644/2002 was not influenced by the instance of maladministration identified by the Ombudsman, there are no grounds on which a claim for compensation could be sustained.
On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by OLAF in relation to the complainant's allegation that it had not acted according to his legitimate expectation to be recruited as well as in relation to his allegation that certain persons involved in selection procedure COM/3644/2002 were biased against him.
As regards the complainant's allegation that he was not informed of the outcome of the selection procedure in good time, the Ombudsman considers that no further inquiries into this issue are justified.
As regards OLAF's alleged failure to reply to correspondence from the complainant, it is necessary to make the following critical remark:
Principles of good administration require that authorities ensure that persons approaching them with questions or requests receive a reply within a reasonable time. This principle must not only apply to members of the public, but also to officials of other institutions or departments. In the absence of an explanation or apology, OLAF's failure to reply to requests for information that the complainant sent between February 2003 and May 2004 in relation to selection procedure COM/3644/2002 constitutes an instance of maladministration.
Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.
The Director General of OLAF will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) Article 10(2) of the Code is worded as follows: "The official shall respect the legitimate and reasonable expectations that members of the public have in the light of how the Institution has acted in the past."
(2) See the following decisions, which are available on the Ombudsman's website: decision on complaint 548/2002/GG, (http://www.ombudsman.europa.eu/decision/en/020548.htm); decision on complaint 1330/2004/PB (http://www.ombudsman.europa.eu/decision/en/041330.htm); and decision on complaint 272/2005/(OV)DK (http://www.ombudsman.europa.eu/decision/en/050272.htm).
(3) See Case T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paragraph 70; Case T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, paragraph 38; Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 102.
