European Ombudsman
This complaint was treated as confidential. This document has therefore been anonymised.
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1. The complainant was a Commission official until he was transferred to the Council. On 1 January 2011, his service was transferred to the European External Action Service (EEAS). He thus now works for the EEAS.
2. During his time at the Commission, he had accumulated sufficient promotion points to be promoted. Thus, the Commission wrote to the Council to inform it that the complainant was one of the officials that would have been promoted by the Commission if they had still worked for the Commission on the day of the adoption of the promotion decisions. However, since the complainant had been transferred to the Council, he had to be removed from the list of promotable officials. Following the conclusions of the head of administrations meeting of 16 October 2003, it was therefore for the Council to decide whether to promote him.
3. The Council decided to promote the complainant with retroactive effect. It also informed the Commission of this decision and asked it to confirm that it would pay the arrears for the time between the promotion and the transfer of the complainant.
4. Since then, the complainant tried to obtain confirmation from the Commission that it would do so. Not having received any reply to his e-mail, he sent a reminder.
5. On 12 December 2011, the Commission explained to the complainant that its Director-General for Human Resources had already informed the Council, by sending a note, that the Commission had been the Appointing Authority for the time between the date of the retroactive promotion and his transfer to the Council, and that thus the Council's decision to promote the complainant, in as far as it related to the period during which he was not a Council official yet, was irregular and could not give rise to any rights. The Commission would therefore not pay any arrears for this period. It advised the complainant to turn to the Council in relation to any follow-up which the latter might have given to the Commission's note.
6. The complainant considered that there were glaring contradictions between the initial letter sent by the Commission as regards his promotion and this most recent letter. He further argued that the reason why he was not being paid the arrears was that he moved from one institution to another.
7. The complainant made the following allegation.
The Commission wrongly refused to pay the arrears resulting from the complainant's promotion with retroactive effect because he moved from the Commission to the Council.
8. The complainant claimed that the Commission should pay the arrears due to him because he was promoted.
9. The complaint was submitted on 1 March 2012. On 28 March 2012, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint. Given that, at first sight, it appeared that, in the present case, fairness would require that the complainant be paid the arrears he was claiming, he also asked the Commission to consider the possibility of settling this matter by making an ex gratia payment, also in order to avoid disproportionate expenditure of human resources in dealing with the case.
10. On 24 April 2012, the complainant wrote to the Ombudsman, informing him that, after submitting the present complaint, he had also made a complaint under Article 90(2) of the Staff Regulations and that the Commission had replied positively to that complaint.
11. The complainant argued that, having been promoted with retroactive effect, he should be paid the arrears due to him by the Commission, which he worked for until before transferring to the Council.
12. In its communication with the complainant before the opening of the present inquiry, the Commission denied responsibility for the arrears claimed by the complainant. In particular, the Commission argued that, since the Council could not validly have promoted him, there was no legal basis for the Commission to pay the arrears.
13. In its reply to the complainant's Article 90(2) complaint, the Commission stated that taking account of recent case law and the subsequent conclusions adopted by the heads of the administrations, the Commission in its capacity as Appointing Authority, which was the competent authority in the matter, would promote the complainant. It announced that, following this decision, it would calculate and pay him the sum due to him for the period during which he still worked for the Commission.
14. In his letter to the Ombudsman, the complainant stated that the matter was therefore settled. He thanked the Ombudsman for having dealt with his case so rapidly.
15. The Ombudsman notes that, according to a recent judgment,[1] when an official is transferred in the year in which he or she can be promoted, it is for the institution of origin (in the present case, the Commission) to decide on the promotion. However, at the time of the Council's decision to promote the complainant, the institutions (including the Commission) followed the conclusions of the heads of administration of 16 October 2003[2], according to which the receiving institution decides the question.
16. While the Commission initially relied on this new development to reject the complainant's claim, the Ombudsman is pleased to note that it has now decided not to hold this development against the complainant and instead remedy the irregularity by promoting him, and to pay him the arrears he claimed. He therefore considers that the Commission has settled this case to the complainant's satisfaction.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
The Commission has settled this case to the complainant's satisfaction.
The complainant and the Commission will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 22 May 2012
[1] Case F-128/10, Aurora Mara Carrasco et al v European Parliament, judgment of 28 June 2011, not yet reported.
[2] The text of these conclusions is not published but cited, partially, in the judgment cited above.
