Език на преглед в момента:
- EN English
Преводът на страницата ще бъде на разположение след няколко минути. Ще бъдете уведомени веднага щом той бъде готов.
Draft recommendation to the European Commission in complaint 109/98/ME
Препоръка
Случай 109/98/ME - Открит на Понеделник | 02 март 1998 - Препоръка за Вторник | 18 януари 2000 - Решение от Понеделник | 03 юли 2000
(Made in accordance with Article 3 (6) of the Statute of the Ombudsman.(1))
On 9 January 1998, Mr R., Mr S. and Mr Ö., lodged a joined complaint with the European Ombudsman concerning their grading in the European Commission.
The complainants were employed as fishery inspectors by the European Commission in November 1996 on the basis of their successful participation in competition 25/T/XIV/95. The competition had advertised the posts as leading to employment as temporary agents in grades B5/B4. After having commenced their employment, the complainants discovered that other fishery inspectors who were equally or less qualified had been placed in higher grades, namely B3, B2 and B1. These higher grades had been provided for in earlier competitions on the basis of which those other inspectors were employed. The complainants later noted that a competition subsequent to their own was advertising employment as fishery inspectors in grades B3/B2.
The complainants did not understand why only they had been employed in lower grades. As they did not receive any satisfactory reasons for these differences, they thought that there was unjustified unequal treatment and initiated an internal complaints procedure in the Commission.
The internal procedure involved officials from Directorate General XIV (fisheries), Directorate General IX (personnel), the Legal Service and Financial Control (DG XX). During the procedure it became clear that the advertisement of the posts in grades B4/B5 was the consequence of an administrative error. The statutory unit of Directorate General IX proposed, with the support of Directorate General XIV, that the inequality caused should be remedied through an exceptional retroactive reclassification.
The decision eventually taken by the superior officials of Directorate General IX did however not mention if the classification was an error or not, but concluded that the competition had clearly stated that the grades were B4/B5. Thus, no right to reclassification could materialise.
The complainants then complained to the Ombudsman, alleging that they were victims of unequal treatment.
The Commission's opinion
In its opinion, the Commission stated that there could be no question of the complainants having been discriminated against. It relied on the fact that the recruitment procedure which led to the complainants' employment was not the same as that for the inspectors who were placed in a higher grade. The Commission also stated:
The complainant's observations
In their observations the complainants maintained their allegations. They especially underlined what to them was obvious discrimination in that all fishery inspectors recruited before and after them had been placed in higher grades, despite the fact that they were performing exactly the same work. They also claimed that the fact that the notice of competition indicated grades B4/B5, did not remove the obligation on the Commission to explain the objective grounds for different treatment of people who have the same qualifications and experience and who perform the same work. They considered that the Commission's failure to provide such objective grounds supported the earlier conclusion, reached by the Commission's own officials that the classification was caused by an administrative error.
After a careful examination of the file, the Ombudsman considered that there was a prima facie instance of maladministration. He also concluded that it was still possible to remedy the maladministration and therefore wrote to the Commission in accordance with Article 3 (5) of the Statute of the Ombudsman (2), with a view to seeking a friendly solution to the complaint.
By referring to the observations of the complainants, the Ombudsman pointed out that, on the basis of the evidence in the file, the Commission did not seek to contradict the allegations put forward by the complainant, nor did it attempt to explain the changes in the grades. The Ombudsman did not feel that the Commission's actions in this matter met the high standards which one is entitled to expect from the Community institutions. Thus, the Ombudsman suggested that the Commission might review its position in relation to the complaint.
In its reply, the Commission referred to its new recruitment policy, adopted in November 1996 which meant that competitions should not be opened to all grades within a category as it had been in the past, but that the grades should be specified in the notice of competition following the expressed need by the service in question. In case the service did not state differently, the competition was intended for the lowest grade. On these grounds, competition 25/T/XIV/95 was arranged for grades B5/B4 and accordingly the highest grade possible for recruitment of the complainants was B4. A basic principle for the new recruitment policy was that competitions should comprise the intermediate grades, i.e. A5/A4 and B3/B2. The future competition 7T/XIV/97 for fisheries inspectors was therefore arranged according to these conditions. The Commission further pointed out that the Commission had to respect the grade mentioned in the competition notice and to deviate from it would not be in line with the principles of sound financial management. It would be criticised by the Financial Control and could be criticised by the Court of Auditors. Hence the Commission regretted that it could not comply with the friendly solution as suggested by the Ombudsman.
It therefore appeared that a friendly solution to the complaint could not be achieved.
1 The classification of the candidates in grade B5/B4
1.1 It is good administrative behaviour to ensure that the principle of equality of treatment is respected and that discrimination is avoided. The Court of Justice has held on numerous occasions that the principle of equality of treatment is of fundamental importance in relation to employment.(3) Although most of the case-law of the Court is based on Article 5 (3) of the Staff Regulations, which is not applicable to temporary agents, the Court has established that the principle of equality of treatment is applicable also to temporary agents.(4) If any difference in treatment is made, the Community institutions have to ensure that it is justified by the objective relevant features of the particular case.
1.2 In the present case, the complainants were recruited as fishery inspectors by the European Commission and placed in grades B5/B4. Fishery inspectors already employed by the Commission, who were equally or less qualified, had however been placed in higher grades, namely B3, B2 and B1. After the complainants had been employed, a competition subsequent to their own advertised employment as fishery inspectors in the grades B3/B2. The complainants allege that their recruitment in the lower grades was the result of an administrative mistake.
1.3 The Commission explained the different treatment by the fact that the complainants had been recruited on the basis of their successful participation in competition 25/T/XIV/95. This competition had advertised the posts as leading to employment in grades B5/B4. The Commission further explained the different treatment as being part of its new recruitment policy leading to that future competitions should comprise the intermediate grades, i.e. B3/B2. However, in case the service did not state differently, as in the present case, the competition was intended for the lowest grade. The Commission also claimed that it risked criticism by its Financial Controller and the Court of Auditors.
1.4 Against this background, the Ombudsman reached the following conclusions:
The principle of equality of treatment is fundamental in relation to employment. Any difference in treatment has to be justified on relevant objective grounds. In the present case, the Commission has not contested that the posts were advertised in the lower grades as the result of an administrative mistake. Thus the reason for recruiting the complainants in the lower grades seems to be an administrative error by the Commission. Since this is not an objective ground which could justify different treatment, there is a breach of the principle of equality of treatment and therefore an instance of maladministration.
1.5 In accordance with Article 3 (6) of the Statute of the European Ombudsman, the Ombudsman therefore makes the following draft recommendation to the Commission:
The Commission and the complainants will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion before 30 April 2000. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
Yours sincerely,
Jacob Söderman
THE COMPLAINT
On 9 January 1998, Mr R., Mr S. and Mr Ö., lodged a joined complaint with the European Ombudsman concerning their grading in the European Commission.
The complainants were employed as fishery inspectors by the European Commission in November 1996 on the basis of their successful participation in competition 25/T/XIV/95. The competition had advertised the posts as leading to employment as temporary agents in grades B5/B4. After having commenced their employment, the complainants discovered that other fishery inspectors who were equally or less qualified had been placed in higher grades, namely B3, B2 and B1. These higher grades had been provided for in earlier competitions on the basis of which those other inspectors were employed. The complainants later noted that a competition subsequent to their own was advertising employment as fishery inspectors in grades B3/B2.
The complainants did not understand why only they had been employed in lower grades. As they did not receive any satisfactory reasons for these differences, they thought that there was unjustified unequal treatment and initiated an internal complaints procedure in the Commission.
The internal procedure involved officials from Directorate General XIV (fisheries), Directorate General IX (personnel), the Legal Service and Financial Control (DG XX). During the procedure it became clear that the advertisement of the posts in grades B4/B5 was the consequence of an administrative error. The statutory unit of Directorate General IX proposed, with the support of Directorate General XIV, that the inequality caused should be remedied through an exceptional retroactive reclassification.
The decision eventually taken by the superior officials of Directorate General IX did however not mention if the classification was an error or not, but concluded that the competition had clearly stated that the grades were B4/B5. Thus, no right to reclassification could materialise.
The complainants then complained to the Ombudsman, alleging that they were victims of unequal treatment.
THE INQUIRY
The Commission's opinion
In its opinion, the Commission stated that there could be no question of the complainants having been discriminated against. It relied on the fact that the recruitment procedure which led to the complainants' employment was not the same as that for the inspectors who were placed in a higher grade. The Commission also stated:
- "Since the notice of competition (...) stated that the intended salary category was B4/B5, it is evident that the persons concerned applied for posts with the Commission at this level, and that they cannot deny this fact as they applied for the posts voluntarily." (translated by the Ombudsman's secretariat)
The complainant's observations
In their observations the complainants maintained their allegations. They especially underlined what to them was obvious discrimination in that all fishery inspectors recruited before and after them had been placed in higher grades, despite the fact that they were performing exactly the same work. They also claimed that the fact that the notice of competition indicated grades B4/B5, did not remove the obligation on the Commission to explain the objective grounds for different treatment of people who have the same qualifications and experience and who perform the same work. They considered that the Commission's failure to provide such objective grounds supported the earlier conclusion, reached by the Commission's own officials that the classification was caused by an administrative error.
THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION
After a careful examination of the file, the Ombudsman considered that there was a prima facie instance of maladministration. He also concluded that it was still possible to remedy the maladministration and therefore wrote to the Commission in accordance with Article 3 (5) of the Statute of the Ombudsman (2), with a view to seeking a friendly solution to the complaint.
By referring to the observations of the complainants, the Ombudsman pointed out that, on the basis of the evidence in the file, the Commission did not seek to contradict the allegations put forward by the complainant, nor did it attempt to explain the changes in the grades. The Ombudsman did not feel that the Commission's actions in this matter met the high standards which one is entitled to expect from the Community institutions. Thus, the Ombudsman suggested that the Commission might review its position in relation to the complaint.
In its reply, the Commission referred to its new recruitment policy, adopted in November 1996 which meant that competitions should not be opened to all grades within a category as it had been in the past, but that the grades should be specified in the notice of competition following the expressed need by the service in question. In case the service did not state differently, the competition was intended for the lowest grade. On these grounds, competition 25/T/XIV/95 was arranged for grades B5/B4 and accordingly the highest grade possible for recruitment of the complainants was B4. A basic principle for the new recruitment policy was that competitions should comprise the intermediate grades, i.e. A5/A4 and B3/B2. The future competition 7T/XIV/97 for fisheries inspectors was therefore arranged according to these conditions. The Commission further pointed out that the Commission had to respect the grade mentioned in the competition notice and to deviate from it would not be in line with the principles of sound financial management. It would be criticised by the Financial Control and could be criticised by the Court of Auditors. Hence the Commission regretted that it could not comply with the friendly solution as suggested by the Ombudsman.
It therefore appeared that a friendly solution to the complaint could not be achieved.
THE DECISION
1 The classification of the candidates in grade B5/B4
1.1 It is good administrative behaviour to ensure that the principle of equality of treatment is respected and that discrimination is avoided. The Court of Justice has held on numerous occasions that the principle of equality of treatment is of fundamental importance in relation to employment.(3) Although most of the case-law of the Court is based on Article 5 (3) of the Staff Regulations, which is not applicable to temporary agents, the Court has established that the principle of equality of treatment is applicable also to temporary agents.(4) If any difference in treatment is made, the Community institutions have to ensure that it is justified by the objective relevant features of the particular case.
1.2 In the present case, the complainants were recruited as fishery inspectors by the European Commission and placed in grades B5/B4. Fishery inspectors already employed by the Commission, who were equally or less qualified, had however been placed in higher grades, namely B3, B2 and B1. After the complainants had been employed, a competition subsequent to their own advertised employment as fishery inspectors in the grades B3/B2. The complainants allege that their recruitment in the lower grades was the result of an administrative mistake.
1.3 The Commission explained the different treatment by the fact that the complainants had been recruited on the basis of their successful participation in competition 25/T/XIV/95. This competition had advertised the posts as leading to employment in grades B5/B4. The Commission further explained the different treatment as being part of its new recruitment policy leading to that future competitions should comprise the intermediate grades, i.e. B3/B2. However, in case the service did not state differently, as in the present case, the competition was intended for the lowest grade. The Commission also claimed that it risked criticism by its Financial Controller and the Court of Auditors.
1.4 Against this background, the Ombudsman reached the following conclusions:
The principle of equality of treatment is fundamental in relation to employment. Any difference in treatment has to be justified on relevant objective grounds. In the present case, the Commission has not contested that the posts were advertised in the lower grades as the result of an administrative mistake. Thus the reason for recruiting the complainants in the lower grades seems to be an administrative error by the Commission. Since this is not an objective ground which could justify different treatment, there is a breach of the principle of equality of treatment and therefore an instance of maladministration.
1.5 In accordance with Article 3 (6) of the Statute of the European Ombudsman, the Ombudsman therefore makes the following draft recommendation to the Commission:
- The Commission should take the necessary steps in order to remedy the discrimination in the former employment situation of the complainants.
The Commission and the complainants will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion before 30 April 2000. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
Yours sincerely,
Jacob Söderman
(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113/15.
(2) "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint."
(3) See for example: Case 119/83, Appelbaum v. Commission, ECR [1985] 2423, Joined cases 129 and 274/82, Charles Lux v. Court of Auditors, ECR [1984] 4127 and Case 92/85, Hamai v. Court of Justice, ECR [1986] 3157.
(4) See for example: T-207/95, Ibarra Gil v. Commission, ECR-SC [1997] 1A-0013, II-0031 and T-211/95, Petite-Laurent v. Commission, ECR-SC [1997] 1A-0021, II-0057.