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Draft recommendation to the European Commission in complaint 521/98/ADB
Препоръка
Случай 521/98/ADB - Открит на Понеделник | 06 юли 1998 - Препоръка за Сряда | 15 март 2000 - Решение от Сряда | 08 ноември 2000
(Made in accordance with Article 3 (6) of the Statute of the Ombudsman.(1))
In September 1995, a Belgian company, ESEDRA s.p.r.l., was put in charge by the European Commission of running the " Early Childhood Centre Clovis" (hereafter ECC Clovis) in Brussels, which is a crèche set up for children of the personnel of Community institutions, among which the children of the complainants.
In October 1997, the parents of children attending the ECC Clovis heard rumours about an alleged investigation of a paedophilia case within the crèche. During the second half of October 1997, these rumours were confirmed by the European Commission through written communications and meetings with the parents.
According to the information disclosed, the investigation by the Belgian authorities originated in a complaint by the parents of a child attending the ECC Clovis, and led them to suspect members of the personnel employed in the crèche. The director of the crèche was informed of the problem by the end of May 1997, and the European Commission was informed at the beginning of June 1997.
(i) In summary, the complainants claimed that during the whole process the Commission failed to act in an effective, transparent and timely way. It failed to inform the parents. Other Community institutions, the paediatrician of the crèche and the Joint Committee on the Management of the Early Childhood Centre were only informed months after the Commission became aware of the issue, and once the case had already been made public. According to the complainants the information disclosed was insufficient and inadequate, furthermore, the Commission failed to request important information from the Belgian authorities in charge of the investigations. In the complainants' view the Commission could have disclosed information without infringing the secrecy of procedures or the right of privacy of the victims.
Regarding this first claim the complainants considered that the Commission should adopt a code containing clear provisions in order to avoid similar flaws in cases of suspected abuse. In addition they urged the Commission to disclose the information it withheld so far.
(ii) The second claim brought forward by the complainants related to the supervision of ESEDRA s.p.r.l., the company in charge of running the ECC Clovis. The complainants expressed the view that the Commission services, because of understaffing, failed to use all the control possibilities provided for in the contract with ESEDRA s.p.r.l.
The complainants asked the Commission to take the appropriate steps to solve both the procedural problem and the question of understaffing.
The European Commission's opinion
The opinion of the European Commission on the complaint was in summary the following:
As a preliminary matter, the Commission stressed that the alleged cases of child abuse were being prepared for an possible judgement by the Belgian authorities, therefore the information relating directly to the cases was therefore confidential. Furthermore, the Commission emphasised that it had taken all possible measures for the security of children in its crèches.
(i) The available information had been transmitted at all levels but always with mindful care for the privacy of the victims, and the secrecy of the judicial proceeding. Meetings were organised with the parents, the personnel of the crèche, the Joint Committee on the Management of the Early Childhood Centre, and with external Belgian Institutions. Conferences as well as specific training and awareness sessions for the personnel were organised. The members of the personnel of the crèche were only suspected at a late stage of the procedure, and the case was made public in October 1997.
Regarding the security, the Commission's Security Office had permanently taken steps to reinforce the security. It thoroughly investigated the case by getting in touch regularly with the parents, the personnel, and the Belgian authorities.
(ii) For the control over the contractor, the Commission had regularly carried out a series of controls notably in the form of on the spot visits.
The Commission explained that it had already taken, and had the intention to take preventive measures against abuse in crèches. This occurred through specific training, contacts with local specialised organisations such as the ONE(2), and with several Member States.
All the above mentioned measures were taken in the course of the investigation, and in accordance with the requirements imposed by the judicial procedure.
The complainants' observations
The European Ombudsman forwarded the European Commission's opinion to the complainants with an invitation to make observations. In their reply of 25 January 1999, the complainants made the following observations.
(i) Although the Commission knew about the problems since early June 1997, the information measures mentioned in the Commission's opinion, were all taken in October 1997. Information could have been disclosed earlier without infringing the secrecy of the judicial procedure.
The information itself was poor. The Commission had failed to obtain it from the main source, i.e. the Belgian authorities. Furthermore, the Commission refused to take civil action, although it could in this way have obtained more detailed information. Furthermore, the Security Office persistently refused to disclose the reports it had prepared.
The complainants regret that the Commission had not committed itself to adopting a code of conduct which would clearly set out the procedure in similar cases.
(ii) As to the control over the contractor, the complainants referred to the addendum to a report established by a Monitoring Committee in charge of the Clovis case. This Committee concluded that it had no knowledge of on the spot investigations carried out by the Commission, which in its view should have been carried out by surprise. In summary the controls were considered inappropriate. Finally, the contractor's work was called into question.
Further request for information
The Ombudsman asked the Commission to comment on the points made by the complainants in their observations.
The Commission confirmed that when it was informed about the case it only had knowledge of few elements concerning the alleged events. Furthermore, the parents of the victims had asked for discretion and did not want the Administration to intervene. Both the wishes of the parents, and the judicial secrecy convinced the Commission that all the parents should not be informed before a minimum amount of evidence was brought together.
As to the quality of the information, the Commission put forward that it was informed of progress in the case by the office of the King's prosecutor of Brussels. If the Commission had taken civil action, it would not have improved the information provided to the victims who took civil action themselves, nor would it have been conceivable to disclose the information it might have obtained given that the Commission would in turn have been bound by the secrecy of the procedure.
The Commission stated that it envisages to set up a specific internal procedure for cases of mistreatment, in collaboration with specialised institutions as the ONE(3).
The Commission has drawn up a list of already undertaken controls and follow-up measures concerning the control over the contractor, involving the Administration, the Joint Committee on the Management of the Early Childhood Centre, the Medical department, the parents, and the contractor himself. One official is in particular in charge of monitoring the contract.
The Commission also stressed that contacts are made with the Belgian ONE to establish a collaboration for the quality control of the Commission's crèches, and for the training of its personnel in cases of mistreatments.
The complainant's observations
The complainants regretted that two years after the events, the Commission only "envisages" to adopt an internal procedure.
As to the control over the contractor, the complainants informed the Ombudsman of an opinion adopted by the Joint Committee on the Management of the Early Childhood Centre, in which the European Commission is asked not to renew the contract of ESEDRA s.p.r.l. Furthermore, the complainants expressed the wish to be informed of all the responsibilities of the official in charge of the control, and wondered if a single person could cope with this work for the restaurants and crèches.
Having examined the information obtained during the inquiry, the European Ombudsman considered that there was a prima facie evidence of maladministration. Principles of good administration require that decisions are made within a reasonable time limit. The Commission, more than two years after the events, had not adopted an internal procedure for dealing with alleged cases of abuse within its crèches.
In accordance with article 3(5) of his Statute(4) the Ombudsman therefore addressed the President of the European Commission, asking that the Commission commit itself to elaborating an internal procedure to meet the complainants' requests. In addition, the Ombudsman asked the Commission to consider the complainants' fears regarding the human resources available for the supervision of childcare contracted out by the Commission.
On 23 November 1999, the Commission informed the Ombudsman that it has prepared a set of internal guidelines which were submitted to the ONE for consultation. The latter's reply was to be imminent. The procedure however is very complex, sensitive and in particular affects the social rights of the workers, security and statutory provisions. A specific training programme for the crèche's staff was to be completed in the first quarter of 2000. The Commission also informed the Ombudsman that it was about to establish a contractual collaboration with the ONE, and its Flemish equivalent Kind & Gezin, to set up an external control of the Commission's crèches. Regarding the official in charge of the control, the European Commission ascertained that he was at dealing full time with the supervision of ESEDRA s.p.r.l.'s contract. The new contract, for which a new tender procedure had twice been launched, foresees reinforced controls.
The complainants expressed their satisfaction as to the steps taken by the Commission but regretted that none of them had been completed so far. They repeated their concern about the workload of the official in charge of the control within the Commission, and stressed that it should find the means to set up an efficient control. As a conclusion, the complainants stated that they trust the Commission's intention to achieve what was undertaken, but asked the Ombudsman, before closing the case, to make sure that the Commission sticks to its commitments.
1 The handling of the case of abuse and adoption of an internal procedure
1.1 The complainants considered that the Commission failed to take the appropriate steps in connection to suspected cases of abuse in one of its crèches. In particular it did not act in an effective, transparent and timely way. The complainants therefore urged the Commission to adopt a code containing clear provisions as to the procedure to be followed in similar cases. The Commission argued that it took all the possible measures, and that it acted with mindful care for the privacy of the victims, and the secrecy of the judicial proceedings.
1.2 The Ombudsman's inquiries into this case have revealed that the Commission was aware of the necessity to set up a specific internal procedure, which however, more than two years after the events, had not been adopted.
1.3 In accordance with article 3(5) of his Statute, the Ombudsman therefore addressed the President of the European Commission to achieve a friendly solution. The Ombudsman asked that the Commission commit itself to adopt an internal procedure.
1.4 On 23 November 1999, the Commission informed the Ombudsman that the adoption of an internal procedure was imminent. However, on 31 January 2000, an informal request by the European Ombudsman revealed that there had been no significant progresses towards the adoption of a procedure. Principles of good administration require that decisions should be made within a reasonable time limit. The Ombudsman shall therefore address a draft recommendation to the Commission.
2 The supervision of the contract
2.1 The complainants considered that the Commission did not properly supervise the contractor in charge of running the ECC Clovis. The complainants also questioned the possibility of the personnel in charge of the control to cope with the workload. The Commission declared that it carried out several series of controls, and that one official is dedicated full time to the supervision of the contractor.
2.2 The Ombudsman notes that the Commission has taken measures to improve and reinforce both the internal and external control procedures over the next contractor in charge of running the ECC Clovis from August 2000. Given the forthcoming changes in the control procedure, the Ombudsman considers that it is not necessary to pursue the investigations any further regarding the workload of the department in charge of monitoring the present contract. The Ombudsman however trusts that the Commission will make sure that the new tasks assigned to its department are accompanied by organisational measures allowing a proper and efficient completion of the additional work.
3 Conclusion
In view of the above, and in accordance with Article 3 (6) of the Statute of the European Ombudsman, the Ombudsman 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 June 2000. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
Strasbourg, 15 March 2000
Jacob SÖDERMAN
THE COMPLAINT
In September 1995, a Belgian company, ESEDRA s.p.r.l., was put in charge by the European Commission of running the " Early Childhood Centre Clovis" (hereafter ECC Clovis) in Brussels, which is a crèche set up for children of the personnel of Community institutions, among which the children of the complainants.
In October 1997, the parents of children attending the ECC Clovis heard rumours about an alleged investigation of a paedophilia case within the crèche. During the second half of October 1997, these rumours were confirmed by the European Commission through written communications and meetings with the parents.
According to the information disclosed, the investigation by the Belgian authorities originated in a complaint by the parents of a child attending the ECC Clovis, and led them to suspect members of the personnel employed in the crèche. The director of the crèche was informed of the problem by the end of May 1997, and the European Commission was informed at the beginning of June 1997.
(i) In summary, the complainants claimed that during the whole process the Commission failed to act in an effective, transparent and timely way. It failed to inform the parents. Other Community institutions, the paediatrician of the crèche and the Joint Committee on the Management of the Early Childhood Centre were only informed months after the Commission became aware of the issue, and once the case had already been made public. According to the complainants the information disclosed was insufficient and inadequate, furthermore, the Commission failed to request important information from the Belgian authorities in charge of the investigations. In the complainants' view the Commission could have disclosed information without infringing the secrecy of procedures or the right of privacy of the victims.
Regarding this first claim the complainants considered that the Commission should adopt a code containing clear provisions in order to avoid similar flaws in cases of suspected abuse. In addition they urged the Commission to disclose the information it withheld so far.
(ii) The second claim brought forward by the complainants related to the supervision of ESEDRA s.p.r.l., the company in charge of running the ECC Clovis. The complainants expressed the view that the Commission services, because of understaffing, failed to use all the control possibilities provided for in the contract with ESEDRA s.p.r.l.
The complainants asked the Commission to take the appropriate steps to solve both the procedural problem and the question of understaffing.
THE INQUIRY
The European Commission's opinion
The opinion of the European Commission on the complaint was in summary the following:
As a preliminary matter, the Commission stressed that the alleged cases of child abuse were being prepared for an possible judgement by the Belgian authorities, therefore the information relating directly to the cases was therefore confidential. Furthermore, the Commission emphasised that it had taken all possible measures for the security of children in its crèches.
(i) The available information had been transmitted at all levels but always with mindful care for the privacy of the victims, and the secrecy of the judicial proceeding. Meetings were organised with the parents, the personnel of the crèche, the Joint Committee on the Management of the Early Childhood Centre, and with external Belgian Institutions. Conferences as well as specific training and awareness sessions for the personnel were organised. The members of the personnel of the crèche were only suspected at a late stage of the procedure, and the case was made public in October 1997.
Regarding the security, the Commission's Security Office had permanently taken steps to reinforce the security. It thoroughly investigated the case by getting in touch regularly with the parents, the personnel, and the Belgian authorities.
(ii) For the control over the contractor, the Commission had regularly carried out a series of controls notably in the form of on the spot visits.
The Commission explained that it had already taken, and had the intention to take preventive measures against abuse in crèches. This occurred through specific training, contacts with local specialised organisations such as the ONE(2), and with several Member States.
All the above mentioned measures were taken in the course of the investigation, and in accordance with the requirements imposed by the judicial procedure.
The complainants' observations
The European Ombudsman forwarded the European Commission's opinion to the complainants with an invitation to make observations. In their reply of 25 January 1999, the complainants made the following observations.
(i) Although the Commission knew about the problems since early June 1997, the information measures mentioned in the Commission's opinion, were all taken in October 1997. Information could have been disclosed earlier without infringing the secrecy of the judicial procedure.
The information itself was poor. The Commission had failed to obtain it from the main source, i.e. the Belgian authorities. Furthermore, the Commission refused to take civil action, although it could in this way have obtained more detailed information. Furthermore, the Security Office persistently refused to disclose the reports it had prepared.
The complainants regret that the Commission had not committed itself to adopting a code of conduct which would clearly set out the procedure in similar cases.
(ii) As to the control over the contractor, the complainants referred to the addendum to a report established by a Monitoring Committee in charge of the Clovis case. This Committee concluded that it had no knowledge of on the spot investigations carried out by the Commission, which in its view should have been carried out by surprise. In summary the controls were considered inappropriate. Finally, the contractor's work was called into question.
FURTHER INQUIRIES
Further request for information
The Ombudsman asked the Commission to comment on the points made by the complainants in their observations.
The Commission confirmed that when it was informed about the case it only had knowledge of few elements concerning the alleged events. Furthermore, the parents of the victims had asked for discretion and did not want the Administration to intervene. Both the wishes of the parents, and the judicial secrecy convinced the Commission that all the parents should not be informed before a minimum amount of evidence was brought together.
As to the quality of the information, the Commission put forward that it was informed of progress in the case by the office of the King's prosecutor of Brussels. If the Commission had taken civil action, it would not have improved the information provided to the victims who took civil action themselves, nor would it have been conceivable to disclose the information it might have obtained given that the Commission would in turn have been bound by the secrecy of the procedure.
The Commission stated that it envisages to set up a specific internal procedure for cases of mistreatment, in collaboration with specialised institutions as the ONE(3).
The Commission has drawn up a list of already undertaken controls and follow-up measures concerning the control over the contractor, involving the Administration, the Joint Committee on the Management of the Early Childhood Centre, the Medical department, the parents, and the contractor himself. One official is in particular in charge of monitoring the contract.
The Commission also stressed that contacts are made with the Belgian ONE to establish a collaboration for the quality control of the Commission's crèches, and for the training of its personnel in cases of mistreatments.
The complainant's observations
The complainants regretted that two years after the events, the Commission only "envisages" to adopt an internal procedure.
As to the control over the contractor, the complainants informed the Ombudsman of an opinion adopted by the Joint Committee on the Management of the Early Childhood Centre, in which the European Commission is asked not to renew the contract of ESEDRA s.p.r.l. Furthermore, the complainants expressed the wish to be informed of all the responsibilities of the official in charge of the control, and wondered if a single person could cope with this work for the restaurants and crèches.
THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION
Having examined the information obtained during the inquiry, the European Ombudsman considered that there was a prima facie evidence of maladministration. Principles of good administration require that decisions are made within a reasonable time limit. The Commission, more than two years after the events, had not adopted an internal procedure for dealing with alleged cases of abuse within its crèches.
In accordance with article 3(5) of his Statute(4) the Ombudsman therefore addressed the President of the European Commission, asking that the Commission commit itself to elaborating an internal procedure to meet the complainants' requests. In addition, the Ombudsman asked the Commission to consider the complainants' fears regarding the human resources available for the supervision of childcare contracted out by the Commission.
On 23 November 1999, the Commission informed the Ombudsman that it has prepared a set of internal guidelines which were submitted to the ONE for consultation. The latter's reply was to be imminent. The procedure however is very complex, sensitive and in particular affects the social rights of the workers, security and statutory provisions. A specific training programme for the crèche's staff was to be completed in the first quarter of 2000. The Commission also informed the Ombudsman that it was about to establish a contractual collaboration with the ONE, and its Flemish equivalent Kind & Gezin, to set up an external control of the Commission's crèches. Regarding the official in charge of the control, the European Commission ascertained that he was at dealing full time with the supervision of ESEDRA s.p.r.l.'s contract. The new contract, for which a new tender procedure had twice been launched, foresees reinforced controls.
The complainants expressed their satisfaction as to the steps taken by the Commission but regretted that none of them had been completed so far. They repeated their concern about the workload of the official in charge of the control within the Commission, and stressed that it should find the means to set up an efficient control. As a conclusion, the complainants stated that they trust the Commission's intention to achieve what was undertaken, but asked the Ombudsman, before closing the case, to make sure that the Commission sticks to its commitments.
THE DECISION
1 The handling of the case of abuse and adoption of an internal procedure
1.1 The complainants considered that the Commission failed to take the appropriate steps in connection to suspected cases of abuse in one of its crèches. In particular it did not act in an effective, transparent and timely way. The complainants therefore urged the Commission to adopt a code containing clear provisions as to the procedure to be followed in similar cases. The Commission argued that it took all the possible measures, and that it acted with mindful care for the privacy of the victims, and the secrecy of the judicial proceedings.
1.2 The Ombudsman's inquiries into this case have revealed that the Commission was aware of the necessity to set up a specific internal procedure, which however, more than two years after the events, had not been adopted.
1.3 In accordance with article 3(5) of his Statute, the Ombudsman therefore addressed the President of the European Commission to achieve a friendly solution. The Ombudsman asked that the Commission commit itself to adopt an internal procedure.
1.4 On 23 November 1999, the Commission informed the Ombudsman that the adoption of an internal procedure was imminent. However, on 31 January 2000, an informal request by the European Ombudsman revealed that there had been no significant progresses towards the adoption of a procedure. Principles of good administration require that decisions should be made within a reasonable time limit. The Ombudsman shall therefore address a draft recommendation to the Commission.
2 The supervision of the contract
2.1 The complainants considered that the Commission did not properly supervise the contractor in charge of running the ECC Clovis. The complainants also questioned the possibility of the personnel in charge of the control to cope with the workload. The Commission declared that it carried out several series of controls, and that one official is dedicated full time to the supervision of the contractor.
2.2 The Ombudsman notes that the Commission has taken measures to improve and reinforce both the internal and external control procedures over the next contractor in charge of running the ECC Clovis from August 2000. Given the forthcoming changes in the control procedure, the Ombudsman considers that it is not necessary to pursue the investigations any further regarding the workload of the department in charge of monitoring the present contract. The Ombudsman however trusts that the Commission will make sure that the new tasks assigned to its department are accompanied by organisational measures allowing a proper and efficient completion of the additional work.
3 Conclusion
In view of the above, and in accordance with Article 3 (6) of the Statute of the European Ombudsman, the Ombudsman makes the following draft recommendation to the Commission:
- The Commission should adopt an internal procedure to ensure that cases of alleged abuse of children within its crèches are dealt with in an effective, transparent and timely way. It should be adopted before 31 July 2000.
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 June 2000. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
Strasbourg, 15 March 2000
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, 1994 OJ L 113/15.
(2) "Office de la Naissance et de l'Enfance"
(3) "Office de la Naissance et de l'Enfance"
(4) Article 3.5 of the Statute of the European Ombudsman : "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."