The background to the complaint

1. The complainant is a Parliament official in grade AST 6. By decision of 16 October 2006, Parliament awarded him two merit points in his staff report for the 2005 exercise.

2. During 2006, he became seriously ill and had to undergo surgery. He was subsequently on extended sick leave, for serious illness, until 6 September 2006. After this date, he took up his duties again under a specific part-time arrangement for officials who have suffered from serious illness ("mi-temps thérapeutique").

3. By decision of 26 June 2007, the complainant received his staff report for the 2006 exercise, for which he was awarded one merit point. He considered that he should have been awarded two merit points, as for the 2005 exercise.

4. On 8 August 2007, the complainant lodged a complaint under Article 90(2) of the Staff Regulations against Parliament’s decision to award him one merit point for the 2006 exercise instead of two. In this context, he referred to point I.2.b(2) of the Implementing Measures concerning the award of merit points and promotions ('the Implementing Measures'). According to this provision, "for the officials and servants who have been absent throughout the reference year because of sickness … DG personnel will automatically award the same number of points as for the previous year, but no more than two points" (emphasis added). On the basis of the aforementioned point, the complainant requested the award of two merit points for 2006.

5. On 10 January 2008, Parliament's Secretary-General rejected the complaint lodged under Article 90(2) of the Staff Regulations. He reminded the complainant of the "unequivocal nature of the relevant provision" (point I.2.b(2) of the Implementing Measures), which only applied in cases involving the absence, due to sickness, of officials "throughout the whole year of reference".

6. Furthermore, the Secretary-General ruled that the complainant's evaluation report for 2006 should be annulled, since it contained no evaluation criteria or no factual comments. He also decided that a new decision on the award of merit points should be drawn up on the basis of a 'new' staff report.

7. Consequently, on 4 February 2008, the Directorate-General for Personnel drew up a new staff report, which was subsequently sent to the complainant and approved by him on 18 March 2008. By decision dated 10 June 2008, the complainant was awarded one merit point for the reference year 2006.

8. On 23 November 2008, the complainant lodged a complaint with the European Ombudsman.

The subject matter of the inquiry

9. The complainant alleged that Parliament’s decision to award him one merit point for the 2006 exercise was wrong and unfair.

10. The complainant claimed that he should be (i) awarded two merit points for 2006 and (ii) promoted retroactively.

The inquiry

11. On 20 January 2009, the Ombudsman opened an inquiry regarding the complainant’s allegation and above claims.

12. Parliament sent its opinion, which was forwarded to the complainant with an invitation to make observations. On 12 May 2009, the complainant sent his observations.

13. On 29 October 2009, the Ombudsman made a provisional finding of maladministration and, in accordance with Article 3(5) of his Statute, proposed a friendly solution to Parliament.

14. On 8 February 2010, Parliament replied rejecting the friendly solution. The Ombudsman forwarded this reply to the complainant, with an invitation to submit observations. The complainant sent his observations on 18 February 2010.

15. In a letter dated 13 December 2010, Parliament sent an additional reply to the Ombudsman.

16. Parliament's further reply was forwarded to the complainant with an invitation to make observations. On 4 January 2011, the complainant sent his further observations.

The Ombudsman's analysis and conclusions

A. Alleged unfair and wrongful decision to award the complainant one merit point for the 2006 exercise

Arguments presented to the Ombudsman

17. The complainant alleged that Parliament’s decision to award him one merit point for the 2006 exercise was wrong and unfair.

18. In its opinion, Parliament first questioned the admissibility of the complaint submitted to the Ombudsman. In this context, it referred to Article 2(8) of the Ombudsman's Statute[1]. In Parliament's view, the complainant did not lodge an appeal with the Reports Committee against his new staff report (that is, the report drawn up on 4 February 2008 following the Secretary-General's decision of 10 January 2008). Doing so, Parliament argued, would have been in conformity with the requirements prescribed by Article 19 of the General Implementing Provisions applicable to Article 43 of the Staff Regulations, and Articles 15(2) and 87(1) of the Conditions of Employment of Other Servants[2]. Pursuant to Article 19 of the General Implementing Provisions[3], the new staff report, approved by the complainant on 18 March 2008, became binding 10 working days later, on 7 April 2008.

19. As regards the award of merit points, the complainant did not challenge the decision of 10 June 2008, which he received on 16 June 2008. He could have done so by referring the matter to the Reports Committee, in conformity with the procedure laid down in point 1.4 of the Implementing Measures concerning the Award of Merit Points[4]. Given that he did not do this, the aforementioned decision became binding on 30 June 2008.

20. Parliament thus considered that the complainant did not exhaust the available internal remedies.

21. As regards the complainant's allegation that the award of one merit point was unfair, Parliament insisted that it had complied with all procedural requirements applicable to the award of merit points.

22. In his decision of 10 January 2008, the Secretary-General decided to annul the staff report for the 2006 exercise, even though the complainant only contested the award of merit points.

23. Following the establishment of a new staff report, the Directorate-General concerned adopted a new decision on merit points, which was duly communicated to the complainant.

24. Thus, all procedural requirements leading to the decision on the award of points were duly complied with.

25. In his observations, the complainant argued that Parliament did not base the assessment in his staff report for 2006 on his efficiency and competence at work, but rather on the fact that he had been on extended sick leave. He further stated that he had no interest in contesting his staff report (the second one dated 4 February 2008). According to the assessments made in the latter, he was likely to obtain two merit points because he was assessed as a "deserving official".

The Ombudsman's preliminary assessment leading to a friendly solution proposal

Preliminary remarks: the admissibility of the present complaint

26. In its opinion, Parliament challenged the admissibility of the complaint lodged with the Ombudsman. It took the view that, in so far as the decision awarding him one merit point and dated 10 June 2008 was concerned, the complainant did not comply with the conditions specified in Article 2(8) of the Ombudsman's Statute.

27. The Ombudsman recalled in this respect that the above decision was substantively the same as the decision awarding the complainant one merit point for the 2006 exercise.

28. The complainant challenged the decision of 2006 under Article 90(2) of the Staff Regulations. The Ombudsman considered that it would be unfair to require the complainant, in order for his complaint to the Ombudsman to be admissible, to go through the same procedure regarding the identical confirmatory decision of 10 June 2008.

29. In these circumstances, the Ombudsman maintained his position regarding the admissibility of the present complaint.

The complainant's allegation

30. Point I.2.b(2) of the Implementing Measures of 23 April 2007 states that "for the officials and servants who have been absent throughout the reference year because of sickness … DG personnel will automatically award the same number of points as for the previous year, but no more than two points." (emphasis added)

31. In its reply to the Article 90(2) complaint concerning the decision of 2006, Parliament rejected the complainant's request and noted that he had not been on sick leave throughout the whole of 2006, but came back to work in September of that year. In his letter to the complainant, Parliament's Secretary-General reminded him of the "unequivocal nature of the relevant provision" (point I.2.b(2) of the Implementing Measures), which only applied where a staff member was absent, due to sickness, "throughout the whole year of reference."

32. The Ombudsman understood that Parliament interpreted the above provision strictly in the complainant's case. He did not consider, however, that such an interpretation was in accordance with the principles of good administration. It appeared to penalise a staff member who, for eight months of a calendar year, suffered from a very serious illness and then, as soon as he became slightly better, decided to come back to work, even if it was only on a part-time basis.

33. In the Ombudsman's view, the purpose of the above provision was precisely not to penalise staff members in their career progression for having been ill. Moreover, this provision results from the objective impossibility for Parliament to evaluate an official’s performance if he or she has been absent for an entire year. It must, therefore, automatically award these officials the same amount of points as they obtained in the previous year.

34. According to Parliament's interpretation, if the complainant had been sick for the entire year and had not come back to the office in September, he would have received two merit points, as he did for 2005. Given that he came back to work for a period of four months in the same year, his merit points could not be awarded automatically. Instead, they were considered on the basis of his work during those four months.

35. The Ombudsman wondered whether it was possible to assess the merits of an official over an entire year on the basis of four months of work. This was especially so, given that the work carried out was only on a part-time "therapeutic" basis.

36. The Ombudsman was of the view that Parliament could consider applying the rationale outlined in paragraph 30 above concerning Article I.2.b(2) of the Implementing Measures also to officials such as the complainant, who come back to work for a short period of time during the reference period.

37. Parliament could thus reasonably consider that the complainant's merits during the eight months when he did not work in 2006 were automatically equivalent to his merits in 2005. It could then evaluate his merits during the four months (which correspond to two months of full-time work), when he worked part-time. In the complainant's case, his staff report for these four months of part-time work was indeed very positive and did not justify any reduction in his merit points when compared to those obtained in the previous year[5].

38. In light of the above, the Ombudsman considered that it would be appropriate for Parliament to reconsider its position and to award two merit points to the complainant for the 2006 exercise, as it did for 2005.

39. The Ombudsman therefore made the following proposal for a friendly solution:

"Taking into account the Ombudsman's findings, Parliament could reconsider its position and award two merit points to the complainant for the 2006 exercise."

The Ombudsman's assessment after his friendly solution proposal

The Parliament's first reply to the Ombudsman's proposal for a friendly solution

40. Parliament pointed out that the decision of 10 June 2008 was adopted on the basis of the new staff report drawn up on 4 February 2008. The adoption of this decision involved a new assessment of the complainant's merits.

41. In this context, Parliament stated that "[i]t is settled case-law that a decision which follows a re examination of the situation of the addressee and which contains new factors is not a mere confirmatory decision of the earlier measure. Such a decision is on the contrary, a separate decision which substitutes itself to the earlier one."[6]

42. As a matter of fact, in this case, there was no doubt that the establishment of a new staff report shall be regarded as a new element. Following the establishment of the new staff report, a new appraisal of merits led to the adoption of a new decision on merit points, dated 10 June 2008, which replaced the one adopted on 26 June 2007.

43. The fact that the new assessment of merits resulted in the award of one merit point again could not be in itself considered as a simple confirmation of the decision of 26 June 2007.

44. There was no dispute between the parties concerning the fact that the complainant did not challenge the decision on merit points adopted on 10 June 2008 under the time limits prescribed by Article 90(2) of the Staff Regulations.

45. It must be concluded that the complainant did not exhaust the possibilities for internal remedies available to him. Therefore, his complaint should be regarded as inadmissible.

46. Parliament concluded that, "for these reasons", it maintained its position and did not accept the Ombudsman's proposal for a friendly solution.

47. Parliament emphasised that the new assessment of the complainant's merits complied with all procedural requirements. Parliament duly took into account only the period of the complainant's effective activity.

The complainant's observations on Parliament's first reply to the Ombudsman's proposal for a friendly solution

48. In his observations, the complainant emphasised his disappointment with Parliament's behaviour towards him. He stated that Parliament lacked comprehension and compassion as regards his situation.

Parliament's second reply to the Ombudsman's proposal for a friendly solution

49. In its further reply, Parliament informed the Ombudsman for the first time of its decision of 28 October 2009, by which the complainant was promoted to grade AST 7 with retroactive effect from 1 January 2009. This was because the complainant had obtained a total of eight merit points, which met the requirement for promotion laid down in Parliament's internal rules.

50. Parliament emphasised that if the complainant had been awarded an additional merit point for 2006, in compliance with the Ombudsman's proposal for a friendly solution, this would not have impacted on the complainant's career development. This is because, in accordance with Parliament's rules, the extra point could not have been carried over to his new grade. Parliament enclosed to its opinion a copy of the Appointing Authority's decision of 28 October 2009 promoting the complainant as of 1 January 2009.

51. Parliament concluded that the acceptance of the proposed friendly solution would not have changed the complainant's situation in any way.

The complainant's observations on the Parliament's second reply to the Ombudsman's proposal for a friendly solution

52. The complainant stated that his promotion as of 1 January 2009 did not alter his view that "he was a victim of discrimination."

53. If Parliament had awarded him two merit points for 2006 instead of one, he would have been promoted to grade AST 7 as of 1 January 2008 instead of 1 January 2009. This is because he would have already attained the threshold for promotion of 8 points in 2008.

The Ombudsman's assessment after his friendly solution proposal and Parliament's two replies

54. At the outset, the Ombudsman deeply regrets Parliament's approach reflected in its first reply to his friendly solution proposal regarding the admissibility of the present complaint. His regret is strengthened by the fact that the Civil Service Tribunal recently adopted a much less strict and more citizen-friendly approach to the relationship between an action brought to the court and the preceding complaint lodged under Article 90(2) of the Staff Regulations[7].

55. The Ombudsman cannot agree with Parliament as regards the nature of the confirmatory act in the present case. Even if it is true that the complainant's staff evaluation report was reviewed, or rather redrafted properly (because of the formal mistakes or irregularities identified by the Secretary-General in the original report - see paragraphs 6 and 7 above) the number of merit points given to the complainant remained the same. There is therefore no objective evidence that Parliament actually reconsidered the amount of merit points on the basis of the new staff report. This failure to reconsider the number of merit points awarded to the complainant leads the Ombudsman to consider as merely confirmatory the nature of the decision on merit points dated 10 June 2008 (by which the complainant was awarded one merit point for 2006) when compared to the decision dated 26 June 2007 (by which the complainant was also awarded one merit point for 2006.)

56. In light of the above, the Ombudsman cannot agree with Parliament's position as regards the admissibility of the complaint. He was also surprised to see that, in its first reply, Parliament refused to elaborate on its position regarding the arguments on which his friendly solution was based because it considered that the case was inadmissible. In its first reply, Parliament only stated that it had complied with all procedural requirements applicable to the award of merit points, and duly took into account only the period of the complainant's effective activity. In this respect, the Ombudsman recalls that, according to the well-established practice of the EU courts, the parties in litigation can submit arguments as regards both the admissibility and the substance of the case. However, this does not imply that they question the legitimacy and the power conferred upon the judge to assess and decide on both the procedural and substantial aspects of the case. The Ombudsman considers that the above practice should also apply as far as his own assessments and procedures are concerned. Since it is incumbent on the Ombudsman, and not on the institution against which a complaint is directed, to finally decide on the admissibility of a complaint, he cannot understand why, in its first reply to the friendly solution proposal, Parliament refused to take a position on the substance of the matter.

57. The Ombudsman notes, however, that in its second reply to his proposal for the friendly solution, Parliament refrained from challenging anew the admissibility of the complaint.

58. In its second reply, Parliament informed the Ombudsman, for the very first time, that the complainant has been promoted as of 1 January 2009. Parliament also appeared to show its willingness to comply with the Ombudsman's proposal, but explained that doing so would have no impact on the complainant's career development, given that, under Parliament's rules, the extra point could not have been carried over to the complainant's new grade.

59. In light of the above, the Ombudsman agrees with Parliament that the complainant's claim and thus the Ombudsman's proposal for a friendly solution are void of purpose.

60. However, the fact remains that, by its decision of 26 June 2007, which it confirmed on 10 June 2008, Parliament did not award the complainant two merit points for 2006 but only one. The decision of 28 October 2009 cannot be considered as reparatory for the complainant's possible loss caused by the decision of 26 June 2007. As rightly pointed out by the complainant, if it wasn't for Parliament's unfair decision of 26 June 2007, confirmed on 10 June 2008, he could have been considered for promotion already as of 1 January 2008. The Ombudsman notes that, even if the mere fact of having attained the threshold of points does not automatically guarantee a right to promotion, it is a condition for being considered for promotion. As the complainant rightly pointed out, he was deprived of the right to be considered for promotion already during the previous promotion exercise. The Ombudsman therefore closes his inquiry with a critical remark below.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

When awarding the complainant's merit point for the year 2006, Parliament refused to take into account the fact that, following a serious illness, the complainant had been on sick leave for eight months of that year and only resumed work on a part-time basis in the last four months. Parliament's decision of 26 June 2007, which it confirmed on 10 June 2008, and which did not award the complainant the same number of merit points as he obtained in the previous year, was thus unfair.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 10 February 2011

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[1] Article 2(8) of the Ombudsman's Statute provides that "No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired."

[2] General Implementing provisions applicable to Article 43 of the Staff Regulations of Officials and Articles 15(2) and 87(1) of the Conditions of Employment of Other Servants - document PE359.200/BUR./AN.III

[3] Article 19 of the General Implementing provisions (Right of appeal against the staff report) provides that "The staff member concerned shall have 10 working days in which to lodge an appeal with the Reports Committee. That period shall run:

- should the staff member not have made comments concerning his or her staff report, from the date on which he or she signed the report;

- should the staff member have made comments, from the date of receipt of the final assessor's reply, or, in the absence of such a reply, from the date on which the time-limit laid down in Article 14(4) of these GIPs expires;

- should the staff member not have claimed the registered letter, from the date appearing on the advice to collect an item of mail."

[4] Point 1.4 (Referral to the Reports Committee) of the Implementing Measures concerning the Award of Merit Points and Promotion, dated 10 May 2006:

"Should the official/servant being assessed disagree with the proposal, he/she may make a referral to the Reports Committee if he/she so wishes. This procedure must be followed before any complaint is submitted pursuant to Article 90(2) of the Staff Regulations. Account being taken of justified periods of absence, this appeal must be sent to the Reports Committee secretariat within 10 working days of the notification of the merit points award proposal."

[5] In the complainant's staff report for the 2006 exercise, the first assessor wrote the following comments:

"Official determined in his work. His motivation did not fail, despite disrupted by serious health problems, when circumstances allowed him to carry out his duties."

[6] See Case T-68/97 Neumann and Neumann-Schölles v Commission [1999] ECR-SC I A 193 and II 1005, paragraph 58 (French original version): "Il est également de jurisprudence constante que n'est pas un acte purement confirmatif d'une décision antérieure, une décision prise après réexamen et contenant des éléments nouveaux par rapport a la décision antérieure. Elle constitue, au contraire, une décision autonome qui se substitue à la décision précédente."

[7] Case F-45/07 Wolfgang Mandt v European Parliament, judgment of the Civil Service Tribunal of 1 July 2010, not yet published in the ECR, paragraphs 111 and the following.