The background to the complaint

1. The present complaint concerns CEPOL's alleged failure to pay the complainant, a freelance consultant, for the work she carried out for CEPOL between April and August 2008. The work in question was not covered by a written contract.

2. In order to achieve the objectives laid down in Article 6 of Council Decision 2005/681/JHA establishing CEPOL[1], the latter has to undertake different actions. One of these actions is, in accordance with Article 7, to "contribute to the preparation of harmonised programmes for the training of middle-ranking police officers, middle-ranking police officers in the field and police officers in the field with regard to cross-border cooperation between police forces in Europe, and help set up appropriate advanced training programmes as well as develop and provide training for trainers." Having regard to the above provision, CEPOL's Governing Board adopted, on 27 September 2006, Decision 29/2006/GB laying down the Common Curricula Policy. The main purpose of CEPOL's common curricula was to provide "recommendations for the Member States regarding police training for specific issues with a European dimension in order to be able to use them within their national police training systems according to their individual needs."

3. At the beginning of March 2008, Ms D. P., Chair of the Italian sub-group in charge of developing a project on the Common Curriculum on Diversity Management, invited the complainant (by telephone) to join the group and work as an Educational Expert consultant. The complainant expressed her interest in the proposal and confirmed her availability. However, before taking a final decision, she contacted Ms Z., the Project Support Officer, on 6 March 2008. She asked for clarifications regarding, among others, the kind of work she would be expected to carry out, the relevant deadline for finishing her work, the contacts she would have with transnational partners, and the agenda of the first scheduled meeting. Ms Z. replied on the same date, providing the complainant with the information requested. On 23 April 2008, Ms Z. sent a further message to the complainant. The message contained the following text:

"Dear Marina,

I would like to begin by thanking you for offering your service to CEPOL and I am happy to inform you that I can give you an official confirmation in the name of Ulg Göransson, the CEPOL Director, of your appointment as an Educational Expert consultant for the Common Curriculum Sub-Group on management of Diversity.

[…]

Two important procedures are to be followed:

1) I have forwarded the draft contract with the details you provided to our Head of Administration and asked him to check it. As soon as I have his ok, I shall inform you and ask you to send two originally signed copies back to us.

2) In the meantime, you can go ahead preparing your participation in the meeting next week in Budapest…"

4. From 28 to 30 April 2008, the complainant attended the above-mentioned meeting in Budapest.

5. On 23 May 2008, Ms Z. wrote a message to the complainant regarding her contract. The message included the following text:

"… It seems that after all we shall have to sign the contract with the 'Scuola per il Perfezionamento di Polizia' according to the Rules. We shall, however, pay you directly on your bank account upon request by the Scuola. It sounds complicated, but it isn't".

6. On 4 June 2008, Mr R., from the CEPOL National Contact Point (NCP) in Italy, informed Ms Z. and the complainant that the Director of the Scuola per il Perfezionamento di Polizia was not competent to sign the contract appointing the complainant as an Educational Expert consultant. The reason given was that the complainant was not employed by the Italian Policy Academy.

7. On 27 June 2008, the complainant e-mailed the CEPOL Secretariat and the Chair of the sub-working group to enquire about her contract. In her reply of 2 July 2008, Ms Z. stated that "with regard to your contract there is a delay due to our regulations. We are trying to find a solution for this and I hope you have some patience. I apologise for this". However, in a further message sent on 13 July 2008, Ms Z. asked the complainant to stop her work for the sub-working group until further notice. In a message to Ms D. P., dated 6 August 2008, the complainant confirmed that, following Ms Z's request, she had stopped her work.

8. Despite the above, according to the complainant, she was asked by the NCP to attend a third meeting in Nettuno on 17-18 August 2008. She explicitly referred to a letter, dated 11 August 2008 and signed by the Chair of the Sub-working group[2], and to a message received on 12 August 2008[3]. On 15 September 2008, the CEPOL Secretariat asked the complainant to provide the final draft of the Common Curriculum she was working on with the rest of the group. She sent the requested document on the same day.

9. On 30 September 2008, the complainant's contractual situation had still not been resolved. Consequently, the Director of the NCP asked the CEPOL Secretariat if the expenses she had incurred in order to attend the three meetings could be reimbursed. On the same date, he received an assurance that she would be reimbursed[4].

10. On 26 November 2008, the Director of CEPOL wrote to the complainant. He stated that it was not possible to find a solution to her case, and confirmed that it would not be possible to sign a contract with her due to the fact that she was not an employee of the Italian Police Academy. The Director, who apologised for the inconvenience that such a situation might have caused the complainant, stated that CEPOL was willing to compensate the complainant for the time she had worked. The Director referred to the invitations received by the complainant to attend two meetings, the first from 28-30 April 2008 in Budapest, and the second from 26-29 May 2008 in Milan. The Director offered her a sum of EUR 1 000, calculated on the basis of EUR 200 per day, that is, the fee paid to Educational Expert consultants with contracts.

11. In her message to CEPOL of 6 February 2009, the complainant stressed that she should receive an additional EUR 1 500 for her participation in the third meeting and for four-and-a-half days of other work (studying documents, drafting reports and so on). The total amount claimed by the complainant was therefore EUR 2 500.

12. On 25 March 2009, the CEPOL Secretariat replied that it could not pay the additional amount of EUR 1 500 claimed by the complainant. According to the CEPOL Secretariat, the NCP was informed that the complainant should not attend the third meeting because she did not have a contract. Her participation in the last meeting was therefore under the responsibility of the NCP.

13. On 26 March 2009, the complainant turned to the Ombudsman.

The subject matter of the inquiry

14. On 17 June 2009, the Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

CEPOL acted unfairly when refusing to pay the complainant the sum of EUR 1 500, in addition to the sum of EUR 1 000 offered to her.

Claim:

CEPOL should pay the complainant the amount of EUR 1 500.

The inquiry

15. On 17 June 2009, the Ombudsman opened an inquiry and invited CEPOL to comment on the complainant's allegation and claim. The Ombudsman further asked CEPOL to clarify the relationship between its secretariat in the UK and its offices in the Member States by referring to the legal provisions in the applicable legislation and/or to the principles governing this relationship. On 2 October 2009, CEPOL sent its opinion, which was forwarded to the complainant, who submitted observations on 1 November 2009. On 29 October 2010, the Ombudsman made a proposal for a friendly solution to CEPOL, which replied on 13 December 2010. The reply was forwarded to the complainant, who sent her observations on 14 December 2010.

The Ombudsman's analysis and conclusions

A. Allegation that CEPOL acted unfairly

Arguments presented to the Ombudsman

16. The complainant worked for CEPOL as an Educational Expert consultant between March and September 2008. Due to several problems, the complainant participated in three meetings and carried out a certain amount of work without having signed a contract. CEPOL offered EUR 1 000 to the complainant as compensation for her participation in two meetings held in Budapest in April 2008 and in Milan in May 2008. The complainant was not satisfied with CEPOL's proposal and took the view that she should have been offered an amount corresponding to all the work that she had carried out. This included (i) preparatory and follow-up work relating to the three meetings in which she participated. According to the complainant, CEPOL did not dispute the quality of her work or the way in which it was delivered. It also included her participation in the third meeting referred to in paragraph 8 above. The complainant claimed that she should receive a total sum of EUR 2 500. In her complaint to the Ombudsman, the complainant alleged that CEPOL acted unfairly when refusing to pay her the sum of EUR 1 500 in addition to the sum of EUR 1 000 offered to her. In support of her allegation, the complainant argued that she received various assurances that a solution to her situation would be found.

17. In its opinion, CEPOL explained that it was created by Council Decision 2005/681/JHA[5]. In accordance with Article 14 of this Decision, the CEPOL NCPs were set up in order to "ensure effective cooperation between CEPOL and the training institutes." In order to fulfil this goal, all communications between the CEPOL Secretariat and the Member States occur via the NCPs, which, in the majority of cases, are the national police training institutions or ministries. In the specific context of the Common Curricula, CEPOL stated that the NCPs collected and sent to the CEPOL Secretariat the nominations for experts, including Educational Experts.

18. The policy for developing the Common Curricula was stipulated in the Governing Board's Decision 29/2006/GB. For each topic, CEPOL created a sub-group which was chaired by one leading country and consisted of experts who were nominated by the Member States and allocated by the Director of CEPOL. In accordance with Article 4.1.6 of the above-mentioned Governing Board Decision:

"After finalisation of the Curriculum Descriptor an Educational Expert shall write the Trainer's and Student's Guide. The educational expert shall have extensive knowledge of delivery methods, training experience specifically in the topic of the common curriculum and an adequate knowledge of the English language. In case no member of the sub-group fulfils the criteria the sub-group shall request the allocation of an external Educational Expert from the Director, through the common Curricula Coordination Working Group."

19. The complainant was proposed as an Educational Expert by the Italian chair of the sub-group in charge of developing the Common Curriculum on this topic. The Director of CEPOL accepted the proposal on the basis of the complainant's CV, assuming that the proposal had been made in agreement with the NCP. CEPOL presumed that the complainant was correctly appointed by the NCP, since the latter had also appointed other educational experts for the Common Curricula. CEPOL unfortunately did not clarify with the Italian NCP whether this was indeed the case.

20. Despite the fact that a contract had not yet been signed and in order to initiate her cooperation with the sub-group, the complainant was invited to attend a meeting, which took place in Budapest from 28 to 30 April 2008. The complainant was then invited by the Chair of the sub-group to participate in a second meeting, which took place in Milan from 26 to 29 May 2008. With regard to the complainant's participation in this meeting, CEPOL stated that it was informed that the complainant "even chaired the meeting instead of the Chair of the sub-group who had been recalled at short notice by her superiors." Furthermore, CEPOL stated that "this was not part of the tasks of Ms P. [the complainant] nor had it been agreed with and accepted by the CEPOL Secretariat."

21. The complainant was also scheduled to take part in a third meeting at the end of August in Nettuno, Italy. However, the CEPOL Secretariat informed Mr R., the contact person at the NCP, that the complainant should not attend the meeting because her contractual situation was still unclear. On 23 May 2008, CEPOL had in fact sent the contract for the complainant’s services to the CNP. However, the latter informed CEPOL that they could not sign a contract with the complainant because she was not part of their staff. They proposed that CEPOL sign the contract with the Chair of the Italian sub-group. This, however, proved not to be possible. In spite of the above, the NCP did not follow CEPOL's advice and invited the complainant to attend the meeting in Nettuno from 18 to 21 August 2008, under its responsibility.

22. Furthermore, CEPOL stated that it was informed that "Ms P. took over additional tasks which were not included in the list of tasks of the Educational Expert, like writing and updating the Common Curriculum". In this regard, CEPOL stressed that it "was not part of CEPOL's policy that the Educational Expert should write anything else but the Trainer's and Study Guide".

23. The CEPOL Secretariat did its utmost to find a solution to the complainant’s case. Given that it was not possible for CEPOL to sign a contract directly with her, alternative options were discussed. However, it was not possible to find a positive outcome. CEPOL admitted that it was a mistake to accept NCP's proposal to employ the complainant and to invite her to attend the meeting held in Budapest in April 2008. In light of this, "CEPOL paid the expenses and offered compensation for her attendance at the meeting in Budapest and CEPOL also paid the expenses for attending the meetings in Milano and Nettuno, even if CEPOL was not aware that Ms P. was invited."

24. In conclusion, CEPOL put forward that "due to the fact that CEPOL did not issue an invitation for Ms P. to the sub-group meetings in Milano and Nettuno and explicitly informed the Italian National Contact Point that Ms Pirazzi should not attend the meeting in Nettuno, we cannot pay for any working hours during these two meetings."[6] CEPOL finally stated that "due to the absence of a contract, CEPOL has no basis for paying any fees for Ms P.'s work. The offer to pay some compensation for her time was made in an attempt to acknowledge her commitment and the inconvenience caused to her."

25. In her observations, the complainant stressed that, contrary to what CEPOL affirmed in its opinion, she was not aware that CEPOL could not sign a contract with her. The complainant referred to, and enclosed a copy of, a message received from Ms Z. on 25 March 2008, stating that:

"Unfortunately it is not possible for us to pay individuals. So in that case it would very good if you had a company to which we can send the money. Please let me know if this is an option for you. And if not, maybe your NGO would accept CEPOL, because we are not a police force, but an EU Agency".

26. In the complainant’s view, from the above message, it clearly emerged that CEPOL could have signed a contract with legal persons and, therefore, with her own company.

27. As a final general comment, the complainant emphasised that her participation in the different meetings, as well as the work that she carried out, was done on the basis of a previous agreement with the CEPOL Secretariat or with the NCP. She stressed that she would never have taken the initiative by herself. Furthermore, she argued that she could not be considered responsible for the bureaucratic and administrative issues relating to her work as an Educational Expert consultant. She therefore maintained her claim.

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

28. From the information submitted by the parties during the present inquiry, it emerged that, between March and August 2008, an extensive exchange of correspondence took place between the complainant, the CEPOL Secretariat, and the NCP concerning the complainant's work as an Educational Expert consultant and her contract. Specifically, the Ombudsman noted that, by e-mail of 23 April 2008 to the complainant, the Project Support Officer confirmed, in the name of the Director of CEPOL, the complainant's appointment as an Educational Expert consultant. The complainant was invited to prepare for the meeting that would take place in Budapest the following week. Afterwards, the complainant participated in two additional meetings, held in Milan at the end of May, and in Nettuno in August 2008. In this regard, the Ombudsman noted that the complainant participated in the third meeting, although the CEPOL Secretariat informed the contact person at the NCP that the complainant should not attend the meeting because her contractual situation was still unclear.

29. The Ombudsman observed that, despite several attempts, it was not possible to find a solution to the complainant's situation. At the end of November 2008, the Director of CEPOL informed the complainant that a contract could not be signed with her.

30. The Ombudsman acknowledged and welcomed the fact that, in its opinion, CEPOL recognised that it did not clarify the complainant's status with the NCP when it proposed that she be employed as an Educational Expert consultant. He also noted that CEPOL offered EUR 1 000 to the complainant as compensation for attending the first two meetings. It appeared, however, that CEPOL refused to pay the complainant for the preparation and follow-up work that she carried out for the two meetings in question and for her participation in the third meeting in Nettuno.

31. As regards the fact that CEPOL declared itself unable to pay the complainant for her preparation and follow-up work relating to the first two meetings, the Ombudsman noted that CEPOL's Director initially held that the complainant should be paid "a fee similar to what is paid to Educational Experts with contracts" (the Director's letter to the complainant dated 4 February 2009). This was essentially an implicit reference to the content of Article 3 of the standard service contract, a copy of which CEPOL initially sent to the complainant. In accordance with Article 3, "CEPOL shall pay to the Contractor a fee of EUR 200 per day of work in the performance of the contracted Services. Travel days do not count as days of work. The maximum total amount to be paid by CEPOL under the contract shall be EUR 6,000, exclusive of VAT, which shall cover all the Service provided (the 'Charges')." Article I.2.3. provided that it "is agreed that the Charges do not include all other eligible and reimbursable expenditure that may be incurred by the Contractor in the performance of this Contract, such as travel costs, accommodation costs, subsistence costs or any other related expenses of a reimbursable nature that shall need to be approved by CEPOL prior to being submitted for reimbursement by the Contractor."

32. The contract that CEPOL envisaged for the complainant provided, in general terms, for the payment of 'work' calculated 'per day' and carried out 'in the performance of the contracted Services'. In the Ombudsman's view, there appeared to be no obvious reason why preparation and follow-up work should not have been covered by those provisions. The above-quoted articles contain various exclusions, but these make neither express nor implicit references to preparation and follow-up work. The Ombudsman thus concluded that there were no elements in this article, or in the context in which it applies, which can reasonably be understood to imply that such activity cannot be considered to constitute 'work'.

33. Similarly, neither in its letters to the complainant nor in its opinion to the Ombudsman, did CEPOL bring forward any specific information or arguments to clarify why the Director's decision to compensate the complainant at "a fee similar to what is paid to Educational Experts with contracts" should not include the complainant's preparation and follow-up work. The fact that no written contract was signed appears, for quite obvious reasons, irrelevant. The complainant received payment for her participation in the two meetings here concerned, for which no written contract existed either. Moreover, CEPOL fully recognised the quality of the work that the complainant carried out. With respect to this, the Ombudsman noted that, in his message of 27 June 2008 to the Project Support Officer, the Director of CEPOL referred to the complainant, and to her work, in the following way: "first of all, all my regards and respect to Ms P. for her work and contribution to the Common Curricula".

34. The Ombudsman welcomed the fact that CEPOL's Director eventually sought a solution to the dispute by recognising and apologising for the Agency's mistakes and identifying a useful solution, namely, paying the complainant a fee similar to that paid to experts with contracts. The Ombudsman also recognised that CEPOL's somewhat complex system of collaboration with national authorities may give rise to misunderstandings and may result in mistakes. He emphasised, in this regard, the importance of ensuring that such mistakes are identified and handled with a sense of reasonableness and fairness. This indeed appeared to have been the intended approach of CEPOL's Director in this case.

35. In light of the above, the Ombudsman took the view that it was regrettable that CEPOL did not implement its Director's initial decision to pay the complainant a fee similar to that paid to experts with contracts. In the Ombudsman's view and in light of the circumstances of the case and of the basic approach that appeared to underlie the said decision, this seemed like a natural solution. Following the complainant's request for clarification, the Director appeared to have been advised to inform her that payment relating to her preparation and follow-up work could not be made for the sole reason that there was no written contract. However, the Ombudsman noted that CEPOL had already decided to pay her for other related activities for which there was equally no written contract.

36. In light of the above considerations, the Ombudsman believed that it would be consistent with good administration for CEPOL to take the extra step of paying the complainant for her preparation and follow-up work relating to the two meetings here concerned. The Ombudsman therefore made the following proposal for a friendly solution[7]:

"CEPOL should consider paying the complainant, in addition to the sum of EUR 1 000 already offered, the sum of EUR 600 corresponding to the three days of preparation and follow-up work relating to her participation in the two meetings held in Budapest from 28-30 April 2008 and in Milan from 26-29 May 2008[8]".

Ombudsman's assessment after his friendly solution proposal

37. In its reply to the proposal for a friendly solution, CEPOL confirmed that it agreed with the Ombudsman's proposal to pay the complainant the sum of EUR 600 in addition to the sum of EUR 1 000 already offered to her.

38. CEPOL's reply was forwarded to the complainant, who confirmed that she would accept the sum of EUR 1 600 offered by CEPOL. She thanked the Ombudsman for his work.

The Ombudsman's assessment after his friendly solution proposal

39. CEPOL agreed to implement the Ombudsman's proposal for a friendly solution, and the complainant considers her claim to have been satisfied. Moreover, CEPOL appears to have no reservations with regard to the findings underlying the Ombudsman's proposal.

B. Conclusion

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

CEPOL agreed to implement the Ombudsman's proposal for a friendly solution, and has thus satisfied the complainant. The Ombudsman welcomes CEPOL's constructive collaboration in this case.

The complainant and CEPOL will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 18 March 2011

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[1] CEPOL was established in 2005 by Council Decision 2005/681/JHA of 20 September 2005, OJ 2005 L 256, pp. 63–70. CEPOL brings together senior police officers from across Europe with the aim of encouraging cross-border cooperation in the fight against crime and the maintenance of public security and law and order. It operates as a network in which activities - courses, seminars, conferences and meetings - are implemented in and by Member States, mainly at the national senior police training institutes. CEPOL's annual budget is provided by the European Union.

[2] On 7 May 2009, during a telephone conversation with the Ombudsman's services, the complainant clarified that the authorisation she referred to was a letter, dated 11 August 2008, and signed by the Chair of the sub-working group. In this letter, the Chair explained that the Director of CEPOL Italy expressed his assurance that the complainant would be reimbursed for all of her expenses and for the work she carried out as an Educational Expert consultant form March 2008 to the end of the scheduled activities. The letter, written in Italian, read as follows:

"[I]n riferimento all’incarico svolto quale Educational Expert nel gruppo di lavoro Cepol finalizzato alla predisposizione di un Common Curriculum sul tema Managing Diversity si comunica che, previa intesa intercorsa in data odierna con il Direttore dell’Unità italiana CEPOL, quest’ultimo ha comunicato il suo impegno incondizionato a farLe corrispondere tutti i compensi e rifondere tutte le spese da lei sostenute per l’espletamento dell’incarico di esperto educativo del gruppo di lavoro citato dal mese di marzo 2008 fino al completamento dell’attività."

The complainant also submitted to the Ombudsman a message from the Chair of the sub-working group that she received on 11 August 2008. The letter contained the following (in the original Italian):

"Ad ogni modo, il dottor S. [Director of the NCP] contratto ci sarà: in caso contrario non darà approvazione al bilancio Cepol che, per passare, deve essere approvato all’unanimità."

[3] In her message to the complainant, the chair of the sub-group stated, among others, the following: "good success during the meeting in Nettuno. I hope everything is going fine, the group dymanic and so on."

[4] Ms Z., from the CEPOL Secretariat, wrote: "Dear Mr S., naturally [the complainant] will be reimbursed for her attendance of the meetings as an expert."

[5] See footnote 2.

[6] In this regard, the Ombudsman notes that, from a letter dated 4 February 2009 and signed by the Director of CEPOL, it seems that CEPOL was aware that the complainant was invited to attend the meeting held in Milan. In his letter, the Director of CEPOL stated the following: "According to my information you were invited by the Project Support Officer at the CEPOL Secretariat and later by the sub-group Chair, both invitations in good fait[h], to attend two meetings of the sub-group on 28-30 April 2008 (from noon to noon) in Budapest (2 full days) and 26-29 May 2008 (from noon to noon) in Milano (3 full days)." In fact, contrary to what CEPOL stated in its opinion, CEPOL offered to pay the complainant compensation for her participation in the meetings in Budapest and Milan.

[7] The Ombudsman's proposal was dealt with by the new Director, Dr Ferenc Banfi.

[8] When formulating his proposal for a friendly solution, the Ombudsman also took into consideration that, on 6 February 2009, the complainant informed CEPOL that she had spent an average of 1,5 days on preparation and follow-up work. This amounted to three days for the two meetings here concerned, and therefore to a total sum of EUR 600, calculated on the basis of the daily fee of EUR 200 referred to in paragraph 10 above.