The background to the complaint

1. On 1 October 2006, the complainant started to work for the European Union's Judicial Cooperation Unit (Eurojust) on the basis of a three-year fixed-term temporary agent contract. The complainant worked in the Human Resources Unit (HRU), first as a secretary (AST 1) and later as a support assistant (AST 1).

2. On 21 October 2008, two years after having taken up his duties, the complainant reported himself ill. According to the complainant, his illness was the consequence of psychological intimidation and harassment/mobbing at work, including by his supervisor at the time, the Acting Head of the HRU. The complainant submitted to Eurojust a medical certificate from his doctor dated 21 October 2008, according to which he was 100% unfit to work from 21 to 24 October 2008. On 27 October, 10 and 28 November and 17 December 2008, as well as on 7 January and 14 February 2009, his doctor issued further medical certificates confirming that he was 100% unfit to resume work until 28 February 2009.

3. In a medical certificate dated 11 November 2008, the doctor in charge of issues relating to occupational health at Eurojust (from the firm Achmea Vitale) informed Eurojust (and the complainant[1]) that the latter's medical situation made it impossible for him to resume his work, that his sickness was related to issues concerning both work-related and personal matters, and that there was also a hierarchical conflict. The occupational health doctor thus advised mediation between the complainant and the HRU in order to find a solution. In a medical certificate dated 13 November 2008, the occupational health doctor reiterated the findings of his previous certificate and explicitly requested Eurojust "to arrange mediation as soon as possible".

4. On 17 November 2008, a telephone conversation took place between Mr V., the then Acting Administrative Director (AAD) of Eurojust, and the occupational health doctor.

5. On 1 December 2008, a meeting took place between the complainant and the AAD in the presence of a Staff Committee representative. During the meeting, the AAD informed the complainant that he would assess whether the option of moving him to another post within Eurojust would be more convenient than the option of reintegrating him into the HRU. He also stated that he would get back to him soon.

6. In a medical certificate dated 15 February 2009 and sent to the occupational health doctor, the complainant's doctor proposed that the complainant could resume work on 1 March 2009 on a part-time (50%) basis. In a further medical certificate dated 3 March 2009, the occupational health doctor informed Eurojust that there had been a partial improvement in the complainant's condition, and that he could resume work on 16 March 2009 on a 50% basis. This, however, was dependent on certain preconditions being fulfilled. These included, among other things, (i) that he had to work in a "secure" workplace, that is, away from direct contact with his former colleagues, and subject to his agreement on how should be assigned work and to whom he should report, (ii) that the conflict and the work-related factors, for which mediation had already been suggested, had to be dealt with and solved and (iii) that he had to be assigned to another supervisor and to another work environment.

7. On 8 March 2009, the complainant's supervisor sent an e-mail to the AAD containing a proposal to transfer the complainant to the General Services Unit (GSU), initially on a 50% part-time basis.

8. In a medical certificate dated 13 March 2009, the occupational health doctor reiterated that, as of 16 March 2009, the complainant could resume work on a part-time basis. He also repeated his advice for mediation concerning the work-related problems.

9. On 13 March 2009, a meeting took place between the complainant, the AAD, a representative from the HRU, and two representatives from the Staff Committee. During this meeting, the complainant's possible transfer to the GSU, as well as the upcoming appraisal exercise were discussed. When the AAD informed the complainant that his supervisor would henceforth serve as his Reporting Officer, the complainant referred to his conflict with this person and pointed out that he would not deal with his supervisor in the framework of his appraisal. Given the complainant's reaction, the AAD understood that asking him to take up his prior tasks of relocation officer (which would require professional interaction with the HRU) might not be the best decision. He thus pointed out that another option would be to assign him to the Press & PR Service to assist the press officer with translations. No agreement, however, was reached in this regard.

10. In a medical certificate dated 18 March 2009, the complainant's doctor stated that the latter was 100% unfit to work until 25 April 2009.

11. On 23 March 2009, the 2009 appraisal exercise was launched.

12. In a further medical certificate dated 29 March 2009 and sent to the occupational health doctor, the complainant's doctor expressed his view that none of the above-mentioned preconditions had been met and that it would be advisable to start mediation.

13. In a medical certificate dated 31 March 2009, the occupational health doctor informed Eurojust that the complainant was incapable of resuming his work and that he was on sick leave due to work-related and personal problems. He further pointed out that there was "an impasse in solving [the complainant's] work relating problems, therefore he [was] incapable of resuming his work", and that his advice for mediation concerning the work-related problems still stood.

14. In an e-mail of 1 April 2009 to the AAD and to the complainant's supervisor, Eurojust's Staff Welfare Officer advised that the complainant's login account be transferred back to the HRU system. In doing so, he noted that the proposal to move the complainant to the GSU had not been successful, and pointed out that his account already appeared to have been transferred to the GSU.

15. On 4 April 2009, the complainant sent an e-mail to the AAD, with copy to the Staff Committee and Staff Welfare Officer, in which he explained that he was unhappy with the meeting of 13 March 2009. He pointed out that he found the actions and non-action of the Eurojust management, in particular that of the AAD and of his supervisor, to be increasingly intimidating. As a result, his health worsened. He mentioned that the request to write his self-evaluation in the framework of the 2009 appraisal exercise was adding further stress to his already unhealthy condition. The complainant also argued that Eurojust had "manipulated" the advice of the occupational health doctor. He stated that the meeting of 13 March 2009 had been unilaterally terminated by the AAD. The complainant proposed that Eurojust provide a written opinion/reintegration plan by the end of April 2009, in the absence of which he would consider taking legal action. He concluded that, in order to show his willingness to cooperate, he would send his self-evaluation the following week.

16. On 22 April 2009, Eurojust sent an e-mail to the occupational health doctor asking whether mediation was advisable at that stage and whether the complainant's personal problems would be an obstacle in this context. On 23 April 2009, the occupational health doctor replied that mediation was at that stage a good way to overcome the current situation and to reach solutions, and that his advice therefore stood. He pointed out that the firm Achmea Vitale had certified mediators available. In an e-mail to Eurojust of the same day, the complainant stated that his problems were solely due to work-related issues, that is, the conflict and the intimidation he had had to endure.

17. On 29 April 2009, the complainant's doctor issued a certificate stating that he was 100% unfit to work until 9 May 2009.

18. On 1 May 2009, Mr J. took up the post of Administrative Director (AD) of Eurojust and Mr V., until then the AAD, took up the duty of Acting Head of the HRU, thereby becoming the complainant's new hierarchical superior.

19. On 8 May 2009, Mr V., in his new capacity as Acting Head of the HRU, sent a letter to the complainant in which he referred to the two offers of reintegration which were made during the meeting of 13 March 2009. According to Mr V., these options were a) a position in the Press Service and b) a position in the GSU with relocation tasks. He pointed out that neither of these offers were accepted by the complainant. Mr V. therefore informed the complainant that, in order to move forward with efforts to resolve the situation, mediation between the complainant and his former supervisor would be initiated as soon as possible. He further pointed out that arrangements were being made for such mediation to be carried out by an external person.

20. On 12 May 2009, the complainant and Mr V. had a meeting regarding this issue.

21. On 13 May 2009, the complainant contacted the Staff Welfare Officer to inform him that an application he had made for the position of HR Assistant proved unsuccessful. As a consequence, he wanted to claim a differential allowance based on Article 7 of the Staff Regulations, on the grounds that he had been performing the relevant tasks for more than four months.

22. By e-mail of 15 May 2009, Mr V. asked the complainant for his consent to initiate mediation with an external mediator. The complainant replied the same day stating that he agreed to mediation. He also reiterated his request to be transferred to another service.

23. On 15 May 2009, the complainant's doctor issued a medical certificate stating that he was 50% unfit to work from 10 May until 30 June 2009 and that, if no complications arose, the complainant could resume his normal activities on 1 July 2009. On 18 May 2009, the occupational health doctor sent a medical certificate to Eurojust stating that, upon fulfilment of the preconditions that had been previously set, the complainant could resume his work on a part-time basis on 12 May 2009. He again advised mediation.

24. In the meantime, in line with his explicit request, the complainant's Career Development Report (CDR) procedure was underway. Due to the conflict between the complainant and his former supervisor, it was decided that the new Acting Head of the HRU would be the complainant's Reporting Officer and the new AD would be the Countersigning Officer to avoid any interaction between the complainant and his former supervisor. The complainant's CDR was signed by both of these officials on 29 May 2009.

25. On 2 June 2009, the complainant refused to accept and to sign his CDR. He alleged that (1) the procedural appraisal exercise guidelines were not complied with, and (2) the content of the appraisal by the Reporting Officer, which was based on information received from the complainant's former supervisor, was incorrect. The complainant therefore asked for his CDR to be reconsidered.

26. On 8 June 2009, the complainant had a meeting with the AD and representatives from the Staff Committee regarding his comments on his CDR. At that meeting, and in reply to a question from the AD whether he had a personal conflict with his former supervisor, the complainant argued that his former supervisor had been blatantly abusive towards him when exercising his managerial duties. He stated that, for medical reasons, it was not possible for him to work with or in the proximity of his former supervisor. The complainant confirmed that he was prepared to take part in a mediation procedure.

27. In a medical certificate dated 22 June 2009, the occupational health doctor stated that the complainant was 50% fit to work as of 22 June 2009.

28. Following the complainant's refusal to accept his CDR, on 25 June 2009, the AD decided to convene the "Joint Instance" – the relevant appeal body. On 2 July 2009, the Joint Instance rendered its opinion, concluding that (1) the complainant's CDR was not drawn up fairly and objectively because (a) the documents supplied contained evidence of a serious conflict between the complainant and his former supervisor (b) the CDR, although signed by the complainant's Reporting Officer, was mainly based on the content provided by the complainant's former supervisor, and (2) the procedure followed was not in accordance with Article 7(13) of the Eurojust Decision of 24 April 2009 on General Implementing Provisions on the Yearly Performance Appraisal. According to these provisions, in the event of a justified absence, like in the complainant's case, the time limits for the appraisal shall be suspended.

29. On 7 July 2009, mediation took place with an external mediator, who spoke separately with the two parties. Given that none of the parties indicated a wish or a need for further mediation, the mediation report of 13 July 2009 stated that additional mediation did not appear appropriate. The report outlined the complainant's statements that he had been mobbed by several former colleagues and that his former supervisor did not intervene to stop this mobbing.

30. By letter dated 14 July 2009, the AD informed the complainant that, further to the opinion of the Joint Instance of 2 July 2009, his CDR would be annulled and would not be included in his personal file.

31. On 17 July 2009, the complainant sent an e-mail to the AD in which he asked for financial support for the legal costs in the matter. The AD replied on the same day, proposing to contact him by telephone and to make an appointment. By return e-mail of the same day, the complainant stated that he would prefer to receive information by e-mail or regular mail, but would not be reachable until 27 July 2009.

32. By letter dated 17 July 2009, the AD reminded the complainant that, as foreseen in its Article 5, his temporary agent contract would expire on 30 September 2009 and would not be renewed.

33. On 6 August 2009, the complainant was involved in a car accident in The Hague. As a result, he was again issued a medical certificate by his doctor dated 21 August 2009 stating that he was 100% unfit to work until 30 September 2009.

34. On 21 August 2009, the complainant submitted a complaint to Eurojust via his lawyer. It was based on Article 90(2) of the Staff Regulations[2] and contained two allegations and two requests.

35. The complainant complained first against the decision of 14 July 2009, by which he was informed that his CDR had been annulled and would not be included in his personal file. According to the complainant, following the opinion of the Joint Instance, his CDR should have been revised and the revised version of the CDR should have been included in his personal file. In his opinion, it was not possible simply to annul his CDR.

36. Second, he complained against what he perceived to be the 'decision' of 17 July 2009 not to extend his contract. According to the complainant, this 'decision' was not in accordance with Article 4 of his temporary agent contract, which foresaw that the period of notice was three months. Moreover, he alleged that it was not in accordance with the "Eurojust Decision of 19 December 2005 on the General Provisions for Implementing an Appraisal Exercise with regards [sic] to the Renewal of Contracts". According to the complainant, an evaluation of his performance should have been carried out. However, this was not done.

37. Third, the complainant asked for a formal investigation into the "psychological harassment" he had endured. He wanted the investigation to be carried out on the basis of Commission Decision C(2006) 1624/3 of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment[3]. The complainant pointed out that this Decision - which needed to be implemented by Eurojust - foresees that persons who are victims of psychological harassment can make a request for assistance. He made several such requests, but Eurojust did not react. The complainant further indicated that he wanted to receive assistance pursuant to Article 24 of the Staff Regulations and that it was clear from the doctors' reports that he had been the victim of psychological harassment. The complainant also requested compensation for his legal costs on the basis of Article 24 of the Staff Regulations and the above Decision of 26 April 2006.

38. Fourth, the complainant asked Eurojust to recognise, on the basis of Article 73 of the Staff Regulations, that he had an occupational disease for which it was responsible and thus compensate him for the damage suffered. The complainant pointed out that there was clearly a causal link between his professional activities and his illness, and that this was also confirmed by the doctors' reports. The complainant pointed out that Eurojust had been slow to react to the suggestions for reintegration and mediation made by the occupational health doctor and that, therefore, Eurojust was also responsible for the continuation of his illness. He further alleged that Eurojust failed to react to his proposal to be transferred to another department. He finally pointed out that Eurojust was still his employer and was thus obliged to reintegrate him.

39. The complainant enclosed several annexes with his complaint, including two medical certificates dated 15 February and 30 July 2009 from his doctor and from a psychotherapist respectively. He requested Eurojust to reply to his Article 90(2) complaint within four weeks.

40. On 30 September 2009, the complainant's contract came to an end.

41. On 21 October 2009, the complainant submitted a complaint to the European Ombudsman (complaint 2663/2009/KRK). According to the complainant, the administration of Eurojust was characterised by, among other things, "psychological intimidation, discrimination, administrative irregularity, abuse of power, unnecessary delays in procedures and failure to reply by the Eurojust management".

42. On 16 November 2009, the complainant started to work for the European Commission's Directorate-General for Enlargement.

43. By letter dated 18 November 2009, the Ombudsman informed the complainant that his complaint was inadmissible because the deadline for Eurojust to reply to his Article 90(2) complaint had not yet expired when he turned to the Ombudsman.

44. On 4 December 2009, the AD of Eurojust replied to the complainant's Article 90(2) complaint. In substance, the AD's reply to the four points raised by the complainant can be summarised as follows:

45. As regards, first, the annulment of the complainant's CDR, the AD reiterated the Joint Instance's conclusions that (i) the CDR was not drawn up fairly and objectively, (ii) the procedure followed was not in accordance with the rules and (iii) there was a serious conflict between the complainant and his former supervisor. As a result, it was necessary to withdraw the CDR, which he did in his decision of 14 July 2009. The AD argued that such action was a prerequisite for being able to review the contents of the CDR by way of launching a new evaluation exercise. However, given the conflict situation between the complainant and his former supervisor, it was practically impossible for him to carry out a new appraisal which would be accepted by the complainant.

46. As regards, second, his letter dated 17 July 2009, the AD pointed out that it was not a decision terminating the complainant's contract, but just a reminder that his contract would expire on the date provided in his contract. He stated that this was standard practice in the interest of good administration.

47. The AD also explained that Article 5 of the complainant's contract with Eurojust provided that: "the contract shall have effect from 1 October 2006 and shall run until 30 September 2009. This contract may be renewed ..." The AD argued that it is established case-law that, in the case of a fixed-term contract of employment, the staff member has no right to have his/her contract renewed. This is merely an option, which makes renewal subject to the interest of the service. When assessing the interest of the service in this regard, the employer has a wide discretion.

48. The AD explained that, due to the limited size of the HRU, it was not possible to reassign the complainant within this unit in a way which would guarantee that he was totally outside the context of a "potential conflict situation". He further argued that the complainant had rejected Eurojust's proposal of 13 March 2009 to reassign him to another unit, namely, the Press & PR Service. He therefore took the view that the renewal of the complainant's contract was not within the interest of the service.

49. The AD furthermore stated that he considered the complainant's request for a formal investigation into psychological harassment very seriously. In view of the duty of assistance foreseen in Article 24 of the Staff Regulations, he was determined to take all the necessary measures to conduct the requested investigation.

50. He also stated, however, that the complainant's ultimate purpose when requesting such an investigation was to claim compensation on grounds of an occupational disease pursuant to Article 73 of the Staff Regulations. Given this fact, he annexed a form to his reply with which the complainant could request the Office for the Administration and Payment of individual entitlements (the 'PMO') of the European Commission to launch a formal investigation into the psychological harassment. He pointed out that, according to the service-level-agreement signed in October 2006 between Eurojust and the PMO, he had delegated the relevant powers in this respect to the PMO.

51. Apart from the statements above, the AD did not make any comments on the complainant's fourth request. As regards the reintegration of the complainant, he pointed out that, from 6 August 2009 until the end of his contract (30 September 2009), the complainant was declared totally unfit to work because of the car accident. This thus made it impossible to reintegrate him.

52. The AD concluded that, together with his services, he would go to all efforts to find an acceptable solution. He pointed out that it was not within his competence to reintegrate the complainant within another institution, since his powers as Appointing Authority were limited to Eurojust. He however stated that, if the outcome of the formal investigation were to confirm that the complainant was indeed a victim of psychological harassment, he would personally ensure that appropriate measures are taken.

53. On 5 January 2010, the complainant submitted the present complaint to the Ombudsman. The complaint was registered under reference 325/2010/OV.

54. Following the complainant's request to the PMO "for recognition of an occupational disease allegedly linked to harassment", on 24 February 2010, the PMO requested Eurojust to provide a comprehensive account of the situation.

The subject matter of the inquiry

55. In his letter of 15 March 2010 asking Eurojust for an opinion on the complaint, the Ombudsman pointed out that the complainant had submitted a considerable number of allegations and claims in his initial complaint of 21 October 2009 and in his new complaint of 5 January 2010. Nevertheless, he had decided to include only the following allegations in his inquiry:

(1) There was unnecessary delay as regards the complainant's request for reintegration;

(2) Eurojust's decision of 14 July 2009 to annul the complainant's CDR and not to draw up a revised CDR which would be included in the complainant's personal file was incorrect;

(3) The letter of 17 July 2009, by which the complainant was informed that his contract would not be renewed, was not in accordance with (i) Article 4 of the contract, which foresaw a period of notice of three months, and (ii) the "Eurojust Decision of 19 December 2005 on the General Provisions for Implementing an Appraisal Exercise with regards to the Renewal of Contracts."

56. The Ombudsman informed the complainant and Eurojust that the other allegations and claims were either inadmissible or that there were insufficient grounds to include them in the inquiry. These other allegations were the following: maladministration and administrative irregularity; unnecessary delay in the evaluation procedure; lack of reply; psychological intimidation, harassment and mobbing[4]; discrimination; abuse of power; failure to deal appropriately with the complainant's entitlement to an unemployment allowance and to continued coverage by the Sickness Insurance Scheme; and failure to deal appropriately, in the decision of the Administrative Director of 4 December 2009, with the issues raised in the complaint of 21 August 2009. The Ombudsman also did not take up in his inquiry the claims that Eurojust should (i) carry out a formal investigation into the "psychological harassment" of the complainant on the basis of the Decision of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment, (ii) provide assistance to the complainant on the basis of Article 24 of the Staff Regulations, (iii) compensate the complainant for the costs of the legal advice he had to obtain; and (iv) recognise, on the basis of Article 73 of the Staff Regulations, that the complainant had an occupational disease for which it was responsible and compensate him for the damage suffered. The reasons why these allegations and claims were not taken up in the inquiry are set out in the Ombudsman's letter to the complainant of 15 March 2010.

The inquiry

57. The complaint was forwarded to Eurojust for an opinion. Eurojust sent its opinion on 24 June 2010. In its opinion, Eurojust pointed out that there was an administrative investigation pending before the PMO and that the complainant had an appointment with the PMO's doctor scheduled for 5 July 2010. Eurojust therefore asked the Ombudsman, in order not to preempt the findings of the investigation, to forward its opinion to the complainant after the said appointment. On 12 July 2010, the Ombudsman forwarded the opinion to the complainant, who sent his observations on 31 August 2010.

The Ombudsman's analysis and conclusions

A. Preliminary remarks

58. The Ombudsman notes that, in his observations on Eurojust's opinion, the complainant submitted various comments which go beyond the scope of the present inquiry, as set out in the Ombudsman's letters to Eurojust and to the complainant dated 15 March 2010.

59. For instance, the complainant referred to the 8 May 2009 letter of the new Acting Head of the HRU. He stressed that he had repeatedly pointed out that this letter was incorrect because it mentioned that two proposals for reintegration were put forward. He asked for the letter to be corrected but, despite the promises given to him, the new Acting Head of the HRU never made an attempt to rectify the letter. The Ombudsman notes that this constitutes a new allegation which falls outside the scope of the present inquiry. The Ombudsman notes, however, that he will look into the substance of the allegation concerning the alleged delay in the complainant's reintegration and, in that context, he will also assess the concrete proposals that were put forward by Eurojust. He therefore takes the view that the complainant's new allegation, and his claim for the letter to be corrected does not need to be taken up in the present inquiry. It also does not appear necessary to deal with this specific point in order to conclude on the main allegation concerning the alleged delay in handling the request for reintegration.

60. The complainant also stated that Eurojust's AD argued several times that an inquiry into psychological intimidation could only be carried by the PMO on the basis of Article 73 of the Staff Regulations and that he himself could not organise such an investigation since the relevant power had been delegated to the Commission. The complainant pointed out that, in an e-mail to his lawyer, the PMO explained that it was not responsible for such an inquiry. The responsibility lay with Eurojust's AD. The complainant stressed that he had submitted both (i) a complaint to Eurojust's AD concerning intimidation (on the basis of Article 90(2) of the Staff Regulations) and (ii) a request to the PMO concerning the recognition of an occupational disease on the basis of Article 73 of the Staff Regulations. The complainant argued that the AD failed to act upon his request to organise an investigation concerning psychological intimidation. The Ombudsman would like to recall that, in his letter dated 15 March 2010, he had already informed the complainant that there were insufficient grounds for an inquiry into these issues[5].

B. Alleged unnecessary delay as regards the request for reintegration

Arguments presented to the Ombudsman

61. In his complaint to the Ombudsman, the complainant first described the background to his complaint. He argued that, when taking up his duties at Eurojust, he was successful in carrying out his tasks and received praise from his colleagues. His success was however not appreciated by certain colleagues, who started to harass and obstruct him by, among other things, not providing him with information, questioning his knowledge in the presence of other colleagues and excluding him from HRU meetings, thereby making his work impossible. These colleagues had the support of the Acting Head of the HRU at the time, who was also the complainant's supervisor. Instead of cooperating to find a solution, the latter completely ignored the complainant's complaints about what was occurring, and took the side of the colleagues who intimidated him. The complainant's supervisor also accused him of isolating himself from the team, whereas it was in fact the complainant's supervisor who allowed information not to be communicated to the complainant on time. The complainant's supervisor organised team meetings when the complainant could not be present. The complainant's positions, both as secretary and as support assistant, were filled by other persons who took over his tasks. The complainant further submitted that the Eurojust management further isolated him by failing (i) to give him access to HRU reports and other documents and (ii) by failing to reply to important questions and provide him with an office (from the beginning of 2009).

62. The situation further escalated during a meeting in September 2008, when the complainant's supervisor threatened the complainant with "further measures". Following this "psychological intimidation" and harassment/mobbing, the complainant became ill in October 2008. This led to his 100% incapacity to work. The complainant immediately contacted the occupational health doctor, who advised Eurojust to arrange mediation. However, Eurojust did not follow this advice. Despite additional recommendations from the complainant's doctor to reintegrate him, Eurojust failed to do so. The complainant himself also asked to be reintegrated or to be transferred to another unit, but Eurojust did not react to these requests. The complainant further submitted that Eurojust had found a solution to reintegrate two colleagues and also other colleagues who did not perform as well as he did. He stated that Eurojust's maladministration caused, and was still causing, him a lot of material and moral damage. In summary, the complainant thus alleged that there was unnecessary delay as regards his request for reintegration. He stated that he would like the Ombudsman to bring about a friendly solution or to make a draft recommendation.

63. In its opinion, Eurojust first gave a detailed overview of the chronology of the facts and stated that they demonstrate that there had been no unnecessary delay on its part. In addition to the facts already mentioned above in the section "The background of the complaint", which are not disputed by the complainant, Eurojust mentioned the following further elements:

- During the telephone conversation of 17 November 2008 between the AAD of Eurojust and the occupational health doctor, the latter recommended delaying the start of the mediation because of the complainant's prevailing non-work related medical condition.

- At the meeting of 1 December 2008 between the complainant, his supervisor and the AAD, the latter informed the complainant that he would assess the option of reintegration and the option of moving him to another unit.

- During the second attempt to reintegrate the complainant, namely, in the framework of the meeting of 13 March 2009, the complainant was offered reassignment in the Press & PR Service. Regrettably, the complainant became increasingly agitated and then suddenly left the meeting room. This meant that the meeting finished abruptly, before a solution could be reached.

- In his e-mail of 8 May 2009, the newly appointed Acting Head of the HRU informed the complainant that mediation would be organised. He suggested two possibilities for his reintegration, namely, a position in the Press & PR Service, assisting with the processing of translation, and a position in the GSU assisting with relocation tasks.

- It appeared obvious from the complainant's reaction at the meeting with the AD of 8 June 2009 that he had disregarded all the administration's previous attempts to try to find a solution.

- Following the meeting of 8 June 2009, the AD decided to transfer the complainant to the Press & PR Service, where he would have no interaction with his former supervisor. After consulting the complainant, the internal transfer procedure was initiated.

64. As regards the substance of the complainant's allegation, Eurojust pointed out that, in March 2009, both the occupational health doctor and the complainant's doctor recommended his reintegration solely on the basis of three conditions, the main being the creation of a secure working environment for the complainant. Eurojust referred to the case-law of the Court of Justice of the EU, according to which a reassignment does not normally require the consent of the member of staff concerned. Nonetheless, under the specific circumstances, Eurojust felt that it was appropriate to explore every possibility of consensual reassignment, in line with the complainant's wishes. With this in mind, Eurojust went to great efforts to create a secure working environment for the complainant and proposed several possibilities for his transfer to another unit. The complainant however refused all these proposals.

65. Two further objective difficulties delayed the reintegration process. First, a number of his medical certificates contradicted each other. The medical certificate dated 3 March 2009, which was issued by the occupational health doctor, recommended the complainant's reintegration, under certain conditions, on 16 March 2009. However, on 17 March 2009, the occupational health doctor declared the complainant unfit to work. Then, on 18 March 2009, the complainant sent a medical certificate from his doctor declaring that he was 100% unfit to work. The latter's certificate dated 29 March 2009 reiterated the advice given by the occupational health doctor on 3 March 2009, and declared the complainant 100% unfit to work until 9 May 2009. The subsequent medical certificates declared the complainant 50% fit to work, provided that the aforementioned conditions were fulfilled.

66. The second obstacle was that, on 6 August 2009, the complainant was involved in a car accident, as a result of which he was again 100% unfit to work until the end of his contract.

67. With regard to the condition of a secure working environment, Eurojust pointed out that mediation efforts began when the complainant's medical condition so permitted and when a solution for his transfer seemed to have been reached. This was in line with the occupational health doctor's advice. However, mediation at that point proved to be irrelevant because neither of the parties still wanted or needed it.

68. Eurojust concluded that, although delays occurred in the reintegration process, these were caused by a series of circumstances and objective obstacles encountered during Eurojust's continuous attempts to find a solution in the complainant's interest. Eurojust submitted that it was not responsible for these delays.

69. In his observations, the complainant pointed out that the chronology of the facts submitted by Eurojust was incomplete and gave a distorted view of events. In his view, Eurojust again seemed to have no problem in submitting incorrect information about the situation.

70. The complainant stated that it was true that he had reported ill on 21 October 2008 and did not resume his duties after that date. However, his incapacity to work and absence from the office were due only to the situation in the HRU, the continued mobbing against him and the negative attitude of his former supervisor. Eurojust failed to make any efforts to tackle the untenable and unhealthy working atmosphere by proposing another supervisor with whom the complainant could work. This was in spite of the clear advice given by the occupational health doctor and the complainant's doctor. Eurojust also failed to act rapidly upon the occupational health doctor's advice to start mediation of 11 and 13 November 2008. It was therefore incorrect for Eurojust to allege that, in the telephone conversation of 17 November 2008, the occupational health doctor suggested delaying the start of the mediation because of the non-work-related medical condition of the complainant. On the contrary, the medical certificate from the complainant's doctor dated 21 October 2008 mentioned that, if no further complications arose, the complainant could take up his normal activities from 25 October 2008 onwards. The complainant stated that it was thus also incorrect for Eurojust to suggest that medical advice to reintegrate him was not given until March 2009, because such medical advice had already been given in October/November 2008. The medical certificate from the occupational health doctor dated 3 March 2009 mentioned that the complainant could restart on 16 March 2009, on a part-time basis. This was reiterated in the medical certificate issued by the complainant's doctor on 29 March 2009.

71. The complainant argued that no concrete proposals were made at the meeting of 1 December 2008.

72. The complainant further argued that Eurojust's statement that it made several proposals for reintegration was a flagrant lie. Only one proposal was made, namely, at the meeting of 13 March 2009. However, this proposal was not realistic because the complainant would still have been in contact with his former supervisor, and this was against the preconditions which were set by the doctors. Contrary to Eurojust's statement, no concrete proposal to move the complainant to the Press & PR Service was made at that meeting. The complainant argued that, in fact, Eurojust never made a proposal which respected the pre-conditions put forward by both doctors. In the certificate dated 29 March 2009, the complainant's doctor mentioned that none of the pre-conditions for reintegration had been realised. The complainant also stated that Eurojust's comment concerning his agitation and him leaving the meeting room was incorrect. In his view, it was the AAD who terminated the conversation. After this meeting, both the occupational health doctor and the complainant's doctor concluded that, under these conditions, it was not advisable for the complainant to restart his activities. They thus again declared him 100% unfit to work, as attested in the medical certificate of the complainant's doctor dated 29 April 2009.

73. The complainant pointed out that the 2009 appraisal exercise was initiated by his former supervisor. This was despite recommendations from the occupational health doctor to avoid contact with him and despite the complainant's objection during the meeting of 13 March 2009.

74. The complainant further pointed out that, contrary to what Eurojust had argued in its opinion, the new Acting Head of the HRU did not make a proposal, in his letter dated 8 May 2009, for two options of reintegration. He simply referred to offers which had been made earlier. However, only one proposal was made, which did not take into account the preconditions set by the doctors.

75. The complainant stressed that Eurojust's statement that it became obvious at the meeting of 8 June 2009 that he had disregarded all the administration's attempts to find a solution was totally incorrect.

76. The complainant referred to Eurojust's statement that, following the meeting of 8 June 2009, the AD decided to transfer him to the Press & PR Service. This was to prevent any interaction with his former supervisor. Eurojust further stated that, after consulting him, it initiated the internal transfer procedure. The complainant argued that these statements were flagrant lies. In his view, Eurojust never made a proposal to transfer him to that service, and never consulted him on this issue.

77. The complainant argued that Eurojust had in fact waited until July 2009 to attempt mediation. However, at the mediation of 7 July 2009, neither of the two parties was willing to participate. This was due to the increased conflict between the parties since October 2008, which arose as a result of Eurojust's lack of action, the incorrect information contained in his CDR and the lies concerning the number of attempts to reintegrate him.

78. The complainant also argued that it was not true that his medical certificates were contradictory. He stressed that he was again declared 100% unfit for work following the lack of progress in his reintegration process and the negative result of the meeting of 13 March 2009, which created additional stress for him.

The Ombudsman's assessment

79. The complainant alleged that there was unnecessary delay as regards his request for reintegration. On a literal interpretation, this would mean that the Ombudsman only needs to examine how Eurojust handled the request made by the complainant himself. However, most of the suggestions for the complainant's reintegration into Eurojust were not made by the complainant[6], but by his doctor and by the occupational health doctor. The Ombudsman considers, however, that such a restrictive interpretation of the present allegation would not be appropriate. This allegation should instead be interpreted as concerning Eurojust's handling of the issue of the complainant's reintegration into its service. It emerges from Eurojust's submissions that it, too,understood the allegation in this sense. It is also clear that Eurojust does not dispute that it was obliged to try and reintegrate the complainant into its services as soon as he was healthy enough to restart work.

80. It is equally not disputed that, after going on sick leave on 21 October 2008, the complainant never resumed his work for Eurojust. Eurojust accepted that there had indeed been delays in the process of reintegrating the complainant into its services, but argued that it was not responsible for these delays. In its view, these were caused by a series of circumstances and objective obstacles beyond its control. The Ombudsman notes that Eurojust specifically invoked (i) what it considered to be the complainant's rejection of its proposals for reintegration, (ii) the contradictory medical certificates and (iii) the complainant's car accident of 6 August 2009, which again led to his 100% incapacity to work. The Ombudsman thus needs to evaluate whether Eurojust's arguments are valid or whether it must be held responsible for the delays that occurred.

81. As mentioned above, Eurojust had the obligation to try and reintegrate the complainant into its services as soon as his health permitted him to resume work. The Ombudsman notes, however, that the complainant's reintegration became impossible as of 6 August 2009, when he was involved in a car accident and was subsequently declared 100% unfit to work until the end of his contract. The Ombudsman considers that this accident and the complainant's subsequent 100% incapacity to work was indeed an obstacle to his reintegration that was beyond Eurojust's control. The Ombudsman therefore considers that he only needs to examine Eurojust's efforts at reintegrating the complainant up until 6 August 2009. He further considers that, although mediation and the complainant's reintegration were two different issues, the efforts Eurojust made with regard to both these aspects were necessarily linked to each other and need to be taken into consideration here. This is especially so, given that one of the preconditions (according to the occupational health doctor) for the complainant to return to work was to find a solution to the conflict for which mediation had been advised.

The period until 1 March 2009

82. The complainant and Eurojust disagree about the moment when medical advice for reintegration was given for the first time. According to Eurojust, such advice was given in March 2009, whereas the complainant argues that such advice was already given in October/November 2008. From the documents contained in the file, it appears that a medical certificate dated 21 October 2008 declared him 100% unfit to work from 21 to 24 October 2008. Although this certificate mentioned that, if no complications arose, the complainant could resume his normal activities from 25 October 2008 onwards, it appears that, in subsequent certificates of 27 October, 10 and 28 November and 17 December 2008 and of 7 January and 14 February 2009, the complainant's doctor confirmed that the complainant was 100% unfit for work until 28 February 2009. The complainant's doctor considered that, if no complications arose, he could restart his normal activities from 1 March 2009 onwards. In medical certificates/letters dated 11 and 13 November 2008, the occupational health informed Eurojust that the complainant was not yet capable of resuming his work. In these certificates, he referred to the conflict between the complainant and his supervisor and advised Eurojust to arrange mediation.

83. In view of the above, the Ombudsman concludes that, due to his medical condition, the complainant was unable to resume his functions before 1 March 2009. Therefore, even if there had been an unnecessary delay on the part of Eurojust, it could not have negatively affected the complainant before that date.

84. In any event, the Ombudsman takes note of the fact that Eurojust did not remain inactive during the period concerned. In particular, it emerges from the evidence submitted to the Ombudsman that, on 1 December 2008, Eurojust organised a meeting between the complainant and the AAD in the presence of a representative from the Staff Committee and a HR official. It appears from the minutes of that meeting that the complainant explained his problems to the AAD, in particular those he had with his supervisor. In reply to a question from the AAD, he furthermore explained that he would not mind working in a different unit as long as the work environment was less stressful than in the HRU. The ADD concluded that he would think about the situation and assess whether the option of moving the complainant somewhere else would be more convenient than the option of reintegrating him in the HRU. The information available to the Ombudsman suggests that Eurojust subsequently made preparations for the complainant's move to another unit.

The period from 1 to 17 March 2009

85. As regards the period starting on 1 March 2009, the Ombudsman notes that, on 8 March 2009, the complainant's supervisor sent an e-mail to the AAD proposing to transfer the complainant (in the interest of the service) to the GSU on a 50% part-time basis. The transfer proposal mentioned 16 March 2009 as a starting date (and thus the date for his reintegration), which was also the date suggested by the occupational health doctor in his medical certificate dated 3 March 2009. The proposal also set out some practical arrangements to be taken care of in the framework of the transfer.

86. Five days later, on 13 March 2009, Eurojust organised a second meeting between the complainant and the AAD, during which the complainant's possible transfer to the GSU and the practical arrangements for such a transfer were discussed, including, in particular the workflow and the fact that the secretary of the HRU would be the complainant's contact person. The Ombudsman understands that the proposal outlined that the complainant should continue to carry out the tasks he had performed previously, albeit in another unit. The complainant did not consider this proposal acceptable because he would, in his view, still have been obliged to be in contact with his previous colleagues. According to the minutes of the meeting, the option of a transfer to the Press & PR Service was raised. Eurojust contended that a proposal to that effect was made at the meeting. The complainant disputes this.

87. Irrespective of whether or not such an alternative proposal was made, the above shows that Eurojust was trying to find a solution as regards the complainant's reintegration. There would therefore appear to have been no unnecessary delay in the period between 1 and 17 March 2009.

The period from 18 March to 9 May 2009

88. After the meeting of 13 March 2009, the complainant was again declared 100% unfit to work from 18 March until 25 April 2009, and then again from 26 April until 9 May 2009. Therefore, even if there had been an unnecessary delay on the part of Eurojust during the period between 18 March and 9 May 2009, it could not have negatively affected the complainant.

89. In any event, Eurojust does not appear to have remained inactive during that period. In a certificate dated 31 March 2009, the occupational health doctor concluded that, having considered both Eurojust's and the complainant's views, "there isn't a suitable solution for the problem at hand where [the complainant] and Eurojust agree with". The occupational health doctor added that his advice for mediation still stood. On 22 April 2009, Eurojust contacted the occupational health doctor in order to receive confirmation that mediation was advisable. Upon receiving the latter's positive reply, the new Acting Head of the HRU informed the complainant on 8 May 2009 that arrangements for mediation by an external person were underway. He pointed out that reintegration would be advisable only when the complainant's conflict with his former supervisor had been resolved through mediation.

The period from 10 May to 13 July 2009

90. As regards the period from 10 May to 13 July 2009, it should be noted that, on 12 May 2009, Eurojust organised a third meeting with the complainant, in which the latter was informed that Eurojust considered it appropriate to proceed to mediation. In an e-mail of 15 May 2009, the Acting Head of the HRU then confirmed the mediation proposal and asked for the complainant's consent, which the complainant gave on the same day. The mediation was carried out on 7 July 2009. However, on 13 July 2009, it became clear from the mediator's report that the mediation had proved unsuccessful and that none of the parties involved in it wished to pursue it further.

91. The Ombudsman notes that, in a certificate dated 18 March 2009, the complainant's doctor stated that the complainant was 100% unfit to work until 25 April 2009. In a further certificate dated 29 April 2009, the complainant's doctor confirmed that the complainant was 100% unfit to work until 9 May 2009. In these circumstances, the Ombudsman considers that Eurojust did not know for certain when the complainant would be able to resume his work. However, he also considers that Eurojust needed to be ready to reintegrate the complainant as soon as possible after his sick leave came to an end. This was particularly important in view of the fact that the complainant's contract would soon be over. It should be noted that, on 15 May 2009, the complainant explicitly asked for a transfer to another unit. The complainant's doctor and the occupational health doctor emphasised that, before the transfer could take place, Eurojust not only needed to find a suitable post for the complainant, but also needed to solve the complainant's conflict with his previous supervisor through mediation. Since Eurojust itself clearly indicated, in its letter to the complainant dated 8 May 2009, that the complainant's return to work could occur only after the conflict with his former supervisor had been resolved through mediation, it is clear that Eurojust should have organised this mediation as soon as possible. It appears, however, that it took nearly two months before the mediation was actually carried out. Eurojust has not provided any arguments to explain the length of this period. The complainant suggests that the delay was due to organisational problems within Eurojust as regards the necessary financial commitment. However, given that mediation had been suggested as early as November 2008, any such problems could not constitute a valid reason for the said delay.

92. Eurojust argued that some of the medical certificates were contradictory, and that this resulted in the procedure being as lengthy as it was. However, this reason cannot be invoked as regards the period between 10 May and early July 2009, given that there were no contradictory certificates covering that period.

The period from 13 July to 5 August 2009

93. The mediator's report of 13 July 2009 made it clear that the mediation had not been successful and that the parties did not want to pursue it further. Eurojust thus had to take a decision on the reintegration of the complainant, either by transferring him to another unit or by informing him that it considered such reintegration to be impossible. In its opinion, Eurojust submitted that, following the meeting of 8 June 2009, the AD had taken the decision to transfer the complainant to the Press & PR Service, and the internal procedure for this transfer was initiated. This statement was disputed by the complainant and Eurojust has not put forward any evidence to show that it did indeed proceed with the transfer. The Ombudsman considers, however, that this point does not need to be pursued any further. As a matter of fact, Eurojust clearly found itself in a difficult position when it became aware of the fact that the mediation, which its occupational health doctor considered to constitute a prerequisite for the complainant's reintegration, had failed. In view of the objective difficulties it thus faced, the Ombudsman considers that Eurojust cannot be accused of unnecessary delay on account of the fact that it was unable to solve the problem within the short period of time between 13 July and 5 August 2009. There is therefore no reason to consider that there was further undue delay on the part of Eurojust.

Conclusion regarding the first allegation

94. On the basis of the above, the Ombudsman concludes that, for the period between 10 May and 7 July 2009, there was indeed unnecessary delay on the part of Eurojust as regards the complainant's reintegration. The Ombudsman will therefore make a critical remark below.

C. Allegedly incorrect annulment of the CDR

Arguments presented to the Ombudsman

95. The complainant alleged that Eurojust's decision of 14 July 2009 to annul his CDR and not to draw up a revised one to be included in his personal file was incorrect. According to the complainant, he clearly asked for a review of his CDR and not for an annulment.

96. In reply to this allegation, Eurojust quoted from the answer contained in the AD's decision of 4 December 2009 concerning the complainant's Article 90(2) complaint. This decision stated that, following the complainant's refusal to accept the outcome of his CDR and his request for reconsideration on the grounds of procedural errors and inaccuracies in its content, the Eurojust's AD set up a Joint Instance. Following the latter's conclusions that (i) the CDR was not drawn up fairly and objectively, (ii) the procedure followed was not in accordance with the rules, and (iii) there was a serious conflict between the complainant and his former supervisor, the CDR had to be withdrawn. This was done by the AD's decision of 14 July 2009, which was a prerequisite for being able to assess the complainant's performance by way of a new evaluation exercise. However, given the conflict situation between the complainant and his former supervisor, it was practically impossible for the AD to carry out a new appraisal which would not be rejected by the complainant.

97. Eurojust also referred to Article 2(6) of the Eurojust Decision of 24 April 2009 on General Implementing Provisions on the Yearly Performance Appraisal, according to which "a career development report does not have to be drafted for staff members who left Eurojust in the same year or who are going to leave in following year, unless they expressly request one" (emphasis added by Eurojust). Eurojust stated that this clause illustrated that it is ready to take into account a person's legitimate interests even if he/she has left its service. In the complainant's case, Eurojust was confronted with the material impossibility of establishing a new CDR that he would accept. This was because (a) Mr. X, who supervised the complainant's work, was no longer a Eurojust staff member, and (b) the complainant had consistently refused to participate in any appraisal exercise involving his former supervisor.

98. In his observations, the complainant stated that his CDR was drafted by his former supervisor and signed by the AAD. He argued that, since this CDR contained false information, he asked that it be redrafted. The complainant also pointed out that Eurojust recognised, in its opinion, that he was entitled to receive a CDR if he so requested, and that this he had done so in the present case. He argued that Eurojust's statement that, in the present case, it was completely impossible to establish a new CDR was not acceptable. In this respect, the complainant pointed out that, in spite of the difficult situation, he collaborated with his former supervisor by writing a self-evaluation. Eurojust's statement that he constantly refused to collaborate was therefore incorrect. Also, in his view, the problems invoked by Eurojust could have been solved. Eurojust was under obligation to take the necessary measures in order to establish a new CDR. Eurojust thus failed to fulfil its obligations.

The Ombudsman's assessment

99. The Ombudsman notes that the procedure for establishing the CDR is set out in Eurojust "Decision of 24 April 2009 on General Implementing Provisions on the Yearly Performance Appraisal", which entered into force on 25 April 2009. This Decision repealed the earlier provisional Decision of 11 February 2009 which was adopted pending the Commission's agreement on the draft which became the Decision of 24 April 2009. Both Decisions contained the same provisions and indicated, in Article 11, that the provisions applied to CDRs drawn up from 1 February 2009 onwards. Consequently, they also applied to the complainant's situation.

100. Article 7(11) of the Decision of 24 April 2009 provides that "[t]he staff member's reasoned refusal to accept the career development report shall automatically mean referral of the matter to the Joint Instance referred to in Article 8." Article 8(4) provides that the "Joint Instance shall, when appealed to under Article 7(11), deliver an opinion within ten working days from its establishment." Article 8(6) provides that the "opinion of the Joint Instance shall be transmitted to the staff member, Reporting Officer, Countersigning Officer and appeal assessor..." Article 8(7) provides that, following this transmission, the "appeal assessor shall confirm or amend the career development report within five working days ..." Article 8(8) provides that the "career development report shall then be declared final and communicated to the staff member concerned, the Reporting Officer, the Countersigning Officer and the Joint Instance." Article 7(14) further provides that the "staff member shall be notified ... that the decision rendering the report final has been adopted, pursuant to this Article or Article 8(9)[7]." However, the Ombudsman also notes that Article 10(1) (Transitional Measures) of the Decision provides that "for the first annual appraisal exercise taking place before 31 December 2009, ... no Appeal Assessor shall be included in the process". Therefore, in the present case, Article 8(7) did not apply.

101. The Ombudsman notes that the Decision of 24 April 2009 does not provide for an annulment of the CDR after the Joint Instance has given its opinion. In fact, the normal procedure described above foresees that, within five days of the transmission of the Joint Instance's opinion, the appeal assessor confirms or amends the CDR, after which it is declared final and added to the personal file. Even though, following the combined reading of Article 8(6)–(8) and Article 10(1) of the Decision of 24 April 2009, this procedure was not applicable to the present case, it is clear that the same approach - that is, to confirm or to amend - should also have applied to the complainant's CDR. It thus follows that Eurojust had no power simply to annul the CDR – it could only amend it. In cases where Eurojust finds that a CDR, which the staff member concerned objects to, was not drawn up in conformity with the relevant rules, it must resume the CDR procedure at the stage prior to the one where the relevant errors occurred.

102. Eurojust invoked several arguments to justify why it decided to annul the complainant's CDR instead of carrying out a new appraisal. First, it referred to Article 2(6) of the Decision of 24 April 2009, according to which a CDR does not need to be established for staff members who left Eurojust in the same year or who are going to leave in the following year "unless they expressly request one". Given that the complainant did ask for a staff report, this argument is not convincing.

103. Eurojust also invoked the material impossibility of carrying out a new appraisal due to the conflict between the complainant and his former supervisor and because Mr X. was no longer a Eurojust staff member. These arguments are also not convincing. First, although a conflict situation between a staff member and his or his superior can certainly complicate the appraisal exercise, Eurojust has not established that resuming the CDR procedure was impossible in the present case. It should be recalled that it was precisely because of the conflict situation and in order to avoid any interaction between the complainant and his former supervisor that the new Acting Head of the HRU would act as the complainant's Reporting Officer, and the new AD would be the Countersigning Officer.

104. On the basis of his above findings, the Ombudsman concludes that Eurojust's decision of 14 July 2009 to annul the complainant's CDR without resuming the procedure was incorrect. This constitutes an instance of maladministration.

105. The Ombudsman notes that the complainant is no longer working for Eurojust, which he left on 30 September 2009 following the expiry of his contract. He further notes that he has not submitted a claim that a new CDR should still be drawn up. Given the passage of time, doing so would in any event probably be even more difficult now, that is, more than one and a half years after the complainant left Eurojust. The Ombudsman considers that it would therefore not be appropriate to explore the possibility of reaching a friendly solution on this issue. He will instead make a critical remark below.

D. Alleged irregularity of the letter informing the complainant of the non-renewal of his contract

Arguments presented to the Ombudsman

106. The complainant alleged that the letter dated 17 July 2009, by which he was informed that his contract would not be renewed, was not in accordance with (i) Article 4 of the contract, which foresaw a period of notice of three months, and (ii) the "Eurojust Decision of 19 December 2005 on the General Provisions for Implementing an Appraisal Exercise with regards to the Renewal of Contracts."

107. In its opinion, Eurojust quoted Article 4 of the complainant's contract, which provides as follows: "For the purposes of Article 47(b)(ii) of the Conditions of Employment of Other Servants [the 'CEOS'], the period of notice shall be of 3 months. Where the contract has been renewed, the period of notice shall be one month for each year of service, up to a maximum of six months." Eurojust further quoted Article 47(b)(ii) of the CEOS which provides that, where the contract is for a fixed period, the employment of temporary staff shall cease "at the end of the period of notice specified in the contract giving the servant or the institution the option to terminate earlier..." (emphasis added by Eurojust). In the present case, the complainant's employment with Eurojust was coming to an end on 30 September 2009. By letter dated 17 July 2009, following standard practice and in the interest of good administration, Eurojust's AD reminded the complainant that his contract would expire on the date provided for in his contract. Therefore, the expiration was not a termination of his contract of employment and the three-month notice foreseen in Article 4 of the contract did not apply.

108. Eurojust pointed out that its Decision of 19 December 2005 on the General Provisions for Implementing an Appraisal Exercise with regard to the Renewal of Contracts did not apply in the present case. Article 5 of this Decision provides that "the renewal of contract appraisal exercise shall begin as soon as possible after the entry into force of this decision". According to Article 8, "[t]hese provisions shall apply to the appraisals to be conducted for staff members whose contracts end during the year 2006 and during the first half of 2007 according to the list attached to this decision". By Administrative Decision AD 2008-37 of 30 June 2008, the AAD adopted the Decision on the Extension of the Provisional Application of General Provisions for Implementing an Appraisal Exercise with regard to the Renewal of Contracts. Article 2 of this latter Decision modified the Decision of 19 December 2005 as follows: "Article 8 shall be replaced as follows: these provisions shall apply to the appraisals for the renewal of the contract to be conducted for agents whose contracts end in 2008".

109. Eurojust argued that, by implementing Article 43 of the Staff Regulations (which is applicable by analogy to Eurojust's temporary agents on the basis of Article 15(2) of the CEOS), it provisionally adopted, on 11 February 2009, its Decision on General Implementing Provisions of the Yearly Performance Appraisal. On 24 April 2009, following the Commission's agreement, the Decision was declared final and the Decision of 11 February 2009 was repealed.

110. Once the comprehensive Decision on the annual performance appraisal had been adopted, the Eurojust Decision on an appraisal exercise with regard to the renewal of contracts became obsolete. As provided for in Article 11 of the Decision of 24 April 2009, "these provisions shall apply to the career development reports to be drawn up from 1st February 2009 onwards". Eurojust concluded that its Decision of 24 April 2009 on General Implementing Provisions on the Yearly Performance Appraisal applied to all of the appraisal exercises that had been conducted since 2009. This included the complainant's appraisal exercise.

111. In his observations, the complainant stated that, as regards this allegation, he would accept the approach taken by the Ombudsman. He considered, however, that if a contract is not to be renewed on its date of expiry, the employer should inform the employee at least three months in advance. This did not happen in his case.

The Ombudsman's assessment

112. The Ombudsman notes that the complainant's allegation is two-fold. More specifically, the complainant alleges that the letter dated 17 July 2009 was not in accordance both (i) with Article 4 of his contract and (ii) with the "Eurojust Decision of 19 December 2005 on the General Provisions for Implementing an Appraisal Exercise with regards to the Renewal of Contracts".

113. As regards the first part of the allegation, Article 5 of the complainant's contract with Eurojust, signed on 10 October 2006, provided that the contract ran from 1 October 2006 until 30 September 2009 and could be renewed. Since Eurojust decided not to renew the complainant's contract, this means that the said contract expired on 30 September 2009. The contract does not contain a provision according to which the complainant should have been informed or reminded three months in advance of the upcoming expiry of his contract. The Ombudsman notes that Article 4 of the contract, which the complainant argued was not respected in the present case, does not concern the contract's expiry, for which there was no period of notice, but rather a situation where the contract is terminated by Eurojust (or the staff member) before its normal expiry. It is only in the latter situation that a period of notice of three months must to be respected. The Ombudsman therefore concludes that Eurojust's letter dated 17 July 2009, by which the complainant was reminded that his contract would expire and would not be renewed did not infringe Article 4 or another provision of the complainant's contract. On the contrary, by reminding the complainant on 17 July 2009 that his contract would expire on 30 September 2009, Eurojust appears to have acted in a service-minded and helpful manner. No instance of maladministration was therefore found with regard to this aspect of the case.

114. As regards, secondly, the alleged non-respect of the Decision of 19 December 2005, the Ombudsman notes that Article 8 of this Decision provided that its provisions "shall apply to the appraisals to be conducted for staff members whose contracts end during the year 2006 and during the first half of 2007 according to the list attached to this decision[8]". The Ombudsman further notes that the Decision AD 2008-37 of 30 June 2008 extended (until the entry into force of a new decision on the appraisal exercise with regard to the renewal of contracts) the application of the said Decision to contracts expiring in 2008. The above Decision was however no longer applicable in 2009, when the complainant's contract expired. The complainant's allegation that Eurojust's letter dated 17 July 2009 was not in accordance with that Decision is therefore unfounded. No instance of maladministration was therefore found with regard to this aspect of the case.

E. Conclusions

On the basis of his inquiry into allegations 1 and 2 of this complaint, the Ombudsman closes it with the following critical remarks:

As regards the period between 10 May and 7 July 2009, Eurojust did not act as rapidly as it could and should have done in relation to the complainant's reintegration. There was therefore unnecessary delay on behalf of Eurojust. This constitutes an instance of maladministration.

Eurojust's decision of 14 July 2009 to annul the complainant's CDR without resuming the procedure was incorrect. This constitutes an instance of maladministration.

There has been no maladministration by Eurojust with regard to the complainant's third allegation.

The complainant and Eurojust will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 May 2011

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[1] The occupational health doctor sent all medical certificates to Eurojust and a copy of each of them to the complainant.

[2] According to Article 30 of the Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ 2002 L 63, p. 1, the "Eurojust Decision"), Eurojust staff are subject to the rules and regulations applicable to the officials and other servants of the European Communities (the consolidated version of the Eurojust Decision can be found at http://www.eurojust.europa.eu/official_documents/eju_dec.htm).

[3] The text of the decision is available on the Commission's intranet under: http://myintracomm.ec.testa.eu/hr_admin/en/equal_opportunities/harassment/Documents/comm_native_c_2006_1624_3_en_acte.pdf

[4] With regard to this allegation and the corresponding claim that Eurojust should carry out a formal investigation into the psychological harassment of the complainant, as well as with regard to the claim that Eurojust should recognise that the complainant had an occupational disease for which it was responsible, the Ombudsman explained to the complainant that the psychological intimidation and the mobbing to which he referred appeared to form part of the alleged harassment. He pointed out that, in such a case, an official has the possibility to make a request for assistance under Article 24 of the Staff Regulations and to ask the administration to investigate the matter. Such a request, which constitutes a request under Article 90(1) of the Staff Regulations was indeed made by the complainant in the framework of his Article 90(2) complaint. If Eurojust's reply was considered as constituting a refusal to carry out such an investigation, the complainant should have brought an Article 90(2) complaint against this decision. Given that he did not do so, the internal remedies at his disposal were not exhausted. The Ombudsman stated, however, that regard should be had to the fact that, in his letter dated 4 December 2009, Eurojust's AD explained that he was "determined to take all the necessary measures to conduct the requested investigation". The AD added that the power to carry out such investigations had been delegated to the PMO. It was true that Eurojust could simply have forwarded the matter to the PMO. However, Eurojust's AD also noted, in his decision of 4 December 2009, that the ultimate purpose of the complainant's request for an investigation was to provide the basis for a claim for compensation under Article 73 of the Staff Regulations. In view of this the AD enclosed a form for that purpose and invited the complainant to send this form to the PMO, also with a view to launching the formal investigation on psychological harassment. The Ombudsman informed the complainant that this did not appear to be unreasonable. He further noted that, in his letter of 4 December 2009, Eurojust's AD stated that if the complainant were to encounter problems with the PMO, his services would be more than willing to assist him. In these circumstances, the Ombudsman concluded that there were insufficient grounds for an inquiry into this allegation and the related claim.

[5] For the detailed reasons, see footnote 4 above.

[6] The only explicit reference to a request made by the complainant himself would appear to be contained in an e-mail of 15 May 2009 in which he reminded the Acting Head of the HRU that he was "requesting a transfer to a different service ...".

[7] The Ombudsman notes that the provisional Decision of 11 February 2009 contained a typing error in the second paragraph of Article 8, which was erroneously numbered as paragraph "3" with the following paragraphs consequently being numbered erroneously as paragraphs 4, 5, etc. instead of 2, 3, etc., leading to a total of nine instead of eight paragraphs. This typing error was corrected in the final Decision of 24 April 2009. However, the wrong reference in Article 7(14) to "Article 8(9)" was overlooked.

[8] The "List of staff subject to the present decision" contained the names of 14 staff members whose contracts expired in 2006 and 2007. The complainant's name was obviously not on the list.