THE BACKGROUND TO THE COMPLAINT

1. The complainant was a local agent who worked for approximately ten years at the European Commission's Hong Kong Office (the 'Office') as a Press and Information Officer.

2. On 20 December 2005, the Head of Office terminated the complainant's employment contract with immediate effect. She subsequently made an appeal against this decision to the Director-General of the Commission's Directorate-General for External Relations (DG RELEX). However, the Director-General confirmed the decision to terminate her contract.

3. On 11 July 2006, the complainant submitted a complaint to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

4. The complainant alleged that the Commission dismissed her in an inhumane and humiliating manner.

She claimed that the Commission should:

1. apologise for the above treatment;
2. recognise her contributions to the Office during ten years of dedicated work; and
3. prevent its officials from engaging in similar behaviour in the future.

THE INQUIRY

5. The Ombudsman opened an own-initiative inquiry and asked the Commission to submit an opinion on the complainant's above allegation and claims.

6. On 22 March 2007, the Ombudsman received the Commission's opinion, after granting the institution an extension of time. He subsequently forwarded the opinion to the complainant, with an invitation to submit observations. On 7 April 2007, the complainant submitted her observations.

7. After a careful analysis of the opinion and the observations, the Ombudsman was not satisfied that the Commission had responded adequately to his own-initiative inquiry. He therefore made a provisional finding of maladministration and proposed a friendly solution to the Commission, in accordance with Article 3(5) of his Statute.

8. On 16 January 2008, the Ombudsman received the Commission's reply. The reply was forwarded to the complainant for her observations, which she submitted on 22 February 2008.

9. The Ombudsman was again not satisfied that the Commission had responded adequately to his own-initiative inquiry. He therefore concluded that his provisional finding of maladministration should remain unchanged and, on 1 December 2008, he made a draft recommendation to the Commission, in accordance with Article 3(6) of his Statute.

10. On 10 March 2009, the Ombudsman received the Commission's reply. The reply was forwarded to the complainant for her observations, which she submitted on 15 April 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of inhumane and humiliating dismissal and the related claims

Arguments presented to the Ombudsman

11. The complainant alleged that the Commission dismissed her in an inhumane and humiliating manner. In support of her allegation, she argued that the Commission:

(a) never explained the reasons for her dismissal;

(b) expelled her from the Office and forbade her from using her office computer and telephone; and

(c) informed her that she would only receive her severance grant and salary after signing her 'Termination of Employment' letter.

12. She claimed that the Commission should apologise for the above treatment; recognise her contributions to the Office during ten years of dedicated work; and prevent its officials from engaging in similar behaviour in the future.

13. In its opinion, the Commission stated that it had acted in accordance with the applicable binding provisions. In particular, it had respected the contract signed with the complainant, which stated that no reasons had to be specified if it were terminated. The Commission further argued that it had observed all the formalities, including the requirement to give two months' notice and the rules regarding compensation, such as the payment of necessary indemnities.

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

14. According to the Commission, Article 30.2b of the Specific Conditions of Employment for local agents serving in Hong Kong allows the Authority Empowered to Conclude Contracts to terminate a contract of indefinite duration at any time, provided it gives notice to the local agent in writing. Additionally, the Commission argued that the complainant had misinterpreted "the management decision" to terminate her contract as being based on personal motives.

15. In response to the Commission's statement that it acted in accordance with the applicable rules, the Ombudsman recalled the judgment of the Civil Service Tribunal, in which the Court upheld the general understanding that working relations of indefinite duration should enjoy particular protection against insufficiently reasoned dismissal[1].

16. The complainant did not dispute that the termination of her employment was made in accordance with the applicable contractual and legal provisions, but rather complained about the way she was treated during the dismissal procedure. The Commission asked her to leave the Office premises, because it had decided that she would not be called upon to work during the 60-day period following notification of the termination of her employment[2]. It explained that not working during the notice period entailed "classic consequences" such as the withdrawal of access to office equipment. It further stated that the complainant was "invited to collect her belongings some days later, after financial settlement."

17. The Ombudsman did not accept that the termination of the complainant's employment which, according to the Commission's own opinion, was not connected to any specific reason, necessarily had to involve the immediate withdrawal of her access to office equipment. Nor did it have to prevent her (a) from removing her belongings until invited to do so, or (b) from discussing her own dismissal[3]. There was no serious wrong-doing by the complainant to justify the conditions imposed upon her following her dismissal. This rendered those conditions and consequences disproportionate, and in addition, cast serious doubt on the objectivity of the Commission's "management decision" to dismiss her.

18. Although it is true that unlawful behaviour necessarily constitutes maladministration, it is also true that principles of good administration require much more of European institutions and bodies than merely avoiding unlawful behaviour. The Commission merely asserted that no legal texts were violated, but failed to consider whether the manner of the complainant's dismissal was consistent with the principle that Community institutions should have regard to the welfare of its staff[4], independently of whether the relevant member of staff's labour relationship falls within the remit of local or Community law.

19. In the above circumstances, the Ombudsman made the provisional finding that the complainant's dismissal in the above-described manner constituted an instance of maladministration. He therefore proposed a friendly solution that:

"the Commission could consider (i) apologising to the complainant for the manner of her dismissal; (ii) recognising the complainant's contribution to its Hong Kong Office during the ten years of her employment; and (iii) whether it should take measures to prevent its officials from engaging in similar behaviour in the future."

The arguments presented to the Ombudsman after his friendly solution proposal

20. The Commission emphasised that the termination note of 27 October 2005, issued by the Director-General of DG RELEX, fully complied with termination procedures and practices. The request for the complainant to return all Commission-related documents, ID card and property, fully complied with the conditions set out in that termination note. It is also usual practice to draw up a severance cheque and to request for a signature of receipt for the respective amount.

21. On 2 February 2006, following instructions from DG RELEX, the Office issued the complainant a letter of service[5]. On 22 August 2006, after the complainant had submitted her complaint to the Ombudsman, the Office sent the complainant a detailed statement describing her duties[6].

22. The Commission argued that the Office staff had treated the complainant with utmost respect at all times and fully cooperated with her regarding the removal of her personal belongings. When the termination notice was served on her, the Office assured the complainant that its staff would help her to pack her personal items, if she so wished. She declined this offer and left the Office on her own accord, without commenting further on the matter. She refused to confirm when she would return to collect her personal belongings.

23. On 9 January 2006, when the complainant returned to collect her belongings, she was aided by Office staff. While it is true that a trolley was used to help her transport these items from her office on the 19th floor (where the Office is located) to the building's exit, this was done to accommodate her fully and was in no way conspicuous.

24. The Commission therefore considered that the Office had acted in a way that would not necessitate an apology being made to the complainant.

25. In her observations, the complainant did not agree with the above assertion and reiterated her allegation and claims. She also emphasised that she had no knowledge of the letter of 22 August 2006 as she had neither received a copy of it from the Office nor from the "Consulate General of Canada".

The Ombudsman's preliminary assessment leading to a draft recommendation

26. The Ombudsman's friendly solution proposal was three-fold.

27. As regards the acknowledgement of the complainant's contributions to the Office, the Ombudsman did not agree with the Commission that the letter issued by the then acting Head of Office on 22 August 2006 and sent to "the Consulate General of Canada", in any way acknowledged such contributions. That letter only described the complainant's duties. There were no comments whatsoever on the complainant's performance. Such a letter could not be reasonably perceived as satisfying the corresponding component of the Ombudsman's friendly solution proposal. Moreover, the Ombudsman failed to see the usefulness of such a letter for the complainant, given that the Office sent it to a third party and not to her. Were it not for the Ombudsman's inquiry, the complainant would never have known about the letter's existence. An acknowledgement only makes reasonable sense if the person acknowledged is duly informed about it.

28. As regards a possible apology and measures to prevent its officials engaging in similar maladministration, the Commission took the view that it was not necessary to apologise to the complainant. Therefore, preventive measures were also unnecessary.

29. In its original opinion on the complaint, the Commission stated that the complainant "was asked by the Head of Office ... to leave the premises of the Delegation ..." and "... invited to collect her belongings some days later, after financial settlement." It was regrettable and unacceptable that the Commission then argued that the complainant "left the EC Office of her own volition ... and refused to confirm when she would return to collect her personal belongings."

30. The Ombudsman found it surprising how the Commission could feel that it fully cooperated with the complainant by offering to help her pack her personal belongings. This offer for "help" could be objectively perceived as an attempt to check what the complainant's belongings were. Under the relevant circumstances at the time of the complainant's dismissal, the Ombudsman was therefore not at all surprised that the complainant refused this "help". Moreover, while the use of the trolley could indeed have facilitated the transport of the complainant's items from the Office, the Ombudsman noted that this transport was not carried out in a discreet manner. It also fully confirmed the complainant's allegation that she was not allowed to collect her personal belongings and that these were handed over to her at the entrance of the building.

31. It was also not surprising that the complainant reacted bitterly to the Commission's reply to the friendly solution proposal. In her view, the Office, whose task is also to assess human rights standards in China, should not hide behind legal rules and procedures in order to allow dismissals such as hers to take place. In this regard, the Ombudsman reminded the Commission that its delegations in general or, as in the present case, its Hong Kong Office, must be extremely conscious of the need to protect their image as representatives of the European Community abroad.

32. Consequently, the Commission's reply to the Ombudsman's proposal for a friendly solution left his findings in paragraphs 17 and 18 above unchanged. The Ombudsman considered the Commission's response most disappointing and un-cooperative.

33. In light of the foregoing, the Ombudsman considered that the Commission should have (i) apologised to the complainant; (ii) recognised her contributions to the Office during the ten years of her employment; and (iii) taken measures to prevent its officials from engaging in similar behaviour in the future. As it has not done so, the Commission committed an instance of maladministration. Accordingly, the Ombudsman made a corresponding draft recommendation that:

"[t]he Commission should (i) apologise to the complainant for the manner of her dismissal; (ii) clearly recognise her contributions to its Hong Kong Office during the ten years of her employment; and (iii) take measures to prevent its officials from engaging in similar behaviour in the future."

The arguments presented to the Ombudsman after his draft recommendation

34. In its reply, the Commission stated that (i) on 6 February 2009, the Director of External Service at DG RELEX wrote a letter to the complainant in which he expressed his regret that her dismissal procedure, although implemented in accordance with the legal requirements, was carried out in such a manner that she felt and still feels deeply offended; (ii) on the same day, the Director of External Service also issued a new work certificate to the complainant, clearly showing her contribution to the Office during the ten years of her employment; and (iii) the provisions in force at the time of the complainant's dismissal were under revision. The Director went on to add that the training provided to delegation officials prior to posting on how to behave towards local agents had also been strengthened. In light of the above-mentioned measures, the Commission felt that it had complied fully with the Ombudsman's draft recommendation.

35. In her observations, the complainant took the view that the letter of 6 February 2009 she received from the Director of External Service at DG RELEX did not contain an apology. The Commission merely played with words, demonstrated arrogance and refused to learn from the remarks the Ombudsman had made in his previous proposal for a friendly solution. The complainant therefore considered that an apology was still due to her.

The Ombudsman's assessment after his draft recommendation

36. Like his friendly solution proposal, the Ombudsman's draft recommendation was also three-fold.

37. As regards (i), the apology due to the complainant, the Ombudsman, first, emphasises that it is good administrative practice to acknowledge and apologise for errors that may occur[7]. European citizens place great value on apologies as a way of redressing wrongs. Institutions' apologies must therefore be sincere, full and meaningful. However, when an institution is "sorry", the question arises whether this necessarily implies an admission of fault in connection with the matter to which the word "sorry" relates. In the Ombudsman's view, when presenting apologies, an institution can choose whether or not to admit fault, taking into account the circumstances of the case. Whatever option that institution chooses, an apology does not constitute an admission of legal liability[8].

38. In the present case, the Ombudsman found an instance of maladministration in the Commission's way of dismissing the complainant. This finding alone would imply that the Commission linked its expression of sympathy or regret to the complainant with its wrongdoing. The Ombudsman notes, however, that the Commission used very careful wording both in the 6 February 2009 letter from the Director of External Service at DG RELEX to the complainant and in its reply to the draft recommendation. On the one hand, the Director used the following statements:

"I very much regret if any word or action at the time of your dismissal was perceived by you as humiliating. The procedures and formalities were implemented according to the legal requirements but I recognize they should not have been carried out in such a manner that you felt and still feel deeply offended." (emphasis added)

On the other hand however, the Commission stated in its reply to the Ombudsman's draft recommendation that "[a]lthough [it] acted in the correct manner, [the complainant] felt aggrieved as stated above."

39. In light of the above Commission's statements, the Ombudsman fully understands the complainant's disappointment with the Commission's letter in question. Despite the fact that the Commission, ultimately, recognises that "the procedures and formalities" were "carried out in such a manner that [the complainant] felt and still feel[s] deeply offended", it still considers such a manner to be correct, contrary to the Ombudsman's finding of maladministration referred to in paragraphs 19 and 33 above.

40. The Commission's reply cannot therefore be considered as appropriate when it comes to complying with part (i) of the Ombudsman's draft recommendation. The Commission did not present any sincere, full and meaningful apologies to the complainant for the manner of her dismissal. It failed to recognise its wrongdoings to which the Ombudsman's finding of maladministration contained in both his proposal for a friendly solution and the draft recommendation relates. The Ombudsman strongly regrets this approach, especially in light of the fact that the complainant did not seek any financial compensation from the Commission, but only an apology. The Ombudsman will therefore make a critical remark in this regard below.

41. As regards point (ii), that is, the recognition of the complainant's contributions to the Office, the Ombudsman notes that, in his letter of 6 February 2009, the Director of External Service at DG RELEX also stated that "the European Commission recognizes [the complainant's] contributions to the Hong Kong Office during the ten years of [her] employment there."

42. The Director further enclosed a new work certificate that reproduced the contents of the certificate issued on 22 August 2006[9]. Nevertheless, this certificate included one slightly different statement from the one used in the certificate of 22 August 2006, notably that the complainant "was employed by the Office ... from 2 January 1996 to 20 February 2006"[10]. Two new statements were also included stating that "[f]irstly she was recruited as Assistant Information Officer [and later] promoted to Press and Information Officer", and she "not only has an excellent level of proficiency of English but also in French."

43. Thus, the part of the Ombudsman's draft recommendation relating to the recognition of the complainant's contributions to the Office is now satisfied.

44. As regards point (iii), namely, measures to prevent Commission officials engaging in similar behaviour in the future, the Ombudsman notes the Commission's report on its training activities for staff in the delegations[11] and welcomes such measures, which ought to be sufficient to satisfy the above corresponding part of his draft recommendation. The Ombudsman trusts that the training activities will also focus on the principle that Community institutions should have regard to the welfare of its staff, independently of whether the staff's labour relationships fall within the scope of national or Community law.

B. Conclusion

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

The Commission did not present any sincere, full and meaningful apologies to the complainant for the manner of her dismissal. It failed to recognise its wrongdoings to which the Ombudsman's finding of maladministration contained in both his proposal for a friendly solution and the draft recommendation relates.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 10 June 2009

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[1] See Case F-1/05 Landgren v European Training Foundation, judgment of 26 October 2006, not yet reported, at paragraphs 68-71 and 74, according to which (in the original French): "[...] permettre à l'employeur de mettre fin, sans énoncer les motifs de la résiliation, à une relation de travail à durée indéterminée, avec pour seule restriction le respect d'une période de préavis, reviendrait à méconnaître la nature même des contrats de travail à durée indéterminée, en ce qu'ils garantissent une certaine sécurité d'emploi, et à diluer la distinction entre cette catégorie de contrats et celle des contrats à durée déterminée. [...] il convient de prendre en considération l'existence de standards internationaux visant à indiquer les conditions minimales nécessaires dans un État de droit pour éviter des licenciements abusifs de travailleurs. Ainsi, aux termes de l'article 4 de la convention n° 158 de l'Organisation internationale du travail (ci-après l'«OIT») concernant la cessation de la relation de travail à l'initiative de l'employeur, adoptée le 22 juin 1982, «[u]n travailleur ne devra pas être licencié sans qu'il existe un motif valable de licenciement lié à l'aptitude ou à la conduite du travailleur ou fondé sur les nécessités du fonctionnement de l'entreprise, de l'établissement ou du service». De même, l'article 24, sous a), de la Charte sociale européenne révisée du Conseil de l'Europe (n° 163), adoptée le 3 mai 1996, lequel, selon le rapport explicatif de celle-ci, «s'inspire de la convention n° 158 de l'OIT», garantit «le droit des travailleurs à ne pas être licenciés sans motif valable lié à leur aptitude ou conduite, ou fondé sur les nécessités de fonctionnement de l'entreprise, de l'établissement ou du service». Ledit article 24, sous a), a lui-même servi de source d'inspiration pour la rédaction de l'article 30 de la charte des droits fondamentaux de l'Union européenne, proclamée à Nice le 7 septembre 2000 (JO C 364, p. 1). Aux termes de ce dernier article «[t]out travailleur a droit à une protection contre tout licenciement injustifié, conformément au droit de l'Union et aux législations et pratiques nationales». L'article 41, paragraphe 1, sous c), de cette charte prévoit également, de façon générale, au titre du droit à une bonne administration, «l'obligation pour l'administration de motiver ses décisions». Or, ainsi qu'il ressort de son préambule, l'objectif principal de ladite charte est de réaffirmer «les droits qui résultent notamment des traditions constitutionnelles et des obligations internationales communes aux États membres, du traité sur l'Union européenne et des traités communautaires, de la [...] [CEDH], des Chartes sociales adoptées par la Communauté et par le Conseil de l'Europe, ainsi que de la jurisprudence de la Cour [...] et de la Cour européenne des droits de l'homme» (voir, en ce sens, arrêt de la Cour du 27 juin 2006, Parlement/Conseil, C-540/03, non encore publié au Recueil, point 38). [...] pour garantir une protection suffisante en ce sens, il importe de permettre, d'une part, aux intéressés de s'assurer si leurs intérêts légitimes ont été respectés ou lésés ainsi que d'apprécier l'opportunité de saisir le juge et, d'autre part, à ce dernier d'exercer son contrôle, ce qui revient à reconnaître l'existence d'une obligation de motivation à la charge de l'autorité compétente."

[2] According to the complainant's 'Termination of Employment' letter, provided to the Ombudsman by the Staff Committee on its own initiative and forwarded to the Commission: "Your employment with the Commission will terminate at the date of 20 December 2005. The 'two-months' notice period will be paid."

[3] According to the complainant's "Termination of Employment" letter, provided to the Ombudsman by the Staff Committee on its own initiative and forwarded to the Commission: "Confidentiality ... The terms of this letter and all discussions on the subject shall be treated by you as confidential and shall not be disclosed to any other person (save as may be required by law or to any professional advisor) ... Kindly acknowledge receipt of the enclosed cheque as full and final settlement of your entitlements following the termination of your employment contract."

[4] See Case T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, paragraph 51, according to which: "[a]s to the assessment of the interests of the service, it is also settled case-law that, when taking a decision concerning the situation of a member of staff, the competent authority is obliged to take into consideration all the factors which may affect its decision and, in particular, the interests of the member of staff concerned. That follows from the administration's duty to have regard to the welfare of its staff, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations, and by analogy the Conditions of Employment, in the relationship between the official authority and its staff (see, to that effect, Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 38; Case T-13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and II-503, paragraph 52, and [Case T-223/99] Dejaiffe v OHIM [[2000] ECR-SC I-A-277 and II-1267], paragraph 53)."

[5] The Commission enclosed a copy of the letter with its reply, which was forwarded to the complainant for her observations. This document, signed by the Office's Head of Administration, includes the following:

"Work certificate

To Whom It May Concern:

This is to certify that [the complainant] was employed by the European Union - Office of the European Commission in Hong Kong for the period of 2 January 1996 through to 20 December 2005. [The complainant] was appointed as Press information Officer during this period."

The copy submitted with the Commission's reply to the Ombudsman's friendly solution proposal included the handwritten sentence "original was given to [the complainant] by hand 2/2/2006."

[6] The Commission enclosed a copy with its reply of the statement which it had, apparently, sent to "the General Consulate in Canada". This document, signed by the then acting Head of Office, includes the following:

"This is to certify that [the complainant] was employed by this Office as Information Officer from 2 January 1996 to 20 December 2005 (date of her contract termination).

Detailed description of duties:

Responsible for the press relations in the office. Handles relations and organises contacts with the press and media. Manages special events and publicity arranged around these (press conferences for the Office, for visitors from Brussels and interviews).

Monitors local press generally and is responsible for daily press summaries.

Represents the office on EU cultural affairs group. Contacts with universities as well as educational and vocational institutions in Hong Kong.

Keeps agenda of cultural and other events of interest to the office and non-governmental organizations with a view to raising the profile of the EU in Hong Kong.

Has overall responsibility for producing and editing the Office's newsletter targeting Hong Kong/Macao influential circles and selected parts of public.

Oversees operation of documentation facilities."

[7] Article 12(3) of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.ombudsman.europa.eu.

[8] See in this regard Point 1.9 of the Ombudsman's decision in case 2312/2004/MHZ, available on his website.

[9] See footnote 6 above.

[10] The certificate of 22 August 2006 mentioned "from 2 January 1996 to 20 December 2005 (date of her contract termination)."

[11] In its reply to the Ombudsman's draft recommendation, the Commission reported that "1) DG ADMIN gives a talk on sexual and moral harassment vis-à-vis the personnel in the Delegation. 2) As part of the Management Training Programme there is much emphasis on managing personnel. 3) Former experienced Heads of Delegation also inform future officials on how to behave towards their personnel. 4) The Director of Protocol in his talk explains how to behave towards one's colleagues within the Delegation and also outside the Delegation (diplomatic behaviour and protocol procedures). 5) There is also a session given by RELEX K5 (management of Local Agents) on how to behave towards local agents. 6) Finally, the Director of RELEX K, addresses to all personnel leaving for a Delegation on how they should behave and attitude they should have. 7) Furthermore, this training is continuous as there are trainings for Officials returning on mission to Headquarters."