THE BACKGROUND TO THE COMPLAINT

1. In May 2007, the complainant, a Greek lawyer working in Athens in the private sector, applied for some published vacancies for seconded national experts (SNEs) within the Commission. He was interviewed on three occasions by the Commission. The last interview took place on 16 January 2008 and was carried out by the Commission's Directorate-General for Trade (DG TRADE).

2. On 31 January 2008[1], the Commission informed the complainant that he had been accepted for an SNE post. The Commission also informed him that he needed to wait 7-8 weeks for a final decision. Pursuant to Article 3(2) of the Commission’s decision of 1 June 2006 laying down rules on the secondment of national experts to the Commission[2] ('the 2006 Decision'), given that the complainant was not working for a government or state department, but rather for the private sector, DG TRADE had to submit a request for authorisation of the complainant's secondment to the Director-General of the DG for Personnel and Administration (DG ADMIN). DG ADMIN received the above request on 4 March 2008.

3. In the meantime, on 20 February 2008, the complainant wrote to DG TRADE stating that he "would be resigning from his current post here in Athens". On the same day, DG TRADE replied that he should not "resign and start packing for Brussels before receiving a firm offer from the administration". It added that its service "requested a derogation for [the complainant’s] secondment since he was coming from the private sector and not the public sector … This derogation has not been approved by the administration yet." DG TRADE then stated the following: "Please therefore wait for DG ADMIN’s invitation. Normally, it will take a couple of weeks …"

4. In March 2008, the complainant resigned from his post in the Greek private sector and travelled to Brussels to look for an apartment.

5. On 21 March 2008, DG ADMIN informed DG TRADE that the Director-General of DG ADMIN had not authorised the complainant’s secondment.

6. On 9 April 2008, a Head of Unit from DG TRADE informed the complainant by telephone that he would not be recruited for the SNE vacancy. He justified this decision by referring to the instructions given by the Vice-President of the Commission concerning the termination of SNE recruitments from the private sector.

7. On 8 May 2008, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

8. In his complaint, the complainant alleged that, in light of the principle of equal opportunities and equal treatment in matters of employment, the Commission’s behaviour concerning the termination of his recruitment procedure for an SNE post constituted unfair treatment.

THE INQUIRY

9. On 6 June 2008, the Ombudsman opened an inquiry regarding the complainant’s allegation.

10. On 13 November 2008, the Commission sent its opinion. The Ombudsman forwarded it to the complainant with an invitation to make observations. No written observations were received from him. On 12 March 2009, the complainant commented on the Commission's opinion by telephone.

11. After a careful consideration of the opinion and observations, on 30 March 2009, the Ombudsman made a provisional finding of maladministration and, in accordance with Article 3(5) of his Statute, proposed a friendly solution to the Commission.

12. On 16 June 2009, the Commission sent its reply. The Ombudsman forwarded this reply to the complainant, with an invitation to submit observations. The complainant sent his observations on 31 July 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged unfair treatment in light of the principles of equal opportunities and equal treatment in matters of employment

Arguments presented to the Ombudsman

13. The complainant argued that the Commission's refusal to recruit him was contrary to principles of equal opportunities and equal treatment in matters of employment and was unfair. He specifically put forward that the Commission’s practice, introduced by its Vice-President (distinguishing between experts from national administrations and experts from the private sector), was contrary to Article 13 EC[3]. Moreover, he stated that the Commission’s practice was contrary to the directive adopted on the basis of this article, that is, Directive 2000/78/EC of 27 November 2000[4] – the so-called Employment Equality Directive, establishing a general framework for equal treatment in employment and occupation (Articles 1[5], 2[6] (a and b) and Article 3.1(a)[7].

14. Apart from referring to the principle of equal opportunities and equal treatment in matters of employment, the complainant argued that the Commission did not provide proper grounds for its decision not to recruit him as an SNE. The Commission first informed him that DG ADMIN's approval was procedurally foreseen in the recruitment of SNEs from the private sector and was "something typical". However, it later stated that it had received "instructions" from the Vice-President of the Commission to stop recruitments of such SNEs. Nevertheless, the applicable provisions (the 2006 Decision) allowed for such recruitment.

15. As a result of the Commission's behaviour, the complainant lost his job. Moreover, he felt disappointed and embarrassed by the Commission's behaviour towards him.

16. The Commission argued that it had not accepted the secondment of any private sector experts since January 2008 and that, therefore, the complainant did not suffer any kind of discrimination.

17. The Commission further stated that, when launching the procedure to request the complainant's secondment, DG TRADE informed him exhaustively about the applicable rules and sent him copies of the relevant documents such as the 2006 Decision.

18. The denial of authorisation for the complainant’s secondment "has to be seen in the context of the Commission’s general policy on secondment of SNEs from the private sector." The 2006 Decision indeed provided for the possibility to second experts from private and non-profit sectors, although such possibilities were limited and always subject to case-by-case authorisation. Given that Parliament questioned the secondment of experts from the private sector, in January 2008, the Vice-President of the Commission decided to put on hold new secondments from entities which were not clearly part of the public sector until a revised decision had been adopted.

19. However, the formal communication to the Commission services of the Vice-President's decision only occurred in June 2008. Between January and June 2008, the services only knew about this decision "informally". This delay resulted from the need to analyse "in depth the details of the new approach (in particular the definition of 'public sector', the implementation timetable, the transition measures)" and the Commission’s "willingness to identify alternative solutions to address the inconveniences such new orientation may have caused to services and persons."

20. The Commission admitted that this was a communication flaw which may have led its services to interview candidates from the private sector for the SNE posts who in fact stood no chance of being seconded. The Commission apologised for the frustration that the complainant may have suffered in this respect.

21. Furthermore, the Commission clarified that, contrary to what the complainant seemed to understand, SNEs were not recruited on the basis of a contract with the Commission. Article 1(2) of the 2006 Decision clearly stated that SNEs were persons who were under contract (or enjoy the status of an official) with their national employer and continue to be paid by that employer. Such an employer seconded the person concerned to the Commission as an SNE. Remaining in the service of such an employer throughout the period of secondment was a precondition to becoming an SNE. This meant that "the mere fact that the complainant resigned from his employer would in any case legally have prevented him becoming a national expert."

22. Moreover, the complainant’s decision to resign was not suggested by the Commission. On the contrary, DG TRADE explicitly discouraged him from resigning before receiving a formal offer. In his e-mail dated 21 February 2008, the complainant confirmed that he "will be waiting for the Administration's answer before resigning and starting to pack."

23. The Commission concluded, therefore, that the complainant could not hold the latter responsible for his decision to resign because its services (i) informed him properly of the applicable rules and practices, and (ii) warned him not to resign.

24. Finally, the Commission stated that it had not accepted the secondment of private sector experts since January 2008. Therefore, the complainant did not suffer any kind of discrimination.

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

As regards the complainant's argument concerning unequal treatment

25. In reply to the complainant's argument on equal treatment, the Commission argued that it had not accepted the secondment of any private sector experts since January 2008 and that, therefore, the complainant did not suffer any kind of discrimination.

26. The Ombudsman found that the Commission's above argument was not without merit. However, he regretted that the Commission did not respond exactly to the points made by the complainant, as referred to in paragraph 13 above.

27. Nevertheless, the Ombudsman pointed to what the Court of Justice held in its judgment in Mangold[8], namely, that "Directive 2000/8 does not itself lay down the principle of equal treatment in the field of employment and occupation" and that "in accordance with Article 1 thereof the sole purpose of the directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation." As the Court recalled, in accordance with the third and fourth recitals in the preamble of the Directive, the above grounds are identified as such in various international instruments and the constitutional traditions common to the Member States. However, in relation to the present case, the Ombudsman was unaware of any national or international legal provisions for combating discrimination concerning the secondment of experts on the grounds that they come either from the public or from the private sector. The Ombudsman concluded, therefore, that the point made by the complainant could not be sustained.

As regards the complainant's argument concerning the reasoning of the Commission’s decision not to recruit the complainant

28. The 2006 Decision was replaced by the Commission's Decision laying down the rules on the secondment to the Commission of national experts and national experts in professional training[9], dated 12 November 2008 ('the 2008 Decision').

29. Point 3 of the preamble of the 2006 Decision states that "SNEs … should also be available from the private or voluntary sector …" while point 3 of the preamble of the 2008 Decision states the following:

"In order to ensure that the Commission's independence is not compromised by private interests, it should be stipulated that SNEs must come from a national, regional or local public administration or an IGO. The secondment of an SNE by an employer other than a national, regional or local public administration or an IGO should be authorised only on a case-by-case basis, once it has been ascertained that the SNE's employer is part of the public sector or is an independent university or research organisation that does not seek to make profits for redistribution."

30. Pursuant to its Article 40[10], the 2008 Decision took effect on 1 January 2009.

31. The Commission stated in its opinion that, in 2008, the complainant was not seconded due to "the more general policy on secondment of private sector SNEs".

32. However, at the time when the complainant's secondment was to be decided, the Commission's policy on the secondment, as foreseen in the 2006 Decision, was not that the secondment of experts from the private sector should be excluded as a matter of principle[11].

33. Moreover, on the basis of Article 3 of the 2006 Decision, the Commission could always refuse the secondment of an expert from the private sector if it had no particular interest for that expert to contribute his/her specific knowledge[12].

34. However, in the present case, the Commission did not reason its refusal to second the complainant by stating, for instance, that his knowledge was not sufficient for the SNE position in question. On the contrary, on the first page of its opinion, the Commission stated that the complainant had good qualifications. The Commission also did not reason its decision on the grounds that the complainant's knowledge was not in the interest of the service. The Commission instead reasoned in its opinion that, as matter of principle, the recruitment of SNEs from the private sector did not comply with its new general policy.

35. The Ombudsman found that such reasoning for the negative decision on the complainant's secondment was inconsistent with the Commission's rules, which were in force at that time and were binding upon it. As such, it failed to constitute an effective statement of reasons and could be an instance of maladministration.

As regards unfairness

36. In January 2008, that is, at the point in time when the complainant was interviewed for the SNE post, the Commission decided that, as a matter of principle, the secondment of experts from the private sector should no longer be allowed. Moreover, the Commission admitted that, from January 2008, its services knew about the above decision, albeit "informally".

37. In such circumstances, the Ombudsman did not understand why (i) the Commission invited the complainant for an interview and (ii) then started the procedure to request authorisation from DG ADMIN to second the complainant from the private sector for an SNE post. In the Ombudsman’s view, the fact that the Commission’s services knew "informally" of the Vice-President's decision that experts from the private sector could not be seconded should have been sufficient to avoid the procedure in which the complainant became uselessly involved.

38. In the above context, and without taking a stance on the Commission's reasons as to why its services were only "formally" informed about the Vice-President's decision in June 2008, the Ombudsman was puzzled by the behaviour of DG TRADE's services.

39. The Ombudsman therefore concluded that, launching the selection and recruitment procedure for seconding the complainant, when its services were aware that a decision had already been made preventing this kind of secondment, could be a second instance of maladministration by the Commission.

40. The Ombudsman noted, in this respect, the Commission’s apology expressed in its opinion. However, on 12 March 2009, the complainant informed the Ombudsman’s services during a telephone conversation that he was not ready to accept this apology.

41. In light of his provisional findings of maladministration in paragraphs 35 and 39 above, the Ombudsman took the view that the Commission's apology did not make good the inconveniences the complainant had suffered. The Ombudsman underlined that the complainant travelled to Brussels from Athens in order to (i) be interviewed and (ii) to look for an apartment. It was reasonable to assume that he made some other arrangements regarding his move to Brussels, which any person in such circumstances would have done.

42. The Ombudsman therefore considered that it would be appropriate for the Commission to recognise the inconveniences suffered by the complainant by making an ex gratia payment to him, that is, a payment which would not constitute an admission of legal liability and which would not constitute a precedent. In light of the facts outlined above, the Ombudsman considered that the ex gratia payment should not be less than EUR 1 000.

43. In light of the above, the Ombudsman made the following proposal for a friendly solution:

"Taking into account the Ombudsman's findings, the Commission could recognise the inconveniences suffered by the complainant by making an ex gratia payment to him of not less than EUR 1 000."

The arguments presented to the Ombudsman after his friendly solution proposal

The Commission's reply

44. First, the Commission outlined that, in accordance with Article 3 of the 2006 Decision, requests for the secondment of private-sector SNEs had to be submitted to the Director-General of DG ADMIN beforehand for authorisation. Since the 2006 Decision did not specify the criteria, on the basis of which secondment would be authorised, the Director-General had discretionary powers when making decisions in this regard. He was therefore entitled to refuse authorisation on the basis of the new approach introduced by Vice-President Kallas, the Commissioner responsible for the institution's staff.

45. Due to its concerns for ensuring transparency, the Commission gave a detailed explanation in its opinion regarding the rejection of the complainant's application for secondment. In doing so, it clearly outlined the new policy regarding the secondment of SNEs from the private sector.

46. Second, the Commission's new policy on the secondment of private-sector SNEs did not formally apply at the time this case arose. The reasons for the delay in informing the other Commission departments of DG ADMIN's official position were also set out in the Commission's opinion. The Commission departments could not refuse applications from the private sector because there were no definitive instructions from DG ADMIN to do so.

47. Third, in the first half of 2008, the "informal" information on the new policy was not communicated to all departments. Instead, it was only provided to those departments which planned to request authorisation prior to applying for the secondment of an SNE from the private sector. This practice was due to the exceptional nature of the situation caused by the pending implementation of the new policy.

48. Finally, the Commission commented on the Ombudsman's observation that the complainant travelled from Athens to Brussels (i) for an interview with the department requesting the secondment and (ii) to look for an apartment. DG TRADE actually interviewed the complainant over the phone, so he did not need to come to Brussels for that purpose. As regards his seeking accommodation in Brussels, the Commission could not accept responsibility for his "overly precipitate" actions. Given that he had no official document from the Commission confirming his secondment and the date on which it would begin, the Commission found it difficult to comprehend why anyone taking a minimum degree of care would leave his/her job and look for an apartment in another country.

49. In light of the foregoing, and after much deliberation on the Ombudsman's proposal for an ex gratia payment to be made, the Commission did not consider it appropriate to accept this solution.

The complainant's further observations

50. In his observations, the complainant first thanked the Ombudsman for his proposal for the friendly solution. He then emphasised his disappointment with the Commission's behaviour towards him. He stated that his complaint to the Ombudsman was motivated by his disappointment, and not by the prospect of receiving an ex gratia payment.

51. The complainant also clarified that he travelled from Athens to Brussels to look for housing and not to be interviewed by the Commission. The interview was indeed carried out over the telephone, as stated by the Commission.

The Ombudsman's assessment after his friendly solution proposal

52. At the outset, the Ombudsman notes that the complainant has made clear that he does not seek the financial compensation that would have resulted from the proposed friendly solution. He considers, therefore, that the question of financial compensation should not be pursued further.

53. The friendly solution was based on two provisional findings of maladministration. In its reply to the proposal, the Commission gave an exhaustive explanation of its actions, for which the Ombudsman is grateful. Nevertheless, the Ombudsman does not find the Commission's explanation satisfactory for the following reasons.

54. Principles of good administration require the institutions to act consistently[13]. Flaws in the institutions' internal communications may constitute obstacles to consistent administrative behaviour, which are particularly serious if they may have an impact on the institutions' contacts with the outside world.

55. In the present case, the Commission started the recruitment procedure for an SNE from the private sector because part of its services had not been informed in due time of the new internal instructions forbidding such a procedure. By failing to ensure that all its services concerned by the recruitment of SNEs were adequately informed of the new instructions, the Commission did not comply with the requirement to act consistently. This was an instance of maladministration and a critical remark is made below.

B. Conclusions

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

Principles of good administration require the Union institutions to act consistently.

By failing to ensure that all its services concerned by the recruitment of SNEs were formally informed of the new instructions, the Commission did not comply with the requirement to act consistently. This was an instance of maladministration.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 15 March 2010

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[1] According to the complainant, he was informed on 31 January 2008. In contrast, the Commission stated that he was informed in February 2008.

[2] Official Journal C (2006) of 1 June 2006.

[3] Article 19(1) of the TFEU (ex Article 13 TEC) provides the following:

"1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by the upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

[4] OJ 2000 L 303 p.16.

[5] Article 1 (Purpose) of Directive 2000/78/EC states that: "The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment."

[6] Article 2 (Concept of discrimination) of Directive 2000/78/EC states that:

1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

[7] Article 3 (Scope) of Directive 2000/78/EC states that:

1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion …"

[8] See Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981, paragraphs 74 and 75.

[9] Commission Decision C(2008) 6866 final.

[10] Article 40 (Entry into force) of the 2008 Decision:

"1. This Decision shall take effect on 1 January 2009 …

The last sentence of the first subparagraph of Article 4(1) shall apply from 31 December 2008."

[11] Incidentally, such exclusion does not appear to be absolute on the basis of the 2008 Decision, which still provides for the possibility exceptionally to second experts from the private sector. See, in this regard, Article 1(2) third indent of the 2008 Decision, which states the following: "Exceptionally and where justified by the interest of the service, the Member of the Commission responsible for personnel matters may authorise the secondment of an SNE by an employer that does not meet one or more of the above criteria. The Commission Member shall regularly report to the Commission on the use of this procedure."

[12] See Article 3, first paragraph of the 2006 Decision, which provides that "[t]he secondment of private-sector SNEs, shall be permitted only where the interest of the Commission warrant the temporary contribution of specific knowledge" and that such secondments "shall be authorised on a case-by-case basis by the Director General for Personnel and Administration."

[13] Article 10 (1) of the European Code of Good Administrative Behaviour states the following:

"The official shall be consistent in his own administrative behaviour as well as with the administrative action of the Institution. The official shall follow the Institution's normal administrative practices, unless there are legitimate grounds for departing from those practices in an individual case; these grounds shall be recorded in writing."