Strasbourg, 15 December 2004

Dear Ms F.,

On 21 November 2003, you made a complaint to the European Ombudsman concerning the use of age limits in a recruitment procedure organised by the European University Institute.

On 12 December 2003, I forwarded the complaint to the President of the European University Institute. The EUI sent its opinion on 30 March 2004. The opinion was drafted in French. On 6 April 2004 I therefore asked the EUI to send me a translation of it into the language of the complaint. On 23 April 2004, the EUI informed me that it did not have a translation service or other resources to provide a translation of its opinion. The translation was therefore done by the translation services used by my Office, and I forwarded you a copy of it on 24 May 2004 with an invitation to submit observations by 30 June 2004.

No observations appear to have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The complainant applied for a vacancy published by the European University Institute (EUI) in Italy (temporary post IUE/7/2003, administrative assistant). The complainant's application was rejected at the admissibility stage because the complainant did not meet the age limit, which foresaw that candidates should be born after 1 January 1955. The complainant contacted the EUI and requested that the age limit should not be taken into consideration. This was rejected. The complainant therefore lodged a complaint with the European Ombudsman, alleging that she was discriminated against by the EUI on the grounds of age. She claimed that age-discrimination in recruitment procedures should be abolished.

THE INQUIRY

The status of the EUI

According to Article 195 of the Treaty establishing the European Community, the Ombudsman’s mandate is limited to the Community institutions and bodies. The latter term is defined neither by the Treaty nor by the Statute of the Ombudsman.

In his opening letter to the EUI, the Ombudsman noted that the question whether the EUI was a Community body had arisen in the framework of a previous complaint lodged with the European Ombudsman against the EUI (inquiry into complaint 659/2000/GG). In that case, the Ombudsman considered that it was not excluded that the EUI could be considered to be a Community body for the purposes of the European Ombudsman's mandate. This finding was made on the basis of the following considerations:

The EUI was established by a Convention(1) adopted by the Member States of the European Community. It was on the list of organisations devoted to furthering the Community’s interests, drawn up in accordance with Article 37(1)(b) of the Staff Regulations(2) (regarding secondment), the other bodies on which appeared to be within the Ombudsman’s mandate. Furthermore, according to the Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union(3), the EUI falls within that Convention’s definition of “bodies set up in accordance with the Treaties.” Subsequent to the EUI Convention, the Community has acquired competence in the fields of education, culture and research (Treaty establishing the European Community, Article 3 points (n) and (q); Article 149; Article 151, and Article 163).

In case 659/2000/GG, the then President of the EUI decided not to propose a view on the issue in the absence of an opinion of the EUI's High Council.

In opening the present inquiry, the Ombudsman therefore raised the matter with the new President of the EUI and indicated that he would greatly appreciate being informed whether the High Council had in the meantime adopted an opinion on the issue.

The complainant's allegation

The Ombudsman noted that, notwithstanding the above issues, he hoped that the EUI would in any case respond to the complainant’s allegation. In this connection, the Ombudsman drew attention to section 3.7.3 of his Annual Report for 2002, which reports on an own-initiative inquiry on the use of age limits in recruitment, as well as to the Ombudsman's website (http://www.ombudsman.europa.eu) which contained a section about age limits in recruitment.

The EUI's opinion
The status of the EUI

The EUI informed the Ombudsman that its High Council had not yet been asked to adopt an opinion on the issue, and that the EUI had arrived at the conclusion that it did not fall within the competence of the Ombudsman. In its view, such competence would have to be established by its High Council in agreement with the Ombudsman. It referred to a legal statement that its services had made, and which may be summarised as follows:

1. The EUI was established by a "classical" international convention, and does not form part of the "acquis communautaire".

2. The list drawn up on the basis of Article 37 (1) (b) of the Staff Regulations refers to organisations "devoted to furthering the Community's interests", and not to "Community institutions or bodies". It could be presumed that the Community legislator deliberately used the wider concept of organisations devoted to furthering the Community's interests to enable inclusion of bodies that did not strictly form part of the bodies created on the basis of the Community Treaties.

3. As regards the fact that the EUI is referred to in the list of “bodies set up in accordance with the Treaties” in the Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union(4), the EUI noted that the Report had simply copied the list created on the basis of Article 37(1)(b) of the Staff Regulations (cf. above). Contrary to all the other institutions or bodies on that list, the EUI was not created on the basis of the Community Treaties.

4. As regards the fact that the Community had acquired competence in the fields of education, culture and research subsequent to the EUI Convention (cf. Treaty establishing the European Community, Article 3 points (n) and (q); Article 149; Article 151, and Article 163), the EUI was merely in a situation comparable to other European universities that participate in Community programmes.

The legal statement then addressed the issue specifically in the light of the fact that the present case related to staff matters. It stated that in 1981, the EUI had created a complaint body responsible for the handling of staff requests and complaints. In light of the fact that the procedures established for such requests and complaints were almost identical to those under Article 90 and 91 of the Staff Regulations, the EUI's High Council had formulated the wish that the Court of Justice should obtain competence in staff matters. It envisaged that this could happen once the specialised chambers for staff matters (introduced by the Treaty of Nice) had been established.

In the opinion itself, the EUI stated that it expected to contact the Court of Justice in 2007 (when specialised chambers for staff issues were expected to be created) to discuss the possibility of extending the Court's competence to the EUI. The EUI intended to contact the European Ombudsman at the same time to discuss an extension of the Ombudsman's mandate.

The complainant's allegation

The EUI stated that notwithstanding its conclusion that it was not within the competence of the European Ombudsman, it had decided to submit an opinion on the complainant's allegation. It stated that this was linked to the present case only, and did not create any precedent.

Its opinion on the allegation can be summarised as follows:

The EUI explained that its High Council had some time ago decided to create temporary category C posts to allow for administrative assistance in research projects financed through external sources. It was decided that such temporary agents could not acquire pension rights but only a departure allowance. For this reason, the notices advertising such temporary posts had always established (a) the condition that the agent could stay for a maximum of ten years and (b) an age limit.

In the context of the Community institutions' reform of their Staff Regulations, the EUI had followed and discussed the issue of age limits. It noted the references to equality of age in some of the proposals.

The EUI noted that, in the case of the temporary posts here concerned, the EUI's use of an age limit implied an overlap of labour law and pension rights. A proposal would therefore be made to the High Council to separate these two aspects in the EUI's regulations.

In the meantime, instruction had been given not to include any age limit in the notices of competition for the category here concerned.

The complainant's observations

The EUI's opinion was forwarded to the complainant for observations. No observations have been received.

THE DECISION

1 The status of the EUI

1.1 An application for a post submitted by the complainant to the European University Institute (EUI) had been rejected at the stage of admissibility because the complainant did not meet the age limit which foresaw that candidates should be born after 1 January 1955. In her complaint to the Ombudsman, she alleged that she had been discriminated against by the EUI on the grounds of age. She claimed that age discrimination in the recruitment procedures should be abolished.

1.2 In examining the admissibility of the present complaint, the Ombudsman noted that the question whether the EUI is a Community body had already arisen in the framework of a previous complaint lodged with the European Ombudsman against the EUI (inquiry into complaint 659/2000/GG). In that case, the Ombudsman considered that it was not excluded that the EUI could be considered to be a Community body for the purposes of the European Ombudsman's mandate. This finding was made on the basis of the following considerations.

1.3 The EUI was established by a Convention(5) adopted by the Members of the European Community and was on the list of organisations devoted to furthering the Community’s interests drawn up in accordance with Article 37(1)(b) of the Staff Regulations(6) (regarding secondment). All the other bodies on that list appeared to be within the Ombudsman’s mandate. Furthermore, according to the Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union(7), the EUI falls within that Convention’s definition of “bodies set up in accordance with the Treaties.” Subsequent to the EUI Convention, the Community has acquired competence in the fields of education, culture and research (Treaty establishing the European Community, Article 3 points (n) and (q); Article 149; Article 151, and Article 163).

1.4 In case 659/2002/GG, the then President of the EUI decided not to propose a view on the issue in the absence of an opinion of the EUI's High Council.

1.5 In its opinion on the present complaint, the EUI informed the Ombudsman that its High Council had not yet been asked to adopt an opinion on the issue. However, the EUI had arrived at the conclusion that it did not fall within the competence of the Ombudsman. In its view, such competence would have to be established by its High Council in agreement with the Ombudsman. It referred to a legal statement that its services had made for the purpose of the opinion in the present case, and which may be summarised as follows:

(i) The EUI was established by a "classical" international convention, and does not form part of the "acquis communautaire".

(ii) The list drawn up on the basis of Article 37 (1) (b) of the Staff Regulations refers to organisations "devoted to furthering the Community's interests", and not to "Community institutions or bodies". It could be presumed that the Community legislator deliberately used the wider concept of organisations devoted to furthering the Community's interests to enable inclusion of bodies that did not strictly form part of the bodies created on the basis of the Community Treaties.

(iii) As regards the fact that the EUI is referred to in the list of “bodies set up in accordance with the Treaties” in the Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union(8), the EUI noted that the Report had simply copied the list created on the basis of Article 37(1)(b) of the Staff Regulations (cf. above). Contrary to all the other institutions or bodies on that list, the EUI was in fact not created on the basis of the Community Treaties.

(iv) As regards the fact that the Community had acquired competence in the fields of education, culture and research subsequent to the EUI Convention (cf. Treaty establishing the European Community, Article 3 points (n) and (q); Article 149; Article 151, and Article 163), the EUI was merely in a situation comparable to other European universities that participate in Community programmes.

1.6 The legal statement then addressed the issue specifically in the light of the fact that the present case related to staff matters. It stated that in 1981, the EUI created a complaint body responsible for the handling of staff requests and complaints. In light of the fact that the procedures established for such requests and complaints were almost identical to those under Article 90 and 91 of the Staff Regulations, the EUI's High Council had formulated the wish that the Court of Justice should obtain competence in personnel matters. According to the legal statement, this could happen once the specialised chambers for staff matters (introduced by the Treaty of Nice) had been established.

1.7 In the opinion itself, the EUI stated that it expected to contact the Court of Justice in 2007 (when specialised chambers for staff issues were expected to be created) to discuss the possibility of extending the Court's competence to the EUI. The EUI intended to contact the European Ombudsman at the same time to discuss an extension of the Ombudsman's mandate.

1.8 The Ombudsman has carefully examined the EUI's opinion and the relevant legal texts. On the basis of this examination, the Ombudsman has arrived at the conclusion that the EUI's view that it is not a "Community body" within the meaning of the European Ombudsman's mandate appears reasonable.

1.9 In the light of the importance of ensuring legal certainty for individuals who have contacts with the EUI, the Ombudsman wishes to express his gratitude for the EUI's decision to submit a detailed legal analysis on the issue. The Ombudsman would also like to emphasise that his mission includes the aim of improving relations between the citizens and the administration, and that it was therefore considered inappropriate to allow doubts pertaining to the status of the EUI to prevent an inquiry into the present complaint from being opened.

2 The complaint

In the light of the finding in paragraph 1, the Ombudsman does not consider that he is competent to review the allegation made by the complainant. The Ombudsman would nevertheless like to welcome the EUI's decision to propose to its High Council the adoption of measures that allow issues relating to pension rights to be addressed through other means than the use of age limits in recruitment, and that, in the meantime, instruction had been given not to include any age limit in the notices of competition for the category here concerned.

3 Conclusion

On the basis of the findings related to the status of the European University Institute, the Ombudsman closes the case.

The President of the European University Institute will also be informed of this decision.

FURTHER REMARKS

In its opinion, the EUI suggested that it could be brought within the European Ombudsman's competence through an agreement between itself and the Ombudsman. It also stated that the EUI intended to look into the possibilities of bringing the EUI within the competence of the European Court of Justice.

The Ombudsman strongly welcomes the EUI's decision to explore possibilities of enhancing independent control over its activities. It is necessary, however, to point out that Article 195 of the Treaty establishing the European Community provides that the European Ombudsman is empowered to receive complaints concerning "activities of the Community institutions or bodies" and that Article 2(1) of his Statute provides that "No action by any other authority or person [ than a Community institution or body ] may be the subject of a complaint to the Ombudsman."

In the case that an entity is found not to be a Community institution or body, the Ombudsman does not, therefore, have the power to include that entity, by individual agreement or otherwise, into the scope of his competence.

However, given that the term "Community bodies", as referred to in the above Treaty provision, is not precisely defined in Community law, the Ombudsman considers that future legal developments could make it relevant to revisit the issue of whether the EUI could be considered a "Community body" within the European Ombudsman's competence.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Convention setting up a European University Institute 1976 OJ C 02911.

(2) Rules determining the list of organisations devoted to furthering the Communities’ interests referred to in the second indent of Article 37 (l)(b) of the Staff Regulations of officials of the European Communities.

(3) Text approved by the Council on 3 December 1998,1998 OJ C 391/l.

(4) Text approved by the Council on 3 December 1998,1998 OJ C 391/l.

(5) Convention setting up a European University Institute 1976 OJ C 02911.

(6) Rules determining the list of organisations devoted to furthering the Communities’ interests referred to in the second indent of Article 37 (l)(b) of the Staff Regulations of officials of the European Communities.

(7) Text approved by the Council on 3 December 1998,1998 OJ C 391/l.

(8) Text approved by the Council on 3 December 1998,1998 OJ C 391/l.