Strasbourg, 15 June 2005

Dear Mr C.,

On 1 March 2004, you made a complaint to the European Ombudsman against the European Parliament concerning access by auxiliary agents of the European Commission to Parliament's premises in Brussels.

On 23 March 2004, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 19 July 2004. I forwarded it to you with an invitation to make observations, which you sent on 7 September 2004.

On 24 January 2005, I wrote to the President of Parliament in order to propose a friendly solution to your complaint. Parliament sent its reply to the proposal on 21 April 2005. I forwarded it to you with an invitation to make observations, if you so wished. My office contacted you again by e-mail on 7 June 2005 in order to ask whether you wanted to submit observations, which you did by e-mail of 8 June 2005.

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

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant is an auxiliary agent in the European Commission. He complains that the Commission's auxiliary agents are not allowed access to the European Parliament's premises in Brussels when there are no meetings scheduled.

According to the complainant, this is discriminatory, since no such restriction is imposed on temporary agents, seconded national experts or accredited lobbyists from private companies. The complainant observes that there is no difference in the work assigned to him compared to other categories of staff. The complainant did not find any legal text on which such a measure would be based. The complainant complained about this refusal of access to the European Parliament’s premises in e-mail correspondence with the Security Division of Parliament in September and October 2003 and in February 2004, but Parliament never provided the complainant with a document explaining this measure, although the Head of the Security Division promised to send it.

On 1 March 2004, the complainant lodged the present complaint with the Ombudsman alleging that Parliament's refusal to allow auxiliary agents of the European Commission to have access to its premises in Brussels when there are no meetings scheduled constitutes unjustified discrimination.

THE INQUIRY

The European Parliament's opinion

Parliament observed that the complaint's description that auxiliary agents of the European Commission are not allowed access to its premises in Brussels when there are no meetings scheduled is perfectly accurate. The reasons for this are based on grounds of sound management:

Any citizen who wishes to access Parliament's premises outside the visitors' area can do so if invited by a parliamentary body, a Member or a civil servant. In the framework of inter-institutional co-operation, Parliament grants access to officials of other EU institutions upon presentation of their badge. This facility is not, however, extended to all the other agents of the Institutions, since the number of potential visitors to the EP would thereby be substantially increased. Parliament does of course grant access to its premises when there is a functional reason, for example when auxiliary agents of the Commission need to attend a meeting of a parliamentary committee. The complainant does not, however, indicate any professional reason justifying his request.

The limitation of the right of access is also necessary because Parliament is subject to national legislation and regulations. These regulations establish a maximum number of persons admitted to the premises on safety grounds, especially as regards fire risks. A note summarising the situation was considered by the Quaestors in November 2001. According to this note, Parliament should carefully monitor the number of persons present at a given time. The available statistical evidence shows that at certain peak times the maximum number is almost reached. This situation becomes even more difficult following enlargement. For the sake of the users of the premises, including visitors, Parliament is thus obliged to introduce certain access restrictions. These restrictions are maintained in Brussels throughout the year, even during periods with lower activity, because at these times the deployment of guards on duty in Brussels is reduced for budgetary reasons and to ensure sound financial management.

Parliament sent a copy of the above-mentioned note (PE 308.245/QUAEST from the Deputy Secretary General, Mr Harald RØMER, to the College of Quaestors) with its opinion.

The complainant's observations

The complainant wondered why auxiliary agents, unlike other members of staff, have to justify their request to enter the building by giving a professional reason.

The complainant is not contesting that the right of access must be limited. However, this should not be done arbitrarily. The complainant did not find any provision in the note attached to Parliament's opinion where the limitation with regard to auxiliary agents is foreseen.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and observations, the Ombudsman considered that there could be an instance of maladministration by Parliament. In accordance with Article 3(5) of the Statute(1), he therefore wrote to the President of Parliament on 24 January 2005 to propose a friendly solution on the basis of the following analysis of the issue in dispute between the complainant and Parliament:

1.1 The complainant alleges that Parliament's refusal to allow auxiliary agents of the European Commission to have access to its premises in Brussels when there are no meetings scheduled constitutes unjustified discrimination. In support of his allegation, the complainant pointed out that no such restriction is imposed on temporary agents, seconded national experts or accredited lobbyists from private companies. The complainant did not find any legal text on which such a measure would be based.

1.2 Parliament stated that it grants access to officials of other EU institutions upon presentation of their badge. This facility is not, however, extended to all the other agents of the Institutions, since the number of potential visitors to Parliament would thereby be substantially increased. Parliament does of course grant access to its premises when there is a functional reason, for example when auxiliary agents of the Commission need to attend a meeting of a parliamentary committee. The complainant does not, however, indicate any professional reason justifying his request. Parliament further pointed out that the limitation of the right of access is also necessary because Parliament is subject to national legislation and regulations which establish a maximum number of persons admitted to the premises on safety grounds, especially as regards fire risks. It referred in this context to a note sent to the College of Quaestors and included a copy of the note with its opinion.

1.3 The Ombudsman has carefully examined the note to which Parliament refers in order to justify the restriction on auxiliary agents of the Commission with regard to access to Parliament's premises when there are no meetings scheduled. The Ombudsman observes that the note does not appear to contain any reference to auxiliary agents from other institutions or to restrictions on their access to Parliament's premises when there are no meetings scheduled. On the contrary, point 9 of the note states that "[a]s of 23 November 2001, on the basis of the rules in force, Parliament had granted a right of permanent access to 17711 persons (Members, assistants, officials, group staff, outside service-providers, etc). These are persons who have been issued with a badge. To these must be added persons with a badge issued by another institution, who may enter Parliament's premises on the basis of the principle of reciprocity (Members, officials and other servants of the other institutions, [the Ombudsman points out that the auxiliary staff are “other servants” and that the note makes no distinction between temporary staff and auxiliary staff] journalists accredited to the Commission) (…). Point 10 of the note states that "at present, there is no provision which would enable Parliament to deny access to the persons referred to in the previous paragraph".

1.4 The note concludes that the current rules on access to Parliament's premises, which grant a right of permanent access to a very wide range of individuals, make it impossible to monitor normal rates of occupation. Given this unsatisfactory situation and the fact that the enlargement of the Union will increase the number of permanent users of Parliament's buildings, the note urges the College of Quaestors to instruct the Secretariat to propose a revision of the rules governing access to Parliament's premises with a view to consideration of the issue by the Quaestors in February 2002. The Ombudsman notes, however, that Parliament’s opinion does not refer to any revised rules governing access.

1.5 The Ombudsman recalls that, according to the established case law, the European Parliament, like other Community institutions, has extensive discretionary powers to organise its internal affairs. The Ombudsman considers that the regulation of access to the Parliament’s premises falls within Parliament’s power of internal organisation.

1.6 The Ombudsman also recalls that, again according to the established case law, the principle of equality of treatment is a general rule forming part of the law applicable to the employees of the Communities and that discrimination occurs when comparable situations are treated in an unequal way and the discrimination is not objectively justified.

1.7 The Ombudsman notes that Parliament’s opinion does not contain any explanation of why the position of all categories of Community staff should not be considered comparable for the purposes of access to its premises. On the contrary, Parliament has merely referred, without any distinction of staff categories, to a general need, for safety reasons, to restrict the overall numbers of those having access. Considering also that the note referred to by Parliament in its opinion appears to acknowledge that there is no provision which enables Parliament to deny access to “other servants” of other institutions, the Ombudsman takes the view that Parliament has failed to provide an objective justification for its refusal to allow auxiliary agents from the Commission access to its premises when there are no meetings scheduled. This refusal therefore constitutes unjustified discrimination and is an instance of maladministration.

The proposal for a friendly solution

The friendly solution proposed by the Ombudsman consisted in Parliament putting an end to the current situation in which the access of auxiliary agents of other institutions to European Parliament premises is restricted without an objective justification.

Parliament's second opinion

In its opinion, Parliament was pleased to inform the Ombudsman that the problem of access no longer exists. Following the entry into force of the new Staff Regulations a new regime for contractual agents is now applicable in the European Parliament with effect from 1 March 2005 for staff previously employed on auxiliary contracts and from 1 January 2005 for newly-recruited staff. As a result of these changes, Parliament's Security Service does not distinguish between different categories of staff for access purposes.

Following deliberations of the Bureau, new rules governing access to the institutions were issued by the Secretary General on 28 January 2005. Parliament enclosed a copy of these rules with its opinion. Parliament drew the Ombudsman's attention particularly to Article 6, which provides for access to European Parliament premises by all categories of staff of other Institutions.

The complainant's second observations

In his e-mail of 8 June 2005, the complainant observed that the problem appeared to be solved now and that he felt satisfied. He also thanked the Ombudsman's office for its efforts and President Borrell for the clear and written new rules.

THE DECISION

1 The alleged discrimination against the Commission's auxiliary agents

1.1 The complainant alleges that Parliament's refusal to allow auxiliary agents of the European Commission to have access to its premises in Brussels when there are no meetings scheduled constitutes unjustified discrimination. In support of his allegation, the complainant pointed out that no such restriction is imposed on temporary agents, seconded national experts or accredited lobbyists from private companies. The complainant did not find any legal text on which such a measure would be based.

1.2 Parliament stated that it grants access to officials of other EU institutions upon presentation of their badge. This facility is not, however, extended to all the other agents of the Institutions, since the number of potential visitors to Parliament would thereby be substantially increased. Parliament does of course grant access to its premises when there is a functional reason, for example when auxiliary agents of the Commission need to attend a meeting of a parliamentary committee. The complainant does not, however, indicate any professional reason justifying his request. Parliament further pointed out that the limitation of the right of access is also necessary because Parliament is subject to national legislation and regulations which establish a maximum number of persons admitted to the premises on safety grounds, especially as regards fire risks. It referred in this context to a note sent to the College of Quaestors and included a copy of the note with its opinion.

1.3 For the reasons explained above under the heading “the Ombudsman's efforts to achieve a friendly solution”, the Ombudsman wrote to Parliament on 24 January 2005, proposing a friendly solution which would consist of Parliament putting an end to the current situation in which the access of auxiliary agents of other institutions to European Parliament services is restricted without an objective justification.

1.4 In its opinion of 21 April 2005, Parliament informed the Ombudsman that, following the entry into force of the new Staff Regulations, the problem of access no longer exists. Parliament pointed out that a new regime for contractual agents is now applicable in the European Parliament with effect from 1 March 2005 for staff previously employed on auxiliary contracts and from 1 January 2005 for newly-recruited staff. As a result, Parliament does not distinguish anymore between different categories of staff for access purposes. Article 6 of the new rules governing access to Parliament's premises adopted on 28 January 2005 provides for access to European Parliament premises for all categories of staff of other Institutions.

1.5 The European Ombudsman notes that Article 6 of the new "[r]ules governing passes and authorisations granting access to Parliament's premises", which were adopted by the Secretary General on 28 January 2005 provide that "officials and other servants of the other Union institutions who, for service reasons, need to enter Parliament's premises shall be granted access thereto, subject to the principle of reciprocity, during the time-slots set aside for meetings of Parliament's bodies. Access shall be granted solely on presentation of a pass issued by their own institution".

1.6 In his observations, the complainant stated that the problem appeared to be solved now and that he felt satisfied. He also thanked the Ombudsman's office for its efforts and President Borrell for the clear and written new rules.

1.7 It appears from the above that the friendly solution proposed by the European Ombudsman has been accepted by the European Parliament.

2 Conclusion

Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been achieved. The Ombudsman therefore closes the case.

The President of Parliament will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint".