The complainant is a staff member of the European Parliament. The case concerned the European Parliament´s decision not to review the complainant´s 2013 staff evaluation report because her appeal had been made too late. The Ombudsman inquired into the issue and noted that the European Parliament had applied its rules for determining the deadline for the complainant’s appeal very strictly. However, as the appeal would have been submitted late even with a more flexible deadline, the Ombudsman found no maladministration by the European Parliament arising from its decision not to review the complainant’s staff evaluation report.

The background to the complaint

1. The complainant is a staff member of the European Parliament who did not agree with her staff evaluation report for the year 2013. The European Parliament refused to accept her subsequent appeal as she had submitted it after the 10-day deadline established by the applicable rules^[1].

2. On the basis of the complainant’s staff report, the European Parliament then awarded her 1 merit point for the purposes of the staff promotion exercise[2].

3. The complainant submitted administrative complaints[3] to the European Parliament about her staff report and the decision to award her 1 merit point.

4. In March 2015, the European Parliament confirmed the decision not to revise the complainant´s staff report and the decision to award 1 merit point.

5. Dissatisfied with the replies of the European Parliament, in February 2017 the complainant turned to the Ombudsman.

The inquiry 

6. The European Ombudsman opened an inquiry into the complainant’s claims that: (i) her appeal against the staff report for the year 2013 should have been considered as having been made on time  and that the report contained inaccuracies; and (ii) the subsequent decision to award her 1 merit point for the year 2013 was wrong. The complainant wanted the European Parliament to modify her 2013 staff report and to award her 1 extra merit point.

7. In the course of the inquiry, the Ombudsman’s inquiry team duly considered the information provided in the complaint. In particular, it carried out a thorough analysis of the correspondence that had taken place between the European Parliament and the complainant before the complainant turned to the Ombudsman.

Whether appeal made on time and inaccuracies in the 2013 staff report

Arguments made by the complainant and the European Parliament

8.  The complainant argued that she was late in submitting her appeal against the staff report because she had been absent for a total of eight days between the day on which she received the final version of the staff report and the deadline for submitting an appeal (five leave days and three public holidays). The complainant also claimed that the European Parliament had delayed the process of drafting her staff report.

9. The European Parliament considered the complainant´s appeal to be inadmissible because it was made after the deadline. The European Parliament stated that deadlines for lodging appeals are set in order to meet the requirement of legal certainty and to avoid discrimination. It added that leave days do not affect such deadlines for appeals in any administrative or judicial proceedings.

The European Ombudsman's assessment

10. The European Ombudsman may assess substantive issues in complaints about the staff reports of EU civil servants only where they have first exhausted all the available avenues of appeal to the institution in question[4]. In this case, the European Parliament argues that, as the appeal was submitted late, there was effectively no appeal. The complainant does not agree.

11. The Ombudsman, therefore, first has to consider if the European Parliament should have accepted the complainant’s appeal, given the circumstances. Only if this were the case, would the Ombudsman be able to assess the complainant’s concern about inaccuracies in the staff report.  

12. It is clear from the information she has provided that the complainant went through a very difficult period just after receiving her staff report. During this period, she was on sick leave and was also granted special leave to take care of a relative who was not well. It is therefore understandable that she felt that the time-limit for submitting an appeal about her staff report was tight.

13. The European Parliament has stated that her appeal should have been made by 3 June 2014, which means that it did not take into account the complainant’s leave days (sick leave, annual leave and special leave to take care of a sick relative). It did, however, take into account office closing days (public holidays) when determining the deadline for the appeal.

 14. It is clear that the European Parliament applied the rules in force at the time to the complainant and that there were no irregularities in that application. However, the European Parliament’s practice regarding the appeal deadline at the time of this case could be seen as excessively strict. It would be reasonable to give some consideration to the situation of  people who are on leave during the period within which the appeal should normally be made The rules now in place (since 2014) specify that the staff report procedure shall be suspended if a staff member is prevented from exercising the necessary judgement in the procedure due to medical reasons.[5]

15.  However, the Ombudsman notes that even if the Parliament had suspended the time limit during the complainant’s sick leave, annual leave and special leave, the complainant’s appeal would still have been submitted after the deadline. The complainant was present at work for 13 days before finally making her appeal.

16. Therefore, even if the European Parliament had taken a more flexible approach to the appeal deadline, it would not have been able to accept the complainant’s appeal.

17. On the basis of the above, and as explained in paragraph 10, the Ombudsman cannot look into the substantive issue of whether the staff report contained inaccuracies.

Awarding of merit points for the year 2013

Arguments made by the complainant and the European Parliament

18. The complainant argues that the European Parliament´s decision awarding her 1 merit point for the year 2013 was taken on the basis of her staff report, which contained inaccuracies. The complainant also argues that her supervisor gave her only 1 merit point in order to be able to give more merit points to other colleagues.[6]

19. The European Parliament claims that the decision awarding the complainant 1 merit point for the year 2013 was taken on the basis of her staff report, which became final on the date when the deadline to file an appeal expired. It adds that the decision to award the complainant 1 merit point was justified because her staff report contained critical remarks.

The European Ombudsman's assessment

20. Due to the unfortunate fact that the complainant was late in submitting her appeal, her staff report became final. As a result, the European Parliament was correct to base the awarding of 1 merit point for the year 2013 on that staff report.

21. According to EU case law, the EU administration enjoys wide discretion [7] in appraising the merits to be taken into consideration in the context of a promotion decision[8]. Consequently, the EU administration has wide discretion when deciding on merit points, which are awarded in the context of annual promotions.

22. Even if it is understandable that the complainant is not happy with her staff report, the Ombudsman sees nothing to suggest that the European Parliament made any  error or misused its power when taking its decision on merit points for the year 2013. It seems reasonable that the Parliament should have had regard to the complainant’s staff report in making its decision on merit points.

23. On the basis of the above, there was no maladministration by the European Parliament when awarding the complainant 1 merit point for the year 2013.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There was no maladministration by the European Parliament

The complainant and the European Parliament will be informed of this decision.

Strasbourg, 22/06/2017,

 

Tina Nilsson
Head of Inquiries - Unit 4

 

 

 

[1] The 2005 version of the European Parliament’s General Implementing Provisions applicable to article 43 of the Staff Regulations of Officials and Articles 15(2) and 87(1) of the conditions of employment of other servants (staff reports).

[2] The work of Parliament's staff is evaluated through annual staff reports. Following the evaluation, 'merit points' are awarded to staff based on their performance, ability, and conduct. These merit points are then used to determine which members of staff are to be promoted.

[3] On the basis of Article 90.2 of the Staff Regulations  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1962R0031:20140101:en:PDF

[4] Article 2(8) of the Statute of the European Ombudsman sets out that no complaint may be made to the Ombudsman that concerns work relationships between the EU institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired.

This requirement aims at giving the EU body concerned the possibility to put things right, or at least to explain its position, before the Ombudsman gets involved. In addition, it is usually easier to resolve staff issues closer to source of the problem.

[5] Article 8.7 of the 2014 version of the European Parliament´s General Implementing Provisions applicable to Article 43 of the Staff Regulations of Officials and Articles 15(12) and 87(1) of the Conditions of Employment of Other servants (Staff Reports).

[6] Each functional entity of the European Parliament receives a limited number of merit points to award to its staff. These merit points are awarded to individual staff members at a meeting of the college of assessors of the entity concerned. The Secretary General of the European Parliament and the Directorate General for Personnel of the European Parliament may also award merit points to staff in specific cases. Merit points are awarded on the basis of a comparative assessment of merits within that particular staff grade.

[7] see, in particular, judgement of the Civil Service Tribunal of 18 April 2012, Buxton v Parliament  F-50/11, ECLI:EU:F:2012:51 paragraph 37

[8] taken under Article 45 of the Staff Regulations