The background to the complaint

1. The complaint concerns the alleged mistreatment of a former official by the European Parliament.[1]

2. The complainant requested leave on personal grounds for eight months in April 2000. She then requested early retirement[2]. Her request was granted and the complainant took early retirement on 1 March 2001. She obtained a pension of EUR 740 per month, with full medical cover.

3. In 2005, she asked Parliament to revoke its decision granting her early retirement. She argued that in 2000, she lacked the "awareness or appreciation to understand the legal nature" of her request for early retirement.

4. On 26 September 2006, MEP van Buitenen wrote a letter to the Secretary-General of Parliament on behalf of the complainant.

5. In reply to the complainant and the MEP, the Secretary-General stated, on 23 November 2006, that he had instructed Parliament's Legal Service to examine the complainant's file. Parliament's Legal Service delivered its opinion on 15 November 2006, a copy of which was sent to the complainant and the MEP. Parliament's Legal Service concluded that Parliament was under no legal obligation to seek further solutions regarding the complainant's situation. In his letter informing the complainant and the MEP about the opinion of the Legal Service, the Secretary-General also offered to meet the complainant if she had new evidence concerning her allegations relating to fraud[3].

6. In January 2007, the complainant requested a meeting with the Secretary-General. In his reply of 20 February 2007, the Secretary-General stated that it appeared from the complainant's request that the meeting would concern the state of her health, rather than the alleged fraudulent activities. The Secretary-General recalled that in 2005, the complainant was advised to provide Parliament's services with a medical report attesting to the fact that she was not responsible for her own actions at the time she made the decision to retire early. The complainant did not submit such a report. He therefore suggested that a meeting be organised with the complainant, her medical doctor and the competent members of DG Personnel to re-examine her health situation at the time of her requesting early retirement.

7. In a letter dated 26 February 2007, the complainant agreed to attend such a meeting. In a further exchange of letters in May 2007, Parliament pointed out that the complainant should be accompanied at the meeting by a psychiatrist of her choice. The complainant was advised to inform Parliament's services of the name of the doctor so that the meeting could be organised.

8. By letter dated 12 November 2008, the complainant sent a letter to Parliament and attached to it a medical report drawn up by Dr D-M ('the 2008 Medical Report'). The complainant pointed out that, according to the 2008 Medical Report, she was not in an adequate psychological and physical state to make coherent decisions in 2001.

9. By letter dated 22 December 2008, Parliament's Medical Service delivered an opinion on the 2008 Medical Report. It stated that it was not possible to come to a conclusion on the basis of the 2008 Medical Report as to the state of the complainant's health in 2001. In a further letter dated 17 February 2009, Parliament's Medical Service complemented its first opinion. It referred to a report drawn up in 2005 by Dr M ('the 2005 Medical Report'), which also concerned the complainant's health situation in 2001. Parliament's Medical Service concluded that the 2005 Medical Report contained no indication that the complainant had not been in an adequate psychological and physical state to make coherent decisions in 2001. It also stated that the 2008 Medical Report was not drawn up by a medical doctor.

10. By letter of 6 March 2009, the Secretary-General informed the complainant that, in view of the contents of the 2005 and 2008 Medical Reports, and the conclusions of Parliament's Medical Service, he considered that there was no longer any reason to organise a meeting with her.

11. On 3 June 2009, the complainant sent a letter to the Secretary-General to contest his decision not to organise the meeting. On 30 July 2009, Parliament acknowledged receipt of the complainant's letter as a complaint submitted in accordance with Article 90(2) of the Staff Regulations[4]. By decision of 23 October 2009, Parliament rejected the complainant's Article 90(2) complaint.

12. In the meantime, on 14 October 2009, the complainant submitted the present complaint to the Ombudsman.

The subject matter of the inquiry

13. The Ombudsman opened an inquiry into the following allegation.

Allegation:

Parliament treated the complainant in an unfair manner.

In support of her allegation, the complainant raised the following arguments:

Parliament:

1) ignored her right to medical confidentiality;

2) misused confidential medical information;

3) neglected its duty of care;

4) failed to live up to commitments made by former Secretaries General; and

5) made unfair and unfounded allegations against her in its letter dated 6 March 2009.

The inquiry

14. On 18 November 2009, the Ombudsman asked Parliament to submit an opinion on the complaint. Parliament submitted its opinion on 30 March 2010, which was forwarded to the complainant with an invitation to submit observations. The complainant submitted her observations on 27 May 2010.

The Ombudsman's analysis and conclusions

A. Allegation that Parliament treated the complainant in an unfair manner

The argument that Parliament ignored the complainant's right to medical confidentiality

15. The complainant explained that, when she delivered the 2008 Medical Report to the Secretary-General's office, she also delivered a cover letter stating that the report was confidential and that it should only be made available to the competent medical authorities. She argued, however, that it was apparent from the wording of the Secretary-General's letter dated 6 March 2009 that at least one of his advisers had read the 2008 Medical Report. In fact, two paragraphs of the 2008 Medical Report were quoted in the Secretary-General's letter dated 6 March 2009. Consequently, the complainant argued that Parliament ignored her right to medical confidentiality.

16. In its opinion, Parliament stated that the complainant attached to her complaint to the Ombudsman an unsigned letter, dated 10 November 2008, addressed to the Secretary-General. This letter contains the following sentence (in the original French version): "Ce rapport est confidentiel et disponible au Service Médicale."[5] Parliament pointed out, however, that this text does not appear in the letter the complainant delivered in person to the Secretary-General's office[6]. This latter letter, dated 12 November 2008, is signed by the complainant. It includes the following sentence (in the original French version): "Ce rapport, que je vous faire parvenir en annexe, conclu qu'en mars 2001...".[7] Parliament further pointed out that a copy of her letter to which the 2008 Medical Report was attached had been sent to the then Director-General for Personnel and the bureau of Parliament's Staff Committee. Therefore, it was clear that she wished to inform these persons about the contents of the 2008 Medical Report. Moreover, the Medical Service was not mentioned in the letter at all, and thus no request was made that the 2008 Medical Report should only be made available to the Medical Service. Consequently, the complainant manifestly did not intend the 2008 Medical Report to be covered by medical confidentiality. For these reasons, Parliament submitted that the complainant's argument that Parliament ignored her right to medical confidentiality is unfounded.

17. In her observations, the complainant explained that she received assistance from Parliament's Staff Committee in drafting the letter to which she later attached the 2008 Medical Report. In her original letter, the sentence "Ce rapport est confidentiel et disponible au Service Médicale" was included. However, further to the advice received from a member of the Staff Committee, this sentence was removed on the assumption that Parliament's administration would comply with its own procedures by not allowing anyone other than the personnel of the Medical Service to read the 2008 Medical Report. She added that copies of the 2008 Medical Report were not attached to the letters sent to the Director-General for Personnel and to Parliament's Staff Committee. In addition, a copy of Parliament's letter dated 6 March 2009, which contained direct quotations from the 2008 Medical Report, was sent to Ms P, then Director of Personnel, who had not received a copy of the complainant's letter. The complainant pointed out that medical or highly sensitive data should be regarded as "confidential". She added that she is not obliged to remind the administration of her right to medical secrecy. Sensitive data can only be made public if the individual concerned has given his or her consent. Without the complainant's consent, Parliament had no grounds to claim that she had waived her right to data protection.

The Ombudsman's assessment

18. The Ombudsman first underlines that the right to the protection of personal data, and in particular, personal data concerning a person's health, constitutes a fundamental right protected by the legal order of the Union[8].

19. In her observations submitted to the Ombudsman, the complainant acknowledges that certain last minute changes had been made to the letter submitted to Parliament. Therefore, it is not contested that the version of the letter received by Parliament did not contain a specific request that the 2008 Report be disclosed to the Medical Service only.

20. Even though the complainant omitted to include in her letter to Parliament a specific request only to disclose the 2008 Report to the Medical Service, the Ombudsman notes that this does not mean that Parliament did not have an obligation to treat the report with special care and as confidential.

21. Article 10 of Regulation 45/2001[9], which relates to the processing of special categories of data, states that the processing of data concerning the health of a person is prohibited unless the data subject has given his or her express consent to the processing of those data. The transfer of such data to other members of Parliament's staff constitutes "processing" within the meaning of the Regulation[10]. In sum, it is not necessary for a person expressly to request that data concerning his or her health status be protected. The obligation to protect such data arises automatically.

22. However, there are certain exceptions which allow for the processing of data concerning the health of a person. These include the following:

• Where such processing is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy.
• Where such processing is necessary for the purposes of complying with the specific rights and obligations of the data controller in the field of employment law. In such circumstances, it is necessary to show that the processing is authorised by law or agreed upon by the European Data Protection Supervisor.

23. It is clear that the transmission of the 2008 Medical Report to Parliament's medical service for the purpose of allowing that service to evaluate the complainant's health falls within the exception set out in the first bullet point of paragraph 22 above. In sum, such processing was necessary for the purpose of medical diagnosis and was carried out by a health professional subject to the obligation of professional secrecy or by another person. It was also appropriate for the Secretary General to inform the medical service of his response to its recommendations, by providing it with a copy of his letter, dated 6 March 2009, which he had sent to the complainant.

24. The Ombudsman notes that a copy of the letter from the Secretary-General of Parliament to the complainant, dated 6 March 2009, which contained excerpts from the 2008 Medical Report, was sent to two other persons, namely, Mr W, then Director-General for Personnel and Ms P, then Director of Personnel.

25. The Secretary-General's letter dated 6 March 2009, however, falls into a category of documents that directly concern the complainant's administrative status (it contains the Secretary-General's conclusions on her request to have her administrative status reviewed). Consequently, that letter had to be registered by Parliament's administration in the appropriate administrative file. Given that administrative files of officials and other servants of Parliament are managed by the Directorate-General for Personnel, the Secretary-General was fully entitled, in accordance with the exception set out in the second bullet point of paragraph 22 above, to send a copy of his reply to the Director-General and the Director of Directorate-General for Personnel.

26. In light of the above, the Ombudsman considers that the forwarding of the letter containing excerpts from the 2008 Medical Report to Mr W, then Director-General for Personnel, and Ms P, then Director of Personnel, was justified.

27. As regards the alleged communication of the entire 2008 Medical Report to Mr W and Ms P, the Ombudsman notes that there is no information in the file indicating that the Secretary-General actually sent a copy of the 2008 Medical Report to these persons[11].

28. In light of the above, the Ombudsman finds that Parliament did not ignore the complainant's right to medical confidentiality in its handling of the 2008 Medical Report. The Ombudsman therefore finds no maladministration as regards this aspect of the complainant's allegation.

The argument that Parliament misused confidential medical information

29. The complainant argued that the Secretary-General's letter dated 6 March 2009 referred to a medical report concerning her, which was sent to Parliament in 2005 ('the 2005 Medical Report'). She argues that, although it was evident that she was the subject of that report, she was never given the opportunity to check it or to verify the data contained in it. She states that it is true that, in 2005, the administration invited her to provide a medical report concerning her health situation in 2001. She therefore consulted Dr M, who appeared on a list of doctors provided by Parliament in its e-mail dated 20 July 2005. She also states that she believes that Dr M did not even write a report because no such report was forwarded to her for approval. (However, she acknowledges that she did receive and pay a bill of EUR 85 for the consultation fees of Dr M). In addition, she notes that Dr M concluded that it was impossible for him to write a "reliable report" about her state of mind in 2001, since she had not been his patient at that time.

30. In its opinion, Parliament observed that the complainant's argument lacked the necessary precision for it comment on it.

The Ombudsman's assessment

31. The Ombudsman notes that the complainant herself acknowledged that in 2005 Parliament's administration invited her to provide a medical report concerning her health situation in 2001. She therefore consulted Dr M, with a view to complying with this invitation. The Ombudsman notes that, if the complainant wished for Dr M to send her a copy of his report before sending it to Parliament, she should have requested Dr M to do so. The Ombudsman also notes that, in one of the documents attached to the complaint she submitted to the Ombudsman, the complainant gives an account of the events between June 2005 and May 2007 relating to her grievances. In this document, the complainant states that she "wrote to [Dr M] twice requesting a copy of the report. Dr [M] did not reply." The Ombudsman must note that Dr M is not a member of Parliament's medical service. The actions or omissions of Dr M cannot therefore form part of the present inquiry.

32. As regards the argument that Parliament misused the confidential medical information contained in the 2005 Medical Report, the Ombudsman agrees with Parliament's comment that this argument lacks precision. In any case, the Ombudsman's understanding is that both the 2005 Medical Report and the 2008 Medical Report were in the complainant's medical file kept by Parliament's medical services. When the Secretary-General had to decide on the complainant's request for the meeting to be organised, he necessarily had to ask for a medical opinion and advice from Parliament's medical services. The latter had to forward to the Secretary-General information and conclusions based on both the 2005 and 2008 Medical Reports, so as to allow him to take a decision in relation thereto.

33. Finally, the Ombudsman refers to Article 26(a) of the Staff Regulations, which provides that officials shall have the right to acquaint themselves with their medical files. As a result, the complainant was, and still is, entitled to request Parliament to grant her access to her medical file, including the 2005 Medical Report.

34. In light of the above, the Ombudsman finds that Parliament did not "misuse" the complainant's confidential medical information in the 2005 Medical Report. He therefore finds no maladministration as regards this aspect of the complainant's allegation.

The argument that Parliament neglected its duty of care

35. The complainant states that Parliament neglected its duty of care by, first, failing to deal with her 2008 Medical Report in accordance with the Staff Regulations. She states that the Staff Regulations provide that an Invalidity Committee, which consists of three doctors or medical experts, is the competent authority to give an opinion on confidential medical matters. The Secretary-General, however, did not call upon an Invalidity Committee to give an opinion on the 2008 Medical Report.

36. Second, Parliament failed to follow the relevant procedure when it rejected the 2008 Medical Report on the grounds of Dr D-M's competence. The complainant states that Dr D-M is the Head of the Department of Psychology in a Belgian Hospital. He works, she states, in a "medical environment" and she turned to him on the suggestion of her counsellor.

37. Third, the Secretary-General dismissed the 2008 Medical Report as inadmissible. Therefore, it should have been rejected without further comment from the administration. The fact that the administration did not reject it without further comment constituted an indiscriminate use of the medical report.

38. Finally, the Secretary-General was not an expert in psychiatry and, therefore, he was not the competent authority qualified to offer an informed, medical opinion. However, in his letter dated 6 March 2009, he stated that he had deduced that the complainant was in a sufficiently fit state of mind and body to make coherent decisions in 2001. Moreover, he rejected Dr D-M's medical opinion because the latter was not an expert in psychiatry.

39. As regards the procedure for dealing with the 2008 Medical Report, Parliament first recalled in its opinion the background to the complaint. In his letters of 23 November 2006, the Secretary-General stated that, if and when the complainant obtained a statement calling into question her ability to make a responsible decision concerning her early retirement in March 2001, she could then submit to the appointing authority a request in accordance with Article 90(1) of the Staff Regulations[12]. In a letter dated 20 February 2007, the Secretary-General offered to organise a meeting to explore the possibilities of re-examining the question of the complainant's health situation at the time she made the decision on early retirement. This offer was further confirmed by the letter dated 8 May 2007 which the Secretary-General sent to the complainant. However, there was no legal basis obliging, or even allowing, the Secretary-General to call upon an Invalidity Committee to give an opinion on a psychological report concerning a former official who had retired seven years earlier. Instead, submitting the 2008 Medical Report to Dr C, Head of the European Parliament's Medical Service in Luxembourg, was the appropriate action.

40. As regards the rejection of the 2008 Medical Report on the grounds of Dr D-M's lack of competence, Parliament pointed out that, even though the complainant was requested to provide its services with a medical report drawn up by an expert (doctor) in psychiatry, and even though Dr D-M was not such an expert, the Secretary-General still decided to forward the 2008 Medical Report to Dr C for a medical opinion on it. Further to the delivery of Dr C's opinion, the 2008 Medical Report was not "rejected" on the basis of Dr D-M's lack of competence. In fact, Dr C stated that he could not find any indication as to how it could be concluded that the complainant was not in the necessary psychological and physical conditions in 2001 to make a relevant and coherent decision.

41. As regards the allegedly indiscriminate use of the 2008 Medical Report, Parliament pointed out that, in his letter dated 6 March 2009, the Secretary-General, while referring to the 2005 and 2008 Medical Reports, commented on the complainant's statement that she had been subjected to moral harassment at work. In that context, he remarked that there was no trace of moral harassment in the complainant's file. He also remarked that the possibility that the harassment started in July 2000, as the complainant claimed to have been the case, was excluded by the fact that she was on leave on personal grounds from 1 July 2000 and she did not return to work before taking early retirement on 1 March 2001. These comments, however, do not constitute indiscriminate use of the 2008 Medical Report.

42. As regards the argument that the Secretary-General was not the competent authority to form an opinion on a medical report, Parliament recalled the following. The Secretary-General's deduction that the complainant was in a sufficiently fit state, both psychologically and physically, on 31 January 2001 to make coherent decisions was an administrative conclusion based on the medical opinion given by Parliament's Medical Service in Luxembourg. In view of this conclusion, the Secretary-General, who had endorsed his predecessor's offer to organise a meeting with the complainant to discuss her medical situation, decided that, in the given circumstances, the meeting served no purpose. The Secretary-General was certainly the competent authority to make that decision and thus to close the case.

43. In her observations, the complainant made the general comment that Parliament failed in its duty of care when concluding that she was fit to make a coherent decision about early retirement. In August 2000, she received in-patient treatment in a hospital. Since she contacted the administration as regards the costs of the above treatment, Parliament had to be aware of the fact that she had been admitted to a hospital. Had Parliament's administration realised that she had undergone treatment for clinical depression soon before the meeting in January 2001, perhaps, she states, it would have acted leniently towards her and would have sent her for an assessment by a doctor from the Medical Service who could have then contacted the hospital in question for the relevant information on her.

44. The complainant observed that, if Parliament had no obligation towards a retired official, the Secretary-General had no grounds to "go along" with the idea of organising a meeting to discuss her medical situation. With respect to the statement that Parliament had no obligation to call upon the Invalidity Committee, the complainant pointed out that it was in fact the Secretary-General who introduced this notion. In his letter dated 20 February 2007, he invited the complainant "to produce a statement which I could 'in accordance with Article 90(1) of the Staff regulations, submit to the appropriate authority'" (emphasis in the complainant's original). The same offer was confirmed in the Secretary-General's letter dated 8 May 2007. She also pointed out that she had not submitted the 2008 Medical Report for an arbitrary assessment by Dr C of Parliament's Medical Service. In fact, she submitted the 2008 Medical Report believing that it was destined for use during the proposed meeting to discuss her medical situation.

45. On the second point, the complainant observed that, while her doctor, Dr D-M, was Head of Psychology, Parliament's Dr C was a general practitioner and is not an expert in mental health. As Dr C is not an expert in this field, he failed to take into account two earlier independent medical diagnoses of clinical depression on her medical record prior to 1996. Finally, Dr C was not entitled to assess the report prior to the meeting proposed by the Secretaries-General.

46. On the third point, the complainant observed that, apart from the notable and serious deterioration recorded in her staff report, there were other elements on record which indicate that she might have been suffering from stress in 2001. These elements were that (i) she had been stalked by a colleague; and (ii) her briefcase was stolen from her office shortly before she submitted her first report on the alleged irregularities in the payments sector of Parliament. As regards the date on which the moral harassment that she endured commenced, she simply confused the dates. She therefore rejected Parliament's statement that she had "pretended" that the moral harassment started in July 2000.

47. On the fourth point, the complainant observed that, in his note dated 17 February 2009, Dr C questioned the validity of the 2008 Medical Report on the grounds that it was drafted in 2008 but concerned issues in 2001. However, as the proposed meeting never took place, the Dr C's opinion could not be challenged. Had he examined the complainant in 2001, he would have been able to confirm that she (i) was emaciated and thoroughly unwell; (ii) had no coherent plans for the future; (iii) had inadequate savings; and (iv) had no alternative employment prospects on the horizon. Her decision to take early retirement was thus clearly irrational. With respect to the Secretary-General's decision that "a meeting would, in the given circumstances, serve no purpose", she observed that if the meeting had to be cancelled because there was no legal basis for it, it was very late for the Secretary-General to decide to do so. Also, she had been subjected on two occasions to the trauma of undergoing examination by Dr M and Dr D-M. In sum, the Secretary-General could have closed the case in May 2007, instead of agreeing to organise a meeting and thereby giving her unrealistic expectations of a positive solution.

The Ombudsman's assessment

48. The Ombudsman first notes that it is not his role to question the medical judgement or competence of a medical practitioner. Thus, he does not inquire into (i) the medical judgment of Parliament's medical service that the expertise of a psychiatrist would be required if the complainant were to prove her medical status when she took early retirement, 2) the capacity of Dr C of Parliament's Medical Service to interpret the 2008 Medical Report[13]. The Ombudsman role is to determine if Parliament's administration correctly dealt with the complainant's requests.

49. As regards the convocation of an Invalidity Committee, it is clear from the provisions of the Staff Regulations[14] that the Invalidity Committee may be convoked when (i) an official's cumulative sick leave totals 12 months or more during a three-year period; (ii) the official concerned challenges his/her being required to take leave at the institution's insistence, following an examination by the institution's medical officer; and (iii) the administration challenges the medical certificates produced by the official in question concerning his/her sick leave. Even if it were accepted, by extensive analogy, that point (ii) above was potentially applicable (which is not necessarily correct), the Ombudsman notes that it was for the complainant to request the convocation of the Invalidity Committee by using the means set out in Article 90 of the Staff Regulations. The complainant did not submit a request under Article 90(1) of the Staff Regulations to convoke the Invalidity Committee. In light of the foregoing, the Ombudsman considers that this aspect of the complaint requires no further inquiries.

50. As regards Parliament's alleged failure to follow the relevant procedure when, according to the complainant, the 2008 Medical Report was rejected, the Ombudsman notes that in its letter dated 6 March 2009, the Secretary-General responded to the request pointing out that the complainant was invited to have an expert (doctor) in psychiatry accompany her at the proposed meeting. However, the 2008 Medical Report submitted by the complainant was written by an expert in psychology, and, therefore, it did not appear that she would be represented or accompanied at the meeting by such an expert in psychiatry. As noted above, it is not for the Ombudsman to question the judgment of Parliament's medical service that the complainant should provide the opinion of an expert in psychiatry. He notes that the Secretary-General's response to the complainant's statement that she was invited to have with her an expert (doctor) in psychiatry merely constituted an act of communication on his part of the medical view of Parliament's Medical Service. The Ombudsman considers that Parliament's response to the complainant was reasonable.

51. The Ombudsman also underlines that Parliament did not "reject" the 2008 Medical Report. In fact, Parliament did forward the report to its Medical Service in Luxembourg. It was for the medical service to draw whatever conclusions it could from that report (see paragraph 48 above).

52. In the above circumstances, the Ombudsman considers that this aspect of the complaint requires no further inquiries.

53. As regards the allegedly indiscriminate use of the 2008 Medical Report, the Ombudsman notes that the complainant submitted it to Parliament, with a view to establishing her state of health at the time she decided to leave Parliament's services and in order to convince Parliament to alter her administrative status. It was thus appropriate for Parliament to comment on the conclusions drawn by its medical services in relation to the report.

54. As regards whether the Secretary-General was competent to offer an informed, medical opinion on the 2008 Medical Report, the Ombudsman notes that the Secretary-General did not form a "medical opinion" on the 2008 Medical Report. In fact, he simply communicated to the complainant the findings of Dr C, the Head of Parliament's Medical Service in Luxembourg, according to which the 2008 Medical Report did not contain any information that would allow the conclusion that the complainant was in a state of health which prevented her from making coherent decisions as regards opting for early retirement. He also drew the necessary administrative conclusions from Dr C's medical findings.

55. In light of the above, the Ombudsman considers that no further inquiries into this aspect of the complaint are required.

56. In her observations, the complainant also advanced the argument that Parliament neglected its duty of care when it accepted her resignation. According to her, Parliament's claim that it took the initiative to urge her to retire only after having reached the age of 50 to safeguard her interest is false. In fact, her financial interests would have been safeguarded if Parliament had transferred her to another post, instead of accepting her resignation.

57. Article 48 of the Staff Regulations provides that:

"An official who wishes to resign shall state unequivocally in writing his intention to leave the service of the institution definitively.

The appointing authority shall take its decision confirming the resignation within one month of receiving the letter of resignation. The appointing authority may, however, refuse to accept the resignation if disciplinary proceedings against the official are in progress at the date of receipt of the letter of resignation or if such proceedings are started within the following 30 days."

58. On the basis of the information contained in the file, it is obvious that the complainant wished to resign and that she had stated unequivocally in writing[15] her intention to leave the service of Parliament definitively. In such a situation, the institution concerned could only reject her request if "disciplinary proceedings against the official were in progress at the date of receipt of the letter of resignation or were started within the following 30 days". No such disciplinary proceedings existed. Thus, Parliament cannot be criticised for accepting the complainant's decision.

59. The Ombudsman notes that, while Parliament should have followed through with her request to resign within one month of those requests, it did not do so. The complainant then decided to take leave on personal grounds for eight months instead of following through with her wish to resign as an official. This extension allowed the complainant to remain an official until she reached the age of 50, when she could opt for early retirement. Parliament's delay in following through with her request to resign was clearly in the complainant's interests.

60. On the basis of his considerations above, the Ombudsman finds no instance of maladministration as regards the complainant's argument that Parliament neglected its duty of care.

The argument that Parliament failed to live up to its commitments

61. The complainant stated that the Secretary-General took the decision to close her file on the basis of the opinion rendered by the Legal Service and without taking into account her "legitimate expectations". She states that her hopes of an improvement in her situation were raised when Parliament services first mentioned the possibility of a back-dated invalidity pension. When the Secretary-General made a request in 2005 for a report on her state of mind, he acknowledged that there were grounds to investigate the irregularities surrounding her departure in January 2001. Further confirmation was given in the Secretary-General's letter dated 8 May 2007 when he offered to hold a meeting to re-examine her state of health. For that reason, he suggested that the complainant should be accompanied by an expert in psychiatry of her choice. In this context, the complainant stated that she had endeavoured to comply with this request in good faith. She contacted Dr D-M, who works in a medical environment in a hospital in Brussels, submitted his report to Parliament and asked the latter to hold the meeting in Brussels, where Dr D-M was based. She argues that the Secretary-General was "splitting hairs" by claiming that only an expert in psychiatry is a medical doctor. In addition, she argues, this was not specified by his predecessor's initial invitation to submit a report on her medical situation in 2001. When the Secretary-General informed her, by letter dated 6 March 2009, that her file was closed, he withdrew all previous offers to review her health situation.

62. In its opinion, Parliament underlined that the Secretary-General took the decision to close the complainant's file on the basis of the opinion of Dr C of Parliament's Medical Service, who, in turn, based his medical conclusions on the 2005 and 2008 Medical Reports. Therefore, the complainant's assertion that her file was closed on the basis of the Legal Service's opinion is not correct. Even though Dr D-M was not a psychiatrist, the Secretary-General decided to submit the 2008 Medical Report to Parliament's Medical Service in Luxembourg for a medical assessment. Dr C's unequivocal conclusion was that neither the 2005 Medical Report nor the 2008 Medical Report contained any information that would justify a conclusion that the complainant was not responsible for her actions at the time when she decided to take early retirement. Consequently, the Secretary-General, by renewing his predecessor's offer for an exploratory meeting, which the complainant failed to act upon, and by accepting and submitting the 2008 Medical Report for a medical assessment, did everything in his power to fulfil the expectations that the complainant had with respect to the commitments made earlier by the Secretaries-General. The complainant's argument was, therefore, unfounded.

63. In her observations, the complainant stated that she had not seen the 2005 Medical Report, while the 2008 Medical Report was drawn up specifically to support the claim that she was not in a fit state of health to make a rational decision in 2001. Without an impartial opinion from a competent medical assessor to evaluate the 2005 and 2008 Medical Reports, the opinion of Dr C of Parliament's Medical Service is unsubstantiated. Contrary to Parliament's statement, Dr C's conclusions are not unequivocal, since the latter simply questioned the validity of the 2008 Medical Report. Had a meeting been set up in accordance with the proposals of the Secretaries-General, the complainant would have been able to introduce valid and relevant statements about her own state of health in August 2000.

The Ombudsman's assessment

64. It is the Ombudsman's understanding that the complainant argues that Parliament failed to live up to its commitment to hold a meeting with her to discuss her state of health at the time she resigned as an official, and as a consequence, to review her situation. First, the Ombudsman notes that Parliament remained open to revise the complainant's situation and her resignation as an official. However, the possibility for this revision was conditional upon a medical examination and a statement on the complainant's health situation in 2001 issued by an expert in psychiatry. The Ombudsman notes in this context that the complainant was provided with a list of doctors in Luxembourg, and that, in 2005, the complainant visited Dr M, a doctor from that list, who then produced the 2005 Medical Report.

65. The Ombudsman notes the complainant's statement that "her hopes were raised" when Parliament offered to revisit the circumstances of her resignation on the basis of medical conditions. However, on the basis of the same logic, the Ombudsman fails to understand why the complainant did not comply with the request to consult a medical doctor, specifically a psychiatrist. In this regard, it is important to note that psychologists are not medical doctors.

66. Without repeating what has been discussed above, the Ombudsman finds that the complainant failed to fulfil the condition either to be accompanied by a doctor of psychiatry for the proposed meeting with Parliament's services or to provide a medical report written by such a doctor. As a result of the complainant's failure to do so, Parliament ultimately refused to meet the complainant. In these circumstances, the Ombudsman finds no maladministration as regards this aspect of the complainant's allegation.

The argument that Parliament made unfair and unfounded allegations in its letter dated 6 March 2009

67. The complainant stated that Parliament made unfair and unfounded allegations against her when, in his letter dated 6 March 2009, the Secretary-General selectively cited statements that the complainant had made about her resignation. According to the complainant, the Secretary-General did so without taking into account the tone of her letters. He also took the statements out of context. In addition, the complainant specifically referred to two statements made in a further letter sent by the Secretary-General to Mr Paul van Buitenen, a Dutch MEP. In her view, these statements constituted unfair or unfounded allegations against her. These statements were as follows:

(i) "it seems that, instead, [the complainant] expected Parliament to help her find a solution that would permit her to resign and continue life without being gainfully employed", and

(ii) "Indeed, there is no record of [the complainant] taking any steps to find a more appealing job outside of Parliament."

Finally, she states that Parliament accused her of pretending that she was subjected to harassment in 2000.

68. In its observations, Parliament pointed out that, in his letter dated 6 March 2009, the Secretary-General referred to the correspondence and discussions that took place at the time of the said statements. He expressed the view that the administration was realistic in its expectation that the complainant would look for more suitable employment, given her relatively young age. These statements, however, do not qualify as unfair or unfounded allegations.

69. In her observations, the complainant stated that Parliament ignored her point about the demoralised tone of her letters from which the Secretary-General quoted out of context. In January 2001, she was not only unwell and unfit to work, but in fact not young enough readily to find alternative employment. She maintains that the "benchmark" for age discrimination is 45. She argues, therefore, that the Administration was not realistic in its expectation.

The Ombudsman's assessment

70. The Ombudsman has carefully studied the letter in question. He does not find any statement by the Secretary-General that could be understood to be unfair or unfounded. In fact, the statements made by the Secretary-General are formulated, as expressly pointed out by him, on the basis of the documentary evidence in the possession of Parliament's services. In view of the contents of the documents that have been submitted to him with the present complaint, the Ombudsman finds that the statements of the Secretary-General provide a correct and factual account of the events preceding the letter in question.

71. As regards the complainant's point, which was clarified in her observations, that Parliament made an unsubstantiated allegation against her when it accused her of pretending that she had been subjected to harassment in 2000, the Ombudsman notes the following. In his letter dated 22 December 2008, Dr C of Parliament's Medical Service in Luxembourg wrote that the complainant's personal file did not contain any indication that she had suffered moral harassment. This factual conclusion is reiterated in the Secretary-General's letter to the complainant, dated 6 March 2009, where the former remarked that Dr C drew attention to the fact that the complainant's file does not contain any information on her being subjected to moral harassment, as she had described it previously. The Secretary-General then added that "this last factual observation only confirms the state of things shown by the absence of any indication of moral harassment at work in the correspondence that you have had with the institution since July 2000, when the alleged harassment, according to the expert report, would have begun."[16]

72. In the Ombudsman's view, the above statements are merely factual statements reflecting the fact that there is no information in the complainant's file about her having been subjected to moral harassment at work. Relatedly, the Ombudsman points out that, regardless of its type, harassment at work is a serious issue that needs to be properly recorded. The seriousness of any type of harassment requires the institutions, on the one hand, to take appropriate steps, and, on the other hand, the official concerned to make sure that the events that he or she may consider to amount to harassment are properly documented. In the present case, Parliament stated that the complainant's file contains no information in this regard. On the basis of the available documentation, the Ombudsman notes that the complainant was informed about this fact, by the Secretary-General's letter dated 6 March 2009 at the latest. The Ombudsman also notes that the complainant does not appear to have taken any steps in this regard, such as submitting a report to Parliament on the alleged harassment against her.

73. In these circumstances, the Ombudsman finds no maladministration as regards this aspect of the complainant's allegation.

74. In light of his above-mentioned findings and conclusions, the Ombudsman finds no maladministration as regards the complainant's allegation that Parliament has treated her in an unfair manner.

C. Conclusions

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

The Ombudsman finds no maladministration as regards the complainant's allegation that Parliament treated her in an unfair manner.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 6 February 2012

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[1] Since 2006, the complainant has submitted several complaints to the Ombudsman concerning her situation as an ex-official of Parliament (complaints 3494/2006/DK; 2981/2007DK; and 1652/2009/DK). The account of the events leading to the present complaint is based on the information contained in those complaints and in the present one.

[2] Her request came about in the context of a conflictive situation with Parliament. In 1998, the complainant sent several letters to her superiors, including the Secretary-General of Parliament, concerning alleged irregularities in the payment system for freelance interpreters working for Parliament. The complainant also brought her concerns to the attention of OLAF and the Court of Auditors.

[3] See footnote 2 above.

[4] The Staff Regulations of officials and the conditions of employment of other servants of the European Communities.

[5] "This report is confidential and available to the Medical Service". (translation by he Ombudsman's services.)

[6] Parliament attached to its opinion a copy of the letter it had actually received.

[7] "The attached report concluded that, in March 2001, ..." (translation by the Ombudsman's services)

[8] See Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. See also Regulation 45/2001, and in particular Article 10 thereof. See also Case C-62/90 Commission v Federal Republic of Germany [1992] ECR I-2575, paragraph 23.

[9] Article 10 ('The processing of special categories of data') of Regulation 45/2011 states that:

"1.The processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and of data concerning health or sex life, are prohibited.

2. Paragraph 1 shall not apply where:

(a) the data subject has given his or her express consent to the processing of those data, except where the internal rules of the Community institution or body provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject's giving his or her consent, or

(b) processing is necessary for the purposes of complying with the specific rights and obligations of the controller in the field of employment law insofar as it is authorised by the Treaties establishing the European Communities or other legal instruments adopted on the basis thereof, or, if necessary, insofar as it is agreed upon by the European Date Protection Supervisor, subject to adequate safeguards....

3. Paragraph 1 shall not apply where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy."

[10] See Article 2(b) of Regulation 45/2001, which provides that "‘processing of personal data’ … shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction."

[11] It should be noted that, in any event, the Secretary-General would have been entitled to presume that the Directorate-General for Personnel had obtained a copy of the 2008 Medical Report from the complainant since, in her letter to the Secretary-General, the latter indicated that a copy of her letter was sent to Mr W, then Director-General for Personnel.

[12] Article 90(1) of the Staff Regulations provides that "[a]ny person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph."

[13] It should be noted that the views of Dr C were not given in the context of an invalidity committee.

[14] Articles 9, 39, 53 and 59 of the Staff Regulations.

[15] In her letter of 31 January 2001, addressed to the Secretary-General, the complainant wrote: "I am handing back my 15-year service medal herewith because I believe that my efforts to serve the European Parliament with honour and integrity have been rejected. My career at the EU is over."

[16] Original in French: "Cette dernière constatation factuelle ne fait que confirmer l'état des choses dont fait preuve l'absence de toute mention d'un quelconque harcèlement moral au travail dans la correspondance que vous avez menée avec l'institution a partir de juillet 2000, époque a laquelle aurait commencé, selon le rapport d'expertise, le prétendu harcèlement."