Background to the complaint

1. The complainant was a Seconded National Expert (SNE) to the European External Action Service (EEAS).

2. He filed a formal complaint (the administrative complaint) with the EEAS[1], in which he claimed that, during his term as an SNE, he had been the victim of administrative violations amounting to psychological harassment.

3. The EEAS took its reasoned decision, in which it rejected the complaint as regards the alleged administrative violations. It also informed the complainant that it had forwarded his complaint to the Investigation and Disciplinary Office of the European Commission (IDOC)[2] to assess the issue of psychological harassment.

4. The EEAS sent a second letter to the complainant stating that, following IDOC’s assessment, there was no evidence supporting his allegations of psychological harassment. Thus, the EEAS closed his case.

5. The complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into how the EEAS handled the complainant’s administrative complaint.

7. In the course of the inquiry, the Ombudsman’s inquiry team received the EEAS’s written reply and also inspected the EEAS's file of the complainant’s case. The inspection report was sent to the complainant, who submitted his comments on it.

Arguments presented to the Ombudsman

8. The complainant claims that the administrative violations he raises amounted to psychological harassment. He says that the EEAS misinterpreted his arguments and it ignored completely several of his claims.

9. He also contends that the EEAS took too long to send him its second letter with the assessment of the allegations of psychological harassment.

10. He points out that the ‘EEAS Mediator’[3], whom he had consulted, had kept a record of his case. The EEAS, however, did not request that information from the Mediator when taking its decision on his administrative complaint.

11. Finally, he contests the use of the term ‘moral harassment’ in the EEAS’s second letter, as this is not, he believes, the same as the official term ‘psychological harassment’.

12. In turn, the EEAS states that it addressed comprehensively the complainant’s claims.

13. The EEAS set out the procedure it follows in order to handle any administrative complaint. Based on a platform of cooperation with the Commission’s Directorate General for Human Resources and Security (DG HR), once the EEAS’s responsible unit receives a complaint, they forward it to the responsible unit in DG HR. The latter provides an initial draft response to the EEAS, on the basis of which the EEAS prepares its reply to the complainant.

14. If the complaint also contains allegations of harassment, the responsible unit in DG HR forwards it to IDOC for its assessment. IDOC provides its assessment to the EEAS.

15. In cases of alleged harassment, the EEAS considers that it complies with the four-month deadline to reply to complainants[4], if it, within that period, informs complainants that their allegations have been sent to IDOC for assessment. IDOC has its own timelines that are beyond the EEAS’s control.

16. Moreover, to the benefit of complainants who are SNEs, the part of a complaint containing allegations of harassment is treated as a request for assistance by analogy with Article 24 of the EU Staff Regulations[5]. If the complainant is not satisfied with the EEAS’s reply, (s)he is entitled to challenge it by filing an official administrative complaint against the EEAS’s reasoned decision.

17.  Finally, the EEAS says that there is no difference in the meaning of the terms ‘moral’ and ‘psychological’ harassment[6]. In any case, the EEAS adds, it sent IDOC the original and complete version of the complaint and that only IDOC is responsible for assessing claims of harassment.

The Ombudsman's assessment

18. All personnel working in EU institutions and agencies, regardless of their status, should be protected against any attempt to undermine their dignity at work, notably via harassment. The Ombudsman is conscious of the need for all EU bodies to have strong and effective procedures in place for dealing with harassment complaints[7].

19. The Ombudsman’s role, in harassment cases, is to examine how the EU administration in question dealt with the harassment complaint.

20. In this case, the procedure in place was adequate[8] and the EEAS provided the complainant with reasonable and appropriate replies.

21. The EEAS’s reasoned decision of 1 February 2018 addressing the alleged administrative violations was reasonable, comprehensive and taken within the applicable time limit[9]. The Ombudsman finds no reasons to doubt the correctness and accuracy of the EEAS’s replies to the complainant.

22. Any person who feels that (s)he is the victim of psychological harassment must provide a degree of evidence to substantiate his or her allegations.[10] In this case, the IDOC report notes that the complainant did not substantiate his claims with any documents or witness reports. Thus, the EEAS was justified, following IDOC’s assessment, to close the psychological harassment[11] aspect of the case. It would, however, have been preferable had the EEAS used the English term ‘psychological harassment’ rather than ‘moral harassment’ when it communicated that decision to the complainant.

23. The complainant did not file an appeal against that decision.

24. The Ombudsman takes good note of the fact that the route of mediation was also open to the complainant. The Mediator, however, does not take formal decisions and acts only as a conciliator. Moreover, the information exchanged with the Mediator and any record kept is strictly confidential, which the Mediation Service cannot share with a third party[12].

25. The Ombudsman further notes the platform of cooperation between the EEAS and the Commission’s DG HR as well as the fact that the EEAS makes available to SNEs a procedure equivalent to that of the ‘request for assistance’[13]. This allows IDOC to scrutinise the case.

26. In the absence of a specific rule in that respect[14], the EEAS is invited to make that procedure known to SNEs.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European External Action Service in this case.

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

Suggestion for improvement

The European External Action Service should inform Seconded National Experts that, in cases of alleged harassment, a procedure equivalent to that of the ‘request for assistance’ under Article 24 of the EU Staff Regulations is available to them.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 07/02/2019

 

[1] The complaint was submitted according to Article 38 of the Decision of the High Representative of the Union for Foreign Affairs and Security Policy of 4 February 2014 establishing the rules applicable to national experts seconded to the EEAS (the Decision).

[2] IDOC’s task is to carry out impartial administrate inquiries with a view to establishing whether potential breaches of the Staff Regulations have occurred as well as to conduct disciplinary procedures.

[3] The EEAS Mediator has the task of providing rapid solutions to any difficulties between the administration and staff by helping to resolve disputes in a non-bureaucratic manner. The Mediator is not directly empowered to take decisions but acts as an arbitrator and conciliator. In cases of psychological harassment, the Mediator is involved in the informal procedure.

[4] See Article 38 of the Decision.

[5] Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501

[6] The EEAS says that the use of the term ‘moral harassment’ is a literal translation of the French terminology ‘harcèlement moral’, which in English corresponds to ‘psychological harassment’.

[7] See in this respect the Report of the European Ombudsman on dignity at work in the EU institutions and agencies: SI/2/2018/AMF, available here: https://www.ombudsman.europa.eu/en/correspondence/en/107799

[8] The EEAS follows the procedures set out in Commission Decision of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment, C(2006) 1624/3 (the Policy) [http://ec.europa.eu/transparency/regdoc/rep/3/2006/EN/3-2006-1624-EN-3-0.Pdf]

[9] Four months according to Article 38 of the Decision.

[10] See point 6.3 of the Policy.

[11] It is clear that IDOC and the EEAS assessed the complainant’s allegations of psychological harassment despite the use of the words ‘moral harassment’ in the EEAS’s second letter.

[12] Thus, even if the EEAS had requested such information, it would not have access to it, contrary to the complainant’s claims.

[13] Article 24 of the EU Staff Regulations.

[14] The Decision applicable to SNEs does not provide for that possibility.