The background to the complaint

1. The present case concerns (i) the Commission's handling of a complaint about alleged discrimination on the grounds of ethnic origin and related issues in the Erasmus exchange programme and (ii) a related request for access to documents.

2. The complainant is a Finnish citizen with a Roma background. At the relevant time, she was a student at a higher education institution in Finland (hereinafter referred to as the 'home institution'). In 2011, she took part in the Erasmus exchange programme[1]. During her exchange, she studied at a higher education institution in the Netherlands (hereinafter referred to as the 'host institution').

3. The complainant's exchange was terminated early after she attacked a fellow student at the host institution. The complainant took the view that the termination was the result of her Roma background, given that a number of fellow students with no ethnic minority background were allowed to stay on, even though they had attacked her first three times.

4. In November 2011, the complainant's sister brought the matter to the attention of the European Commission and to the National Agencies[2] of Finland and the Netherlands. She asked them to take appropriate action. The Commission discussed the complaint with both National Agencies involved. It concluded that there was no indication, on the basis of the evidence provided to it, that the terms of the Erasmus University Charter[3] had been violated.

5. On 26 March 2012, the complainant wrote again to the Commission and requested access to documents sent to it by the home and host institutions in relation to her case. She was not satisfied with the Commission’s response.

6. On 10 June 2012, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. The Ombudsman opened an inquiry into the following allegations and claims:

Allegations

(1) The Commission failed properly (i) to clarify the factual background on which it based itself in the complainant's case; (ii) to ensure that the complainant's rights were properly protected; and (iii) to investigate the complainant's submissions on discrimination based on ethnic origin.

(2) The Commission failed to grant the complainant access to the documents she requested on 26 March 2012.

Claims

(1) The Commission should provide the complainant with a detailed explanation of how it dealt with her case regarding her expulsion from her host institution.

(2) The Commission should grant the complainant access to the documents she requested on 26 March 2012.

The inquiry

8. On 11 July 2012, the Ombudsman invited the Commission to submit an opinion on the allegations and claims mentioned above. The Commission sent its opinion on 28 November 2012.

9. The Commission's opinion was forwarded to the complainant for observations. The complainant submitted observations on the Commission's opinion on 4 December 2012 and on 3 January 2013. The complainant's sister also submitted observations on the Commission's opinion on 4 December 2012, expressing essentially the same views as the complainant.

The Ombudsman's analysis and conclusions

Preliminary remarks

10. The complainant’s observations contained a number of grievances about the way the home institution, the host institution and the National Agencies dealt with her case. She also seemed to suggest that the Ombudsman should inquire as to whether the national laws of the Netherlands and Finland were properly respected. These grievances fall outside the Ombudsman’s mandate, which Article 2(1) of her Statute limits to the institutions, bodies, offices and agencies of the European Union.

11. The complainant’s observations also appeared to question the timeliness of the Commission's action in her case. However, the complainant does not appear to have brought this grievance to the Commission's attention before raising it with the Ombudsman, as required by Article 2(4) of her Statute. This allegation is thus, at present, inadmissible. In any event, the time taken by the Commission seems reasonable.

A. Allegation that the Commission failed properly to clarify the factual background of the case, to ensure that the complainant's rights were properly protected, and to investigate the complainant's submissions on discrimination based on ethnic origin and first claim

Arguments presented to the Ombudsman

12. In her complaint, the complainant alleged that the Commission failed properly (i) to clarify the factual background on which it based itself in the complainant's case; (ii) to ensure that her rights were properly protected; and (iii) to investigate her submissions on discrimination based on ethnic origin. She claimed that the Commission should provide her with a detailed explanation of how it dealt with her case regarding her expulsion from her host institution.

13. In its opinion, the Commission pointed out that the case was extremely complex and unusual, considering that 235,000 Erasmus students move across Europe every year. It explained that it clarified the factual background of the case in its e-mails of 13, 28 and 29 November 2011 to the complainant. More specifically, the Commission's services contacted both the Dutch and Finnish National Agencies to ask for information about the action they had taken to investigate the case and to review it. The Commission also checked whether both of the National Agencies had acted in accordance with their respective obligations and responsibilities. It added that it understood that both the home and host institutions, and, at least initially, also the complainant, appeared to have come to the common conclusion that the best solution for all parties involved was to terminate the complainant's Erasmus exchange at the host institution earlier than originally foreseen.

14. As regards the issue of the protection of the complainant's rights, the Commission explained that, as it emerged from the report prepared by the home institution, the complainant had received a copy of the Erasmus Student Charter before her departure to the Netherlands. The Charter specifies in particular that students should respect the rules and regulations of the host institution and clarifies how to proceed if problems arise. In the case at hand, the complainant suggested herself by e-mail that she interrupt her stay at the host institution and considered that this was the best solution in the given circumstances, even though she later changed her mind. The Commission enclosed a copy of that e-mail with its opinion. It added that, even if the complainant retracted her initial decision to interrupt her exchange, she did not appear to contest the facts on which the decision was based. In this context, the Commission also pointed out that the internal rules of the host institution do not tolerate physical or psychological harassment.

15. The Commission further explained that it ensured that the complainant received all the necessary information regarding the contact persons and her exchange. Based on its review of the investigation carried out by the National Agencies and the supporting documents they provided, the Commission concluded that the complainant was given various opportunities to discuss her case in order to find the best possible outcome, even though it appeared that she did not always make the best use of them. Furthermore, when the complainant was asked by her contact person at the host institution to have a discussion in order to clarify the facts reported by the other students, she confirmed that the other students were telling the truth. The Commission enclosed a copy of the complainant's e-mail dated 23 March 2012, which included such a statement made by the complainant. The Commission added that the complainant contested that finding only later.

16. Concerning the complainant's argument that the Commission failed properly to investigate her submissions regarding discrimination based on ethnic origin, the Commission pointed out that both National Agencies confirmed to it that the Erasmus University Charter had been respected in the present case. The Commission enclosed a letter sent by the host institution to the complainant on 21 October 2011, from which it emerged that the decision of the host institution was exclusively based on the breach of the institution's rules on physical and psychological harassment by the complainant. The decision was thus not linked to the ethnic origin of the complainant. Both National Agencies and the competent anti-discrimination bodies in the Netherlands and Finland also concluded that no discrimination had occurred. The Commission finally stated that in order to be helpful to the complainant, it provided her with the contact details of the competent Dutch authority and also gave her information about European anti-discrimination law.

17. In her observations, the complainant essentially reiterated her view that it was not fair that she was expelled from the host institution, whereas the fellow students who had attacked her first were not. She also disputed the Commission's statements that she agreed to leave voluntarily and that she was heard and given advice before the decision to terminate her exchange was taken. As regards the issue of the protection of her rights, she argued that the host institution never agreed to give her contact details of the superior of the staff member with whom she exchanged correspondence. Finally, she also took the view that the Commission's statements were not based on any evidence.

The Ombudsman's assessment

18. At the outset, the Ombudsman notes that it follows from the relevant provisions of the Erasmus Student Charter[4] that Erasmus students are expected to "[s]pend the full study/placement period as agreed at the host university/enterprise, including undergoing the relevant examinations or other forms of assessment, and respect its rules and regulations" (emphasis added). The institutions taking part in the Erasmus exchange programme must, among other things, "comply with the objectives on non-discrimination set out in the Lifelong Learning Programme"[5] (emphasis added).

19. In this respect, given that (i) the implementation of the Erasmus programme falls within the competence of the National Agencies, and (ii) only the competent national authorities can carry out an investigation of individual cases, the Ombudsman takes the view that the Commission's role in cases such as the present one is limited to checking whether the relevant rules of the Erasmus University Charter and the Erasmus Student Charter have been respected. The Ombudsman will thus analyse the complainant's arguments against this background.

20. As regards the complainant's argument that the Commission failed properly to clarify the factual background on which it based itself in her case, the documents provided by the Commission show that the latter (i) was informed about the complainant's case by the complainant herself and (ii) subsequently established contacts with the National Agencies. On the basis of the information the Commission received, which it described in its correspondence with the complainant and in its opinion, the Commission formed the opinion that no violation of the Erasmus University Charter was at stake. The complainant's argument that the Commission's action was not based on any evidence is thus not convincing. It follows that the Ombudsman cannot conclude that the Commission failed properly to clarify the factual background of the complainant's case.

21. As regards the complainant's argument that the Commission failed to ensure that her rights were properly protected, it emerges that the Commission took steps, by making contact with the competent National Agencies, to verify that the complainant's rights were protected. In fact, it would appear from the documents submitted by the Commission that the complainant was heard and given advice by those bodies. The Commission, in addition, gave further advice to the complainant. The Ombudsman concludes that the complainant's argument is thus not convincing.

22. As regards the complainant's argument that the Commission failed to investigate her submissions on discrimination based on ethnic origin, it emerges from the documents that the Commission made contacts with the National Agencies and then, on the basis of the information obtained, formed the opinion that the complainant had not been discriminated against on the grounds of ethnic origin. Besides, when forming its opinion, it also took into account that two anti-discrimination bodies had investigated her case and had concluded that no discrimination based on ethnic origin could be established. It furthermore emerges from the documents submitted that the precise facts of the events leading to the premature termination of the complainant's stay at the host institution have been assessed by the competent national bodies, including by way of an attempt at arbitration involving all students who had taken part in the exchange. Given the Commission's limited role in assessing individual cases, the Ombudsman concludes that the Commission's conduct cannot be criticised in this respect.

23. In light of the foregoing, the Ombudsman concludes that there was no maladministration in the Commission's activities as regards the complainant's first allegation. The complainant's related claim can thus not succeed.

B. Allegation that the Commission failed to grant the complainant access to the documents she requested and second claim

Arguments presented to the Ombudsman

24. In her complaint, the complainant alleged that the Commission failed to grant her access to the documents she requested on 26 March 2012. The scope of her request concerned the documents that the Commission had received from her home and host institutions in relation to her case.

25. In its opinion, the Commission explained that, following the complainant's request of 26 March 2012, it replied to her that she had already received all the documents in the Commission's possession falling within the scope of her request. The document from her host institution, a copy of which was annexed to the opinion, had been transmitted by the complainant herself to the Commission's services in October 2011. The Finnish-language report from her home institution had been sent directly to the complainant by the Finnish National Agency in October 2011. The Commission's services were informed orally about the content of this report in November 2011 through their contacts with the Finnish National Agency and subsequently received an unofficial English translation of the report, which was annexed to the Commission's opinion, from the Finnish National Agency in May 2012. Finally, the written overviews provided by the two National Agencies, which confirmed the information communicated orally to the Commission's services in reply to their enquiries, were also enclosed with the Commission's opinion.

26. In her observations, the complainant appeared to invite the Ombudsman to ask for "evidence" that the Commission had provided her with the requested documents.

The Ombudsman's assessment

27. The Ombudsman recalls that the scope of the complainant's access request concerned documents sent to the Commission by the home and host institutions in relation to her case. In its opinion, the Commission explained that it identified four documents as falling within the scope of the complainant's request: (i) a document from her host institution; (ii) a report prepared by her home institution; and (iii) written overviews prepared by the National Agencies of Finland and the Netherlands.

28. In its opinion, the Commission further explained that as regards the document referred to in point (i), the complainant herself had submitted a copy of it to the Commission. The original Finnish version of the document referred in point (ii) had been sent by the Finnish National Agency to the complainant in October 2011. The Commission received an unofficial English translation of that document in May 2012. The translation was enclosed with the Commission's opinion, which the Ombudsman forwarded to the complainant. The two documents referred to in point (iii) above were also enclosed with the Commission's opinion.

29. The Ombudsman considers that it appears that the Commission initially did not fully address the complainant's access request. However, she also notes that, in the meantime, the Commission has made all the documents covered by the complainant's access request available to the complainant. In her observations, the complainant did not dispute this but nevertheless asked for "evidence". In this respect, the Ombudsman notes that the documents enclosed with its opinion show that the Commission has now disclosed the documents to the complainant.

30. In light of the foregoing, the Ombudsman concludes that there are no grounds for further inquiries in relation to the complainant's second allegation and the related claim.

C. Conclusions

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

As regards the complainant's first allegation and the related claim, there was no maladministration in the Commission's activities.

As regards the complainant's second allegation and the related claim, there are no grounds for further inquiries.

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

 

Emily O'Reilly

Done in Strasbourg on 20 November 2013

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[1] 'Erasmus' is the EU's education and training programme enabling students to study and work abroad. In addition, it funds cooperation between higher education institutions across Europe.

[2] The role of the National Agencies is to ensure implementation of the Erasmus programme on the national level. Each Member State has a National Agency.

[3] http://ec.europa.eu/education/erasmus/documents/eucstandard_en.pdf

[4] http://ec.europa.eu/education/erasmus/erasmus-student-charter_en.htm

[5] See footnote 3 above.