Decision of the European Ombudsman on complaint 1335/99/ME against the European Commission

Dear Mr H.,
On 2 November 1999, you made a complaint to the European Ombudsman concerning relations between the European Commission and the Commission official Mr van Buitenen.
On 17 January 2000, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 17 May 2000 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

In November 1999, the complainant lodged a complaint with the European Ombudsman concerning the non-reinstatement of and the disciplinary actions taken against the Commission official Mr van Buitenen in connection with the European Commission's resignation. The complainant put forward the following allegations:
1 The Commission should have reinstated Mr van Buitenen and admitted that it acted administratively wrong.
2 The Commission shall remove the formal reprimand from Mr van Buitenen's personal file.

THE INQUIRY

The Commission's opinion
The complaint was forwarded to the Commission who made the following statements:
1 The Commission pointed out that, no official has a guarantee to remain in his job and that a change must be in the interest of the service. In addition, all officials are free to apply for any vacant post. The Commission explained firstly, that in the interest of the service, Mr van Buitenen was reinstated in Directorate General "Personnel and Administration", a position corresponding not only with his grade but also with his educational capacities and experiences in the accounting field. Secondly, Mr van Buitenen himself had not objected to the transfer. Furthermore, Mr van Buitenen had since then been transferred to a position in the Directorate General "Health and Consumer Protection" following his application for this post.
2 Concerning the second allegation, the Commission stated that by transmitting documents to a body outside the Commission, Mr van Buitenen acted in breach of the Staff Regulations. However, the Commission found that the deficiency of the rules on the reporting of wrong-doing in force at the time constituted an extenuating circumstance in relation to Mr van Buitenen's offence. With this in mind, the second most moderate penalty available was imposed and the Commission noted that a formal reprimand can be removed from the file of an official after three years.
The complainant's observations
The Commission's opinion was sent to the complainant who was invited to submit observations. No observations appear to have been received from the complainant.

THE DECISION

1 The reinstatement
1.1 The complainant alleged that the Commission should have reinstated Mr van Buitenen and admitted that it acted administratively wrong.
1.2 The Commission stated that Mr van Buitenen was reinstated in a position which corresponded with his grade and educational capacities and experiences in the accounting field. Mr van Buitenen himself had not objected to the transfer. Moreover, Mr van Buitenen had since then been transferred to a position in the Directorate General "Health and Consumer Protection" following his application for this post.
1.3 The complainant alleged that the Commission should have reinstated Mr van Buitenen. The Ombudsman notes that Mr van Buitenen was reinstated by the Commission. According to the Commission, Mr van Buitenen was reinstated in a post that conformed to his grade and educational capacities and experiences. The Commission also informed the Ombudsman that Mr van Buitenen did not object to the transfer and that he today holds a new position for which he himself successfully applied.
1.4 Therefore, the Ombudsman finds that there is no instance of maladministration in relation to this aspect of the case.
2 The deletion of the formal reprimand
2.1 The complainant demanded that the formal reprimand be removed from Mr van Buitenen's personal file.
2.2 The Commission stated that Mr van Buitenen had breached the Staff Regulations but it found that the deficiency of the rules on the reporting of wrong-doing in force at the time constituted an extenuating circumstance in relation to Mr van Buitenen's offence. With this in mind, the second most moderate penalty available was imposed. The reprimand can be removed from the file of an official after three years.
2.3 The Ombudsman notes that it is for the Appointing Authority to choose the appropriate penalty(1). In the present case, there is no indication that the Commission did not act within its legal authority.
2.4 Therefore, the Ombudsman finds that there is no instance of maladministration in relation to this aspect of the case.
3 Conclusion
On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob Söderman

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(1) 46/72, Robert de Greef v. Commission, [1973] 543, paragraphs 45-46, 228/83, F v. Commission, [1985] 275, paragraph 34 and T-146/89, Calvin Williams v. Court of Auditors, ECR [1991] II-1293, paragraph 83.