Decision of the European Ombudsman on complaint 1473/99/GG against the European Central Bank

Dear Mr P.,
On 29 November 1999, you made a complaint, on behalf of Mr P., to the European Ombudsman against the European Central Bank (ECB) concerning the handling by the ECB of Mr P.'s application for the post of "Principal System Support" at the ECB.
On 2 December 1999, I forwarded the complaint to the ECB for its comments.
The ECB sent its opinion on your complaint on 28 March 2000, and I forwarded it to you on 4 April 2000, with an invitation to make observations, if you so wished. On 10 May 2000, I received your observations on the Commission's opinion.
On 8 June 2000, I wrote to the ECB in order to ask for further information in relation to the complaint. The ECB sent its reply (in English) on 18 July 2000. In view of the fact that the ECB had claimed that one of the annexes to its reply should be treated as confidential, I wrote to the ECB on 25 July 2000 in order to ask for a non-confidential version of this document. You were informed accordingly by telephone on 26 July 2000. On 1 August 2000, I sent you a copy of the German translation of the ECB's reply to my request for information that I had received on 28 July 2000 and that did not contain the said document.
On 11 August 2000, the ECB sent me a non-confidential version of the document concerned. On 29 August 2000, I forwarded a copy of the ECB's reply to my request for information and of its annexes to you with an invitation to make observations, if you so wished.
On 7 September 2000, you sent me your observations on the ECB's reply to my request for information.
I am now writing to you to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant started working for the European Monetary Institute (EMI) in 1995 as a UNIX specialist. In 1998, he was taken over by the European Central Bank (ECB). His post at the ECB was described as that of a UNIX systems co-ordinator within the Directorate General Information Services (DG-IS). In the spring of 1998, it transpired that in the context of the transfer towards the ECB, several vacant posts would have to be filled. On 10 June 1998, the complainant submitted an application for the post of 'Principal System Support'. This post was subsequently given by the ECB to another person who also worked in DG-IS. No vacancy notice had been published by the ECB.
Not having received a formal reply to his application, the complainant sent a reminder on 20 January 1999. It appears that the complainant was then informed informally that his application had been rejected. Since the complainant insisted that he should learn the reasons that had led to the rejection of his application, a meeting with the Director-General of DG-IS was held on 2 March 1999. The outcome of this meeting did not satisfy the complainant. On 21 April 1999, the complainant therefore lodged an appeal with the President of the ECB. He claimed that leading positions at the ECB had been filled on the basis of nationality and private friendship rather than on professional grounds. The complainant queried the view of the Director-General of DG-IS according to which the successful candidate had been appointed having regard, among other aspects, to his previous supervisory experience gained as Support Team Leader and Deputy Head of Section and to his wide-ranging technical knowledge appropriate to the position. According to the complainant, the successful candidate neither had a university degree nor had he completed any comparable form of further education. It appears that this candidate came from one particular National Central Bank (NCB), just like a number of other staff at DG-IS including the Director-General himself. In the complainant's view, nepotism had been the main factor explaining the appointment of the successful candidate. The complainant claimed that his application had not been processed but ignored. He concluded by asking for an unbiased audit of the personnel policy of the DG-IS management.
The ECB decided that the allegations were so serious that it was appropriate to have a special investigation conducted by an outside expert, a former Director at the European Investment Bank. This expert examined what he considered to be the relevant evidence and heard some of the persons involved. He concluded that there had been some problems but that the principles of good administration had been respected. It appears that the expert did not examine the complainant's allegation that the successful candidate did not fulfil the criteria allegedly relevant for the filling of the post.
On 30 September 1999, the complainant made further submissions to the President of the ECB. He claimed that a systematic bias in favour of candidates from one NCB had developed for promotions within DG-IS. The complainant also criticised the fact that the ECB still did not have any generally applicable instructions for the recruitment procedure. Finally, he claimed that there was widespread dissatisfaction among staff working in DG-IS and that a significant number of persons had left already. The complainant also asked to be provided with a copy of the report drawn up by the special investigator and of the terms of reference under which he had carried out his work.
In a letter of 4 November 1999, the President of the ECB rejected the complainant's appeal. A copy of the report drawn up by the special investigator and of a letter from the President of the ECB to the investigator of 22 June 1999 setting out the latter's tasks were provided to the complainant.
The complainant then turned to the Ombudsman. In his complaint, he made the following allegations:
(1) The ECB failed to fill the relevant post via an orderly, objective procedure. No vacancy notice was published. Neither the profile of the post nor the bandwidth of salary foreseen for it had been made known beforehand.
(2) The post ought to have been filled with the participation of the Personnel Directorate. The Staff Committee should also have been consulted.
(3) The post was filled on the basis of nationality and private friendship. Nepotism was the main factor for the appointment. The candidate appointed did not meet the criteria set out in the Director General's e-mail to the complainant of 2 March 1999.
(4) The ECB failed to reply to the job application of the complainant and to give reasons for its decision.
(5) The grievance procedure was not handled objectively. The complainant was not heard before his appeal was rejected.
The complainant asked the Ombudsman to hear Mrs C. who would be able to give evidence regarding what had happened in DG-IS on the occasion of the transition from the European Monetary Institute to the ECB.

THE INQUIRY

The opinion of the European Central Bank
In its opinion, the ECB made the following comments:
The ECB was established on 1 June 1998. The organisational structure of the new institution was decided by the Executive Board on 8 June 1998. All ECB Directorates were under considerable pressure to finalise the preparations for the start of Stage Three of Monetary Union on 1 January 1999 and, therefore, the transition of staff from the EMI to the ECB had to be effected in all urgency. No vacancy notice for the position concerned was published, nor indeed were notices published for any of the more than 30 such senior ECB staff positions created when the ECB began to work. The procedure adopted throughout the ECB was that staff could indicate their interest in a principal position through the "transfer form" used in the transition from the EMI to the ECB. The complainant had been aware of the vacancy and indeed applied for it in line with this procedure. It was standard practice at the ECB - and had been at the EMI - not to publish the salary band allocation of positions in vacancy notices. However, the salary structure was available to the ECB's staff and the complainant could have obtained additional information without any effort.
Since no applications for the post concerned had been received from candidates outside DG-IS, the Directorate Personnel had informed the management of DG-IS that they could evaluate all applications, interview all suitable candidates and subsequently make a recommendation for appointment. This recommendation was forwarded to Directorate Personnel following normal procedures for the appointment of staff to new positions. The ECB did not share the complainant's view that the Staff Committee should be involved in individual recruitment.
As regards the allegation that the relevant position had been filled on the basis of nationality bias, private friendship and nepotism, the ECB referred to the conclusions of the independent investigator. The complainant had not put forward any arguments to support the conclusion that the person appointed did not meet the relevant criteria. The person appointed had de facto performed the duties of this position already at the EMI.
An interview with the complainant had taken place on 16 June 1998, and he had been informed orally that he had not been successful. The complainant's application had thus been dealt with. On 20 January 1999, the complainant had for the first time requested an explanation as to why his application had been unsuccessful. This request was taken into consideration during the meeting that took place on 2 March 1999.
The special investigator had carried out his work in complete independence and had spoken to the complainant on three occasions during his investigation. The ECB's Conditions of Employment and Staff Rules neither preclude nor prescribe that the opportunity is given in a grievance procedure to present the case orally to the decision-making body. The complainant had not made a request to be heard orally.
On the basis of the above elements, the ECB took the view that the decision on the appointment of the Principal Systems Support was taken on justified and legitimate grounds and that the complainant's allegations were unfounded.
The complainant's observations
In his observations, the complainant made the following comments:
Principal positions at the ECB had been filled without any prior publication of notices of vacancy. The fact that the ECB had complied with its so-called "official procedure" could not remedy this defect. The EMI was meant to prepare the setting-up of the ECB. The latter could therefore hardly be allowed to rely on the lack of time in order to justify its actions.
The person appointed had not held a comparable position at the EMI. He had only been Supervisor at the Help Desk. The new position at the ECB was now called Principal Operations and Help Desk, and the person holding this position had been hired from a NCB as a technical documentalist only weeks before.
The complainant had not been interviewed on 16 June 1998 or at any other time.
The ECB's Staff Rules invoked by the ECB were illegal since they ought to have been adopted by the Governing Council of the ECB, not its Executive Board, and since they had not yet been discussed with the Staff Committee.

FURTHER INQUIRIES

Request for further information
In view of the above, the Ombudsman concluded that he needed further information in order to deal with the complaint. He therefore asked the ECB to provide more specific information regarding the following points:
(1) the reasons why it considered that it was not necessary or possible to publish a vacancy notice for the post concerned;
(2) whether the post concerned was filled on the basis of a contract for an indefinite period and, if so, why the ECB had considered that despite the special circumstances present at the relevant time it was not appropriate to fill the post on a temporary basis; and
(3) the interview with the complainant regarding the post concerned that according to the ECB had been held on 16 June 1998.
The ECB's reply
In its reply, the ECB stressed that in the transition from the EMI to the ECB, a substantial number of new posts had been created. In order to facilitate the transition, it was decided that all EMI members of staff would be offered a position by the ECB, which would then be reserved for them. At the same time staff were informed of all 'free' positions (i.e. positions not offered to a member of staff) and invited to make their interest known. In this process, all Managerial and Principal positions were not published as 'free' positions, and many of these positions were initially pre-nominated by relevant EMI Senior Management. However, all staff were given the opportunity to indicate their interest to be considered for Principal positions, following which an assessment by management would take place to determine whether the member of staff qualified for the position. Accordingly, the complainant indicated his interest for the position concerned and was interviewed, but found not to be suitably qualified for the post. The ECB further informed the Ombudsman that the relevant position had been filled on the basis of a contract for an indefinite period since it was general practice to limit the conclusion of contracts for definite periods to project-related work or in case of uncertainty about the future workload, none of which applied in the present case. Finally, the ECB provided a memorandum of 16 June 1998 reporting on an interview held with, amongst others, the complainant.
The ECB also commented on the complainant's observations. It claimed that the process of filling the relevant position had been transparent and fair. The ECB also pointed out that it was in the process of reviewing the allocation of positions to salary bands and intended to include the salary band in internal vacancy notices. According to the ECB, the allegations of the complainant regarding the antecedents of the candidate preferred to him were manifestly incorrect.
The ECB further provided a note to staff of 24 April 1998 together with guidelines for the transfer from the EMI to the ECB with further information.
Finally, the ECB pointed out that the complainant's claim that its Staff Rules were illegal had been raised in Case T-333/99 and was therefore sub iudice. However, the ECB submitted that the complainant's claim was unfounded in any event.
The complainant's observations
In his observations, the complainant re-iterated his claim that no interview regarding the relevant position had been carried out with him on 16 June 1998 or at any other time.

THE DECISION

1 Scope of the inquiry
In his observations on the opinion provided by the European Central Bank ("ECB"), the complainant claimed that the ECB's Staff Rules were illegal. The ECB took the view that this claim had also been submitted to the Court of First Instance in Case T-333/99 and was thus sub judice. It also expressed the view that this claim was unfounded in any event. Given that this claim had not been raised in the initial complaint and that there were indications that it had been submitted to the Court of First Instance, the Ombudsman considered that it should not be dealt with in the present decision.The complainant asked the Ombudsman to hear Mrs C. who would be able to give evidence regarding what had happened in DG-IS on the occasion of the transition from the European Monetary Institute to the ECB. However, the Ombudsman considers that the information presented by the complainant and the ECB is sufficient for a proper assessment of the case and that therefore it is not necessary to proceed to hearing the witness named by the complainant.
The complainant asked the Ombudsman to hear Mrs C. who would be able to give evidence regarding what had happened in DG-IS on the occasion of the transition from the European Monetary Institute to the ECB. However, the Ombudsman considers that the information presented by the complainant and the ECB is sufficient for a proper assessment of the case and that therefore it is not necessary to proceed to hearing the witness named by the complainant.
2 Failure to fill the relevant post via an orderly, objective procedure
2.1 The complainant applied for a position of "Principal System Support" in the Directorate-General Information Services ("DG-IS") of the ECB. However, the ECB appointed another candidate. The complainant claims that the ECB failed to fill the relevant post via an orderly, objective procedure. He stresses in particular the fact that no vacancy notice was published. The complainant also claims that neither the profile of the post nor the bandwidth of salary foreseen for it had been made known beforehand.
2.2 The ECB points out that it was established on 1 June 1998 and that a decision on its organisational structure was taken on 8 June 1998. According to the ECB, all its Directorates were under considerable pressure to finalise the preparations for the start of Stage Three of Monetary Union on 1 January 1999 and, therefore, the transition of staff from the EMI to the ECB had to be effected in all urgency. No vacancy notice for the position concerned was published, nor indeed were notices published for any of the more than 30 such senior ECB staff positions created at the inception of the ECB. The procedure adopted throughout the ECB was that staff could indicate their interest in a principal position through the "transfer form" used in the transition from the EMI to the ECB. The ECB claims that the complainant had been aware of the vacancy and indeed applied for it in line with this procedure. It was standard practice at the ECB - and had been at the EMI - not to publish the salary band allocation of positions in vacancy notices. However, the salary structure was available to the ECB's staff and the complainant could have obtained additional information without any effort.
2.3 The Ombudsman considers that principles of good administration oblige the institutions and bodies to have recourse to an appropriate and transparent procedure when filling their posts. In principle, a vacancy notice should therefore be drawn up and published whenever such a position falls to be filled. However, the ECB has explained that it was only founded in June 1998 and that there had been considerable pressure to finalise the preparations for Stage Three of Monetary Union that was due to commence on 1 January 1999. There is no evidence to suggest that it would have been possible to fill these posts prior to the date on which the ECB came into being. The Ombudsman therefore considers that in view of the exceptional circumstances prevailing at the relevant time the ECB's decision to fill the relevant position without prior publication of a vacancy notice does not appear to be unreasonable as such, provided that the approach actually chosen by the ECB allowed interested candidates to obtain sufficient information about the positions to be filled and to submit applications for these positions.
2.4 In its reply to the Ombudsman's request for information, the ECB has provided further information regarding the procedure it had used for filling the position to which the complainant had aspired and the other positions for which no vacancy notice had been published. The ECB explained that it had been decided that all EMI members of staff would be offered a position by the ECB, which would then be reserved for them. At the same time staff had been informed of all 'free' positions (i.e. positions not offered to a member of staff) and invited to make their interest known. In this process, all Managerial and Principal positions had not been published as 'free' positions, and many of these positions had initially been pre-nominated by relevant EMI Senior Management. However, all staff had been given the opportunity to indicate their interest to be considered for Principal positions, following which an assessment by management would take place to determine whether the member of staff qualified for the position. Accordingly, the complainant had indicated his interest for the position concerned and had been interviewed, but found not to be suitably qualified for the post.
2.5 It emerges from the documents submitted to the Ombudsman that on 28 April 1998 the complainant expressed an interest in the "Principal - Systems Support" position. On 10 June 1998, the complainant submitted a formal application for this post. It thus appears that the complainant was aware of the position to be filled and was able to apply for it. It seems that the salary band allocation of the position concerned was not known to the complainant. However, the ECB has explained that the salary structure had been available to the ECB's staff and that the complainant could have obtained additional information without any effort. The alleged lack of information on the salary to be offered for the relevant position did in any event not prevent the complainant from applying for this position.
2.6 The Ombudsman therefore considers that, given the exceptional circumstances prevailing at the relevant time, the system used by the ECB for filling the position concerned and other principal positions does appear to be reasonable.
2.7 On the basis of the above, there appears to have been no maladministration on the part of the European Central Bank in so far as the first allegation put forward by the complainant is concerned.
3 Lack of participation of the Personnel Directorate and the Staff Committee
3.1 The complainant claims that the relevant post ought to have been filled with the participation of the Personnel Directorate and that the Staff Committee should also have been consulted.
3.2 The ECB explains that since no applications for the post concerned were received from candidates outside DG-IS, the Directorate Personnel informed the management of DG-IS that they could evaluate all applications, interview all suitable candidates and subsequently make a recommendation for appointment. This recommendation was forwarded to Directorate Personnel following normal procedures for the appointment of staff to new positions. The ECB also stresses that it does not share the complainant's view that the Staff Committee should be involved in individual recruitment.
3.3 The Ombudsman considers that even if it might have been helpful to involve the ECB's Directorate Personnel in the process of filling the position concerned, the explanations provided by the ECB appear to be satisfactory. Furthermore, the Ombudsman considers that the ECB's view according to which the Staff Committee should not be involved in individual recruitment does not appear to be unreasonable.
3.4 In these circumstances, there appears to have been no maladministration on the part of the European Central Bank in so far as the second allegation put forward by the complainant is concerned.
4 Improper reasons for filling post
4.1 The complainant claims that the relevant post was filled on the basis of nationality and private friendship and that nepotism was the main factor for the appointment. He also submits that the candidate appointed did not meet the criteria for appointment to this position.
4.2 The ECB stresses that it took the unprecedented step of appointing an outside expert, a former Director at the European Investment Bank, to examine the complainant's allegation. The ECB refers to the conclusions of this expert according to which the principles of good administration had been respected.
4.3 Ombudsman notes that the expert appointed by the ECB arrived at the conclusion that the complainant's allegation could not be regarded as proven. In his complaint to the Ombudsman, the complainant seems to rely on two considerations in order to establish his claim that the successful candidate had been appointed on the basis of nepotism, namely the nationality and the qualifications of this person. However, the mere fact that the successful candidate had the same nationality as the Director-General of DG-IS does not appear to be conclusive in this regard. In so far as the second consideration is concerned, the complainant puts forward the argument that the successful candidate neither had a university degree nor any comparable form of further education. The Ombudsman considers, however, that these circumstances do not prove that the person appointed did not meet the relevant criteria.
4.4 Thus there appears to have been no maladministration on the part of the European Central Bank in so far as the third allegation put forward by the complainant is concerned.
5 Failure to handle the job application properly
5.1 The complainant claims that the ECB failed to handle his application for the position concerned properly. He submits that he was not interviewed for the position, that he did not receive a reply to his job application and that the ECB did not give any reasons for his decision not to appoint him.
5.2 The ECB claims that an interview with the complainant took place on 16 June 1998, and that the complainant was informed orally that he had not been successful.
5.3 The ECB has submitted an internal note dated 17 June 1998 that refers to an interview with the complainant on 16 June 1998 and summarises this interview. The Ombudsman considers that this document appears to constitute evidence in support of the ECB's claim that an interview with the complainant that concerned his application for the relevant position was indeed carried out on 16 June 1998. The complainant maintains that no such interview took place. However, the complainant has not put forward any evidence that would refute the evidence submitted by the ECB.
5.4 The ECB does not appear to deny that no formal reply was given to the complainant regarding his application for the job at the time. It would have been good administrative practice for the ECB to reply in writing and in good time to the complainant's application. The complainant does however not appear to call into doubt the ECB's claim that he was informed orally that he had not been successful. Furthermore the complainant must have been aware of the fact that another person had been appointed to the post. The Ombudsman therefore considers the ECB's behaviour in the present case to be acceptable.
5.5 Finally, in the case of a decision rejecting a candidature, the appointing authority is, according to established case-law, bound to give a statement of reasons, at the very least when it rejects a complaint about such a decision(1). The Ombudsman notes that in the present case explanations appear to have been given to the complainant on the occasion of a meeting on 2 March 1999. Further explanations were given in the decision of the ECB's President of 4 November 1999 rejecting the complainant's appeal. The ECB would thus appear to have complied with its obligation to provide reasons for its decision to reject the complainant's application.
5.6 In these circumstances, there appears to have been no maladministration on the part of the European Central Bank in so far as the fourth allegation put forward by the complainant is concerned.
6 Failure to handle the grievance procedure properly
6.1 The complainant claims that his grievance procedure was not handled objectively and that the ECB failed to hear him before rejecting his appeal.
6.2 The ECB points out that the special investigator carried out his work in complete independence and spoke to the complainant on three occasions during his investigation. According to the ECB, its Conditions of Employment and Staff Rules neither preclude nor prescribe that the opportunity is given in a grievance procedure to present the case orally to the decision-making body. The ECB claims that the complainant did not make a request to be heard orally.
6.3 The ECB informed the Ombudsman that the mandate given to the special investigator was laid down in a letter sent to this investigator by the ECB's Director Personnel on 22 June 1999. According to this letter, the investigator was to examine the allegations made by the complainant in relation to the appointment of the Principal - Systems Support. In his report dated 22 August 1999, the special investigator declared that his report had been prepared "in complete independence", within the framework of the mandate given to him. A copy of both these documents was enclosed in the letter of the ECB's President sent to the complainant on 4 November 1999. In the Ombudsman's view, the complainant has not submitted any evidence that would establish his allegation that the grievance procedure was not handled objectively.
6.4 In so far as the complainant's right to be heard is concerned, the Ombudsman considers that the explanations provided by the ECB are reasonable. The expert appointed by the ECB spoke to the complainant on three occasions during his investigation. The complainant does not deny that he never asked to be heard orally before the President of the ECB decided on his appeal.
6.5 In these circumstances, there appears to have been no maladministration on the part of the European Central Bank in so far as the fifth allegation put forward by the complainant is concerned.
7 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration on the part of the European Central Bank. The Ombudsman therefore closes the file.
The President of the European Central Bank will also be informed of this decision.
Yours sincerely
Jacob Söderman

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(1) Cf. Case T-52/90 Volger v Parliament [1992] ECR II-121 paragraph 36 and Case T-158/94 Brunagel v Parliament [1996] ECR-SC II-1131 paragraph 107.