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Decision of the European Ombudsman on complaint 652/2000/GG against the European Commission


Strasbourg, 14 May 2001

Dear Mr C.,

On 4 May 2000, you lodged a complaint with the European Ombudsman against the European Commission in which you claimed that you had been discriminated against, given that the latter had awarded you no better grade than B3, step 3 when it took you on as a temporary agent.

On 23 May 2000, I forwarded the complaint to the Commission. The Commission sent its opinion on 10 October 2000, and I forwarded it to you on 12 October 2000 with an invitation to make observations, if you so wished. On 18 October 2000, you sent me your observations on the Commission's opinion which were however only received by me on 28 November 2000.

On 5 December 2000, I sent a request for further information to the Commission. The Commission replied on 1 March 2001, and I forwarded this reply to you on 5 March 2001, with an invitation to make observations. On 23 April 2001, I received your observations.

I am now writing to you to let you know the results of the inquiries that have been made.


THE COMPLAINT

In 1997, the Commission advertised temporary B3/B2 posts for fisheries inspectors. The complainant is an Irish national who was selected for one of these posts. In view of his qualifications and experience, the Commission decided to grade him in step 3 of grade B3.

The complainant considered that he should have received a better grade. He therefore lodged a complaint pursuant to Article 90 (2) of the Staff Regulations in which he argued inter alia that he had 23 years' practical experience both afloat and ashore, that he had managed a national supervisory centre for fisheries in Ireland for more than two years and that he had implemented and used EC fisheries legislation at various levels throughout his career. However, the Commission rejected this complaint in a detailed decision dated 20 July 1999.

The complainant then turned to the Ombudsman, claiming that he had been discriminated against in three ways: 1) The complaint he had lodged pursuant to Article 90 (2) of the Staff Regulations had been rejected; 2) Article 31 (2) of the Staff Regulations had been violated since a colleague who had also complained had been regraded to B2; and 3) a colleague from the same member state with the same career profile had been awarded the highest grading available upon his appointment one year earlier.

THE INQUIRY

The complaint was sent to the Commission for its comments.

The opinion of the Commission

In its opinion, the Commission made the following comments:

Article 31 (1) of the Staff Regulations provides that officials and other servants are appointed to the starting grade for the post for which they have been recruited; however, Article 31 (2) allows for classification by the appointing authority in the higher grade of the career bracket.

With regard to the second possibility, the Court of First Instance had made it clear that classification in the higher grade of the career bracket was at the discretion of the appointing authority and was permissible only by way of an exception where the specific needs of the service were such that the person to be recruited had to be particularly well-qualified or where the person recruited had exceptional qualifications. Moreover, the Court had also stated that, even if the candidate did have exceptional qualifications, the appointing authority had discretionary power and was not required to apply Article 31 (2) of the Staff Regulations.

The Commission had applied the grading criteria governing the implementation of Article 31 (2) to the complainant's case and made comparisons with all the officials and other servants recruited to career bracket B3/B2. This had involved checking

- the level and relevance of the diplomas acquired subsequently to the one giving access to the category,

- the level and quality of the professional experience in relation to the duties to be carried out,

- the length of the professional experience and its relevance to the post to be filled and

- the specific situation on the labour market for the specialisation sought,

In the present case, the competent authority did not consider that the complainant satisfied a sufficient number of these conditions to apply Article 31 (2) of the Staff Regulations, nor did it feel that in relation to all the successful candidates from this type of competition or selection procedure for career bracket B3/B2 the complainant's case was in any way exceptional.

By contrast, another fisheries inspector (Mr P.) who like the complainant had succeeded in a B3/B2 selection procedure and had initially been classified in grade B3, had subsequently been classified in the higher grade of the career bracket. The Commission had duly compared the two cases. Both fisheries inspectors had a top-calibre training profile and could, on entry into the Commission, justifiably claim career records of consistency and excellence. Nevertheless, it was clear from Mr P.'s CV that his entire career had been devoted exclusively to fisheries activities, and in particular to the scientific research aspect thereof. The same could not be said for the complainant. Monitoring fishing activities had also been a frequent part of the complainant's responsibilities but never his main task. Nor had his responsibilities ever called for the same level of scientific knowledge as those of Mr P. Nor had he carried out research activities. The Commission thus felt that its decision to single out Mr P. for classification in grade B2 had been justified.

With regard to the other case mentioned by the complainant, the Commission was unable to find grounds of unequal treatment since it did not know to which colleague the complainant referred.

The complainant's observations

In his observations, the complainant submitted arguments and evidence to refute the Commission's claim that monitoring fishing activities had never been his main task. He argued that he had the level and specific quality of professional experience in relation to the duties to be carried out, that he had the additional experience of managing databases, that the length and relevance of his professional experience were more than was required, that all his subsequent training and his diplomas were relevant to the position and that there was limited availability of trained professionals in the labour market for fisheries inspectors. The complainant thus considered that he possessed exceptional qualifications within the meaning of the case-law of the Community courts.

The complainant accepted that the application of Article 31 (2) of the Staff Regulations by the Commission was discretionary and on a case by case basis. However, he believed to have been discriminated against. The complainant specified that the further colleague he had referred to in his complaint was Mr A. who had been classified in grade B1. He also claimed that it had come to his attention that another colleague (Mr F.) had been successful in his application to be reclassified in grade B2.

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 Commission to comment, in the light of the observations made by the complainant, on the latter's claim that he was being discriminated against.

The Commission's reply

In its reply, the Commission provided the following information:

Fisheries inspectors were recruited as temporary agents at "B" level, and identified through specific selection procedures. Over the last ten years, five selection procedures had been organised, of which two were set at B5/B4, two at B3/B2 and one at B5/B1 career level. The complainant took part in a selection procedure for career bracket B3/B2.

As rightly stated by the complainant, the Commission had recently decided to grant another fisheries inspector, Mr P., the higher level of the career bracket concerned, i.e. B2. A similar treatment was envisaged in so far as another fisheries inspector, Mr F., was concerned. Article 31 (2) of the Staff Regulations gave the institution a wide margin of discretion. In any event, the comparison between the complainant and Mr F. was in the latter's favour, since his qualifications and experience fit him for a wider range of duties. In brief, Mr F. who possessed a similar number of years' professional experience to that of the complainant had a university degree in mechanical engineering, had spent many years working for the Portuguese Research Institute in fisheries research and had been head of unit of control in the Portuguese Fishing Inspectorate. He also had a near perfect knowledge of a second language. Mr F. was therefore judged to be exceptionally well qualified for the post.

The other person to whom the complainant had referred, Mr A., had been recruited in 1997 following a 1992 selection procedure. This selection procedure provided that grading would be based on the length of professional experience, with minimum entry levels of 22 years for B1, 12 years for B3 and 3 years for B5. Mr A.'s case was not comparable since he and the complainant had been engaged in different career brackets. The complainant could not therefore use the treatment given to Mr A. to base his claim to be graded in B2. Neither could he be treated in the same way as Mr A. and be classified in B1 since the selection procedure in which he participated did not cover career bracket B1. Otherwise all other persons engaged in the later selection procedure would be unfairly treated.

The complainant's observations

In his observations, the complainant claimed that the Commission had applied its discretion in a very subjective way. The complainant considered that Mr F., Mr P. and he himself had exceptional qualifications. In the complainant's view, it could be argued that Mr F.'s professional qualifications were not necessarily related to the fisheries career he later followed. Regarding his own record, the complainant pointed out that he had been a ship's captain and that this post could be compared to that of a head of a medium-sized EU delegation.

The complainant also relied on his additional experience regarding in particular database information and geographical information systems and submitted an attestation from his head of unit at the Commission.

THE DECISION

1 Rejection of Article 90 complaint

1.1 In 1997, the Commission advertised temporary B3/B2 posts for fisheries inspectors. The complainant was selected for one of these posts and graded in step 3 of grade B3. The complainant considered that in view of his qualifications and his experience he should have received a better grade and therefore lodged a complaint pursuant to Article 90 (2) of the Staff Regulations. This complaint was rejected by the Commission on 20 July 1999. The complainant claims that this decision was wrong. The complainant thus effectively argues that the Commission ought to have made use of Article 31 (2) of the Staff Regulations in the present case.

1.2 The Commission points out that Article 31 (1) of the Staff Regulations provides that officials and other servants are appointed to the starting grade for the post for which they have been recruited; however, Article 31 (2) allows for classification by the appointing authority in the higher grade of the career bracket. With regard to the second possibility, the Court of First Instance had made it clear that classification in the higher grade of the career bracket was at the discretion of the appointing authority and was permissible only by way of an exception where the specific needs of the service were such that the person to be recruited had to be particularly well-qualified or where the person recruited had exceptional qualifications. Moreover, the Court had also stated that, even if the candidate did have exceptional qualifications, the appointing authority had discretionary power and was not required to apply Article 31 (2) of the Staff Regulations. The Commission claims that it examined the complainant's case in the light of this case-law but came to the conclusion that it was not in any way exceptional.

1.3 According to the settled case-law of the Community courts, the option available to the appointing authority under Article 31 (2) of the Staff Regulations to appoint a newly-recruited official to the upper grade of the career bracket must be construed as an exception to the general rules on classification. In special circumstances, such as where a candidate has exceptional qualifications, the appointing authority is required to assess the possible application of Article 31 (2). However, the decision to classify an official in a particular grade, based on Article 31 (2) of the Staff Regulations, comes within the scope of the wide discretion vested in the appointing authority. Judicial review cannot take the place of assessment by the appointing authority but must be limited to the question as to whether the appointing authority exercised its powers in a manifestly erroneous manner(1).

1.4 The Ombudsman notes that the Commission has explained the reasons why it considered that Article 31 (2) should not be applied in the complainant's case in its opinion and in even greater detail in its decision rejecting the complainant's Article 90 complaint. The Commission's conclusion was that whilst the complainant was well qualified for the post for which he had been selected, he did not have exceptional qualifications such as to warrant the application of Article 31 (2) of the Staff Regulations. The Ombudsman considers that (disregarding for the moment the issue of discrimination which will be discussed below) the complainant has not shown that in arriving at this conclusion, the Commission exercised its discretion in a manifestly erroneous manner.

1.5 On the basis of the above, there appears to have been no maladministration on the part of the Commission in so far as the complainant's first allegation is concerned.

2 Discrimination compared to the treatment of Mr P. and Mr F.

2.1 The complainant claims that he is being discriminated against since two other fisheries inspectors (Mr P. and Mr F.) who were both recruited in a B3/B2 selection procedure were subsequently reclassified as B2 pursuant to Article 31 (2) of the Staff Regulations.

2.2 The Commission confirms that Mr P. and Mr F. were (or are to be) reclassified in grade B2. It argues, however, that there are differences that justify this difference in treatment. According to the Commission, it was clear from Mr P.'s CV that his entire career had been devoted exclusively to fisheries activities, and in particular to the scientific research aspect thereof. The same could not be said for the complainant. Monitoring fishing activities had also been a frequent part of the complainant's responsibilities but never his main task. Nor had his responsibilities ever called for the same level of scientific knowledge as those of Mr P. Nor had he carried out research activities. Mr F who possessed a similar number of years' professional experience to that of the complainant had a university degree in mechanical engineering, had spent many years working for the Portuguese Research Institute in fisheries research and had been head of unit of control in the Portuguese Fishing Inspectorate. He also had a near perfect knowledge of a second language. Mr F. was therefore judged to be exceptionally well qualified for the post.

2.3 The Ombudsman considers that the complainant has not established that the Commission exercised its powers in a manifestly erroneous manner by concluding that Mr P. and Mr F., but not the complainant, possessed exceptional qualifications that justified the application of Article 31 (2) of the Staff Regulations. The complainant himself, in his observations on the Commission's reply to the request for further information, takes the view that Mr F. and Mr P. (and himself) have exceptional qualifications. It cannot be excluded that the complainant is possibly right in claiming that the Commission (when comparing his qualifications to those of Mr P) was wrong to conclude that monitoring fishing activities had never been his main task. It has to be noted, however, that the Commission based its conclusion that Article 31 (2) was only applicable in respect of Mr F. and Mr P. also on a number of other considerations (e.g. level of scientific knowledge, language skills) that the complainant has not been able to refute.

2.4 On the basis of the above, there appears to have been no maladministration on the part of the Commission in so far as the complainant's second allegation is concerned.

3 Discrimination compared to the treatment of Mr A.

3.1 The complainant further claims that he is being discriminated against compared to another fisheries inspector, Mr A., who was recruited in grade B1.

3.2 The Commission points out that fisheries inspectors are recruited through specific selection procedures. Over the last ten years, five selection procedures were organised, of which two were set at B5/B4, two at B3/B2 and one at B5/B1 career level. Mr A. was recruited following a selection procedure in 1992 that was set at the B5/B1 career level. The Commission argues that Mr A.'s case is not comparable since he and the complainant were engaged in different career brackets. In the Commission's view the complainant can therefore not use the treatment given to Mr A. to base his claim to be classified in B2. Neither could he be treated in the same way as Mr A. and be classified in B1. Otherwise all other persons engaged in the later selection procedure would be unfairly treated.

3.3 The complainant who has taken part in selection procedure organised in 1997/98 for career bracket B3/B2 wishes to be reclassified in grade B2. The situation of Mr A. who took part in a different selection procedure organised several years before the one in which the complainant took part and was classified in grade B1 is therefore not directly comparable to his situation. In these circumstances, the Ombudsman considers that the complainant has not shown that he is being discriminated against.

3.4 The Ombudsman notes that the information provided by the Commission has highlighted certain anomalies regarding the procedures used to recruit fisheries inspectors which do however not affect the complainant. Although the posts to be filled appear to have been comparable, Mr A. was classified in grade B1 whereas he would at best have been able to aspire to grade B2 if he had taken part in the selection procedure on the basis of which the complainant was selected. However, during the course of the Ombudsman's inquiry in relation to complaint 109/98/ME(2) (which also concerned the classification of fisheries inspectors) the Commission explained that in 1996 it had changed its policy in this field and that future selection procedures would no longer cover all grades of a category. The Commission also accepted that the complainants in that case should not be disadvantaged compared to applicants taking part in subsequent selection procedures. The Ombudsman therefore considers that there is no need further to inquire into this issue.

3.5 On the basis of the above, there appears to have been no maladministration on the part of the Commission in so far as the complainant's third allegation is concerned.

4 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 Commission. The Ombudsman therefore closes the file.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN


(1) Case T-17/95 Alexopoulou v Commission [1995] ECR-SC II-683, paragraphs 19-21; Case T-12/97 Barnett v Commission [1997] ECR-SC II-863, paragraphs 48-51.

(2) Available on the Ombudsman's website (http://www.ombudsman.europa.eu).