Decision of the European Ombudsman on complaint 1053/2002/(ADB)BB against the European Commission

Strasbourg, 22 July 2003

Dear X,

THE COMPLAINT

In June 2002, the complainant complained to the Ombudsman about his relations with the services of the European Commission responsible for the after school child-minding facility called "Garderie".

According to the complainant, his child attended the after school child-minding facility (hereinafter: "Garderie") managed by the European Commission. The complainant enrolled his child in the German-speaking group of the Garderie. One week before his child started to attend the Garderie, the complainant visited the location. During the visit, he found out that his child had been allocated to a French-speaking group. According to the complainant, he was not informed about the change of the language group.

The complainant observed that one of the conditions for admission mentioned in the Rules was that the child should be able to express himself/herself in his/her mother tongue. The complainant contacted the Head of the Garderie, who told him that the child care worker responsible for the group to which his child would be allocated spoke German. According to the Head, taking into account the experience of the child care worker, the criteria for the creation of the group were "enfants nouveaux à la Garderie" and "enfants dont le comportement serait problematique". After discussions, the complainant's child was transferred to a Portuguese-speaking group.

Later, the complainant learnt that another child had been admitted to the German-speaking group. According to the complainant, he did not receive any reply from the Garderie to his question why his child had not been admitted to the group. As the language problem had been partially solved, the complainant considered the matter closed.

However, at a later stage the Head of Unit referred to the possibility to expel his child from the Garderie. According to the complainant, this constituted discrimination against his child. Furthermore, the Head of Unit requested all child care workers in contact with the complainant's child to communicate reports every time there would be an incident with the child.

The complainant gave a detailed account of several incidents that took place between the child care workers and his child. The complainant annexed to his complaint copies of two receipts for registered mail addressed to the Head of the Garderie dated 27 September 2000 and 18 January 2001. According to him, he has not received replies to his correspondence.

The complainant also referred to a meeting with the Head of Unit of "Social infrastructures".

On the basis of the above, the complainant alleges that the European Commission failed to remedy maladministration by the Management of the Garderie, consisting of:

1. Failure to abide by the applicable rules governing the Garderie
2. Lack of transparency in the handling of the problems within the Garderie;
3. Discrimination and abuse of power.

The complainant claims that the rules governing the Garderie should be applied, and that the abuse of power should be stopped.

THE INQUIRY

The Commission's opinion

The Commission's opinion contains documents the disclosure of which would violate the right of privacy of a third party. The Ombudsman therefore decided in accordance with Article 10 (1) of the implementing provisions of the European Ombudsman that the complaint should be classified as confidential.

In its opinion, the Commission explains that the Management of the Garderie is ensured by officials from the Unit "Social infrastructure", ADMIN/L4 of the European Commission and employees recruited under the local legislation.

The complainant's child attended the Garderie (for children from 3 to 6 years of age). According to the Commission, since the beginning, the child has had problems integrating into the different groups and has refused to accept the authority of the child care workers and has often had a hysterical behaviour.

According to the Commission, Article 2, paragraph 2.2 "Ages" of the Rules on admission contains the general regulatory framework for the admission of children (cleanness and oral expression). Children from the age of 3 can be admitted to the Garderie provided that they are toilet-trained and that they express themselves clearly in their mother tongue. Contrary to the complainant's argument, these Rules do not contain provisions on the practical organisation of the child's placement within the different structures. This task is left to the Management of the Garderie. At the Garderie, children are placed in groups led in many cases by multilingual child care workers. Upon first admission, the complainant had filled in the admission sheet indicating the languages spoken by the child.

As regards the alleged non-intervention in the organisation of groups, the Commission states that at the beginning of each school year the Management of the Garderie proceed to place the children in the different groups according to different parameters such as security, size of the group, age of the child, languages spoken or affinities towards the European School and, as far as possible, respecting the wishes of the parents.

The final composition of the groups is decided by the Management on the basis of a proposal made by the child care workers, who play an essential role. During this exercise, the needs of the service and appropriate use of the existing human resources are also taken into account.

According to the Commission, after submitting an admission request, the Management sends a written communication to the parents mentioning the group in which the child has been placed. This was also the case concerning the complainant.

As a result of various meetings and the request made by the complainant, the Management decided to place the complainant's child in a Portuguese-speaking group during the afternoons. Contrary to the allegations made by the complainant, regular contacts between the Management and the complainant took place. His wishes were taken into account.

As regards the alleged discrimination, the Management of the Garderie informed the complainant that measures should be take to avoid the application of Article 13 of the Rules on admission due to the difficult behaviour of the child. However, during the meeting with the Head of Unit of "Social infrastructures" and in the presence of the person responsible for the Garderie, it was pointed out that the Management had never adopted measures foreseen under Article 13 because in all previous similar cases a solution had been found. The complainant was told to contact the assisting services in order to find the optimal solution. There were no threats, intimidation or discrimination against his child. On the contrary, it was underlined that the aim of the Management was to guarantee the well being of the child.

According to the Commission, the preparation of reports is common practice which allows the personnel of the service to communicate immediately and in writing to the hierarchy all incidents which might have arisen whilst children are left in the care of the institution.

The Commission commented on the incidents, which were mentioned in the complaint, and on the meeting with the Head of Unit of "Social infrastructures". Furthermore, the Commission referred to two more incidents.

Finally, according to the Commission, the personnel of the Garderie had fulfilled its obligations towards the complainant and his child. The Commission mentioned that its services would continue the efforts to find a solution to the problem in the interest of the complainant and for the well being of the child.

The complainant's observations

The complainant maintained his original complaint and made a new allegation that the fundamental rights and human rights of his child had been violated, referring to the Convention on the Rights of the Child.

According to the complainant, the Management of the Garderie systematically failed to answer his correspondence.

The complainant observed that the Management had created a secret file on his child without informing him about it. The complainant only learned about this file by accident.

The education of his child and his problems relate to the child's privacy, which should be respected. The complainant refers to Article 16 of the Convention of the Rights of the Child(1):

"No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation."

According to the complainant, he was not informed that since the arrival of his child in the Garderie, the child had often acted hysterically. The Management appeared to have stigmatised the child and made its own "diagnosis".

The complainant alleges that a decision concerning his child was made without communicating it to him or explaining to him. He also contests the allegation that the Management met him in order to avoid the application of Article 13 of the Regulation. According to the complainant, nothing in the Commission's opinion point III. B) corresponds to the reality.

The complainant considered it inexcusable that reports are prepared about a child without informing the parents. The complainant in his observations gave a detailed account of the incidents mentioned in his original complaint.

The complainant also referred to the provisions of the Data Protection Directive 95/46/EC(2) on the processing of personal data. According to the complainant, it appeared that the Commission had not looked into the matter regarding the individual reports about incidents at the Garderie.

THE DECISION

1 Preliminary remarks

1.1 In accordance with Article 10 (1) of the implementing provisions of the European Ombudsman, the Ombudsman decided that the complaint should be classified as confidential on the grounds that the Commission's opinion contains documents the disclosure of which would violate the right of privacy of a third party.

1.2 In his observations, the complainant made new allegations, namely, that his child’s right to privacy has been violated and that the provisions of the Data Protection Directive 95/46/EC were not respected in relation to incident reports. These allegations are outside the scope of the original complaint and the Ombudsman considers that it would not be appropriate to delay a decision on the original complaint in order to deal with these new allegations in the framework of the present inquiry. The complainant has the possibility to submit a new complaint to the Ombudsman. The present decision therefore deals only with the alleged failure to abide by the Rules, lack of transparency, discrimination and abuse of power.

2 Alleged failure to abide by the rules governing the Garderie

2.1 The complainant alleges that the European Commission omitted to take the appropriate steps in order to remedy the failure of the Management of the Garderie to comply with its obligations towards the complainant and his child. According to him, the Management has not respected the rules on admission regarding the initial inscription of the child in the Garderie, because the child was allocated to a French-speaking group contrary to the application form submitted by the complainant and without regard to the fact that the child spoke German as its mother tongue.

2.2 According to the Commission, the rules on admission do not contain provisions on the practical organisation of the child's placement within the different structures. This is left for the Management of the Garderie. At the Garderie, children are placed in classes led in many cases by multilingual child care workers. Children are placed in the different groups according to different parameters such as security, size of the group or age of the child or languages spoken or affinities towards the European School and in as much as possible the wishes of the parents.

2.3 The final composition of the groups is decided by the Management on a proposal made by the child care workers who play an essential role. During this exercise the needs of the service and appropriate use of the existing human resources are also taken into account. After submitting an admission request, the Management sends a written communication to the parents mentioning the group in which the child has been placed. This was also the case concerning the complainant.

2.4 The Ombudsman notes that Article 2, paragraph 2.2, subparagraph 2, "Ages" of the Rules on admission, it is provided that children from the age of 3 can be admitted to the Garderie provided that they are toilet-trained and that they express themselves clearly in their mother tongue. This provision contains the basic conditions for admission. The Rules appear not to provide for an option for the parents to select a particular language group for their child within the Garderie. The Ombudsman finds that there has been no instance of maladministration regarding this aspect of the case.

2.5 Based on the above findings of no maladministration it appears unnecessary to examine the complainant's claim that the rules governing the Garderie should be applied.

3 Alleged lack of transparency in the handling of the problems within the Garderie

3.1 The complainant alleges lack of transparency in the handling of the problems within the Garderie. He argues that he has not received replies to his correspondence and annexed copies of two receipts for registered mail addressed to the Head of the Garderie dated 27 September 2000 and 18 January 2001.

3.2 According to the Commission, there were regular contacts between the Management of the Garderie and the complainant.

3.3 The Ombudsman notes that the Commission has not contested the complainant’s statement that he received no reply to the two registered letters he sent on 27 September 2000 and 18 January 2001, nor has it taken the opportunity of the present inquiry to repair this omission. Principles of good administration require the institution to reply to the letters of citizens. In the present case, the Commission did not ensure a reply to the complainant's registered letters. This is an instance of maladministration, and a critical remark will be made below.

4 Alleged discrimination and abuse of power

4.1 The complainant alleges discrimination. He argues that the reference to possible expulsion of his child from the Garderie constituted discrimination.

4.2 According to the Commission, the Management of the Garderie informed the complainant that measures should be taken to avoid the application of Article 13 of the Rules on admission regarding the dismissal of a child due to the difficult behaviour of the child. There were no threats, intimidations or discrimination against his child. On the contrary, it was underlined that the aim of the Management was to guarantee the well being of the child.

4.3 The Ombudsman notes that the Rules on admission provide for the possibility to expel a child and that the Commission has offered a reasonable explanation of the actions of the Management of the Garderie. The Ombudsman therefore finds no evidence of maladministration regarding this aspect of the case.

4.4 The complainant also alleges abuse of power. According to the complainant, the Head of Unit requested all child care workers in contact with his child to communicate reports every time there would be an incident. According to the complainant, this constitutes an abuse of power.

4.5 According to the Commission, the preparation of reports is common practice which allows the personnel of the service to communicate immediately and in writing to the hierarchy all incidents which might have arisen whilst children are left in the care of the institution.

4.6 The Ombudsman notes that the keeping of adequate records is a principle of good administration, which helps to ensure both effectiveness and accountability. The Ombudsman considers that the Commission has offered a reasonable explanation for the preparation of internal reports in the present case. Moreover, the present inquiry has revealed no evidence that the reports concerned were misused. The Ombudsman therefore finds no evidence of maladministration regarding this aspect of the case.

4.7 Based on the above findings of no maladministration it appears that the complainant's claim that the abuse of power should be stopped does not arise.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The Commission has not contested the complainant’s statement that he received no reply to the two registered letters he sent on 27 September 2000 and 18 January 2001, nor has it taken the opportunity of the present inquiry to repair this omission. Principles of good administration require the institution to reply to the letters of citizens. In the present case, the Commission did not ensure a reply to the complainant's registered letters. This is an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force 2 September 1990.

(2) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, , 23/11/1995 p. 0031 - 0050.