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Decision of the European Ombudsman on complaint 1435/2002/GG against the European Commission

A Swedish citizen successfully took part in a recruitment competition for Principal Administrators organised by the European Commission. In July 1999, his name was put on a reserve list. Until the end of 1999, favourable rules for the recruitment of candidates from the then new Member States (Austria, Finland and Sweden) were applicable, particularly in so far as their classification into salary brackets was concerned.

In December 1999, the candidate received verbal offers for two posts at the Commission. He accepted a post in Luxembourg with the Directorate-General (DG) Information Society, assuming that the Commission would arrange for the necessary written offer before the end of the year. However, the post turned out to be a research post that was still to be transformed into a permanent post. The candidate put this down to an internal misunderstanding. He was informed about the problem when, according to him, it was too late to come back to the other offer he had received. A written offer was finally made in May 2000, and the candidate started working for the DG Information Society in September 2000. However, the Commission classified him into a lower salary bracket than he had expected according to the favourable rules.

In his complaint to the Ombudsman, the candidate argued that persons from the same reserve list should receive the same treatment. He considered that the Commission could have made a conditional offer of employment before the expiry of the favourable rules.

The Commission took the view that the complainant had been treated in exactly the same way as all other candidates of enlargement competitions who had been recruited after the end of 1999. Concerning the possibility of a conditional offer, it argued that such an offer could only be made if a post was formally available, which had not been the case here.

Since the Commission did not contest the complainant's account of events, the Ombudsman considered that the complainant had been led to believe that he would be recruited benefiting from the preferential rules. He also considered that the recruitment was delayed due to an internal misunderstanding, which made it impossible for the complainant to take up another offer of employment. Therefore, the Ombudsman concluded that the Commission's decision on the classification of the complainant was unfair and constituted an instance of maladministration. He made a proposal for a friendly solution, inviting the Commission to consider reviewing the complainant's classification. The Commission rejected this proposal and the subsequent draft recommendation to the same end.

The Ombudsman deplored the attitude displayed by the Commission. He considered that the fact that the Commission did not submit any comments on the alleged internal misunderstanding was not in conformity with the obligations EU law imposes on Community institutions concerning their relations with the European Ombudsman and complainants. He made a critical remark.


Strasbourg, 29 March 2004

Dear Mr O.,

On 31 July 2002, you made a complaint to the European Ombudsman concerning your classification by the European Commission on the occasion of your recruitment by the latter.

On 30 August 2002, I forwarded the complaint to the President of the European Commission.

On 26 September 2002, you sent me further documents in relation to your complaint. I forwarded these further documents to the Commission on 1 October 2002.

The Commission sent its opinion on 4 December 2002. I forwarded it to you on 9 December 2002 with an invitation to make observations, which you sent on 31 January 2003.

On 10 February 2003, I wrote to the Commission in order to ask for further information in relation to your complaint. The Commission sent its reply on 28 March 2003. I forwarded it to you on 31 March 2003 with an invitation to make observations, which you sent on 6 May 2003.

On 27 May 2003, I wrote to the Commission in order to propose a friendly solution in this matter. The Commission sent its opinion regarding this proposal on 29 July 2003. I forwarded it to you on 31 July 2003 with an invitation to make observations, which you sent on 30 September 2003.

On 17 October 2003, I addressed a draft recommendation to the Commission. The Commission sent its detailed opinion on 20 January 2004. I forwarded it to you on 27 January 2004 with an invitation to make observations, which you sent on 3 March 2004.

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

 

THE COMPLAINT

The complainant, a Swedish citizen, successfully took part in competition COM/A/21/98 organised by the European Commission, and in July 1999 his name was put on a reserve list that was to be valid until the end of that year. Favourable rules for the recruitment of candidates from the new member states (Austria, Finland and Sweden) that temporarily (until the end of 1999) derogated from the normal rules, particularly in so far as the classification of candidates was concerned, were applicable by virtue of Council Regulation (EC) no. 626/95(1).

The validity of the reserve list for competition COM/A/21/98 was subsequently extended until the end of 2000. However, the validity of the above-mentioned derogation was not extended.

In December 1999, the complainant received two verbal offers for posts at the Commission, one in Luxembourg (Directorate-General Information Society) and one in Brussels (Directorate-General Internal Market). The complainant alleged that he accepted the post in Luxembourg on the understanding that Directorate-General (DG) Information Society and DG Personnel and Administration would arrange for the necessary written offer in time, i.e. before the end of the year. According to the complainant, however, this turned out not to be possible due to an internal misunderstanding as the post that had been offered to him was not a permanent post but a research post that still had to be transformed into a permanent post. The complainant was informed accordingly by e-mail on 21 December 1999. According to the complainant, it was then too late to come back on the offer made by DG Internal Market. The written offer for the post at DG Information Society was finally made in May 2000 and the complainant started working for the Commission on 15 September 2000.

On 15 July 2001, the complainant was informed that the Commission had decided to classify him in grade A5 step 3.The complainant considered that in view of his 19 years of professional experience, he would have qualified for a classification in grade A4 step 4. An internal complaint against the decision on his classification that the complainant lodged on 8 October 2001 was however rejected by the Commission on 27 February 2002.

In his complaint to the Ombudsman, the complainant contended that this result was neither fair nor correct and should therefore be rectified. He argued that he had not had any possibility to protect himself against this negative outcome. The complainant noted that, with hindsight, it might have been better if he had done what people within the Commission had, according to him, advised him to do at the time, i.e. accept any post before the expiry of the validity of Regulation (EC) no. 626/95. Given that some persons from the relevant reserve list had actually been employed before the end of 1999, the complainant submitted that persons from the same reserve list should receive the same treatment. The complainant further alleged that offer letters “subject to final decision” could have been written and were commonly written before the final offer letter was issued. According to the complainant, this made it possible to fix the date of the offer prior to certain cut-off dates, in order to avoid situations like the one in the present case. The complainant criticised the fact that this possibility had not been used in his case. The complainant furthermore argued that he had been informed in December 1999 by his future head of unit that in case the classification procedure should not result in the expected (i.e. positive) outcome, he would have a good chance to obtain a change in this decision through lodging a complaint against it.

In the complainant’s view, the Commission’s approach was not in accordance with the statements contained in the ‘White Paper’ of 2000, particularly in relation to the need to give staff proper credit for prior periods of employment and the importance of transparency. The complainant argued in particular that a slow recruitment process created situations that were detrimental to the possibility to recruit externally.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Competition COM/A/21/98 for Principal Administrators of Swedish nationality had been organised in the context of the accession of Austria, Finland and Sweden and had been subject to the special and exceptional measures concerning the recruitment of these nationals during the enlargement period provided for by Council Regulation (EC) no. 626/95 of 20 March 1995. This regulation had been valid until 31 December 1999. It had derogated from a number of articles in the Staff Regulations and allowed the organisation of competitions by nationality for the new member states, the recruitment of such nationals without the prior internal publication of the vacant post and classification in a higher grade without the limits imposed by Article 31 of the Staff Regulations.

At the end of the enlargement period (31 December 1999), it had been considered that the Commission could still make use of the successful candidates from the enlargement competitions but that the special and temporary measures for recruitment, including the specific classification criteria, would no longer be applicable and that the normal statutory rules would apply. It was in these circumstances that the validity of competition COM/A/21/98 had been extended.

The complainant had been aware of the special and temporary rules applicable to recruitment and their time limit. If the validity of the competition had not been extended beyond 31 December 1999, it would not have been possible at all to recruit the complainant to the Commission. On a point of fact, if it had been possible to recruit the complainant in 1999, his classification under the specific criteria, on the basis of his 18-19 years of professional experience, would have been A4 step 1 and not A4 step 4 as he had claimed. The recruitment in 2000 had been carried out in accordance with the statutory and classification rules applicable to all Commission staff at that time. The complainant had been treated in exactly the same way as all other candidates of enlargement competitions who had been recruited after the end of the enlargement period.

The complainant's observations

In his observations, the complainant maintained his complaint. He accepted that he had been informed about the Commission’s rules for newly recruited candidates but maintained that he had had no idea as to how these rules and regulations were to be applied. The complainant reiterated his view that the Commission could have issued a “lettre d’offre à titre indicatif” that would have made it possible to apply the exceptional criteria laid down in accordance with Council Regulation (EC) no. 626/95.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for further information

The Ombudsman therefore asked the Commission to comment on the complainant’s arguments (1) that there had been an internal misunderstanding on the part of DG Information Society in December 1999 regarding the availability of the post and that this had made it impossible to recruit the complainant before the end of 1999 and (2) that the Commission could have issued a “lettre d’offre à titre indicatif” that would have made it possible to apply the exceptional criteria laid down in accordance with Council Regulation (EC) no. 626/95. The Ombudsman also forwarded a copy of the complainant’s observations to the Commission.

The Commission’s reply

In its reply, the Commission made the following comments:

In December 1999, the complainant had been in contact with the Commission in order to find a post for his recruitment. It had been suggested that he should contact DG Information Society which had invited him for an interview. It had transpired that the only post available was one on the research budget which would have allowed him to be recruited only as a temporary agent, not as an official, and only to grade A6. In these circumstances, it had been impossible to recruit the complainant before 31 December 1999. A post that permitted his recruitment as an A5/A4 official had only become available in February 2000. After the completion of the statutory procedures, this post had been offered to the complainant in May 2000.

The Commission rarely made conditional offers of employment. An absolute prior condition to making such an offer was that DG Personnel and Administration must have received a formal proposal for recruitment on an appropriate post and that the Appointing Authority had authorised the recruitment. In the complainant’s case, there had been no such formal proposal for his recruitment and no conditional offer could therefore be made.

The complainant’s observations

In his observations on this reply, the complainant accepted that the Commission had acted in accordance with the applicable rules and that it had thus not formally or legally committed any error. He argued however that the Commission could have issued a “lettre d’offre à titre indicatif”, thereby creating a cut-off date before the deadline of 31 December 1999. The complainant added that according to information he had received from Commission officials, this possibility had been used in relation to the expiration of derogatory rules on the occasion of previous accessions. He surmised that due to the fact that holidays were imminent at the relevant time, or maybe due to a lack of co-operation between DG Information Society and DG Personnel and Administration, this possibility had been neglected in his case.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and observations, the Ombudsman was not satisfied that the Commission had responded adequately to all the complainant's allegations.

The proposal for a friendly solution

Article 3 (5) of the Statute of the Ombudsman(2) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complaint.

The Ombudsman therefore made the following proposal for a friendly solution to the Commission:

The European Commission should consider reviewing the classification of the complainant.

This proposal was based on the following considerations:

1 The complainant had made the following submissions: He accepted the post offered by DG Information Society on the understanding that his DG and DG Personnel and Administration would arrange for the necessary written offer in time, i.e. before the end of the year. However, this turned out not to be possible due to an internal misunderstanding as the post that he had been offered was a research post that still had to be transformed into a permanent post. He was informed accordingly by e-mail on 21 December 1999. It was then too late to come back on another verbal offer he had received from another DG.

2 The Commission was expressly invited by the Ombudsman to comment on the complainant’s allegation that there had been an internal misunderstanding at DG Information Society concerning the availability of the post foreseen for the complainant. In its reply, the Commission did not object to the complainant’s account of events.

3 It was good administrative practice to proceed fairly in recruitment procedures. In the present case, it appeared that the complainant had been led to believe that he would be recruited by DG Information Society and that it would be possible for his recruitment to benefit from the derogatory rules set out in Regulation (EC) no. 626/95 that were applicable until the end of 1999. It further appeared that the recruitment was delayed due to an internal misunderstanding on the part of the Commission’s services. The Commission appeared to accept the complainant’s argument that it would have been possible to avoid the negative consequences following from this misunderstanding by making the complainant a conditional offer of employment.

4 In these circumstances, the Ombudsman took the preliminary view that the Commission’s decision on the classification of the complainant was unfair and that this could be an instance of maladministration.

The Commission’s opinion

In its opinion, the Commission made the following comments:

The fact of being a successful candidate in an external competition did not give the person concerned the right to be recruited. The Commission had already confirmed that there had been no post available in DG Information Society that would have permitted the complainant’s recruitment as an official at the A5/A4 level.

The complainant’s argument that a conditional offer of employment could have been made could not be accepted. Any offer of employment always had to be preceded by a formal proposal of recruitment to an appropriate vacant post by a Commission DG and by a formal recruitment decision by the Appointing Authority. Neither of these conditions had been satisfied in the complainant’s case and there had been no exceptions to these procedures.

In these circumstances, the Commission was unable to agree to the Ombudsman’s request for a friendly solution. Furthermore, to agree to such a request would also call into question the treatment of other successful candidates from other enlargement competitions who had been unable, for whatever reason, to be recruited before the expiry of the enlargement period.

The complainant’s observations

In his observations, the complainant maintained his complaint and made the following further comments:

It was with sadness and dismay that he had received the Commission’s opinion. He had been directly informed by DG Personnel and Administration (Mrs R., Mr V. and Mr L.).

THE DRAFT RECOMMENDATION

The draft recommendation

On the basis of the evidence submitted to him, the Ombudsman arrived at the conclusion that a friendly solution was not possible. The Ombudsman therefore made the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The European Commission should consider reviewing the classification of the complainant.

With one exception, the draft recommendation was based on the same considerations as the Ombudsman’s proposal for a friendly solution. As regards the complainant’s argument that the Commission could have made a conditional offer of employment, the Commission had explained that any such offer depended on the availability of a post and that this condition had not been fulfilled in the complainant’s case. In the light of this explanation, the Ombudsman decided not to invoke this aspect of the case in order to support his draft recommendation.

The Commission’s detailed opinion

In its detailed opinion, the Commission reiterated the position it had taken as regards the Ombudsman’s proposal for a friendly solution. However, the Commission expressed its regrets that it had not been clear at an earlier stage that no post had been available in DG Information Society.

The complainant’s observations

In his observations, the complainant maintained his complaint and asked the Ombudsman to see to it that the Commission assumed its full responsibility for the way it had handled the matter.

THE DECISION

1 Allegedly unfair and incorrect classification

1.1 The complainant, a Swedish citizen, successfully took part in competition COM/A/21/98, and in July 1999 his name was put on a reserve list. Favourable rules for the recruitment of candidates from the new member states (Austria, Finland and Sweden) that temporarily derogated from the normal rules, particularly in so far as the classification of the candidates was concerned, were applicable by virtue of Council Regulation (EC) no. 626/95. The validity of this regulation expired however on 31 December 1999. In December 1999, the complainant received a verbal offer of a post at the Commission’s Directorate-General (DG) Information Society. However, the written offer was only made in May 2000, and the complainant started working for the Commission on 15 September 2000. He was classified in grade A5 step 3. In his complaint to the Ombudsman, the complainant alleged that in view of his 19 years of professional experience this result was neither fair nor correct and should therefore be rectified.

1.2 The Commission took the view that the complainant’s recruitment had been carried out in accordance with the statutory and classification rules applicable to all Commission staff at that time. It submitted that the complainant had been treated in exactly the same way as all other candidates of enlargement competitions who had been recruited after 31 December 1999.

1.3 In his observations on the Commission’s reply to a request for further information, the complainant accepted that the Commission had acted in accordance with the applicable rules and that it thus had not formally or legally committed any error.

1.4 In support of his allegation that the Commission had acted unfairly, the complainant made the following submissions: He had accepted the post offered by DG Information Society on the understanding that this DG and DG Personnel and Administration would arrange for the necessary written offer in time, i.e. before the end of the year. However, this had turned out not to be possible due to an internal misunderstanding as the post that he had been offered had been a research post that had still to be transformed into a permanent post. He had been informed accordingly by e-mail on 21 December 1999. It had then been too late to take up another verbal offer he had received from another DG.

1.5 The Commission was expressly invited by the Ombudsman to comment on the complainant’s allegation that there had been an internal misunderstanding at DG Information Society concerning the availability of the post foreseen for the complainant. The Ombudsman notes that neither in its reply to this invitation nor in subsequent correspondence has the Commission objected to the complainant’s account of events.

1.6 The Ombudsman considers that it is good administrative practice to proceed fairly in recruitment procedures. In the present case, it appears that the complainant was led to believe that he would be recruited by DG Information Society and that it would be possible for his recruitment to benefit from the derogatory rules set out in Regulation (EC) no. 626/95 that were applicable until the end of 1999. It further appears that the recruitment was delayed due to an internal misunderstanding on the part of the Commission’s services and that by the time the complainant was informed that no permanent post was yet available for him at DG Information Society, it was too late for him to take up another verbal offer he had received from another DG.

1.7 In these circumstances, the Ombudsman took the view that the Commission’s decision on the classification of the complainant was unfair and that this constituted an instance of maladministration.

1.8 On the basis of the above finding, and in accordance with the rules governing his work, the Ombudsman made a proposal for a friendly solution, inviting the Commission to consider reviewing the complainant’s classification. The Commission rejected this proposal. The Ombudsman subsequently addressed a draft recommendation to the Commission according to which the latter should consider reviewing the complainant’s classification. This draft recommendation was also rejected by the Commission.

1.9 The Ombudsman deplores the attitude displayed by the Commission in the present case. In the course of the present inquiry, the Commission’s attention was on several occasions drawn to the complainant’s allegation that there had been an internal misunderstanding at DG Information Society concerning the availability of the post foreseen for the complainant. In spite of this, the Commission refrained from submitting any comments on this issue. The Ombudsman considers that such an approach is not in conformity with the obligations that EU law imposes on Community institutions as regards their relations with both the European Ombudsman and complainants.

2 Conclusion

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

It is good administrative practice to proceed fairly in recruitment procedures. In the present case, it appears that the complainant was led to believe that he would be recruited by DG Information Society and that it would be possible for his recruitment to benefit from the derogatory rules set out in Regulation (EC) no. 626/95 that were applicable until the end of 1999. It further appears that the recruitment was delayed due to an internal misunderstanding on the part of the Commission’s services and that by the time the complainant was informed that no permanent post was yet available for him at DG Information Society, it was too late for him to take up another verbal offer he had received from another DG. This is an instance of maladministration.

2.2 The Ombudsman notes that the present case concerns the recruitment of an official in the context of the accession of Austria, Finland and Sweden to the EU and the special rules that had been set up for such recruitment procedures. It furthermore appears that the instance of maladministration identified by the Ombudsman does not raise issues of principle, given that it seems to have been caused by the mistakes of the Commission services concerned in a specific case. Accordingly, although he is fully aware of the hardship the Commission’s approach has caused the complainant, the Ombudsman takes the view that it is not appropriate to submit a special report to the European Parliament, which will be informed of the case in the Ombudsman’s Annual Report for 2004.

2.3 As regards the point made in paragraph 1.9 above, the Ombudsman considers that it is also appropriate to bring the matter to the attention of the European Parliament in the Annual Report for 2004, as part of a general evaluation of the Commission’s relations with the European Ombudsman and complainants.

2.4 The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS


(1) Council Regulation no 626/95 of 20 March 1995 introducing special and temporary measures applicable to the recruitment of officials of the European Communities as a result of the accession of Austria, Finland and Sweden (OJ 1995 no L 66, p. 1).

(2) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.