Decision of the European Ombudsman on complaint 829/2004/PB against the European Monitoring Centre on Racism and Xenophobia

Strasbourg, 14 December 2005

Dear Mr F.,

On 16 March 2004, you made a complaint to the European Ombudsman concerning alleged mismanagement by the Director of the European Monitoring Centre on Racism and Xenophobia ("EUMC").

On 3 May 2004, I forwarded the complaint to the Director of the EUMC. The EUMC sent its opinion on 19 July 2004. I forwarded it to you with an invitation to make observations, which you sent on 22 September 2004.

Your observations appeared to point out a misunderstanding in the case, and I therefore decided to conduct further inquiries on 11 October 2004 by letter to the EUMC. The EUMC sent me its reply to my further inquiries on 10 November 2004, and I forwarded it to you. By letter dated 6 December 2004, you informed me that you had no further comments to add.

On 18 April 2005, I decided to conduct further inquiries, and informed you accordingly. The EUMC sent me its reply on 23 June 2005, and I forwarded it to you with an invitation to make observations. I have received no observations from you.

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

I apologise for the length of time it has taken to carry out these inquiries.

THE COMPLAINT

The complaint was submitted in March 2004 by the Head of Unit of Research and Data Collection at the European Monitoring Centre on Racism and Xenophobia ("EUMC") in Vienna.

On 5 January 2004, the complainant had made the following request to the Chair of the EUMC Management Board:

"I would herewith like to report that, since several months, the EUMC Director withholds essential information from me, bypasses me with other staff members and also bullies me. This makes me believe that I do no longer enjoy her entire confidence. Under such circumstances I am not in a position to assure my functions as Head of Unit appropriately. For these reasons, I decided not to ask for a continuation of my contract, which is due to expire on 15 May 2004. Nevertheless, I would like to have my present status at the EUMC clarified and to get fair treatment, which is not possible in interaction only with the Director. Therefore I urgently ask you to convene the EUMC Disciplinary Board [...]".

The Chair of the Management Board asked the complainant to clarify his allegations. The complainant sent the Management Board another letter on 16 January 2004, in which he set out his allegations in detail. These were, in summary, the following:

(1) "The EUMC Director withheld information from me"

(a) The Director had signed a contract for a report with another person without informing the complainant about this, despite the fact that the complainant was mentioned as the person responsible for the report.

(b) The Director had instructed that an amount of money be transferred to one of the budget lines for which the complainant was responsible, but without informing the complainant about this transfer.

(c) The Director had not involved the complainant in the final discussions about a call for tender, although he had been mentioned as the person responsible for the project.

(d) The EUMC's Director had sent the complainant an e-mail on 9 January 2004 at 9:21, informing him that he could participate in a meeting taking place at 10:00; she included no agenda. Other staff member had received the agenda the day before.

(2) "The EUMC bypassed me"

(a) The Director had convened meetings with the staff of the complainant's unit without inviting or even informing him.

(b) The Director had convened meetings with experts related to the complainant's Unit without informing him.

(c) The Director had given instructions to members of the complainant's Unit without informing him.

(3) "The EUMC bullied me"

(a) The Director had censored a paper that he had prepared on a project.

(b) The Director had not given the complainant support for a PHARE project that he had successfully initiated.

(c) The Director had in several cases rejected requests by the complainant to go on missions.

(d) At one meeting, the Director had passed handwritten notes on to him during a meeting, telling him to finish his presentation. At another meeting, the Director had blamed the complainant for not letting her speak. The complainant had immediately passed over the chair to her.

The complainant sent a copy of his letter to the EUMC's Director, who on 28 January 2004 addressed the complainant's above points in a letter to the Management Board. She addressed, in summary, the complainant's allegations as follows:

Regarding the complainant's allegation (1)(a), the complainant had always been kept informed about the report concerned, either orally or by e-mail. The Director referred to the content of several e-mails and minutes of meetings. As regards the fact that the complainant had been mentioned as the person responsible, the Director noted that the overall responsibility always lay with her, and that, for formal reasons, the complainant had to be referred to as the responsible person.

Regarding allegation (1)(b), the complainant had been informed in a proper and timely manner of the transfer of money in an e-mail from the budget officer (the Director enclosed a copy of the e-mail).

Regarding allegation (1)(c), the complainant had been actively involved in the project from the beginning (meetings, discussions, etc.). The Director referred to an e-mail and to minutes of meetings, of which she enclosed copies.

The Director did not address the complainant's remarks relating to the meeting of 9 January 2004.

In respect of the complainant's points under the second heading above, the Director referred to her points related to the first heading, above.

In respect of the third heading, the Director made the following comments:

(3)(a) The paper that the Director had received was insufficient, and she had therefore taken over part of the work finishing that paper.

(3)(b) The complainant's comment regarding the PHARE project was untrue, and unfair towards the other staff members who had worked very hard to realise the project. The Director enclosed a copy of the EUMC decision on the PHARE project concerned, showing that several other members of staff had been involved.

(3)(c) It is the responsibility of the Director to consider mission requests in the light of EUMC's interests. The Director had deemed that it was more in EUMC's interests that the complainant worked at the EUMC rather than going on the proposed missions.

(3)(d) The meeting during which the complainant had been asked to finish his presentation on time had been chaired by Mr K., who was the person who had sent the notes. The Director had agreed with Mr K. that these notes could be passed on to the complainant, whose presentation had not been focussed. At the other meeting referred to, the Director had informed the complainant that she wanted to answer a key question posed during the meeting. The complainant had not followed her request, but had answered himself in a manner at variance with the Director's views. The Director stated that it was unacceptable to her that a staff member denied her request to clarify a situation and spoke on his own, and that this was in fact a reason for a disciplinary procedure.

Further correspondence followed, in which the complainant and the EUMC's Director submitted more detailed arguments to the Management Board.

At a meeting which took place on 2-3 February 2004, the Executive Board of the EUMC set up a committee (the "Examining Committee") to investigate the complaint made by the complainant on 5 January 2004. The Committee investigated two issues that it had identified on the basis of the complainant's request: i) personal grievances and (ii) allegations of bad management and maladministration. The committee examined the complainant's and the Director's written and oral statements.

On the basis of the findings of the Examining Committee, the Management Board concluded, on 5 March 2004, that "there was insufficient evidence to justify a disciplinary board against the Director on either the personal grievances raised or the claims of mismanagement and maladministration [...] The Director has answered all charges made, providing a sound explanation to refute each allegation. A case for maladministration cannot be made". The Board noted, however, that "[w]hile the personal grievances raised by [the complainant] do not warrant an investigation by a disciplinary board, the review recognises that their cumulative nature indicates an extremely tense working atmosphere between the Director and [the complainant]."

In respect of the allegations of bad management and maladministration, the Board also concluded that these allegations did not justify the convening of a Disciplinary Board against the EUMC's Director. However, it also noted that "[...] some of the Director's explanations, as well as the nature of the charges made, indicate some inept management practices. It is clear that management procedures could be improved by enhancing transparency as well as participation and inclusion of staff. There also appears to be a certain lack of longer-term strategic planning, risk and impact assessment procedures". The Board urged the EUMC's Director to review and refine organisational management procedures on an ongoing basis.

The Board also noted that there did not appear to be an effective and recognised grievance procedure that was clear to members of staff.

In his complaint to the Ombudsman, the complainant made the following allegations and claim:

The complainant alleged that the EUMC's Director had bullied him, bypassed him in favour of other staff, and not provided him with enough information to enable him to fulfil his role as Head of Unit.

The complainant claimed that a Disciplinary Board should be convened to discuss his grievances against the EUMC's Director.

In respect of his claim, the complainant remarked that the Examining Committee that had investigated his request for a disciplinary procedure had not allowed him to comment on the Director's final statement and that there had been a conflict of interest in that one member of the Examining Committee had, subsequent to the complainant's request, applied for the complainant's post at the EUMC.

In light of the Management Board's finding that there did not appear to be an effective and recognised grievance procedure that was clear to members of staff, the Ombudsman decided that it would not be justified to reject the complaint on the basis of Article 2.8 of the Statute of the European Ombudsman(1).

THE INQUIRY

The EUMC's opinion

The complaint was sent to the EUMC for opinion. In its opinion, the EUMC stated that it considered the complainant's allegations to be unfounded and based on misunderstandings or misinterpretations. The EUMC's opinion contained a letter from the Chair of the Management Board, whom the EUMC's Director had asked for a statement on the present complaint. In that letter, the Chair gave an overview of how the Examining Committee had conducted its investigation into the complainant's grievances and allegations in his request of 5 January 2004, emphasising in particular that both parties had been given the opportunity to state their views and to know the other party's position.

In its opinion, the EUMC furthermore noted that the complainant had complained directly to the Ombudsman without using his right of redress under Article 90(2) of the Staff Regulations. The EUMC stated that this procedure applies to the EUMC.

The EUMC also noted that the complainant's employment contract had ended on 15 May 2004.

The complainant's observations

The EUMC's opinion was sent to the complainant for observations.

In his observations, the complainant stated that his request to the Management Board of 5 January 2004 was a request for a disciplinary procedure against himself, not against the Director of the EUMC. The complainant explained that this should be seen in the light of the tradition of Austrian civil servants, who sometimes ask for a disciplinary procedure against themselves when they wish to have their case dealt with. The complainant indicated that he did not consider that he could have made use of any other redress procedure internally. The complainant also maintained his allegations, and reiterated his comment that there had been a conflict of interest in the assessment of his request for a disciplinary procedure because a member of the Board's Examining Committee had applied for his post.

Further inquiries

After careful consideration of the EUMC's opinion and the complainant's observations, it appeared that further inquiries were necessary in respect of what appeared to be a misunderstanding regarding the procedure requested by the complainant on 5 January 2004. The Ombudsman therefore wrote to the EUMC, asking it for its view on the matter.

The EUMC's reply

In its reply, the EUMC stated that the complainant's request of 5 January 2004 for a disciplinary procedure could only have been understood to mean a disciplinary procedure against the EUMC's Director, not against the complainant himself. It also noted that it was difficult to understand why the complainant had waited so long to reveal this alleged misunderstanding.

The EUMC furthermore enclosed a copy of a document entitled "EUMC Human Resources Policy", dated October 2004. The document contained a detailed summary of the following issues: Internal Organisation, Recruitment, Career Development, Professional Life, Internal Communication, and Future Prospects. The category Future Prospects contained a sub-category entitled Team-Building and consistent approach, which was explained as follows: "The EUMC plans to organise Management Team training at the end of 2004 in order to reach high management standards, to support team-building, to be clear and consistent inside and outside the EUMC, and to follow one Human Resources policy on all management levels. A respective call for tender has already been done and evaluated".

The complainant's observations

The EUMC's comments were sent to the complainant, from whom the Ombudsman received no observations.

Additional inquires

The Ombudsman subsequently decided that further inquiries were necessary, and, on 18 April 2005, the EUMC was asked to respond to the following:

(1) From the complaint and the observations, the complainant appeared to consider (a) that he had not been allowed to comment on the final statement by the Director of the EUMC and (b) that there had been a conflict of interest in that one member of the Examining Committee investigating his case had applied for his post at the EUMC. The Ombudsman decided that these points should be treated as separate allegations in the present inquiry, and the EUMC was therefore asked to submit an opinion on these aspects of the case.

(2) In its conclusions of 5 March 2004, the EUMC Management Board made the following observations: "[i]t is clear that management procedures could be improved by enhancing transparency as well as participation and inclusion of staff. There also appears to be a certain lack of longer-term strategic planning, risk and impact assessment procedures". It was not clear from the EUMC's opinions in the present inquiry whether (a) the EUMC had accepted these observations, and (b), if so, whether it had taken corrective measures in this respect. As this issue might be relevant to the assessment of the complainant's allegations, the EUMC was therefore asked to also provide information on this matter.

The EUMC's reply

On 23 June 2005, the EUMC sent the Ombudsman the following comments:

With regard to the allegation that the complainant had not been allowed to comment on the final statement by the Director of the EUMC, the EUMC reiterated that the complainant's complaint of 5 January 2004 had been understood to contain the claim that disciplinary proceedings should be opened against the Director of the EUMC (and not against the complainant himself). As disciplinary procedures potentially endanger the integrity and the social standing of a person, such procedures are subject to confidentiality. Article 6 of Annex II of the Staff Regulations, in force at the time, expressly established this duty of confidentiality.

In a letter of 15 June 2004 to the EUMC's Director, the Chair of the EUMC Management Board had explained in some detail how the Board had informed itself about the matter. The Chair ensured, in summary, that both parties had been given access to each other's claims and comments at all stages of the process.

Thus, even if the complainant did not have access to all the documents of the disciplinary procedure, this would be covered by the principle of confidentiality for disciplinary procedures.

With regard to the allegation that there had been a conflict of interest in that one member of the team examining his case had, subsequent to the complainant's request, applied for his post at the EUMC, the EUMC confirmed that the official concerned, Mr S., had been a member of the Examining Committee investigating the complainant's complaint of 5 January 2004. However, as the complainant himself wrote in his letter of 22 September 2004, Mr S. did not participate in the fact-finding mission.

In the later recruitment procedure concerning the position of Head of the Unit Research and Networks, the selection committee, which also included an external member, proposed on 3 May 2004, to recruit somebody else other than Mr S. The latter had not received sufficient points to qualify for the reserve list, and he was therefore not offered the post. Thus, he did not in any way benefit from the outcome of the disciplinary procedure here concerned.

Moreover, the complainant had himself decided not to ask for renewal of his staff contract before he asked for the Disciplinary Board to be convened. Thus, Mr S. had no role in the complainant's decision not to ask for a renewal of his staff contract.

With regard to the conclusions of the EUMC Management Board of 5 March 2004, the EUMC stated that it had not accepted those conclusions. The EUMC had, however, found that the Board was in need of more information on existing management procedures intended to enhance transparency, inclusion of staff, strategic planning, and risk and impact assessment. During a subsequent meeting with the Board, the Director of the EUMC had given a presentation on the internal management aspects of the EUMC to meet this perceived need to better inform the Board.

The EUMC was continuously improving its internal organisation and its human resources policies. It had taken great effort to improve its organisation, for instance management team-training, implementation of 24 internal control standards, recruitment of an internal audit capacity, and the development of key procedures.

The complainant's observations

The EUMC's reply was sent to the complainant, from whom the Ombudsman received no observations.

THE DECISION

1 Introductory remarks

1.1 The complaint was made by a Head of Unit of the European Monitoring Centre on Racism and Xenophobia ("EUMC"). On 5 January 2004, the complainant had asked the Chair of the EUMC Management Board to convene a Disciplinary Board to give him the opportunity to have his case discussed. The EUMC Executive Board set up a committee (the "Examining Committee") to examine whether it would be relevant to set up a Disciplinary Board. On 5 March 2004, the Chairman of the EUMC Management Board informed the complainant that, following the examination of the matter by the Examining Committee, the Board had decided to reject the complainant's request. In its conclusions, the Board stated that three categories of allegations had been identified, namely "withholding information", "bypassing" and "bullying", and that each of these categories of allegations contained a number of claims. According to the Board, "all claims concern relatively minor incidents which tend to occur within most administrative systems without necessarily being perceived as grievances". "Especially during the interviews it became clear that many incidents which led to [the complainant's] claims were based on misunderstandings, either relating to communication or to a divergent understanding of roles and responsibilities". "The remaining incidents to which the claims refer have been exhaustively explained by the Director so as not to warrant further examination". "While the personal grievances raised by [the complainant] do not warrant an investigation by a disciplinary board, the review recognises that their cumulative nature indicates an extremely tense working atmosphere between the [EUMC's] Director and [the complainant]". The Board furthermore noted that the examination of the complainant's allegations had revealed some inept management practices, and it accordingly urged the Director to make improvements to management practices. The Board also noted that there did not appear to be an effective and recognised grievance procedure that was clear to members of staff.

1.2 In his complaint to the Ombudsman, the complainant alleged that the EUMC's Director had bullied him, bypassed him in favour of other staff, and not provided him with enough information to enable him to fulfil his role as Head of Unit. He claimed that a Disciplinary Board should be convened to discuss his grievances against the EUMC's Director.

1.3 In its opinion, the EUMC rejected the complainant's allegations, stating that they were based on misunderstandings and/or misinterpretations. The EUMC furthermore noted that the complainant had complained directly to the Ombudsman without using his right of redress under Article 90(2) of the Staff Regulations.

1.4 In his observations, the complainant maintained his allegations. He also stated that the disciplinary procedure that he had requested was a disciplinary procedure against himself, not against the Director of the EUMC. The complainant explained that this should be seen in the light of the tradition of Austrian civil servants, who sometimes ask for a disciplinary procedure against themselves when they wish to have their case dealt with. The complainant indicated that he did not consider that he could have made use of any other redress procedure internally. The Ombudsman therefore made further inquiries in order to clarify this point. In its reply, the EUMC stated that it could only have interpreted the complainant's request for a disciplinary procedure as a request for a disciplinary procedure against the EUMC's Director. The complainant has not made further comments to clarify the matter.

1.5 The submissions of the parties in this case make it necessary to address two issues in these introductory remarks. The first concerns the Ombudsman's decision that the present complaint was admissible. The second concerns the nature of the complainant's request of 5 January 2004 to the Management Board.

1.6 The Ombudsman points out that Article 11 of the Council Regulation establishing the European Monitoring Centre on Racism and Xenophobia(2) provides that the staff of the Centre "shall be subject to the Regulations and Rules applicable to officials and other servants of the European Communities". The Ombudsman therefore understands the EUMC's reference to Article 90(2) of the Staff Regulations to mean that the EUMC applies Article 46 of the Regulations and Rules applicable to officials and other servants of the European Communities, which provides that Title VII of the Staff Regulations, concerning appeals, shall apply by analogy. With regard to the decision that the complaint here concerned was admissible, the Ombudsman points out that the communication sent to the complainant on 5 March 2004 (referred to above), which was enclosed in the complaint, contained the statement by the EUMC Management Board that "there did not appear to be an effective and recognized grievance procedure that was clear to members of staff [at the EUMC]". It was on this basis that the Ombudsman decided that it would not be appropriate to reject the complaint on the basis of Article 2.8 of the Statute of the European Ombudsman(3). In light of the above, the Ombudsman finds no reason to change his decision on the admissibility of the complaint.

1.7 With regard to the issue of the nature of the complainant's request for a disciplinary procedure, the Ombudsman notes that there appears to be a disagreement between the EUMC and the complainant as to what disciplinary procedure the latter actually requested in his letter of 5 January 2004 to the EUMC's Management Board. This, however, only became clear from the complainant's observations, submitted on 22 September 2004. The further inquiries made by the Ombudsman to clarify this issue have merely shown that the misunderstanding persists and that the complainant essentially considers that the object of the Management Board's examination into his request of 5 January 2004 was completely different from the one that he had in mind.

1.8 It should be noted that the Ombudsman, in opening his inquiry into this complaint, also understood the complainant's request of 5 January 2004 to be a request for a disciplinary procedure against the EUMC's Director. Having re-examined the complainant's request of 5 January 2004, and taking into account the EUMC's remarks on this issue, the Ombudsman considers that the EUMC's interpretation of that request was reasonable.

1.9 The Ombudsman furthermore points out that it was on the basis of that interpretation of the complaint that the Ombudsman identified the complainant's allegations and, in particular, his claim that "a Disciplinary Board should be convened to discuss his grievances against the EUMC's Director". Given that the disciplinary procedure referred to in this claim appears to be different from the one that the complainant himself had in mind, it would not be appropriate for the Ombudsman to review that claim in the present inquiry. As regards the complainant's allegations, the Ombudsman considers that these are severable from the above claim and hence will be examined as to their merits.

2 The allegations of bullying, bypassing and failure to provide information

2.1 The complainant's allegations - that the EUMC's Director had bullied him, bypassed him in favour of other staff, and not provided him with enough information to enable him to fulfil his role as Head of Unit - had been rejected by the EUMC. The complainant's allegations had already been the subject of an assessment by the EUMC's Management Board, as described in detail above.

2.2 As regards the complainant's allegation that the EUMC's Director had bullied him, bypassed him in favour of other staff, and not provided him with enough information to enable him to fulfil his role as Head of Unit, the Ombudsman first notes the content of the letters of 16 and 28 January 2004 to the Management Board, from the complainant and the EUMC's Director respectively. In his letter of 16 January 2004, the complainant set out his allegations in detail.

2.3 The complainant sent a copy of his letter to the EUMC's Director, who on 28 January 2004 addressed the complainant's points in the above-mentioned letter to the Management Board.

2.4 In its decision, communicated to the complainant on 5 March 2004, the Management Board concluded that the complainant's claims concerned relatively minor incidents which tend to occur within most administrative systems "without necessarily being perceived of as grievances". It found that it was clear that many of the incidents which had led to the claims were based on misunderstandings, either relating to communication or to a divergent understanding of roles and responsibilities, and that the other incidents concerned had been adequately explained by the Director so as not to warrant further examination. On the basis of these considerations, the Management Board thus decided not to initiate disciplinary proceedings against the EUMC's Director.

2.5 Given that the decision whether to open disciplinary proceedings lies with the Appointing Authority of the Community institution or body concerned(4), and cannot be substituted by the Ombudsman, the Ombudsman's review of the findings underlying such a decision is limited to an assessment as to whether those findings were vitiated by manifest errors of appraisal. The Ombudsman's review of the findings of the EUMC Management Board in this case is limited accordingly.

2.6 The Ombudsman considers that he has not been provided with any evidence that enables him to conclude that there were any manifest errors of appraisal in respect to the findings of the EUMC's Management Board. The Ombudsman cannot, therefore, find any maladministration regarding this aspect of the case.

3 Allegation of failure to allow the complainant to comment

3.1 In further inquiries, the Ombudsman asked the EUMC to submit an opinion on the complainant's allegation that he had not been allowed to comment on the final statement by the Director of the EUMC.

3.2 In its opinion, the EUMC reiterated that the complainant's complaint of 5 January 2004 had been understood to contain the claim that disciplinary proceedings should be opened against the Director of the EUMC (i.e., not against the complainant himself). As disciplinary procedures potentially endanger the integrity and the social standing of a person, such procedures are subject to confidentiality. Article 6 of Annex II of the Staff Regulations in force at the time expressly established this duty of confidentiality. In a letter of 15 June 2004 to the EUMC's Director, the Chair of the EUMC Management Board explained in detail how the investigation into the complaint had been conducted. The Chair ensured, in summary, that both parties had been given access to each other's claims and comments at all stages of the process.

3.3 The Ombudsman received no observations from the complainant on the EUMC's opinion.

3.4 The allegation submitted to the EUMC for opinion was formulated on the basis of the complainant's statement that "[...] I did not get the opportunity to see or comment on the Director's reply before the [...] committee closed the case".

3.5 According to the information contained in the EUMC's opinion, no disciplinary committee was convened in response to the complainant's complaint of 5 January 2004 to the EUMC Management Board. The rule of secrecy referred to by the EUMC therefore does not appear to be applicable to the facts of the present case, which concerns a preliminary investigation into the claim that a disciplinary committee should be convened.

3.6 Furthermore, the letter of 15 June 2004 from the Chair of the EUMC Management Board to the EUMC's Director contained an account of the procedure and working methods adopted in order to examine the complainant's claim. The Chair explained that "[b]oth parties were given access to each other's claims and comments at all stages of the process, and both were invited to submit their comments and responses to the Executive Board. The Board took all evidence into account and made a final decision only when it was satisfied that all evidence had been presented and considered."

3.7 The Ombudsman notes that the institution concerned has a margin of discretion as to how to conduct its inquiry into the type of request here at issue, subject to the duty to examine carefully and impartially all the relevant aspects of the individual case(5). In the present case, this duty implied, as the Management Board itself suggested in its above-mentioned letter of 15 June 2004, that the complainant would be given access to the Director's claims and comments at all stages of the process, and be invited to submit comments. In order to fully respect this duty, it would therefore have been necessary to provide the complainant with the Director's statement on his allegations before closing the inquiry. The Ombudsman has received no concrete evidence refuting the complainant's factual allegation that this was not done.

3.8 In light of the foregoing, it appears that the complainant was not given the opportunity to comment on the Director's statements on his allegations before the inquiry was closed, and this constituted an instance of maladministration. A critical remark is made below.

4 Allegation of conflict of interest

4.1 The complainant alleged t hat there had been a conflict of interest in that one member, Mr S., of the Examining Committee investigating his complaint, on behalf of the EUMC Executive Board, had applied for the complainant's post at the EUMC.

4.2 In its opinion, the EUMC confirmed that the official concerned had been a member of the Executive Committee investigating the complainant's complaint of 5 January 2004. However, Mr S. had not participated in the fact-finding mission. In the ensuing recruitment procedure concerning the position of Head of the Unit Research and Networks, the selection committee, which also included an external member, proposed on 3 May 2004, to recruit somebody else other than Mr S. He had not received enough points to qualify for the reserve list, and he was therefore not offered the post. Thus, he did not in any way benefit from the outcome of the disciplinary procedure here concerned. Moreover, the complainant had himself decided not to ask for renewal of his staff contract before he asked for the Disciplinary Board to be convened. Thus, Mr S. had no role in the complainant's decision not to ask for a renewal of his staff contract.

4.3 The Ombudsman received no observations from the complainant.

4.4 It appears from the above that the EUMC has not disputed that Mr S., who had applied for the complainant's post, was also a member of the Examining Committee investigating the complainant's complaint of 5 January 2004 to the EUMC Management Board. However, the EUMC has, in essence, argued that since the official concerned did not obtain any concrete benefit from his membership of the Examining Committee, there had been no conflict of interest.

4.5 The Ombudsman points out that Article 41 (1) of the European Union's Charter of Fundamental Rights provides that "[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union." The Ombudsman furthermore notes that according to the case-law of the Court of Justice, respect of the rights guaranteed by the Community legal order in administrative procedures include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case(6). The Ombudsman considers that principles of good administration require that the Community institutions and staff must not only act impartially, but also demonstrate their impartiality by avoiding any action which could lead to their impartiality being reasonably called into question(7). In a case such as the present one, this implies that the participation in the examining committee of a person whose impartially may reasonably be called into question must be viewed as undermining the fairness of the administrative procedure at issue and, hence, an instance of maladministration.

4.6 The Ombudsman notes that the decision whether to select Mr S. for the post concerned would in the end have had to be taken by the EUMC's Director. The complainant's complaint of 5 January 2004 had been understood to be a complaint against the Director. Thus, Mr S. was effectively taking part in the examination of a complaint about bullying and maladministration against a person who would potentially have to consider whether to employ him following a recruitment procedure taking place at the time. In these circumstances, the Ombudsman considers that the impartiality of Mr S. could reasonably be called into question, and consequently that his participation in the Examining Committee undermined the fairness of the procedure. This constituted an instance of maladministration, and the Ombudsman makes a critical remark below.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Monitoring Centre on Racism and Xenophobia ("EUMC") in respect of the complainant's allegations of bullying, bypassing and lack of information.

In respect of the complainant's allegations (a) that he had not been allowed to comment on the final statement by the Director of the EUMC and (b) that there had been a conflict of interest in that one member of the Examining Committee investigating his case on behalf of the EUMC Management Board had applied for his post at the EUMC, it is necessary to make the following critical remarks:

1. In light of the findings in point 3 above, it appears that the complainant was not given the opportunity to comment on the Director's statements on his allegations before the inquiry here concerned was closed, and this constituted an instance of maladministration.
2. With regard to the allegation of a conflict of interest, related to the fact that a member of the Examining Committee, Mr S., had applied for the complainant's post, the Ombudsman notes that the decision whether to select Mr S. for the post concerned would in the end have had to be taken by the EUMC's Director. The complainant's complaint of 5 January 2004 had been understood to be a complaint against the Director. Thus, Mr S. was effectively taking part in the examination of a complaint about bullying and maladministration against a person who would potentially have to consider whether to employ him following a recruitment procedure taking place at the time. In these circumstances, the Ombudsman considers that the impartiality of Mr S. could reasonably be called into question, and consequently that his participation in the Examining Committee undermined the fairness of the procedure. This constituted an instance of maladministration.

The Director of the European Monitoring Centre on Racism and Xenophobia will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) “No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)”(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, Official Journal 1994 L 113, p. 15).

(2) Official Journal 1997 L 151 p. 1.

(3) “No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)” (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, Official Journal 1994 L 113, p. 15).

(4) Cf. Case T-242/97 Z. v European Parliament [1999] ECR-SC IA-77;II-401, paragraph 19.

(5) Case C-269/90 Technische Universität München v Hauptzollamt München-Mitte [1991] ECR I-5469, paragraph 14.

(6) Case C-269/90 Technische Universität München v Hauptzollamt München-Mitte [1991] ECR I-5469, paragraph 14.

(7) The European Ombudsman's decision on complaint 751/2000/(BB)IJH, point 4 of the draft recommendation cited therein.