Strasbourg, 16 July 2008

Dear Mr X,

On 7 February 2005, you made a complaint to the European Ombudsman concerning the grading of your contract as temporary agent with the European Agency for the Evaluation of Medicinal Products (hereafter: "the EMEA").

On 22 March 2005, I forwarded the complaint to the Executive Director of the EMEA. The EMEA sent its opinion on 20 May 2005. I forwarded it to you with an invitation to make observations, which you sent on 20 July 2005. On 14 November 2006, I wrote to the EMEA seeking a friendly solution to your complaint.

On 14 November 2006, I addressed a proposal for a friendly solution to the EMEA. You were informed accordingly the same day.

The EMEA sent its opinion regarding this proposal on 4 December 2006.

On 15 January 2007, I forwarded to you the EMEA's reply to my proposal for a friendly solution, with an invitation to make observations.

On 14 February 2007, you submitted your observations on the EMEA's reply to my proposal for a friendly solution.

On 22 January 2008, I made a draft recommendation to the EMEA to offer the complainant reasonable financial compensation amounting to a total of EUR 4220.49 in order to correct the acknowledged error in the grade provided for in his temporary agent contract.

On 26 February 2008, the EMEA accepted my draft recommendation.

On 16 March 2008, the complainant sent an e-mail in which he commented on the wording of the Ombudsman's draft recommendation.

On 8 July 2008, the Ombudsman's services contacted the complainant to seek confirmation that the EMEA had paid the above-mentioned financial compensation of EUR 4220.49. The complainant confirmed having received the compensation. He thanked the Ombudsman's services for this positive outcome.

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

THE COMPLAINT

Background

In June 2003, the complainant, who holds an M.D. and Ph.D. and was a Senior Lecturer in immunology, applied for temporary agent position EMEA/A/173 Administrator (scientific) in the unit for human medicinal products, pre-authorisation evaluation (A7)(1), as advertised by the European Agency for the Evaluation of Medicinal Products ("the EMEA"). This position was provided for in the relevant notice as a post of grade A7 "or relevant grade in new AD grading structure".

On 19 January 2004, the complainant requested salary information regarding the position in question. On 2 February 2004, the EMEA sent a letter in which it attached a salary sheet for grade A7 step 1 with a basic salary of EUR 4815.59.

On 10 February 2004, the EMEA sent a formal letter to the complainant informing him about its intention to recruit him, without any reference to grade and step level.

On 12 March 2004, at the time of the complainant's pre-employment medical examination, the EMEA gave his salary information for A7 step 3, which had a basic salary of EUR 5294.83.

On 24 March 2004, he made an inquiry, by e-mail, to the EMEA regarding the possibility of obtaining a higher grade, namely, A5/A6.

On 14 April 2004, the EMEA offered the complainant an A6 step 2 Temporary Agent/Scientific Administrator contract from 16 July 2004 onwards, which was signed by its Executive Director.

On 17 April 2004, the complainant signed this contract and resigned from his position in the pharmaceutical industry.

Subsequently, on 26 April 2004, he was informed by the Personnel Administrator of the EMEA that his grade was A*6 and not grade A6 as stated in his contract and thus the basic salary was even lower than the salary corresponding to grade A7, namely, EUR 4492.73.

According to the complainant, based on all the documents and correspondence from the EMEA, it was not possible to guess that the actual grade was not the one which appeared on the signed contract. The complainant had over 15 years of work experience since obtaining his university degree, including over ten years of experience as a senior pharmaceutical officer.

The complainant considered that the EMEA should have provided him with accurate, clear and adequate information about his contractual situation in light of the new Staff Regulations. The EMEA had over three weeks, from the adoption of the new Staff Regulations on 22 March 2004 until 14 April 2004, to inform the complainant about the changes before offering him the contract. The letter informing him of the EMEA's intention to recruit him and the summary of the Terms and Conditions of the Temporary Agent contract sent to him on 10 February 2004 should have mentioned the potential changes after 1 May 2004 when the Staff Regulations entered into force. The complainant underlined that, in the above-mentioned letter, it was stated that the attached documents would be used to determine his precise salary grading and step, indicating that it was possible to obtain a grading higher than A7. In the complainant's view, had the EMEA informed him about the changes in due time, many misunderstandings could have been avoided.

The complainant underlined that he had to resign from his position in the pharmaceutical industry and move his household, which includes three school-aged children, to London in order to take up his duties on 16 July 2004.

Although the complainant had tried to clarify his contract status on 17 May 2004 and 3 and 4 August 2004(2), it took over five months before the EMEA acknowledged, on 7 September 2004, that there was a mistake in his contract. On that same day, the EMEA requested the complainant to sign a new contract with a decreased grading from A6 to A*6 on the grounds that an oversight had occurred in typing the grading level in his contract.

On 8 October 2004, the complainant made an Article 90 complaint to the Executive Director of the EMEA. On 15 November 2004, the Executive Director replied stating that it was only possible to offer him an A*6 contract, as no other corresponding grade existed in the new Staff Regulations. The complainant was asked to sign a new contract at grade A*6. On 21 January 2005, the Head of Administration of the EMEA gave him an oral warning that, in the event that he did not sign the new contract, he could be dismissed at any time even if an official complaint procedure were ongoing. In the meantime, on 15 January 2005, he successfully completed his probationary period.

In his complaint to the Ombudsman, the complainant alleged that the EMEA:

1. Failed to provide adequate information to him about his contractual situation in light of the new Staff Regulations;
2. Unfairly attempted to reduce his grading to a level below that provided for in the contract he originally signed with the EMEA.

The complainant claimed that under the new Staff Regulations he should be graded as A*10 or A*8 with effect from the date he took up his duties.

THE INQUIRY

The EMEA's opinion

The EMEA's opinion on the complaint can be summarised as follows:

The EMEA provided several training sessions to the administrative staff throughout the year 2004 including an information session provided by the European Commission on 14 May 2004. According to the EMEA, mastering all the changes introduced by the new Staff Regulations remained a major issue in 2004 although the EMEA started its planning process well in advance. Consolidation of the implementing rules under the new Staff Regulations was still ongoing in 2005. The EMEA's Administration continued to have monthly contacts with the Commission in order to clarify some remaining minor aspects of the new Staff Regulations.

The EMEA argued that a typing error occurred which added to the confusion as the complainant's contract mentioned the grade A6 and not A*6 as was intended. The complainant was fully aware that only a typing error had occurred. He was promptly informed of the mistake before he took up the appointment in July 2004 by e-mails of 26 March 2004 and 26 April 2004 from the Personnel Administrator and by letter of 25 May 2004 from the Head of Unit Administration.

The complainant submitted a first complaint concerning his grading on 4 August 2004, to which he received a reply from the Head of Unit Administration on 7 September 2004. He lodged a further complaint on 8 October 2004, which was rejected by the Executive Director on 15 November 2004.

The EMEA maintained that he had accepted and signed, without marking any comments, the final probation report on 14 December 2004. This document cited clearly grade A*6.

The EMEA explained that, in recruiting new staff members, it followed strictly the Staff Regulations. Although the new Staff Regulations were adopted on 22 March 2004, the EMEA was informed only on 6 April 2004 of the final version (the EMEA attached to its opinion a copy of an e-mail of 6 April 2004 by which the Commission service informed the Administration of the EMEA about the final version of new Staff Regulations adopted by the Council on 22 March 2004). Article 12(3) of Annex XIII and Article 1(2) of Annex XIII of the Staff Regulations had to be immediately taken into consideration for new EMEA Temporary Agents who were being employed after 1 May 2004.

Under Article 12(3) of Annex XIII, officials who had been included before 1 May 2004 on a list of suitable candidates following a selection procedure published at grade A7 and whose date of entry into service was between 1 May 2004 and 30 April 2006 had to be graded upon recruitment as A*6. Under Article 1(2) of Annex XIII any reference to the date of recruitment shall be taken to refer to the date of entry into service.

Therefore, in accordance with Article 12(3) of Annex XIII and Article 1(2) of Annex XIII, it was not possible to offer the complainant any other grade. The EMEA did not consider this situation to constitute an attempt to reduce the complainant's grading to a level below that provided for in the contract he signed. Several other candidates affected by the same Articles refused the EMEA's recruitment offer, because of the reduced salary figures. Although he was aware of the change, the complainant nevertheless decided to take up service anyway and started working at the EMEA on 16 July 2004.

The EMEA underlined that Article 12(3) of Annex XIII in the adopted new Staff Regulations represented a change with respect to the previously known Commission proposal, which was the only public document available until 6 April 2004. In the previous proposal it was stated that the recruitment level of successful candidates from an A7 selection procedure would have been A*7 and not A*6 as later modified in the adopted version. This "last minute" change in the legislation meant that, immediately after 6 April 2004, the EMEA's administration had to rewrite several contracts and grading classifications for several candidates whom it was about to recruit at the same time with a foreseen starting date after 1 May 2004.

The EMEA's Executive Director regretted that the salary figures initially assumed had to be reviewed following the final contract in light of the revised Staff Regulations(3). A revised contract was sent to the complainant on both occasions. The complainant had not signed and returned the revised contract with the asterisk even though, under the Staff Regulations, he was bound to do so.

The EMEA concluded that it had explained to the complainant about the typing error and provided him with information about his contractual situation prior to him taking up service and repeatedly following his appointment. The EMEA did not attempt unfairly to reduce his grading. The EMEA had only applied the new Staff Regulations.

Finally, it referred in detail to the detailed reply sent by the Executive Director on 15 November 2004 to the complainant's complaint under Article 90(2) of the Staff Regulations. In that reply, the EMEA explained, in essence, that an oversight had occurred in the typing of the grade in the complainant's contract, which was issued on 14 April 2004 for his entry into service as of 16 July 2004. The EMEA also referred to the process of adoption of Staff Regulations. It recalled that, in the Commission proposal for the new Staff Regulations, dated 24 April 2002, the old grades without asterisks were replaced by grades with asterisks. Draft Article 12 of Annex XIII, which established the correspondence between the published grade and the grade of recruitment, did not clarify the recruitment level of successful candidates from an A7 selection procedure according to the new grading structure.

As regards information exchange between the EMEA and the complainant, the Executive Director referred to the advertisements published by the EMEA in the Official Journal with respect to the selection procedure EMEA/A/173 which mentioned in fact the grade "A7 or relevant grade in the new AD grading structure". The corresponding grade for an A7 selection procedure was not defined in the draft Staff Regulations at the time.

On 29 June 2003, the complainant sent his application. On 2 February 2004, the EMEA sent to the complainant salary information for A7 step 1 without any additional allowances giving a basic salary of EUR 4815.59. Information was given without any clear idea about the potential starting date of his contract.

On 10 February 2004, the EMEA sent a letter informing the complainant of its intention to recruit him. No statement was made about a potential grading level upon entry into service.

On 24 February 2004, the complainant informed the EMEA about his intention to delay the recruitment due to his busy work schedule and also because he wished to start his new job at the beginning of the school year for the sake of his children.

On 12 March 2004, at the time of the complainant's pre-employment medical examination, the final version of the adopted Staff Regulations was not yet available. For that reason, the Personnel Administration informed him of the salary information for A7 step 3, which was, for the basic salary, EUR 5294.83 on the basis of the old Staff Regulations. According to the Executive Director, the Personnel Administration told him orally that the new Staff Regulations would apply from 1 May 2004 for a contract to start from that day and that the EMEA needed more time than usual to prepare the contract as it had to verify the correct grading level according to the new rules.

On 16 March 2004, the complainant informed the EMEA that he would start his new employment at the Agency on 16 July 2004.

On 22 March 2004, the Council approved the new Staff Regulations, but the EMEA did not yet have a copy of the approved version.

On 24 March 2004, the complainant raised the question of whether it was possible to be graded above A7 as he was not satisfied with being given an A7 grade and he asked how to apply for an upgrading.

On 24 March 2004, the Personnel Administration informed the complainant that an appeal could only be made in writing after arrival once the pertinent administrative decision had been taken, but the complainant was cautioned that a grading at a higher level was unlikely and that the reform of the Staff Regulations entering into force on 1 May 2004 would end this practice.

On 26 March 2004, the complainant asked again about the issue of a potential appeal with respect to his grading. In particular, the complainant asked to whom he should apply in order to obtain a higher grade above A7. According to the EMEA, it was clear that the complainant was dissatisfied with the grade advertised in the Official Journal for his position.

By e-mail of the same day, the Administration replied that an appeal could be made once the pertinent administrative decision was taken, namely, once the contract has been issued, in writing, to the Executive Director. The Administration also informed the complainant that the new Staff Regulations had been approved and that, under them, it would not be possible to be graded higher than A*7 step 2, which meant a salary decrease of GBP 200 on the initial figures. The Administration warned the complainant about the impact that Article 12 of Annex XIII would have the grade of an official with an entry date after 1 May 2004.

On 6 April 2004, the final version of the new Staff Regulations became available to the EMEA.

On 14 April 2004, the contract was issued according to the less favourable grade as prescribed by Article 12(3) of Annex XIII of the approved Staff Regulations. In addition, a typing error occurred.

On 17 April 2004, the complainant received the contract, signed it and informed his employer of his decision to resign.

On 26 April 2004, the Administration clarified by e-mail that the grade was in accordance with the Staff Regulations, indicating his new monthly basic salary of EUR 4492.73 together with a copy of the new Staff Regulations and a clear reference to Article 12(3) of Annex XIII, as well as Article 32 and Article 66 of the Staff Regulations. The Administration made clear to the complainant that a precise calculation according to the new Staff Regulations was not available yet. This clarification was given to the complainant just one week after the date he had signed the contract and the date he resigned from his previous employment.

On 17 May 2004, the complainant sent an e-mail in which he stated that he was confused and that he wanted to obtain a legal opinion/interpretation. Even though the complainant admitted that the relevant Articles were explained to him on 26 April 2004, he was confused about the grading to be applied.

On 25 May 2004, the Administration informed the complainant, once more officially by letter, that the new Staff Regulations would apply according to the foreseen date of entry into service, that is, in his case, from 16 July 2004. In that letter, the Administration apologised to the complainant with regard to his disappointment that the salary figures initially assumed had to be reviewed following the final contract issued in accordance with the revised Staff Regulations. The complainant was reminded that an offer had been made which in no way committed him, but which left him every possibility to reconsider. No official salary calculations were given to the complainant.

On 27 May 2004, when the new salary calculator became available, a more detailed salary guideline was provided to the complainant, but it was clearly explained to him orally that it was only a draft calculation which in no way would bind the EMEA, as some issues regarding the family allowances were still unclear.

On 16 July 2004, the complainant entered into service at the EMEA.

The EMEA concluded that, on several occasions prior to 14 April 2004, it informed the complainant that the new Staff Regulations would enter into force on 1 May 2004 and would apply to his contract. The Personnel of the EMEA kept the complainant informed about his entitlements, according to its evolving knowledge of the new Staff Regulations.

The EMEA regretted the misunderstanding that occurred as a result of major changes of rules and regulations, and that, in addition, a typing error had added to the confusion. A revised contract was submitted for the complainant to sign.

The complainant's observations

In his observations, the complainant made, in summary, the following points:

The complainant contested the EMEA's argument that he was fully aware that only a typing error had occurred. He underlined that he was "absolutely" unaware of this. Based on all the discussions and correspondence with the EMEA as well as on the documents provided by it, it was impossible to guess that his grade would not be the one stated in his contract.

The complainant considered that he was not promptly informed of the mistake in the contract. On 26 March 2004, the complainant was only informed about a decrease in step from step 3 to step 2, and was again, falsely, informed about his A*7 grading. According to the complainant, he thought that the asterisk at that stage was another typographical error in a sloppily written sentence, as there was also a completely wrong date in the same sentence and the asterisk had never been mentioned anywhere else.

The complainant maintained that he was informed of the new Staff Regulations only on 26 April 2004. He did not consider this as "prompt" information, as this was 12 days after the contract had been offered and signed by the EMEA, nine days after the complainant had signed the contract and resigned from his previous employment, five weeks after the new Staff Regulations were adopted, four weeks after the EMEA had received at least part of the new Staff Regulations, and 20 days after the date the EMEA told the complainant that it had received the final version of the new Staff Regulations. The complainant found this delay completely unprofessional and unacceptable.

The EMEA in fact acknowledged that there was an error in the complainant's contract only in its letter of 7 September 2004 from the Head of Unit Administration.

The complainant maintained that he tried to clarify his contractual status continuously before and since his arrival at the EMEA, not only on 4 August 2004 as stated by the EMEA. On 17 May 2004, the complainant wrote to his immediate supervisor and he initiated a discussion with this supervisor immediately upon his arrival in July 2004. His supervisor asked him to address the Head of Unit Administration. The complainant met the Head of Unit on 3 August 2004.

According to the complainant, the statement that the new Staff Regulations became available to the EMEA only on 6 April 2004 was only part of the truth, as the EMEA must have had the new Staff Regulations available already on 26 March 2004, since it was as of that date that the complainant was told about the new change in step. The complainant was told about the change only on 26 April 2004. Moreover, the complainant was of the view that it was not enough or fair to send a new contract offer without any explanations with respect to the new grading.

The complainant underlined that he did not have the possibility to consider refusing the employment offer, as at the time he was told about the new unfavourable terms and conditions of the contract, he had already signed the contract and resigned from his earlier long-term senior position in the pharmaceutical industry, and thus had no other choice than to take up the employment.

The complainant argued that the EMEA should have made use of its best efforts to clarify with the Commission, immediately after 22 March 2004, the impact of the new Staff Regulations on new contracts, and thus properly and in due time, inform the new candidates of these changes before they were offered a contract.

The complainant was of the view that the EMEA should have admitted and apologised for the major mistake it had committed, as a result of which the complainant was informed of the changes in the terms of his contract after he had accepted the contract.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and the complainant's observations, the Ombudsman was not satisfied that the EMEA had responded adequately to the complainant's allegations that the EMEA failed to provide adequate information to the complainant about his contractual situation in light of the new Staff Regulations.

The proposal for a friendly solution

On 22 January 2008, the Ombudsman made the following proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the Ombudsman:

The EMEA could consider:

1. Acknowledging that it failed to provide the complainant with accurate, clear and adequate information about his contractual situation in light of the new Staff Regulations.
2. Offering the complainant reasonable financial compensation in order to correct the error in the grade provided for in the complainant's temporary agent contract.

The proposal for a friendly solution was then made on the basis of the following considerations:

• The Ombudsman acknowledged that the EMEA lawfully, after having informed the complainant that "an oversight occurred in typing the grading level in [him] contract", considered that the complainant's grade should be A*6 in accordance with the new Staff Regulations.
• The Ombudsman observed that the complainant had inquired about his salary since January 2004 and for an upgrading to A5/A6 regarding the advertised A7 post before the EMEA issued, signed and offered him an employment contract on grade A6 on 14 April 2004.
• However, the Ombudsman further observed that the EMEA had provided the complainant with inaccurate, unclear and inadequate information about his salary.
• This shortcoming concerned an essential element of the complainant's contract, namely, his salary. At a time when extensive amendments to the relevant legislation had recently been enacted, the Administration had a particular duty of diligence.
• Legislative changes might justify, depending on the circumstances, a reasonable delay, or appropriately formulated reservations, in the provision of information, but they cannot be used as an excuse for the provision of inaccurate, unclear and inadequate information.
• The contract proposed by the EMEA to the complainant and signed by both parties in April 2004 contained an error in one of the essential elements of a temporary agent contract, under Article 10(2) of the Conditions of Employment of other Servants of the Communities. This error, even if due to a typing oversight, as the EMEA has argued in its opinion, was still the result of considerable negligence on the part of the Agency.
• On the basis of the above arguments, the Ombudsman considered that the EMEA did not comply with the principle of good administration that the Administration should provide accurate, clear and adequate information to members of the public. The EMEA failed to give the complainant such high quality information as regards his grade, after the enactment of the new Staff Regulations and during the period preceding and following the conclusion of the complainant's temporary agent contract. In light of the above, the Ombudsman arrived at the preliminary conclusion that this failure to provide accurate, clear and adequate information could constitute an instance of maladministration (point 1.5 of the proposal for a friendly solution).

The EMEA's reply to the Ombudsman's proposal for a friendly solution

In its reply, the EMEA made, in summary, the following comments:

The EMEA regretted any misunderstanding which arose due to a typing error and following unexpected changes in the final version of the new Staff Regulations. The EMEA underlined that the Ombudsman acknowledged that, according to the new Staff Regulations, the complainant's grade A*6 was correctly determined.

According to the EMEA, the complainant was promptly informed of the mistake before he took up his appointment. He decided to take up the appointment and started with the EMEA on 16 July 2004, when he was aware of the change.

The EMEA referred to the several apologies offered to the complainant by its services. However, it reiterated that the determination of entitlements and consequent salary indications are always subject to the provision of full documentation with regard to personal and family circumstances. Any salary figures given in advance of receiving and verifying such documentation could only be indicative.

The EMEA underlined that it was awaiting the decision of the Court of First Instance in Case T-58/05(4), which concerned the following situation: (i) the grading of all staff who entered into a contract after 1 May 2004, (ii) having succeeded in a selection procedure, the notice of which was published before 1 May 2004, (iii) indicating the career structure applicable under the Staff Regulations in force until 30 April 2004 and (iv) who were recruited between 1 May 2004 and 30 April 2006 and (v) graded according to the provisions of Article 12(3) of Annex XIII of the Staff Regulations. If the Court of First instance were to decide that Article 13(2) of Annex XIII should not have been applied, then EMEA would retroactively (to the starting date of each individual contract) re-grade all the EMEA staff affected. The complainant is one of the staff to which Case T-58/05 would apply.

The EMEA explained that, taking into account the above-mentioned point made by the Ombudsman in his analysis that the EMEA lawfully considered that the complainant's grade should be A*6, it did not share the Ombudsman's recommendation aiming at granting some sort of financial compensation to the complainant, as it did not consider this measure appropriate.

The complainant's observations on the EMEA's reply to the Ombudsman's friendly solution proposal

The complainant maintained that the "typing error" as described by the EMEA resulted in major personal consequences for him as he resigned from his earlier post with the expectation of obtaining an A6 grading. Moreover, the complainant did not consider the EMEA's excuses in that respect to be valid because these unexpected changes were already known to the EMEA at the time it offered him the contract but did not inform him of the change in his grade.

The complainant underlined that he had forwarded his full personal data regarding himself and his family situation to the EMEA which had been verified on 12 March 2004. Thus, the EMEA had all the required documentation available to determine his grading correctly and providing him with accurate, clear and adequate information before offering him the contract. According to the complainant, the indicative nature of salary figures should not be used as an excuse for providing inaccurate, unclear and inadequate information before offering the contract.

The complainant argued that his case concerned considerable negligence and maladministration on the part of the EMEA. Thus, his case was different from the cases before the Court of First Instance. These other cases concern the alleged illegality of the new Staff Regulations, while the complainant's case could have been avoided by providing him with adequate information about his contractual situation in light of the new rules.

The Ombudsman's appraisal of the EMEA reply to the proposal for a friendly solution

First, the Ombudsman observed that the EMEA in its reply to his friendly solution appears to have misinterpreted the complainant's arguments. The Ombudsman is adamant that, in his complaint, the complainant has, in no way, questioned the legitimacy of Article 12(3) of Annex XIII of the Staff Regulations, which the complainant categorically pointed out in his last observations. The Ombudsman underlines that his inquiry has solely been carried out with respect to the EMEA's administrative actions and alleged failure to provide adequate information to the complainant about his contractual situation in light of the new Staff Regulations; and alleged unfair attempt to reduce his grading to a level below that provided for in the contract he signed with the EMEA.

Therefore, the Ombudsman concluded that, in the present case, the outcome of Case T-58/05 is not relevant and should not influence the Ombudsman's inquiry into the present case.

On the basis of the EMEA's opinion and the complainant's observations thereon, the Ombudsman concluded that no friendly solution could be achieved.

THE EUROPEAN OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 22 January 2008, the Ombudsman made the following draft recommendation:

The EMEA should consider:

1. Acknowledging that it failed to provide the complainant with accurate, clear and adequate information about his contractual situation in light of the new Staff Regulations.
2. Offering the complainant reasonable financial compensation in order to correct the acknowledged error in the grade provided for in his temporary agent contract. The Ombudsman is of the view that, in determining the amount of this reasonable financial compensation, the following calculation could be taken into account: the difference between what the complainant's monthly salary would have been at A6 step 2 and his actual salary at A*6 step 2, multiplied by three, which corresponds to the maximum three-month notice period which could have been given to terminate the erroneous contract. This calculation would amount to a total of EUR 4220.49.

The EMEA's detailed opinion

The EMEA accepted the Ombudsman's draft recommendation and agreed to pay the financial compensation of EUR 4220.49 to the complainant.

The telephone conversation with the complainant dated 8 July 2008

The complainant confirmed having received the above-mentioned financial compensation and thanked the Ombudsman's services for this positive outcome.

THE DECISION

1 Alleged unfair grading

1.1 On 10 February 2004, the complainant, who had held a long-term senior position in the pharmaceutical industry was accepted for a position of temporary agent in the European Agency for the Evaluation of Medicinal Products ("the EMEA"). With respect to the above offer of employment, on 2 February 2004, the EMEA sent him a letter in which it attached a salary sheet for grade A7 step 1 with a basic salary of EUR 4815.59. On 12 March 2004, the EMEA informed him that his category would be A7 step 3 with a basic salary of EUR 5294.83. On 22 March 2004, the draft new Staff Regulations providing, inter alia, a different system of grades and corresponding salaries, were adopted by the Council. On 24 March 2004, the complainant asked the EMEA about the possibility of obtaining a higher grade, namely, A5/A6, and, on 14 April 2004, he was offered an A6, step 2 contract. On 17 April 2004, the complainant signed this contract and resigned from his position in the pharmaceutical industry. On 26 April 2004, the EMEA informed the complainant that his actual grade was A*6 (emphasis added) which meant, in light of the new Staff Regulations entering into force on 1 May 2004, that his basic salary was to be lower than the salary corresponding to grade A7, namely, EUR 4492.73. On 27 April 2004, the new Staff Regulations were published in Official Journal L 124.

The complainant alleged that the EMEA unfairly attempted to reduce his grading to a level below that provided for in the contract he had originally signed with the EMEA.

1.2 The EMEA stated that, in accordance with Article 12(3) of Annex XIII and Article 1(2) of Annex XIII, it was not possible to offer to the complainant any other grade. The EMEA did not consider this to be an attempt to reduce the complainant's grading to a level below that provided for in the contract he had signed. Several other candidates affected by the same Articles refused the EMEA's recruitment offer, because of the reduced salary figures. The complainant decided to take up service anyway and started working at the EMEA on 16 July 2004, although he was aware of the change.

The EMEA underlined that Article 12(3) of Annex XIII in the adopted new Staff Regulations represented a change with respect to the previous Commission proposal, which was the only public document available until 6 April 2004. In the previous proposal it was stated that the recruitment level of successful candidates from an A7 selection procedure would be A*7 and not A*6 as later modified in the adopted version. This "last minute" change of the legislation meant that, immediately after 6 April 2004, the EMEA's administration had to rewrite several contracts and grading classifications for several candidates it was about to recruit at the same time with a foreseen starting date after 1 May 2004.

1.3 The Ombudsman recalls that Article 10(2) of the Conditions of Employment of other Servants of the Communities ("CEOS") provides that the grade and step at which temporary staff is engaged shall be stated in their contract.

1.4 The Ombudsman also recalls that the transitional measures applicable to officials of the Communities are contained in Annex XIII of the Staff Regulations and that, in accordance with Article 1(1) of the Annex of the CEOS, they apply by analogy to other servants, such as temporary agents.

Article 12(3) of Annex XIII to the Staff Regulations provides the following:

"3. Officials who have been included in a list of suitable candidates before 1 May 2006 and are recruited between 1 May 2004 and 30 April 2006 shall:

(...)

– if the list was drawn up for category A, LA, B or C, be graded in accordance with the following table:

Grade of the competition	Grade of recruitment
A/LA8	A*5
A/LA7 and A/LA6	A*6
A/LA5 and A/LA4	A*9
A/LA3	A*12
A2	A*14
A1	A*15

(...)".

Article 1(2) of the same Annex provides:

"1. For the period from 1 May 2004 to 30 April 2006 Article 5(1) and (2) of the Staff Regulations are replaced by the following: (…)

2. Any reference to the date of recruitment shall be taken to refer to the date of entry into service."

1.5 The Ombudsman notes the fact that the complainant entered into service on 16 July 2004 and that he was therefore recruited between 1 May 2004 and 30 April 2006 in the sense of Article 12(3) of Annex XIII. Hence, it should be observed that, pursuant to the Notice of Competition which provided for an A7 position or relevant grade in the new AD grading structure, in conjunction with provisions in Article 1(1) of the Annex to the CEOS, as well as Article 12(3) and Article 1(2) of Annex XIII of the Staff Regulations, the EMEA lawfully considered that the complainant's grade should be A*6.

1.6 Based on the above, the Ombudsman finds that the complainant's employment contract, as it was formulated by the EMEA on 14 April 2004 (that is, providing for grade A6 step 2), was not consonant with the applicable provisions of the new Staff Regulations.

Hence, it was fair for the EMEA to consider, in essence, that this part of the contract was not valid and that it should be revised, in accordance with the new Staff Regulations.

No further inquiries appear therefore to be justified as regards the present aspect of the complaint.

2 The information on the complainant's grading provided by the EMEA

2.1 The complainant alleged that the EMEA failed to provide him with adequate information about his contractual situation in light of the new Staff Regulations. He claimed that under the new Staff Regulations he should be graded as A*10 or A*8 with effect from the date he took up his duties.

2.2 In its opinion, the EMEA argued that a typing error occurred in the contract because the asterisk which should have followed the designation of his grade A6 was missing. The EMEA also argued that it informed the complainant about that error promptly (on 26 April 2004). As regards the information provided to the complainant before the contract was submitted for his signature, the EMEA stated that it was only on 6 April 2004 that it became aware of the relevant changes in the Staff Regulations.

2.3 On 14 November 2006, the Ombudsman arrived at the preliminary conclusion that the failure to provide accurate, clear and adequate information could constitute an instance of maladministration and made the following proposal for a friendly solution to the EMEA:

The EMEA could consider:

1. Acknowledging that it failed to provide the complainant with accurate, clear and adequate information about his contractual situation in light of the new Staff Regulations.
2. Offering the complainant reasonable financial compensation in order to correct the error in the grade provided for in the complainant's temporary agent contract.

2.4 In its reply to the proposal for a friendly solution, the EMEA reiterated its view that any misunderstanding regarding the complainant's grade was due to a typing error. The EMEA regretted this and apologised for its error. However, it did not accept the Ombudsman's friendly solution.

2.5 The Ombudsman recalls therefore that, in his proposal for a friendly solution, he referred to the relevant facts as supported by the relevant documentary evidence. He noted in particular the following information provided to the complainant by the EMEA:

On 17 March 2003, the EMEA advertised an A7 Administrator EMEA/A/173 temporary agent post in the Official Journal.

On 2 February 2004, the EMEA sent to the complainant a salary sheet with "the minimum net pay not taking into account any allowances" for A7 step 1 giving a basic salary of EUR 4815.59.

On 10 February 2004, the EMEA sent a letter informing the complainant of its intention to offer him an employment contract, without providing any information about the grade and step level.

On 12 March 2004, the EMEA sent him a document containing salary information for A7 step 3, indicating a basic salary of EUR 5294.83.

On 26 March 2004, the EMEA mentioned, in its further e-mail to the complainant, that

"[u]nder the new Staff Regulations now finally approved on 22/04/04[(5)] and according to the draft implementing rules on grading of the European Commission (which EMEA will follow) the maximum step you will get is step 2 and not 3 in the grade A*7. Salary wise it is £ 200 less." (emphasis added).

On 14 April 2004, the EMEA submitted to the complainant his contract in which it was stated that his grade was A6.

On 26 April 2004, the EMEA informed the complainant that "[t]he basic salary for Grade 6 step 2 is €4492.73." (emphasis added).

On 28 May 2004, the EMEA sent new salary information about the "[b]asic pay New Scale Salary Grade Step 6 / 2 €4,492.73." (emphasis added).

By letter dated 7 September 2004, the EMEA gave the following clarifications to the complainant regarding the grading level indicated in the complainant's contract:

"(...) in fact an oversight occurred in typing the grading level in your contract, which was issued on 14 April 2004. As your Temporary Agent contract started after 1 May 2004, and as it fell under new Staff Regulations (adopted by Council on 22 March 2004) which came into force on 1 May 2004, the contract should have stated in fact A*6 step 2 instead of A6 step 2. (...) Nonetheless I would like also to point out that Personnel clarified shortly afterwards by e-mail, i.e. on 26 April 2004, that the grade was in accordance with the new Staff Regulations indicating the new basic salary and a clear reference to the relevant Articles together with the new Staff Regulations was sent to you (...). The agency made an offer to you which in no way obliged you to anything but which left you every possibility to reconsider. As I said already in my letter dated 25 May 2004, I confirm [to] you that I regret the misunderstanding that happened as a result of drastic changes of rules and regulations, and that in addition a typing error occured which added to the confusion."

A revised contract with A*6 grading was attached to this letter.

2.6 In his draft recommendation, the Ombudsman pointed out that the information in question concerns the basic salary of the complainant and its amount appeared not to be dependent on personal and family circumstances to be proved by submitting the necessary documents.

2.7 Further the Ombudsman noted that, on many occasions, errors occurred in the information provided by the EMEA to the complainant concerning his grade and, as a consequence, salary: (i) on 17 March 2003, in the advertising note; (ii) on 2 February 2004; (iii) on 12 March 2004; (iv) on 26 March 2004 (the information provided on that date was not accurate, since, as it is explained below (see point 2.8) and as the EMEA itself has pointed out, under the new Staff Regulations, the complainant's grade should have been A*6, not A*7); (v) in the contract of 14 April 2004.

2.8 The Ombudsman noted the EMEA's stance made in its reply to the proposal of a friendly solution that, even if a mistake had occurred in the contract, the complainant was promptly informed of that mistake. With regard to the prompt provision of information, the Ombudsman made two comments:

First, if the EMEA wished to refer to the information provided to the complainant on 26 April 2004, that is, 12 days after the erroneous contract was signed, the Ombudsman notes that this information was again not accurate, since (i) the new Staff Regulations do not provide for a "Grade 6", but rather for a grade A*6 (or AD6, as from 1 May 2006); (ii) the difference in the formulation of old and new grades, through the use of an asterisk, was not clearly brought to his attention, although his contract referred to a grade existing under the old Staff Regulations, but not under the new rules, which the EMEA invoked as applicable to the complainant's situation; (iii) it did not clarify whether the EMEA had made an error in the signed contract, as regards the complainant's grade.

Second, if the EMEA wished to refer to the information provided to the complainant on 7 September 2004, which appears indeed to constitute the correct rectification of the mistake committed in the contract, the Ombudsman could not agree with the EMEA that the rectification of the mistake was prompt.

2.9 In light of the above, the Ombudsman recalled that, according to the principle of good administrative behaviour, the Administration should provide accurate, clear and adequate information to members of the public.

2.10 In the present case however, it appeared that, during the period preceding and following the conclusion of the complainant's temporary agent contract, the EMEA did not comply with the above principle of good administration, as regards his grade/salary.

2.11 Moreover, the Ombudsman found it useful to refer to the statements made by the complainant in his observations on the EMEA reply to the friendly solution that he had no other choice than to take up the employment. The Ombudsman understood that, reasonably, as from the date of his acceptance of the post, the complainant had to start the necessary arrangements to take his new job without being aware that his grade and salary could be different, that is, lower, than he had been initially told. He had to prepare the move of his family including three children of school age to London and prepare for his departure from his previous (high) position in pharmaceutical industry.

The Ombudsman was therefore disconcerted by the EMEA's argument that "the complainant decided to take up the appointment and started with the EMEA on 16 July 2004 being aware of the change". The Ombudsman recalled that the complainant, as a vulnerable party to the employment contract, had reasonably no chance of doing otherwise.

2.12 Finally, the error, even though it was of a typographical character, concerned an essential element of the complainant's contract. In this context, it must also be noted that, in cases like the present one, which involve the provision of information regarding a temporary agent contract at a time when extensive amendments to the relevant legislation had recently been enacted, the Administration had a particular duty of diligence. Legislative changes might justify, depending on the circumstances, a reasonable delay, or appropriately formulated reservations, in the provision of information, but they cannot be used as an excuse for the provision of the kind of (inaccurate, unclear and inadequate) information mentioned above.

2.13 In these circumstances, the Ombudsman was led to the conclusion that the information provided by the EMEA to the complainant was not accurate, proved to be misleading and had harmful consequences on the complainant's situation. Furthermore, the rectification of that information came too late. Therefore, this aspect of the case involved an instance of maladministration.

The Ombudsman noted therefore that the EMEA apologised to the complainant for the above error in its direct contacts with him and in the opinion, but the complainant did not appear to accept that apology. The Ombudsman considered therefore that this apology could be completed if the EMEA clearly acknowledged its error and proposed a reasonable financial compensation for it.

2.14 On 22 January 2008, the Ombudsman addressed a draft recommendation to the EMEA in which he suggested that the latter (1) acknowledges that it failed to provide the complainant with accurate, clear and adequate information about his contractual situation in light of the new Staff Regulations and (2) offers the complainant reasonable financial compensation in order to correct the acknowledged error in the grade provided for in his temporary agent contract. The Ombudsman was of the view that, in determining the amount of this reasonable financial compensation, the following calculation could be taken into account: the difference between what the complainant's monthly salary would have been at A6 step 2 and his actual salary at A*6 step 2, multiplied by three, which corresponds to the maximum three-month notice period which could have been given to terminate the erroneous contract. This calculation would amount to a total of EUR 4220.49.

2.15 In its detailed opinion on this draft recommendation, the EMEA accepted the Ombudsman's draft recommendation. It agreed to pay financial compensation of EUR 4220.49 to the complainant by 30 April 2008.

2.16 The complainant confirmed having received the above-mentioned financial compensation and thanked the Ombudsman's services for this positive outcome.

3 Conclusion

3.1 In light of the above, the Ombudsman takes the view that the EMEA has accepted his draft recommendation and that the measure taken to implement it is satisfactory. Moreover, no further inquiries appear justified into the alleged unfair grading. The Ombudsman therefore, closes the case.

3.2 The Executive Director of the EMEA will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) OJ 2003 C 117 A.

(2) The complainant had raised the matter in his letters of 17 May and 4 August 2004 and during a discussion with the Head of Administration on 3 August 2004.

(3) Letter of 25 May 2004 from the Personnel Administrator and letter of 15 November 2005 from the Executive Director.

(4) Case T-58/05 Centeno Mediavilla and Others v Commission. The Ombudsman notes that the Court decided on this case on 11 July 2007.

(5) The Ombudsman notes that the correct date is 22 March 2004.