Decision of the European Ombudsman on complaint 546/2005/MF against the European Commission

Strasbourg, 7 December 2005

Dear Mr X.,

On 11 February 2005, you made a complaint to the European Ombudsman against the European Commission concerning its decision to classify you at grade A* 6, step 2, under the new Staff Regulations. On 22 February 2005, you sent me an e-mail related to your complaint.

On 15 March 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 29 June 2005 indicating that you had initiated proceedings before the Court of First Instance on 9 May 2005. On 5 July 2005, I forwarded it to you with an invitation to make observations by 31 August 2005 at the latest. No observations were received from you by that date. On 8 November 2005, my services contacted you by telephone.

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

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

At the time of his complaint to the European Ombudsman, the complainant was a temporary agent working in the Institute for Energy of the Joint Research Centre of the European Commission ("JRC"), in Petten (the Netherlands).

The complainant was selected by the JRC for employment in the Institute for Energy. On 16 December 2003, he was invited for a job interview at the JRC in Petten. During the interview, he was orally informed about the salary that he could expect, on the basis of the Staff Regulations in force at that time. It was also explained to the complainant that he would be given a provisional classification at A8 grade, with "a priori" a further and retroactive classification at A6 grade. By letter dated 12 March 2004, the complainant was offered a three-year contract of employment, which he signed on 20 March 2004. His contract provided that he was provisionally classified at grade A8.

On 4 June 2004, the JRC informed the complainant by telephone that the implementation of the new Staff Regulations implied changes in his contract of employment. He was informed that he would be offered a four-year contract at grade A*6, without any guarantee of reclassification as the relevant articles of the Staff Regulations had been cancelled. Despite his disappointment, the complainant signed the new contract on 10 June 2004. His contract provided that he was provisionally classified at grade A*6, step 1. On 21 June 2004, the complainant signed an amendment to his contract pursuant to which he was classified at grade A*6, step 2, in accordance with his professional experience.

On 22 July 2004, the complainant wrote to the Director of the Institute for Energy of the JRC in order to request compensatory measures. He pointed out that his expected salary had been reduced by about 20 % between the signature of his first contract of employment on 20 March 2004 and the day of the beginning of his duties on 1 July 2004. The complainant pointed out that he had only been informed of this fact 25 days before coming to the JRC, whereas the new Staff Regulations had been officially applicable as of 1 May 2004. He further stated that, if he had been informed of this fact before, he would have managed to come earlier (before 1 May 2004) to the JRC in order to benefit from the implementation of the old Staff Regulations. In a letter dated 30 August 2004, the Director of the Institute for Energy of the JRC informed him that he could not give a positive reply to his request for compensatory measures, given that the date of employment of the complainant was 1 July 2004 and that he fell under the new Staff Regulations, applicable as of 1 May 2004.

On 30 September 2004, the complainant lodged an appeal under Article 90 (2) of the Staff Regulations against the decision of the JRC to reclassify him at a lower grade. In his appeal, he stated that this decision had been taken pursuant to unclear and illegal criteria under the new Staff Regulations, whereas his contract referred to the old Staff Regulations. The complainant further pointed out that he was the victim of discrimination in his classification, in comparison with one of his colleagues, who had taken up duties in March-April 2004, whose salary was higher than his. Finally, the complainant argued that the Director of the Institute for Energy of the JRC had failed to respect his commitments taken during his job interview and had failed to take the necessary remedial measures.

On 25 January 2005, the complainant was informed that his appeal under Article 90 (2) of the Staff Regulations had been rejected on the grounds that the statutory measures had been properly applied in his case. The Appointing Authority pointed out that the first contract of employment of the complainant signed on 20 March 2004 was no longer applicable.

In his complaint to the Ombudsman, the complainant submitted the following allegations:

• The Commission had failed to respect his legitimate expectations as defined in Article 10 of the European Code of Good Administrative Behaviour;
• He had been the victim of discrimination in his classification, compared to one of his colleagues;
• The Director of the Institute for Energy of the JRC had failed to respect his commitments given during his (the complainant's) job interview; and
• Both the Director of the Institute for Energy of the JRC and the Commission had failed to take reasonable measures in order to solve his problem.

The complainant claimed that the Commission should respect his legitimate expectations and should depart from its normal administrative practice(1). He further claimed that the Commission should classify him at a grade equivalent to the one proposed during his job interview of 16 December 2003.

THE INQUIRY

The Commission's opinion

On 29 June 2005, t he Commission informed the Ombudsman that, following the rejection of the complainant's appeal made under Article 90 (2) of the Staff Regulations, the complainant had initiated proceedings at the Court of First Instance on 9 May 2005. The Commission referred to Article 1 (3) of the European Ombudsman's Statute.

The complainant's observations

No observations were received from the complainant by the date set for this purpose.

In a telephone conversation of 8 November 2005 with the Ombudsman's services, the complainant confirmed that he had indeed initiated proceedings at the Court of First Instance concerning the allegations raised in his complaint to the Ombudsman.

THE DECISION

1 The complainant's allegations and claims

1.1 The complainant worked, at the time of his complaint to the European Ombudsman, in the Institute for Energy of the Joint Research Centre of the European Commission ("JRC"), in Petten (the Netherlands). He was a temporary agent since 1 July 2004. In his complaint to the Ombudsman, the complainant alleged that the Commission had failed to respect his legitimate expectations as defined in Article 10 of the European Code of Good Administrative Behaviour; that he had been the victim of discrimination in his classification, compared to one of his colleagues; that the Director of the Institute for Energy of the JRC had failed to respect his commitments given during the complainant's job interview; and that both the Director of the Institute for Energy of the JRC and the Commission had failed to take reasonable measures in order to resolve his complaint. The complainant claimed that the Commission should respect his legitimate expectations and should depart from its normal administrative practice because his case was special. He further claimed that the Commission should classify him at a grade equivalent to the one proposed during his job interview of 16 December 2003.

1.2 In its opinion, t he Commission informed the Ombudsman that, following the rejection of the complainant's appeal made under Article 90 (2) of the Staff Regulations, the complainant had initiated proceedings before the Court of First Instance on 9 May 2005.

1.3 The complainant confirmed this information in a telephone conversation of 8 November 2005 with the Ombudsman's services, and stated that the proceedings covered the same allegations and claims as his complaint to the Ombudsman.

1.4 The Ombudsman notes that Article 195 of the Treaty establishing the European Community empowers the European Ombudsman to receive complaints “… concerning instances of maladministration in the activities of the Community institutions or bodies…except where the alleged facts are or have been the subject of legal proceedings.” Moreover, Article 2 (7) of the European Ombudsman's Statute provides that "when the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action."

1.5 Therefore, considering that the complainant has initiated proceedings at the Court of First Instance on the same alleged facts as those in his complaint to the Ombudsman, the Ombudsman terminates consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

2 Conclusion

The Ombudsman terminates consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) In the complainant's view, pursuant to Article 10 of the European Code of Good Administrative Behaviour, the Commission should depart from its normal practice because his case is special.