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Decision of the European Ombudsman closing his inquiry into complaint 855/2008/(RT)OV against the European Parliament

The background to the complaint

1. The present complaint was submitted on behalf of nine staff members of the European Parliament ('the complainants') by a staff union. It concerns the withdrawal of their entitlement to the secretarial allowance after 1 May 2004, when the new Staff Regulations entered into force. This allowance for officials in Category C was foreseen in Article 4a of Annex VII to the Staff Regulations which were in force until 30 April 2004. On the basis of Articles 21 and 65 of the Conditions of Employment of Other Servants ('the CEOS'), the allowance was applicable by analogy also to temporary and auxiliary staff.

2. The staff union submitted a first, similar, complaint (complaint 572/2008/OV) concerning Parliament's refusal to grant the secretarial allowance to four Parliament officials who, as from 1 May 2004, had experienced interruptions in their employment varying from 1 to 4 ½ months. The complaint constituted the subject of a separate inquiry by the Ombudsman, which was closed by decision of 20 April 2009 with a finding of no maladministration.

3. In 2007, the Appointing Authority accepted an appeal from a former temporary agent of grade AST 3 who, after passing an open competition, became a grade AST 2 official under the new Staff Regulations, but lost his entitlement to the secretarial allowance. The secretarial allowance was thus restored to this person. The Appointing Authority extended this measure to all servants who (a) fulfilled the conditions set out in Article 18 of Annex XIII to the new Staff Regulations (that is, those who benefited from the secretarial allowance in April 2004) and (b) became officials following a period working as a temporary agent and covering, in particular, the month of April 2004. However, the Appointing Authority applied this measure restrictively, excluding (i) cases of persons recruited as contract staff after 1 May 2004 and (ii) cases where there was an interruption of employment (even a very short one) after 1 May 2004.

4. The nine complainants in the present case, one of whom was working at the European Commission until April 2007, were all auxiliary agents on 1 May 2004, when the new Staff Regulations entered into force, and were all receiving the secretarial allowance at that time. Their contracts as auxiliary agents ended on different dates after 1 May 2004. Six of the nine complainants were immediately recruited as contract staff when their contracts as auxiliary agents expired. There was no interruption in their employment, that is to say, their new contracts as contract staff started on the day after their old contracts as auxiliary agents ended. For instance, in the case of Mr H., his contract as a auxiliary agent ended on 31 March 2005 and his new contract as a contract agent started on 1 April 2005. Under their new contracts, these six complainants were not entitled to the secretarial allowance.

5. The situations of the three other complainants were as follows:

- When Mr JM.'s contract as an auxiliary agent ended on 31 December 2004, he was first recruited as an auxiliary agent from 1 January 2005 until 30 June 2005 and maintained his entitlement to the secretarial allowance. However, when, on 1 July 2005, he was recruited as a contract agent, he lost his entitlement to the secretarial allowance.

- Both Mr SM. and Mr EPA. experienced an interruption in their employment (respectively of one and three months) upon the expiry of their auxiliary contracts. They were then recruited first as auxiliary agents, losing their entitlement to the secretarial allowance, and afterwards as contract staff.

6. Seven of the complainants in the present case were thus in situation (i) mentioned in paragraph 3 above, whereas Mr SM. and Mr EPA. were in situation (ii). From their career descriptions, it appears that, after having worked as contract agents, the complainants all became either temporary agents or officials in 2006 or in 2007. Only Mr N. remained a contract agent.

7. On 14 June, 15 June, 18 June, 27 June, 5 July and 18 July 2007, the complainants submitted internal complaints ('the Article 90(2) complaints') to the Authority Authorised to Conclude Contracts of Employment ('the AAC') against the decisions refusing to grant them the secretarial allowance. Mr N., who at that time was still employed by the Commission, submitted his complaint to the AAC in the Commission. In the eight other cases, the Article 90(2) complaints were submitted to the Secretary-General of Parliament.

8. On 9 November 2007, the AAC of Parliament rejected the appeals lodged by seven of the eight complainants. As regards the complaint by Mr SM., the AAC did not reply before the relevant deadline expired and thus implicitly rejected this appeal as well. On 28 November 2007, the AAC of the Commission rejected Mr. N.'s complaint. It pointed out that, when an agent ends his/her functions, the contractual relation between the agent and the institution also ends. Therefore, the advantages resulting from the contract, including the secretarial allowance, were terminated at the same moment.

9. As regards the case of Mr EPA., the AAC of Parliament pointed out that if an agent, even temporarily, ended his/her functions after 1 May 2004, the institution had the right, and even the obligation, to apply the provisions of the new Staff Regulations – which no longer foresee the secretarial allowance – when a new contract is signed.

10. As regards the six other complainants, the AAC provided the following explanations:

(i) The category of contract staff did not exist under the old Staff Regulations.

(ii) The provisions of Article 18 of Annex XIII could not be interpreted so as to extend the benefit of the secretarial allowance to a new staff category, namely, the contract staff.

(iii) It appeared from a meeting of the Heads of Administration of the Parliament, the Council, the Commission and the Court of Justice, held on 15 May 2007, that there was a divergence of interpretation concerning the relevant provisions. The Council and the Commission considered that the maintenance of the entitlement to the secretarial allowance only applied if the specific employment relation which existed on 30 April 2004 continued to exist, whereas Parliament and the Court took the view that the secretarial allowance was an "ad personam" acquired right ("droit acquis"), which should be preserved even in the case of a modification of the employment status. However, none of the institutions considered that the secretarial allowance had to be maintained as regards staff who became contract staff.

The subject matter of the inquiry

11. In his letter of 19 May 2008 opening the inquiry, the Ombudsman asked Parliament to provide an opinion on the following allegation and claim:

The complainants alleged that, by denying their entitlement to the secretarial allowance under the new Staff Regulations, Parliament acted incorrectly, arbitrarily and infringed the principles of legal certainty and legitimate expectations.

The complainants claimed that Parliament should award them the secretarial allowance again as from the date after 1 May 2004 when they entered into new contracts as auxiliary agents or contract staff.

12. As regards the case of one of the complainants, Mr N., the Ombudsman noted that the decision rejecting the secretarial allowance in his case had been taken by the AAC of the Commission, where he was working at the time. The Ombudsman therefore informed the complainants that, in so far as the situation of Mr N. was concerned, there were insufficient grounds for an inquiry against Parliament. The present inquiry therefore only deals with the complaint insofar as it concerns the eight other complainants.

The inquiry

13. The complaint was forwarded to Parliament for an opinion. Parliament sent its opinion on 23 October 2008. The opinion was forwarded to the complainants, who sent observations on 17 November 2008. These observations concerned both the present case and complaint 572/2008/OV.

14. On 19 May 2009, the Ombudsman requested further information from Parliament. Parliament sent its additional opinion on 1 October 2009. The Ombudsman sent it to the complainants, who sent their additional observations on 23 November 2009.

15. On 30 March 2010, the Ombudsman made a friendly solution proposal to Parliament. Parliament sent its reply on 8 June 2010. The reply was forwarded to the complainants, who sent their additional observations on 28 July 2010. On 19 October 2010, the Ombudsman's Office contacted one of the complainants by telephone to obtain an update on further developments to which the complainants referred in their additional observations, namely, that as a result of  contacts they had made, the matter was to be reconsidered by the Legal Service and the Secretary-General.

The Ombudsman's analysis and conclusions

A. Allegation of unjustified refusal of the secretarial allowance

Arguments presented to the Ombudsman

16. As regards the legal basis for the secretarial allowance, the complainants recalled that Article 4a of Annex VII to the old Staff Regulations, which foresaw the secretarial allowance, was also applicable to other servants. Moreover, Article 18 of Annex XIII to the new Staff Regulations foresees the continuation of the secretarial allowance. The complainants also referred to Article 1 of the Annex to the CEOS, which provides that the provisions of Annex XIII to the Staff Regulations shall apply by analogy to other servants employed on 30 April 2004. As regards the notion of beneficiaries who were entitled to the secretarial allowance in April 2004, the complainants pointed out that the legislator did not foresee any special condition in Article 18 of Annex XIII. Also, the fact that a servant who benefited from the allowance in April 2004 had become an official or contract agent should not have any effect on the notion of beneficiary.

17. The complainants also referred to the intentions pursued by the legislator and recalled the history of the reform of the Staff Regulations, especially the declarations made by the then Commission Vice-President, Mr Kinnock, who, in their view, had promised the maintenance of the entitlement to the secretarial allowance. They submitted that Parliament's position, according to which staff who experienced an alteration to their contracts after 1 May 2004 are to be considered as "new staff" and are not entitled to the secretarial allowance, was unacceptable.

18. The complainants argued that the category of contract staff was first mentioned in Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations and the CEOS[1] ('Regulation 723/2004'). In the complainants' view, the auxiliary agents were forced to accept an alteration to their existing contracts and to sign new contracts as contract staff. Parliament could have immediately proposed to the complainants to sign contracts as temporary agents, as it did in other cases. Parliament thus infringed the principles of equal treatment and non-discrimination because contracts as temporary agents were offered arbitrarily. Moreover, on the basis of Article 52 of the CEOS, the complainants' contracts as auxiliary agents could have been extended until 31 December 2007.

19. The complainants also referred to Directive 1999/70/EC of the Council of 28 June 1999 concerning the framework agreement on fixed-term work[2] and to relevant case-law, in which the Community courts assigned particular importance to the stability of employment and took into consideration the duration of contracts and their renewal. In the complainants' view, the interruption in the services rendered to Parliament that occurred for some of them could not be considered as a total break in their employment. This was because the renewal of their service was in the interest of both parties, in particular that of Parliament. The complainants further submitted that there was, in fact, continuity in their respective services, since they continued to do the same job, for the same Head of Unit, and in the same office.

20. The complainants finally pointed out that there was something arbitrary and wicked (in the French original: "une attitude maléfique") about the whole matter. According to them, it was in fact possible to conclude that Parliament's administration had withdrawn the secretarial allowance by re-classifying the contracts.

21. In its opinion, Parliament made the following remarks:

22. As regards the cases of Mr SM. and Mr EPA., Parliament pointed out that the payment of the secretarial allowance was discontinued following a break – of respectively one month and three months – in their service for Parliament after 1 May 2004. Parliament therefore took the view that the complaints lodged by Mr SM. and Mr P. were comparable to the situation of the complainants in complaint 572/2008/OV.

23. As regards the case of Mr L., Parliament pointed out that he was recruited with effect from 1 July 2005 as a member of the contract staff in grade 7, step 1, of Function Group II. It argued that, after being recruited to a grade higher than the one provided for in Article 18, the complainant was thus no longer entitled to the secretarial allowance from that date onwards. Parliament thus concluded that his complaint had to be rejected as unfounded.

i) As regards the concept of 'beneficiary' of the secretarial allowance within the meaning of Article 18 of Annex XIII to the new Staff Regulations

24. Parliament argued that the complaint submitted by the five other complainants whose cases had been taken up for inquiry by the Ombudsman was also unfounded. It pointed out that Article 18 of Annex XIII to the Staff Regulations forms part of a transitional regime and that the overall aim sought by the legislator was gradually to abolish the secretarial allowance. Thus, the provision in question could not, under any circumstances, provide for an unlimited continuation of the regime in dispute. Parliament pointed out that, when providing that beneficiaries who were entitled to the secretarial allowance before 1 May 2004 could keep it up to grade 6, the legislator presupposed a continuation of the employment relationship between the staff member concerned and the institution, based on one or more contracts or contract extensions where the contractual relationship predated the entry into force of the new Staff Regulations. In other words, the application of Article 18 of Annex XIII to the Staff Regulations presupposed a link to the regime in force prior to the entry into force of the new Staff Regulations. Therefore, when a type of employment contract that did not exist before 1 May 2004 was concluded under the new regime – which was the case for contract staff recruited under title IV of the CEOS – Article 18 of Annex XIII was not applicable. Consequently, given the absence of provision for an entitlement to a secretarial allowance for persons working as contract staff under the new Staff Regulations, the complainants had no grounds for claiming the maintenance of their entitlement to the allowance. Any other interpretation would be contrary to the Community courts' case-law. The complainants concerned had all been recruited as members of the contract staff after 1 May 2004. Parliament submitted that it had therefore acted in accordance with the requirements of the new Staff Regulations when discontinuing the payment of the secretarial allowance to them.

ii) As regards the alleged breaches of the principles of legal certainty and the protection of legitimate expectations

25. Parliament argued that, according to well established case-law, the implementation of the principle of legal certainty must not restrict the Community legislator's scope for action. In particular, the Community legislator may, at any time, make changes to the Staff Regulations that it deems to be in the interests of the service, even though they are less favourable to the officials concerned, provided that a sufficiently long transitional period is set[3]. Officials are thus not entitled to expect that the Staff Regulations will remain the same as they were at the time of their recruitment. Accordingly, staff members recruited as contract staff after 1 May 2004 must be deemed to be new staff members falling under the legal arrangements laid down in the new Staff Regulations. Therefore, the principle of legal certainty cannot justify the continued payment of a secretarial allowance to staff recruited as members of contract staff after 1 May 2004.

26. As regards the principle of the protection of legitimate expectations, Parliament outlined that the Community courts had ruled that the right to rely on that principle extends to any individual who is in a situation in which it is apparent that the Community administration, by giving him specific, unconditional and concurring assurances from authorised and reliable sources, led him to entertain justified expectations. It further followed from the case-law of the Community courts that such assurances must be in keeping with the provisions of the Staff Regulations and the general applicable rules[4]. In the present case, no violation of the principle of the protection of legitimate expectations could be deduced from either Parliament's internal General Implementing Provisions or the decisions of its relevant departments. The complainants could not rely on any specific, unconditional and concurring assurances from Parliament's competent authorities in support of their erroneous interpretation of Article 18 of Annex XIII to the Staff Regulations. Parliament had never given any undertaking to the effect that members of the contract staff would be eligible for a secretarial allowance.

iii) As regards the alleged violation of Directive 1999/70/EC

27. Parliament underlined that, in accordance with Article 288 of the Treaty on the Functioning of the European Union (TFEU), a directive is addressed to the Member States. It thus follows that Directive 1999/70 could not be applied in the context of employment relationships between a Community institution and its staff, which are governed by the Staff Regulations. Moreover, Directive 1999/70 does not contain any reference to the maintenance of pecuniary rights, such as the secretarial allowance.

28. In their observations, the complainants pointed out that Parliament had given a very restrictive interpretation of Article 18 of Annex XIII to the new Staff Regulations. They argued that, instead of making them sign new contracts, Parliament's administration could have proposed amendments to the existing contracts and then the problem would not have arisen. In reality, their contracts had been renewed, even if the grade or classification of the contracts changed as a result. The complainants stated that the words "beneficiaries", "who were entitled in the month before 1 May 2004" and "shall keep" used in Article 18 were very clear and left no room for interpretation. The complainants therefore considered that every interpretation of Article 18 which would not provide for an entitlement to the secretarial allowance in a situation like theirs was a sign of ill will and maladministration.

29. On 19 May 2009, the Ombudsman asked Parliament for further information regarding the situation of five of the complainants who, after 1 May 2004 and immediately after the expiry of their contracts as auxiliary contracts, were recruited as contract staff.  In his letter to Parliament, the Ombudsman pointed out that Parliament's reasoning for refusing these complainants' entitlement to the secretarial allowance appeared to be based on two considerations. First, in order for the entitlement to the secretarial allowance to be maintained, there needed to be a continuation of the employment relationship after 1 May 2004, based on one or more contracts where the contractual relationship predated 1 May 2004. Such continuity did not exist in cases where temporary or auxiliary agents became contract staff, a category that had only been introduced with effect as from 1 May 2004. Second, granting contract staff in the same position as the complainants the right to obtain the secretarial allowance would be contrary to the case-law of the Community courts, according to which rules providing financial benefits need to be interpreted strictly.

30. As regards the first of these considerations, the Ombudsman pointed out that Parliament had agreed to maintain the secretarial allowance for auxiliary agents in service before 1 May 2004 who received extensions to their contracts or became temporary agents or officials after 1 May 2004. Parliament had also agreed to act in the same way in the case of temporary agents who became officials after that date. Article 1 of the Annex to the CEOS provides that the provisions of Annex XIII to the Staff Regulations "shall apply by analogy to other servants employed on 30 April 2004". Given that the CEOS also apply to contract staff, it seemed that the relevant rules would, as such, not appear to exclude the possibility of maintaining the secretarial allowance for auxiliary or temporary agents who subsequently became members of the contract staff, particularly since the benefit was to be maintained "ad personam". As regards the second consideration, the Ombudsman drew Parliament's attention to the fact that it had agreed to maintain the secretarial allowance for auxiliary agents in service before 1 May 2004 who were given extensions of their contracts or who became temporary agents or officials after 1 May 2004, and for temporary agents who became officials after that date. In light of the above, the Ombudsman asked Parliament to explain why it considered that its position concerning the said complainants was justified, bearing in mind the invoked strict interpretation of the financial benefits.

31. In its reply, Parliament pointed out, as regards the first consideration, namely, that the transitional measures set out in Article 18 of Annex XIII were not applicable where a new employment contract was concluded under the new Staff Regulations after 1 May 2004. Parliament further referred to an explanatory brochure produced by the Commission, with a foreword by Mr Kinnock, which expressly stated that "the secretarial allowance will be kept, on an ad personam basis, by present recipients up to and including grade AST 6 staff and will be discontinued for new staff"[5] (emphasis added). It also referred to paragraph 25 of the Ombudsman's decision of 20 April 2009 in case 572/2008/OV, where the Ombudsman stated that the intention of the legislator was clearly not to extend the benefit of the secretarial allowance to newly recruited staff. Accordingly, in the absence of explicit provisions stipulating that the allowance should be payable to persons recruited as members of the contract staff under the new Staff Regulations, Parliament had no legal obligation to continue to pay the secretarial allowance to the five complainants.

32. Parliament also reiterated that, on the basis of the judgment in the Pickering case, staff working for it may not rely on the continued application, for their benefit, of provisions of the Staff Regulations which used to apply to them under their previous contracts. Similarly, Parliament emphasised that a staff member's financial entitlements are not only determined by the nature of the contract concluded with the institution, but lapse on the expiry of the previous contract as an auxiliary or temporary staff member. The five complainants recruited as members of the contract staff after 1 May 2004 have to be considered as new staff members under the new Staff Regulations. The application of the old Staff Regulations, which were no longer in force when a new contract of employment was concluded with the institution, did not constitute an acquired right of the staff member concerned.

33. As regards the second point raised by the Ombudsman, Parliament stated that Article 18 of Annex XIII implied the existence of an ongoing contractual link between persons receiving the secretarial allowance and the legal regime of the old Staff Regulations. In other words, auxiliary or temporary staff members, who were in receipt of the secretarial allowance on 30 April 2004, and who continued in service after that date, either as temporary staff members or as trainee officials, were entitled to the allowance, provided that there had been no interruption in their service. Accordingly, the secretarial allowance was kept on an ad personam basis. The Community legislator, however, intended to make a legal distinction in the Staff Regulations between contract staff, on the one hand, and officials or temporary staff, on the other hand, in respect of guarantees, social benefits, or remuneration. In such a case, the principle of equal treatment did not apply. Parliament referred, in this context, to case-law according to which:

"existing differences in the status of the various categories of persons employed by the Communities may not be called into question, in so far as some categories may enjoy benefits which are not granted to others. In fact the definition of each of these categories of staff corresponds to the legitimate needs of the Community administration and the nature of its tasks"[6] (emphasis added).

34. Under these circumstances, Parliament was released from any financial obligations towards contract staff, and it strictly applied the rules governing financial benefits. To put it differently, the rules for contract staff set out in the new Staff Regulations made no provision for maintaining the secretarial allowance with regard to former auxiliary agents who became members of the contract staff.

35. Parliament recognised that there were differences of interpretation among the Heads of Administration of the different institutions regarding the issue of whether or not the secretarial allowance continued to be payable when the contractual relationship changed. Parliament and the Court of Justice were the only institutions to adopt a flexible approach regarding the retention of an ad personam acquired right when the contractual relationship existing under the Staff Regulations is modified, for example, for temporary agents who become officials. However, none of the Community institutions maintained the secretarial allowance for persons recruited as members of the contract staff after 1 May 2004. Parliament further pointed out that Article 18 of Annex XIII to the new Staff Regulations forms part of the transitional measures designed to phase out the secretarial allowance.

36. In their observations, the complainants reiterated the arguments previously made. They argued that the mere fact that the category of contract staff had been created by the Staff Regulations applicable from 1 May 2004 onwards was not enough to reject the application of the transitional measures of Article 18 of Annex XIII. The complainants submitted that there were, in effect, no new Staff Regulations, since Regulation 723/2004/EC merely constituted an amendment to the Staff Regulations. Also, 'contract staff' was not a new category of staff. According to the complainants, the legislator replaced the category of auxiliary agents by the category of contract staff for auxiliary tasks ("agent contractuel auxiliaire" in French). They referred to the explanatory brochure produced by the Commission in this context and argued that the intention had been to maintain the secretarial allowance for all beneficiaries who had benefited from it before 1 May 2004. They submitted that the notion of beneficiary contained in Article 18 of Annex XIII was in no way restricted, and thus applied to all staff, with the exception of new staff. However, the complainants took the view that they did not belong to the category of "new staff".

The Ombudsman's preliminary assessment leading to a friendly solution proposal

37. Article 4a of Annex VII to the Staff Regulations in force until 30 April 2004 provided that "an official in Category C employed as a copy typist, shorthand-typist, telex operator, varitypist, executive secretary or principal secretary may be paid a fixed allowance" ('the secretarial allowance'). Article 21 of the CEOS in force until 30 April 2004 provided that "[Article] ... 4a of Annex VII to the Staff Regulations concerning payment of ... temporary fixed allowances, shall apply [to temporary staff] by analogy". Article 65 of the CEOS provided that "[Article] … 4a of Annex VII to the Staff Regulations concerning payment of … temporary fixed allowances, shall apply [to auxiliary staff] by analogy".

38. Regulation 723/2004 repealed Article 4a of Annex VII to the Staff Regulations. Pursuant to the first paragraph of Article 18 of Annex XIII (Transitional measures) to the new Staff Regulations, "[b]eneficiaries who were entitled in the month before 1 May 2004 to the fixed allowance mentioned in the former Article 4a of Annex VII to the Staff Regulations shall keep it ad personam up to grade 6 ..." Finally, the first paragraph of Article 1 of the sole annex to the CEOS in its new version stipulates that "[t]he provisions of Annex XIII to the Staff Regulations shall apply by analogy to other servants employed on 30 April 2004".

39. The Ombudsman considered that three different situations needed to be distinguished in the present case.

40. As regards, first, the situation of Mr SM. and Mr EPA., the Ombudsman noted that there was an interruption in their services for Parliament of one month (August 2004), and three months (June to August 2004), respectively. Therefore, because they started new contracts as contract staff after 1 May 2004, their legal position had to be evaluated on the basis of the new Staff Regulations, which no longer provide for a secretarial allowance. Article 18 of Annex XIII to the new Staff Regulations stipulates that beneficiaries who were entitled in April 2004 to the secretarial allowance could keep it ad personam up to grade 6. It is undisputed that both Mr SM. and Mr EPA. were entitled to the secretarial allowance in April 2004. However, the fact that Article 18 uses the word "keep" also implies that there must be a continuity of service beyond 1 May 2004. As a consequence, agents such as the two complainants, who benefited from the allowance in April 2004, but then stopped working for Parliament and were newly recruited after 1 May 2004, are not entitled to receive the secretarial allowance again. The situation of Mr SM. and Mr EPA. was identical to that of the complainants in case 572/2008/OV. Following the Ombudsman's assessment in that case, he closed his inquiry on 20 April 2009 by concluding that there had been no maladministration.

41. The same conclusion applied in the present case in relation to the complaint of Mr SM. and Mr EPA. regarding (i) the alleged infringement of the principle of legal certainty and of the principle concerning the protection of legitimate expectations, (ii) their arguments based on Directive 1999/70/EC, and (iii) their argument that there was something arbitrary and wicked ("une attitude maléfique") in Parliament's behaviour. In his decision in case 572/2008/OV, the Ombudsman found no instance of maladministration with regard to these points. More particularly, the Ombudsman found that there had been no infringement of the principle of legal certainty, given that the Community legislator had foreseen transitional measures. He also pointed out that the complainants failed to demonstrate that precise, unconditional and consistent assurances had been given to the effect that staff who were newly recruited as contract staff after 1 May 2004 would be able to benefit from the secretarial allowance. The Ombudsman also considered that there was no need to examine in more detail the complainants' argument based on Directive 1999/70/EC, since the complainants did not specify precisely why they considered that Parliament's approach was not in conformity with the Directive. As regards the suggested abuse of power by Parliament, the Ombudsman found that the facts invoked by the complainants were not sufficient to establish such an abuse.

42. As regards, second, the situation of Mr L., the Ombudsman noted that he was employed as an auxiliary agent until 30 June 2005, and received the secretarial allowance until that date. With effect from 1 July 2005, he was recruited as a member of the contract staff in grade 7. In these circumstances, Mr L. could not, in any event, benefit from the transitional provisions set out in Article 18 of Annex XIII to the new Staff Regulations, given that this provision stipulates that the allowance could be maintained ad personam only up to grade 6. No maladministration was therefore found with regard to this aspect of the case.

43. The Ombudsman, third, examined the situation of the five other complainants. He noted that these complainants were recruited as members of Parliament's contract staff after 1 May 2004. Consequently, the complainants' legal position had to be evaluated on the basis of the new Staff Regulations, including Article 18 of Annex XIII, according to which, beneficiaries who were entitled in April 2004 to the secretarial allowance could keep it ad personam up to grade 6. It was undisputed that the said five complainants were entitled to, and received the secretarial allowance in April 2004, and therefore fulfilled the first condition of Article 18.

44. Parliament basically argued that the benefit foreseen by Article 18 of Annex XIII to the new Staff Regulations was only available to officials or temporary agents who had received the secretarial allowance in April 2004, but not to persons recruited as members of the contract staff after 1 May 2004. In order to justify its position, Parliament pointed to the fact that the category of contract staff was only introduced by the new Staff Regulations, and thus did not exist prior to 1 May 2004.

45. It was undisputed that the category of contract staff only came into existence on 1 May 2004. However, it remained to be examined whether this fact alone meant that Parliament's position was well-founded.

46. Article 18 of Annex XIII to the new Staff Regulations applies to "beneficiaries" who were entitled to the secretarial allowance in April 2004. Article 1 of the Annex to the CEOS provides that the provisions of Annex XIII to the Staff Regulations shall apply by analogy "to other servants employed on 30 April 2004". However, it was undisputed that, on this date, the said five complainants were employed as auxiliary agents. Under the old Staff Regulations, auxiliary agents were "other agents" within the meaning of the CEOS (see Article 1 of the version of the CEOS in force until 30 April 2004). Given that Article 1 of the Annex to the CEOS refers to persons who were employed as other agents on 30 April 2004, it thus clearly covered the said complainants. In these circumstances, Parliament's argument that the relevant transitional provisions could not be applied by analogy to contract staff was based on an incorrect premise.

47. In its decisions of 9 November 2007 rejecting the complainants' appeals, the AAC argued that the relevant transitional provisions did not apply to contract staff. In its view, it did not seem logical that the legislator would have wanted a contract agent's entitlement to the secretarial allowance to end before he/she passed to the last grade in Function Group II. In its opinion on the present complaint, Parliament did not rely on this argument. The Ombudsman considered it nevertheless useful to address it.

48. In this context, it should be noted that Article 18 of Annex XIII to the new Staff Regulations provides that the secretarial allowance is maintained ad personam up to grade 6. According to Article 5 of the Staff Regulations, there are two function groups of officials: AD and AST. Officials in category AD are classified in grades AD 5 to AD 16. Officials in category AST are classified in grades AST 1 to AST 11. Grade AST 6 is foreseen for officials working for example as clerks, whereas grade AST 7 is foreseen for officials working, for example, as senior clerks. According to Article 10 of the CEOS, the same categories apply to temporary staff. Article 18 of Annex XIII to the new Staff Regulations would thus mean that the legislator intended the following: if clerks fulfilled the conditions set out in this provision, they would be entitled to keep the secretarial allowance until they were promoted and became senior clerks. As regards auxiliary staff, Article 53 of the CEOS foresees four categories comprising a total of nine groups (I-IX). Group VII corresponds to secretaries and office workers, whereas group VI is foreseen for experienced secretaries or office workers. In so far as contract staff are concerned, Article 80 of the CEOS provides for four function groups comprising 18 grades. Function Group II, which covers grades 4 to 7, is foreseen for "clerical and secretarial tasks, office management and other equivalent tasks, performed under the supervision of officials or temporary staff." Contrary to the rules governing officials, temporary agents and auxiliary agents, Function Group II thus does not distinguish according to the seniority of the staff concerned. However, given that Function Group II covers both clerical staff and senior clerical staff, and covers four grades, it is perfectly possible that senior clerks fall within the highest of these grades, namely, grade 7. Contract staff who reach the position of senior clerk would thus no longer be entitled to the secretarial allowance, as is the case for officials and temporary agents. In these circumstances, applying the limitation of the maintenance of the secretarial allowance "up to grade 6", foreseen in Article 18 of Annex XIII to the new Staff Regulations to contract staff, would not appear to cause any difficulties. It was interesting to note that, in so far as the case of Mr L. was concerned, Parliament itself pointed out, admittedly among other considerations, that he was recruited in grade 7, and was thus not entitled to the secretarial allowance.

49. As a matter of fact, if it could be argued that there was an inconsistency, it would appear to concern the situation of auxiliary agents rather than that of contract staff. As noted above, group VI covers auxiliary agents working as experienced secretaries or office workers. It thus seems that a senior secretary could keep his secretarial allowance if he were employed as an auxiliary agent, but not if he was an official or a temporary agent. The argument concerning the consistency of the relevant rules thus appeared to be fairly weak.

50. It thus remained to be examined whether there could be another reason to justify the conclusion that Article 1 of the Annex to the CEOS, in conjunction with Annex XIII to the Staff Regulations, did not entitle the said five complainants to continue receiving the secretarial allowance.

51. As already mentioned above, the fact that Article 18 of Annex XIII to the new Staff Regulations uses the word "keep" implies that there must be a continuity of service beyond 1 May 2004.

52. All of the complainants concerned signed a new contract as members of Parliament's contract staff after their contracts as auxiliary agents had expired. It could thus be argued that this fact alone was sufficient to exclude the application of the relevant transitional provisions.

53. In fact, the Ombudsman considered that it would be legitimate for an institution to interpret Article 18 of Annex XIII and Article 1 of the Annex to the CEOS in that sense. These transitional provisions would thus only be available to staff whose employment had continued without any change beyond 1 May 2004. Such a strict interpretation would clearly be in conformity with the need to interpret rules providing financial benefits strictly. From the minutes of the meeting of the Heads of Administration of 19 April 2007, it appeared that this was the position taken by the Commission and the Council of the EU.

54. The Ombudsman considered, however, that it also appeared legitimate to interpret the relevant transitional measures as covering situations where there had been changes in the contractual condition, provided that there was a continuity of service. This was the rationale on which Parliament's approach was premised. More specifically, the minutes of the above-mentioned meeting indicated that "pour les représentants du Parlement ..., il s'agit d'un droit acquis ad personam dont aucune disposition expresse ne prévoit la suppression, même en cas de modification du type d'engagement (par exemple, au cas où un agent temporaire devient fonctionnaire). Le représentant du Parlement confirme qu'il considère que l'intéressé doit conserver ce droit ad personam tant que le lien avec l'institution n'est pas rompu".

55. The Ombudsman understood that, provided there was a continuity of service, Parliament considered the relevant transitional measures to be applicable in the following situations: (i) in cases where a temporary agent becomes an official after 1 May 2004; and (ii) in cases where an auxiliary agent becomes an official or a temporary agent after 1 May 2004.

56. As regards the present case, it seemed clear that there had been a continuity of service as regards the situation of the said five complainants. First, contrary to the situation of Mr SM. and Mr EPA., there was no interruption in their service. Moreover, the five complainants pointed out that they continued to do the same job, for the same Head of Unit, and in the same office. Parliament did not challenge these statements.

57. On the basis of the logic set out by Parliament itself, the transitional provisions set out in Article 1 of the Annex to the CEOS, in conjunction with Article 18 of Annex XIII to the Staff Regulations, should therefore also benefit persons such as the said five complainants, who used to be auxiliary agents and who continued their service for Parliament as members of the contract staff immediately after their contracts as auxiliary agents had come to an end.

58. The only reason Parliament put forward to justify its view that the relevant transitional provisions should not be applied to members of the contract staff was that this category of staff did not exist prior to the coming into force of the new Staff Regulations on 1 May 2004. However, this argument was not convincing, given that Article 1 of the Annex to the CEOS provides that the provisions of Annex XIII to the Staff Regulations shall apply by analogy "to other servants employed on 30 April 2004". What is decisive, therefore, is not the position on 1 May 2004, but the situation on 30 April 2004. However, and as already explained, it could not be disputed that the said five complainants belonged to the "other servants employed on 30 April 2004". The Ombudsman therefore found it difficult to understand how the fact that these complainants subsequently became members of Parliament's contract staff could justify the view that they should not benefit from Parliament's interpretation of Article 1 of the Annex to the CEOS and Article 18 of Annex XIII to the new Staff Regulations. This exception was not consistent with Parliament's own policy, as set out in the minutes of the meeting of 19 April 2007.

59. As regards Parliament's argument that it was not the intention of the legislator to enlarge the scope of the beneficiaries to include contract staff, the Ombudsman noted that Parliament did not put forward any evidence to support this proposition. It was true that, in its reply to the Ombudsman's request for further information, Parliament had referred to Mr Kinnock's foreword to the explanatory brochure, which stated that the secretarial allowance would "be discontinued for new staff". However, and without any need to assess the probative value of this statement, there was nothing to suggest that the term "new staff" which was used by Mr Kinnock had to be interpreted as meaning "contract staff".

60. The Ombudsman well understood Parliament's argument that it was indeed the overall aim of the legislator gradually to phase out the secretarial allowance, and that Article 18 of Annex XIII could not, therefore, be interpreted in a way as to "provide for an unlimited continuation of the regime in dispute". However, it was difficult to see why this aim should be relevant in the case of persons who served as auxiliary agents and then continued their service for Parliament as members of the contract staff, but not for other staff, who continued their service after being appointed as officials, or recruited as temporary or auxiliary agents.

61. In light of the above, the Ombudsman provisionally concluded that Parliament's decision to refuse the said five complainants continued entitlement to the secretarial allowance was inconsistent with the premise on which its policy in this area was based, and that, therefore, its decision constituted an instance of maladministration. Accordingly, the Ombudsman made a proposal for a friendly solution to Parliament which consisted of asking Parliament to reconsider its decision not to maintain the secretarial allowance as regards the five complainants concerned.

The arguments presented to the Ombudsman after his friendly solution proposal

62. In its reply, Parliament recalled that Article 18 of Annex XIII to the Staff Regulations provided that the secretarial allowance was to be kept ad personam up to grade 6. Contract agents performing secretarial tasks can be ranked in grades 4, 5, 6 or 7 of Function Group II. Given that grade 7 is the last grade in Function Group II, and that contract agents performing secretarial tasks can be ranked in this grade, it would have been inconsistent if the legislator had wished to confer this benefit on contract agents, but at the same time decided to deprive them of it if they were ranked in grade 7.

63. Parliament added that the intention behind the relevant provisions was to allow agents who were in service on 30 April 2004, and who on that date received the secretarial allowance, to continue receiving it. Parliament considered that those provisions had to be interpreted strictly and hence could not be applied to situations where there was a change in the contractual situation of the person concerned, given that such a situation was not explicitly envisaged by the relevant provisions.

64. Parliament referred to the case-law according to which the provisions of the Staff Regulations "have the sole purpose of regulating legal relations between the institutions and officials by establishing reciprocal rights and duties" and "employ precise wording and there is no reason to extend their scope by analogy to situations to which they do not expressly refer"[7]. This case-law also applied to the CEOS. Therefore, in their strictest sense, the provisions on maintaining the secretarial allowance can only be applied to temporary agents who remain temporary agents, or to auxiliary agents who remain auxiliary agents after 1 May 2004, without any change of contract. Parliament recalled that this strict interpretation, which the Ombudsman did not call into question, had been adopted by the Commission and the Council. Parliament pointed out that contract staff form a new category of EU employees, which was introduced by the new Staff Regulations that entered into force on 1 May 2004. A person employed as a member of the contract staff of an institution was thus de facto recruited after 1 May 2004, meaning that any contractual link with the institution predating this date necessarily derived from a different legal regime laid down in the old Staff Regulations.

65. Parliament stated, however, that, in practice, it had chosen to adopt a balanced approach which takes equal account of the wording of the relevant provisions and the need to preserve legal certainty. This resulted in maintaining the secretarial allowance in certain circumstances where there was a change in the contractual situation of the person concerned. Provided that there was continuity of employment, therefore, temporary agents who became officials after 1 May 2004, and auxiliary agents who became temporary agents or officials after that date, were able to benefit from the application of Article 18 of Annex VII to the Staff Regulations, thus continuing to be paid the secretarial allowance which they were receiving on 30 April 2004.

66. Parliament argued that the above flexibility in interpreting the relevant rules was permissible in that it did not go against the legislator's intention which was, clearly, to phase out the secretarial allowance. It would have been contrary to the legislator's intention to grant the secretarial allowance to new staff recruited under the new Staff Regulations that emerged from the 2004 reform. Parliament's decision to apply the provisions in a flexible way could not be interpreted as meaning that that it was obliged to extend the benefit of this flexible approach to other categories of staff which had no statutory claim to continue receiving the secretarial allowance, and to whom it would not be considered appropriate for this allowance to be granted. Parliament took the view that it must be allowed to set for itself the limits of this flexible interpretation. However, setting such limits autonomously is only possible in the absence of any relevant case-law governing the question, and in so far as it does not result in the creation of arbitrary situations. There was, on the one hand, no judgment or order requiring the European institutions to continue paying the secretarial allowance to former auxiliary agents who were receiving it on 30 April 2004, and who, after 1 May 2004, became members of an institution's contract staff. Nor was there a judgment obliging Parliament to grant contract agents the same statutory or financial benefits as officials, temporary agents, or auxiliary agents. On the contrary, according to the Court of First Instance, in creating the new category of contract agents, "the Council used its freedom to make at any time the changes to the Staff Regulations and the CEOS that it considered to be in the interests of the service and to adopt, for the future, less favourable provisions for the staff members concerned"[8]. Parliament concluded that, in the absence of any relevant case-law governing the question, and in so far as it did not result in the creation of arbitrary situations, its position could not be called into question. Parliament therefore concluded that the proposal for a friendly solution had to be rejected.

67. In their additional observations, the complainants pointed out that the inconsistency invoked by Parliament between Article 18 of Annex XIII to the Staff Regulations and the grading of contract agents within Function Group II, had not been substantiated. They argued that the balanced approach adopted by Parliament was discriminatory because its effect was to exclude only the persons who were, sometimes for a very short period, employed as contract staff. The complainants argued that Article 18 of Annex III to the Staff Regulations must be applied as a statutory provision, which means that there is no room for interpretation and even less room for any autonomous setting of limits. The complainants also pointed out that they had a meeting with the Secretary-General of Parliament during Parliament's plenary session in June 2010. After Parliament's reply to the friendly solution proposal had already been signed by the President of Parliament, they were informed by the Secretary-General's Assistant that the file would be re-examined by Parliament's Legal Service in order for the Secretary-General to consider the case in depth. Given the goodwill shown by Parliament's Secretary-General in agreeing to reopen the file, the complainants stated that they hoped for a positive outcome.

The Ombudsman's assessment after his friendly solution proposal

68. In his friendly solution proposal of 30 March 2010, the Ombudsman took the view that Parliament's decision to refuse continued entitlement to the secretarial allowance to the five complainants was inconsistent with the premise on which its policy in this area was based, namely, that there should be a "flexible interpretation" of the applicable rules in cases where there had been "continuity of the service". He therefore asked Parliament to reconsider its decision not to maintain the secretarial allowance in the case of the five complainants. The Ombudsman did not, however, take a position on whether the "flexible interpretation" of the rules was indeed correct. The Ombudsman has now carefully examined all the arguments put forward by Parliament in its reply to his proposal for a friendly solution, and his conclusions are outlined below.

69. The Ombudsman notes that, in its answer to the Ombudsman's friendly solution proposal, Parliament explicitly acknowledged that "... the intention of the provisions in question is to allow other agents in service on 30 April 2004 who were in receipt of the secretarial allowance on that date to continue to receive it. Those provisions ... must be strictly interpreted and hence could not be applied to situations where there was a change in the contractual situation of the person in question, given that such a situation is not explicitly envisaged by the relevant provisions". Parliament further concluded that "...[i]n their strictest sense, therefore, these provisions can only be applied in the case of temporary agents who remain temporary agents, or auxiliary agents who remain auxiliary agents, after 1 May 2004,  without any change of contract". Parliament pointed out that it was this strict interpretation, which the Ombudsman did not call into question, which had been adopted by the Commission and the Council.

70. Parliament argued, however, that its flexible approach in interpreting the relevant rules was "... permissible in that it does not run counter to the legislator's intention. However, in this case the intention of the legislator was clearly to phase out the secretarial allowance". Parliament also took the view that "...  it must also be allowed to set for itself the limits of this flexible interpretation. Setting these limits autonomously is only possible, however, in the absence of any relevant case-law governing the question and in so far as it does not result in the creation of arbitrary situations".

71. The Ombudsman would first like to point out that, as Parliament itself stressed, it opted for a "flexible" approach, according to which the entitlement to the secretarial allowance was maintained even where changes in the contractual situation occurred, provided that there was a continuity of service. However, the Ombudsman is not convinced that Parliament applied its flexible interpretation consistently and, contrary to what Parliament argues, its practice has indeed led to an arbitrary, different treatment of its agents, as the present complaint shows. Indeed, in its reply to the friendly solution proposal, Parliament did not provide any convincing reasoning as to why the secretarial allowance should continue to be paid to auxiliary agents who became temporary agents, or to temporary agents who became officials after 1 May 2004, but should not be paid to auxiliary or temporary agents who, without any rupture in the "continuity of service", which constitutes the only rationale presented by Parliament for justifying its "flexible approach", became members of the contract staff after that date.

72. The Ombudsman would like to point out that the new Staff Regulations, which entered into force on 1 May 2004, definitively abolished the secretarial allowance. The decision to abolish the secretarial allowance was the legislator's explicit choice. In accordance with the principle that exceptions to the general rule must be interpreted restrictively, it would thus appear that the most legitimate and appropriate interpretation would be the strict interpretation of Article 18 of Annex XIII to the Staff Regulations in combination with Article 1 of the Annex to the CEOS. Such a strict interpretation would also be in conformity with the need for a strict interpretation of the rules providing financial benefits. Therefore, any new staff, including contract agents and temporary agents and officials, recruited after 1 May 2004, under the new Staff Regulations, who benefitted fully from its financial arrangements, namely, the new pay scale, should not benefit from the secretarial allowance which was specifically abolished[9].  The Ombudsman notes that the Commission and the Council rightly followed such a strict interpretation. Parliament, however, decided to opt for a flexible interpretation by extending the entitlement to the secretarial allowance to include staff categories which had undergone a change in status under the new Staff Regulations. However, as shown above, this interpretation was applied inconsistently. To avoid this inconsistency, Parliament would have to extend its erroneous "flexible approach" also to contract staff. In the Ombudsman's view, and for the reasons mentioned above, such an approach would go against the way in which the text and spirit of the provisions in question should be interpreted, if they are to accord with the case-law of the Union courts.

73. For this reason, the Ombudsman considers that it is not appropriate to pursue this inquiry any further. Indeed, the present inquiry has to deal with the question of whether the complainants, who are contract agents, are entitled to receive the secretarial allowance, and not with the question of whether auxiliary agents who became temporary agents, or temporary agents who became officials could, under the flexible interpretation adopted by Parliament, have benefited, or continue to benefit, from the secretarial allowance under the new Staff Regulations.

74. The Ombudsman would finally like to reply to Parliament's argument that the question at issue in the present case has not given rise to any judgments by the Civil Service Tribunal or the General Court. The Ombudsman points out that the fact that the Union courts have not yet decided on these matters does not mean that Parliament's practice in this field is correct, or that it does not amount to an instance of maladministration.  The submissions made by Parliament in this context could be understood as meaning that the latter would be ready to accept the Ombudsman's point of view only if it were supported by case-law of the Union courts. The Ombudsman considers that such an attitude would not be acceptable, since it would call into doubt the role of the European Ombudsman as laid down in the Treaties.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There is no need for further inquiries into the present complaint.

The complainants and Parliament will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 20 December 2010


[1] Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ 2004 L 124, p. 1.

[2] Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, OJ 1999 L 175, p. 43.

[3] Case F-103/05 Pickering v Commission, judgment of 23 April 2008, paragraph 115, not published in ECR.

[4] Case T-237/00 Reynolds v Parliament [2005] ECR SC I-A-385, paragraph 5.

[5] In French: "Indemnité de secrétariat: continue à être perçue ad personam par les bénéficiaires actuels jusqu'au grade 6 compris; supprimée pour le nouveau personnel".

[6] Case T-415/06 P De Smedt v Commission, Order of the Court of First Instance of 9 July 2007, paragraphs 54-55, not published in ECR.

[7] Case T-415/06 P De Smedt v Commission, par. 57, not published in ECR.

[8] Case T-415/06 P De Smedt v Commission, par. 58.

[9] This is also the logical interpretation of the expression "new staff" contained in the explanatory brochure on the new Staff Regulations, which is prefaced by former Commissioner Kinnock.