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Decision of the European Ombudsman closing the inquiry into complaint 118/2013/AN against the European Parliament

The case concerned the European Parliament's decision to disregard the derogation from mobility it had granted to one of its officials on account of her daughter's severe and irreversible disability. The Ombudsman inquired into the issue and found that the European Parliament could not lawfully revoke its derogation. She made a proposal to the European Parliament in this regard, which Parliament rejected. The Ombudsman thus made a draft recommendation, requesting the European Parliament to allow the complainant the continuing benefit of the derogation for as long as her daughter's situation requires the mother's presence, even if this means indefinitely. The European Parliament, while refusing to acknowledge that its position was not warranted, accepted the Ombudsman's recommendation and the case was closed.

The background

1. In the year 2000, the European Parliament granted the complainant, an official of that institution, a derogation (the 'Derogation') from the mobility policy it had recently put in place[1]. The Derogation was granted in light of the fact that her daughter suffered from severe brain damage. The Derogation explicitly stated that it would apply for as long as the daughter's condition remained incompatible with a transfer. However, after several years in which Parliament respected the Derogation, in 2010 it began requesting the complainant either to accept being moved to another post or to take early retirement or to start teleworking instead. In the particular circumstances of the complainant, mobility would involve moving to another city.

2. The Ombudsman opened an inquiry into the complainant's allegation that the European Parliament had wrongly revoked the Derogation granted to her in 2000 in view of her exceptional family circumstances, which have not changed in the meantime. The complainant's claim, which also forms part of the Ombudsman's inquiry, is that Parliament should abide by the Derogation and exclude her from the mobility exercise.

3. Parliament argued that the Derogation was not meant to be permanent, since at the time it was granted the condition of the complainant's daughter "was not such as to rule out any possibilities of learning or other favourable outcomes." Parliament further stated that, in line with the case-law of the Court of Justice, it had already made reasonable accommodation to the complainant's situation, by allowing her to remain in city X for many years. Continuing this situation was, however, contrary to the principle of equal treatment, constituted an excessive burden and needed to be avoided in order to restore the balance between the complainant's interest and the interest of the service.

4. The complaint insisted that the Derogation was granted on the basis of her daughter's condition, which Parliament knew was irreversible, and that it was intended to remain in force for as long as that condition lasted. The complainant said she felt pressurised and intimidated by Parliament's on-going position that she should either apply for another assignment or accept an alternative solution which she considered unsuitable.

5. The Ombudsman took the view that the wording of the Derogation clearly and unambiguously shows that it was meant to enshrine a permanent right, without any time limit, for the complainant to be exempted from mobility if and for as long as her daughter would require her presence in city X. Moreover, the Derogation is not contrary to the principle of equal treatment, since the complainant's circumstances are manifestly not similar to those of the vast majority of her colleagues who are subject to mobility. Nor is it, in light of the available information, a significant obstacle to Parliament's mobility policy. In any event, the Ombudsman considered that the "alternatives" to mobility which Parliament offered to the complainant are unacceptable, and that subjecting her to the mobility requirement would be disproportionate.

6. The Ombudsman therefore proposed to the European Parliament that it "allow the complainant the continuing benefit of the Derogation... for as long as the condition of the complainant's daughter remains such that her welfare requires the continuing presence of her mother (which, unfortunately, may be indefinitely)."

7. The European Parliament rejected this proposal. The Ombudsman thus made a draft recommendation in the same terms[2].

The European Parliament's reply to the Ombudsman's draft recommendation

8. The President of the European Parliament replied that, in light of the arguments which the Parliament had already put forward, he believed that Parliament's decision is well founded, in line with the interest of the service and with the principle of equal treatment of staff members. Therefore, the European Parliament, while being sympathetic to the complainant's situation, could only reiterate that the complainant is subjected to the mobility rules as are her colleagues.

9. However, taking into account the complainant's family situation, the President of the European Parliament assured the Ombudsman that the complainant's mobility would respect the requirement that her daughter remains in her mother tongue-speaking environment and that she is not separated from her mother.

The Ombudsman's assessment after the draft recommendation

10. The Ombudsman regrets that Parliament has not been willing to admit its error in the present case by acknowledging that it cannot simply depart from a lawful and justified promise it made to the complainant years ago on the basis of circumstances which have not changed in the meantime.

11. Nevertheless, the main aim of this inquiry was to ensure that Parliament would not, through mobility, add to the complainant's already heavy personal burden by making her move to another city. The President of the European Parliament assured the Ombudsman that the complainant's daughter will not be separated from her mother and will remain in her mother tongue-speaking environment. The Ombudsman understands this to mean that the complainant will not be moved from her current place of employment in city X. This allows the Ombudsman to consider that the European Parliament has accepted her draft recommendation and to close the case.

12. The Ombudsman thanks the President of the European for his intervention, which unblocked the situation and allowed for a reasonable solution to be found in this case.

Conclusion

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

The European Parliament has accepted the Ombudsman's draft recommendation. The case is thereby closed.

The complainant and the European Parliament will be informed of this decision.

 

Emily O'Reilly

Strasbourg, 22/04/2015

Final English version of the decision on complaint 118/2013/AN

 

[1] The European Parliament's mobility policy requires that after an official has been assigned to the same post for seven years, he or she should be reassigned in the interests of the service.

[2] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal and draft recommendation available respectively at: http://www.ombudsman.europa.eu/cases/correspondence.faces/en/59542/html.bookmark and http://www.ombudsman.europa.eu/en/cases/draftrecommendation.faces/en/54332/html.bookmark