Strasbourg, 17 December 2003

Dear Mr Ø.,

On 30 April 2003, you made a complaint to the European Ombudsman against the Economic and Social Committee concerning an allegation that you had provided "false information".

On 4 June 2003, I forwarded the complaint to the Secretary General of the Economic and Social Committee. The Committee sent its opinion on 29 September 2003 and I forwarded it to you with an invitation to make observations, which you sent on 30 November 2003.

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

THE COMPLAINT

The background of the present complaint is the following:

On 14 and 22 May 2002, the complainant made a complaint to the European Ombudsman (ref. 0906/2002/OV) against the Economic and Social Committee (hereafter "ECOSOC") for having terminated his recruitment procedure.

The complainant had participated in the European Parliament's competition PE/86/A for English language Assistant Administrators. He was informed by letter of 29 July 1999 from the head of the Parliament's competition service that his name was not included in the reserve list. However, the complainant understood the letter to mean that he had passed the competition. In January 2002, he therefore applied to ECOSOC for a post as an official. In February 2002, ECOSOC made a job offer to him and the complainant took the medical examination. However, in March 2002, ECOSOC informed the complainant that they could not recruit him, as he had not succeeded in the European Parliament's competition and had not been placed on the reserve list. In May 2002, the complainant complained to the Ombudsman alleging that ECOSOC had unjustifiably suspended his recruitment procedure.

On 16 December 2002, the Ombudsman closed his inquiry and came to the conclusion that there had been no maladministration by ECOSOC. As the complainant had made new allegations in his observations of 30 November 2002, the Ombudsman informed the complainant that he could submit a new complaint.

On 30 April 2003, the complainant wrote back to the Ombudsman and made a new complaint, which can be summarised as follows:

In its opinion on complaint 0906/2002/OV, ECOSOC stated that the procedure for the recruitment of the complainant was initiated on the basis of "false information provided by the complainant". The provision of false information is a serious offence, as it implies the wilful withholding or altering of facts with a view to mislead. The complainant considers that this allegation against him is unjustified, as he acted in good faith and voluntarily provided ECOSOC with all the relevant information in his possession. Moreover, by making this allegation, ECOSOC has infringed Article 12 ("courtesy") of the European Code of Good Administrative Behaviour. ECOSOC could have politely pointed out to the complainant that his actions were based on an unfortunate misunderstanding and could have apologised for its failure to identify this misunderstanding.

In summary, the complainant alleges that ECOSOC's statement that he provided false information is unfounded and constitutes an act of maladministration. He claims a full retraction, in writing, of the statement and an apology, also in writing, for having wrongfully called into question his personal honesty and integrity.

THE INQUIRY

The Economic and Social Committee's opinion

ECOSOC firstly observed that, in his decision of 16 December 2002, the Ombudsman concluded that there had been no maladministration by ECOSOC, as the complainant had not been put on the reserve list.

ECOSOC then stated that there was no general inconsistency, or any slander or accusation to be read from the wording of the statements in its opinion in case 0906/2002/OV. These statements were in no way libellous.

The complainant has used the potential similarity between "passing a competition" and "becoming a successful candidate" for a post as the basis for his entire defence strategy for both complaints submitted to the Ombudsman. This strategy contravenes Articles 28 d and 30, and Annex III of the Staff Regulations. The complainant was not entirely truthful towards the ECOSOC officials who first contacted him to initiate the appointment procedure. He played on the potential ambiguity of the concepts of "passing a competition exam" and "becoming a successful candidate", and the persons responsible for his recruitment understood that he had been added to the reserve list. The complainant was himself the source of the incomplete information provided to ECOSOC and must bear the logical consequences of his disloyal action. ECOSOC has in no way sought to discredit the complainant, nor committed any slander against him.

ECOSOC further observed that, from a procedural point of view, the complaint should not be admitted because a) the complainant has submitted his complaint as a response to the statements made by ECOSOC when exercising its right to a fair hearing, and the question which arises here is thus a problem of a procedural nature that must be resolved as part of the same proceedings used to reach a decision on the initial complaint, and b) the complainant has not made prior administrative approaches in relation to this new complaint.

ECOSOC concluded that the complaint should therefore be declared inadmissible or, alternatively, rejected.

The complainant's observations

The complainant maintained his complaint and made nine pages of observations which can be summarised as follows: He regretted that ECOSOC did not show any intention to meet his request for a written retraction of the allegation that he provided false information and for a written apology. He maintained his request and was open for a friendly solution. The complainant hoped that the Ombudsman would take note of the arrogance and disrespect shown by ECOSOC in further aggravating an already serious situation.

As regards the admissibility, the complainant observed that the Ombudsman's decision to admit the present complaint is perfectly in line with the Ombudsman's interpretation of his procedures according to which, in case of any doubt concerning whether prior administrative approaches have been made, such doubt should go in favour of the complainant. Moreover, the facts underpinning the present complaint were well known to ECOSOC from complaint 0906/2002/OV.

The complainant reiterated that his view that he had been successful in open competition PE/86/A was held legitimately and in good faith on the basis of the facts available at the time. He was thus acting in good faith when he claimed that he had been successful in his letters to ECOSOC.

ECOSOC at no point retracted its allegation that the complainant provided it with false information, nor did it provide any facts to substantiate the allegation. Instead, ECOSOC aggravated the situation by claiming that the complainant was not entirely truthful towards the ECOSOC officials, that he played on the potential ambiguity of the concepts, that he was himself the source of the incomplete information provided to ECOSOC, and that he should bear the consequences of his disloyal action. These additional allegations are as unfounded and as unsubstantiated as the allegation that is the subject of the present complaint. ECOSOC was again acting deliberately to discredit the complainant by making libellous allegations against him.

If officials specialised in staff matters could, on the basis of copies of letters of the European Parliament concerning his candidature, come to the conclusion that the complainant was eligible for recruitment as an official, then surely a European citizen with no detailed knowledge of an institution's recruitment procedures might be forgiven for coming to the same conclusion in good faith. The responsibility for knowing the recruitment procedures rests with the Community institutions and not with the citizen. The complainant discharged any personal responsibility by providing ECOSOC with all the relevant information, including documentary evidence.

THE DECISION

1 The admissibility of the complaint

1.1 In its opinion, ECOSOC questions the admissibility of the complaint on two grounds: a) the question which arises is a problem of a procedural nature that must be resolved as part of the same proceedings used to reach a decision on the initial complaint, and b) the complainant has not made prior administrative approaches in relation to this new complaint.

1.2 Article 2.4 of the Statute of the European Ombudsman(1) provides that "a complaint (…) must be preceded by the appropriate administrative approaches to the institutions and bodies concerned". In his Annual Report for the year 1995, the Ombudsman stated, with regard to the interpretation of the criteria of admissibility, that "an unduly technical or legalistic approach to the admissibility of complaints about possible instances of maladministration by Community institutions or bodies would be inappropriate. If there is any doubt, for example, concerning whether there has been sufficient prior contact (…), such doubt should normally be resolved in favour of the complainant. If a complaint is wrongly deemed inadmissible, the citizen's rights are put at risk".(2)

1.3 The Ombudsman notes that the allegation that is the subject of the present complaint is closely linked to the matter which was examined in the framework of the inquiry into complaint 0906/2002/OV. The complainant has for the first time complained about this allegation in the framework of this former complaint, namely in his observations on ECOSOC's opinion. ECOSOC has been informed of this, as the Ombudsman sent a copy of his decision of 16 December 2002 to ECOSOC, and the decision mentioned the allegation that is the subject of the present complaint.

1.4 On the basis of the above, the Ombudsman considers that the condition of "appropriate" prior administrative approaches is met in the present complaint. Requiring the complainant to contact ECOSOC again before complaining to the Ombudsman would have been inappropriate and unduly legalistic. The complaint is therefore admissible.

2 The statement that the complainant provided "false information" and the claim for a retraction of that statement

2.1 The complainant alleges that ECOSOC's statement in its opinion on complaint 0906/2002/OV that he provided false information is unfounded and constitutes an act of maladministration. He claims that ECOSOC should fully retract the statement in writing, and apologise, also in writing, for wrongfully having called into question his personal honesty and integrity. The complainant argues that he acted in good faith.

2.2 ECOSOC argued that the complaint should be rejected as there was no general inconsistency, nor any slander or accusation to be read from the wording of the statements in its opinion in case 0906/2002/OV. ECOSOC has in no way sought to discredit the complainant. The complainant played on the potential ambiguity of the concepts, was himself the source of the incomplete information provided to ECOSOC and must bear the logical consequences of his disloyal action.

2.3 The Ombudsman recalls that the complainant's application for a post at ECOSOC was based on the following text in the letter of the European Parliament's competition service of 29 July 1999 concerning the complainant's participation in open competition PE/86/A : "I regret to inform you that it was not possible to include your name on the list of suitable candidates because, although you obtained the pass-mark in each of the tests and you obtained the required 60 % of the marks in all the written and oral tests, you are not among the 13 best candidates to whom the list of suitable candidates had to be restricted". As stated in the Ombudsman's decision of 16 December 2002 on complaint 0906/2002/OV, it is clear from this phrase - starting with "I regret to inform you" - that the complainant had not succeeded in the competition. The complainant's belief that he passed the competition and could apply for a post at ECOSOC was thus wrong.

2.4 In its opinion on complaint 0906/2002/OV, ECOSOC stated that the complainant provided "false" information. The Ombudsman notes that, amongst the normal meanings of the word false, is "deliberately untrue". In its opinion on the present complaint, ECOSOC has not provided any evidence to show that the complainant deliberately provided untrue information. ECOSOC could, in its opinion on the present complaint, have withdrawn and apologised for any suggestion that the complainant did not act in good faith. Instead, ECOSOC has made further insinuations of bad faith - without substantiating them - by stating that the complainant "has used the potential similarity between these two notions as the basis for his entire defence strategy", "played on the potential ambiguity of concepts" and "must now bear the logical consequences of his disloyal action.”

2.5 When a Community institution or body considers that it has acted correctly and that it cannot be blamed for maladministration, then it is useful that the institution or body explain its actions and give reasons for them. This usually promotes understanding of the actions of the administration. Improper wordings only provoke and support a negative impression of the institution concerned and of the Community administration at large(3). The above phrases in ECOSOC's opinion show that it has responded in a language different from that normally used by Community institutions and bodies in their opinions to the Ombudsman.

2.6 Principles of good administration require that institutions be correct and courteous in their relations with the public. If an error occurs, which negatively affects the rights or interests of a member of the public, the institution shall apologise for it and endeavour to correct the negative effects resulting from this error(4). In the present case, ECOSOC has failed to comply with the duty to act courteously. This constitutes an instance of maladministration and the Ombudsman therefore makes the critical remark below.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

Principles of good administration require that institutions be correct and courteous in their relations with the public. If an error occurs, which negatively affects the rights or interests of a member of the public, the institution shall apologise for it and endeavour to correct the negative effects resulting from this error(5). In the present case, ECOSOC has failed to comply with the duty to act courteously. This constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, and considering the position adopted by ECOSOC in its opinions on the present case and case 0906/2002/OV, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The Secretary-General of ECOSOC will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties, OJ L 113 of 4 May 1994, p. 15.

(2) Annual Report of the Ombudsman 1995, pages 20-21.

(3) See the Ombudsman's decision of 13 March 2002 in the own initiative inquiry OI/1/2002/OV concerning CEDEFOP, Annual Report of the Ombudsman 2002, p. 204. See also at http://www.ombudsman.europa.eu/decision/en/02oi1.htm.

(4) Article 12.1 and 12.3 of the European Code of Good Administrative Behaviour.

(5) Article 12.1 and 12.3 of the European Code of Good Administrative Behaviour.