# Decision of the European Ombudsman on complaint 1128/2003/JMA against the European Commission
- Φωτογράφος: Ευρωπαίος Διαμεσολαβητής
- Hμερομηνία : 2005-05-25T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/el/decision/el/1926)
---
Strasbourg, 25 May 2005   

Dear Mr O.,

On 23 June 2003, you lodged a complaint with the European Ombudsman against
the European Commission on behalf of Mrs S. Your complaint
concerned the Commission's decision not to take disciplinary action against
the complainant's superiors on grounds of psychological harassment, and
to reject her request for legal assistance pursuant to Article 24 of the
Staff Regulations.

On 29 September 2003, the Ombudsman declared the complaint confidential
on the basis of the available information. Following your request of 9
October 2003 that your complaint be treated publicly, I decided that your
complaint should no longer be considered as confidential. On 2 December
2003, I wrote to you and to the Vice-President of the Commission, Mr Kinnock,
to explain that the complaint would be treated publicly.

On 29 September 2003, I informed the President of the European Commission
of your complaint and I asked him to submit an opinion. On 16 December
2003, I received the Commission's opinion, which I forwarded to you for
observations. On 15 January 2004, I forwarded the Commission's opinion
to you with an invitation to make observations. By letters of 12 and 24
February 2004 you requested a deferment of the deadline to submit your
observations, which I granted on 16 March 2003. On 27 May 2004, you submitted
your observations on the Commission's opinion.

On 17 June 2004, I asked the Commission to submit additional information
concerning an action you had lodged with the Court of Fist Instance. The
Commission sent its second opinion on 3 August 2004, which I forwarded
to you with a request for observations. On 28 October 2004, you requested
a one-month extension of the deadline for your observations, which I granted
on 4 November 2004. On 29 November 2004, you sent your observations on
the Commission's second opinion to me.

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

THE COMPLAINT
-------------

The facts of the case according to the complainant are, in summary, as
follows:

The complainant is a former EC official who joined the Commission's DG
Eurostat in 1993, where she worked until November 2002. At that time,
she was forced to retire due to medical reasons. In 1995, she was made
responsible for the statistical programme "Prodcom". In that
capacity, she had to manage a number of contracts with external contractors,
one of then with the firm "Eurogramme Ltd". Her working relationship
with Eurogramme's responsible managers took a downturn, and she found
herself accused of unduly interfering with the firm's internal management.
Her hierarchical superior then received a number of communications from
Eurogramme which, in the complainant's view constituted false accusations.
In the absence of a more forceful response, the complainant believed that
her Head of Unit was not properly responding to those charges. She had
a number of harsh exchanges with her superior concerning the follow-up
of the project carried out by Eurogramme. In October 2000, she was released
from her duties in connection to this project and transferred to a different
service. As a result of the situation, the complainant's physical condition
deteriorated and she felt unable to continue her professional tasks. Having
recognised her invalidity, the Commission granted the complainant early
retirement on 8 November 2002.

The complainant considered that Eurogramme had launched false accusations
against her, and that her Head of Unit had improperly used these allegations
to discredit her work.

In response to the accusations made by Eurogramme's employees, the complainant
filed a lawsuit for libel before the High Court in London, where the firm
had its headquarters. In order to pursue this legal case, she requested
permission from the Commission to disclose information she knew on the
basis of her work, as required by Article 19 of the Staff Regulations.
The Commission rejected the request on 26 April 2002. She appealed the
Commission's decision on 19 July 2002. By not replying formally to her
appeal, the Commission implicitly rejected the complainant's appeal. Against
this implicit rejection, the complainant brought an action against the
Commission before the Court of First Instance on 13 December 2002 (T-387/02),
which is still pending. The complainant explained that her lawsuit for
libel against Eurogramme had recently been settled following an offer
for compensation which she accepted.

The complainant also sought to pursue legal actions against her hierarchical
superiors. On 23 February 2001, she formally asked the institution to
initiate a disciplinary action against her former Head of Unit on grounds
of psychological harassment pursuant to Article 90 (1) of the Staff Regulations.
Upon her request, the Commission's internal Office of Investigation and
Discipline (IDOC) carried out a number of interviews with several witnesses,
including the complainant and her superiors, and established a report
on the matter ("IDOC report"). The complainant, however, was
not given access to all information and materials pertaining to the inquiry,
in particular to the conclusions of the IDOC report and to the testimony
of the witnesses.

The Commission did not reply to the complainant's request for disciplinary
action against her former Head of Unit. In the absence of a formal reply
within four months, her request was to be deemed rejected. On 21 September
2001, the complainant lodged an appeal against this implicit refusal,
in which she asked the Commission to provide her with legal assistance,
as foreseen in Article 24 of the Staff Regulations. On 25 January 2003,
the Commission dismissed the appeal on the grounds that no evidence had
been found of any wrongdoing on the part of her former Head of Unit in
his handling of the situation. The institution concluded that the actions
of the external contractor (Eurogramme) and the manner in which its employees
had expressed their views appeared to be inappropriate, but that the nature
of the offence and its circumstances did not warrant legal assistance
from the Commission.

The complainant had a number of written exchanges with Mr Kinnock, who
was at the time Vice-President of the Commission for personnel matters.
Following the settlement of the complainant's legal case before the High
Court in London, Mr Kinnock wrote to her on 22 May 2003, and recognized
in his letter that *"some mistakes may have occurred in the course
of the \[Commission's\] administrative inquiry"*. He therefore offered
the complainant an amount of EUR 3 000 as a partial compensation for the
costs incurred.

In her complaint to the Ombudsman, the complainant contested the grounds
put forward by the Commission to refuse taking disciplinary action against
her former Head of Unit on grounds of psychological harassment, and to
reject her request for legal assistance under Article 24 of the Staff
Regulations.

In the light of the available information, the Ombudsman opened an inquiry
against the Commission. The allegation on which the Ombudsman asked the
Commission to submit an opinion was the following:
> The complainant alleges that the Commission refused her request on
> the basis of a report established by its services ("IDOC report")
> to which she could not have access, in breach of Article 26 of the Staff
> Regulations. By not being able to consult the report, the complainant
> alleges that her rights of defence were encroached.
>
> The complainant therefore claims that the Commission should reconsider
> its decision in the light of the contents of Mr Kinnock's letter to
> the complainant dated 22 May 2003, which recognizes a number of shortcomings
> in the Commission's handling of her case, and offers her a compensation
> of EUR 3 000. The complainant asks the Commission to take all necessary
> measures to restore her honour and reputation, and claims full payment
> of her attorney's fees.

Having considered the nature of the complaint and that some of the documents
included by the complainant in the file appeared to be confidential, the
Ombudsman declared the complaint confidential on 29 September 2003 pursuant
to Article 10.1 of his Implementing Provisions[(1)](#(1)){#Footnote1}.
In the light of a request from the complainant dated 9 October 2003 to
have her complaint treated publicly, the Ombudsman reversed his initial
decision. On 2 December 2003, the Ombudsman informed both the complainant
and Mr Kinnock that the complaint would henceforth be treated on a non-confidential
basis, since there appeared to be no grounds for him to maintain the confidentiality
of the complaint in order to protect the interests of the complainant
and, accordingly, that all the documents in the file would become accessible
to the public pursuant to Article 14.4 of the Ombudsman's Implementing
Provisions[(2)](#(2)){#Footnote2}. In his letter, the
Ombudsman gave Mr Kinnock the opportunity to express an opinion on this
point as regards his letter to the complainant dated 22 May 2003, which
was marked confidential.

THE INQUIRY
-----------

**The Commission's opinion**   

In its opinion of 16 December 2003, the Commission pointed out that
its decision of 26 April 2002 to reject the complainant's request for
assistance was subject to a pending action before the Court of First Instance
(case T-387/02) \[henceforth, the CFI\]. The institution argued that the
complaint to the Ombudsman was, on the whole, identical to the appeal
lodged before the CFI. It noted that, in comparison with the Court's pending
action, the only new points raised in the complaint to the Ombudsman related
to the contents of the letter from the then Vice-President of the Commission,
Mr Kinnock, dated 22 May 2003. This issue, however, had in fact been addressed
in the defence note submitted by the Commission to the CFI. The institution
took the view that all the facts which had been put forward were the subject
of legal proceedings before the CFI, and that therefore the Ombudsman
should declare the case inadmissible.

The Commission's opinion also enclosed a brief reply from Vice-President
Kinnock to the Ombudsman's letter of 2 December 2003. The institution
informed the Ombudsman that it agreed to the application of Article 14.4
of the Ombudsman's Implementing Provisions to Mr Kinnock's letter to the
complainant dated 22 May 2003.
**The complainant's observations**   

In her observations on the Commission's opinion, the complainant repeated
the allegations made in her complaint. She pointed out that the pending
case before the CFI and the complaint lodged with the Ombudsman concerned
two different situations. In her view, the action before the CFI sought
to have the Commission grant assistance to the complainant's legal case
before the British courts, whereas the complaint to the Ombudsman relates
to the Commission's decision of 25 January 2002 refusing to conduct further
inquiries into her allegations of psychological harassment. The complainant
concluded that the object of the action before the CFI and that of the
complaint to the Ombudsman were dissimilar, and therefore asked the Ombudsman
to continue his inquiry into the complaint.

FURTHER INQUIRIES
-----------------

Having considered the contradictory nature of the available evidence,
the Ombudsman concluded that he needed further information. By letter
of 17 June 2004, he asked the Commission to explain in detail whether,
in its view, the pending action before the CFI and the complaint to the
Ombudsman concerned a similar factual situation.
**The Commission's second opinion**   

In its second opinion, the Commission pointed out that, notwithstanding
the statements made by the complainant, the complaint to the Ombudsman
also covered the request for assistance which is currently under review
by the CFI. The Commission cited the specific section of the complaint
which refers to this allegation. In connection with the main allegation
made in the complaint to the Ombudsman, the institution pointed out that
the complainant had alleged that her right to be heard had been breached
by having been refused access to the statements made by her Head of Unit
and other witnesses in the report upon which the Commission based its
decision. The Commission pointed out that the very same issue had also
been raised by the complainant in her appeal to the CFI. On the basis
of these arguments, the Commission argued that the complaint to the Ombudsman
was largely identical to the appeal lodged with the CFI.
**The complainant's observations on the Commission's second opinion**   

In his observations on the Commission's second opinion, the complainant
explained that the CFI had decided to open the oral proceedings, and that
both parties had been called by the Judge Rapporteur to meet on 14 December
2004 to assess whether or not a friendly solution was still possible.
In view of these developments, the complainant suggested that the Ombudsman
suspend consideration of the case, and undertook to keep him informed
of any further development. She enclosed with her observations a copy
of the Report for the Hearing established by the Judge Rapporteur on 15
November 2004. The document described in detail the complainant's allegations
and claims, as well as the arguments submitted by the Commission in its
defence.

THE DECISION
------------

**1 The Commission's decision to reject the complainant's request for disciplinary
action**   

1.1 The complainant alleges that Commission refused her request of 23
February 2001 to initiate a disciplinary action against her former Head
of Unit on the basis of a report established by its services ("IDOC
report") to which she had no access, in breach of Article 26 of the
Staff Regulations[(3)](#(3)){#Footnote3}. By not being
able to consult the report, the complainant alleges that her rights of
defence were encroached.

The complainant therefore claims that the Commission should reconsider
its decision in the light of the contents of letter sent to her by the
former Vice-President of the Commission, Mr Kinnock, dated 22 May 2003,
which recognized a number of shortcomings in the Commission's handling
of the case, and offered her a compensation of EUR 3 000. The complainant
asks the Commission to take all necessary measures to restore her honour
and reputation, and claims full payment of her attorney's fees.

1.2 The Commission argues that the complaint to the Ombudsman, on the
whole, appears to be identical to an appeal lodged by the complainant
against its decision of 26 April 2002 rejecting the complainant's request
for assistance, which is currently pending before the Court of First Instance
(case T-387/02). The institution notes that all the facts which had been
put forward in the complaint to the Ombudsman are the subject of legal
proceedings before the CFI and that, therefore, the Ombudsman should declare
the case inadmissible.

1.3 The Treaty establishing the European Community and the Statute of
the European Ombudsman set precise conditions as to the admissibility
of a complaint. The Ombudsman can only start an inquiry if these conditions
are met.

Article 195 of the Treaty establishing the European Community provides
that:
> *"\[T\]he Ombudsman shall conduct inquiries for which he finds
> grounds, except where the alleged facts are or have been the subject
> of legal proceedings."*

Furthermore, Article 2 (7) of the Statute of the European Ombudsman stipulates
that:
> *"When the Ombudsman, because of legal proceedings in progress
> or concluded concerning 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."*

1.4 The Ombudsman notes that the allegations made in the complaint are
twofold: (i) the complainant alleges that the Commission's decision of
25 January 2002 not to take disciplinary action against the complainant's
superior on grounds of psychological harassment was based on a report
established by its services to which she was not given access, in breach
of Article 26 of the Staff Regulations; and (ii) she also claims that,
taking into consideration the terms of Mr Kinnock's letter of 22 May 2003,
the Commission should reconsider its decision of 26 April 2002 not to
furnish the complainant with financial assistance to pursue her libel
action, take all necessary measures to restore her honour and reputation,
and fully pay her attorney's fees.

1.5 Having carefully examined the scope of the pending case before the
CFI (case T-387/02) as set out by the Report for the Hearing established
by the Judge Rapporteur \[henceforth, RfH\], the Ombudsman notes that one
of the claims made by the plaintiff refers to the Commission's decision
of 26 April 2002 which the CFI has been asked to annul (par. 60 RfH).

It also appears that the manner in which the Commission responded to
the complainant's request for an inquiry into the behaviour of her superiors
constitutes a relevant component of the factual situation before the CFI
(pp. 34-36, 38, 40-44 RfH), and that this aspect of the case has specifically
been addressed in the allegations submitted by both parties to the CFI
in support of their conclusions (pp. 71; 78, 79 and 81 RfH).

1.6 In the light of the above considerations, and having assessed the
allegations and claims made by the complainant in her complaint, the Ombudsman
has concluded that the alleged facts appear to be the subject of legal
proceedings in progress before the CFI, and thus that Article 195 EC should
apply to this case.

In accordance with Article 2.7 of his Statute, the Ombudsman has therefore
decided to terminate the consideration of the complaint and to file the
outcome of the inquiries carried out so far without further action.
**2 Conclusion**   

On the basis of the European Ombudsman's inquiries into this complaint,
I have decided to terminate the consideration of the complaint and to
file the outcome of the inquiries carried out so far without further action.

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

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} *"If the complainant so
requests, the Ombudsman classifies a complaint as confidential. If he
considers that it is necessary to protect the interests of the complainant
or of a third party, the Ombudsman may classify a complaint as confidential
on his own initiative."* ; Decision of the European Ombudsman adopting
implementing provisions adopted on 8 July 2002 and amended by decision
of the Ombudsman of 5 April 2004; available at the Ombudsman' web page
(<http://www.ombudsman.europa.eu>).

[(2)](#Footnote2){#(2)} *"Applications for access
to the following documents shall be granted automatically, except in relation
to complaints that are classified as confidential in accordance with Article
10.1 above: \[...\] (b) complaints and documents annexed thereto by the
complainant"*; see supra footnote 1.

[(3)](#Footnote3){#(3)} *"The personal file of
an official shall contain:
(a) all documents concerning his administrative status and all reports
relating to his ability, efficiency and conduct;
\[...\]
Documents shall be registered, numbered and filed in serial order; the
documents referred to in subparagraph (a) may not be used or cited by
the institution against an official unless they were communicated to him
before they were filed.
\[...\]
An official shall have the right, even after leaving the service, to acquaint
himself with all the documents in his file and to take copies of them."*