Strasbourg, 4 June 2007

Dear Mr X,

On 20 December 2004, you submitted a complaint to the European Ombudsman against the European Commission concerning its decision not to renew your contract of auxiliary agent.

On 4 February 2005, my services telephoned you in order to ask you whether you had received a reply from the Commission to your letter dated 7 October 2004 mentioned in your complaint. On the same day, you sent me by fax the Commission's reply dated 21 December 2004.

On 24 February 2005, I forwarded the complaint to the President of the Commission.

On 2 June 2005, you requested information on the progress of your complaint. On the occasion of a telephone conversation on 14 June 2005, my services informed you that the Commission's opinion had not yet been received.

The Commission sent its opinion on 20 June 2005. On 21 June 2005, I forwarded it to you with an invitation to make observations before 31 July 2005.

On 20 July 2005, you requested an extension of the deadline for submitting your observations until 31 August 2005. On 21 July 2005, you telephoned my services in order to confirm that your observations would be delayed. On 3 August 2005, you sent me your observations on the Commission's opinion.

On 13 February 2006, I asked the Commission for further information in relation to your complaint. The Commission sent its reply on 10 May 2006. On 12 May 2006, I forwarded the Commission's reply to you, with an invitation to make observations, which you sent on 23 June 2006.

In an e-mail of 3 August 2006, you requested information on the state of progress of your complaint. On 13 September 2006, I replied to you that you would be informed of the next step to be taken in the framework of your complaint as soon as possible and before 31 October 2006 at the latest.

On 10 October 2006, I asked the Commission for further information in relation to your complaint. The Commission sent me its reply on 23 November 2006. On 5 December 2006, I forwarded this reply to you, with an invitation to make observations before 31 December 2006.

By e-mail of 13 December 2006, you requested an extension of the deadline for the submission of your observations. By letter of 20 December 2006, I informed you that I had decided to grant your request. On 11 January 2007, you sent me your observations.

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

THE COMPLAINT

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

The complainant, a disabled person, worked part-time as an auxiliary agent at the European Commission from 16 October 2001 to 15 September 2004.

In 2004, the Commission's Office for Infrastructures and Logistics in Luxembourg organised interviews in order to recruit contractual agents for the transition period 2004-2006. The complainant passed the tests and his name was put on the reserve list of suitable candidates.

On 14 September 2004, the Commission informed the complainant that his contract had not been renewed under the new status of contractual agent. The complainant considered that the Commission had unfairly decided not to renew his contract. He took the view that he had been the victim of discrimination on the grounds of his handicap because he believed that all of his colleagues had been offered a post of contractual agent. The complainant therefore submitted that Article 4(4) of the Staff Regulations, pursuant to which any discrimination on grounds of handicap is forbidden, had been infringed.

On 7 October 2004, the complainant wrote a letter to the responsible Head of Unit of Directorate "Personnel, Statute and Social Policy" of Office for Infrastructures and Logistics in which he formally complained against the Commission’s decision not to renew his contract.

In his complaint of 20 December 2004 to the European Ombudsman, the complainant submitted the following allegations:

1. The Commission had unfairly decided not to renew his contract.
2. He had been the victim of discrimination on the grounds of his handicap because all of his colleagues had been offered a post of contractual agent.

The complainant claimed that the Commission should renew his contract or offer him a post as a contractual agent.

The complainant subsequently informed the Ombudsman that, in his answer of 21 December 2004 to the complainant’s letter of 7 October 2004, the responsible Head of Unit had pointed out that he would examine the possibilities to offer him a post. The Head of Unit added that he had contacted several services which were likely to hire the complainant, without any success. He further stated that the complainant's former auxiliary status and his success at the tests for contractual agents did not mean that he automatically the right to be offered a contract of contractual agent.

THE INQUIRY

The Commission's opinion

The opinion of the Commission on the complaint was, in summary, as follows:

Concerning the complainant's first allegation, the Commission referred to the case-law of the Community courts pursuant to which

"[t]he contract of employment as a member of the auxiliary staff within the meaning of the conditions of employment of other servants of the European Communities is characterized by its precariousness in time, since it can be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fill an urgent need, or which are not clearly defined. Since the purpose of these conditions of employment is to arrange for occasional staff to perform duties which - by their nature or by virtue of the absence of a holder of the post - are precarious, it is clear that such conditions cannot be wrongfully used to assign such staff to permanent duties for long periods."(1)

The complainant's contract had not been renewed for two reasons. First, the post in the section in which the complainant used to work had been suppressed, following rationalisation of the workload in the service and the suppression of some activities. Second, the complainant had lacked motivation and had had an attitude incompatible with team work, which had prevented the Commission from transferring him to another service. In a letter of 8 June 2004, the responsible Head of Unit had clearly informed the complainant that the change of his duties that had occurred at that time was due to his inadequate professional conduct. In this letter, the Head of Unit had further invited the complainant to make an effort properly to perform his new duties and to ask his superiors and colleagues for help and information when necessary.

Concerning the second allegation, the complainant wrongly stated that all of his colleagues had been offered a post of contractual agent after they had passed the selection procedure. Two other colleagues, whose names had been placed on the same reserve list as the one on which the complainant's name had been put, had not been recruited as contractual agents. Furthermore, in a letter of 10 May 2004, the Commission had clearly informed the complainant that the fact that his name had been put on the reserve list did not entitle him automatically to be recruited as a contractual agent. In his complaint to the Ombudsman, the complainant had failed to mention the special attention he had received from the managerial staff, resulting from his well-known handicap, as soon as he had arrived at the Commission and during the three years he had worked for it.

The candidates whose names had been placed on the reserve list had had a medical examination with a view to their possible recruitment. Following the medical examination, the complainant's capacity for the post of contractual agent had been noted with reserve. In the Commission’s view, the complainant's disability had already been known to the medical service because he had worked for the Commission for two years and eleven months. The only consequence of a notification of aptitude with reserve was financial, consisting in the limitation of the Commission's financial responsibility in cases of invalidity and death and also as regards social security.

In any case, the complainant's name had been put on the reserve list and was still on it. The complainant had not been offered a post because no post corresponding to his professional skills had been available in the Commission's Infrastructure and Logistics Office. In fact, as already mentioned in his letter of 21 December 2004, the responsible Head of Unit had contacted several services which were likely to hire the complainant, without any success. In case a service intended to hire a contractual agent with the complainant's profile, the responsible Head of Unit had committed himself to informing the relevant service that the complainant had passed the selection procedure organised by the Office for Infrastructures and Logistics.

The complainant's observations

In his observations, the complainant maintained his complaint and made, in summary, the following further comments:

In its letter of 8 June 2004, the Commission had in fact stated that "[t]his modification of duties takes account of the inadequate professional conduct in the section 'Ushers, sorting and mail (…)'"(2). In the complainant's view, this statement did not apply to him personally but to all the members of staff of the relevant section. Despite this statement, the complainant's colleagues, who had the same length of professional activity in the relevant section and who had passed the selection procedure, had been offered a contract.

Furthermore, the Commission's statement concerning the complainant's inadequate professional conduct had never been preceded or followed by a similar notice. The complainant had never received any written note concerning this negative statement relating to his professional skills.

The Commission wrongly stated that the complainant had failed to mention the special attention he had received from the managerial staff due to his well-known disability. Following the Commission's letter dated 8 June 2004, the complainant had been transferred to the service “Y” in which the conditions of work were not adapted to his handicap. Just before the Commission's decision to transfer him to the service “Y”, he had requested that his superior assign him simple administrative duties in a working environment adapted to his disability and his professional experience. However, the working conditions of his new post had not been agreed by him or the Medical Service which, in addition, had never been informed about them.

The Commission, in its opinion, had failed to mention its letter of 29 July 2004 in which the Commission's Directorate-General for Personnel and Administration had informed the complainant that the administrative procedure to recruit him as a contractual agent had been launched and that the institution's medical officer had carried out a medical examination in order to check whether the complainant fulfilled the conditions of physical capacity required for the post of contractual agent. In the complainant's view, the Commission had therefore shown its firm intention to recruit him as a contractual agent.

Further inquiries
The first request for information addressed to the European Commission

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore asked the Commission to provide him with information on the following points:

"(1) In its opinion, the Commission stated that one of the reasons for not renewing the complainant's contract had been that the complainant lacked motivation and had an attitude incompatible with team work. Could the Commission please specify on what basis it formed this view?

(2) It appears that, in its letter of 21 December 2004, the Commission informed the complainant that it would examine the possibilities to offer him a post. In its opinion, the Commission furthermore stated that it had contacted several services which were likely to hire the complainant, without any success. Could the Commission please explain why this information was given and why these steps were taken although the Commission considered that the complainant lacked motivation and had an attitude incompatible with team work?"

The Commission's reply

In its reply, the Commission made, in summary, the following statements:

(1) As regards the issue related to the complainant’s lack of motivation, the Commission recalled that, on 10 May 2004, the complainant was, with his agreement, assigned new tasks in the service “Y”. This change of his duties was due to his inadequate professional conduct in the section "Ushers, sorting and mail" and was made upon his request to have his duties modified. Furthermore, in addition to the interview of 10 May 2004, previous interviews had been organised on 16 March and 1 April 2004, on the occasion of which the relevant Head of Unit had encouraged the complainant to improve the performance of his duties. A further interview had been organised on 4 June 2004, for the same reason, and, in the Commission’s view, without any result.

As regards the issue related to the view that the complainant’s attitude was incompatible with team work, the interviews organised between the responsible Head of Unit and the complainant had concerned the need for the latter to improve the performance of his duties and his punctuality.

(2) The second issue concerned two different aspects: on the one hand, the non-renewal of the complainant’s auxiliary contract and, on the other hand, the fact that the complainant had not been offered a post of contractual agent after he had succeeded in the selection tests.

As already stated in the Commission’s first opinion of 16 June 2005, the complainant’s contract had not been renewed in view of his lack of motivation and his attitude incompatible with team work.

The letter of 21 December 2004 written by the responsible Head of Unit was meant to signal his readiness not to exclude the complainant from the possibility of being considered, should a post corresponding to his profile become available.

This approach only concerned the selection procedure of a post of contractual agent and did not contain any assessment - positive or negative - of the complainant’s application.

The complainant's further observations

In his further observations, the complainant maintained his allegation that he had been the victim of discrimination on the ground of his handicap. He repeated that there was no written document on which the Commission had based its statement related to his alleged inadequate professional conduct in the service . The complainant further wondered why, if his professional conduct has been inadequate as stated by Commission, he had been offered several extensions of his contract until September 2004.

The second request for information addressed to the Commission

On 10 October 2006, the Ombudsman asked the Commission to provide him with information on the following points:

"In a note enclosed with his original complaint of 20 December 2004 (enclosure "F"), the complainant made the following statements (emphasis added):

(…) Le 16/12/2002 ou vers cette date, une crise survient pendant mon service. Le Service médical est requis et me prend en charge pour un repos dans leurs locaux. (…) Le chef vient me trouver en se fâchant car j’ai été inconscient et cette situation aurait pu lui coûter sa place. (…)

(…) Malgré ma volonté de trouver une autre place que j’avais expliquée à mon H.o.U et suite à la note du 8.6, je me trouve actuellement au JMO -1 dans le service […]. J’ai informé le Service médical et j’ai demandé si avec la maladie de [ …], il n’y avait pas de problème (les poussières et les cartouches d’encre).

Le H.o.U. est descendu le 6.8, fâché, en précisant qu’il en avait marre de moi et il m’a reproché ce qui suit :

1) je ne dois pas aller me plaindre au Service Médical,

2) je fais trop de fautes dans mon travail,

3) je signe mon entrée à des moments non corrects,

4) mes collègues ne voulaient plus travailler avec moi (depuis le 10.10.2002, j’étais seul au JMO 1 et depuis le 10.6.2004 avec Mr.X.)

Le même jour, j’ai reçu ma lettre de renvoi.

Could the Commission please comment on the underlined parts of the above note and their possible relevance for the present complaint?"

The Commission's reply

In its reply, the Commission stated that the factual statements made by the complainant in the note enclosed with his complaint did not correspond to reality. The Commission had invited the officials implicated by these statements to comment on them. The officials formally challenged the complainant’s statements.

As regards the complainant’s first statement, "(…) Le chef vient me trouver en se fâchant car j’ai été inconscient et cette situation aurait pu lui coûter sa place. (…)", the complainant’s superior, who was the Head of Unit of the section "Ushers", unequivocally denied it. On the contrary, the complainant’s superior stated that he had always showed concern towards the complainant when he had worked in his unit.

As regards the complainant’s further statement, "Le H.o.U. est descendu le 6.8, fâché, en précisant qu’il en avait marre de moi et il m’a reproché ce qui suit (…)", the official concerned had denied that he had been upset and had pointed out that as far as he remembered the interview to which the complainant referred had taken place in the presence of other persons. That official stressed that, contrary to what the complainant had alleged in his note, he had always invited him to call the Medical Service in the event of any concern related to his disease.

As regards the complainant’s statement related to his alleged " lettre de renvoi ", the Commission pointed out that this letter simply informed the complainant that his contract would end on 15 September 2004. In the Commission’s view, this letter could not be considered as a letter of dismissal.

The complainant's further observations

In his further observations, the complainant recognised that the Commission had no obligation to renew a contract of an auxiliary agent. However, he repeated his argument that his contract had been renewed on nine occasions and that he had been the victim of discrimination, compared to his colleagues who had been offered a new contract and who had passed the same selection tests. The complainant referred to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP(3) and to the judgment of the Court of Justice in Case C-53/04(4). In the complainant’s view, in light of the above, the Commission had failed to prove that he had not been the victim of discrimination when it had decided not to offer him a post of contractual agent. He pointed out that he had not benefited from any protection as regards his handicap and that his fixed-term contract should have been changed into a permanent contract pursuant to the national legislation of Member States.

THE DECISION

1 The scope of the Ombudsman's inquiry

1.1 The complainant, a disabled person, worked part-time as an auxiliary agent at the European Commission from 16 October 2001 to 15 September 2004. In 2004, the Commission's Office for Infrastructures and Logistics in Luxembourg organised interviews in order to recruit contractual agents for the transition period 2004-2006. The complainant passed the tests and his name was put on the list of suitable laureates. On 14 September 2004, the Commission informed the complainant that his contract had not been renewed under the new status of contractual agent. In his complaint to the European Ombudsman, the complainant alleged that the Commission had unfairly decided not to renew his contract and that he had been the victim of discrimination on the grounds of his handicap because all of his colleagues had been offered a post of contractual agent. He claimed that the Commission should renew his contract or offer him a post as a contractual agent.

1.2 The Ombudsman notes that, in his observations on the Commission's opinion, the complainant raised further issues which were not included in the original complaint. The complainant stated that in June 2004, he had been transferred to another service, even though the conditions of work there were not adapted to his handicap and had neither been brought to the attention of, nor agreed, by the Commission's Medical Service.

1.3 The Ombudsman considers that by raising these issues, the complainant did not intend to submit further allegations. In any event, Article 2(8) of the Statute of the Ombudsman states that "[n]o complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)". Article 90 of the Staff Regulations is applicable to auxiliary agents by virtue of Article 73 of the Conditions of Employment of other servants of the European Communities. Given that the complainant does not to appear have raised these issues beforehand with the Commission, the Ombudsman would therefore not be able to deal with any allegations concerning these issues before the complainant establishes that he has exhausted the internal remedies put at his disposal by the Staff Regulations and the Conditions of Employment.

2 The allegedly unfair decision of the Commission not to renew the complainant's contract

2.1 The complainant alleged that the Commission had unfairly decided not to renew his contract(5).

2.2 In its opinion, the Commission referred to the case-law of the Community courts pursuant to which "[t]he contract of employment as a member of the auxiliary staff within the meaning of the conditions of employment of other servants of the European Communities is characterized by its precariousness in time, since it can be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fill an urgent need, or which are not clearly defined. Since the purpose of these conditions of employment is to arrange for occasional staff to perform duties which - by their nature or by virtue of the absence of a holder of the post - are precarious, it is clear that such conditions cannot be wrongfully used to assign such staff to permanent duties for long periods."

The Commission further stated that the complainant's contract had not been renewed for two reasons. First, the post in the section in which the complainant used to work had been suppressed, following rationalisation of the workload in the service and the suppression of some activities. The second reason was that the complainant had lacked motivation and had had an attitude incompatible with team work, which had prevented the Commission from transferring him to another service.

2.3 In his observations, the complainant pointed out that, in its letter of 8 June 2004, the Commission had stated that "[t]his modification of duties takes account of the inadequate professional conduct in the section 'Ushers, sorting and mail (…)."(6) In the complainant's view, this statement did not apply to him personally but to all the members of staff of the relevant section. The complainant further argued that the Commission's statement had never been preceded or followed by a similar notice and that he had never received any written note concerning this negative statement relating to his professional skills.

2.4 After having considered the Commission’s opinion and the complainant's observations, the Ombudsman asked the Commission to provide him with further information on two points. First, he asked the Commission on what basis it had formed its view that the complainant lacked motivation and had an attitude incompatible with team work. Second, he asked the Commission to explain why, if it considered that the complainant lacked motivation and had an attitude incompatible with team work, it had informed him, in a letter dated 21 December 2004, that it would examine the possibilities to offer him a post and it had contacted several services which were likely to hire the complainant.

2.5 In its reply, the Commission, in summary, recalled that, on 10 May 2004, the complainant was, with his agreement, assigned new tasks in the service “Y”. According to the Commission, this change of duties was due to his inadequate professional conduct in the section "Ushers, sorting and mail" and was made upon the complainant’s request to have his duties modified. In the Commission’s view, the interviews organised between the responsible Head of Unit and the complainant concerned the need for the latter to improve the performance of his duties and his punctuality. The Commission finally pointed out that the letter of 21 December 2004 written by the responsible Head of Unit was meant to signal his readiness not to exclude the complainant from the possibility of being considered, should a post corresponding to his profile become available. In the Commission’s view, this approach only concerned the selection procedure of a post of contractual agent and did not contain any assessment - positive or negative - of the complainant’s application.

2.6 In his further observations, the complainant repeated his view that there had been no written document on which the Commission had based its statement related to his alleged inadequate professional conduct The complainant further wondered why, if his professional conduct had been inadequate as stated by the Commission, he had been offered several extensions of his contract until September 2004.

2.7 The Ombudsman notes that, according to the case-law of the Community courts, candidates whose names are included in the list of suitable laureates have not acquired a right to be appointed to the relevant vacant post. The Court of First Instance has held that they "(…) are merely eligible, and not entitled, to be appointed"(7). Pursuant to the case-law of the Community courts, this rule applies a fortiori to the recruitment of contractual agents, the Authority Empowered to Conclude Contracts of Employment having, in this regard, a wider margin of discretion in the selection of the candidates(8). The Ombudsman further notes that, in its letter of 10 May 2004 informing the complainant that his name had been put on the reserve list for the recruitment of contractual agents, the Commission had drawn the complainant's attention to the fact that "(…) your success in the selection procedure does not constitute any obligation of recruitment by the Commission in this respect".

2.8 As regards the present case, the Ombudsman notes that the complainant worked for the Commission since 16 October 2001 under an auxiliary contract which was extended on several occasions. On 30 April 2004, the Commission approved a ninth extension of the complainant's contract for four and a half months, that is, until 15 September 2004. In a letter of 14 September 2004, the responsible Head of Unit informed the complainant that his contract would end on 15 September 2004.

2.9 The Ombudsman concludes from the above that, on 15 September 2004, the complainant's auxiliary contract expired.

2.10 The Ombudsman notes that, as the Community courts have held, auxiliary contracts are characterised by their precariousness in time. In view of this fact, and in the absence of any special circumstances, the Commission was therefore under no obligation to renew the complainant's contract, even if it had previously extended this contract on various occasions.

2.11 The Commission has explained that the complainant's contract was not extended for two reasons, namely, that the relevant post been suppressed and that the complainant had shown a lack of motivation and an attitude incompatible with team work. The Ombudsman notes that the complainant did not contest the first reason invoked by the Commission. However, given that the complainant alleges that the Commission's decision not to renew his contract was unfair, the Ombudsman takes the view that the second reason invoked by the Commission needs to be examined by him.

2.12 With regard to the Commission's argument that the complainant lacked motivation and had an attitude incompatible with team work, the Ombudsman notes that the Commission organised several interviews with the complainant (on 16 March, 1 April and 4 June 2004) in which it encouraged him to improve the performance of his duties and his punctuality. The complainant did not contest this.

2.13 Furthermore, in its letter of 8 June 2004, the Commission made comments which showed that it was not entirely satisfied with the complainant's performance and asked him again to make an effort to improve. In this letter, the Commission more particularly stated the following:

"Following our interviews of 10 May and 4 June 2004, I confirm to you that your job will henceforth consist of the following tasks: (…)

(...) This modification of duties takes account of the inadequate professional conduct in the section 'Ushers, sorting and mail´ and of the wish you made to carry out simple administrative tasks. I invite you to make the necessary efforts in order to carry out your new tasks in a satisfactory way and to ask your colleagues and superiors for the help and information you consider you need. I wish you every success in your new job"(9).

The Ombudsman considers that even if it not entirely excluded that the reference to the "inadequacies in the section 'Ushers, sorting and mail'" could also have concerned other persons, it is clear that it was meant as a comment on the complainant's own performance as well.

2.14 As regards the complainant’s argument that the Commission's statement had never been preceded or followed by a similar notice and that he had never received any written comments expressing a negative appraisal of his work, the Ombudsman notes that it emerges from the interviews organised by the Commission with the complainant on 16 March, 1 April and 4 June 2004 that negative views concerning the complainant's performance and attitude had already been conveyed to him orally. As mentioned above, the complainant did not contest this. In these circumstances, the fact that these appraisals were not brought to the complainant's attention in writing is without relevance for the purposes of the present inquiry.

2.15 As regards the letter of the responsible Head of Unit of 21 December 2004, the Ombudsman notes that this letter is worded as follows:

"I am well aware of your situation and I have had contacts with those services likely to offer you a post of contractual agent, without any success.

While I understand your disappointment at not being offered a post of contractual agent, I can only confirm that neither your previous status as auxiliary agent, with a determined duration contract, nor your success in the selection procedure for the recruitment of contractual agent give you the right automatically to be offered a contract of contractual agent.

I assure you that, should a service intend to recruit someone with your profile, I will not hesitate to inform it that you have passed the selection procedure organised by the OIL"(10).

2.16 The Ombudsman is of the view that the explanations concerning this letter that were provided by the Commission in its replies to the requests for further information, and, more particularly, its statement that this letter was meant to signal the readiness of the responsible Head of Unit not to exclude the complainant from the possibility of being considered, should a post corresponding to his profile become available, appear reasonable. The relevant letter contains no statement to the effect that the performance of the complainant in his work had fulfilled all the Commission's expectations.

2.17 The complainant has also relied on the fact that the Commission extended his contract as an auxiliary agent on nine occasions. The Ombudsman agrees that a decision to extend an employment contract is normally not taken unless the employer is satisfied with the performance of the employee. However, and as mentioned above, the complainant does not dispute that he was told, on the occasion of interviews held on 16 March, 1 April and 4 June 2004, that he needed to improve his performance. It appears that the last extension of the complainant's contract was approved by the Commission on 30 April 2004. In these circumstances, this last extension does not prove that the Commission was satisfied with the complainant's work. On the contrary, it can also be interpreted in the sense that the Commission, although unhappy with the complainant's performance, was simply willing to give the latter a further chance to improve his performance.

2.18 In view of the above elements, the Ombudsman considers that the complainant has not established his allegation that the Commission had unfairly decided not to renew his contract. The Ombudsman therefore finds no maladministration by the Commission with regard to this allegation.

3 The allegation that the complainant had been the victim of discrimination on the ground of his handicap

3.1 The complainant alleged that he had been the victim of discrimination on the grounds of his handicap because all of his colleagues had been offered a post of contractual agent.

3.2 In its opinion, the Commission stated that two other colleagues, whose names had been put on the same reserve list as the one on which the complainant's had been put, had not been recruited as contractual agents. As regards the fact that, following the medical examination of candidates, the complainant's aptitude for a post of contractual agent had only been approved with reserve, the Commission pointed out that the complainant's disability had already been known to the Commission's Medical Service because he had worked for the Commission for two years and eleven months. The Commission submitted that the only consequence of a notification of aptitude with reserve was financial, consisting in the limitation of the Commission's financial responsibility in cases of invalidity and death and also as regards social security. It stressed that the complainant's name had in any event been put on the reserve list and was still on it. The Commission explained that the complainant had not been offered a post because no post corresponding to his professional skills had been available in the Commission's Office for Infrastructures and Logistics.

3.3 The Ombudsman recalls that the principle of non-discrimination and equal treatment is a fundamental principle of Community law, laid down in Article 13 of the EC Treaty as well as in Article 21 of the Charter of Fundamental Rights of the European Union. This principle is further reiterated in Article 1d(1) of the Staff Regulations according to which "any discrimination based on any ground such as (...) disability (...) shall be prohibited. (...)". As established by the case-law of the Community courts(11), the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently unless such treatment is objectively justified, that is to say, that it is based on objective criteria.

3.4 In the present case, the Ombudsman notes that the Office for Infrastructures and Logistics organised interviews in order to recruit contractual agents. Further to these interviews, the complainant was included in the relevant reserve list. The Ombudsman considers that the mere fact that the complainant was not offered a post cannot, in itself and in the absence of any other element, constitute proof of a possible discrimination. It should also be noted that the complainant's handicap did not prevent the Commission from offering him a contract in 2001 and from renewing this contract on several occasions. Most importantly, the Commission has pointed out, without being contradicted by the complainant, that two other laureates whose names were on the same reserve list did not receive an offer for a contract of contractual agent either.

3.5 In these circumstances, the Ombudsman concluded that there was no prima facie evidence for discrimination. The Ombudsman noted, however, that the complainant had submitted, together with his complaint, a note dated 20 December 2004 the contents of which appeared to suggest that the complainant's handicap might have been one of the reasons why his contract had not been renewed. In its opinion, the Commission had not dealt with this note. Given the seriousness of the complainant's allegation, the Ombudsman considered that the contents of the said note needed to be addressed. On 10 October 2006, the Ombudsman therefore asked the Commission to provide him with its views on the relevant issues mentioned in the note of 20 December 2004.

3.6 In its reply, the Commission stated that the factual statements made by the complainant in the note enclosed with his complaint did not correspond to reality. The Commission had invited the officials concerned by these statements to comment on them. According to the Commission, these officials had formally challenged the complainant’s statements.

3.7 In his observations on this reply, the complainant recognised that the Commission had no obligation to renew a contract of an auxiliary agent. However, he referred to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and to the judgment of the Court of Justice in Case C-53/04. In the complainant’s view, the Commission had failed to prove that he had not been the victim of discrimination when it had decided not to offer him a post of contractual agent. He submitted that he had not benefited from any protection as regards his handicap and that his fixed-term contract should have been changed into a permanent contract pursuant to the national legislation of Member States.

3.8 The Ombudsman notes that the complainant did not comment on the Commission’s reply as regards the fact that, in the Commission’s view, the statements he had made in his note of 20 December 2004 did not correspond to reality. Nor has the complainant put forward any further evidence to support his view that discrimination occurred. The Ombudsman considers that neither Council Directive 1999/70/EC of 28 June 1999 nor the judgment of the Court of Justice in Case C-53/04 are relevant in this context. Both the directive and the judgment concern the question as to whether successive short-term contracts can lead to the establishment of an employment relationship of lasting duration. However, this is an issue that has not been raised by the complainant in the present case, either in his submissions to the Commission or in his complaint to the Ombudsman. In any event, neither the directive nor the judgment would appear to suggest that where an allegation of discrimination on the grounds of handicap is raised, the burden of proof should always be on the employer.

3.9 In light of the above, the Ombudsman considers that the complainant has not established his allegation that he had been the victim of discrimination on the grounds of his handicap.

3.10 On the basis of the above, the Ombudsman finds no maladministration with regard to this aspect of the complaint.

4 The complainant's claims

4.1 The complainant claimed that the Commission should renew his contract or offer him a post as a contractual agent.

4.2 The Commission made no statement on the complainant's claims.

4.3 In view of his conclusions set out above in points 2.18 and 3.10, the Ombudsman considers that these claims must fail.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case 43/84 Maag v Commission [1985] ECR 2581.

(2) Translation by the Ombudsman's services from the French original version: "Ce changement de travail tient compte de l'insuffisance des prestations à la section "Huissiers, Tri Courrier" (…)".

(3) OJ 1999 L 175, p. 43.

(4) Case C-53/04 Marrosu and Sardino [2006] ECR I-7213.

(5) The Ombudsman understands that the complainant alleges that the Commission had unfairly decided not to renew his contract under the new contractual agent status.

(6) Translation by the Ombudsman's services from the French original version: "Ce changement de travail tient compte de l'insuffisance des prestations à la section "Huissiers, Tri Courrier" (…)".

(7) See Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143. See also Article 30, paragraph 2, of the Staff Regulations which states that "[t]he appointing authority shall decide which of these [suitable] candidates to appoint to the vacant posts."

(8) See Case T-217/96 Fabert-Goossens v Commission [1998] ECR-SC I-A-607 and II-1841.

(9) Translation by the Ombudsman's services from the French original version: "Comme suite à nos entretiens des 10 mai et 4 juin 2004, je vous confirme que votre travail comprendra dorénavant les tâches suivantes: (…) Ce changement de travail tient compte de l'insuffisance des prestations à la section "Huissiers, Tri, Courrier" et du souhait que vous avez exprimé, à savoir exécuter des tâches administratives simples. Je vous invite à faire les efforts nécessaires pour donner satisfaction dans vos nouvelles tâches et à demander à vos collègues et vos supérieurs l'aide et les informations dont vous estimez avoir besoin. Je vous souhaite plein succès dans votre futur travail".

(10) Translation by the Ombudsman's services from the French original version: "(…) je suis bien informé de votre situation et j’ai eu des contacts avec les services susceptibles de pouvoir vous offrir un contrat d’agent contractuel, mais sans résultats. Tout en comprenant votre déception de ne pas vous voir engager comme agent contractuel, je ne peux que vous confirmer que ni votre statut antérieur d’agent auxiliaire à contrat de durée déterminée ni votre réussite à la sélection pour agents contractuels ne vous ouvre droit à l’octroi automatique d’un contrat d’agent contractuel. Soyez rassuré que si un service cherchait quelqu’un avec votre profil, je n’hésiterai pas lui signaler le fait que vous avez réussi la sélection organisée par l’OIL".

(11) See, for example, Case T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31.