THE BACKGROUND TO THE COMPLAINT

1. The complainant was appointed by the Commission as an official in grade C in 1996. He was seconded at his own request to a Community body in September 1999. In April 2004, in order to prepare his application for an internal, the complainant requested, by e-mail, a certificate of employment from the Commission. His e-mail was sent to one of the addresses specified for this purpose in point IX.2 of the Notice of Competition. On the next day, he sent another e-mail stating that he was a Commission official on secondment and asking for access (a username and password) to the Commission Intranet in order to use the on-line application system (as specified in the Notice of Competition). The complainant clarified that he used to have a username and password but that he has forgotten the latter and that he was not sure whether his former username was still active. This was followed by an exchange of three e-mails between the complainant and the Task Force for Internal Competitions ("TAFIC"). In the first e-mail, TAFIC stated that only staff members in active service in the Commission were eligible for the competition. The complainant replied, reiterating the request for a username and password for the Commission Intranet or, alternatively, a physical address to which a written application could be sent. On the same day, TAFIC responded that, in accordance with point III.1.a of the Notice of Competition, only officials in active service or seconded in the interest of the service could apply for the competition. TAFIC's reply did not provide a postal address.

2. In May 2004, the complainant applied for the competition by sending his paper application by post. In his application letter, the complainant acknowledged, but contested, the fact that the Notice of Competition stipulated that officials seconded at their own request were ineligible for the competition. On 2 July 2004, the Head of TAFIC rejected his application on the grounds that point IX of the Notice of Competition required applications to be made on-line and that, therefore, paper applications could not be taken into consideration.

THE SUBJECT-MATTER OF THE INQUIRY

3. The complainant considered the Commission's above position to be unfair and discriminatory. He, therefore, submitted a complaint to the Ombudsman concerning the Commission's refusal to admit him to the competition, and related matters. In his complaint to the Ombudsman, the complainant also expressed grievances about procedural matters related to his application.

4. The Ombudsman opened his present inquiry into the following allegations and claims:

5. The complainant alleged that the Commission's refusal to allow officials seconded at their own request to participate in an internal competition was discriminatory and inconsistent.

6. The complainant claimed that the Commission should:

1. Reconsider his application for the competition;
2. Review its rules for internal competitions in order to allow officials seconded at their own request to participate and thereby act consistently as regards the significance accorded to service in other institutions and bodies regarding professional experience and eligibility for participation in internal competitions;
3. Provide him with a username and password allowing him to use electronic tools such as IntraComm and Sysper2; and
4. Apologise for its failure to reply to all aspects of his correspondence.

THE INQUIRY

7. Having received the Commission's opinion on the complaint, the Ombudsman considered that further inquiries were necessary. He therefore sent a letter of further inquiries to the Commission on 29 September 2005. The Commission sent its additional opinion on 22 November 2005, which was forwarded to the complainant for observations. The complainant did not submit any observations. After careful consideration of the Commission's submissions, the Ombudsman considered that further clarifications were necessary. He therefore sent a letter of further inquiries to the Commission on 20 June 2006. The Commission sent its second additional opinion on 4 September 2006, which was forwarded to the complainant for observations. The complainant did not submit any observations.

8. Having received the Commission's opinions and further explanations, the Ombudsman, in his detailed examination of the issues involved, found that the Commission's position was unjustified. He, therefore, addressed a friendly solution proposal to the Commission, asking it to "review its rules for internal competitions with a view to allowing officials seconded at their own request to participate in any future such competitions".

9. In its reply, the Commission stated that it could partially accept the Ombudsman's proposal for a friendly solution that involves changing the rules applicable to participation in internal competitions as follows: officials on secondment at their own request will be allowed to apply for internal competitions during the first six months of their secondment.

10. In his observations, the complainant expressed his dissatisfaction with the Commission's above reply.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

The structure of the decision

11. In his friendly solution proposal, the Ombudsman took the view that (i) the complainant's argument and claim relating to his username and password for using the Commission electronic tools; (ii) his arguments that the Commission failed to send him an employment certificate; denied him the possibility to submit his application in paper form; and failed to address the question whether he was eligible to participate in the competition; and (iii) his claim that the Commission should apologise for its failure to reply to all these aspects of his correspondence, were only of secondary importance in relation to the complainant's allegation concerning the Commission's refusal to allow officials seconded at their own request to participate in an internal competition, which was the real reason for not considering the complainant's eligibility. The Ombudsman therefore decided not to analyse these secondary issues but to focus on the main issue instead.

The admissibility of the complaint

12. In its opinion, the Commission appeared to raise some questions as to the admissibility of the present complaint, pointing out that the complainant neither lodged a complaint under Article 90(2) of the Staff Regulations, nor requested that his application be reconsidered by the Selection Board.

13. As regards the Commission's statement that the complainant did not lodge a complaint under Article 90(2) of the Staff Regulations, the Ombudsman recalls that, in deciding upon the admissibility of complaints concerning recruitment competitions, the Ombudsman examines compliance only with Article 2(4) of his Statute, which stipulates that a complaint must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. This is settled practice, for instance, with the European Personnel Selection Office. In the present case, the Ombudsman took the view that there did not appear to be any reason why his admissibility examination should not also be limited to Article 2(4) of his Statute with respect to a complaint concerning internal competitions. Moreover, it appears both desirable and appropriate to ensure a consistent and equal treatment of applicants in EU recruitment procedures. In the present case, it appears undisputed that the complainant contacted the Commission and expressed his dissatisfaction with the fact that he could not participate in the competition. As such, the complainant had made 'prior administrative approaches' within the meaning of Article 2(4) of the Ombudsman's Statute.

14. Nevertheless, the Ombudsman has carefully examined the Commission's points of view in the present case. In light of the specific facts of the case, the Ombudsman considers that it could indeed have been relevant to give further consideration to the appropriateness of the complainant's exhausting the internal remedies for redress, notably the procedures foreseen under Article 90 of the Staff Regulations. Such an alternative course of action could have been appropriate, given that the present case did not merely concern the organisation of a specific recruitment competition, but rather a general policy of the Commission influencing the complainant's rights under the Staff Regulations, and hence arguably affecting a 'work relationship' within the meaning of Article 2(8) of the Ombudsman's Statute(1).

15. However, the Ombudsman notes that the Commission submitted its opinion on the substance of the complaint and answered his further inquiries. In view of the above, the Ombudsman found it appropriate to proceed to a full examination of the present case.

A. Allegation that the Commission's refusal to allow officials seconded at their own request to participate in an internal competition was discriminatory and inconsistent, and the related claim

Arguments presented to the Ombudsman

16. The complainant argued that officials seconded at their own request were discriminated against in comparison to officials seconded in the interest of the service since the former were not allowed to participate in the competition. In his view, Articles 38 and 39 of the Staff Regulations do not provide for officials seconded at their own request to be treated differently than other seconded officials as regards the possibility of participating in internal competitions. The complainant considered it to be inconsistent that years of service in another Community institution or body were accepted as valid for the five years' seniority required in order to be eligible for participation in the Internal Competition in question, whereas certain officials in active employment with another Community institution or body were not eligible for participation if they were seconded at their own request. Furthermore, temporary agents received preferential treatment in comparison to officials seconded at their own request, since the former were allowed to participate in the competition. The complainant claimed that the Commission should review its rules for internal competitions in order to allow officials seconded at their own request to participate and thereby act consistently as regards the significance accorded to service in other institutions and bodies regarding professional experience and eligibility for participation in internal competitions.

17. In its opinion, the Commission argued that an official seconded at his or her own request is subject to very different rules in terms of career progression and in particular promotion within his or her parent institution, than an official seconded in the interest of the service. Whereas Article 38(f) of the Staff Regulations stipulates that an official seconded in the interest of the service

"(...) shall retain his post, his right to advancement to a higher step and his eligibility for promotion",

Article 39 (f) simply stipulates that an official seconded at his own request

"(...) shall retain his right to advancement to a higher step".

The complainant's comment on the Staff Regulations was therefore based on a misunderstanding. Furthermore, the position of both the institution and the official concerned is very different depending on whether the institution is putting a request to one of its staff members or, on the contrary, it is the staff member who is putting a request to the institution. When the Commission is putting a request to a staff member in the interest of the service, it is logical that the conditions of secondment are more favourable. It is therefore not inconsistent, but instead entirely normal, to count those periods spent in another institution or agency when calculating the number of years' service. In the context of an internal competition for transfer to a higher category, experience gained in other institutions or agencies can be seen as equally useful as experience gained within the Commission. In addition, the case-law of the Community courts establishes that temporary agents in active service in the Commission have the right to participate in internal competitions if they meet the eligibility criteria. Accordingly, the Notice of Competition correctly applied this case-law, as well as Article 39(e) of the Staff Regulations, in permitting the participation of temporary agents in active service, whilst excluding officials seconded at their own request.

18. The complainant did not submit observations on the Commission's opinion.

19. After having carefully examined the Commission's opinion, the Ombudsman considered that further inquiries were necessary. He noted that, according to the case-law of the Community courts, Article 29(1) of the Staff Regulations, which regulates the filling of vacant posts, is based on the view that a transition from a first phase, which includes promotions, to a second phase, which includes the organisation of internal competitions, must allow an increase in the number of possible applications in order to attain the aim envisaged in Article 27 of the Staff Regulations, namely the appointment of officials of the highest standards of ability(2). The Ombudsman therefore asked the Commission to explain:

1) in what way it considered that the exclusion of officials seconded at their own request from participation in internal competitions was in line with the procedure set out in Article 29(1) as well as achieving the aim of recruitment envisaged in Article 27 of the Staff Regulations; and

2) whether it always excludes officials seconded at their own request from participation in internal competitions or whether there have been exceptions from this practice.

20. In reply, the Commission argued that the case-law of the Community courts quoted by the Ombudsman was respected and that the provisions of Article 27 of the Staff Regulations were safeguarded by the fact that all category C* officials and temporary agents who met the eligibility criteria had been able to apply for the competition. This amounted to several thousand potential applicants. Furthermore, the reserve list from this competition increased the number of potential candidates for all B* posts published in the Commission by 240. In this context, the exclusion of officials seconded at their own request from this competition was marginal. However, the Commission underlined the point made in its opinion, namely, that the exclusion of officials seconded at their own request was not arbitrary but reflected the intention of the legislator to differentiate between career progression in the parent institution under Article 38 for officials seconded in the interest of the service and under Article 39 for officials seconded at their own request. All recent internal competitions within the Commission contained the provision excluding officials seconded at their own request.

21. The complainant did not submit observations on the Commission's reply.

22. After careful consideration of the Commission's reply to the Ombudsman's further inquiries, the Ombudsman considered that further clarification was necessary. He therefore asked the Commission to explain whether it always excludes officials seconded at their own request from participation in internal competitions.

23. In its reply, the Commission stated that all recent internal competitions had included the provisions excluding officials seconded at their own request.

24. Since the Commission's statement did not constitute an exhaustive reply to the Ombudsman's question, the Ombudsman asked it to clarify its answer by providing information as to whether the Commission has always excluded officials seconded at their own request from participating in internal competitions.

25. In its reply, the Commission stressed that fixing the eligibility criteria for competitions is part of the discretionary powers of the Appointing Authority. Therefore, in the framework of the Staff Regulations, the Appointing Authority is free to decide upon these criteria and to adjust them according to its staff policy. Consequently, the eligibility criteria may vary from time to time and in accordance with the Appointing Authority's staff policy. The Commission had examined recent notices of internal competitions "passage de catégorie", and could confirm that, from as early as 1996, officials seconded at their own request were not admitted to such competitions. Further inquiries would necessitate in depth research in the Commission's historic archives and the Commission considered that it could not undertake, for the purpose of answering the present request, the lengthy and costly research that would be required to provide the Ombudsman with the requested information. The Commission therefore regretted not to be in a position to give a more exhaustive reply to the Ombudsman's request for information.

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

26. The Ombudsman first pointed out that the Notice of Competition in the present case excluded staff seconded at their own request from participating in the Internal Competition in question by stipulating that applicants had to be in active employment in the Commission, seconded in the interest of the service or on leave for military service (Title III, point 1(a)). The question was therefore whether the exclusion of staff seconded at their own request from participating in the Internal Competition constitutes an instance of maladministration by being discriminatory and inconsistent(3).

27. Article 37 of the Staff Regulations provides as follows:

"[a]n official on secondment shall continue to enjoy all his rights under the conditions provided for in Articles 38 and 39".

28. Therefore, unless otherwise provided for in Articles 38 (which applies to officials seconded in the interest of the service) and 39 (which applies to officials seconded at their own request), all officials on secondment shall continue enjoy all their rights. Furthermore, any variation in the treatment of officials seconded in the interest of the service and officials seconded at their own request must be limited to the specific exceptions set out in Articles 38 and 39 respectively.

29. The Ombudsman acknowledged that, as pointed out by the Commission, a seconded official's right to promotion is governed by Articles 38(f) and 39(e) of the Staff Regulations. From this, it can be inferred that officials seconded in the interests of the service retain their eligibility for promotion (Article 38(f)), whereas officials seconded at their own request are not guaranteed this right (Article 39(e) a contrario(4)). The Ombudsman noted, however, that the issue of eligibility for participation in internal competitions is not explicitly governed by Articles 38 and 39. Although the Commission appears to have applied, by analogy, Article 39(e) to determine the ineligibility of seconded officials as regards participation in internal competitions, this analogy does not withstand scrutiny. The Ombudsman recalled that "promotions" and "internal competitions" are governed by different rules set out in separate sections of the Staff Regulations, and that promotions and internal competitions do not necessarily serve the same purpose. For instance, when it comes to filling a vacant post, Article 29 of the Staff Regulations distinguishes between doing so by way of promotion (Article 29(a)) or by way of holding internal competitions (Article 29(b)). Furthermore, according to Article 45(2) of the Staff Regulations, an official cannot be transferred to another category by way of promotion, but only by successfully participating in an internal competition(5). Accordingly, the Ombudsman found nothing to suggest that what is said in the Staff Regulations about the right to promotion should be automatically applicable also to internal competitions. The Ombudsman did not, therefore, consider that Article 39(e) imposes an obligation on the institutions to exclude officials seconded at their own request from participation in internal competitions. Indeed, the principle that, unless otherwise provided for in accordance with Articles 38 and 39, officials on secondment should retain all their rights, and should thus be treated equally, gave rise to the opposite conclusion, that is, that there is an obligation on the institutions not to exclude officials seconded at their own request from participation in internal competitions open to all other officials.

30. The Ombudsman further recalled that, according to the case-law of the Community Courts, Article 29(1)(6) of the Staff Regulations, which regulates the filling of vacant posts, is based on the view that a transition from a first phase, which includes promotions, to a second phase, which includes the organisation of internal competitions, must allow an increase in the number of possible applications in order to attain the aim envisaged in Article 27 of the Staff Regulations, namely the appointment of officials of the highest standards of ability(7). The Community courts have further ruled that the aim assigned to the recruitment procedure by Article 27 of the Staff Regulations involves the necessity of recruiting officials on as broad basis as possible(8). In Case T-56/89, the Court of First Instance had to decide whether a particular eligibility criterion represented an appropriate means of achieving the aim envisaged in Article 27 of the Staff Regulations. The Court found that there was no necessary link between the eligibility criterion in question and the merits and qualifications of possible candidates. Consequently, the eligibility criterion in question could result in the exclusion of a candidate with the same qualifications as, or possibly better qualifications than, those of other candidates admitted to an internal competition(9). The Court considered that this eligibility criterion was not in conformity with the Staff Regulations.

31. The Ombudsman did not find a link between the fact that an official is being seconded at her or his own request, and the merits and qualifications of that official. The Commission acknowledged that, in the context of an internal competition for passing to a higher category, experience gained in other institutions or agencies can be seen as equally useful as experience gained within the Commission. It equally acknowledged that, when calculating seniority, the Notice of Competition allowed for periods of secondment in the interests of the service or at the request of the person concerned to be taken into account. The Ombudsman therefore considered that the exclusion of officials seconded at their own request could result in the exclusion of a candidate with the same qualifications as, or possibly better qualifications than, those of other candidates admitted to an internal competition.

32. The Ombudsman also noted the Commission's argument that the exclusion of officials seconded at their own request was only "marginal". He considered, however, that even if the exclusion was marginal, it was contrary to the principle of recruiting officials on as broad a basis as possible. In any event, the fact that the exclusion of a limited number of candidates might be "marginal" when compared to the total number of candidates cannot, in any way, condone the discriminatory treatment of such candidates.

33. Furthermore, the Ombudsman was not convinced by the Commission's argument that "the provisions of Article 27 of the Staff Regulations were safeguarded by the fact that all C* officials and temporary agents who met the eligibility criteria could apply for the competition." The question at stake was whether a particular eligibility criterion was in line with the provisions of Article 27 of the Staff Regulations. The fact that candidates who met the eligibility criterion in question were allowed to participate in the competition does not constitute evidence that the eligibility criterion is in line with Article 27 of the Staff Regulations. Furthermore, although fixing the eligibility criteria is part of the discretionary powers of the Appointing Authority, as argued by the Commission, the Court of First Instance has ruled that the exercise of these discretionary powers when organising competitions must be in accordance with Articles 27 and 29 of the Staff Regulations.

34. The Ombudsman therefore considered that the exclusion of officials seconded at their own request from participating in the Internal Competition in question does not appear to be consistent with the aim envisaged in Article 27 of the Staff Regulations, namely, the appointment of officials of the highest standards of ability.

35. As regards the alleged discrimination, the Ombudsman recalled that discrimination occurs when identical or comparable situations are treated in an unequal way without any objective justification. The Ombudsman noted in this regard the Commission's argument that the position of both the institution and the official concerned is very different, depending on whether the institution is putting a request to one of its staff members or, on the contrary, it is the staff member who is putting a request to the institution. According to the Commission, it is logical that the conditions of secondment are more favourable when it is putting a request to a staff member in the interest of the service. However, both Commission officials who have been seconded in the interest of the service and Commission officials who have been seconded at their own request continue to be officials of the Commission. The Ombudsman considered that the Commission had not explained how the differences between these groups of officials could authorise it, in the absence of a specific provision to that effect, to exclude from internal competitions officials seconded at their own request. The exclusion of officials seconded at their own request from participating in the Internal Competitions in question therefore appeared to be discriminatory. Besides, the Ombudsman noted that officials on leave for military service were allowed to participate in the Internal Competition in question. Given that it is difficult to see how such a leave could be in the interest of the service, the Ombudsman found it even more difficult to understand why officials seconded at their own request were excluded.

36. In view of the above, the Ombudsman arrived at the provisional conclusion that the Commission's refusal to allow officials seconded at their own request to participate in Internal Competition appears to be inconsistent and discriminatory and could constitute an instance of maladministration(10).

37. He therefore made the following proposal for a friendly solution to the Commission:

"The Commission could review its rules for internal competitions with a view to allowing officials seconded at their own request to participate in any future such competitions."

The arguments presented to the Ombudsman after his friendly solution proposal

38. In its reply to the Ombudsman's proposal, the Commission referred to its previous replies pointing out that it had exhaustively explained why it deemed it appropriate to admit to internal competitions officials seconded in the interests of the service and not to admit officials seconded at their own request. It further pointed out that the difference in treatment between an official seconded in the interest of the service and an official seconded at their own request is "justified by the fact that, in the first case, secondment may be imposed on the officials concerned against their will. One could therefore reasonably assume that the Community legislator intended such officials to have the guarantee that a change of assignment would affect neither their remuneration nor their career prospect. Such a guarantee would not appear essential for officials on secondment at their own request, since in such cases it is up to the officials concerned to evaluate the benefits of the secondment requested by them."(11) The Commission argued that the Ombudsman did not appear to take into account the legal distinction between the two cases, that is, that officials seconded in the interests of the service retain their post, whereas officials seconded at their own request do not retain their posts indefinitely. Nevertheless, the Commission declared its willingness to modify its approach, while adhering of what in its view was the significant legal distinction referred to above, and therefore partially to accept the Ombudsman's friendly solution proposal as follows: officials on secondment at their own request will be allowed to apply for internal competitions during the first six months of their secondment.

39. In his observations on the Commission's reply to the Ombudsman's friendly solution proposal, the complainant stated that he did not consider the Commission's reply as an achievement of a friendly solution. Even if the Commission would, in the future, allow officials on secondment at their own request to apply for internal competitions during the first six months of their secondment, the Commission's refusal to allow the same officials to participate in internal competitions following this period of time would still constitute discrimination and be inconsistent.

The Ombudsman's assessment after his friendly solution proposal

40. In the following, the Ombudsman examines whether the Commission's reply to his proposal for a friendly solution contains a convincing response to that proposal.

41. The Ombudsman first notes that the Commission maintains that it is within its own discretion to determine whether officials seconded at their own request may participate in internal competitions. It follows from the above that the Commission has rejected the Ombudsman's finding that this view is not compatible with the relevant provisions of the Staff Regulations.

42. In rejecting the Ombudsman's findings, the Commission

1. has repeated the argument that the Community legislator intended to differentiate between officials seconded in the interests of the service and officials seconded at their own request;
2. has argued that this interpretation has been confirmed by the Court of First Instance in Case T-15/95(12); and
3. has stated that the Ombudsman did not appear to take into account the distinction between the two cases of secondment: officials seconded in the interests of the service retain their post, whereas officials seconded at their own request do not retain their post (Article 38(f) of the Staff Regulations).

43. As regards (i), the Ombudsman recalls that, according to Article 37 of the Staff Regulations, all officials on secondment "shall continue" (emphasis added). Any variation in the treatment of officials seconded in the interest of the service and officials seconded at their own request must therefore be limited to the specific exceptions set out in Articles 38 and 39 respectively. to enjoy all his rights under the conditions provided for in Articles 38 and 39

44. In this context, the Ombudsman points out that the issue of eligibility for participation in internal competitions is simply not governed by Articles 38 and/or 39. The Commission has nevertheless decided to apply the rules in Article 39(e) to determine the ineligibility of seconded officials as regards their participation in internal competitions. In this respect, the Ombudsman recalls that "the provisions in the Staff Regulations containing a precise terminology cannot be applied by analogy to cases which are not explicitly foreseen" in the Staff Regulations(13).

45. In light of the above, the Ombudsman finds that the Commission has failed to justify its above-mentioned view and corresponding practices. These practices therefore lack a legal basis and are furthermore discriminatory.

46. As regards (ii), the Ombudsman points out that the Court case referred to by the Commission concerned the grading and reintegration of an official seconded at his own request. That case did not concern the official's right to participate in internal competitions. It is therefore of no obvious relevance to the facts and the legal issues raised in the present inquiry.

As regards (iii), and similar to the previous point, the relevance of the Commission's argument is not obvious. The present case concerns the right of officials seconded at their own request to participate in internal competitions. The case does not concern any issues relating to the possibility or right of such officials to 'retain their post'.

47. It also appears that the Commission incorrectly makes a distinction between a decision to second an official under Article 37(a), which would be in the interest of the service, and a decision to second an official under Article 37(b), which is taken on the official's request and would therefore not be in the interest of the service, but rather in the interest of the official. Such an approach is clearly not correct. The fundamental difference between the two decisions seconding an official is as follows: In the situations foreseen in Article 37(a), the official is "directed" to serve outside his institution, whereas in the situation foreseen in Article 37(b), the official is "placed" outside of his institution at his request. The Ombudsman would like to underline that even the decision to place an official outside his/her institution upon his/her request can only be taken if this is in the interest of the service. If the request of an official to be seconded under Article 37(b) is considered not to be in the interest of the service, it should be refused. In such an instance, an official wanting to pursue his/her personal interests would need to have recourse to other mechanisms of the Staff Regulations, such as the possibility to take leave on personal grounds.

48. Finally, it follows from the above that the Commission's suggestion to allow officials seconded at their own request to apply for internal competitions during the first six months of their secondment cannot make up for the above-mentioned shortcomings. The issue here concerned relates to a right provided for in the Staff Regulations. Failure to respect that right cannot be compromised through a new practice like the one now proposed by the Commission.

49. In light of the above considerations, the Ombudsman finds that the exclusion of officials seconded at their own request from participating in internal competitions is without any legal basis and discriminatory. This constitutes an instance of maladministration.

50. When the Ombudsman finds that there has been an instance of maladministration, he makes, if this is feasible, a friendly solution proposal to the institution concerned. If the proposal for the friendly solution is rejected, the Ombudsman can address a draft recommendation in that regard to the institution. In the present case, however, the facts under inquiry relate to the past. There is nothing that can usefully be done to resolve the complainant's particular problems in the internal competition in question. Moreover, having analysed the Commission's arguments presented in the course of the inquiry, and taking into account its unwillingness to accept his proposal for a friendly solution, the Ombudsman considers that there is no realistic prospect that the Commission would change its position in this particular inquiry. The Ombudsman therefore considers that it is more useful and appropriate to close this case with a relevant critical remark, without making a draft recommendation, and to invite the Commission to take a position and to revise its general policy on this issue within the framework of the follow-up to the Ombudsman's critical remarks, on which the institutions are invited to react each year(14). In light of the Commission's reaction, the Ombudsman will consider starting an own-initiative inquiry relating to the different rights available to seconded officials, other than those provided for under Articles 38 and 39 of the Staff Regulations. Indeed, it appears that the practice, which came to light in this particular inquiry, namely, the access of seconded officials to internal competitions, is only one aspect of a broader systemic problem concerning the different treatment of seconded officials(15).

B. Conclusions

On the basis of his inquiries into this complaint, the Ombudsman makes the following critical remark:

The Ombudsman finds that the exclusion of officials seconded at their own request from participating in internal competitions is without any legal basis and discriminatory. This constitutes an instance of maladministration.

For the reasons mentioned in point 50 of the present decision, the Ombudsman considers that it is more useful and appropriate to close this inquiry with a relevant critical remark, r ather than to make a draft recommendation to the Commission. Nevertheless, he invites the Commission to take a position and to revise its policy on this general issue. This should happen within the framework of the follow-up to his critical remarks, on which the institutions are invited to react each year.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 21 November 2008

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(1) Article 2(8) of the Ombudsman's Statute provides: "No 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 and the time limits for replies by the authority thus petitioned have expired."

(2) Case T-56/89 Bataille and others v Parliament [1990] ECR II-597, paragraph 48.

(3) It should be pointed out that the analysis of the present case is based on the Staff Regulations that were applicable before 1 May 2004, that is, at the time of publication of the Notice of Competition in question. Where changes have occurred in the new Staff Regulations that could affect the reasoning in the present case, they will be noted in a footnote.

(4) This means that since the right is explicitly mentioned in Article 38(f) concerning officials seconded in the interest of the service, but not in Article 39(e) concerning officials seconded at their own request, the right is not guaranteed for the latter officials.

(5) Article 45(a) in the new Staff Regulations allows for a transfer between function groups after the official has participated in a training programme and passed certain tests.

(6) Article 29 was changed by the new Staff Regulations, adding a new means of filling a vacant post, namely, appointment in accordance with Article 45(a), which allows for a transfer between function groups after the official has participated in a training programme and has passed certain tests.

(7) Case T-56/89 Bataille and others v Parliament [1990] ECR II-597, paragraph 48.

(8) Case 16/64 Rauch v Commission [1965] ECR (English special edition) 135; Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 50.

(9) Case T-56/89 Bataille and others v Parliament [1990] ECR II-597, paragraph 48.

(10) However, it should be recalled in this regard that the Court of Justice is the highest authority on the interpretation of Community law.

(11) Case T-15/95 Nuno do Paço Quesado v Commission [1996] ECR II-171, paragraph 30.

(12) Case T-15/95 Nuno do Paço Quesado v Commission, cited above.

(13) Case T-15/95 Nuno do Paço Quesado v Commission, cited above, paragraph 29.

(14) As of 2006, the Ombudsman has decided to conduct on an annual basis a study on the follow-up made by the institutions and bodies to critical and further remarks he has addressed them. This follows a resolution passed by the European Parliament, with an eye to monitoring the level of compliance of the different institutions with the Ombudsman's recommendations. The first study, concerning the year 2006, is available on his website.

(15) It appears that different treatment between seconded officials also exists also in relation to access to the certification procedure provided for under Article 45(a) of the Staff Regulations.