The background to the complaint

1. The complainant worked for the European Commission from 2001 to 2009 as an auxiliary and contract agent. As of 16 May 2009, he obtained another post as a contract agent for the European Commission for a fixed period from 16 May 2009 to 15 May 2010.

2. He worked for a nine-month probationary period, until 16 February 2010. The report on his probationary report was positive and included the following comment: "maintien dans la fonction".

3. In light of the above comment, the complainant thought that the Commission would automatically renew his contract.

4. However, on 4 May 2010, the complainant came back from holidays and was informed that the Head of Unit had decided not to renew his contract due to his difficulties of integration within the service.

5. On 7 May 2010, the Commission informed the complainant that it upheld the decision not to renew his contract.

6. On 6 August 2010, the complainant lodged a complaint under Article 90(2) of the Staff Regulations against the decision not to renew his contract. He alleged that the decision was unfair and amounted to unfair dismissal because he worked for the Commission for nine years and it belatedly informed him that his contract would not be renewed.

7. On 26 November 2010, the Commission rejected the complaint lodged under Article 90(2) of the Staff Regulations. It stated that the complainant had a fixed-period contract, from 16 May 2009 to 15 May 2010.

8. The complainant was not satisfied with the Commission's reply and on 9 February 2011, he turned to the Ombudsman.

The subject matter of the inquiry

9. In his complaint, the complainant alleged that the way in which the Commission dealt with the termination of his contract was unfair.

10. He claimed that the Commission should reinstate him in his post.

The inquiry

11. On 12 July 2011, the Ombudsman opened an inquiry regarding the complainant’s above allegation and claim.

12. On 19 October 2011, the Commission sent its opinion, in which it informed the Ombudsman that the complainant had brought an action to the EU Civil Service Tribunal ('CST'). The Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations by 31 December 2011. On 6 December 2011, the complainant confirmed to the Ombudsman's services by telephone that he had lodged an action with the CST concerning the subject matter of the complaint he submitted to the Ombudsman.

The Ombudsman's analysis and conclusions

A. Alleged unfair dealing with the termination of the complainant's contract and related claim

Arguments presented to the Ombudsman

13. The complainant alleged that the way in which the Commission dealt with the termination of his contract was unfair.

14. In its opinion, the Commission informed the Ombudsman that the complainant had initiated proceedings before the CST (case F-17/11) on 22 April 2011 concerning the matter of his complaint to the Ombudsman.

15. On 6 December 2011, the complainant confirmed this information in a telephone conversation with the Ombudsman's services and stated that the proceedings covered the same allegations and claims.

16. Article 228 of the Treaty on the Functioning of the European Union empowers the European Ombudsman to receive complaints "… concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies …except where the alleged facts are or have been the subject of legal proceedings." Moreover, Article 2(7) of the European Ombudsman's Statute provides that "when the Ombudsman, because of legal proceedings in progress or concluded concerning the 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."

17. Therefore, considering that the complainant has initiated proceedings at the CST on the same alleged facts as those in his complaint to the Ombudsman, he terminates consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

B. Conclusion

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

The Ombudsman terminates consideration of the complaint and files his inquiry without further action.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 17 January 2012