The background to the complaint

1. The complainant is a former staff member of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU (Frontex).

2. On 10 August 2010, he submitted to the Executive Director of Frontex a request for internal mobility, in which he explained, among other things, that he was being treated discourteously and disrespectfully by his colleagues. He also pointed out that he felt insufficiently involved in the work of his team, his work focusing on the private affairs of his supervisor. As a consequence, his mental and physical health had suffered. He asked to be transferred to another unit or department within Frontex as soon as possible.

3. On 26 August 2010, the complainant submitted to Frontex a letter of resignation, in which he pointed out that he wished to leave his post with effect from 1 November 2010.

4. In a letter to Frontex's Deputy Executive Director of 23 September 2010, the Chairperson of Frontex's Staff Committee pointed out that the complainant had not yet received a reply to his request for internal mobility and asked Frontex to reply.

5. On the following day, the Deputy Executive Director wrote to the complainant and informed him that his request for internal mobility had remained unanswered, given that, just a few days after receipt, the complainant's resignation as of 1 November 2010 had been authorised. As a consequence, further action on his internal mobility was not considered to be necessary. Referring to the Staff Committee's letter, the Deputy Executive Director confirmed this position, noting that the complainant would leave Frontex within 20 working days and still had more days of leave to be taken than the number of working days remaining. He also pointed out that the complainant's supervisor had agreed to discuss the issues raised with the complainant and the Staff Committee in order to clarify possible misunderstandings.

6. The complainant subsequently submitted to the Deputy Executive Director a request for a meeting to be attended by his then supervisor and the Staff Committee. On 5 October 2010, the Deputy Executive Director replied that he saw no role for him in such a meeting. On this occasion, the Deputy Executive Director also stated that, having decided on the complainant's internal mobility, any further measures would have to be of a disciplinary nature. However, he stated that he could not find grounds for a disciplinary procedure, unless the complainant's allegations would be supported by solid evidence.

7. On 20 October 2010, the complainant submitted to the Executive Director of Frontex a "request for assistance under Article 24 of the Staff Regulations". In his letter, the complainant complained about his former supervisor and about the latter's proposal not to renew his contract in spite of the fact that his performance had been evaluated as fully meeting performance expectations. He pointed out that that adverse decision was, among other things, the result of his unwillingness to deal with the private affairs of his supervisor and of another staff member. The complainant specified that the tasks assigned to him by his supervisor frequently involved the facilitation of private matters, such as arranging piano classes and providing interpretation for his supervisor's wife. When the complainant informed his supervisor that he felt only insufficiently involved in the activities of his team and that his skills and knowledge were not being used to his full capacities, he was accused of not providing assistance on private matters and thus harming the spirit of the team. He also stated that he only received feedback from his supervisor upon explicit request, and then not in a constructive manner. Moreover, following the complainant's refusal to take care of his supervisor's private matters, the latter threatened that he would make use of his contacts in order to derail the complainant's future career.

8. Following the complainant's letter of 20 October 2010, Frontex launched an administrative inquiry into the complainant's allegations.

9. On 2 June 2011, Frontex informed the complainant that, based on the findings of its inquiry, no case could be made against his former supervisor. At the same time, Frontex stated its intention to hold a bilateral meeting with the complainant's supervisor so as to have an appropriate discussion of the matter.

10. On 30 August 2011, the complainant submitted the present complaint to the Ombudsman.

The subject matter of the inquiry

11. In his complaint, the complainant submitted the following allegations and claims.

Allegations:

(1) Frontex failed to: (i) reply to the complainant's request for internal mobility; and (ii) take emergency measures after the complainant informed Frontex of what he perceived to be an abuse of authority and direct threats by his supervisor[1].

(2) Frontex failed to: (i) make a proper inquiry into the facts set out in the complainant's request for assistance dated 20 October 2010; and (ii) deal with that request in a timely manner.

(3) Frontex did not have a policy in place to deal with cases of harassment. As a result, the complainant was forced to look for another job and accept a position at a lower grade.

Claim:

Frontex should make a proper inquiry into the facts set out in the complainant's letter of 20 October 2010.

12. In his complaint, the complainant further alleged that, when recruiting Mr X and perhaps when recruiting the staff member replacing the complainant, Frontex did not comply with the applicable statutory rules. Article 2(4) of the Statute of the European Ombudsman requires complaints to be preceded by appropriate administrative approaches to the institution concerned. Given that the complainant had not yet approached Frontex in relation to this issue, the Ombudsman informed him, on 6 October 2011, that this allegation was not admissible. The same was true of the complainant's claim that Frontex should provide financial compensation to him for the damage he suffered as a consequence of having to take up a new job at a lower grade[2].

The inquiry

13. On 6 October 2011, the Ombudsman requested Frontex's Executive Director to submit an opinion on the complaint. At the same time, the Ombudsman asked the Executive Director to allow his services to inspect Frontex's files.

14. The Ombudsman forwarded Frontex's opinion to the complainant with an invitation to make observations.

15. The inspection of Frontex's files took place on 19 January 2012. Frontex's files inspected by the Ombudsman's services consisted of the file concerning the complainant; the file relating to the recruitment of Mr X; and the file relating to the recruitment of the staff member replacing the complainant.

16. A copy of the report on the inspection was sent to Frontex, and a further copy was sent to the complainant with an invitation to submit observations.

17. The complainant submitted observations on Frontex's opinion and the report on the inspection on 2 March 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

18. In his complaint, the complainant also alleged that, when recruiting Mr X and perhaps when recruiting the staff member replacing the complainant, Frontex did not comply with the applicable statutory rules. Given the inadmissibility of that allegation (see paragraph 12 above), the Ombudsman informed the complainant that he would decide, on the basis of the findings of the inspection of Frontex's files by his services, whether there are grounds for an own-initiative inquiry into this matter.

19. The inspection of the file showed that the post for which Mr X was recruited had been advertised at grade AD8, with a closing date for applications of 30 April 2009. According to the vacancy notice, candidates were required to have at least nine years of professional experience. In an e-mail to the Head of Human Resources dated 21 April 2009, the complainant essentially pointed out that it had been agreed with the Deputy Executive Director that the number of years of professional experience required for the advertised post should be six and requested for the vacancy notice to be amended accordingly. In reply, the Head of Human Resources essentially stated that, according to the relevant Commission model decision, the minimum number of years of professional experience for grade AD8 is nine. However, the Head of Human Resources also pointed out that no decision had yet been adopted by Frontex. Following confirmation by the complainant's supervisor of the complainant's aforesaid e-mail, the vacancy notice was re-issued, this time requiring at least six years of professional experience (closing date: 18 May 2009). The relevant file also contained a Decision of the Executive Director on the criteria applicable on engagement of Temporary Staff (dated 27 March 2006). According to Article 2 of that Decision, at least six years of professional experience are required for grade AD8. The inspection also showed that, on 23 November 2009, a Decision of the Executive Director establishing the procedure governing the engagement and use of temporary staff was adopted. According to Article 5 of that Decision, the minimum number of years of professional experience required for grade AD8 is nine.

20. The inspection showed that seven candidates were invited for an interview, following publication of the re-issued vacancy notice. Mr X was offered the advertised post and two candidates were placed on a reserve list. An examination of the application file submitted by Mr X showed that he met the requirement as to the professional experience defined in the vacancy notice, as re-issued.

21. As regards the recruitment of the staff member replacing the complainant, the inspection showed that, since none of the candidates selected from Frontex's reserve list was interested to participate in interviews, it was decided to use, once again, the pool formed by those candidates who had applied, in 2009, for the position later filled by the complainant. Frontex short-listed seven candidates from that pool. Following written tests and interviews in November 2010, one of the shortlisted candidates was offered the position and another one was placed on the reserve list.

22. In his observations, the complainant submitted that, prior to Mr X's appointment, there had been a vacancy for the same post for which a Mr Y was recruited and where the required professional experience had been nine years. The complainant considered that it was not justifiable to advertise the same position at the same grade, but requiring different professional experience. He concluded that the recruitment of Mr X amounted to a clear case of favouritism, whereby his former supervisor recruited a personal friend of his who did not meet the eligibility criteria for an AD8 position.

23. As regards the recruitment of the staff member replacing him, the complainant recalled that the recruitment of temporary staff shall be directed at securing for the institution the services of persons of the highest standards of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of the EU Member States. The complainant considered that the candidates invited in 2010 had not previously been invited for interview and had therefore not been placed on a reserve list of successful candidates. According to him, it was not transparent and objective to invite for interview in order to fill a vacancy arising in 2010 candidates who had applied for another position in 2009 with the same profile, but who had not been selected.

24. As regards Mr X's appointment, the Ombudsman recalls that, according to Article 2 of the Decision of the Executive Director on the criteria applicable for engagement of Temporary Staff dated 27 March 2006, at least six years of professional experience are required for positions at grade AD8. The complainant did not deny that this Decision was applicable to the recruitment procedure leading to the recruitment of Mr X, and that it was amended at a later stage only so as to provide for a minimum of nine years of professional experience for grade AD8. On the basis of the aforesaid Decision of the Executive Director, Frontex was free to set the amount of professional experience required at six years. In view of this legal situation, the complainant's view that Mr X did not have sufficient experience, because he did not have nine years of professional experience, does not merit an inquiry. The Ombudsman notes that the complainant did not submit any more detailed information as regards Mr Y's recruitment, to which he referred in his observations. In any event, given that the aforesaid Decision refers to minimum amounts only, it appears that Frontex enjoys a degree of discretion in determining the number of years of professional experience required. It should also be noted that the examination of the recruitment file did not bring forward any elements in support of the complainant's view that the recruitment of Mr X represented an instance of favouritism.

25. Concerning the recruitment of the complainant's successor, the Ombudsman recalls that, pursuant to Article 82(1) of the Conditions of Employment of Other Servants of the European Communities[3] (henceforth the 'Conditions of Employment'), contract staff shall be selected on the broadest possible geographical basis from among nationals of Member States and without distinction as to racial or ethnic origin, political, philosophical or religious beliefs, age or disability, gender or sexual orientation and without reference to their marital status or family situation. Article 82(6) of the Conditions of Employment stipulates that each institution shall adopt general provisions on the procedures for engaging contract staff, as necessary. To the Ombudsman's knowledge, Frontex did not adopt provisions on the procedures for engaging contract staff. While the complainant is right in pointing out that the candidates invited in 2010 had not previously been invited and had therefore not been placed on a reserve list of successful candidates, it became clear in the course of the inspection that none of the candidates on the reserve list were available for interview. In these circumstances, Frontex decided to rely on the pool of candidates from the 2009 selection procedure. In his complaint and his observations on Frontex's opinion, the complainant did not elaborate on his view that Frontex's practice was not in line with the Conditions of Employment. Neither did the file inspected by the Ombudsman's services contain any elements which would suggest that Frontex did not comply with applicable statutory rules in this regard.

26. In these circumstances, the Ombudsman concludes that there are no grounds for an own-initiative inquiry into the complainant's aforesaid allegation. Nevertheless, the complainant remains free to re-submit his allegation to the Ombudsman, after he has made appropriate administrative approaches to Frontex.

A. Alleged failure to reply to a request for internal mobility

Arguments presented to the Ombudsman

27. The complainant alleged that Frontex failed to reply to his request for internal mobility.

28. In its opinion, Frontex stated that the Executive Director received the complainant's request for internal mobility on 10 August 2010. However, within 16 days from receipt of that letter, the complainant, on 26 August 2010, sent a further letter submitting his resignation from his post with two months notice. The resignation was to take effect on 1 November 2010. In that letter, the complainant stated that the reason for his resignation was the need to advance his career. The Executive Director approved the complainant's resignation and, taking into account that the termination of the complainant's contract was approaching, did not take any further measures on his request for internal mobility.

29. While inspecting Frontex's files, the Ombudsman's representatives pointed out that there was no trace in the file concerning Frontex's handling of the complainant's request for internal mobility. In reply, the Frontex representatives stated that Frontex had actively been dealing with that request and had been in the course of preparing a decision. However, the complainant's request for internal mobility had been superseded by his subsequent letter of resignation, which he sent 16 days after his request for internal mobility. The Ombudsman's representatives also asked whether the complainant had been informed along these lines. In reply, the Frontex representatives explained that there had been no exchange of e-mails on that matter. However, there had most likely been a conversation between the complainant and the Deputy Executive Director. The Frontex representatives explained that the Deputy Executive Director as well as the Executive Director pursued an 'open door' policy. Informal exchanges between the complainant and the Deputy Executive Director were moreover facilitated by the fact that their offices had been located very close to each other. The Frontex representatives added that, in spite of his entitlement to an annual leave, the complainant had stayed in his job until the very last day of his contract.

30. In his observations, the complainant maintained that his request for internal mobility had been ignored, given that he had not received a reply to his letter or an invitation to a meeting. When he asked for a meeting with the Deputy Executive Director, the Chairperson of the Staff Committee and his former supervisor, the Deputy Executive Director informed him that he did not see a role for himself in such a meeting. Although he had approached the Head of the Human Resources Unit on several occasions, he was not informed of any action regarding his request for internal mobility. He added that he had stayed at Frontex until the last day of his contract for financial reasons, as he was entitled to receive compensation for leave not taken.

The Ombudsman's assessment

31. The Ombudsman notes at the outset that the question whether or not the complainant could have taken leave during the period after the date when he submitted his letter of resignation is irrelevant when assessing whether Frontex replied to the complainant's request.

32. In the course of the inquiry, Frontex submitted that no further measures were taken in relation to the complainant's request, given that the termination of his contract was approaching. During the inspection, the representatives of Frontex moreover pointed out that the complainant had most likely been informed of the Agency's position by means other than a letter.

33. Article 14(1) of the European Code of Good Administrative Behaviour stipulates that every letter or complaint to an institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period. Against this background, the Ombudsman considers that, in the present case, principles of good administration required Frontex to inform the complainant in a timely manner that it had received his request, would assess it and would subsequently inform him of the outcome of its assessment. These principles moreover would have required Frontex to inform the complainant that it considered that there was no need to follow-up on his request, once it had received his letter of resignation.

34. In the present case, however, Frontex neither provided the complainant with an acknowledgement of receipt nor informed him in writing of its position that his letter of resignation had, in its view, superseded his request for internal mobility. In the given context, it should be borne in mind that a particularly careful handling of the complainant's letter would have been called for, given that the complainant therein described what he apparently perceived to be instances of harassment by his then supervisor. All the more would it have been clearly reasonable to keep the complainant informed, in a timely manner, of any development in relation to his request.

35. The Ombudsman considers Frontex's reference to informal contacts in relation to the handling of the complainant's request which may or may not have taken place between him and the Deputy Executive Director to be inconclusive. Even if such contacts did indeed take place, they could not have relieved Frontex of its duty to reply to the complainant's request.

36. However, it was only on 24 September 2010 and following a letter from the Chairperson of the Staff Committee dated 23 September 2010, that the Agency's Deputy Executive Director informed the complainant of Frontex's position. He stated that the Executive Director had not answered the complainant's letter, given that "just a few days after he got it, he authorised your resignation as of 1 November 2010, thus he did not consider necessary to take any further actions on the internal mobility, bearing in mind that you will be leaving the Organisation very soon". It follows that Frontex informed the complainant of its position on his request for internal mobility almost 1.5 months after the complainant had sent that request. It is true that the time taken for replying to the complainant is not excessive as such, in particular if one bears in mind that the complainant sent his request on 10 August 2010, at a time that is, when one would have to reckon with reduced office operations. However, regard should be had to the fact that it emerges from the contents of the complainant's request that the matter was urgent. Moreover, it should be noted that the complainant asked for a transfer "as soon as possible". In such circumstances, the Ombudsman takes the view that Frontex should have reacted much more rapidly.

37. Given that the complainant, on 24 September 2010, was informed of Frontex's position on the substance of his request for internal mobility, there is no need for the Ombudsman to address the issue of whether or not the Deputy Executive Director was entitled to refrain from taking part in a meeting with the complainant.

38. In view of the above considerations, the Ombudsman considers that Frontex failed to reply to the complainant's request for internal mobility in a timely manner. This failure constitutes an instance of maladministration. Although the complainant has by now been informed of Frontex's position as regards his request for internal mobility, the Ombudsman deems it appropriate to make a critical remark below.

B. Alleged failure to make a proper inquiry and related claim

Arguments presented to the Ombudsman

39. The complainant alleged that Frontex failed to: (i) make a proper inquiry into the facts set out in his request for assistance dated 20 October 2010; (ii) deal with that request in a timely manner; and (iii) take emergency measures. He argued that he provided Frontex with solid evidence of an abuse of authority and disrespect, as well as of the subsequent consequences for his health. He took the view that the inquiry undertaken by Frontex was biased, given the close relationship of his former supervisor with senior management, and asked for appropriate disciplinary measures to be taken. The complainant moreover pointed out that the timeframe of four months to reply to his letter was not respected, given that he received a reply on 2 June 2011 only. As regards Frontex's alleged failure to take emergency measures after he had brought to its attention the problems he was facing, he emphasised that, in August 2010, he was treated against shivers caused by extreme stress. The complainant claimed that Frontex should make a proper inquiry into the facts set out in his letter of 20 October 2010.

40. In its opinion, Frontex submitted that it reacted to the complainant's complaint of 20 October 2010 by opening, on 26 October 2010, a formal administrative inquiry and appointing an independent investigator to conduct it. That inquiry was closed on 18 March 2011, following which the Executive Director took a final decision on 6 May 2011. Frontex pointed out that that decision was based on the conclusions of the report prepared by the aforesaid investigator and on a hearing between the complainant's former supervisor and the Deputy Executive Director which was held on 6 April 2011. The final decision stated that no case could be made against the complainant's former supervisor on the basis of Annex IX of the Staff Regulations.

41. As regards the alleged failure to take emergency measures, Frontex submitted that the complainant lodged his complaint about his former supervisor on 20 October 2010. Recalling that 31 October 2010 was envisaged to be the complainant's last day of work at the Agency, Frontex took the view that it was not feasible, in light of the need for a proper examination of the case in accordance with the principles of good administration established by the European Code of Good Administrative Behaviour and applicable provisions of the Staff Regulations, to provide a "comprehensive and reliable assessment in such a short period of time".

42. In view of the above, Frontex concluded that it had adequately followed all available legal procedures, in line with the principles of good administration and the Staff Regulations.

43. The inspection of Frontex's files showed that the file concerning the complainant contained, among other things, a 28 page report "pursuant to the decision of the Executive Director on launching an internal investigation of 26 October 2010" (henceforth referred to as 'the report'). The report states that it aims to identify all facts and the sequence of events linked to the complainant's request for assistance lodged with Frontex on 20 October 2010, as well as relevant legal issues. There are 20 enclosures to the report which record testimonies and statements collected by the internal investigator appointed by Frontex. The enclosures include statements by the complainant (signed in January 2011) and by his former supervisor. The report proceeds on the basis of the statements and testimonies collected, and places them in the context of the various allegations, which the complainant levelled against his former supervisor. The report concludes by saying that the criteria of Article 12a of the Staff Regulations, which provides for a definition of 'psychological harassment', have not fully been met, but that the facts elucidated can be interpreted as constituting evidence of a strong conflict of characters and expectations, and possibly also of mismanagement.

44. The inspection also showed that the report was sent to the complainant's former supervisor for comments. On 17 March 2011, the latter submitted comments, in which he expressed disagreement with a number of factual findings and, among other things, questioned the legal basis for the internal investigation. On 18 March 2011, Frontex informed the complainant's former supervisor that his comments had been added in full to the report which had thereby become final. On that same day, the complainant's former supervisor was also informed that he would be invited to attend a meeting with the Deputy Executive Director. It appeared from the file that that meeting took place on 6 April 2011 and that a record of that meeting was sent to the complainant's former supervisor on 8 April 2011.

45. The inspection also showed that, on 29 April 2011, the Deputy Executive Director recommended to the Executive Director to close the case, given that no case could be made against the complainant's former supervisor. At the same time, the Deputy Executive Director recommended to the Executive Director to hold a bilateral meeting with the complainant's former supervisor in order to discuss with him the sensitivity of cases of this kind. On 6 May 2011, the Executive Director adopted a decision in line with the recommendations made by the Deputy Executive Director. The complainant was informed of this decision on 2 June 2011. He was also informed that all documents relating to the administrative inquiry would be filed in Frontex's file of administrative inquiries and disciplinary procedures.

46. In the course of the inspection, the Ombudsman's representatives asked to be informed of procedural rules according to which the report had been prepared. The Frontex representatives replied that the report had been prepared in line with the relevant provisions of the Staff Regulations, in particular, Annex IX. The Ombudsman's representatives also asked to be informed of the basis on which the Frontex staff member entrusted with preparing the report had been selected. In reply, the Frontex representatives explained that, at the time the report was to be prepared, the staff member in question (i) had only recently joined Frontex and, not knowing the complainant and his supervisor, could be expected to be impartial and unbiased; (ii) had a legal background and professional experience in harassment-related procedures; and (iii) as a new staff member had sufficient time at her disposal to focus on that task.

47. In his observations, the complainant stated that he would like to know why the criterion of Article 12a of the Staff Regulations had not fully been met in his case. He maintained that, in his letter of 20 October 2010, he had provided "evidence of an improper conduct by my former supervisor that took place repetitively over the duration of my contract and that involved spoken and written language that have undermined my integrity, dignity and psychology integrity. I have provided with evidence of several e-mail exchanges and documents, testimonies and a medical report".

48. The complainant also submitted that the Deputy Executive Director and his former supervisor are friends who knew each other even before working at Frontex. It was therefore inappropriate and evidence of partiality and bias that a bilateral meeting would have taken place between them. According to the complainant, the Deputy Executive Director should have declared a conflict of interest. The complainant concluded that he had been a victim of psychological harassment and that a proper investigation should be carried out. Moreover, he called for disciplinary measures against his former supervisor.

The Ombudsman's assessment

Preliminary remarks

49. In his complaint, the complainant alleged, among other things, that Frontex failed to make a proper inquiry into the facts set out in his request for assistance dated 20 October 2010. In assessing this issue, the Ombudsman thus has to decide whether or not Frontex made a proper inquiry. However, it should be pointed out that such assessment, which is essentially of a procedural nature, does not entail an assessment of the substantive outcome of Frontex's inquiry.

50. In his observations, the complainant also appeared to express disagreement with the substantive outcome of Frontex's inquiry and raised a question concerning the legal assessment of the facts exposed in his request for assistance. For the reason given in the preceding paragraph, the substantive aspect of Frontex's assessment of the complainant's case is not part of the present inquiry. It moreover appears that the complainant has not yet raised the issues referred to in his observations with Frontex. In particular, it does not appear that the complainant has already raised the question as to the legal assessment of the facts with Frontex. In these circumstances, the complainant could consider turning to Frontex so as to request further clarification.

Assessment

51. As has been seen above, the complainant's allegation here under review extends to three different aspects, namely, whether Frontex (i) made a proper inquiry into his request for assistance dated 20 October 2010; (ii) dealt with that request in a timely manner; and (iii) took emergency measures. The Ombudsman will address each of these three aspects in turn.

Whether Frontex made a proper inquiry

52. In the course of the inquiry, it has become clear that, following receipt of the complainant's request for assistance, Frontex opened an administrative inquiry on the basis of Annex IX to the Staff Regulations. To this end, the Executive Director appointed an internal investigator, who, after having collected statements and testimonies, prepared a comprehensive report, including a legal assessment of the facts thus established. The inspection of the file by the Ombudsman's services confirmed that Frontex took care to appoint an investigator offering sufficient guarantees of independence and professional expertise. The report prepared by the independent investigator and inspected by the Ombudsman's services showed that, in the course of the internal inquiry, persons who had or could be expected to have knowledge of the complainant's case were heard and asked for testimony. It also emerges from the report that it sought to elucidate the complainant's allegations against his former supervisor by collecting the aforesaid statements and testimonies. Lastly, the report proceeded to a legal assessment of the facts submitted by the complainant and considered the question whether the complainant's case amounted to a case of psychological harassment, ultimately answering this question in the negative.

53. The Ombudsman notes that the complainant also questioned whether the inquiry had been free from the influence of his former supervisor. In the given context, it should be noted that it emerged during the inspection of the file that the complainant's former supervisor challenged the legal basis of the inquiry and criticised a number of the factual findings included in the draft report. The Ombudsman recalls that the relevant written statements made by the complainant's former supervisor were enclosed with the report, but did not in any way affect the conclusions reached in the report. In his observations, the complainant also specifically criticised that the Deputy Executive Director and his former supervisor are friends and argued that for this very reason holding a bilateral meeting between them would be inappropriate and give rise to a conflict of interest. The Ombudsman finds it difficult to take a view on whether, in the present case, there were indeed personal reasons, which could call into doubt the Deputy Executive Director's impartiality and give rise to a conflict of interest. In any event, however, the Ombudsman considers that the Deputy Executive Director's recommendation to the Executive Director to close the case was fully in line with the conclusions reached in the report prepared by the independent investigator.

54. While the complainant appears to disagree with the substantive assessment contained in the report which served as a basis for the Executive Director's decision of 6 May 2011 (see paragraph 50 above), the Ombudsman, in view of these circumstances, has no basis to doubt that a proper inquiry into the complainant's request for assistance has taken place. In view of the above circumstances, the Ombudsman finds no grounds for further inquiries into this aspect of the case.

Whether Frontex dealt with the request in a timely manner

55. In dealing with this aspect, a distinction should be made as regards the time Frontex took (i) to open an inquiry into the complainant's request for assistance and (ii) to close that inquiry.

56. As regards the first aspect, it should be noted that the complainant submitted his request on 20 October 2010. On 26 October 2010, the Executive Director decided to launch an internal inquiry. Frontex thus took action within days from receipt of the complainant's request.

57. As regards the second aspect, it is not clear at what precise point in time following the Executive Director's decision of 26 October 2010, the independent investigator started working on the report. It is not in dispute, however, that the report was finalised on 18 March 2011. Following the Deputy Executive Director's meeting with the complainant's former supervisor and a subsequent recommendation to the Executive Director in April 2011, the latter took a decision on 6 May 2011. Bearing in mind the scope of the report, as well as the action taken after that report had been finalised, the Ombudsman considers that Frontex appears to have continuously and steadily moved forward the complainant's case. Moreover, it emerges from the file that, following his requests, it regularly informed the complainant of the state of affairs of the inquiry.

58. In his complaint and observations, the complainant took the view that Frontex would have been under an obligation to decide on his case within four months from receiving his request. It is not in dispute that the complainant's request sought to ensure that Frontex opened an administrative inquiry. While it is true that Article 90(2) of the Staff Regulations provides, in relation to complaints submitted pursuant to that Article, that the authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged, this deadline does not apply to the specific request submitted by the complainant, which was not a complaint pursuant to Article 90(2) of the Staff Regulations. In view of the above considerations, the Ombudsman concludes that there has been no maladministration as regards this aspect of the case.

Whether Frontex took emergency measures

59. The complaint submitted his request for assistance on 20 October 2010 and stated that he wished to lodge a formal complaint against his supervisor.

60. The Ombudsman notes that the complainant did not specifically request that Frontex take emergency measures. The Ombudsman understands Frontex's position to be that it was not possible for it to take emergency measures, given that the period of time between the date of the complainant's request for assistance and his last day of work at the agency did not allow for a proper examination to be concluded. Although the Ombudsman is ready to accept that a full inquiry could not be completed within that period (see paragraphs 52-54 above), this clearly did not make it impossible for Frontex to take emergency measures, if such measures were needed.

61. The Ombudsman considers that, even in the absence of a specific request for emergency measures, an institution needs to consider whether, in the specific circumstances of a given case, such measures should be taken on its own initiative, for instance, in case of an alleged instance of harassment giving rise to a serious medical condition. The complainant submitted that he was prescribed anti-depressants in August 2010. While the Ombudsman is not in a position to take a view on the seriousness of the complainant's medical condition at that time, he notes that the complainant does not appear to have been declared unfit for work by the doctor he had consulted. In any event, the Ombudsman notes that the complainant himself acknowledges that he had the possibility to take annual leave but decided to continue working for Frontex until the end of October 2010.

62. In these circumstances, Frontex's position that it was appropriate not to take emergency measures is reasonable.

As regards the complainant's claim

63. In view of his conclusions reached above (see paragraphs 52-54 above), the Ombudsman considers that there are no grounds for further inquiries into the complainant's claim that Frontex should proceed to a proper inquiry. However, and in line with the Ombudsman's above considerations in paragraph 50, the complainant remains free to turn to Frontex to the extent that he disagrees with the substantive outcome of its internal inquiry.

C. Alleged failure to have a policy to deal with cases of harassment

Arguments presented to the Ombudsman

64. The complainant alleged that Frontex did not have a policy in place to deal with cases of harassment. As a result, he was forced to look for another job and accept a position at a lower grade.

65. In its opinion, Frontex underscored its willingness to improve its procedures and explained that it had decided to set up an internal policy aiming at dealing specifically with harassment within the Agency. Frontex stated that, in line with applicable procedures, it had submitted a draft anti-harassment policy to the European Data Protection Supervisor (EDPS) and the European Commission and was currently waiting for the EDPS's opinion and the Commission's agreement. Frontex added that a policy of this kind was a very new concept within EU Agencies and that only very few of them had in place such a policy.

66. The inspection of Frontex's file showed that, on 16 January 2012, Frontex submitted to the EDPS a revised draft manual on an anti-harassment policy and the selection of confidential counsellors. According to the draft manual, the anti-harassment policy is an "informal procedure". In the given context, one of the Frontex representatives pointed out that, even if it had existed at that time, the complainant would therefore have been unable to rely on an anti-harassment policy, given that he had decided to submit a formal complaint to the Executive Director.

67. In his observations, the complainant did not revert to this aspect of his complaint.

The Ombudsman's assessment

68. As regards the first aspect raised in the complainant's allegation, it is undisputed that Frontex did not, at the time when the complainant submitted his request for internal mobility and his subsequent resignation, have an internal policy aimed at dealing with cases of harassment. At the same time, the Ombudsman notes that, since then, Frontex has taken steps towards adopting such a policy and has, to this effect, entered into a dialogue with the EDPS.

69. In examining the second aspect raised in the complainant's allegation here under review, the Ombudsman needs to assess whether the absence of the said policy at the relevant point in time forced the complainant to look for another job and accept a position at a lower grade.

70. At the outset, the Ombudsman notes that, in the course of the inspection, Frontex's representatives underlined the informal nature of such a policy and took the view that, even if it had existed at that point in time, the complainant would therefore have been unable to rely on it, given his decision to submit a formal complaint to the Executive Director. The Ombudsman does not consider this position to be convincing, given that it rests on the assumption that the complainant would have decided to submit a formal complaint, even if informal procedures had existed. However, it is clear that, in the absence of informal procedures, the complainant essentially had no other choice but to resort to formal means.

71. Still, the Ombudsman notes that the complainant submitted a request for internal mobility on 10 August 2010 and asked "to be transferred as soon as possible". It emerges from the documents submitted that Frontex received his request on the same date. The Ombudsman understands from the contents of the complainant's request that the latter must have considered it possible to solve the problems at his work place by means of transferring him to another department.

72. On 26 August 2010, the complainant submitted his letter of resignation. While the complainant was entitled to assume that Frontex would deal with his request for internal mobility and inform him of the outcome within a reasonable time and, in any event, within the time period specified in Article 90(1) of the Staff Regulations[4], the Ombudsman considers that, at the time the complainant sent his letter of resignation, only eleven working days from Frontex's receipt of his request had elapsed. Therefore, at that point in time, Frontex had not yet had sufficient time at its disposal to deal with and decide on the complainant's request for internal mobility.

73. It follows from the above considerations that, in view of the absence of an internal policy aimed at dealing with cases of harassment, the complainant was unable to rely on an informal framework of rules aimed at addressing the dispute. At the same time, bearing in mind the above sequence of events and the absence of any tangible evidence to support the complainant's position, the Ombudsman is not convinced that the absence of an internal policy forced the complainant to look for another job.

74. In view of the above considerations, the Ombudsman concludes that there are no grounds for further inquiries into the present allegation.

D. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark and the following conclusions:

Principles of good administration require institutions to reply to requests by citizens, including requests by staff members, and to do so in a timely manner. In the present case, Frontex failed to reply to the complainant's request for internal mobility in a timely manner. This constitutes an instance of maladministration.

There are no grounds for further inquiries into the first aspect of the complainant's second allegation. As regards the second and third aspects of the complainant's second allegation, the Ombudsman considers that there has been no maladministration in Frontex's activities.

There are no grounds for further inquiries into the complainant's third allegation.

The complainant and Frontex will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 3 July 2012

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[1] It emerged in the course of the Ombudsman's inquiry that the aspect mentioned under (ii) relates to the complainant's second allegation. In the Ombudsman' assessment, the aspect mentioned under (ii) will therefore be dealt with under the heading of the complainant's second allegation.

[2] As regards the issue whether there are grounds to open an own-initiative inquiry in the complainant's allegation and claim discussed in this paragraph, see paragraph 18 below.

[3] Available online at http://ec.europa.eu/civil_service/docs/toc100_en.pdf

[4] Article 90(1) of the Staff Regulations reads as follows: "Any person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. ..."