# Decision of the European Ombudsman closing his inquiry into complaint 2635/2010/(MB)TN against the European Commission
- Author: European Ombudsman
- Date: 2012-11-29T00:01+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/11890)
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> The complaint concerns the European Commission's alleged failure to notify the complainant of its finding that he breached the Code of Conduct of the EU Election Observation Missions.
>
> After having served as an EU Election Observer, the complainant was informed by third parties that the Commission had found him to have breached the Code of Conduct for such Observers. The complainant was concerned about the fact that this decision had not been communicated to him and that it would affect his chances of being selected for future EU Election Observation Missions.
>
> The Ombudsman identified a number of problems in the procedure applied by the Commission. He was not fully convinced that the complainant's rights as guaranteed by the Charter of Fundamental Rights of the European Union, as well as the European Code of Good Administrative Behaviour, had been respected. The Ombudsman therefore made a proposal for a friendly solution, suggesting measures that the Commission could take to put things right, as regards (i) the complainant's personal situation and (ii) the general procedure followed.
>
> Concerning the complainant's personal situation, the Commission settled the case by providing assurances that the complainant remains a fully eligible candidate for future EU Election Observation Missions.
>
> Concerning its general procedures for finding a breach of the Code of Conduct for EU Observers, the Commission's response indicated that it was already implementing the Ombudsman's suggestion to carry out a review. The Ombudsman welcomed the review and made certain suggestions in relation to it.
>
The background to the complaint
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**1.** The complaint concerns an alleged failure by the European Commission to notify the complainant of a decision finding that he breached the Code of Conduct of the EU Election Observation Missions (hereinafter 'Code of Conduct').
**2.** The complainant participated in an EU Election Observation Mission ('EU EOM') in 2010. Following the mission, the complainant received a satisfactory report from his supervisors.
**3.** In October 2010, the complainant learnt that all observers who had participated in election observation missions in 2010 were invited to a special Forum to be held in Brussels in December 2010. The Forum was organised for the European Commission by a private company, Transtec. The complainant applied to attend the Forum. Transtec rejected his application and informed him that "\[t\]*he European Commission has set up the following precise criteria for being registered as a participant: - participation in a mission in 2010; - exclusion of all observers that have been 'not recommended' or are the object of a breach of code of conduct or relevant Terms of Reference.*"
**4.** The complainant then requested Transtec and the Commission to inform him of the specific reason for his exclusion from the Forum. He received no response from Transtec or from the Commission.
The subject matter of the inquiry
---------------------------------
**5.** In his complaint to the Ombudsman, the complainant alleged that the Commission had:
(1) failed to notify him about what appeared to be a decision finding that he had breached the Code of Conduct of the EU Election Observation Missions;
(2) failed to respect his right to be heard;
(3) wrongly informed third parties of the decision;
(4) wrongly excluded him from future EU Election Observation Missions; and
(5) failed to respond to his requests for information.
**6.** The complainant claimed that the Commission should:
(1) inform him of any decision concerning his compliance with the Code of Conduct of the EU Election Observation Missions; and
(2) allow him to contest that decision.
The inquiry
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**7.** The Ombudsman asked the Commission to submit an opinion on the complaint by 30 April 2011. After being granted an extended deadline, the Commission submitted its opinion on 7 July 2011. The opinion was forwarded to the complainant, who submitted his observations on 21 July 2011. On 25 October 2011, the Ombudsman made a proposal for a friendly solution to the Commission, requesting it to reply by 31 December 2011. The Ombudsman then extended the Commission's deadline to 31 January 2012. The Commission only replied on 1 June 2012. That reply was forwarded to the complainant with an invitation to submit observations. The complainant submitted his observations on 25 July 2012.
The Ombudsman's analysis and conclusions
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### A. The alleged (i) failure to notify the finding of a breach of the Code of Conduct; (ii) failure to respect the right to be heard; (iii) wrongdoing in informing third parties; and (iv) wrongdoing in excluding the complainant from future EU Election Observation Missions
#### Arguments presented to the Ombudsman
**8.** The complainant stated that during his monitoring mission of elections in 2010, he took the view that there were serious abuses of the democratic process and human rights. The complainant reported his views to the EU EOM Core Team. When he returned home to his home country, he wrote a letter to a national newspaper regarding the matter, for publication.
**9.** The complainant stated that some of his EU EOM colleagues then informed him that they had been told by EU officials and members of the EU EOM Core Team that he had been excluded from the Forum because of a breach of the EU EOM Code of Conduct. He stated that one of his observer colleagues had also been told by EU officials that the breach of the Code of Conduct meant that he would be excluded from future EU Election Observation Missions. The complainant found it unacceptable that his colleagues were informed of this when he himself had never been informed. He stated that if the origin of the matter was the publication of his letter in the press, the matter had been communicated to him with an unnecessary delay of six months.
**10.** In its opinion sent to the Ombudsman, the Commission stated that an EU election observation mission team is composed of a Chief Observer (who is responsible for the mission), Core Experts, and Long Term and Short Term Observers. The Chief Observer is usually a Member of the European Parliament. The Core Experts are selected directly by the Commission services following a tender procedure for a service contract. Observers are selected by the Commission, after a pre-selection by Member States.
**11.** The Commission invites the Member States, via their 'Focal Points', to launch the selection procedure for Observers by submitting national applications within a given deadline. All candidates then have to register in a database managed by the Commission. Subsequently, Member States take responsibility for pre-selecting the most qualified national candidates. Finally, the selection committee, composed of Commission officials from several services, assess the pre-selected candidates. The Commission keeps formal records of these selections. All EU Observers are appraised at the end of the mission by leading members of the mission team. The evaluation is included in the Observer's dossier in the EU database.
**12.** The Commission also enters into contracts with companies to provide administrative and logistics support to the mission. The complainant, who had been selected as an observer, signed a contract as a Long Term Observer for the mission in question with the company contracted by the Commission. Part 3.2 of Annex 1 to the contract contained the Code of Conduct which stated, among other things, that "*observers will refrain from making any personal ... comments about their observations to the media*".
**13.** According to the Commission, the letter published in the press referred to the complainant's specific experience as an EU Election Observer during the EU mission in 2010. A copy of the newspaper article was sent to the Commission by the National Focal Point on the day of its publication. The National Focal Point asked the Commission to give its views thereon. The Commission informed the National Focal Point that, in its view, such public statements were contrary to the Code of Conduct (according to which EU observers must refrain from making personal comments about their observations to the media). The Commission stated that it agreed with the National Focal Point that the Focal Point would follow up the incident with the complainant. According to the Commission, this corresponds to the administrative practice that the National Focal Points are responsible for communications with Observer candidates. The Commission pointed out that Focal Points inform Observer candidates, for example, about whether they have been selected or placed on a reserve list, or that they have not been selected.
**14.** The Commission stated that it did not make any administrative decision affecting the complainant's interests.
**15.** As regards the Commission's choice of who should be invited to the EU Observers Forum, a conference aiming at the development of EU Election Observation policy, the Commission stated that it is free to choose the stakeholders it wishes to consult on a specific issue. The complainant was not selected among the EU Observers who were invited to participate in the Forum because the Commission considered that due to the incident regarding the publication in the newspaper, the complainant did not satisfy a criterion for registration as a participant. This criterion was that participants should not be the subject of a negative recommendation following an EU Observation Mission, a reminder of the Code of Conduct or an ongoing complaint. This selection only concerned participation in this particular conference and cannot be considered to constitute an administrative decision affecting the complainant's interests which would give rise to procedural safeguards, including the right to be informed and the right to be heard.
**16.** The Commission also argued that it has not excluded the complainant from any EU Election Observation Missions. The complainant has participated in several EU Election Observation Missions and all evaluations by his superiors have been satisfactory. As a consequence, no negative recommendations for his future activities as observer have been registered. With regard to the national pre-selection phase, the Commission cannot foretell what the complainant's status in the national system of observer registration will be. Any decision whether to include the complainant among the pre-selected national candidates falls within the competence of the National Focal Point.
**17.** The Commission is not aware that the decision not to invite the complainant to the EU Observers Forum was communicated to any third parties. The complainant did not submit any specific evidence to support this allegation.
**18.** In response to the Commission's opinion, the complainant argued that he had a duty act, as a citizen of the European Union. His primary concern was that human rights and democracy issues in needed to be brought to the attention of the people in his home country. He stated that he would have been wrong to remain silent on issues of such importance. He added that it was wrong of the Commission to attempt to impose restrictions on former EU Observers, after they were no longer bound by the contract engaging them as observers in the EU EOM. He stated that when he wrote to the press, his contract had come to an end. If the restrictions on comments to the media by EU Observers were intended to continue to apply, either permanently or for a specific period after the end of the contract, then this should have been clearly stated in the contract or in the Code of Conduct. The statement by the Commission, in its opinion to the Ombudsman, that EU Observers "*must not refer to a EU Observation mission and the observations in the course of their mission* " when expressing themselves publicly is not contained anywhere in the Code of Conduct. Even if it had been included in the Code of Conduct, the formulation "*in the course of their mission*" implies that any such restriction would apply only up to the end of the EU Observer's contract.
**19.** The complainant pointed out that the so-called criteria for registration as a participant in the EU Observers Forum were not formulated in the same way in the e-mail that he received from the organiser of the Forum and in the Commission's opinion to the Ombudsman. In any case, he was never informed that he was the subject of "*a negative recommendation* ", "*a reminder of the Code of Conduct* " or "*an ongoing complaint* ". In addition, the e-mail about the forthcoming EU Observers Forum was forwarded to the complainant by a civil servant who represented his National Focal Point. This person would clearly not have sent the complainant the e-mail if he had been aware that the complainant was one of the "*not recommended* " observers or was in some other "*excluded*" category.
**20.** In the complainant's view, the Commission is indeed free to choose which stakeholders it wishes to consult. He has been informed, however, that apart from him, all the other observers who participated in the EU EOM in 2010, with the exception of those who had been formally appraised as "*not suitable*" for further EU EOMs by the Mission Core Team, were invited to the Forum.
**21.** The complainant considered it clear that the Commission did make an administrative decision affecting his interests since it decided that he was in breach of the Code of Conduct: In its opinion to the Ombudsman, the Commission expressly stated that "*the Commission considered that due to the incident regarding the publication in the \[...\] newspaper the complainant did not satisfy the third criterion*".
#### The Ombudsman's preliminary assessment leading to a friendly solution proposal
**22.** In his observations, the complainant argues that the Code of Conduct only applies in the course of an Observation Mission (paragraph 18). The Ombudsman cannot accept this argument. First, he notes that the Code of Conduct itself does not contain any express limitation on its temporal application. Second, some of the rules in the Code of Conduct are worded in such a way as to be clearly applicable even after the end of the EU Observer mission[\[1\]](#_ftn1 ""){#_ftnref1}. Finally, consideration of the purpose of the Code of Conduct leads to the conclusion that it applies to the behaviour of EU Observers after a mission has ended, to the extent that the behaviour might negatively affect the completed mission or future missions.
**23.** While it is thus clear that the Code of Conduct applies to activities of EU Observers after a mission has ended, it is important that the application of such rules respects the right to good administration, set out in Article 41 of the Charter of Fundamental Rights of the European Union[\[2\]](#_ftn2 ""){#_ftnref2}. That right expressly includes the right to be heard before any individual measure affecting a person adversely is taken and the obligation of the administration to give reasons for its decisions. The right to good administration is further developed in the European Code of Good Administrative Behaviour[\[3\]](#_ftn3 ""){#_ftnref3}. Article 16 of the said Code ("*Right to be heard and to make statements* ") states that in cases where the rights or interests of individuals are involved, the official shall ensure that, at every stage in the decision making procedure, the rights of defence are respected, and that every member of the public shall have the right, in cases where a decision affecting his rights or interests has to be taken, to submit written comments and, when needed, to present oral observations before the decision is taken. Article 20 ("*Notification of the decision*") states that decisions which affect the rights or interests of individual persons shall be notified in writing and that such decisions shall not be communicated to other sources until the persons concerned have been informed.
**24.** The Commission argued that its finding that the complainant had breached the Code of Conduct was not an "*administrative decision*" affecting the complainant's interests because it only concerned his participation in the EU Observers Forum. In the Commission's view, its finding did not, therefore, have to be communicated to the complainant.
**25.** The Ombudsman considered that the Commission's finding that the complainant had breached the Code of Conduct, which was communicated to Transtec so that the latter would not invite the complainant to the EU Observers Forum, was indeed a "*decision* " in the sense of an "*individual measure* " adversely affecting the complainant's interests[\[4\]](#_ftn4 ""){#_ftnref4}. That decision led to the complainant not being invited to the EU Observers Forum, an event which the complainant had expressly requested to attend.
**26.** The Ombudsman also found unconvincing the Commission's argument that its finding only concerned the complainant's participation in the EU Observers Forum, when the very purpose of the Forum was better to prepare Observers for future missions by allowing the exchange of practices and experience. The Ombudsman also found that even if the Commission did not expressly exclude the complainant from future EU Election Observation Missions, it is reasonable to believe that, by also communicating its finding to the national authorities, which pre-select the most qualified national candidates for the position of EU Observers, the complainant's chances of being selected for future EU Election Observation Missions were affected by the position taken by the Commission.
**27.** The Commission did not give the complainant the opportunity to submit observations before taking the decision that he breached the Code of Conduct. It thus breached Article 16 of the European Code of Good Administrative Behaviour and Article 41(2)(a) of the Charter of Fundamental Rights of the European Union.
**28.** As regards the communication of its decision to the complainant, the Commission entrusted the national authorities with the task of communicating the Commission's finding to him. While it is not inappropriate, in principle, for the Commission to entrust the national authorities with such a task, the Commission should have ensured that its decision was in fact communicated to the complainant (by, for example, asking for a copy of the communication to the complainant). However, the Commission did not ensure that its findings were communicated to the complainant by the national authorities. By not ensuring that its decision was properly communicated to the complainant, the Commission breached Article 20(1) of the European Code of Good Administrative Behaviour.
**29.** The Ombudsman noted that the complainant also argued that his Observer colleagues had learned of his alleged breach of the Code of Conduct and of his alleged exclusion from future EU Election Observation Missions before he became aware of them. The Ombudsman noted that the complainant did not provide any evidence in support of his argument in this regard. The Ombudsman also noted that, although it is true that if the Commission had communicated this information to his Observer colleagues, this would certainly constitute maladministration, the fact remains that it was not only the Commission, but also the national authorities that were aware of the finding of a breach of the Code of Conduct at the relevant time. Accordingly, in the absence of any concrete evidence in this respect, it could not be presumed that the information, if communicated to these third parties, necessarily originated from the Commission[\[5\]](#_ftn5 ""){#_ftnref5}.
**30.** The Ombudsman noted, however, that the Commission communicated the finding to at least one third party before the complainant learnt about it, namely the external organiser of the EU Observers Forum. This constituted a breach of Article 20(2) of the European Code of Good Administrative Behaviour.
#### The friendly solution proposal
**31.** On the basis of the above considerations, the Ombudsman made the following proposal for a friendly solution:
*Taking into account the Ombudsman's analysis and findings, the Commission could review its procedures for finding a breach of the Code of Conduct of the EU Election Observation Missions, including the procedures for notifying such a decision and allowing the person concerned to be heard.*
*In respect of the present case, the Commission could allow the complainant to present his arguments objecting to the finding of a breach of the Code of Conduct for the EU Election Observation Missions and it could make sure that these arguments are properly addressed.*
#### The arguments presented to the Ombudsman after his friendly solution proposal
**32.** In its reply to the Ombudsman's friendly solution proposal, the Commission argued that the complainant has not been penalised and that his candidacy will be taken into consideration for future EU Election Observation Missions. According to the Commission, the complainant's appraisal record in the EU Election Observation Missions' roster is "*recommended as Long-Term Observer (LTO) for future missions*".
**33.** In the Commission's view, the complainant fully presented his arguments on the issue in a letter dated 6 December 2010. The Commission informed the complainant directly of its position by e-mail dated 21 March 2012, in which it stated that "*for the EC's Service for Foreign Policy Instruments, which is in charge of the selection of Observers for the EU EOMs, you remain a fully eligible candidate for future EU EOMs. In this regard, please note that for Short Term and Long Term Observer positions, you have to be pre-selected by your national Focal Point.*" According to the Commission, the complainant confirmed receipt of this communication by means of an e-mail in which he thanked the Commission.
**34.** The Commission further stated that it is currently reviewing several procedures concerning EU Election Observation Missions, including a revision of the Code of Conduct and the Observers' evaluation procedure.
**35.** In his observations on the Commission's reply, the complainant stated that he is in broad agreement with the Commission's reply to the friendly solution proposal and its e-mail of 21 March 2012. The complainant thanked the Ombudsman for his efforts.
**36.** With regard to the issue of him being "*recommended as Long-Term Observer (LTO) for future missions*", the complainant stated that he contacted his National Focal Point, which is in charge of recommending election observers for EU Election Observation Missions from his country. The Focal Point informed him that due to recent financial constraints, combined with a large number of volunteers on the monitors list, it is likely that quite some time may pass before it may recommend him for another mission. Since he is of the view that he has been excluded from consideration for EU Election Observation Missions since July 2010, the complainant therefore wishes to request the Commission to offer him one mission as a Long-Term Observer every year, in the event that he is not recommended by the National Focal Point.
**37.** The complainant also made certain recommendations to the Commission in respect of its review of its procedures concerning EU Election Observation Missions.
#### The Ombudsman's assessment after his friendly solution proposal
**38.** The Ombudsman notes that the complainant remains a fully eligible candidate for future EU Election Observation Missions. The Ombudsman also notes that, in view of the Commission's response to the friendly solution proposal, the complainant appears no longer to wish to pursue the question of how the Commission handled this aspect of the case. The Ombudsman therefore finds that, in substance, the Commission has settled this aspect of the present case.
**39.** As regards the complainant's request for the Commission to offer him one mission as a Long-Term Observer every year, notwithstanding the fact that the National Focal Point might not pre-select him for missions every year (given the financial constraints and the large number of volunteers referred to above), the Ombudsman considers that this request falls outside the scope of the proposed friendly solution. The Ombudsman will not, therefore, pursue the complainant's suggestion.
**40.** In respect of the Commission's procedures for finding a breach of the Code of Conduct, the Ombudsman welcomes the review that the Commission is currently carrying out. In substance, the review implements the relevant part of the friendly solution proposal.
**41.** The Ombudsman considers that it could be useful for the Commission to take into account, in its revision of the Code of Conduct and the Observers' evaluation procedure**,** Article 41 of the Charter of Fundamental Rights of the European Union, as well as Articles 16 and 20 of the European Code of Good Administrative Behaviour. The Ombudsman will make a further remark in this regard.
### B. The alleged failure to respond to the request for information
#### The Ombudsman's assessment
**42.** Given the Commission's apology and explanations, provided in its opinion to the Ombudsman, no further inquiries are justified as regards this aspect of the complaint.
### C. The claims
**43.** The complainant claimed that the Commission should (1) inform him of any decision concerning his compliance with the Code of Conduct of the EU Election Observation Missions; and (2) allow him to contest that decision.
#### The Ombudsman's assessment
**44.** Given that the Commission has, in substance settled this aspect of the case, there are no grounds to pursue the claims further.
### D. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:
**The Commission has settled the case as regards the complainant's personal situation.**
**The Commission is implementing the Ombudsman's proposed friendly solution as regards the general procedure for finding a breach of the Code of Conduct.**
**No further inquiries are justified as regards the request for information.**
The complainant and the Commission will be informed of this decision.
Further remark
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{#FR31/2012}
**The Commission could take into account, in its review of the Code of Conduct and the Observers' evaluation procedure, Article 41 of the Charter of Fundamental Rights of the European Union, as well as Articles 16 and 20 of the European Code of Good Administrative Behaviour.**
P. Nikiforos Diamandouros
Done in Strasbourg on 7 September 2012
*** ** * ** ***
[\[1\]](#_ftnref1 ""){#_ftn1} The Code of Conduct contains, *inter alia* , the following guidelines: "*Observers shall maintain strict impartiality in the conduct of their duties, and shall at no time express any bias or preference in relation to national authorities, parties, candidates, or with reference to any issues in contention in the election process; ... Observers will refrain from making any personal or premature comments about their observations to the media or any other interested persons, but should provide, through a designated liaison officer or spokesperson, general information about the nature of their activities as observers*" (emphasis added by the Ombudsman).
[\[2\]](#_ftnref2 ""){#_ftn2} Available at: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF>
[\[3\]](#_ftnref3 ""){#_ftn3} Available at: [http://www.ombudsman.europa.eu/resources/code.faces](/resources/code.faces)
[\[4\]](#_ftnref4 ""){#_ftn4} The question of whether it is a "decision" in the sense that it could have been challenged by the complainant in proceedings before the General Court does not arise in proceedings before the Ombudsman.
[\[5\]](#_ftnref5 ""){#_ftn5} See the Ombudsman's decision in case 1342/2007/FOR, paragraph 67, available at: [http://www.ombudsman.europa.eu/cases/decision.faces/en/3972/html.bookmark](/cases/decision.faces/en/3972/html.bookmark)