Strasbourg, 19 December 2006

Dear Ms M.,

On 22 June 2005, I received your complaint against the Joint Research Centre of the European Commission, concerning the procedure leading to the establishment of temporary agents as permanent officials in the Institute for Reference Materials and Measurements, in Geel, which was announced on 19 February 2004.

Given that your allegations and claim appeared to be closely related to those submitted by the complainants in cases 2075/2005/(ELB)MHZ, 2276/2005/MHZ, 2275/2005/MHZ, 2349/2005/(OV)MHZ, 2079/2005/MHZ, 2354/2005/MHZ, 2666/2005/(BB)MHZ and 3685/2005/(BU)MHZ, the Ombudsman decided to conduct the inquiry into your complaint and the above-mentioned cases jointly.

On 26 July 2005, I forwarded the complaint to the President of the Commission.

On 6 October 2005, the Commission sent its opinion in French, and on 18 October 2005, its translation into English. I forwarded these to you with an invitation to make observations, which you sent on 28 November 2005.

On 30 January 2006, I asked the Commission to provide me with further information on your complaint, and, on the same day, I informed you of my request.

On 3 February 2006, the Commission informed me that, due to its internal decision-making process, it was not possible to send its reply within the original deadline of 28 February 2006, and asked for an extension of the deadline. On 14 February 2006, I granted the extension until 31 March 2006. On the same day, and I informed you accordingly.

On 3 April 2006, the Commission sent its reply to my request of 30 January 2006 in French, and on 12 April 2006, its translation into English. On 28 April 2006, I sent the Commission a further letter concerning your case. On the same day, I sent you a copy of the Commission's reply of 3 April 2006 and a copy of my letter of 28 April 2006.

On 1 June 2006, the Commission asked me for an extension of the deadline until 30 June 2006 which I granted. On 22 June 2006, I informed you accordingly.

On 6 July 2006, the Commission sent its reply in French to my letter of 28 April 2006.

On 16 July 2006, you sent me additional information concerning your case.

On 8 September 2006, the Commission sent a corrigendum of its reply of 6 July 2006, and a translation into English (dated 28 August 2006). I sent the English translation to you on 18 September 2006 with an invitation to send observations.

On 11 October 2006, you sent your observations in relation to the Commission's reply of 6 July 2006.

I am writing now to inform you of the results of the inquiries that have been made.

THE COMPLAINT

The relevant facts according to the complainants(1) can be summarised as follows:

The complainants, members of the temporary research staff in various Institutes of the Joint Research Centre of the European Commission (the "JRC"), participated in the JRC's selection procedure COM/R/A/01/2000 for scientific temporary agents grade A8/A5. The selection procedure consisted of a pre-selection stage, which was based on applicants' CVs and a minimum professional experience of five years in the chosen field of expertise, followed by a multiple-choice test and oral tests. The complainants were successful and so were placed on a reserve list together with other successful candidates.

According to the complainant, the selection procedure was fully equivalent "if not identical" to competitions for the selection of officials and, at the time, constituted the only way to select research candidates.

On 14 July 2003, the complainant was invited for an interview for a position of a temporary scientific agent in the Institute for Reference Materials and Measurements (the "IRMM") of the JRC in Geel. During the interview, M. W., Head of the Management Support Unit of the IRMM Administration informed her that, provided her contract would be signed by 31 October 2003, she would be allowed to participate in the establishment procedure for temporary agents at the JRC. These verbal assurances given to her were also heard by other members of the Selection Board (a representative of the local Staff Committee, G.E. and the Head of the RM Unit, E.E, who, according to the complainant, should be able to confirm that such assurances were made).

The complainant accepted that offer. On 31 October 2003 (that is, on the last day of the above mentioned "deadline"), the Commission sent her the draft contract by fax and then asked her to take the decision within the following two hours. Mindful of the assurances made by M.W, the complainant agreed to the contract's conditions (she received a standard temporary agent contract of five years under Article 2(d) of the Conditions of employment of other servants of the European Communities) and started to work on 16 November 2003, as a temporary agent at grade A8.

Afterwards, the JRC examined her previous professional experience (which included, a postdoctoral fellowship within the Commission and work outside the Commission) and re-defined her grade as A6 step3, for which post-graduate professional seniority of a maximum of 12 years was required.

In November 2003, the JRC organised a PowerPoint presentation for all staff in relation to the establishment procedure and on 4 December 2003, it issued an e-mail informing them that all temporary research staff should be established as officials before the entry into force of the new Staff Regulations and that the establishment procedure was part of the development of a staff policy for the research sector, which had been decided by the Commission in December 2001.

The Heads of the complainants' units asked them to prepare and submit the description of their current (temporary) posts. The complainants were informed that this description would be used in the context of a publication of internal competitions, which would lead to the establishment of the complainants' posts as permanent posts.

In December 2003, the above-mentioned Head of the Management Support Unit at the JRC stated, during a public address, that the complainant would be allowed to take part in the establishment procedure to be launched before 1 May 2004. He also said that a general solution for allowing the temporary agents recruited following the same selection procedure as the complainant would consist in reducing their probation period.

On 19 February 2004, the internal procedure leading to the establishment of temporary agents as permanent officials was launched in the JRC. The posts for establishment were highly specialised. This meant that, in practice, only the persons occupying the posts at the time the establishment procedure was launched could apply.

The JRC informed its temporary research staff that, in order to apply, their probation period had to be completed by 2 March 2004 (i.e., the closing date for registration). The JRC considered that the candidates' previous work with the Communities as auxiliary agents (even in positions that were not related to the positions listed for establishment) could count towards calculating whether the six-month probation period had been completed.

The complainants, however, had no experience as auxiliary agents and their probation period had not been completed by 2 March 2004. Despite the assurances they had received, the complainants’ posts were not listed for the establishment procedure. According to the complainants, the seniority requirements in the establishment procedure were unfair because they resulted in a situation in which temporary agents who had been recruited under the same conditions did not all have the same opportunity to be established as permanent officials.

In April 2004 just before the entry into force of the new Staff Regulations on 1 May 2004, the complainants’ five-year contracts as temporary agents were amended by the Commission to become contracts of indefinite duration.

The complainant accepted that amendment because, on 23 March 2004, in reply to her question, the Head of the Human Resources in the JRC had informed her that the JRC "will endeavour to find a satisfactory solution to your problem".

On 24 June 2004, the complainant made a complaint under Article 90(2) of the Staff Regulations against the decision of the JRC not to establish her as a permanent official. She alleged, among other things, that the Commission had recognised her previous auxiliary experience in a discriminatory and arbitrary manner. She also alleged that, at the time of her Article 90(2) complaint, she had been a temporary agent occupying a permanent post, with duties and responsibilities identical to those of officials, but without any career development prospects and without any guarantees regarding the stability and permanence of her post.

On 15 October 2004, her complaint was rejected. The Commission argued that the complainant herself decided not to participate in the above internal competition. This decision was exclusively the complainant's responsibility as she most probably had taken the view that she did not fulfil the relevant conditions. Given that the complainant did not take part in the internal competition, there was no decision adversely affecting her in the sense of Article 90(2) of the Staff Regulations and her internal complaint was thus inadmissible. On this basis, the Commission did not deal with the substance of the complainant's arguments.

On 22 June 2005, the complainant lodged a complaint with the Ombudsman She emphasised in her complaint that she had no prospect of career development as a temporary agent with a contract of indefinite duration and that she did not have the same benefits and rights (such as pension rights) as officials, even though she was performing the same duties as them.

Given that the complainant's allegations and claim were similar to those submitted by other complainants in cases 2075/2005/(ELB)MHZ, 2079/2005/MHZ, 2276/2005/MHZ, 2349/2005/(OV)MHZ, 2275/2005/MHZ, 2354/2005/MHZ, 2666/2005/(BB)MHZ, and 3685/2005/(BU)MHZ, the Ombudsman decided to conduct a joint inquiry.

The Ombudsman identified the following allegations and claim in the complaints:

1. The complainants alleged that the Commission breached the assurances that it gave to them as to their prospects of becoming permanent officials and that it was on the basis of these assurances that they had accepted their posts.
2. The complainants also alleged that the Commission unfairly applied the seniority requirements in the establishment procedure and that, as a result, temporary agents recruited under the same conditions did not have the same opportunity to be established as permanent officials.
3. They claimed that the Commission should open an internal competition for their recruitment as permanent officials.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows:

The complainants were engaged as temporary agents pursuant to Article 2(d) of the Conditions of employment of other servants. Their contracts were concluded for a period of five years. On 19 February 2004, the Commission published several notices of internal competitions "on the basis of qualifications" as part of its move to make certain temporary agents permanent officials. None of the published competitions corresponded to the posts occupied by the complainants. In April 2004, the complainants' temporary employment contracts were renewed for an indefinite period.

According to established case-law (Case T-214/99 Carrasco Benitez v Commission(2)), the Commission may require a minimum period of service before the establishment procedure can be applied to temporary agents. Thus, it may require that temporary agents have at least six months' experience as statutory agents.

Certain probationary temporary agents were indeed admitted to the competition. However, these agents had previously worked with the Commission as auxiliary staff and had, therefore, completed the minimum six month seniority requirement. As regards the majority of posts to which the establishment procedure applied, the minimum period as a statutory agent was much longer than six months. According to the Commission, it took "into account the nature of the post." In addition, the Commission noted that the "desire to keep people who have already proved their aptitude in the posts in question is the reason for taking experience as an auxiliary agent into account even if their experience was gained in other functions within the Communities than the one occupied on the date of publication of the internal competition." The Commission also pointed out that the term "statutory agent" applies to probationary and permanent officials, temporary agents and auxiliary agents. The Commission referred to Joined Cases T-40/96 and T-55/96 Kerros and Kohn Berge v Commission(3) (in which the Court of First Instance stated that all experience as a statutory agent at the level of required seniority had to be taken into account). The Commission concluded that only posts occupied by temporary agents who had been successful in previous selection rounds for temporary agents and had more than six months of seniority (in which their working periods as auxiliary agents were taken into account) were entitled to participate in the internal competitions. According to the Commission, there was no discrimination since all the temporary agents in the same situation were treated in the same way.

The Commission also stated that, even if a Head of Unit had led some of the complainants to believe that they could benefit from the establishment procedure, such remarks cannot be binding on the Commission. The Head of Unit was not authorised to give such assurances. The Commission pointed out that the principle of legitimate expectations cannot be based on "hopes raised by a person who was not authorised to do so." Finally, the Commission pointed out that "the difficulty, for both the complainants and the Commission, of establishing the nature and tenor of such remarks 18 months later must be admitted." The Commission stated that such assurances were not given to the complainants from the Institutes of the JRC in Ispra.

As regards the claim, the Commission stated that, since the entry into force of the new Staff Regulations, it is no longer possible to organise internal competitions for temporary agents whose contracts were concluded under Article 2(d) of the Conditions of employment of other servants. The Commission pointed out that, in order to be appointed as a probationary official, it is first necessary to have passed a competition. The complainants did not pass a competition. Therefore, they cannot, under the Staff Regulations, be appointed as officials. Moreover, the Commission stressed that the status of temporary agent confers no automatic right to be appointed as an official. The Commission also stated that it offered the temporary agents who could not benefit from the establishment procedure (i.e., those temporary agents who had five-year contracts and less than six months of seniority with the Communities on 2 March 2004) a temporary agent contract for an indefinite period. These offers were made before the new Staff Regulations came into force on 1 May 2004. These contracts are, according to the Commission, still valid under the new Staff Regulations. According to Article 4 of the transitional measures applicable to officials recruited under Conditions of employment of other servants, the contracts concluded with temporary agents to whom Article 2(d) of the Conditions of employment of other servants applies and who were engaged for an indefinite period before 1 May 2004 remain unchanged.

The Commission concluded that there was no discrimination or maladministration with regard to the complainants. The Commission noted that, in fact, it converted the initial five-year contracts of the complainants into indefinite contracts. It noted that this possibility no longer exists under the new Staff Regulations. Furthermore, the entry into force of the new Staff Regulations means that it is no longer possible to organise internal competitions for temporary agents whose contracts were concluded under Article 2(d) of the Conditions of employment of other servants.

The complainant's observations

The complainant's observations may be summarised as follows:

First, the complainant stated that she did not agree with the Commission's view that the assurances made by the Selection Board committee during the job interview were not binding on the Commission. In this respect, she pointed out that these assurances were made by the Commission's representative and, in view of her position as a candidate, she did not have any possibility to verify their correctness at the time they were made. She expressed doubts, however, that the establishment procedure was completely clear to the administration of her institute (the IRMM). She took the view that there was a lack of coherence or co-ordination between the different "administrations" (of the Commission's headquarters and the JRC) as regards the establishment procedure.

Moreover, the complainant found "offensive and not pertinent the Commission's statement in its opinion that 'the difficulty, for both the complainants and the Commission, of establishing the nature and tenor of such remarks 18 months later must be admitted'". The complainant stated therefore that she could not understand why, after 18 months had passed, the Commission tried to establish "the nature and tenor" of such promises and, in the meantime, failed to resolve her situation. The complainant pointed out that the notices of competitions in the establishment procedure were based on personal qualifications in such a way that only the holder of the post that had sent his/her job description could fit the requirements as advertised in the establishment procedure. She also took the view that it was not understandable why, in order to calculate the length of seniority, the Commission did not take into account her three years of experience as a fellow in the same institute (the IRMM) posts for which were advertised, but took into the account experience as auxiliary staff in institutions other than the JRC, as regards other cases. Finally, she stated that the complainants were recruited after undergoing the selection procedure which was advertised in the press and their selection was as rigorous as the one for the officials under the new Staff Regulations rules and more rigorous than that for the recruitment of temporary agents under the new Staff Regulations.

Further inquiries

After careful consideration of the Commission's opinion and the observations of the complainants, it appeared that further inquiries were necessary.

The Ombudsman's letter to the Commission dated 30 January 2006

On 30 January 2006, the Ombudsman sent the Commission copies of the observations that he had received by that date from the complainants in the joint inquiry. He also asked the Commission to reply to the following questions:

1. The notices of competition in relation to the establishment procedure vary as to their requirements of seniority as statutory agent. In some cases, the requirement was six months, while in others it was seven, eight or nine months. What were the reasons for these requirements and for the relatively small differences between them?
2. Why did Notice of Competition COM/R/106/04 contain a three-month seniority requirement? (The Ombudsman attached a copy of the notice in question).
3. Are the posts which the complainants now occupy designated in the establishment plan as permanent or temporary posts?
4. If the answer to question 3 is that they are permanent posts, could the Commission consider organising a further establishment procedure from which the complainants could benefit?

The Commission's reply of 3 April 2006

As regards the first question, the Commission stated that: (i) the seniority requirements corresponded to the nature of the posts and were established according to the interests of the service; and (ii) the Commission has a wide margin of discretion when determining such requirements. In addition, the Commission stated that the duration of the probation period for temporary agents was six months under the old Staff Regulations and therefore the seniority requirement in the establishment of temporary agents could not be shorter than their probation period. The Commission also mentioned that the competition notices were published on 19 February 2004.

As regards the second question, the Commission replied, in summary, that the document brought forward by the Ombudsman did not correspond to reality. The Commission stated that it wondered how the Notice of Competition as attached to the Ombudsman's letter of 30 January 2006 had been communicated to him. The Commission attached to its answer a document entitled "Notice of Competition COM/R/106/04," and stated that this was, in fact, the document that had been published. (This document showed that there was only a four-year seniority requirement.) The Commission also stated that it had verified that the successful candidate in that competition indeed had four years of seniority.

As regards the third question, the Commission stated that the complainants' posts were designated in the establishment plan as permanent posts.

As regards the fourth question, the Commission stated that it had concluded contracts of indefinite duration with the complainants (their earlier contracts were of five years duration). It also stated that the entry into force of the new Staff Regulations means that it is no longer possible to organise internal competitions for temporary agents whose contracts were concluded under Article 2(d) of the Conditions of employment of other servants and that only temporary agents whose contracts were concluded under Article 2(c) of the above Conditions could benefit from the establishment procedure. Therefore, the Commission noted that the complainants could, it they wished, take part in external open competitions and, if successful, could become officials.

The telephone contact with the complainant in case 2079/2005/MHZ on 11 April 2006 and her e-mails of 12 and 13 April 2006

On 11 April 2006, the Ombudsman's services telephoned the complainant in case 2079/2005/MHZ in order to clarify the issue of the PDF (containing, inter alia, the notice of competition COM/R/106/04), which the complainant in case 2079/2005/MHZ had sent to the Ombudsman on 12 January 2006.

The complainant in case 2079/2005/MHZ confirmed that that PDF had been published on the Intranet of the Commission on 19 February 2004, and appeared to have been created the day before. She also said that the establishment procedure was prepared with incredible haste and that it was very likely that the notices of competition in that PDF had many mistakes (there were about 300 notices of competition published at the same time). She also pointed out that the publication date was very close to the closing date for these competitions.

On 12 April 2006, the complainant in case 2079/2005/MHZ sent an e-mail to the Ombudsman to which she attached the document "Avis des vacances d'emploi et de concours internes sur titres jumelés" (“the Avis") which had been published together with the above PDF. The document related to the vacancies of 19 February 2004 and indicated, as a deadline for the registration of candidates, 5 March 2004. On 13 April 2006, the complainant sent to the Ombudsman a printed copy of the HTML page from the Intranet site of the Commission concerning the same document. According to that document, the deadline for the registration of candidates was 2 March 2004.

The Ombudsman's letter to the Commission dated 28 April 2006

Having examined the Commission's reply of 3 April 2006, and in light of the information provided by the complainant, the Ombudsman decided to address the Commission again.

As regards the Avis, the Ombudsman noted from the Commission's reply that it would like to be informed about the source of the Ombudsman's information concerning Notice of Competition COM/R/106/04, which was attached to the Ombudsman's letter of 30 January 2006. In response, the Ombudsman informed the Commission that the Avis and the PDF annexed to it, containing all the competition notices of the relevant establishment procedure (including COM/R/106/04), had been forwarded to the Ombudsman by one of the complainants. The Ombudsman also thanked the Commission for sending another version of the Avis and of Notice of Competition COM/R/106/04. Having carefully compared the two versions, the Ombudsman concluded that it seemed that the document sent by the Commission could be a corrected version of the original version of the Avis sent by the complainant. He noted, moreover, that the Avis sent by the Commission appeared to have been created on 1 March 2004, while the Avis and the above-mentioned PDF sent by the complainant, appeared to have been created, respectively, on 19 February 2004 and 18 February 2004(4). The Ombudsman asked, therefore, for clarification as regards the apparent disparity between the two versions of the Avis and the dates on which they were created.

As regards the possibility of establishing the complainants as officials, the Ombudsman noted that, in its opinion and also in its reply to the Ombudsman's request for further information, the Commission took the view that the new Staff Regulations lay down an absolute bar on the organisation of internal competitions for temporary agents with the exception of those whose contracts were concluded under Article 2(c) of the Conditions of employment of other servants. However, the Ombudsman pointed out that he understood, from information shared informally at inter-institutional meetings in which his services participated, that the Commission's view may not be shared by other institutions, which have referred in this context to: (i) Article 29.1 of the Staff Regulations, which, in principle, allows the institutions to organise internal competitions; and (ii) Article 29.2 of the Staff Regulations, which offers another possibility for the recruitment for posts which require special qualifications. The Ombudsman asked, therefore, if the Commission could inform him whether its Directorate-General for Personnel and Administration had given a view as to the possible application of these provisions in the case of the complainants.

As regards the general context giving rise to the complaints, the Ombudsman stated that, whilst carefully examining the complaints of the joint inquiry, he became concerned as to the general context in which they arose. Having examined a number of the notices of competition for the relevant establishment procedure, as contained in the Commission’s PDF, he noted that, for the posts of scientific officers of the same grade A8/A5, there were widely varying requirements as regards conditions of seniority within the Communities, such as six, eight, nine and ten months, and one, two, three, four, five, six, seven and sixteen years. Furthermore, he noted that other requirements stipulated in the notices of competitions concerning, for example, professional experience, education and knowledge of languages, could give the impression that they were based on the profiles of the persons then occupying the relevant posts. The Ombudsman expressed therefore his uncertainty, on the basis of the information available, as to what might be the interests of the service that could reasonably be understood as justifying the publication by the Commission of about 300 different competitions with such radically different conditions of admission, or even whether there was a clear legal basis for what might appear to have been a general policy to establish as officials persons then occupying the relevant posts. He noted that his concerns as to the above were made particularly acute by the fact that the Commission had not offered any satisfactory explanation or rationale for the treatment of the complainants in the general context that gave rise to the complaints.

The Commission's reply of 6 July 2006

The Commission's reply to the Ombudsman’s letter of 28 April 2006 comprised a letter signed by Commissioner Potočnik to the Ombudsman and separate comments under the heading "the Commission's reply to the Ombudsman".

In his letter, the Commissioner referred to a recent meeting with the Ombudsman(5). The Commissioner stated that he looked carefully at the cases of the joint inquiry but he does not see a possibility for movement as regards the complainants, since to do so could undermine the policy of organising competitions to meet the specific needs of the service rather than the needs of individuals. He also said that a systematic and coherent approach to recruitment, which would fully meet the specific needs of the JRC as a grouping of research institutes, needs to be ensured. The Director-General would review in detail the past practice and incorporate any possible lessons from these selection procedures into future competitions.

The separate comments stated that, as regards Notice of Competition COM/R/106/04, the version forwarded to the Ombudsman by the complainant was not correct. The notice was initially published on 19 February 2004. Because of an error regarding seniority, the corrected version was created on 1 March 2004 and then sent for publication in the relevant Commission departments on 3 March 2004.

The Commission agreed that it is possible for internal competitions to be organised under the new Staff Regulations and that they may be open to all officials and temporary staff within the meaning of Article 29.1 of the Staff Regulations. However, that article does not require the institutions to organise internal competitions. Only the European Parliament is required to organize internal competitions for its Article 2(c) temporary staff every five years.

The Commission does not believe, however, that it is appropriate to organise internal competitions at present, particularly since the purpose of such competitions is to meet staff requirements as they arise. At the present time, following a number of open competitions in the research area, the Commission has reserve lists of more than 150 persons for the function group AD. The Commission pointed out that the complainants had had the opportunity to take part in those competitions. The Commission also stressed that the contracts of all the complainants had been renewed for an indefinite period even though their probationary period had not been completed.

As regards the question of whether the notices of competition in the establishment procedure give rise to the impression that they were based on the profiles of the persons occupying the posts in 2004, the Commission stated that each notice of competition contained a job description corresponding to the needs of the service and the requirements of the institutions in the area of research. In addition, in the case of notices of competition for A4, A5 or A6 (non-management) posts, it seemed reasonable to require several years of relevant professional experience. The Commission added that, although there was no systematic approach to establishing of recruitment criteria, such criteria were established on a case-by-case basis and were adjusted to the requirements of the service.

The major establishment exercise within the Directorate-General for Research to which the complaints refer had taken place in 2004, contrary to a specific policy (SEC(2001)1869)(6). There were no plans for a further such exercise. However, the Commission could plan the organisation of internal competitions on a case-by-case basis, though such competitions would not be organised at the request of the temporary staff but solely on the basis of the requirements of the service. In such an event the procedure would be supervised by the relevant Director-General in compliance with specific criteria.

The complainant's observations on the Commission's reply of 6 July 2006

First, on 16 July 2006, the complainant sent an e-mail to the Ombudsman, in which she informed him that, during the JRC Cabinet meeting on 4 July 2006, it was stated, in summary, that, following the complaints to the Ombudsman, the JRC would review its policy of writing the job descriptions in the notices of competitions. The complainant found that the Commission did not want to resolve the case of the complainants but only to avoid the future criticism and further complaints to the Ombudsman.

Second, on 11 October 2006, the complainant sent her observations on the Commission's reply of 6 July 2006.

The complainant pointed out that, according to the Commission, it sent the PDF containing the notices of competitions for correction one day after the deadline for submitting candidatures expired (she attached a copy of Avis, which was published on the Commission's intranet and on which the date of 2 March 2005 appears as the deadline for submitting candidatures).

The complainant considered that, by leaving the complainants in a situation of "administrative limbo" in which they were not motivated because their situation was inferior to that of their colleagues and also because they do not have any possibility of career advancement or mobility, the Commission did not ensure the best interests of the service. Furthermore, the fact that they had received a contract of indefinite duration showed that the Commission wished to keep them in their posts. The Commission also failed to indicate what could be the interests of the service that would require the organisation of internal competitions when such interests arose.

Finally, she pointed out that the Commission referred to the possibility for the complainants to take part in external competitions which had been organised in the meantime but it did not reveal that these competitions were organised for recruitment to a lower grade than the one currently occupied by the complainants.

The complainant concluded that, if it is not currently possible to rectify the discrimination the complainants suffered, there should be, at least, a commitment from the Commission that "the conditions of interest of the service will be used in the near future to find an overall solution in order to stop this discrimination". In the meantime, the complainants' career, mobility and social rights should be clarified for her and the other complainants.

THE DECISION

1 Preliminary remark

1.1 The Ombudsman received a total of nine complaints(7) against the Joint Research Centre of the Commission (the "JRC") concerning the procedure leading to the establishment of temporary agents as permanent officials in various Institutes of the Joint Research Centre of the Commission (the Institute for Environment and Sustainability, the Institute for the Protection and Security of the Citizen and the Institute for Health and Consumer Protection in Ispra, and the Institute for Reference Materials and Measurements in Geel). The procedure was announced on 19 February 2004.

1.2 Given that the allegations and claims contained in the complaints appeared to be closely related, the Ombudsman decided to conduct a joint inquiry.

2 The alleged breach of assurances

2.1 The complainants alleged that the Commission has breached the assurances that it gave to them as to their prospects of becoming permanent officials and it was on the basis of these assumptions that they had accepted their posts.

According to the complainants, they received assurances (at various times and in various forms) that they would be allowed to participate in the establishment procedure for temporary agents at the JRC in order to become permanent officials before the new Staff Regulations came into force on 1 May 2004. Some complainants(8) referred, in particular, to their recruitment interviews and stated that the Head of the Management Support Unit of the JRC Institute for Reference Materials and Measurements, who was a member of the Selection Board, informed them in the presence of other members of the Board that, provided their contracts would be signed by 31 October 2003, they would be allowed to participate in the establishment procedure for temporary agents at the JRC. According to the complainants, as a result of the assurances given, they made all the necessary arrangements to leave the jobs they had at the time in order to be able to sign the contracts with the Commission.

2.2 The Commission, in summary, does not concede that the complainants received assurances that could have given rise to firm expectations that they would benefit from the establishment procedure.

First, the Commission argues that, even if a Head of Unit had led some of the complainants to believe that they could be established promptly, such remarks were not binding on the Commission, because the person who allegedly made these remarks was not authorised to do so.

Second, according to the Commission, it is difficult for the complainants and the Commission, more than 18 months after the facts, to establish the nature and tenor of such remarks.

2.3 In their observations, the complainants(9) appeared to take the view that, contrary to its own statement in its opinion, the Commission itself tried to establish "the nature and tenor" of the promises made to them.

2.4 As regards the Commission's argument that a Head of Unit is not an authorised person to give assurances, the Ombudsman notes that the person whom complainants specifically identified as having given such assurances was the Head of the Management Support Unit of the JRC Institute for Reference Materials and Measurements. The Ombudsman does not understand the Commission to be arguing that it was outside the scope of the functions of such a Head of Unit to inform persons who were about to be, or had recently been, recruited of their career prospects and of the JRC’s intentions in this regard.

2.5 However, in the Ombudsman's view, the evidence and arguments put forward by the complainants do not show either that they regarded, or that they could reasonably have regarded, the statements that were made to them as constituting a binding commitment by the Commission to establish them as officials.

2.6 The Ombudsman therefore considers that no further inquiries are justified as regards this allegation.

3 The allegation of unfairness

3.1 The complainants alleged that the Commission unfairly applied the seniority requirements in the establishment procedure and that, as a result, temporary agents recruited under the same conditions did not have the same opportunity to be established as permanent officials.

In support of their allegation the complainants pointed out, in summary, that the minimum requirement of six months of seniority with the Communities as statutory agents had resulted in a situation in which temporary agents who had been recruited under the same conditions did not all have the same opportunity to be established as permanent officials.

3.2 In its opinion, the Commission pointed out that it may require a minimum period of service with the Communities as a condition for admission to a competition intended for the establishment of temporary agents and referred to Case T-214/99 Carrasco Benitez v Commission). Furthermore, experience as a statutory agent at the level of required seniority had to be taken into account (Joined Cases T-40/96 and T-55/96 Kerros and Kohn Berge v Commission). According to the Commission, there was no discrimination since all the temporary agents in the same situation were treated in the same way.

In response to further inquiries, the Commission added that it established the seniority requirement of six months because, in its view, it could not be shorter than the length of the probation period which, in the case of temporary agents recruited under the same conditions as the complainants, was six months. The Commission also argued that it enjoys discretionary powers in establishing the requirements for competitions, and that the length of the seniority requirement as regards each notice of competition was established in accordance with the interests of the service.

3.3 The Ombudsman finds it useful in examining the present allegation to consider first the specific question of the six-month minimum requirement of seniority and its application to the complainants and thereafter to consider more generally the arrangements for the establishment procedure published on 19 February 2004.

The treatment of the complainants

3.4 According to the Commission, it treated all the temporary agents in the same situation in the same way because only those who met the minimum criterion of six months of seniority with the Communities as statutory agents were eligible to take part in the establishment procedure.

3.5 According to the complainants, if their circumstances are compared with those of the temporary agents who were established on the basis of the six-month seniority criterion, they were all successful in the same selection procedure, were recruited from the same reserve list to the same grade A8 approximately at the same time, and finally they all had the same five-year contracts.

3.6 The Ombudsman first notes that the arguments put forward by the complainants to support the allegation of unfairness essentially concern the principle of equal treatment. In this regard, the Ombudsman recalls the established case law according to which the principle of equal treatment is breached where two categories of person whose legal and factual circumstances disclose no essential difference are treated differently(10).

3.7 As regards, the present case, the Ombudsman notes that the complainants did not have six months of seniority with the Communities as statutory agents by 2 (or 5) March 2004, as was required in the relevant notices of competition, and considers therefore that the factual circumstances of the complainants were not actually the same as those of the temporary agents who complied with the six-month seniority criterion on that date.

3.8 The Ombudsman therefore considers that the complainants have not succeeded in showing that the Commission's application of a minimum requirement of six months of seniority with the Communities as statutory agents violated the principle of equal treatment. Nor have the complainants put forward other arguments that demonstrate that the Commission treated them unfairly in this regard.

The establishment procedure in general

3.9 The Ombudsman informed the Commission that, whilst carefully examining the complaints of the joint inquiry, he became concerned as to the general context in which they arose. The Ombudsman informed the Commission, in particular, that, h aving examined a number of the notices of competition for the relevant establishment procedure, he noted that, for the posts of scientific officers of the same grade A8/A5, there were widely varying requirements as regards conditions of seniority within the Communities, such as six, eight, nine and ten months(11), and one, two, three, four, five, six, seven and sixteen years. Furthermore, other requirements, stipulated in the notices of competitions concerning, for example, professional experience, education and knowledge of languages, could give the impression that they were based on the profiles of the persons then occupying the relevant posts. The Ombudsman expressed therefore his uncertainty, on the basis of the information available, as to what might be the interests of the service that could reasonably be understood as justifying the publication by the Commission of about 300 different competitions with such radically different conditions of admission, or even whether there was a clear legal basis for what might appear to have been a general policy to establish as officials persons then occupying the relevant posts.

3.10 In reply, the Commission acknowledged that the establishment procedure in question had been contrary to the Commission's specific policy (SEC(2001)1869) and stated that there are no plans for a further such exercise. The Commission also acknowledged that there had been no systematic approach to establishing recruitment criteria in the procedure in question. According to the Commission, however, such criteria were established on a case-by-case basis and were adjusted to the requirements of the service.

In addition, the responsible Commissioner informed the Ombudsman that the Director-General would review in detail the past practice and incorporate any possible lessons from these selection procedures into future competitions.

3.11 The Ombudsman does not consider that the Commission has put forward any convincing explanation as to how the requirements of the service justified the way in which the competitions in question were organised.

3.12 The Ombudsman notes that the Court of First Instance has used the term "sham competition"(12) in referring to a competition in which the successful candidate is designated in advance.

The Ombudsman regrets that the requirements of the competitions to which the present complaints relate were stipulated in such a way that they could give the impression that the successful candidates were known in advance and were, in addition, so radically different for the same category of posts as to appear arbitrary. The Ombudsman therefore takes the view that there appears to be prima facie evidence of maladministration. Consequently, the Ombudsman considers it necessary to assess whether that prima facie evidence of maladministration could have (i) general implications and (ii) implications for the complainants in particular.

3.13 As regards the possible general implications of the above prima facie evidence of maladministration, the Ombudsman notes the Commission's statement that there are no plans for a further such exercise.

Moreover, the Ombudsman notes and welcomes the initiative, announced in the letter of Commissioner Potočnik to the Ombudsman, to review in detail the past practice of recruitment in the JRC and incorporate any possible lessons into future competitions. In this context, the Ombudsman will consider whether it could be useful to open an own-initiative inquiry into the management of human resources at the JRC. A further remark will accordingly be made below.

In light of above, the Ombudsman considers that no additional inquiries are necessary in the framework of the present complaints as regards possible general implications of the way the competitions in question were organised.

3.14 As regards the possible implications of the above prima facie evidence of maladministration for the complainants in particular, the Ombudsman will deal with this aspect of the complaints below, in part 4 of the decision, in relation to the complainants' claim.

4 The claim to organise an internal competition

4.1 The complainants claimed that the Commission should open an internal competition for their recruitment as permanent officials.

According to the complainants, the procedure by which they were recruited as temporary agents was equivalent, if not identical, to competitions for selection of officials and, at the time, constituted the only way to recruit research staff.

Moreover, the complainants emphasised that they have no prospect of career development as temporary agents and that they do not have the same benefits and rights as officials although they perform the same duties as them.

4.2 The Commission at first took the view that the new Staff Regulations lay down an absolute bar on the organisation of internal competitions for temporary agents with the exception of those whose contracts were concluded under Article 2(c) of the Conditions of employment of other servants.

4.3 The Ombudsman pointed out that he understood, from information shared informally at inter-institutional meetings in which his services participated, that the Commission's view may not be shared by other institutions, which have referred in this context to: (i) Article 29.1 of the Staff Regulations, which, in principle, allows the institutions to organise internal competitions; and (ii) Article 29.2 of the Staff Regulations, which offers another possibility for the recruitment for posts which require special qualifications.

4.4 In response, the Commission agreed that it is possible for internal competitions to be organised under the new Staff Regulations and that they may be open to all officials and temporary staff within the meaning of Article 29.1 of the Staff Regulations.

The Commission stated, in summary, that it is not appropriate to organise internal competitions at present, particularly since the purpose of such competitions is to meet staff requirements as they arise. However, the Commission could plan the organisation of internal competitions on a case-by-case basis, though such competitions would not be organised at the request of the temporary staff but solely on the basis of the requirements of the service. In such an event, the procedure would be supervised by the relevant Director-General in compliance with the established criteria.

4.5 The Ombudsman welcomes the fact that the Commission changed its initial view and agreed with Ombudsman and other institutions that the organisation of internal competitions is possible for research staff under the new Staff Regulations.

4.6 The Ombudsman notes, however, even if he were to pursue his inquiry, and on the assumption that the outcome could be a finding that the organisation of the establishment procedure in question was an instance of maladministration because it was contrary to declared Commission policy, or even that it involved "sham" competitions in the sense that the latter term has been used by the Court of First Instance, the Ombudsman could obviously not propose to the Commission to organise a (similar) competition for recruitment of the complainants. Moreover, there is nothing to suggest that the complainants are in a worse material position now than they would have been if the establishment procedure in question had not been organised.

Therefore, the Ombudsman considers that no useful purpose would be served by prolonging the present inquiry as regards the complainants’ claim.

4.7 However, the Ombudsman points out that there is nothing to prevent the Commission from organising future internal competition in compliance with the applicable rules.

4.8 The Ombudsman notes that the Commission does not appear to exclude the organisation of an internal competition in which the complainants could take part in the future, should the interests of the service require it. Any such future competition would be held under the supervision of the relevant Director-General and in compliance with the established criteria.

In this context, and taking into account what was pointed out by the complainants on several occasions in the course of the inquiry, namely that the establishment procedure in question resulted from the general staff policy in the JRC and that the temporary agents who were not admitted to that procedure are the only members of the JRC research staff within this category occupying permanent posts with contracts of indefinite duration who remain in the JRC, the Ombudsman will make a further remark below.

5 Conclusion

For the reasons explained above, the Ombudsman considers that no further inquiries are justified into the present complaints.

The Ombudsman therefore closes the cases.

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

FURTHER REMARKS

1. The Ombudsman welcomes the initiative, announced in the letter of Commissioner Potočnik to the Ombudsman, to review in detail the past practice of recruitment in the JRC and incorporate any possible lessons into future competitions. In this context, the Ombudsman will consider whether it could be useful to open an own-initiative inquiry into the management of human resources at the JRC.
2. The Ombudsman welcomes the Commission's statement that it may organise, on a case-by-case basis, internal competitions should the interests of the service require it, and that any such future competitions will be held under the supervision of the relevant Director-General in compliance with the established criteria. In this context, the Ombudsman takes the view that the Commission could usefully review the status of the members of the JRC research staff, who occupy, as temporary agents, permanent posts with contracts of indefinite duration.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Where “complainants” is used in the plural, reference is made to the complainants in all nine cases covered by the joint inquiry. “The complainant” in the singular is used where facts or comments specific to the complainant in the present case are mentioned.

(2) Case T-214/99 Carrasco Benitez v Commission [2000] ECR-SC IA-257 and II-1169.

(3) Joined Cases T-40/96 and T-55/96 Kerros and Kohn Berge v Commission [1997] ECR-SC IA-47; II-135.

(4) The content of both documents appears to be the same except that on the Commission's document the closing date for the competitions is 5 March 2004 whilst on the document sent by the complainant the closing date for the competitions is 2 March 2004. The URL address of both documents is however different: the complainant's document appears to be printed on 26 February 2004 from the Intranet site accessed via https://intracomm.cec.eu.int, while the Commission's document appears to be printed on 2 March 2004 from the Intranet site accessed via http//:www.cc.cec.

(5) The Ombudsman presumes that the Commissioner’s letter refers to the meeting which took place on 16 May 2006, between the Ombudsman and Commissioner Poto čnik, at the latter’s office in Strasbourg. The Ombudsman, who was accompanied by two members of his services, explained, among other things, what he is doing to sensitise the Commission services to the need for a culture of service-mindedness and transparency as part of the modernisation of the EU administration and expressed his willingness to meet strategic actors in DG Research and the JRC for this purpose. There was no discussion of the present complaints.

(6) The Ombudsman has examined the document SEC(2001)1869 and notes that on page 12 of this document it is stated that the recruitment of temporary research agents engaged on five-year renewable contracts or on contracts of an indefinite duration should be suspended until the end of 2002 or, at the latest, after the first reserve lists was made following an open competition for research posts. Furthermore, the document provided that the temporary research agents who were already in service and who had been successful in the internal or external competitions should be established without delay and without any other criterion than that of being a laureate of such a competition. The document also mentioned that the selection procedure on the basis of which such agents were recruited should be considered as a relevant competition (the procedure was identical to the one in the external competition).

(7) In addition to the present complaint (2274/2005/MHZ) the other complaints are: 2075/2005/(ELB)MHZ, 2275/2005/MHZ, 2276/2005/MHZ, 2079/2005/MHZ, 2349/2005/(OV)MHZ, 2354/2005/MHZ, 2666/2005/(BB)MHZ and 3685/2005/(BU)MHZ.

(8) The complainant in the present case and in cases 2275/2005/MHZ and 2276/2005/MHZ.

(9) The complainant in the present case (2274/2005/MHZ), and in cases 2275/2005/MHZ, and 2276/2005/MHZ.

(10) Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 56.

(11) In particular, the Ombudsman took note of the content of a number of the notices of competitions, for the posts of scientific officers of the same grade A8/A5 in which the seniority requirement was less than one year.

(12) Joined Cases T-66/96 and T-221/97 Mellet v Court of Justice [1998] ECR-SC I-A-449 and II-1305, paragraph 115.