Strasbourg, 14 November 2007

Dear Mr X,

On 4 October 2006, you lodged a complaint with the European Ombudsman against the European Anti-fraud Office ("OLAF"). The complaint concerned OLAF's alleged failure properly to handle your correspondence with that institution.

On 8 November 2006, I informed the Director General of OLAF of your complaint and asked him to submit an opinion on it by 28 February 2007. On 26 February 2007, OLAF sent its opinion, which was forwarded to you on 27 February 2007, with an invitation to make observations, if you so wished.

On 26 March 2007, you sent your observations in relation to the opinion of OLAF to me.

On 30 April 2007, I informed you that, for reasons of internal organisation, your case had been reassigned to another member of my legal service.

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

THE COMPLAINT

Background: Complaint 2672/2006/(JF)WP

On 10 August 2006, the complainant lodged a complaint with the European Ombudsman, which was registered under file number 2672/2006/WP. In his complaint, he complained about the manner in which the European Anti-fraud Office ("OLAF") had dealt with information he had submitted to it. The complainant explained that he had often sent information to OLAF concerning fraud and anti-fraud related issues, mostly extracts from the Polish press, in order to allow OLAF to take appropriate action.

The complainant forwarded the above information to OLAF from his private e-mail account.

The complainant pointed out that OLAF was unable or unwilling to deal with the information he had forwarded to it. He explained that, of the 19 communications sent to OLAF, only one was dealt with properly. On the other 18 occasions, OLAF did not follow the applicable rules concerning the reply to correspondence from citizens enshrined in the EC Treaty, EEC Council Regulation N° 1 determining the languages to be used by the European Economic Community(1) ("Regulation 1/58") and the Commission's Code of Good Administrative Behaviour ("the Code").

Even though the complainant had drawn OLAF's attention to its inappropriate response to his correspondence, the institution refused to acknowledge the problem and decided to halt any further correspondence with him.

The complainant asked the Ombudsman to examine the complaint since, in his view, OLAF's behaviour infringed the rights of citizens to have their correspondence handled in the appropriate language and within the established deadlines.

The complainant referred to OLAF's staff structure which he considered to be inadequate. He explained that core tasks of public service were being performed by contract staff, and that OLAF had not followed the recruitment procedures foreseen by the Staff Regulations. In his view, OLAF's staff policy had been characterised by procedural flaws, among others, its refusal to organise proper recruitment procedures.

According to the complainant, inadequate linguistic skills on the part of OLAF staff constitute a further problem. In his view, external staff, namely, employees who are not under the control of the Commission, were working for OLAF. The complainant pointed out that this situation could give rise to potential conflicts of interest, since these agents could be called upon to deal with information originating from their national administrations. The complainant referred to a specific case involving a Polish customs official seconded to OLAF. Although the complainant had repeatedly sought to draw the attention of OLAF's Director General to this matter, the problem had not been solved.

In his complaint, the complainant described the content of the 19 pieces of information which he had sent to OLAF(2) from 2002 until the end of 2005, and the reply given by the institution, which, except in one case(3), did not comply with the applicable rules. He referred to the following irregularities:

• Many of the letters he had written in Polish had been replied to by OLAF in English, in breach of OLAF's obligation to reply to letters from citizens in the language chosen by the sender, as set out in Article 21(3) of the EC Treaty and of Article 2 and 3 of Regulation 1/58(4);
  
• OLAF's had not sent its replies within the 15-day time-limit set out in the Code(5);
  
• Some of the complainant's letters had not been replied to, in violation of the Code(6);
  
• In March 2004, he had been treated incorrectly by an OLAF official in the course of a telephone conversation in which the official allegedly misunderstood the language used by the complainant, assuming he was speaking Russian, when in fact he was speaking Polish;
  
• One of the replies provided by OLAF in Polish had been drafted by an agent who had formerly worked as a spokeswoman for the Polish customs board, and was currently working for OLAF as an "external" agent. This situation could give rise to potential conflicts of interest. Even though the complainant informed OLAF of this situation in March 2005, OLAF did not react to his letter(7);
  
• OLAF's services had contacted the complainant while he was at his office, notwithstanding his express request that all information should be sent to his private e-mail address, and that all telephone contacts should be to his private number. Although, he brought this matter to OLAF's attention in July 2005, he received no reply to it;
  
• On 8 September 2005, the complainant drew OLAF's attention to a mistake on the Polish-language version of its website, which was only corrected on 22 September 2005. No reply had been given to his e-mail on this matter;
  
• Following a letter from the complainant which included information on an anti-fraud conference, he received a reply from OLAF announcing that a review was being carried out on whether an investigation was to be opened. In September 2005, the complainant wrote to OLAF, questioning its reaction to the information that he had sent, but he received no reply to his correspondence.

In light of the inadequate response given by OLAF to his correspondence, on 3 October 2005, the complainant wrote to the institution in order to complain about the situation. The complainant requested that OLAF should change the manner in which it was dealing with his correspondence. On 25 October 2005, OLAF replied to the complainant's letter, and stated that, in all but one of the letters and messages sent by the complainant, OLAF had not found sufficient grounds to open an inquiry. It also noted that it would discontinue its correspondence with the complainant on the grounds that it found his letters to be repetitive and pointless, since they were based on public information which it already possessed.

The complainant considered that OLAF had not replied to his concerns and submitted a complaint to the Ombudsman, in which he asked that OLAF's behaviour be investigated. The complainant was aware that some of his correspondence with OLAF had occurred before August 2004, and therefore had not taken place within the two-year deadline set out in the Ombudsman's Statute. However, the complainant argued that the Ombudsman should be able to consider these exchanges in his inquiry because there formed an integral part of his on-going correspondence with OLAF, and reflected a "causal link of events" involving the negligent handling of his correspondence. He noted that OLAF's reply of 25 October 2005 had indeed made reference to his entire correspondence.

The complainant explained that he had also contacted the responsible Commissioner, Members of the European Parliament and OLAF's supervisory committee concerning this matter. In February 2006, he had a meeting with two members of the Cabinet of Vice-President Kallas, in which his concerns had been dealt with, in his view, in a rather off-hand manner.

The complainant made the following allegations:

1. OLAF failed properly to deal with his submissions, in which he supplied it with fraud-related information. In support of this allegation, he argued that, in numerous instances, OLAF (i) failed to reply, (ii) replied belatedly and/or (iii) failed to reply in the language chosen by the sender. He also pointed out that (iv) certain OLAF staff failed to respect the fact that he was sending the correspondence in question in his private capacity and telephoned him at his office.
   
2. OLAF's staff policy was inadequate. In particular, the complainant argued that it was problematic that (i) contract staff performed core tasks within OLAF as they had not followed the strict recruitment procedures foreseen under the Staff Regulations; (ii) certain staff had insufficient linguistic skills; and (iii) external staff dealt with correspondence alleging fraud within the administration of their country of origin. In this context, the complainant drew particular attention to the case of a Polish person who had previously been employed as a spokesperson for a Polish authority and who, according to him, subsequently dealt with EU correspondence criticising that same authority when working for OLAF.
   
3. OLAF did not properly conduct recruitment procedures.
   
4. OLAF failed to take action in order to amend the shortcomings the complainant had pointed out in relation to the handling of his information, notwithstanding the fact that he had often informed OLAF about them. The complainant considered that there was therefore a problem of hierarchical oversight and leadership within OLAF.
   
5. In its letter of 25 October 2005, OLAF failed properly to deal with the matters he had raised, in particular since (i) the letter was imprecise; (ii) OLAF failed to admit errors it had committed; (iii) the information he had provided had wrongly been characterised as "repetitive" and "pointless"; and (iv) the letter contained unfair comments regarding his position as a Commission official and as a European citizen.

The complainant claimed that the EU budget should be better protected.

In his complaint, however, the complainant noted that information about his contacts with a number of EU officials should remain confidential and that OLAF should not have access to that part of the complaint.

On 28 September 2006, the Ombudsman informed the complainant that, when opening inquiries into complaints, the standard practice is to request an opinion from the institution concerned, attaching to that request a copy of the complaint. The Ombudsman noted that, when a complaint is dealt with in a confidential manner, this only implies that the file cannot be accessible to third parties. The Ombudsman pointed out that the institution concerned has the right to a fair procedure, and that proper respect for that principle requires that the institution should have full access to the complaint in its entirety. Since the complainant had asked the Ombudsman not to disclose to OLAF certain information contained in his complaint, the Ombudsman concluded that, under the conditions requested by the complainant, he could not carry out an inquiry that failed to respect the institutions' right to a fair procedure.

In his reply to the complainant, the Ombudsman explained that, if he wished to pursue his complaint further, he should send him a new version of the complaint in which all information could be made available to OLAF.

Present Case: Complaint 3134/2006/(WP)JMA

On 4 and 5 October 2006, the complainant wrote again to the Ombudsman. He stated that his request for partial confidentiality as regards his complaint arose from his wish to be discrete. He added that his contacts with officials had not been secret and were not relevant for the assessment of his case by the Ombudsman. The complainant therefore expressed his intention to withdraw his request for partial confidentiality, and agreed to the complete disclosure of his complaint to OLAF.

Taking into consideration the above information, the Ombudsman decided to register the complainant's letter as a new complaint (reference 3134/2006/(WP) JMA) and to start an inquiry.

The Ombudsman's inquiry, however, did not pursue all the allegations and the claim made by the complainant in his original complaint.

As regards the second allegation regarding OLAF's staff policy, the complainant had argued that core tasks within OLAF were being performed by contract staff members who had not been hired following the recruitment procedures foreseen under the Staff Regulations. The Ombudsman took the view that the complainant did not appear to have raised this aspect of the case with OLAF, prior to having submitted his complaint to him. This aspect of the complaint therefore had not been preceded by the appropriate administrative approaches towards OLAF as required by Article 2(4) of the Ombudsman's Statute. The Ombudsman considered this aspect of the case to be inadmissible.

In relation to the complainant's third allegation, whereby OLAF had not properly conducted recruitment procedures, the Ombudsman considered that insufficient details of the situation had been given. Accordingly, the Ombudsman concluded that there were insufficient grounds to open an inquiry into this aspect of the complaint as set out in Article 195 of the EC Treaty.

The complainant's fourth allegation concerned OLAF's failure to take action in order to amend the shortcomings the complainant had pointed out in relation to the handling of the information he had sent it. In this regard, the Ombudsman took the view that it was unclear whether this allegation raised a new and separate issue, as required by Article 2(3) of his Statute, or whether the complainant had been preceded by the appropriate administrative approaches towards OLAF as required by Article 2(4). Accordingly, the Ombudsman decided that these allegations should not be taken up in his inquiry.

Lastly, with regard to the complainant's claim, the Ombudsman found it unclear how the complainant wished the claim to be understood. The Ombudsman therefore decided not to include it in the present inquiry on the basis of Article 2(3) of his Statute.

OLAF was therefore asked to provide an opinion on the following allegations made by the complainant:

1. OLAF failed properly to deal with his submissions, in which he supplied it with fraud-related information. In support of this allegation, the complainant argued that, in numerous instances, OLAF (i) failed to reply; (ii) replied belatedly and/or (iii) failed to reply in the language chosen by the sender. He also pointed out that (iv) certain OLAF staff failed to respect the fact that he was sending the correspondence in question in his private capacity and telephoned him at his office.
   
2. OLAF's staff policy was inadequate. In particular, the complainant argued that it was problematic that (i) certain staff had insufficient linguistic skills, and (ii) external staff dealt with correspondence alleging fraud in the administration of their country of origin. In this context, the complainant drew particular attention to the case of a Polish person who had previously been employed as a spokesperson for a Polish authority and who, according to him, subsequently dealt with EU correspondence criticising that same authority.
   
3. In its letter of 25 October 2005, OLAF failed properly to deal with the matters he had raised, in particular since (i) the letter was imprecise; (ii) OLAF failed to admit errors it had committed; (iii) the information he had provided had wrongly been characterised as "repetitive" and "pointless"; and (iv) the letter contained unfair comments.

In his opening letter to OLAF, the Ombudsman noted that some of the events the complainant referred to had taken place before August 2004, that is, outside the two-year time-limit for complaints set out in Article 2(4) of his Statute. The complainant had argued however that there was a "causal link of events", which was why these prior events should be taken into account as well. The Ombudsman asked OLAF for its position as regards this issue.

THE INQUIRY

OLAF's opinion

In its opinion, OLAF explained the background to the case. It noted that the complainant had forwarded Polish press articles to OLAF's central mailing address on 19 separate occasions . On 22 February and 7 April 2005, he sent e-mails in English to OLAF's Director General, complaining about the lack of feedback on the press articles he had forwarded to OLAF. He received replies in English on 23 February 2005 and 14 April 2005, respectively. On 7 April 2005, OLAF acknowledged receipt (in Polish) of the complainant's communication of the same day. The acknowledgement had been translated into Polish by a seconded national expert. Further acknowledgments of receipt were sent on six separate occasions between June and September 2005. On five more occasions between May and September 2005, the complainant sent letters to OLAF's Director General in which he complained about OLAF's failure (i) to reply to some of his correspondence in the appropriate language and (ii) to respond to other communications he had sent. OLAF did not reply to these further letters.

On 30 August 2005, OLAF's staff contacted the complainant at his office and enquired whether he had further information concerning the facts described in the press articles he had sent. The complainant could not provide further information. On 8 September 2005, the complainant drew OLAF's attention to an error on its website . OLAF thereafter corrected the error, but did not otherwise reply to this letter. By letter dated 25 October 2005, OLAF informed the complainant that it would discontinue further correspondence with him.

Before addressing each one of the allegations made by the complainant, OLAF explained that, according to Article 2(4) of the Ombudsman's Statute, a complaint has to be made within two years of the date on which the relevant facts come to the attention of the person lodging the complaint. Since the complaint had been received by the Ombudsman in August 2006, any allegations based on facts prior to August 2004 should, in OLAF's view, be considered to be inadmissible. OLAF noted that the complainant had referred to the "causal link of events", which is a principle of national administrative law. This principle, however, cannot take precedence over the Ombudsman's Statute and the rules set out therein.

OLAF referred to the allegations made in the complaint:

(1) OLAF's handling of the press articles submitted by the complainant: In OLAF's view, it was inexpensive and easy for the complainant to submit press articles in electronic form. For OLAF, however, the receipt of these articles created a substantial administrative burden, as its services were obliged to register, read, acknowledge receipt, often translate, process and answer these communications and to contact the complainant to request further information. In accordance with its specific tasks, OLAF has to assess each piece of information it receives in order to establish whether it contains any indication of fraud, corruption or any other serious irregularity falling within its competence. The mere forwarding of press articles to OLAF, however, is unlikely to have any added value, as OLAF itself keeps track of press articles relevant to its mandate.

Between January and September 2005, the complainant forwarded 15 Polish press articles to OLAF in electronic form. His cover letters simply indicated that he was submitting the articles, but did not draw OLAF's attention to any particular aspects thereof, provide any corroborating information, or request any particular reply from OLAF. Even assuming that these communications could be regarded as "letters" for the purposes of Section 4 (Dealing with Enquiries) of the Code, they were answered by OLAF's letters of 23 February and 14 April 2005. In OLAF's view, any additional effort to react to the complainant's continued forwarding of press articles would have been disproportionate.

In response to the complainant's communication of 8 September 2005 informing OLAF of an error on its website, OLAF corrected the error. OLAF apologised for not having sent a reply to the complainant in this regard. However, by correcting the erroneous link on its website, OLAF gave full recognition to the complainant's correspondence.

Regarding the language of the reply, the complainant's e-mails of 22 February and 7 April 2005 were in English, and OLAF's letters of 23 February 2005 and 14 April 2005 were also written in English.

OLAF apologised for neglecting to observe the complainant's alleged request that he be contacted at home rather than at his office, but it noted that the contacts had been made during office hours and, in its view, since the complainant had only forwarded press information, it did not appear that the complainant specifically needed to have his right to privacy at his office respected.

(2) OLAF's staff policy: OLAF noted that it has approximately 400 staff members. According to Article 28 of the Staff Regulations, an official may be appointed only on condition that he or she produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language to the extent necessary for the performance of his duties. Moreover, Article 45(2) provides that, before their first promotion after recruitment, officials shall be required to demonstrate the ability to work in a third language among those referred to in Article 314 of the EC Treaty. In line with the Commission's policy, all staff members are expected further to develop their language skills. Similar requirements apply in the case of temporary agents and contract staff (Articles 12(2)(e) and 82(3)(e) of the Conditions of Employment of Other Servants of the Communities).

OLAF's investigative function is often exercised in close co-operation with the competent law enforcement authorities of the Member States. OLAF employs staff with specialist knowledge in national criminal and procedural law, inquiry techniques and intelligence. This need in human resources cannot always be satisfied by means of open competitions or by recruiting permanent officials. For this reason, OLAF employs temporary agents, auxiliary agents, contract agents and seconded national experts, as well. Their obligations as regards confidentiality are essentially the same as those of permanent officials. OLAF outlined that, in its view, the complainant did not allege that the person concerned had breached this obligation. As regards a potential conflict of interest, OLAF pointed out that the role of the person concerned was limited to the translation of the reply and did not involve the exercise of the power conferred on OLAF.

(3) OLAF's reply to the complainant of 25 October 2005: In OLAF's view, its letter to the complainant was appropriate, since it stated the reasons for discontinuing any further correspondence with him, on the grounds that the complainant's exchanges were repetitive and pointless, and therefore fell within the scope of Section 4 of the Code. OLAF did not recognise in its reply that it had committed any error. OLAF's services collect information from many public sources, for the purposes of strategic and operational intelligence. Moreover, its communication unit monitors the media in order to assess press articles concerning OLAF's activities. Therefore, forwarding to OLAF press articles published in the leading Polish newspapers was of limited use for the pursuance of its mandate. OLAF considered that, since the complainant had forwarded to it 15 articles in a nine-month period, the need for an acknowledgement of receipt and an answer was merely a repetitive exercise.

In OLAF's view, the complainant's only purpose in seeking a reply in Polish was to support his claim that the institution was ill-equipped to handle cases from the new Member States. In its opinion, OLAF left to the Ombudsman to decide whether it should apologise for not having replied to the complainant's letter in Polish.

However, OLAF expressed its regret for not having sent a specific reply to complainant's letter of 8 September 2005 and for neglecting to respect his request to be contacted at home rather than at his office. In all other respects, OLAF considered that the complaint was not well grounded.

The complainant's observations

In his observations, the complainant repeated the arguments made in his complaint.

The complainant added that citizens may feel intimidated when OLAF employs officials from the national administrations of the Member States, since this situation may lead to irregular practices, and dissuade individuals in possession of valuable sources of information from approaching the institution with that information. In the complainant's view, the EU administration should take all reasonable steps to protect informants.

The complainant argued that citizens sending information deserve a reply. In his view, it is not up to citizens to conduct an in-depth research about the pertinence of press articles. On the contrary, if citizens were to undertake their own research or give lengthy explanations, OLAF would be inclined to consider that they are encroaching on its domain. As a result, c onscientious and engaged citizens willing to help OLAF would be discouraged from doing so.

The complainant wondered why OLAF should not have the capacity to reply to citizens sending information. He added that, in well-organised structures, most of the mail from citizens is dealt with through the use of polite standard letters, available in several languages, which by no means create an additional workload. By not following a similar practice, OLAF showed an unfriendly approach to citizens' correspondence.

Even though OLAF had claimed that several of the letters sent by the complainant were repetitive, he considered that these letters could not be classified as such since the subject-matter of each letter was different to that of the others. In his view, it was also arbitrary to claim that, between January and September 2005, he had forwarded 15 Polish press articles, by just selecting a particular period. In his view, it would have been more accurate to indicate that, from the end of August 2002 until the end of September 2005, he had sent 19 pieces of information, which meant that, on average, he had sent information once every two months. The complainant underlined that 18 of his exchanges had been handled inadequately.

The complainant strongly disagreed with OLAF's assertion that he may have abused his right to have his letters replied to in the language of his correspondence. He pointed out that OLAF was not able or willing to reply to his correspondence in Polish, immediately before and even after accession.

THE DECISION

1 Preliminary remark

1.1 Certain correspondence from the complainant to OLAF was sent before August 2004. It therefore took place more than two years before the submission of the complaint. The complainant argues that the Ombudsman should be allowed to take these exchanges into account in his inquiry since they reflected a "causal link of events" in relation to the negligent handling of his correspondence. He notes that OLAF's reply of 25 October 2005 had indeed made reference to his entire correspondence.

1.2 In its opinion, OLAF argues that, s ince the complaint had been lodged with the Ombudsman in August 2006, any allegations based on facts prior to August 2004 should be considered to be inadmissible in light of the two-year deadline set out in Article 2(4) of the Statute of the European Ombudsman . It also points out that the "causal link of events", to which the complainant refers, is a principle of national administrative law, which cannot take precedence over the Statute of the European Ombudsman and the rules set out therein.

1.3 As laid down in Article 2(4) of the Statute of the European Ombudsman:

"A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint (...)"(8).

The Ombudsman notes that the facts referred to in the complaint involve correspondence between the complainant and OLAF from 31 August 2002 to 3 October 2005(9). Some of these exchanges did take place more than two years before the date on which the complaint was lodged(10). The Ombudsman is mindful of the fact that the complainant mentioned these exchanges in order to illustrate what he considers to be a pattern of inadequate behaviour on the part of OLAF.

The Ombudsman is of the view that the complainant has not made separate specific allegations in relation to each separate correspondence with OLAF, but rather has made a single allegation that the responses to his letters were inadequate. In light of the above, the Ombudsman has concluded that it appears appropriate to consider all the evidence submitted by the complainant as a whole. The Ombudsman therefore considers that the complaint fulfils the conditions set out in Article 2(4) of his Statute.

2 Alleged failure on the part of OLAF properly to deal with the complainant's correspondence

2.1 The complainant alleges that OLAF failed properly to deal with his submissions, in which he supplied it with fraud-related information. In support of this allegation, the complainant argues that, in numerous instances, OLAF (i) failed to reply, (ii) replied belatedly and/or (iii) failed to reply in the language chosen by the sender. He also points out that (iv) certain OLAF staff, by telephoning him at his office rather than on his private number, failed to respect the fact that he was sending the correspondence in question in his private capacity.

2.2 OLAF explains that, between January 2005 and September 2005, the complainant forwarded 15 Polish press articles to its services in electronic form, without any indication that he expected any reply. OLAF argues that these communications were answered on 23 February 2005 and 14 April 2005 and that any additional effort to react to the complainant's continued forwarding of press articles would have been disproportionate.

In response to the complainant's communication of 8 September 2005 informing OLAF of an error on its website, OLAF corrected the error. OLAF also apologised for not having sent a reply to the complainant in this regard.

As regards the language of the reply, OLAF argues that the complainant's e-mails of 22 February and 7 April 2005 were in English, and OLAF's letters of 23 February and 14 April were also written in English.

OLAF apologises however for neglecting to observe the complainant's request that he be contacted at home rather than at his office.

2.3 In his observations, the complainant takes the view that citizens who send potentially pertinent information deserve a reply, and questions why OLAF should not have the capacity to reply to citizens who send information to its services. He underlines that his letters in Polish to OLAF had not been replied to in that language.

Failure to Reply to the Complainant's E-Mails

2.4 The Ombudsman notes that, in its relations with the public, OLAF applies by analogy the Commission's Code of Good Administrative Behaviour(11) ("the Code"). Section 4 (Dealing with Enquiries) of the Code states as follows:

"Correspondence

In accordance with Article 21 of the Treaty establishing the European Community, members of the public who write to the Commission shall receive a reply in the language of their initial letter, provided that it was written in one of the official languages of the European Union.

A reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter by the responsible Commission department.

(...)

Electronic mail

Staff shall reply to e-mail messages promptly (...).

However, where the e- mail message is, by its nature, the equivalent of a letter, it shall be handled according to the guidelines for handling correspondence and shall be subject to the same deadlines. (...)".

2.5 The Ombudsman notes that, in the period referred to in the complaint, namely, from 31 August 2002 to 3 October 2005, the complainant contacted OLAF on 19 occasions. He attached to his e-mails press articles from a number of newspapers concerning information on potential instances of fraud.

The Ombudsman notes that, in all cases, these press articles were accompanied by a brief communication to OLAF from the complainant (or from his spouse). In these communications, the complainant (or his spouse) outlined the material being submitted and specifically asked the institution to take appropriate action in response to the news reports.

It appears that OLAF acknowledged certain letters from the complainant, but did not reply to all the complainant's correspondence, namely the correspondence of 7 May 2004, 7 April 2005, 26 April 2005, 13 July 2005, and 8 August 2005.

2.6 The Ombudsman considers that it is not always necessary for an institution or body to reply to correspondence which is clearly intended, by the citizen, to be "for information". The Ombudsman does not, however, consider that the complainant's correspondence to OLAF was intended "for information". Rather, the complainant formulated specific requests in his correspondence. The Ombudsman takes the view that the complainant's electronic messages to the institution should thus be characterised as communications. As such, each communication should have received a written reply pursuant to Section 4 of the Code.

The Ombudsman notes that, as illustrated by OLAF's reply to the complainant dated 23 March 2005, OLAF, acknowledged that all the complainant's correspondence should have been replied to, and acknowledged that OLAF's failure to do so was regrettable(12).

The Ombudsman also notes that, as the complainant has pointed out, OLAF could have followed the example of other Community institutions and bodies in which, most of the mail from citizens is dealt with through the use of polite standard letters, available in several languages. The Ombudsman agrees with the complainant that such an approach by no means create an unreasonable workload.

The Ombudsman has therefore concluded that, by failing to reply to the submissions made by the complainant, OLAF did not comply with Section 4 of the Code. This constitutes an instance of maladministration.

Delay to reply to the complainant's e-mails

2.7 In accordance with Section 4 of the Code , a reply to a letter addressed to the Commission has to be sent within 15 working days from the date of receipt of the letter by the responsible Commission department.

In view of the available information, it appears that OLAF's replies to some the complainant's correspondence(13) were not sent to him within the 15-day delay foreseen in the above provision of the Code.

This constitutes an instance of maladministration.

Language of the reply to the complainant's e-mails

2.8 In accordance with Article 21 of the EC Treaty and Section 4 of the Code, members of the public who write to the Commission have the right to receive a reply in the language of their initial letter, provided that it was written in one of the official languages of the European Union.

In view of the available information, it appears that the complainant addressed most of his correspondence to OLAF in Polish. OLAF's replies to some of the communications in Polish were drafted however in English(14).

The Ombudsman recalls, in this respect that, as noted in Point 2.6 above, OLAF could have dealt with the correspondence through the use of polite standard letters, available in several languages.

The Ombudsman considers that, by failing to reply to the complainant's correspondence in the language of the initial e-mail, OLAF did not comply with Article 21 of the EC Treaty and Section 4 of the Code.

This constitutes an instance of maladministration.

Address at which the complainant was contacted

2.9 The Ombudsman recalls that the complainant is an EU official. The Ombudsman points out that, as set out in Article 22(a) of the Staff Regulations, officials have the duty to inform OLAF in writing of any information related to the performance of his/her duties which may give rise to a presumption of the existence of potential illegal activity, including fraud or corruption, detrimental to the interests of the Communities. It has not, however, been argued that the complainant provided information to OLAF which related the performance of his specific duties as an official. As such, it cannot be presumed that the correspondence from the complainant was correspondence made subject to Article 22(a) of the Staff Regulations.

Officials, as other citizens, however also have the right to address OLAF in order to inform it of any action which, in their view, may run counter to the interests of the Communities. In view of the subject matter of his correspondence, which does not appear to relate the performance of his specific duties as an official, it must be presumed that when the complainant wrote to OLAF, he was acting in a private capacity.

The fact that a citizen wrote to the OLAF in a private capacity does not necessarily imply an automatic obligation on the part of OLAF to contact the complaint at a private address, telephone number or email. The Ombudsman considers that, in the absence of any specific request from the complainant, it would have not have been inappropriate for OLAF to contact the complainant at his work number.

In this instance, however, it appears that, when the complainant specifically asked OLAF to use his personal e-mail address and private telephone number for any future contact. This private e-mail address and private telephone number was included in all his correspondence.

Despite the complainant's explicit request, the Ombudsman notes that OLAF contacted him at his professional e-mail address and telephoned him at his professional number. The Ombudsman considers that OLAF's contacts with him should have been carried out with due regard to his stated request. The Ombudsman finds it regrettable that OLAF failed to take account of the complainant's explicit request.

Since OLAF has recognised that it neglected to observe the complainant's request that he should be contacted at his private e-mail address or private telephone number, rather that at his office, and has apologised for this oversight, the Ombudsman does not consider it necessary to carry out further inquiries as regards this aspect of the case.

3 Inadequacy of OLAF's staff policy

3.1 The complainant alleges that OLAF's staff policy was inadequate. In particular, the complainant argues that it was problematic that (i) certain staff had insufficient linguistic skills, and (ii) external staff dealt with correspondence alleging fraud in the administration of their country of origin.

In this context, the complainant draws particular attention to the case of a Polish person who had been employed as a spokesperson for the Polish authorities before working for OLAF. The complainant argued that this Polish national dealt with correspondence to OLAF concerning a complaint against his former employer.

3.2 OLAF argues that its needs as regards human resources cannot always be satisfied by means of open competitions, or by recruiting permanent officials. As a result, it also employs temporary agents, auxiliary agents, contract agents and seconded national experts, whose obligations as regards confidentiality are the same as those of permanent officials.

As regards linguistic knowledge, OLAF recalls that its officials comply with Article 28 of the Staff Regulations, so that they are only appointed on condition that they produce evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his/her duties. Moreover, before being promoted after recruitment, they are required, pursuant to Article 45(2) of the Staff Regulations, to demonstrate their ability to work in a third language among those referred to in Article 314 of the EC Treaty. Similar requirements apply to temporary agents and contract staff (Articles 12(2)(e) and 82(3)(e) of the Conditions of Employment of Other Servants of the Communities, respectively).

In connection with the individual official referred to in the complaint, OLAF notes that, in its view, the complainant did not imply that the official in question had acted in breach of his obligations. As regards a potential conflict of interest, OLAF points out that the role of the person concerned was limited to the translation of an answer letter which did not involve the exercise of the power conferred on OLAF.

OLAF's staff policy

3.3 The Ombudsman notes that, as the Community Courts have held, the institutions have a wide discretion in their choice of the most appropriate means for meeting their personnel requirements(15).

The complainant has referred to a number of individual situations which, in his view, call into question the proper behaviour of individual officials or agents without substantiating any particular cases where such misbehaviour took place. In the absence of any further relevant information put forward by the complainant regarding OLAF's staff policy, the Ombudsman considers that he cannot infer that OLAF exceeded its discretion in its choice of the most appropriate means for meeting its personnel requirements.

In view of the available information, the Ombudsman finds that there appears to be no evidence which may lead him to question OLAF's general staff policy. The Ombudsman has concluded therefore that there appears to be no maladministration as regards this aspect of the case.

Linguistic skills of OLAF's staff

3.4 The Ombudsman notes that the complainant argues that a number of OLAF officials appear to have "insufficient" linguistic skills . The complainant appears to support his assertion by the fact that some of the letters he wrote to OLAF in Polish were answered in English.

As regards the linguistic skills specific OLAF staff, Article 28 of the Staff Regulations states that:

"[a]n official may be appointed only on condition that […] he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties."

In this respect, the Ombudsman notes that the fact that certain staff in OLAF might not speak Polish is irrelevant so long as each official meets the requirements set out in the Staff Regulations, namely that they can communicate, to the requisite level of proficiency, in at least two official languages.

The Ombudsman also notes that the specific issue of whether OLAF was in a position to meet its obligations to communicate with citizens in the official languages of the citizens' choice has already been considered in point 2.8 above. The Ombudsman notes that it is for OLAF to decide how best to comply with this obligation. The fact that OLAF may choose to comply with this obligation through the use of its own staff resources, including the use of temporary agents, auxiliary agents, contract agents and seconded national experts is not relevant provided, effectively, OLAF meets its obligations to communicate with citizens in the official languages of the citizens' choice. The Ombudsman also notes that, in the event OLAF has insufficient staff resources of its own, it is legitimate to meet this obligation to citizens through the use of the translation services available OLAF.

The Ombudsman has therefore concluded that there appears to be no maladministration as regards this aspect of the case.

Work assigned by OLAF to seconded national experts

3.5 The Ombudsman recalls that, as set out in Article 11 of the Staff Regulations, all EU officials and agents are subject to a duty of loyalty, which states as follows:

"An official shall carry out his duties and conduct himself solely with the interests of the Communities in mind; he shall neither seek nor take instructions from any government, authority, organization or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Communities."

Furthermore, Article 11(a) of the Staff Regulations addresses the question of potential conflicts of interest for EU officials as follows:

"An official shall not, in the performance of his duties and save as hereinafter provided, deal with a matter in which, directly or indirectly, he has any personal interest such as to impair his independence, and, in particular, family and financial interests."

The above rules have been reproduced verbatim in Article 7 of the Commission Decision laying down rules on the secondment of national experts to the Commission(16).

3.6 In view of the above legal provisions, the Ombudsman notes that the obligation of loyalty applicable to EU officials as well as seconded national experts is drafted in very broad terms. Thus, this obligation applies to the performance of any duty assigned to him/her. This obligation also applies to any potential instruction from a government, authority, organisation or person outside the institution of the official, regardless of whether the staff member in question has a connection with the government, authority, organisation or person seeking to influence him/her or is a national of the country in question.

The Ombudsman further notes that the fact that an agent is dealing with a matter concerning his/her own Member State is not in itself a reason for a potential conflict of interest, since such a situation would only arise if the agent had a personal interest in the matter which might impair his/her independence in dealing with the issue.

3.7 The Ombudsman finds that the complainant has submitted no information which may lead him to believe that the seconded national expert in question had a personal interest in the correspondence he had been assigned.

In the absence of any further evidence, the Ombudsman considers that there appears to be no maladministration as regards this aspect of the case.

4 OLAF's reply to the letter from the complainant of 25 October 2005

4.1 The complainant alleges that OLAF's letter of 25 October 2005, in reply to his correspondence of 3 October 2005 in which he described OLAF's inadequate action as regards the information he had submitted since 2002 and requested that the situation should be corrected, failed properly to deal with the matters he had raised. This was so, in particular, since (i) the letter was imprecise, (ii) OLAF failed to admit errors it had committed, (iii) the information he had provided had wrongly been characterised as "repetitive" and "pointless" and (iv) the letter contained unfair comments regarding his position as an EU official and as a European citizen.

4.2 OLAF argues that its reply of 25 October 2005 was appropriate since it stated the reasons for discontinuing any further correspondence with the complainant on the grounds that, as set out in Section 4 of the Code , it was repetitive and pointless. In OLAF's view, receiving press articles which had been published in the leading Polish newspapers was of limited use for the pursuance of its mandate. OLAF considers that no error was made in its reply.

4.3 The Ombudsman has carefully reviewed both the letter from the complainant to OLAF dated 3 October 2005 and the reply from OLAF of 25 October 2005.

In his letter of 3 October 2005, the complainant explained that, since 2002, he had frequently sent information available in the press concerning fraud-related issues to OLAF, through his private postal address and e-mail account. The complainant mentioned 18 exchanges he had had with OLAF from 31 August 2002 until 28 September 2005, which showed that, in his view, OLAF had handled his correspondence in a superficial and wrongful manner. The complainant noted that OLAF had often not replied to his correspondence; that the replies received had been sent well after the two-week deadline foreseen in the Code; and that in these cases the replies were not drafted in the language of his original correspondence. The complainant also noted that, despite having drawn OLAF's attention to the problem, the situation had not improved. He therefore asked OLAF to take appropriate action and to reply to his concerns.

In its reply of 25 October 2005, OLAF stated that, for a number of years, the complainant had sent OLAF press articles in Polish which, after having been evaluated, did not lead to the opening of any inquiry, except in one case. OLAF informed the complainant that, in the future, it had decided not to continue any further correspondence with him, pursuant to Section 4 of the Code, on the grounds that his letters were repetitive, involved the same questions, and did not contribute to OLAF's work. OLAF added that the complainant's letters unreasonably criticised the functioning of the institution, especially with respect to its staff recruitment policy.

4.4 The Ombudsman notes that some of the aspects outlined by the complainant in his letter to OLAF of 3 October 2005, have already been addressed in his inquiry, in particular as regards OLAF's failure to reply to some of the complainant's correspondence; to send its replies within the deadline foreseen in the Code; to reply in the language used in the original letter; and to contact the complainant at his home address, as requested.

The Ombudsman has taken a position on these issues in points 2.6, 2.7, 2.8 and 2.9 respectively. There is no need to repeat these findings.

4.5 The complainant has also complained against an additional aspect included in OLAF's reply of 25 October 2005 concerning the institution's decision to discontinue any further exchange with him, on the basis of Section 4 of the Code.

In connection with this aspect of the case, the Ombudsman recalls that Section 4 in fine of the Code states as follows:

"These rules [of the Code] do not apply to correspondence which can reasonably be regarded as improper, for example, because it is repetitive, abusive and/or pointless. Then the Commission reserves the right to discontinue any such exchanges of correspondence."

In the absence of a definition in the Code of what should be understood as repetitive, abusive and/or pointless correspondence, the Ombudsman takes the view that, since the application of these terms may result in a limitation of the right of citizens to have a reply to their correspondence, enshrined in Article 21 of the EC Treaty, they should be interpreted restrictively.

4.6 The Ombudsman finds it reasonable that OLAF concluded that the materials sent by the complainant would not contribute to the pursuit of potential inquiries by its services in view of the fact that, in his correspondence, the complainant forwarded to OLAF information which was already published by the press, The Ombudsman is of the view, however, that OLAF was under an obligation to reply to the complainant until such time that it reached the conclusion that the complainant's correspondence was "repetitive" or "pointless" and informed the complainant accordingly. In sum, a decision on the part of OLAF that correspondence is "repetitive" or "pointless" does not have retroactive effects.

The Ombudsman is also mindful of the fact that the complainant was certainly acting in good faith when sending these materials and was genuinely trying to help OLAF. In this respect, the Ombudsman also regrets that the tone of OLAF's reply to the complainant informing him of its decision to halt any further correspondence was worded in an abrupt manner. In the Ombudsman's view, OLAF might have conveyed its point of view on the lack of added value in the complainant's correspondence in a more citizen-friendly manner.

Given the nature of this problem, and since OLAF, in its opinion, has recognised that errors occurred, the Ombudsman does not consider it justified to pursue any further inquiries as regards this aspect of the case.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

The Ombudsman has concluded that OLAF failed properly to deal with the complainant's correspondence in the manner laid down in Section 4 of the Code, since:

(i) OLAF did not reply at all to some of the complainant's correspondence, namely that of 7 May 2004, 7 April 2005, 26 April 2005, 13 July 2005, and 8 August 2005;

(ii) OLAF's replies to some of the complainant's correspondence(17) were not sent within the 15-day delay foreseen in the Code;

(iii) OLAF's replies to some of the complainant's communications in Polish were not drafted in the language of the initial e-mail, but in English(18), in breach of Article 21 of the EC Treaty.

This failure to deal properly with the complainant's correspondence constitutes an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

OLAF's Director General, as well as Commission's Vice-President Kallas, will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 17, 6.10.1958, p. 385–386.

(2) Communications from the complainant to OLAF of 31 August 2002, 2 December 2003, 7 May 2004, 11 January 2005, 12 January 2005, 3 March 2005, 7 April 2005, 26 April 2005, 3 June 2005, 6 June 2005, 20 June 2005, 13 July 2005, 20 July 2005, 22 July 205, 8 August 2005, 15 September 2005, 21 September 2005, 28 September 2005 and 3 October 2005.

(3) OLAF's reply to the complainant's letter of 20 July 2005.

(4) OLAF's reply to the complainant's correspondence of 31 August 2002, 3 June 2005, 6 June 2005, 20 June 2005, 22 July 2005, 15 September 2005, 21 September 2005, and 28 September 2005.

(5) OLAF's reply to the complainant's correspondence of 31 August 2002, 2 December 2003, 11 January 2005, 12 January 2005, 3 March 2005, 3 June 2005, 6 June 2005, 20 June 2005, 22 July 205, and 3 October 2005.

(6) OLAF did not reply to the complainant's correspondence of 7 May 2004, 7 April 2005, 26 April 2005, 13 July 2005, and 8 August 2005.

(7) OLAF's reply to the complainant's correspondence of 3 March 2005.

(8) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113/15.

(9) Communications from the complainant to OLAF of 31 August 2002, 2 December 2003, 7 May 2004, 11 January 2005, 12 January 2005, 3 March 2005, 7 April 2005, 26 April 2005, 3 June 2005, 6 June 2005, 20 June 2005, 13 July 2005, 20 July 2005, 22 July 205, 8 August 2005, 15 September 2005, 21 September 2005, 28 September 2005 and 3 October 2005.

(10) These were, namely, the communications from the complainant to OLAF of 31 August 2002, 2 December 2003, and 7 May 2004.

(11) Commission's Code of Good Administrative Behaviour for Staff of the European Commission in their relations with the public; OJ 2000 L 267, p. 63.

(12) See letter of 23 March 2005 from OLAF's Director General to the complainant.

(13) OLAF's reply to the complainant's correspondence of 31 August 2002, 2 December 2003, 11 January 2005, 12 January 2005, 3 March 2005, 3 June 2005, 6 June 2005, 20 June 2005, 22 July 205, and 3 October 2005.

(14) OLAF's reply to the complainant's correspondence of 31 August 2002, 3 June 2005, 6 June 2005, 20 June 2005, 22 July 2005, 15 September 2005, 21 September 2005, and 28 September 2005.

(15) Case T-45/01 Sanders and Others v Commission [2004] ECR II-3315, paragraph 113; Case T-144/02 Eagle and Others v Commission [2004] ECR II-3381, paragraph 113; Joined Cases 341/85, 251, 258, 259, 262 and 266/86, 222 and 232/87 Van der Stijl and Others v Commission [1989] ECR 511, paragraph 11.

(16) C (2006)2033 of 1 June 2006.

(17) OLAF's reply to the complainant's correspondence of 31 August 2002, 2 December 2003, 11 January 2005, 12 January 2005, 3 March 2005, 3 June 2005, 6 June 2005, 20 June 2005, 22 July 205, and 3 October 2005.

(18) OLAF's reply to the complainant's correspondence of 31 August 2002, 3 June 2005, 6 June 2005, 20 June 2005, 22 July 2005, 15 September 2005, 21 September 2005, and 28 September 2005.