Strasbourg, 29 April 2008

Dear Mr X,

On 22 February 2007, you submitted a complaint to the European Ombudsman against the European Parliament concerning (a) its alleged failure to reply to your e-mail dated 27 January 2005 and (b) the alleged avoidable delay in informing you of the non-renewal of your contract as an auxiliary agent.

On 21 March 2007, I forwarded the complaint to the President of Parliament.

Parliament sent its opinion on 3 July 2007.

On 5 July 2007, I forwarded it to you with an invitation to make observations, which you sent on 23 August 2007.

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

THE COMPLAINT

Background: complaint 2939/2005/MF

On 7 September 2005, the complainant submitted to the European Ombudsman a first complaint (reference 2939/2005/MF) against Parliament.

According to the complainant, the relevant facts were, in summary, as follows:

The complainant worked for several years for the European Institutions, as an auxiliary agent.

On 1 March 2004, Parliament gave the complainant a contract for a post of auxiliary agent until 30 April 2004. His contract was then extended on five occasions, the last extension lasting until 28 February 2005. The complainant also learnt that a further extension of his contract from 1 March 2005 to 31 March 2005 had been requested by the Head of Unit "Finance and Budget" of Parliament.

On 10 January 2005, the complainant received a letter from Parliament in which he was requested to undergo, on 7 February 2005, a medical examination "in view of his recruitment"(“visite médicale d’engagement”)(1).

On the occasion of a telephone conversation with Parliament's Directorate-General ("DG") Presidency, he was informed that Parliament intended to replace all the auxiliary contracts, for which an extension had been asked beyond 28 February 2005, by "contractual agent" contracts which would take effect as from 1 March 2005. According to the complainant, such an extension had been requested for his contract.

On the occasion of a further telephone conversation held on 18 January 2005 with Parliament’s services, the complainant was informed that the auxiliary agents concerned would, during the second half of February 2005, receive an offer for a "contractual agent" contract by e-mail. He was in addition informed of his "future salary", as contractual agent, as from 1 March 2005.

On 27 January 2005, in view of the lack of any written communication informing him of the modification of his contract, the complainant sent a further e-mail to DG Personnel in which he raised a series of questions concerning the change of the contracts of auxiliary agents into "contractual agent" contracts. The complainant pointed out that he wished to obtain a written reply to his e-mail and pointed out that he never received any reply to his e-mail dated 27 January 2005.

The complainant further stated that there had been an avoidable delay on Parliament's part because it only informed him of the non-renewal of his contract three days before its expiry, despite the fact that he had already undergone the medical examination.

Afterwards, the complainant passed an open competition organised for the recruitment of English-speaking secretaries. He is currently working as an official for the European Commission.

In his complaint, the complainant submitted the following allegations:

1. Parliament had failed to reply to his e-mail dated 27 January 2005.
2. There was an avoidable delay on the part of Parliament when it informed him of the non-renewal of his contract.
3. Parliament had failed to inform the auxiliary agents of the replacement of their contracts and therefore committed an abuse of power when proposing them "contractual agent" contracts.
4. The auxiliary agents hired before 1 May 2004 were the victims of unfair treatment because their conditions of employment were not maintained under the new Staff Regulations.

The complainant claimed that Parliament should compensate the former auxiliary and temporary agents hired before 1 May 2004 for this unfair treatment.

The Ombudsman's approach to complaint 2939/2005/MF

By decision of 20 December 2005, the Ombudsman informed the complainant that he had decided to close the three first allegations on the basis of Article 2(4) and 2(8) of his Statute(2). The Ombudsman further informed the complainant that he could consider renewing his complaint with him, after having exhausted any internal remedies he might have made or after having made appropriate prior approaches to Parliament. The Ombudsman further informed the complainant that he had decided to close his fourth allegation and the related claim on the basis of Article 195 of the EC Treaty.

Present complaint 747/2007/MF

By letter of 22 February 2007, the complainant sent a further letter to the Ombudsman. He attached new documents to his letter, namely, a letter of 25 February 2005 from a Parliament Quaestor to the then Secretary-General of Parliament, concerning his professional situation, and the Secretary-General’s reply. In view of these documents, the complainant’s further letter was registered as a new complaint under reference 747/2007/MF.

In his complaint, the complainant stated that the internal remedies had been exhausted in his case and that the conditions of admissibility of his initial complaint 2939/2005/MF were met.

THE INQUIRY

The Ombudsman's approach

By letter of 21 March 2007, the Ombudsman confirmed to the complainant his decision of 20 October 2005 as regards the inadmissibility of his third and fourth allegations and related claim.

The Ombudsman further informed the complainant that he had decided to open an inquiry into his first two allegations which were the following:

1. Parliament had failed to reply to his e-mail dated 27 January 2005.
2. There was an avoidable delay on the part of Parliament when it had informed him of the non-renewal of his contract.

Parliament’s opinion

In its opinion, Parliament made, in summary, the following statements:

As regards Parliament’s alleged failure to reply to the complainant’s e-mail dated 27 January 2005

Parliament stated that the complainant’s e-mail of 27 January 2005 essentially constituted a request for further information concerning the complainant's own situation in the future.

Parliament acknowledged that it did not officially reply to the complainant’s request for information. However, in Parliament’s view, the previous contacts between the relevant Parliament departments and the complainant had enabled him to obtain information about the conditions governing contractual agent contracts, one of which might be awarded to him.

In his e-mail of 27 January 2005, the complainant requested information about the existence of "a document concerning Parliament's decision to replace auxiliary contracts by contractual agent contracts" and asked to obtain access to such a document in the event that it existed. In this regard, Parliament pointed out that, in January 2005, it had not taken a final decision on the replacement of auxiliary contracts by contractual agent contracts. The administrative arrangements relating to medical examinations, for example, had been made on a preparatory basis, with a view to the potential recruitment of agents. Provision had been made for the publication of information on the Intranet and for a potential meeting with auxiliary staff.

Parliament further stated that it was true to say that the complainant's request concerning its position went unanswered and was thus implicitly rejected, pursuant to Article 90(1) of the Staff Regulations. However, contrary to what the complainant stated in his complaint, he never submitted a complaint challenging that rejection, as required by the second paragraph of that Article. Parliament stated that the exchange of e-mails between Parliament’s Quaestor and the then Parliament’s Secretary-General could, in no way, be regarded as evidence that the complainant challenged the implicit rejection of his request for access to the document.

As regards Parliament’s alleged avoidable delay when informing the complainant of the non-renewal of his contract

Parliament stated that, in signing a fixed-term contract, the complainant should have been fully aware of the date on which his contract would expire, that is, on 28 February 2005. In the complainant’s case, Parliament stated that the Authority Empowered to Conclude Contracts of Employment had not, before 28 February 2005, officially forwarded to the complainant any offer concerning the renewal of his contract or employment on another contract.

Parliament further stated that the complainant did not have any legitimate expectations concerning either the extension of his contract or an offer of a contract as a contractual agent.

The complainant's observations

In his observations, the complainant stated that the aim of his e-mail of 27 January 2005 was to obtain written confirmation of information he had only been given orally, in order to put an end to uncertainties as regards his future career. He stated that he had never found any information on Parliament's website as regards the situation of auxiliary agents.

The complainant also disputed the arguments made by Parliament in its opinion to the Ombudsman, concerning the absence of a legitimate expectation that he would be offered a three-year contract.

THE DECISION

1 Preliminary comments on the admissibility of the present complaint and the Ombudsman's scope of inquiry

1.1 On 1 March 2004, the complainant commenced an auxiliary agent contract with Parliament. The term of this contract was until 30 April 2004. The complainant’s contract was then extended on five separate occasions, the last extension lasting until 28 February 2005. On 27 January 2005, the complainant sent an e-mail to Parliament’s Directorate-General ("DG") Personnel in which he requested information on his future professional situation.

In his complaint to the Ombudsman, the complainant alleged that he had never been given any reply to his e-mail of 27 January 2005. He further alleged that there had been an avoidable delay on the part of Parliament, when it eventually informed him of the non-renewal of his contract.

(1) Preliminary comments on the admissibility of the complainant’s first allegation

1.2 The Ombudsman notes that, in its opinion, Parliament acknowledged that the complainant's request of 27 January 2005 remained unanswered, and was thus implicitly rejected, pursuant to Article 90(1) of the Staff Regulations. However, Parliament argued that the agent never submitted a complaint challenging that rejection, as required by Article 90(2) of the Staff Regulations. Parliament stated that the exchange of e-mails between Parliament’s Quaestor and Parliament’s Secretary-General could, in no way, be regarded as evidence that the complainant had challenged the implicit rejection of his request for access to the document.

1.3 In reply to Parliament’s argument that the complainant did not use the Article 90(2) procedure as regards his request for information, the Ombudsman would like to uphold his position adopted in his decision of 20 December 2005 on the inadmissibility of the complainant’s initial complaint 2939/2005/MF, pursuant to which, given the sequence of events and the fact that the complainant had left Parliament’s services, it appeared difficult to ascertain whether he was in position to make use of the internal remedies foreseen by Article 90 of the Staff Regulations.

In any event, the Ombudsman would like to point out that, in case of an alleged failure to reply to a citizen’s letter, the citizen who then lodges a complaint with the Ombudsman is not required to make any further administrative approaches to the relevant institution.

(2) The Ombudsman's scope of inquiry

1.4 The Ombudsman further notes that Parliament, in its opinion to the Ombudsman, and the complainant, in his observations, raised arguments other then the issue of the failure to respond to the email of 27 January 2005, namely, in relation to the absence or existence of legitimate expectations that the complainant’s contracts would be extended beyond 28 February 2005.

1.5 The Ombudsman would like to point out that these issues constitute new allegations that were not raised in the complainant's original complaint. They therefore fall outside the scope of the present inquiry and will not be dealt with here.

2 Parliament’s alleged failure to reply to the complainant’s e-mail dated 27 January 2005

2.1 In his complaint to the Ombudsman, the complainant alleged that he had never been received a reply to his e-mail of 27 January 2005.

2.2 In its opinion, Parliament stated that the complainant’s e-mail of 27 January 2005 essentially constituted a request for further information concerning the complainant's own professional situation in the future and went on to acknowledge that it did not officially reply to it. It further pointed out that, in January 2005, it had not taken a final decision on the replacement of auxiliary contracts by contractual agent contracts.

2.3 In his observations, the complainant stated that the aim of his e-mail of 27 January 2005 had been to obtain written confirmation of information that had only been given to him orally, in order to put an end to uncertainties as regards his future career.

2.4 The Ombudsman notes that it is good administrative practice for the administration to reply to letters or e-mails it receives within a reasonable period and in an adequate way. The Ombudsman finds it useful to recall that, pursuant to Article 17 of the European Code of Good Administrative Behaviour:(3)

1. "[t]he official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case no later than two months from the date of receipt. (...).

2. If a request or a complaint to the Institution cannot, because of the complexity of the matters which it raises, be decided upon within the above mentioned time-limit, the official shall inform the author thereof as soon as possible. (…)".

2.5 The Ombudsman notes that it emerges from Parliament’s opinion that, in 2005, there was indeed uncertainty as regards the situation of auxiliary agents, in particular concerning the renewal of contracts. The Ombudsman is of the view that the impact of the failure to respond is compounded by the fact that the complainant’s contract was due to expire on 28 February 2005. It was, in sum, understandable and reasonable for the complainant to be anxious to clarify whether his contract would be extended or not.

2.6 The Ombudsman takes the view that any letter or e-mail normally requires a written reply, even if the content of that reply is that a final decision is still pending. In these circumstances, the Ombudsman is of the view that Parliament’s failure to provide the complainant with a written reply to his request for information constitutes an instance of maladministration. A critical remark will therefore be made below.

3 Parliament’s alleged avoidable delay when informing the complainant of the non-renewal of his contract

3.1 In his complaint, the complainant alleged that there had been an avoidable delay on the part of Parliament as to when it informed him of the non-renewal of his contract. In order to sustain his allegation, the complainant pointed out that Parliament only informed him of the non-renewal of his contract three days before its end, despite the fact that he had already undergone the medical examination and had already been informed, on the occasion of a telephone conversation on 18 January 2005 with Parliament’s services, of his future salary as from 1 March 2005. In the course of the Ombudsman’s inquiry, the complainant clarified that Parliament’s alleged delay, when informing him of the non-renewal of his contract, had led him to have legitimate expectations as regards the extension of his contract.

3.2 In its opinion, Parliament stated that, in signing a fixed-term contract, the complainant should have been fully aware of the date on which his contract would expire, that is, on 28 February 2005. In the complainant’s case, Parliament stated that the Authority Empowered to Conclude Contracts of Employment had not, before 28 February 2005, officially forwarded to the complainant any offer concerning the renewal of his contract or employment on another contract.

3.3 The Ombudsman would like to highlight that there was no specific obligation, based on the applicable legal provisions of the Staff Regulations, for Parliament to inform the complainant of the non-renewal of his contract.

3.4 However, principles of good administration require that Parliament should act in a reasonable way and with courtesy. In this context, the Ombudsman finds it useful to recall that Article 12(1) of the European Code of Good Administrative Behaviour(4) reads as follows:

“The official shall be service-minded, correct, courteous and accessible in relations with the public. (…).”

The Ombudsman considers that this principle also applies to relations between an institution and its staff.

3.5 In the present case, the Ombudsman is of the view that it would have been reasonable and courteous for Parliament to inform the complainant, as soon as reasonably possible, that his contract would not be extended beyond 28 February 2005. A further remark will be made below in this regard.

3.6 The Ombudsman further notes that the complainant stated that he had been invited to the medical examination by letter of 10 January 2005. In this context, the Ombudsman notes that the letter inviting the complainant to undergo the medical examination started with the following sentence “In view of your “visite médicale d’engagement”, you are required to present, on 7 February 2005, to the clinic (…)”.

The Ombudsman notes that Parliament’s letter did not specify to the complainant that this invitation to the medical examination did not constitute any offer of employment.

3.7 The Ombudsman considers that it is appropriate that, in future, any letter sent to a candidate in the framework of a selection procedure inviting him/her for the medical examination should clearly mention that this invitation does not constitute an offer of employment. A further remark will be made below in this regard.

3.8 In light of the above, the Ombudsman considers that no further inquiries are justified into the complainant’s second allegation.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, the Ombudsman considers it necessary to make the following critical remark as regards the complainant’s first allegation:

The Ombudsman takes the view that a letter or e-mail normally requires a written reply. In these circumstances, the Ombudsman is of the view that Parliament’s failure to provide the complainant with a written reply to his request for information made in the e-mail of 27 January 2005 constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events that took place in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes this aspect of the case.

As regards the complainant’s second allegation, the Ombudsman considers it necessary to make the following two further remarks:

1. The Ombudsman is of the view that it would have been reasonable and courteous for Parliament to inform the complainant, as soon as reasonably possible, that his contract would not be extended beyond 28 February 2005.
2. The Ombudsman considers that, in future, any letter from Parliament sent to a candidate in the framework of a selection procedure inviting him/her for the medical examination should clearly mention that this invitation does not constitute an offer of employment.

The President of Parliament will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman understands that the complainant was requested to undergo a medical examination in view of his future recruitment by Parliament as a contract agent.

(2) The reason reference was made to both Article 2(4) and 2(8) of his Statute was because the Ombudsman considered that it was difficult to ascertain, in view of the sequence of events and the fact that the complainant had left Parliament’s services, whether he was still in a position to make use of the internal remedies foreseen by Article 90 of the Staff Regulations.

(3) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).

(4) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).