Strasbourg, 14 December 2007

Dear Ms S.,

On 11 April 2007, you submitted a complaint to the European Ombudsman against the European Commission.

On 16 May 2007, I forwarded the complaint to the President of the Commission.

On 23 July 2007, the Commission sent an opinion on your complaint and, on the next day, informed me that the opinion it had sent represented a wrong version and that a rectified version would be sent in the first days of September 2007.

On 8 August 2007, you called my services, and, on 5 September 2007, you sent a letter informing me that, on 23 May 2007, you had initiated proceedings before the European Union Civil Service Tribunal.

On 15 October 2007, the Commission informed my services, by letter, that it had learnt that you had initiated the above proceedings and therefore it decided not to send its rectified opinion.

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

THE COMPLAINT

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

The complainant is an official of the European Commission. Since 7 July 2005, she has worked in the Commission's Directorate-General ("DG") for Information Society and Media ("DG INFSO").

Her complaint referred to her probationary period in DG Enterprise ("DG ENTR") (from 1 October 2003 to 28 February 2005). The complainant worked in DG ENTR as a legal advisor, in a temporary post. Her first, intermediary report was positive.

Afterwards, due to the reorganisation of her unit, which was moved from Luxembourg to Brussels, her superior changed. The complainant found that the new working conditions did not make it possible for her to perform her duties correctly because of (i) the contradictory orders given to her; (ii) changes to her working profile without her consent (under the new profile she could not develop her professional capacities); (iii) a failure to inform her about business matters; and (iv) general difficulties in communicating with her new superior(s) and colleagues. She asked therefore for a transfer to another unit of the same DG. Her superiors did not agree to this request.

In August 2004, the complainant received her second intermediary report, which was negative. Subsequently, her working conditions deteriorated. The Head of Unit informed all staff of the complainant's second intermediary report during a meeting. Furthermore, he did not agree with the complainant's proposal of dates for her summer leave and her request for training or for sending her on missions abroad. In addition, he sent e-mails to her colleagues, which contained negative comments about her performance. The complainant's tasks were redistributed amongst the other employees, and her access to the common disk "S" was restricted. Finally, the Head of Unit started the evaluation procedure of her performance on the basis of Article 34(2) of the Staff Regulations which can lead to a dismissal before the probationary period ends.

The complainant took the view that the above conduct on the part of her Head of Unit constituted psychological harassment. In this regard, she attached to her complaint the opinion of a lawyer and the opinion of a psychologist.

The complainant approached the Staff Committee, Trade Unions and the Director of the Human Resources of DG ENTR.

She also started the informal procedure established by the Commission for victims of harassment. She approached two confidential counsellors and the Commission's Mediator, who all advised her and assisted her during meetings with the complainant's superiors.

On 26 October 2004, the complainant submitted a formal request for assistance under Article 24 of the Staff Regulations, which is foreseen for any person who feels she/he is the victim of harassment. The complainant stated that she was "harassed" and asked for the suspension of the evaluation of her performance on the basis of Article 34(2) of the Staff Regulations and, again, for transfer to another DG.

On 20 July 2005, DG Administration and Personnel ("DG ADMIN") replied to the complainant's request for assistance under Article 24 of the Staff Regulations. It stated that, on the basis of the evidence available, the unit of DG ADMIN responsible for complaints of harassments did not find that the relevant circumstances constituted a case of harassment and therefore the special administrative inquiry was not initiated.

In the meantime, on 15 January 2005, the complainant's evaluation report ("the Report") made under Article 34(2) of the Staff Regulations was completed and her dismissal was recommended. However, the Report Committee did not agree with that recommendation and proposed to DG ADMIN that the complainant should complete her probationary period in another DG over a further six-month period. Therefore, DG ADMIN transferred the complainant to DG INFSO, and she began this six-month period in March 2005.

The complainant was not satisfied in her new post and applied for Commission posts abroad (in New York). Her application was not successful. She asked for the Commission Mediator's intervention in this respect. She found that the negative decision on her posting abroad was due to the Report and to the fact that she submitted complaints against her superiors.

Therefore, on 17 August 2005, the complainant submitted a request under Article 90(1) of the Staff Regulations for damages to be paid to her as a victim of harassment.

She also submitted an appeal under Article 90(2) against the conclusions of the Report (that she should be dismissed without completing her probationary period) and asked for its annulment. On 19 December 2005, DG ADMIN found that, since the complainant had, in the meantime, been established as an official, there were no grounds to pursue her appeal against the Report's above conclusions.

On 20 January 2006, the complainant approached the President of the Commission and complained about the conduct of her superiors in DG ENTR. She was also received by Commissioner Kallas. Mr Kallas also addressed a letter to the complainant, in reply to her letter to the President of the Commission, in which Mr Kallas rejected her complaint.

On 13 March 2006, the complainant submitted another appeal under Article 90(2) of the Staff Regulations against the decision of 19 December 2005 concerning her request for damages. She also asked for access to some documents from her personal file.

On 17 May 2006, her appeal was rejected and only one document was released.

Then she approached the European Data Protection Supervisor ("EDPS") who helped her with her request for access to documents. When she became aware of new documents, she took the view that some other documents from her file were removed or changed without her knowledge.

Subsequently, on 8 November 2006, the complainant submitted an appeal under Article 90(2) and a request under Article 90(1) for compensation. She argued that a "parallel" personal file existed in her case and that the Report was drafted without giving her the possibility to defend herself.

DG ADMIN replied on 13 February 2007 and rejected her appeal and request. It found that the elements of her file which the complainant considered to be new did not provide enough grounds for the re-assessment of her Report and that no "parallel" personal file existed. It also stated that the complainant's appeal was "repetitive".

In addition, on 19 December 2006, the complainant addressed OLAF. On February 2007, OLAF found that it was not competent to deal with her case.

On 11 April 2007, the complaint submitted a complaint to the European Ombudsman.

She alleged that the Commission failed properly to deal with her allegations of harassment.

She claimed that the Commission should (i) provide her with the information about all the inquiries made within DG ENTR in relation to her case, and (ii) establish effective, preventive measures against harassment, as well as efficient means of redress in cases of harassment.

THE INQUIRY

The scope of the Ombudsman's inquiry

In his opening inquiry letter, the Ombudsman informed the complainant that his inquiries into complaints about harassment in the work place are limited to determining whether the relevant internal procedures were properly applied by the institution concerned.

The Commission's opinion on the Commission's letters of 23 and 24 July 2007

On 23 July 2007, the Commission sent an opinion on the complaint and, on the next day, informed the Ombudsman's services that the opinion it had sent reflected a wrong version and that a rectified version would be sent in the first days of September 2007.

The complainant's observations (the complainant's telephone call of 8 August 2007 and the complainant's letter of 5 September 2007)

On 8 August 2007, the complainant informed the Ombudsman's services that, on 23 May 2007, she had initiated legal proceedings before the Civil Service Tribunal (Case F-49/07 R v Commission) on the basis of the facts alleged in her complaint to the Ombudsman.

In her subsequent letter dated 5 September 2007, the complainant first put forward that her complaint to the Tribunal concerns the annulment of the acts that, in her view, are having damaging effects on her. Such acts include DG ADMIN's decision dated 20 July 2005 rejecting her request of 26 October 2004 for assistance under Article 24 of the Staff Regulations and are referred to in her personal file. In her complaint, she asked the Tribunal to "establish the responsibility of the Community for all the illegal decisions, acts and behaviours of the Commission" and for the compensation in the amount of EUR 2 500 000 for damages she suffered as a result of the moral harassment.

Second, the complainant appeared to consider, in substance, that the Ombudsman should (i) pursue the inquiry on her complaint, in parallel with the proceedings before the Civil Service Tribunal or (ii) open an own-initiative inquiry concerning the issues of harassment within the Commission on the basis of the facts alleged by her. She also asked the Ombudsman to arrange with the Commission that, before the Tribunal decides on her case, she would be transferred to another institution.

She asked the Ombudsman to seek with the Commission a friendly solution in order to "eliminate the case of maladministration" or to encourage the Commission to take part in a conciliation procedure before the Tribunal.

Finally, she stated that, in the meantime, on 1 May 2007, she had been transferred to another unit ("International relations") within the same DG and took the view that that transfer was abusive and the reasoning of the decision on that transfer inadequate.

The Commission's letter of 15 October 2007

The Commission stated that it had promised to send a rectification of its 23 July 2007 opinion on the complaint but when its rectified opinion was completed in September 2007, it learnt that, in the meantime, the complainant had lodged an appeal with the Court of First Instance(1) based on the facts which were the subject of the Ombudsman's inquiry. Therefore the Commission decided not to send the Ombudsman the rectified opinion.

THE DECISION

1 Preliminary remarks

1.1 The Ombudsman notes that, in her letter of 5 September 2007, the complainant informed him that, on 1 May 2007, she was transferred to another unit ("International relations") within the same directorate-general ("DG") and took the view that such a transfer was abusive and the reasoning of the decision on that transfer inadequate.

As far as the complainant's view could constitute a new allegation, if duly substantiated, it does not appear that the complainant has complied with Article 2(8) of the Ombudsman Statute(2) as regards this specific issue and has exhausted in this respect the procedure provided for in Article 90 of the Staff Regulations. The Ombudsman does not therefore deal with this issue in the framework of the present inquiry. However, the complainant may submit a new complaint in this respect after having exhausted the Article 90 procedure.

1.2 Moreover, the Ombudsman understands the complainant's letter of 5 September 2007 to suggest that the Ombudsman might carry out an own-initiative inquiry into the general issue of the Commission's handling of harassment cases. The Ombudsman does not dispose of elements which could indicate systemic maladministration in this regard and therefore launching an own-initiative inquiry does not at present appear useful. Were the Ombudsman to consider in the future that there could be systemic maladministration in relation to those issues, he would then consider whether it would be opportune to open such an inquiry.

2 The complainant's original allegations and claims

2.1 In her complaint to the Ombudsman dated 11 April 2007, the complainant alleged that the Commission failed properly to deal with her allegations of harassment.

The complainant claimed that the Commission should (i) inform her about all the inquiries made within DG Enterprise in relation to her case and (ii) establish effective, preventive measures against harassment, as well as an efficient means of redress in cases of harassment.

2.2 Subsequently, in a telephone conversation of 8 August 2007 and in a separate letter of 5 September 2007, the complainant informed the Ombudsman that, on 23 May 2007, she had initiated legal proceedings before the European Union Civil Service Tribunal.

2.3 The Commission confirmed the above information in its letter to the Ombudsman dated 15 October 2007 and stated that the complainant's appeal before the Tribunal is based on the same facts as those which form the subject of the Ombudsman's inquiry.

2.4 The Ombudsman recalls that Article 195 of the Treaty establishing the European Community empowers the European Ombudsman to receive complaints "(...) concerning instances of maladministration in the activities of the Community institutions or bodies (...) except where the alleged facts are or have been the subject of legal proceedings." Moreover, Article 2(7) of the European Ombudsman's Statute provides that "(...) when the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action."

2.5 The Ombudsman notes that the complainant has informed him that she has initiated proceedings before the European Union Civil Service Tribunal concerning the facts on which she based her allegations and claims in her original complaint to the Ombudsman. The Commission also confirmed that such an action has been brought against it before the Civil Service Tribunal. In light of the above-quoted Article 195 of the EC Treaty and Article 2(7) of the Ombudsman's Statute, the Ombudsman therefore terminates his consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

2.6 Given that the Ombudsman closes his inquiry without further action, he cannot satisfy the complainant's request to seek a friendly solution in order to eliminate the case of maladministration or to encourage the Commission to take part in a conciliation procedure under the aegis of the Tribunal. Nor is the Ombudsman competent to intervene before the Commission as regards the complainant's request for a transfer to another Community institution before the Tribunal adjudicates on her case. Should the complainant's request be a request for provisional measures, the Ombudsman recalls that such measures, if found to be justified, may be ordered by the Tribunal itself.

3 Conclusion

The Ombudsman terminates consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman understands the European Union Civil Service Tribunal.

(2) Article 2(8) of the Ombudsman's Statute provides: "No complaint may be made to the Ombudsman that concerns a work relationship between the Community institutions and bodies and their officials and other servants unless all possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired."