THE BACKGROUND TO THE COMPLAINT

1. The present complaint was submitted by a local agent working for the Commission's Delegation in Buenos Aires, Argentina, on behalf of herself, as well as of three other local agents, employed by the Commission's Delegations in Mali, Burkina Faso and Algeria. All four employees are EU citizens.

2. Following a thorough analysis of the material provided, the Ombudsman took the view that only the complaint submitted by the local agent working for the Commission's Delegation in Argentina (the complainant in the present case) was admissible, as the other three persons had failed to demonstrate that they had duly exhausted all possibilities of making internal appeals, before addressing the matter to him. Given that it appeared that these three local agents had thus not fulfilled the requirements laid down in Article 2(8) of the Statute of the Ombudsman, the Ombudsman took the view that the complaint lodged on their behalf should be rejected.

3. The complainant wished to take part in EPSO's selection procedure for contract agents (EPSO/CAST 27), which was only organised in test centres in the EU. She pointed out that, in accordance with the Note of the Commission's Directorate-General for Personnel and Administration (DG ADMIN) of 17 May 2007(1) (hereafter 'the Commission's Note of 17 May 2007'), certain financial contributions were made available to contract agents in Delegations who wished to participate in EPSO selection procedures. The amount of this contribution varied according to the distance of the contract agent's place of work from the examination centre. The maximum amount to be granted was EUR 450. The complainant sent an e-mail to DG ADMIN, requesting to receive a contribution to the expenses related to her participation in the above EPSO competition. She indicated that, although she was employed as a local agent and not as a contract agent, it would be discriminatory to give the benefit to one category of the Commission's staff and to deny it to another. The Commission rejected her application on the grounds that the benefit was only available to contract agents in Delegations and that requests made by local agents were thus not eligible. The complainant considered the above decision to be discriminatory.

THE SUBJECT-MATTER OF THE INQUIRY

4. In her complaint to the Ombudsman, the complainant submitted the following allegation and claim:

The Commission's Note of 17 May 2007 is discriminatory, as it only concerns contract agents. The complainant took the view that the Commission's decision to reject her request for the financial contribution foreseen in the Note was wrong. She argued that the financial benefit made available to one category of the Commission's staff should also be provided to other staff members.

The complainant claimed that the Commission should grant her the financial benefit which was foreseen in the Commission's Note of 17 May 2007 as regards contract staff.

5. In her observations on the Commission's opinion, the complainant appeared to raise a further allegation, according to which the Commission had no legal basis under the Commission's Note of 17 May 2007 either to provide the financial contribution to contract agents, or to local staff. More specifically, she argued that certain provisions of Annex X of the Staff Regulations for officials of the European Communities (the 'Staff Regulations'), which are applicable to contract agents by virtue of Article 118 of the General Conditions of Employment of Other Servants (the 'Conditions of Employment'), provide for annual travel tickets and training courses in Europe. According to the complainant, these rules do not however entitle contract agents to be reimbursed for travel expenses related to their participation in EPSO selection procedures. The financial contribution granted by the Commission is therefore not among the rights foreseen under the Staff Regulations. The complainant thus effectively appeared to allege that the Commission's Note of 17 May 2007 has no legal basis as far as the relevant benefit is concerned.

6. The Ombudsman notes that this new allegation has not been previously submitted to the Commission. He therefore considers that he cannot deal with this further allegation at present. The complainant remains free to renew this allegation after having made the appropriate approaches to the Commission.

7. For the sake of completeness, it should be noted that the complainant claims that the Commission should grant her the financial benefit, which was foreseen in the Commission's Note of 17 May 2007 as regards contract staff. It appears obvious that this claim would necessarily fail if the said benefit had been granted without a legal basis.

THE INQUIRY

8. By letter of 21 November 2007, the Ombudsman opened an inquiry into the complainant's original allegation and claim, asking the Commission to submit an opinion by 28 February 2008. The opinion provided by the Commission was forwarded to the complainant with an invitation to make observations, which she presented on 13 March 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. As regards the allegedly discriminatory nature of the Commission's Note of 17 May 2007
Arguments presented to the Ombudsman

9. In her complaint to the Ombudsman, the complainant put forward the following arguments:

10. EPSO/CAST 27 is a competition that was open to citizens of all 27 Member States, with no requirements other than being an EU national and fulfilling certain education standards. Therefore, contract agents employed by the Commission were in the same situation as any other candidate for the purposes of this selection procedure. Contract agents working for the Commission have reached their current contractual situation through an examination which in no case assumed or promised a long-term contractual relationship with the Commission. Consequently, they do not have any kind of previously acquired right whatsoever to maintain their current position as contract agents with the Commission. If the Commission wanted them to stay longer in their position it should have created a test exclusively for contract agents or should have directly changed their fixed-term contract into a long-term contract. The Commission has decided not to do so.

11. If the Commission offers contract agents an ad hoc payment to help them sit an examination, the Commission is biasing the result of the examination. It appears that the Commission was formally opening a competition to anyone and thus respecting the principles of transparency, equal opportunities and fair competition. However, by using the EU budget to facilitate access to the examination for a particular category of people, the Commission violated these principles. The complainant clarified that she was referring to the "additional" financial contribution the Commission was offering to cover expenses such as hotels, taxis, meals, etc. and not to the annual paid trip which was part of contract agents' contractual rights.

12. Local staff, in contrast to contract agents, are not entitled to annual leave tickets to the EU and receive much lower salaries. Therefore, travelling to Europe constitutes a much higher burden for the local staff than for contract agents. It appears, therefore, more justified to financially support the first category rather than the latter.

13. If the Commission took a decision that its employees living and working overseas should have the opportunity to pass the EPSO selection procedure, which can only be held in Europe, it should offer this possibility to everybody fulfilling CAST 27 requirements, i.e., all EU citizens that have the required education level.

14. The Commission's position can be summarised as follows. Candidates in EPSO pre-selection tests are not eligible for any contribution to their travel costs. At a later stage, however, if candidates are invited to written or oral tests which take place outside their Member States, they are normally eligible for financial contributions according to the rules laid down by EPSO. In the case of CAST 27, EPSO organised pre-selection and competency tests at the same time. This meant that candidates would not normally receive any financial contributions. Contract agents in Delegations, who had to pass these tests in order to have a contract for more than 3 years, were requested by the Commission to use their annual paid trip to Europe to take part in the selection procedure in question. The Commission had furthermore decided to grant them a financial contribution of up to EUR 450, which was meant to cover associated costs, such as for hotels, taxis and meals.

15. The Commission pointed out that it employs several thousand local agents around the world under the national laws of the Delegations in which it operates. The majority of the local agents have the nationality of the country in which the Delegation is based and perform manual or service duties. A small number of local agents have EU nationality. In addition, the Commission employs around 800 contract agents in Delegations around the world. All contract agents are EU nationals. The majority of such contract agents perform university-graduate level tasks.

16. The two types of staff, namely, local agents and contract agents, are distinct. The Staff Regulations and the Conditions of Employment treat the two categories separately. Contract agents working in Delegations are expatriate staff and benefit from diplomatic immunity and the provisions of Annex X of the Staff Regulations, laying down the conditions for expatriate staff working outside the EU. Local agents are not expatriate staff and are subject to national labour laws and conditions.

17. The Commission explained that, as it had sent contract agents to work outside the EU by offering them an expatriate contract, it also had the responsibility to bring them back to the EU to allow them to participate in EPSO selection procedures. It argued that it did not, however, have the same obligation vis-à-vis local agents, who were recruited locally, i.e., outside the EU. If the Commission were to offer the contested benefit to the local agents as well, it would actually set a precedent, which could lead to local agents claiming that they too should be offered regular training in Brussels and paid-flights to the EU.

18. As regards the complainant's reiterated submissions that the above practice was discriminatory, the Commission took the view that there was no discrimination. In doing so, it referred to the case-law of the Community Courts in this area and noted that although the principle of equality of treatment is a general rule forming part of the law applicable to the employees of the European Communities, discrimination occurs only where identical or comparable situations are treated in an unequal way or where such unequal treatment is not objectively justified. Given that contract agents and local agents are not in an identical or comparable situation, the Commission did not consider that such discrimination had occurred.

19. In response to the complainant's submission that, by granting the relevant benefit only to contract agents, the Commission would influence the outcome of the selection procedure, the latter remarked that, as regards contract agents' tests (unlike competitions for officials), there was no limit to the number of candidates who could be successful. Candidates in such test must simply reach a certain threshold of correct answers. Above that threshold, all candidates are considered successful. Whether an additional number of candidates took these tests due to the Commission's payment of a financial contribution would therefore have no influence whatsoever on any individual's chances of passing these tests.

20. In light of the above, the Commission considered that the complainant was not eligible for the financial contribution in question. Her claim could not therefore be sustained.

21. In her observations, the complainant made the following arguments:

22. The fact that most local agents were not EU citizens is irrelevant in her case, as she holds EU citizenship.

23. There are six groups of local staff, classified on the basis of the duties performed. Local agents in Group 1 (administrative, advisory and supervisory posts), must have a university degree. In the Commission's Delegation in Argentina, local agents perform the same tasks as contract agents within the Cooperation Sector.

24. According to the Vademecum of the External Service, there are five sets of provisions applicable to local staff: (i) The Conditions of Employment; (ii) the Framework Rules laying down the conditions of employment of local staff of the Commission serving in non-member countries (the 'Framework Rules'); (iii) the Specific Conditions of Employment of local staff serving in Commission Delegations, which are drawn up for each place of employment; (iv) local legislation, and (v) individual employment contracts. The reference made by the Commission concerning the rules applicable to contract agents was therefore not entirely correct.

25. As for the Commission's argument that if local agents were given the financial contribution in question, this could set a precedent which could lead to local agents claiming that they too, should be offered regular training in Brussels, the complainant argued that, under the current rules, local agents are, in fact, entitled to regular training in Brussels. She referred in this context to the Commission's Communication C (2003) 4334 on training of External Staff, which provides that "the principles of the staff training guidelines thus remain the same for all staff employed by the Commission no matter where they are geographically based". She further noted that, in accordance with the Specific Conditions of Employment applicable in her case, local agents are also entitled to be reimbursed for missions and the respective rules for officials are applied by analogy. In her view, if the rules governing training courses and missions to Brussels are applied by analogy, then both groups should also be entitled to the financial contribution in question.

26. Concerning the Commission's argument that there is no discrimination, due to the different nature of contracts of local agents and contract agents, the complainant noted that the legal basis of the contracts of local staff and their functions are comparable to those of contract agents. Furthermore, the principles concerning their career development are the same.

27. Finally, denying the support to an EU citizen employed by the Commission, while at the same time supporting other employees, clearly reduces his or her chances of access to the selection procedure on an equal basis.

28. In light of the above, the complainant concluded that comparable situations had been treated in an unequal way.

The Ombudsman's assessment

29. The principle of non-discrimination and of equal treatment is one of the fundamental principles of Community law. As consistently held by Community Courts, it requires that comparable situations should not be treated in a different manner and different situations should not be treated alike unless such treatment is objectively justified(2). The Ombudsman shall thus seek to verify whether the Commission has provided an objective justification for its decision to deny the contested benefit requested by the complainant.

30. Concerning the legal status of the two categories of staff (contract staff and local staff), the Ombudsman recalls that he has dealt with a complaint, in which the complainant alleged that the system of medical insurance coverage for local agents working in Commission Delegations was discriminatory (complaint 735/2005/BU)(3). In this decision, the Ombudsman concluded that the different categories of Community staff are not in comparable legal situations and that the rights and obligations of local staff and of other categories of staff are regulated differently by the relevant applicable legal provisions.

31. In the present case, however, the complainant argued that, regardless of the different rules applicable to contract agents and to local agents, EPSO competition CAST 27 was open to "any EU citizen" fulfilling certain educational standards and that contract agents employed by the Commission are thus in the same situation as local agents and, in fact, as any other candidate. Given that the participation in this selection procedure was not related to the applicants' employment situation at the time of the application, the Ombudsman is of the view that all the applicants indeed appear to have been in a comparable situation for the purposes of the said EPSO competition.

32. The Ombudsman notes, however, that the benefit related to travel expenses was not provided to all contract agents employed by the Commission, but only to "contract agents in Delegations". The Commission's reasoning is based on the expatriate status of this particular group of contract agents and the fact that they have left the EU for the purpose of employment with the Commission. Consequently, the latter considered it appropriate to compensate them for going back to Europe in order to take part in the EPSO competition in question. Local agents, in contrast, are hired locally, at the sites of the Commission's Delegations in non-EU countries. The Commission therefore took the view that it did not have the same obligation to assist them to travel to the EU.

33. In view of the fact that only contract agents working for Commission Delegations have moved outside of the EU because of their employment relationship with the Commission, it appears that they were not in a comparable situation to local staff. The Ombudsman therefore considers that the Commission's decision to offer certain benefits related to travel expenses to contract agents only does not appear unreasonable and is objectively justified.

34. The complainant's argument that local staff may be treated in a similar or the same way as contract staff and officials as regards training and missions, and should therefore be treated equally as regards the benefit in question, does not appear to be relevant in this context, since the benefit provided was not linked to the work performance or professional duties of the staff members, but to the change in their residence.

35. Concerning the argument put forward by the complainant that, by offering the benefit in question exclusively to one category of its staff and denying it to another, the Commission is in fact influencing the results of the tests, the Ombudsman considers that the Commission's financial contribution could indeed make it easier for contract staff to participate in the EPSO competition. However, given that there was no limit to the number of successful candidates (see point 10.6 above), the additional support provided by the Commission did not ultimately affect the test results. The complainant's argument to that effect cannot therefore be sustained.

36. In light of the above findings, the Ombudsman takes the view that the Commission's Note of 17 May 2007 does not appear to be discriminatory. The Commission cannot therefore be reproached for not providing the complainant with the financial benefit in question. The complainant's related claim cannot therefore be sustained.

B. Conclusions

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 9 October 2008

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(1) ADMIN.A1/MM/TCs/ts/D(2007)10318.

(2) In this regard, the Commission referred to Case T-66/95, Hedwig Kuchlenz v. Commission, judgment of 16 April 1997, paragraph 54-5 7, ECR [1997 ]; and Joinеd cases 198-201/81, Micheli and others v. Commission, judgment of 2 December 1982, ECR [1982].

(3) Available at the website of the European Ombudsman, http://www.ombudsman.europa.eu.