THE BACKGROUND TO THE COMPLAINT

1. On 16 September 2008, the complainant started his traineeship at the Czech Translation Unit[1] of the European Economic and Social Committee ('the Committee'). The traineeship was paid, and was supposed to last five months.

2. By note of 30 September 2008, the Head of the Czech Translation Unit reminded the complainant of his obligations as a trainee and warned him that, unless he improved his performance, further action would have to be taken. According to the note, the complainant had already, on 19 September 2008, started to complain about being overloaded, even though he only started receiving documents to translate on 22 September 2008. The note also stated that the complainant's translations contained major mistakes, and that this situation materialised notwithstanding repeated explanations from his revisers and the "Trados"[2] training he took part in.

3. In her note of 2 October 2008, the complainant's traineeship supervisor referred to a meeting of the same day in which she, the Head of Staff Support Services Unit, and another staff member responsible for trainees, summarised the points raised in the previous note. They made it clear to the complainant that he had to improve his behaviour and work efficiency. In particular, he had to: (i) stop telephoning other units of the Committee and of the Committee of the Regions and offering them his services; (ii) stop telephoning other European institutions or bodies and offering them any kind of cooperation; (iii) fully dedicate his time at the office to improving his translation work and being able to translate more than two pages per day without his superiors having to correct the documents several times; and (iv) stop asking the same questions to colleagues after having received an answer. According to this note, the complainant acknowledged that, if his behaviour and implication did not improve within two weeks, his traineeship would be terminated.

4. By a memorandum entitled "Note on trainee [T]" of 22 October 2008, the Head of the Czech Translation Unit requested the acting Director for Personnel and Administration ('the Acting Director') to terminate the complainant's traineeship period as soon as possible. This recommendation was deemed to be in the general interest of the Unit and was made "on [the] grounds of the trainee's most strange behaviour and implication". This note mentioned, among other things, the complainant's very low capacity to concentrate, inability to carry out very simple tasks, unsatisfactory performance and very poor sense of social interaction. It also stressed that his attitude was incompatible with the smooth functioning of the Unit and that his behaviour was not at all adapted to the Unit's needs. However, the note also stated the following:

"As most pertinent we would like to illustrate the character of Mr. [T] with this example:

When applying for the traineeships in the Committee, Mr. [T] had presented a copy of a very impressive recommendation letter. The author of this recommendation letter, Mr. George PATTON WATERS, was contacted in order to verify the authenticity of the letter. He confirmed by phone that he signed a recommendation letter for Mr. [T]. Since we sent a PDF file of the copy by mail, Mr. PATTON WATERS could compare it with the letter he signed in May 2008, and he noticed that in the copy of the letter, a large amount of text had been inserted. Mr. PATTON WATERS is upset about the fraudulent use of his signature and fears about his reputation."

5. On 23 October 2008, the Committee conducted a hearing with the complainant and handed him the above "Note on trainee [T]". The hearing started at 10.00 ended at 11.00. The Committee gave the complainant until the end of that working day to submit any comments.

6. The complainant informed Mr Patton Waters of the above accusation. It follows from the e-mails which Mr Patton Waters sent to the complainant on 23 and 25 October 2008 (the complainant forwarded these to the Committee), as well as from a letter which Mr Patton Waters sent directly to the Secretary-General of the Committee on 10 November 2008, that the above information he gave to the Committee by telephone was incorrect. He had, in fact, found his own copy of the recommendation letter, which was identical to the one which the complainant submitted to the Committee. According to Mr Patton Waters, if this was the only reason for terminating the complainant's traineeship, the termination was unfounded.

7. On 24 October 2008, having regard to (i) paragraph III.E. of Decision No 323/97 A (Provisions concerning in-service training periods with the Economic and Social Committee of the European Communities ('the Provisions'))[3], (ii) the above three notes of 30 September and 2 and 22 October 2008, and (iii) the hearing of the complainant of 23 October 2008, the Acting Director decided that "[t]he traineeship period of Mr. [T] is terminated with immediate effect."

8. The above decision of 24 October 2008 was announced and handed over to the complainant, at 9.00 that day, by the staff member responsible for trainees. This occurred in the Committee's building, after the security service had first prohibited him from entering at 8.30. Accompanied by a security guard, the complainant subsequently went to his office to pick up his personal belongings, and left the building at 10.20.

9. On 27 October 2008 and 6 November 2008, the complainant sent letters to the Secretary-General of the Committee, to the Acting Director, and to the Head of the Czech Translation Unit, in which he pointed to the false accusation contained in the "Note on trainee [T]". He emphasised that, on 23 October 2008 at 17.21, he had forwarded the first e-mail from Mr Patton Waters clarifying the issue to the Acting Director. Moreover, in a telephone conversation with the complainant on 24 October 2008 at 10.39[4], the Acting Director acknowledged having read that e-mail. The complainant, therefore, requested a written apology for the false accusation.

10. On 13 November 2008, the Acting Director replied to the above letters. He stated that the decision to terminate the complainant's traineeship was based on paragraph III.E. of the Provisions. In addition, he referred to the meetings, which the complainant had with his superiors on 17, 18 and 19 September and 2 October 2008, in which the latter explained to him how he could improve his behaviour and the consequences of his not doing so. According to the Acting Director:

"The decision to terminate your traineeship was taken after having heard you on 23 October and after reading your written comments of the same date. In this meeting I clearly stated that I would only take into consideration the complaints about your behaviour and implication and that I would disregard comments concerning your reference letter, which I have done. As was explained on several occasions, the decision is motivated by the fact that your behaviour was not satisfactory in that you disturbed your colleagues in the Czech translation department and in other Units which affected the smooth functioning of the Czech translation Unit."

11. In his letter of 15 December 2008 to the Acting Director, the complainant expressed his disappointment with the latter's above reply of 13 November 2008. According to the complainant, the Acting Director had no desire to check the accuracy of the accusation contained in the "Note on trainee [T]". The complainant requested a cancellation of the decision terminating his traineeship, because it was based on untrue information concerning his character and behaviour. On 12 January 2009, the Acting Director answered that, for the reasons explained in his letter of 13 November 2008, he would not cancel the decision.

12. In the meantime, on 1 December 2008, the complainant had sent a letter to the Secretary-General of the Committee, in which he disagreed with what he considered to be the Acting Director's formalistic use of regulations without applying principles of polite behaviour. He added that he had decided to submit a complaint to the European Ombudsman.

13. By letter of 12 December 2008, the Head of the Staff Support Services Unit replied to the complainant's letter of 1 December 2008 on the Secretary-General's behalf. She referred to, and confirmed, the information contained in the Acting Director's reply of 13 November 2008.

14. Also on 12 December 2008, the complainant sent a letter to the President of the Committee, in which he summarised the facts which gave rise to his present complaint, informed the President about his complaint to the European Ombudsman, and asked the President to enquire whether the Committee would apologise to him for ending his traineeship on false grounds.

15. On 7 January 2009, the complainant sent another letter to the Secretary-General of the Committee. He stated that it was inappropriate for the Secretary-General to ask the Head of the Staff Support Services Unit to draft the above reply of 12 December 2008, given that she had actively participated in using the false information against him. Again, he attached the documents proving that the accusation against him was false. Also on 7 January 2009, the complainant sent a letter to the President of the Committee, in which he repeated his request for the cancellation of the decision terminating his traineeship.

16. By letters of 28 January 2009, the President and the Secretary-General of the Committee replied to the letters, which the complainant sent to them on 12 December 2008 and 7 January 2009 respectively. The both confirmed the Committee's position expressed in its previous letters.

THE SUBJECT MATTER OF THE INQUIRY

17. On 1 December 2008, the complainant submitted his complaint to the European Ombudsman. He provided further information and documents by related correspondence of 2, 15 and 18 December 2008 and 9 January 2009.

18. On 20 January 2009, the Ombudsman opened an inquiry into the following allegation and claim:

The complainant alleges that, in the "Note on trainee [T]" of 22 October 2008, the Committee made a false accusation against him, according to which he falsified his reference letter of 24 May 2008.

He claims that the Committee should apologise to him for this false accusation.

19. The complainant also made various other allegations to the effect that the Committee:

1. did not take into account his statements during the hearing of 23 October 2008 and the evidence he supplied to prove that he did not falsify the reference letter;
2. failed, in the decision of 24 October 2008, explicitly to state the reasons for terminating his traineeship, merely referring to the previous notes; and
3. failed to prove the complainant's inability to carry out very simple tasks and his very poor sense of social interaction. The complainant considered that he carried out the tasks assigned to him in a timely manner and that his work was of a reasonable quality.

He also claimed that the Committee should cancel its decision to terminate his traineeship because it was adopted on the basis of false information.

20. On the basis of Article 195 of the EC Treaty (now Article 228 of the Treaty on the Functioning of the European Union)[5], the Ombudsman decided that there were insufficient grounds for him to inquire into the complainant's further allegations and claim as set out above. This decision was based mainly on the ground that, in its reply of 13 November 2008, the Committee explained to the complainant that, when deciding to terminate his traineeship, it only took into consideration the comments about his behaviour and implication in its work, and disregarded the comments concerning the reference letter. The Committee added that it had decided to terminate the traineeship after taking into account the complainant's written comments from the afternoon of 23 October 2008 (that is, the e-mail from Mr Patton Waters, which the complainant forwarded to the Committee at 17.21 that day), which demonstrated that the accusation concerning the reference letter was false. The Ombudsman also considered that the complainant did not demonstrate that the mere reference, contained in the decision of 24 October 2008 terminating his traineeship, to the previous notes which were made available to the complainant, could constitute maladministration. Finally, the Ombudsman took into account that the Committee informed the complainant several times of his obligations and warned him of the need to improve his performance and behaviour, as well as of the possible consequences of his failure to do so. The Ombudsman informed the complainant that his statements about the quality of his work were based only on his personal conviction and that it is not part of the Ombudsman's functions to replace the Committee's assessment of the said work with his own.

21. In his observations, the complainant made various comments, which could be understood as new allegations. He pointed out that the Committee never (not even in its opinion on the present complaint) submitted any evidence to prove that Mr Patton Waters raised any doubts about the accuracy of the reference letter. The complainant also stated that, in the telephone conversation with him, which took place on 24 October 2008 at 10.39[6], after he had left the Committee's premises, the Acting Director promised to start an inquiry concerning who was responsible for the false accusation contained in the "Note on trainee [T]". The complainant also emphasised that, in light of his needing to communicate with Mr Patton Waters in the USA, the time he was given to submit observations (from 11.00 to 17.30 on 23 October 2008) was too short. Moreover, the decision of 24 October 2008 terminating his traineeship did not indicate the possibilities of appeal or the possibility to complain to the Ombudsman. Finally, he fully acknowledged that the Acting Director stated in his letter of 13 November 2008 that, when deciding on the termination of the traineeship, he only took into consideration the comments about the complainant's behaviour and "implication", and disregarded the accusation concerning the reference letter. He went on, however, to point out that this statement by the Acting Director notwithstanding, the fact remains that the decision terminating the traineeship mentions the "Note on trainee [T]", containing the false accusation, as one of the documents to which the Acting Director had regard when taking that decision.

22. The Ombudsman considered that there were insufficient grounds for him to deal with the allegedly missing evidence concerning Mr Patton Waters' doubts about the accuracy of the reference letter, or with the related issue of who was personally responsible for the false accusation contained in the "Note on trainee [T]". The evidence available on the complaint file clearly showed that the latter document contained an accusation against the complainant which later turned out to be false. The Ombudsman recalled, however, that his role is to investigate complaints about maladministration by the Community institutions and bodies[7], and not by their individual staff members. The "Note on trainee [T]" is clearly a document that was created by the Committee when acting in its capacity as a Community body.

23. The Ombudsman also noted that, if the complainant wished to complain about additional issues, he was free to submit a new complaint to him. However, in accordance with Article 2(4) of the Statute of the European Ombudsman[8], any new allegations would have to be preceded by appropriate administrative approaches to the Committee.

24. For the above reasons, the Ombudsman confined the present inquiry to the complainant's allegation concerning the accusation that he falsified the reference letter, and his related claim.

THE INQUIRY

25. On 30 April 2009, the Committee submitted its opinion in French, as well as a Czech translation thereof. The complainant sent his observations on 23 June 2009.

26. On 21 September 2009, the Ombudsman sent the Committee a proposal for a friendly solution to the complaint. The Committee replied on 29 October 2009, and the complainant sent his observations on 28 December 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of the false accusation and the related claim

Arguments presented to the Ombudsman

26. The complainant alleged that, in the "Note on trainee [T]" of 22 October 2008, the Committee made a false accusation against him, according to which he falsified his reference letter of 24 May 2008. He claimed that the Committee should apologise to him for this false accusation.

27. In its opinion, the Committee first summarised the facts which led to the termination of the complainant's traineeship. As regards the complainant's allegation, the Committee stated that the staff member responsible for trainees noticed that, according to the reference letter, Mr Patton Waters had known the complainant since 2007. However, in the reference letter, he mentioned events which took place before that year. Therefore, the staff member took up contact with Mr Patton Waters[9], who confirmed the accuracy of the reference letter. The Committee did not pay any more attention to this reference letter, since the submission of such a letter was not an eligibility criterion.

28. During the period preceding the termination of the complainant's traineeship, the Committee mentioned the reference letter on only two occasions: (i) on 22 October 2008, in the "Note on trainee [T]"; and (ii) on 23 October 2008, in a note for the file concerning the hearing of the complainant which took place on the same day. According to this note, the decision of the Acting Director on the possible termination of the complainant's traineeship would be based exclusively on the complaints about his behaviour and his reply to those complaints. The reference letter would not affect the decision. Moreover, according to the Acting Director's letter of 13 November 2008 to the complainant, when he decided to terminate the traineeship, he only took into consideration the comments about the complainant's behaviour and implication, and disregarded the comments concerning the reference letter.

29. The Committee went on to say that it created its traineeship programme in 1974, and has offered traineeships to more than 1 000 trainees since then. This was the first time that the Committee had found it necessary to terminate a traineeship contract with immediate effect, which explains why the decision to do so was taken very seriously and with utmost discretion. As a consequence, only the persons directly involved had knowledge of the content of the complainant's file. In this regard, the Committee pointed out that it was the complainant who decided to give publicity to this matter, for example, by sending an e-mail to the Committee's trainees on 27 October 2008 and another one to the MEPs' assistants on 29 October 2008, as well as by posting an article on the Internet application Facebook on 31 October 2008.

30. The Committee concluded by expressing its regret that the complainant felt that it had treated him badly. Nevertheless, the Committee considered that it respected its rules in force. It also pointed out that, although it terminated the complainant's traineeship contract, its social service met with him and provided him with appropriate advice.

31. In his observations, the complainant mainly pointed out that the Committee did not address his claim for an apology. Given that the e-mails, which Mr Patton Waters sent to him on 23 and 25 October 2008, and the letter which Mr Patton Waters sent directly to the Secretary-General of the Committee on 10 November 2008, clearly prove that he did not falsify the reference letter, he maintained his claim that the Committee should apologise to him.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

32. The Ombudsman regretted that the Committee did not address the complainant's claim.

33. The Ombudsman recalled that the e-mails, which Mr Patton Waters sent to the complainant on 23 and 25 October 2008, and the letter which he sent to the Secretary-General of the Committee on 10 November 2008, clearly prove that the complainant did not falsify the reference letter in question. The Committee did not deny this fact in its opinion.

34. The Ombudsman also recalled that Article 12(3) of the European Code of Good Administrative Behaviour[10] stipulates: "If an error occurs which negatively affects the rights or interests of a member of the public, the official shall apologise for it ..."

35. In light of the above, the Ombudsman made the preliminary finding that, in the "Note on trainee [T]" of 22 October 2008, the Committee made a false accusation that the complainant falsified the reference letter of 24 May 2008, which amounted to an instance of maladministration.

36. The Committee's argument that the "Note on trainee [T]" was only designed for the Committee's internal purposes and that it was the complainant who decided to give publicity to the matter, does not change anything regarding the above conclusion. In the Ombudsman's view, it would have been unnecessary for the complainant to publicise the matter, if the Committee had simply apologised to him for the false accusation, after he had submitted evidence that the accusation was indeed false. The present complaint would have been unnecessary as well.

37. The Ombudsman therefore made a proposal for a friendly solution, to the effect that the Committee could consider offering its apologies to the complainant for the false accusation contained in its "Note on trainee [T]" of 22 October 2008.

The arguments presented to the Ombudsman after his friendly solution proposal

38. In its letter to the Ombudsman dated 29 October 2009[11], the Committee stated that, in view of the Ombudsman's findings, it decided to follow his proposal and offered its apologies to the complainant. It attached a copy of its relevant letter to the complainant, also dated 29 October[12]. In this letter, the Committee stated that, in light of the Ombudsman's proposal for a friendly solution, it would like to offer its apologies to the complainant for the false accusation contained in the "Note on trainee [T]" dated 22 October 2008.

39. In his observations, the complainant stated that he appreciates that the Committee apologised to him. However, he did not accept the apologies, and asked the Ombudsman to request the Committee to rework them.[13] He put forward the following reasons for not accepting the Committee's apologies:

(i) The letter containing the apologies was not signed by the President of the Committee, who represents the Committee in its external relations and cannot delegate this power to the Secretary-General.[14]

(ii) The letter does not explain whether the false accusation was a result of an error or of bad intention. It should include such an explanation.

(iii) The text containing the apologies should be added to any documents referring to the "Note on trainee [T]" which the Committee issued from the date of that note until the date of the complainant's observations, as well as to any such documents which it will issue in future. The reason is that, in the future, the complainant envisages applying for jobs in EU institutions, and he believes that the accusation will make it difficult or impossible for him to succeed in any competition[15].

(iv) A video recording should be made of the President of the Committee reading the apologies in English, in which his face and voice will be clearly identifiable. The video recording should be sent to the complainant in an appropriate medium. The reason for this request is the complainant's fear of again being designated as a falsifier of evidence, in this instance of the apologies, as was the case in the "Note on trainee [T]".

The Ombudsman's assessment after his friendly solution proposal

40. The Ombudsman welcomes the fact that the Committee followed his proposal for a friendly solution and apologised to the complainant. At the same time, the Ombudsman regrets that the complainant did not accept the apologies which the Committee offered to him.

41. First, the Ombudsman points out that, immediately preceding Rule 12(4) to which the complainant referred, Rule 12(3) of the Committee's Rules of Procedure states that "[t]he president may entrust specific tasks to the secretary-general for a limited period." It is, therefore, perfectly in order for the letter containing the Committee's apologies to be signed by its Secretary-General. In addition, the Committee sent, through official channels and in the framework of the present inquiry, a copy of this letter of apologies to the Ombudsman, which was attached to a letter signed by the President of the Committee. It is thus clear that the President of the Committee fully supported the letter of apologies and that he entrusted the Secretary-General with the specific task of signing the letter containing the apologies, which, therefore, represents the official position of the Committee as a Union body. Moreover, in the framework of the present inquiry, the Ombudsman forwarded to the complainant not only the letter signed by the Secretary-General, but also the letter signed by the President of the Committee confirming that the Committee has offered its apologies to the complainant.

42. Second, the Ombudsman fails to see why, besides offering its apologies to the complainant, the Committee should explain whether the accusation contained in the "Note on trainee [T]" was the result of an error or of bad intention. What counts is that the Committee acknowledged that the accusation was false, and apologised for it in an official letter. Moreover, the Ombudsman has no reason to believe that the accusation resulted from bad intention.

43. Third, the Ombudsman considers that it would be disproportionate and unnecessary to require the Committee, as the complainant requested, to add the text of its apologies to its documents. It is unlikely that the "Note on trainee [T]" could be included in any of the complainant's future application files and thereby influence anybody's judgement of his future behaviour. Moreover, the Ombudsman considers that the text which the complainant cited concerning the structured interviewing relates to a completely different situation from that described in the previous sentence. The Ombudsman understands the text cited by the complainant to say that the candidates' performance during the interviews is a predictor of how they would behave in similar future situations if recruited.

44. Fourth and finally, the Ombudsman considers that it would be even more disproportionate and inappropriate to ask the President of the Committee to agree to the complainant's request for a video recording to be made of him reading the apologies. With respect to this request, the Ombudsman stresses again that, as a result of his proposal for a friendly solution, the complainant is now in possession of an official letter, in which the Committee acknowledged that the accusation contained in the "Note on trainee [T]" was false and apologised for it in a sufficient manner.

45. In light of the above, the Ombudsman considers that, by offering its apologies to the complainant, the Committee took appropriate action to resolve the present complaint. Given, however, that the complainant did not accept the apologies which the Committee offered to him, the Ombudsman considers that no further inquiries into this complaint are justified.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No further inquiries into this complaint are justified.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 8 March 2010

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[1] According to the complainant, the Unit is a joint service of the European Economic and Social Committee and the Committee of the Regions.

[2] The Ombudsman understands that Trados is a translation software program.

[3] "Sanctions

The Director for Personnel and Administration of the ESC may at anytime, on grounds of the trainee's behaviour and implication, and after hearing the trainee and his/her counsellor, decide to terminate the training period."

[4] With his observations, the complainant enclosed a DVD containing an audio recording of this telephone conversation.

[5] "In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds ..."

[6] See footnote 5 above.

[7] Article 195 of the EC Treaty: "The European Parliament shall appoint an Ombudsman empowered to receive complaints ... concerning instances of maladministration in the activities of the Community institutions or bodies ..."

[8] "The complaint ... must be preceded by the appropriate administrative approaches to the institutions and bodies concerned."

[9] With his complaint, the complainant attached a printout of the e-mail dated 7 October 2008, by which, as stated above, the staff member responsible for trainees contacted Mr Patton Waters.

[10] The Code is available on the Ombudsman's website: http://www.ombudsman.europa.eu/resources/code.faces

[11] This letter was signed by the President of the Committee.

[12] This letter was signed by the Secretary-General of the Committee.

[13] The complainant attached a text showing how the apologies should be reworked. Before the expression of apologies, the Committee should include a statement acknowledging that it committed acts of maladministration towards the complainant by: (i) providing false information when it qualified as false the reference letter which he submitted; (ii) using the above false information in the "Note on trainee [T]", in order to harm his reputation; and (iii) attempting to misuse its authority with a view to blurring the trails of its own actions.

[14] The complainant referred to Rule 12(4) of the Committee's Rules of Procedure, which are available at (http://www.eesc.europa.eu/organisation/rules/index_en.asp). This provision reads as follows: "The president shall have the authority to represent the Committee in its external relations. On certain occasions he may delegate this authority to a vice-president or to a member."

[15] The complainant referred to the document 'EPSO Development Programme "Road Map for Implementation"' which is available on the website of the European Personnel Selection Office ("EPSO") (http://europa.eu/epso/doc/epso_development_plan.pdf). According to point 2.5 of this document, "Structured competency-based interviews are based on the principle that past behaviour is the best predictor of future performance. In other words, a person is more likely to handle future scenarios in manner similar to that displayed in a similar situation in the past..."