The background to the complaint

1. The present case concerns alleged irregularities that took place within the European Economic and Social Committee ('EESC').

2. The complainant is a former member of the Bureau of the EESC. In December 2009, a member of staff of the EESC ('Mr X') wrote a letter to the members of the Bureau of the EESC reporting certain irregularities allegedly committed by high-ranking officials of the institution. According to the complainant, the letter was intercepted and most Bureau members (including the complainant) did not receive it.

3. The existence of this letter and certain issues relating to it were discussed during at least three Bureau meetings, although the agenda of these meetings did not indicate that this topic would be discussed.

4. The complainant noted that he protested about this and requested to receive a copy of the letter. However, these protests were not recorded in the minutes of the meetings.

5. In January 2010, the EESC prepared an internal report which analysed the facts and allegations set out in the relevant letter. According to the complainant, this report was distributed, without prior notice, to the Bureau members who participated in a meeting in February 2010.

6. In a meeting of March 2010, the then President of the EESC communicated to the Bureau members his decision to reject the allegations set out in the said letter. This decision also indicated that Mr X should be reassigned to another post.

7. On 29 June 2011, the complainant lodged complaint [...] with the Ombudsman. Following a number of requests for clarifications, the Ombudsman closed this inquiry with a finding of no grounds for further inquiries.

8. On 15 March 2012, the complainant turned again to the Ombudsman and lodged the present complaint.

The subject matter of the inquiry

9. In his complaint, the complainant put forward the following allegation and claim, which are covered by the Ombudsman's inquiry:

Allegation:

The EESC breached the complainant's rights, in particular his right to privacy, by intercepting a letter which an official of the EESC addressed to him in his capacity as member of the Bureau of the EESC.

Claim:

The EESC should comply with the applicable rules in the future.

The inquiry

10. On 18 March 2012, the Ombudsman invited the EESC to provide an opinion.

11. On 17 July 2012, the EESC provided its opinion, which was forwarded to the complainant for observations.

12. On 20 September 2012, the complainant submitted his observations.

13. On 17 October 2012, the EESC drew the Ombudsman's attention to a recently delivered judgment in a case which was relevant for the purposes of the present inquiry.[1]

14. On 29 November 2012, the Ombudsman informed the EESC that it would be appropriate to carry out an inspection of the documents in the EESC's file.

15. On 19 December 2012, the complainant submitted additional observations to the Ombudsman.

16. On 31 January 2013, the EESC provided the Ombudsman with a copy of certain letters exchanged between the EESC and the complainant.

17. On 1 February 2013, the EESC sent a further letter to the Ombudsman expressing its concerns about the admissibility and the substance of the complaint.

18. On 20 February 2013, the complainant wrote again to the Ombudsman.

19. On 14 March 2013, the EESC wrote to the Ombudsman.

20. On 4 April 2013, the Ombudsman sent a letter to the parties regarding, inter alia, the above-mentioned admissibility concerns and restating that it would be appropriate to carry out an inspection of the documents in the EESC's file.

21. On 15 April 2013, the EESC sent another letter to the Ombudsman concerning its admissibility concerns and adding that there were no reasons for an inspection.

22. On 30 May 2013, the Ombudsman replied to the EESC regarding the admissibility issues and reiterating that an inspection was necessary.

23. On 5 July 2013, the Ombudsman's services carried out an inspection of documents at the EESC's premises. A copy of the inspection report was forwarded to the parties, with an invitation to the complainant to submit observations. The complainant did not submit any such observations.

The Ombudsman's analysis and conclusions

Preliminary remarks

24. In his complaint, the complainant put forward three further allegations (in addition to the one which is assessed in the present decision - see point 9 above). In the course of the inquiry, the complainant submitted a fourth additional allegation and a related claim. These additional allegations and the related claim were as follows:

(1) The EESC wrongly sanctioned Mr X for sending the letter by reassigning him to another post.

(2) The EESC infringed its internal rules (i) by failing to include in the agenda of the Bureau meetings the discussion on the content of the letter, (ii) by not disclosing the content of the letter to the Bureau members prior to the meetings, (iii) by preventing the Bureau from examining in a useful manner a matter which fell within its competence, and (iv) by failing to report in the minutes of the Bureau meetings the discussions on this issue.

(3) The EESC wrongly failed to report to OLAF the facts and allegations contained in the letter.

(4) The President of the EESC had a conflict of interests in the context of the present inquiry, and thus should not be involved in the preparation of the EESC's replies to the Ombudsman.

25. As a preliminary point, the Ombudsman will first address the parties' concerns regarding the admissibility of the complaint and the need to take further action in relation to it. These are addressed below.

The existence of Court proceedings

26. According to Article 1(3) of the Statute of the Ombudsman, "[t]he Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling."

27. As regards the first additional allegation put forward by the complainant, the Ombudsman considered it from the outset as inadmissible. As the complainant himself acknowledged, this matter had been brought before the Civil Service Tribunal ('CST') in a case which was still pending at the time of the opening of the inquiry by the Ombudsman.[2] In the absence of any indication that the CST had been asked to rule on the second and third additional allegations, these were not considered as inadmissible by the Ombudsman at the time of the opening of the inquiry.

28. The CST rendered its judgment in Case [...], rejecting the action in its entirety. After having carefully analysed this judgment, and taking into consideration the EESC's arguments in this respect,[3] the Ombudsman concluded that the second and the third additional allegations should also be declared inadmissible, given that the CST had considered these issues in its judgment.[4]

29. However, the CST did not establish in its judgment whether the EESC had intercepted the letter addressed to the complainant. Thus, the Ombudsman took the view that the allegation concerning the interception of documents remained admissible.

The time-bar

30. The EESC also considered that, pursuant to Article 2(4) of the Statute of the Ombudsman, the present complaint was time-barred because the underlying facts took place more than two years before it was lodged.[5]

31. This argument was rejected by the Ombudsman because, as the EESC itself recognised, the last Bureau meeting to which the complainant referred took place on 16 March 2010, i.e., less than two years before the submission of the present complaint. The Ombudsman noted that, even if the alleged interception of the correspondence took place more than two years before the lodging of the complaint, the complainant raised this concern in subsequent meetings, and the EESC allegedly failed to address his concern in those meetings.

The lack of appropriate prior approaches

32. The EESC also argued that the complaint was inadmissible for lack of appropriate prior administrative approaches,[6] pursuant to Article 2(4) of the Statute of the Ombudsman.

33. This argument was also rejected by the Ombudsman, given that the complainant provided sufficient evidence to show that he had made appropriate prior approaches to the EESC.

The nature of the allegations

34. Finally, the EESC contended that some of the allegations put forward by the complainant referred to acts that, if proven, would clearly constitute criminal offences. In the EESC's view, these issues should therefore have been brought to the attention of the competent authorities or courts rather than be referred to the Ombudsman.[7]

35. The Ombudsman considered that this argument raised two issues, namely (i) the question whether the Ombudsman can deal with complaints alleging that an institution has breached the law, and (ii) the question whether the Ombudsman can deal with a complaint concerning facts that could constitute criminal offences.

36. As regards (i), the EESC's objection was rejected because there is no limitation in the Treaty on the Functioning of the EU ('TFEU') or in the Statute of the Ombudsman as to the power of the Ombudsman to investigate allegations of maladministration, including those which may constitute infringements by the EU institutions, agencies and bodies of any applicable EU law provisions.

37. According to the Ombudsman's well-established decision-making practice, maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it. Thus, the concept of maladministration clearly covers cases of illegality.

38. As regards (ii), it was recalled that the Ombudsman's inquiries concern the question whether there has been maladministration in the behaviour of the institution concerned. The Ombudsman obviously cannot, and will not, try and establish whether the behaviour of an individual person working for an institution has given rise to a criminal offence. If there are elements suggesting that a criminal offence has been committed by a given person, the Ombudsman shall indeed inform a competent authority (see Article 4(2) of the Ombudsman's Statute). However, this does not mean that the Ombudsman would be prevented from continuing his inquiry into the behaviour of the institution concerned.

The allegation of conflict of interest

39. As regards the allegation that the President of the EESC had a conflict of interests and therefore should not be involved in the preparation of the EESC's replies to the Ombudsman, the Ombudsman considers that, taking into account her findings as regards the substance of the present complaint (see points 53 et seq. below), there is no need to take further action in that regard.

A. Allegation that the EESC breached the complainant's rights, in particular his right to privacy, by intercepting a letter and related claim

Arguments presented to the Ombudsman

40. The complainant argued that the EESC breached his right to privacy by intercepting a letter which an official of the EESC addressed to him in his capacity as a member of the Bureau of the EESC.

41. In its opinion, the EESC said that it did not intercept the letter in question. On the contrary, that letter was made available to all Bureau members without restriction. However, contrary to the request of Mr X, the EESC did not make copies of the voluminous supporting documents accompanying that letter (i.e., a total of 378 pages) for each of the Bureau members. These documents were nevertheless available at the President's and the Group Presidents' offices for the Bureau members to consult.

42. Furthermore, the EESC noted that Mr X did not respect the applicable procedure (in particular, Article 22a of the Staff Regulations of EU Officials) when he submitted his allegations directly to the Bureau. In any event, as also acknowledged by the CST[8], the EESC was entitled to refuse to cooperate with Mr X since he had infringed his obligations by publicising the matter in the way he did.

43. In his observations, the complainant noted that the parties disagree as regards the course of the events. However, he further noted that the EESC did not provide any documentary evidence in support of its arguments.

44. The complainant clarified that, on 7 December 2009, Mr X sent an e-mail to all the Bureau members. In this e-mail, he informed them that he had left an envelope with a letter to their attention at the office of their respective Group. This letter included (i) a document reporting certain irregularities allegedly committed by certain high-ranking officials and (ii) a cover letter which indicated that a full copy of the document, including supporting evidence, had been submitted to the President of each Group and to the President of the EESC. The cover letter invited the members of the Bureau to address themselves to the Presidents of their Group or to the President of the EESC to examine the full document, including the supporting evidence.

45. The complainant insisted that the letter addressed to him was withheld by the EESC and was never delivered to him. Moreover, the complainant provided copies of two e-mails sent by EESC staff, namely an e-mail of 7 December 2009, which indicated that an envelope addressed to the Bureau members would be distributed to them, and an e-mail of the following day which indicated that the letter in question would not be distributed because it concerned "a sensitive and personal issue".

The Ombudsman's assessment

46. Article 7 of the Charter of Fundamental Rights provides that:

"Everyone has the right to respect for his or her private and family life, home and communications."

47. According to Article 52(1) of the Charter:

"Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others."

48. Moreover, in relation to Article 7 of the Charter, the Court of Justice has ruled:

"According to settled case-law, those fundamental rights do not, however, enjoy, under European Union law, absolute protection, but must be viewed in relation to their function in society [...]. Consequently, the exercise of those rights may be restricted, provided that those restrictions correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights thus guaranteed"..[9]

49. Moreover, Article 22a(1) of the Staff Regulations provides the following:

"Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which gives rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Communities, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Communities shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or the European Anti-Fraud Office (OLAF) direct."

50. As regards the present case, the parties disagree as to whether the letter addressed to the Bureau members was intercepted or not. The Ombudsman notes that the complainant has provided copies of internal e-mails that suggest that the letter may at least initially have been withheld by the EESC (point 45 above).

51. According to the EESC, the letter was never intercepted. The EESC simply refused to make copies of the voluminous number of supporting documents for each member of the Bureau, as Mr X had requested. However, these documents were available at the President's and the Group Presidents' offices for the Bureau members to consult. The EESC has not provided any documentary evidence to support its account of events on the grounds that no "specific file as such" existed. However, it suggested that the Ombudsman could, if necessary, carry out interviews with any member of the Bureau or of the staff of the EESC in order to establish the facts. Moreover, the EESC indicated that it would offer its full cooperation to carry out any such interviews.

52. The Ombudsman appreciates the offer made by the EESC. She considers, however, that, in the circumstances of the present case, and in light of the results of the inspection carried out by her services, there is no need for further inquiries into this case.

53. In fact, the Ombudsman notes that no evidence has been found that would conclusively prove that the EESC had withheld the letter addressed to the complainant by Mr X. In any event, it should be noted that the CST ruled that Mr X infringed his obligations arising from Article 22a of the Staff Regulations by seeking to give wide publicity to the allegations contained in his letter.[10] In these circumstances, the Ombudsman is not convinced that a finding of maladministration would have been appropriate even if it had been proved that the EESC had withheld the said letter.

54. In view of the foregoing, the Ombudsman concludes that there are no grounds for further inquiries into the present case.

B. Conclusions

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

There are no grounds for further inquiries into the present case.

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

 

Emily O'Reilly

Done in Strasbourg on 21 January 2014

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[1] Case [...].

[2] Case [...].

[3] Namely, in its opinion, as well as in its letters of 17 October 2012, 1 February 2013 and 15 April 2013.

[4] See, in particular, Case [...] (as regards the second allegation) and [...] (as regards the third allegation).

[5] In particular, in its opinion, as well as in its letters of 1 February 2013 and 15 April 2013.

[6] In its opinion and in its letter of 15 April 2013.

[7] In its opinion and in its letter of 15 April 2013.

[8] Case [...].

[9] Case T-383/11 Makhlouf v Council, judgment of 13 September 2013, not yet published in the ECR, paragraph 97.

[10] In this respect, the Court held in Case [...].