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Decision of the European Ombudsman closing the inquiry into complaint 1125/2011/ANA against the European Network and Information Security Agency (ENISA)
Case 1125/2011/ANA - Opened on Tuesday | 12 July 2011 - Recommendation on Wednesday | 05 February 2014 - Decision on Wednesday | 03 September 2014 - Institution concerned European Union Agency for Cybersecurity ( Draft recommendation accepted by the institution )
The case concerned the manner in which ENISA reassigned the tasks and carried out changes in the working environment of the complainant, an ENISA employee. The Ombudsman inquired into the issue and made a proposal for a friendly solution, which ENISA did not accept. The Ombudsman then made draft recommendations, in which she asked ENISA: 1) to acknowledge that it failed (a) to consult the complainant before adopting the reassignment decisions, (b) to give reasons for its actions, (c) to properly communicate its reassignment decisions, (d) to reply to the complainant's relevant requests, and (e) to have proper regard for the complainant's welfare; 2) to offer the complainant an apology; 3) to make an ex gratia payment of EUR 1 000 to the complainant; and 4) to give the Ombudsman a formal undertaking that it will not commit such instances of maladministration in the future. ENISA accepted the Ombudsman's draft recommendations and took steps to implement them. Therefore, the Ombudsman closed the case.
1. This complaint is about the manner in which ENISA handled personnel matters.
2. Within the context of ENISA's reorganisation, on 19 May 2010, the complainant, a temporary agent working for ENISA, was informed of the decision to reassign him to a different post. The complainant disagreed with the decision and submitted a complaint in accordance with Article 90(2) of the Staff Regulations. On 16 December 2010, the complainant's Article 90(2) complaint was rejected in its entirety.
3. On 15 October 2010, the complainant was informed of a further reassignment decision.
4. On 12 January 2011, the complainant was moved to Department X. The complainant disagreed with the move. On 13 January 2011, the complainant was informed that he would be working at Department X for 90% of his working time and at Unit Y for the remaining 10%.
5. At the end of February 2011, the complainant was informed that, in addition to his duties in Unit Y and Department X, he was being entrusted, as of 1 March 2011, with a further secretarial task.
6. On 28 March 2011, the complainant was given the additional task of Financial Mission Coordinator in ENISA's Department Z.
7. On 18 April 2011, the complainant was moved to Department Z on a 100% basis, and his new post included the task of Financial Mission Coordinator.
8. On 15 May 2011, the complainant lodged this complaint with the European Ombudsman.
9. The Ombudsman opened an inquiry into the complaint and identified the following allegations and claims:
1) ENISA failed properly to communicate to the complainant the decisions concerning the changes in his professional situation.
2) ENISA failed to provide grounds for its decisions.
3) ENISA failed to consult the complainant before adopting the decisions in question.
4) ENISA failed to reply to the complainant's requests.
5) ENISA failed to observe the duty to have regard for the welfare of officials.
1) ENISA should properly communicate the decisions in question to the complainant;
2) ENISA should provide grounds for its decisions;
3) ENISA should apologise for the omission to communicate its decisions, provide the grounds thereof, consult the complainant and reply to the complainant and undertake not to repeat the same conduct in the future;
4) ENISA should apologise for the infringement of its duty to have regard for the complainant's welfare and undertake not to repeat the same maladministration in the future; and
5) ENISA should grant EUR 3 000 as ex gratia compensation to the complainant for the psychological hardship he went through because of the problems in his professional environment and the expenses he incurred in order to restore his mental health balance.
10. In the course of the inquiry, the Ombudsman received the opinion of ENISA on the complaint and, subsequently, the comments of the complainant in response to ENISA's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.
Allegation that ENISA failed to (a) consult, (b) give reasons, (c) communicate its decisions to the complainant in writing, (d) reply to the complainant's requests, and (e) observe the duty to have regard for the welfare of officials
The Ombudsman's friendly solution proposal
11. On the basis of a preliminary assessment of the complaint, the Ombudsman made the following proposal for a friendly solution:
"Taking into account the Ombudsman's findings, ENISA could consider: (i) acknowledging that it failed to (a) consult the complainant before adopting the reassignment decisions, (b) give reasons, (c) communicate the decision concerning the complainant's professional situation in writing, (d) reply to the complainant's relevant requests, and (e) have regard for the complainant's welfare; (ii) offering the complainant an apology; and (iii) making an ex gratia payment of EUR 1 000 to the complainant."
12. ENISA did not accept the Ombudsman's proposal for a friendly solution.
The Ombudsman's draft recommendations
13. On 5 February 2014, the Ombudsman made the following draft recommendations to ENISA:
1) ENISA should acknowledge that it failed (a) to consult the complainant before adopting the reassignment decisions, (b) to give reasons for its actions, (c) to communicate its reassignment decisions to the complainant in writing, (d) to reply to the complainant's relevant requests, and (e) to have proper regard for the complainant's welfare;
2) ENISA should offer the complainant an apology;
3) ENISA should make an ex gratia payment of EUR 1 000 to the complainant;
4) ENISA should give the Ombudsman a formal undertaking that it will not commit such instances of maladministration again in the future.
14. In its detailed opinion on the Ombudsman's draft recommendations, ENISA expressed its satisfaction for the support and advice received from the Ombudsman's team and informed the Ombudsman that a friendly agreement had been arrived at.
15. ENISA enclosed a letter to the complainant in which it stated that, after a detailed discussion, a friendly agreement had been reached and that ENISA expressed its sincere apologies to the complainant for the way things were handled. ENISA enclosed a letter from the complainant in which he argued that he should not be involved at this stage and that ENISA's detailed opinion should be addressed to the Ombudsman.
16. ENISA further stated that it fully accepts and understands that due to a lack of proper internal communication it failed: (a) to consult the complainant before adopting the reassignment decisions; (b) to give reasons for its actions; (c) to communicate its reassignment decisions to the complainant in writing; (d) to reply to the complainant's relevant requests; and (e) to have proper regard for the complainant's welfare.
17. ENISA further agreed to make an ex gratia payment of EUR 1 000 to the complainant, indicating that this was meant as compensation for the costs the complainant had incurred to pay a lawyer.
18. Moreover, ENISA informed the Ombudsman that, in order to avoid such incidents of maladministration in the future, it would adopt additional measures to secure better communication with staff and to motivate and mobilise the Staff Committee in cases involving misunderstandings. ENISA expressed the hope that its formal undertakings were in accordance with the Ombudsman's recommendations.
19. In his observations on ENISA's detailed opinion, the complainant argued that ENISA could have simply accepted and implemented the Ombudsman's draft recommendations. Instead, ENISA called its detailed opinion "a friendly agreement" and, in so doing, (a) implied that the complainant rejected the Ombudsman's friendly solution proposal, (b) urged the Ombudsman to close the case, and (c) thanked the Ombudsman's team for the support and advice.
20. The complainant provided the following detailed comments as regards the above-mentioned three issues.
21. Regarding (a), the complainant questioned whether ENISA had realised that the case had gone beyond the friendly solution proposal stage and was now at the stage of draft recommendations. The complainant further questioned the reasons for which ENISA argued that it wanted to reach a friendly agreement with the complainant when it was ENISA that had rejected the Ombudsman's proposal for a friendly solution in the first place. He also wondered why, assuming that ENISA wished to comply with the draft recommendations, it did not simply do so and, instead, tried to muddy the waters by giving the erroneous impression that the complainant refused to cooperate. After all, the complainant's consent was not a condition for compliance with the Ombudsman's draft recommendations. The complainant argued that it was obvious that ENISA treated neither him nor the procedure before the Ombudsman with the respect that was due.
22. Regarding (b), the complainant argued that ENISA had not replied to the draft recommendations. In his view, it simply informed the Ombudsman of a parody of a friendly settlement. The complainant added that, in any event, ENISA's detailed opinion did not constitute acceptance and implementation of the Ombudsman's draft recommendations.
23. Specifically, as regards the first draft recommendation, the complainant noted that ENISA's acceptance was accompanied by the phrase "due to lack of internal communication", which was not included in the draft recommendation and aimed to give the impression that the instance of maladministration concerned was impersonal and random. As regards the second draft recommendation, the complainant argued that, contrary to what was requested in the draft recommendation, ENISA did not apologise. As regards the third draft recommendation, the complainant observed that ENISA accompanied its acceptance with a statement which again was not included in the draft recommendation and aimed to shift the basis for the ex gratia payment from the maladministration committed by ENISA to the complainant's struggle for vindication. As regards the fourth draft recommendation, the complainant argued that ENISA simply outlined its aspirations but indicated no specific measure that it would adopt to implement the draft recommendation.
24. Regarding (c), the complainant highlighted the need for objectivity and impartiality of the procedure before the Ombudsman. This implied that before taking a position, the Ombudsman hears both parties in a complaint while ensuring that no preferential treatment is accorded to either party. However, in its detailed opinion, ENISA expressed its satisfaction for the support and advice that its representative had received from the Ombudsman's team. In addition, in his letter to the complainant dated 27 April 2014, ENISA's representative stated: "the procedure to setup a friendly agreement between the staff member and the Agency at this stage was discussed previously by me and with the Ombudsman team. In my personal opinion your lawyer advising the contrary means that you are not being correctly advised".
25. The complainant stressed that ENISA's representative clearly refers to contacts with the Ombudsman's team that had taken place with a view to achieving a friendly solution, at a time when the procedure was already at the stage of draft recommendations. However, the complainant had been neither informed of these contacts nor invited to participate in these procedures. This raised two important issues: (a) if the statements of ENISA's representative were true, it would mean that there had been an attempt to settle the case outside the framework of the applicable procedures without the participation of the complainant that is provided for in the relevant rules. This was most serious because it implied that the Ombudsman infringed the objectivity of the procedure in the present complaint; (b) if his statements were not true, it would mean that ENISA's representative was lying within the framework of a formal inquiry carried out by the Ombudsman.
26. The complainant concluded his observations by pointing out that, despite his painful efforts to obtain vindication and the Ombudsman's diligent effort, the EU Agency complained about dealt with the case in a mechanical and formalistic manner, tried to shift the blame onto the complainant, and treated the procedures as a nuisance from which it wished to escape. The complainant argued that, since he lodged this complaint, three years had elapsed and the instances of maladministration which he brought to the Ombudsman's attention had still not been remedied. On the contrary, the manner in which ENISA had dealt with the complaint illustrated that there was a general administrative culture at ENISA that systematically fell short of the standard set by the principle of lawfulness and the principles of good administration.
27. On this basis, the complainant asked the Ombudsman: 1) to declare that ENISA failed to implement the Ombudsman's draft recommendations, and 2) to make a special report to the European Parliament.
The Ombudsman's assessment after the draft recommendations
28. As a preliminary remark, the Ombudsman wishes to clarify that, following a request from ENISA's representative, a meeting was held on 5 March 2014 in Brussels between that representative and two members of the Ombudsman's staff. At that meeting, ENISA's representative asked for guidance concerning the implementation of the Ombudsman's draft recommendations. The Ombudsman's staff pointed out that the Ombudsman had addressed formal draft recommendations to ENISA and that it was for ENISA to reply to those draft recommendations. They also stated that the Ombudsman encourages a positive response to her recommendations.
29. Having thoroughly examined ENISA's detailed opinion and the complainant's observations on the opinion, it would seem that ENISA misunderstood the information that was provided by the Ombudsman's staff at the above-mentioned meeting. In particular, ENISA seems to have understood that it needed to bring about a friendly solution with the complainant. Although the Ombudsman is always in favour of settling cases amicably, it should be noted that a friendly solution had already been suggested to ENISA in 2013 and that ENISA had, much to the Ombudsman's regret, rejected this proposal at that time. It was for this reason that the Ombudsman addressed draft recommendations to ENISA. The Ombudsman therefore finds it surprising that ENISA nevertheless indicated to the complainant, in an e-mail sent on 27 April 2014, that "the procedure to setup a friendly agreement between the staff member and the Agency at this stage was discussed previously by me and with the Ombudsman team."
30. The above preliminary remark notwithstanding, the Ombudsman takes the view that, as regards the substance of the case, ENISA unequivocally expressed its intention to accept and implement the draft recommendations addressed to it. The Ombudsman considers that the arguments put forward by the complainant to call the sincerity of ENISA's position into question are not convincing.
31. As regards the first draft recommendation, it is true that ENISA qualified its acceptance by pointing to a "lack of internal communication". The complainant appears to have understood this as suggesting that ENISA thus intended partly to blame him for the instance of maladministration that occurred. The Ombudsman does not consider that ENISA's detailed opinion should be understood this way. The problems identified by the Ombudsman that led to the first draft recommendation were indeed largely due to a lack of proper communication on the part of ENISA, as the wording of this draft recommendation makes abundantly clear. Given that ENISA has accepted this draft recommendation, it has thus also accepted that it was responsible for the maladministration that it concerns.
32. As regards the second draft recommendation, the Ombudsman notes that ENISA has offered an apology to the complainant.
33. As regards the third draft recommendation, ENISA accepted the Ombudsman's recommendation to make an ex gratia payment to the complainant of EUR 1 000. However, ENISA added that the relevant payment was meant as compensation for the costs incurred by the complainant for a lawyer. The Ombudsman acknowledges the fact that, as the complainant observed, that the draft recommendation made no link between the ex gratia payment and any legal costs that the complainant may have incurred. She notes, however, that ENISA admitted that it committed maladministration in the handling of the complainant's case and that it agreed to make the ex gratia payment that she recommended. In these circumstances, the Ombudsman finds that ENISA has taken adequate steps towards implementing her third draft recommendation.
34. As regards the fourth draft recommendation, the Ombudsman observes that she asked ENISA to give a formal undertaking not to commit such instances of maladministration in the future, without requiring specific measures to be adopted. The Ombudsman notes that, in its detailed opinion, ENISA announced that it would adopt measures to secure better communication with staff and to motivate and mobilise the Staff Committee in cases involving misunderstandings. ENISA referred to this announcement as a 'formal undertaking'. The Ombudsman, therefore, considers that ENISA has accepted the fourth draft recommendation. That said, the Ombudsman will remain vigilant to ensure that ENISA fulfils its promise in the future. The Ombudsman trusts that the measures outlined in its detailed opinion will result in bringing about a policy and practice that is required from a well-functioning administration that respects its staff and cares for their welfare.
35. In light of the above considerations, the Ombudsman finds that ENISA has accepted the Ombudsman's draft recommendations and has taken steps to implement them. Therefore, she closes the case.
On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:
ENISA has accepted the Ombudsman's draft recommendations and has taken steps to implement them.
The complainant and ENISA will be informed of this decision.
 For the detailed background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's draft recommendations available at: http://www.ombudsman.europa.eu/en/cases/draftrecommendation.faces/en/53474/html.bookmark
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