(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

The system of the European Schools

The European Schools provide pre-school, primary and secondary education for children of staff of the EU institutions. From 1957, the Schools operated under a Statute signed by the Member States. In 1994, the Member States and the European Communities signed a Convention (the "Convention")(2), which cancelled and replaced the 1957 Statute. That Convention entered into force, however, only on 1 October 2002.

Article 27 of the Convention provides as follows:

1. "A Complaints Board is hereby established.
2. The Complaints Board shall have sole jurisdiction in the first and final instance, once all administrative channels have been exhausted, in any dispute concerning the application of this Convention to all persons covered by it with the exception of administrative and ancillary staff, and regarding the legality of any act based on the Convention or rules made under it, adversely affecting such persons on the part of the Board of Governors of the Administrative Board of a school in the exercise of their powers as specified by this Convention. When such disputes are of a financial character, the Complaints Board shall have unlimited jurisdiction.
   The conditions and the detailed rules relative to these proceedings shall be laid down, as appropriate, by the Service Regulations for the teaching staff or by the conditions of employment for part-time teachers, or by the General Rules of the Schools.
3. (...)
4. The Statute of the Complaints Board shall be adopted by the Board of Governors, acting unanimously. (...)
5. The Complaints Board shall adopt its rules of procedure, which shall contain such provisions as are necessary for applying the Statute. (...)
6. The judgments of the Complaints Board shall be binding on the parties and, should the latter fail to implement them, rendered enforceable by the relevant authorities of the Member States in accordance with their respective national laws.
7. Other disputes to which the Schools are party shall fall within national jurisdiction. In particular, national courts' jurisdiction with regard to matters of civil and criminal liability is not affected by this Article."

Background of the complaint

The complainants are a Commission official and his wife whose son attended the European School in Woluwe ( Brussels) until 2003 when he took his school-leaving examination (“European Baccalaureate”). His overall performance was excellent, and the total score of 88.88 % meant that he was the 9 th best pupil out of a total of 179.

In German, the complainants’ son only obtained a mark of 8.06 (out of 10). Whilst his mark for the school year was 9.69, he only got a mark of 6.00 in the written examination.

According to Article 6.3.10 of the rules applicable at the European Schools as regards school-leaving examinations, the Implementing Provisions for the European Baccalaureate ("IPEB"), each of the written examinations is marked first by the teacher who taught the subject in question and then by one or two external examiners. The first external examiner marks the examination without knowing the mark given by the teacher. The marks given by these two markers are then collated by the school inspector. If the difference between the two marks is deemed substantial by the school inspector, the external examiner may reconsider his mark on the basis of the comments justifying the mark given by the teacher. The final mark is the arithmetical average of the marks thus awarded.

However, where the difference between the two marks is still appreciable, the school inspector may call on a third marker. He has to do so where the difference is greater than two marks. The third marker knows the results given by the first two markers. The mark given by him is the final mark. This mark must however be within the range set by the first two markers.

In the present case, the teacher had given 9.5 ("excellent") for the written examination in German prepared by the complainants’ son. The external marker had only given 5.5 ("insufficient"). The third marker had given 6.0. According to the complainants, this divergence in marking was a unique fact, far beyond any normal assessment variations experienced at that school.

The complainants and their son were informed of the examination result on 5 July 2003. In order to enable them to submit a complaint, the complainants wrote to the European School on 7 July 2003 in order to ask for information and for access to the relevant documents. According to the complainants, this request was never answered.

On 15 July 2003, the complainants lodged an appeal under Article 12 of the IPEB. According to this provision, a complaint "may only concern a defect of form. There shall be defect of form in the event of non-compliance with the provisions concerning the European Baccalaureate adopted by the Board of Governors and the Board of Inspectors." Such complaints have to be submitted to the Chairman of the Examining Board no later than two weeks after the candidate has been informed of the examination result.

In this complaint, the complainants argued that the letter and the spirit of Article 6.3.10 of the IPEB had not been complied with. The complainants submitted by way of example that the written reasons of the second marker had not yet been received by the School and the first marker (as they ought to have been according to the IPEB) and that there was nothing to show that the second marker had reconsidered her mark after having learnt about the mark given by the teacher. They also argued that the wide divergence of the marks indicated that the correctors had not applied the same "pre-arranged marking scheme" that was foreseen by Article 6.3.10.2 of the IPEB or that this marking scheme had been established in such a vague manner that it could lead to entirely different interpretations by two or three markers. According to the complainants, the relevant rules clearly aimed at giving strong emphasis to the judgment of the first corrector (the class teacher); entirely disregarding the first assessment was therefore a defect of procedure as such. The complainants therefore submitted that there had been serious defects as regards the marking procedure. They also criticised the School's failure to provide the information they had requested in their letter of 7 July 2003. In the complainants' view, not providing sufficient access to documentation vital for bringing forward complaints under Article 12 of the IPEB made the rights accorded by that article effectively void and therefore constituted a major violation of the IPEB.

The complainants were subsequently heard by Mr M., the Chairman of the Examining Board.

By letter of 11 September 2003, Mr M. informed the complainants that, folowing consultation with the Inspectorate of the School, their complaint had been rejected. Mr M. submitted that all the steps in relation to the marking that were foreseen by Article 6.3.10 of the IPEB had been observed in the present case. He also pointed out that the second and third examiners were not bound by the mark given by the teacher, that he had been assured by the German authorities that these examiners had the necessary expertise and that all examiners had been provided with the same marking criteria. The marks and comments of the external examiners had not arrived at the School until after the oral examination. Mr M. took the view, however, that this did not affect the marks awarded to the candidates. He also confirmed that there was no provision for making the comments of the examiners available to the complainants.

The complainants thereupon wrote to the Secretary-General of the Board of Governors of the European Schools (the "Secretary-General") in order to ask to be given the name of the external tribunal to which the School submitted for judicial review. In his reply of 29 September 2003, the Secretary-General pointed out that the present rules did not foresee any right of appeal against the decisions of the chairman of the Examining Board. However, the Secretary-General mentioned the existence of the Complaints Board of the European Schools, referring to Article 27 of the Convention, and explained that the Complaints Board was reviewing its rules of procedure to take the new situation (the Convention) into account.

On 9 November 2003, the complainants asked for their complaint to be dealt with by the Complaints Board. In their letter of 9 November 2003, the complainants mentioned that they had discovered that the second corrector had graded more than half of the class of 22 as insufficient. In the complainants' view, this fact by itself should have triggered an immediate and serious investigation by the relevant bodies.

In January 2004, and at their request, the complainants were given the Complaints Board’s Rules of Procedure. The recitals of these Rules, which were adopted on 30 April 1997, refer to Article 80 of the Regulations for Members of the Seconded Staff of the European Schools. According to the complainants, these Rules only apply to claims by staff of the European Schools against their employer and thus not to their own case.

On 7 January 2004, the chairman of the Complaints Board decided to ask the Secretary-General to submit, by 12 March 2004, an opinion on the appeal, including the question as to whether the Complaints Board had jurisdiction to deal with the matter. At the same time, the chairman decided that the complainants should have until 16 April 2004 to make observations on this opinion.

Complaint 376/2004/GG (Confidential)

On 3 February 2004, the complainants lodged a complaint with the European Ombudsman (complaint 376/2004/GG - confidential).

In this complaint, the complainants made the following allegations:

1. The refusal to grant access to the file made the internal complaints procedures of the European Schools entirely inoperative and devoid of any practical meaning in the present case.
2. The lack of an independent investigation in case of faults, and the refusal of the right to judicial review of administrative procedures and decisions created a legal void.
3. The shifting back and forth of the responsibility for the procedures in question between the European School System and the national supervisory authorities made it impossible to hold anyone accountable.
4. There was a general lack of accountability, in plain violation of the general principles of good administration.

The complainants made the following claims:

1. They should be given immediate access to all documentation requested, and in particular to the justifications of the assessment and to the marked examination work.
2. An independent investigation of the matter should be ensured.
3. They should be given the name of an external tribunal to which the School submitted for judicial review.

The Ombudsman's decision

In his reply to the complaint, the Ombudsman recalled that the European Schools were not a Community institution or body, but that the Commission had a certain responsibility for their operation, because it was represented in their Board of Governors and contributed largely to their financing. The Ombudsman pointed out that the complaint could be interpreted as being directed against the Commission. However, he also noted that the complainants did not yet appear to have made all the appropriate prior approaches required by Article 2(4) of the Ombudsman's Statute.

The complaint was therefore rejected by decision of 4 March 2004. The complainants were however informed of the possibility of submitting a new complaint after having made the appropriate prior approaches. Their attention was furthermore drawn to the Ombudsman's own-initiative inquiry OI/5/2003/IJH regarding the activity of the Commission to promote the good administration of the European Schools.

This own-initiative inquiry was subsequently closed by decision of 19 July 2004.

On 20 July 2004, the Commission addressed a Communication to the Council and the European Parliament - Consultation on options for developing the European Schools system (COM(2004) 519 final).

In point 2.2 ("Administrative improvements") of this text, the Commission made the following statement:

" In line with developments in educational systems across the Member States and in order to keep pace with best practice in administration it is proposed that the [European Schools] system could, in the short-term, benefit from the application of best practice and recent innovations in the administrative field, including the drawing up [of] a Code of Good Administrative Conduct, an initiative to reinforce and extend existing transparency provisions, including a right of appeal vis à vis decisions taken by the Board [of Governors] or by individual schools. In addition, the remit of the recently established Complaints Board should be clarified and extended to cover all matters of legitimate complaint by those affected by the decisions of each School, including on individual educational matters".

The present complaint

On 15 November 2004, the complainants turned to the Ombudsman again.

In their new complaint, the complainants pointed out that, in its decision of 28 July 2004, the Complaints Board had come to the conclusion that it was not competent to deal with the complainants' appeal. The Board had held that, whereas it could be concluded from Article 27 of the Convention that persons other than teachers could complain to the Complaints Board, the implementing provisions that existed did not allow an appeal to be brought before it in a case like the present one. The complainants pointed out that the representative of the Secretary-General in these proceedings had expressed the view that the Complaints Board was unable to deal with the case. They submitted that this meant that the very fact that the Secretariat-General had not proposed, to date, to the Board of Governors proper implementing provisions, had allowed the Secretariat-General to avoid an investigation. In the complainants' view, this was grotesque.

On 12 September 2004, the complainants had written to the Secretary-General in order to object to the position the latter had taken in the proceedings before the Complaints Board. They had also requested him to make sure that all relevant documentation should be kept on the file to allow for further procedures. A copy of this letter had been sent to the Commission. According to the complainants, no reply had been given to this letter.

The complainants informed the Ombudsman that they were worried that the School might destroy documents concerning their case under the pretext that this was done as a matter of routine after one year.

In their complaint to the Ombudsman, the complainants submitted that the decision of the Complaints Board rendered any appeal rights for parents and students nugatory. The complainants took the view that the behaviour of the authorities concerned failed to respect the Ombudsman's decision of 19 July 2004 concerning own-initiative inquiry OI/5/2003/IJH. They also criticised the fact that the Secretary-General, who had advised them to turn to the Complaints Board, had then pleaded that the latter was not competent to deal with the case.

To support their arguments, the complainants referred to the results of the Ombudsman's own-initiative inquiry OI/5/2003/IJH.

The complainants basically made the following allegations:

1. The European Schools had failed to deal with their appeal properly.
2. The Secretary-General had failed to propose proper implementing measures for the appeals procedure.
3. The Secretary-General had acted abusively (in order to gain time and to avoid any investigation) by first advising them to turn to the Complaints Board and then pleading that this body was not competent to deal with their case.
4. The Secretary-General had not replied to their letter of 12 September 2004, in which they had requested him to make sure that all relevant documentation should be kept on the file to allow for further procedures.

The complainants in substance made the following claims:

1. Any missing implementing provisions for giving effect to Article 27 of the Convention should be submitted by the Secretary-General without further delay for adoption at the meeting of the Board of Governors in January 2005.
2. All cases (including their own) that had been rejected because of the lack of these provisions should be immediately reopened and fully investigated.
3. The European School should keep all documentation concerning their case on record for at least three years.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Preliminary points

The Commission was committed to transparency and good governance in the European Schools, which had been one of the motives underpinning its recent Communication on the European Schools.

Under the Convention, the Commission was a full member of the Board of Governors of the European Schools. However, its role was limited, as it had only one vote (out of 29 after enlargement) and could not influence matters as much and as quickly as might be desired.

The Convention had established a Complaints Board. However, due to the slow decision-making process, the implementing rules had not come into effect as rapidly as the complainants would have wished.

As regards the complainants' allegations

As to the first and the second allegations, the Commission confirmed that the rules in force at the time of the relevant facts had been correctly applied. Regarding the appeal procedure before the Complaints Board, the Commission, as a member of the Board of Governors, could only regret that all rules related to such procedure had not been adopted at the beginning of this case (in July 2003).

The third allegation was groundless. In his letter of 29 September 2003, the Secretary-General had clearly indicated to the complainants that with their appeal to the Examining Board "you have exhausted all possible administrative appeal procedures". He had added that "up until very recently (1 October 2002, the date of the entry into force of the Convention of 1994) the Complaints Board could not deal with such cases. The Complaints Board is currently reviewing its rules of procedure to take the new situation into account." This could not be considered an invitation or advice to appeal to the Complaints Board. On the contrary, the complainants had been informed in advance of the lack of implementing rules of the Complaints Board, which would be resolved by a future decision of the Board of Governors, and yet they had chosen to appeal to the Complaints Board.

As to the fourth allegation, the complainants should have received a full response to their letter of 12 September 2004. The Commission had repeatedly emphasized the importance of observing deadlines for responses to correspondence and that the interested party has a right to receive a full response on the substance of the questions. It considered that the European Schools should adopt measures for the improvement of service delivery similar to those already in force at the EU institutions.

As regards the complainants' claims

In what concerns the first claim, such implementing provisions had now come into effect. At the meeting on 1 and 2 February 2005, the Commission had supported the proposals implementing Article 27 of the Convention put forward by the Secretary-General. The rules adopted by the Board of Governors at that meeting included a new Article 67, which provides for a contentious appeal before the Complaints Board as a second instance for administrative appeals (including the decisions taken on the appeals before the Chairman of the Examining Board).

As to the second claim, the Commission was not responsible for the Complaints Board. However, should the complainants wish to have their case reviewed, they had the right to resubmit their appeal to the Complaints Board under the new rules.

As regards the third claim, the Board of Governors had decided, at its meeting on 1 and 2 February 2005, to amend Article 6.3.10.11 of the IPEB. The new version provides that the relevant documents are to be kept in the school for at least three years after the Baccalaureate. The complainants' request had thus been satisfied.

Conclusions

The main submissions of the complainants against the European Schools system were not founded. The complainants' claims had been satisfied by several decisions adopted at the recent meeting of the Board of Governors.

The Commission intended to continue pursuing the objectives of good administration, governance and transparency in the European Schools. As a first step to achieve these objectives, the Commission had already pushed for specific actions such as the adoption of a Code of Good Administrative Conduct, the provision of justification along with the notification of decisions taken at various levels, greater access to documentation and information, and improved management and accountability.

As a final comment, the Commission was in favour of improving the common marking grid for examinations. In his report, the Chairman of the European Baccalaureate in 2003 had recommended improvements so as to promote transparency. The Commission would look closely at the follow-up given to this issue by the Board of Governors.

The complainants’ observations
The complainants' letter of 23 April 2005

In their letter of 23 April 2005, the complainants made the following comments:

Substantial progress had been made in establishing more transparency and better complaint-handling facilities, subsequent to the Ombudsman's and the Commission's intervention. The adoption of the implementing provisions for Article 27 of the Convention was without doubt a substantial step forward.

The Commission seemed to play down its own influence in the decision-making process by stressing that it had only one vote out of 29 in the Board of Governors. However, the Commission provided the major part of the financing of the European Schools. It was bound by its own financial and auditing regulations to ensure that its funds were spent under conditions of good governance. When it found that those conditions were not fulfilled, it could therefore at any time withhold financing and thereby exert determining control on the European Schools.

It was incomprehensible that, nearly ten years after the adoption of the Convention, proper implementing rules for Article 27 of this Convention had still not been submitted by the Secretariat-General even though this article had been expressly introduced in order to safeguard the rights of pupils and parents. The Commission should have done more to accelerate the process.

In his letter of 29 September 2003, the Secretary-General had made the following statement: "The Complaints Board has sole jurisdiction in the first and final instance, once all administrative channels have been exhausted, in any dispute concerning the application of the Convention to persons covered by it and regarding the legality of acts based in the Convention itself or on rules made under it. It seems to me that this gives you the right to appeal to the Complaints Board." Such an authoritative statement could not be read otherwise than as an advice to use this route.

The adoption of the implementing provisions for Article 27 of the Convention was most welcome. However, the adoption had come after very substantial damage had been caused to the complainants due to an incomprehensible delay. It could not be that the case raised by them had finally led to the establishment of a reasonable complaints-handling structure, without relief being given in their own case.

One of the main issues would now be to ensure the speedy implementation of the new rules and a true willingness to investigate failure of procedures at the school in an independent spirit. The present case should be a test case in that respect.

The Commission had stated that "should the complainants wish to have their case reviewed, under the new rules they have the right to resubmit their appeal to the Complaints Board". Further to this statement, the matter had immediately been resubmitted to the Complaints Board by letter of 22 April 2005. There was however no guarantee that they would be sufficiently protected against another turn in delaying tactics if it were to be argued that the new regulation did not explicitly provide for transitional arrangements concerning complaints launched before the entry into force of the new rules. In that contingency, the Ombudsman should ask the Commission to initiate without delay a complementary procedure in the Board of Governors addressing such transitional provisions.

As regards the third claim, the implementing provisions had taken up this request. They were most grateful to the Commission for having taken this initiative. However, it was still unclear whether the provisions would apply to their case.

There was no valid reason why Regulation 1049/2001 should not be adopted by the Board of Governors for full application in the European Schools system, given its close relationship with the EU institutions. Such a step would be the critical test for the willingness of the European Schools system to break with the behind-the-doors procedures of the past.

Finally, the irreparable moral and the substantial material damage done to their son had to be recalled. It was left to the Ombudsman and the European Schools system to see how that damage could be remedied without further delay.

The complainants' further letter of 24 May 2005

On 24 May 2005, the complainants informed the Ombudsman that, by decision adopted the same day, the Complaints Board had rejected their renewed appeal as inadmissible.

A copy of this decision was submitted to the Ombudsman.(3) The complainants submitted that, in the light of this apparent lack of good faith in the implementation of the amendments adopted by the Board of Governors on 1 and 2 February 2005, the Ombudsman should request the Commission to become active without delay.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and the observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainants' allegations and claims.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman(4) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.

On 14 June 2005, the Ombudsman therefore made the following proposal for a friendly solution to the Commission:

The Commission could consider taking the necessary measures to see to it that proposals are presented to the Board of Governors of the European Schools as follows: (1) a proposal for an amendment of the implementing provisions as regards the Complaints Board with a view to ensuring that these implementing provisions give full effect to Article 27 of the Convention, (2) a proposal for an amendment to Article 6.3.10.11 of the IPEB in order to ensure that this provision has retroactive effect and (3) a proposal for the adoption of measures to ensure that correspondence addressed to the European Schools is properly dealt with.

This view was based on the following considerations:

1 Introductory remarks

1.1 In their complaint to the Ombudsman, the complainants submitted four allegations and three claims.

1.2 In their observations on the Commission's opinion, the complainants submitted that there was no valid reason why Regulation 1049/2001 should not be adopted by the Board of Governors for full application in the European Schools system. The complainants also stressed that irreparable moral and substantial material damage had been done to their son and left it to the Ombudsman and the European Schools system to see how that damage could be remedied without further delay.

1.3 The Ombudsman considered that the complainants had thus raised two new claims in their observations. Given that these two claims did not appear to have been previously submitted to the Commission, the Ombudsman took the view that they could not be dealt with in the present inquiry.

2 The complainants' case against the Commission

2.1 T he European Schools themselves do not belong to the Community institutions or bodies whose administrative behaviour the Ombudsman is empowered to examine by virtue of Article 195 of the EC Treaty and the present inquiry is thus directed exclusively at the Commission. The Ombudsman therefore considered that he was unable to examine the allegations and claims that were directed at the European Schools and its organs as such. In these circumstances, the Ombudsman took the view that his inquiry needed to focus on whether there was maladministration on the part of the Commission as regards the issues raised by the complainants. The Ombudsman considered that three such issues could be identified, which concerned (1) the availability of satisfactory implementing provisions for Article 27 of the Convention allowing the complainants' case to be examined by the Complaints Board, (2) the duty of the European Schools to preserve documents and (3) the duty of the European Schools as regards letters addressed to them.

2.2 As regards the first of these issues, the Ombudsman considered that the Commission did not deny that Article 27 of the Convention provides that the Complaints Board should have jurisdiction to deal with cases such as the one brought by the complainants. The Ombudsman further noted that Article 27(4) of the Convention stipulates that the Statute of the Complaints Board "shall be adopted by the Board of Governors, acting unanimously." It was undisputed that the ability of the Complaints Board to deal with cases such as the complainants' depended on the adoption of the necessary implementing provisions by the Board of Governors on the basis of this provision. It was also undisputed that such implementing rules had been adopted by the Board of Governors at its meeting on 1 and 2 February 2005.

As the complainants had acknowledged, the adoption of these rules constituted an important step forward. The Ombudsman noted, however, that the Convention had already entered into force on 1 October 2002. In order to give full effect to Article 27 of the Convention, the implementing provisions should therefore have given the Complaints Board the power to deal with complaints as from that date. However, it emerged from the decision of the Complaints Board of 24 May 2005 that the latter considered that the implementing provisions that had been adopted by the Board of Governors in February 2005 do not have retroactive effect and do not therefore enable it to deal with the complainants' case.

The Ombudsman therefore considered that the implementing provisions adopted by the Board of Governors in February 2005 failed to give full effect to Article 27 of the Convention. It should be noted that the Commission was only one of 29 members of the Board of Governors. In the Ombudsman's view, it was therefore clear that the Commission would be unable to force the Board of Governors to adopt any specific amendment to the implementing provisions. However, there was nothing to prevent the Commission from taking the necessary measures to ensure that a proposal for such an amendment is submitted to the Board of Governors. Given that the present implementing provisions did not give full effect to Article 27 of the Convention and bearing in mind the Commission's special responsibility for ensuring the proper functioning of the European Schools system, the Ombudsman considered that the failure to initiate such an amendment could constitute maladministration on the part of the European Commission.

2.3 As regards the second of the above-mentioned issues, the Commission had pointed out that the amended version of Article 6.3.10.11 of the IPEB provides that the relevant documents are to be kept in the school for at least three years after the Baccalaureate. The Ombudsman considered that an appeal to the Complaints Board in a case such as the present one was only possible and useful if the relevant documents were still available. In view of the fact that the implementing provisions concerning the Complaints Board that had been adopted by the Board of Governors in February 2005 did not have retroactive effect (point 2.2), the complainants' concern that the same might be the case as regards the amended version of Article 6.3.10.11 of the IPEB was understandable. The Ombudsman therefore concluded that, for the same reasons as those set out in the last sub-paragraph of point 2.5 above, the Commission's failure to initiate an amendment to Article 6.3.10.11 of the IPEB in order to ensure that this provision would have retroactive effect could be an instance of maladministration.

2.4 As regards the third of the above-mentioned issues, it appeared to be undisputed that at least one letter addressed to the European Schools by the complainants had not been properly replied to. The Ombudsman noted that the Commission had stressed, in its opinion, that correspondence addressed to the European Schools should be handled properly and that the European Schools should adopt measures for the improvement of service delivery similar to those already in force at the EU institutions. He further noted that in point 2.2 ("Administrative improvements") of its Communication to the Council and the European Parliament - Consultation on options for developing the European Schools system of 20 July 2004 (COM(2004) 519 final), the Commission had stated that " it is proposed that the [European Schools] system could, in the short-term, benefit from the application of best practice and recent innovations in the administrative field, including the drawing up [of] a Code of Good Administrative Conduct (...)". In point 5 of the Communication, the Commission announced that it "will build on the ideas set out in this Communication for its work within the [Board of Governors]". However, the Commission had not referred to any concrete initiative to that effect that it had taken in the Board of Governors. In view of the way in which the complainants' letter of 12 September 2004 had been handled by the European Schools, the Ombudsman concluded that the Commission's failure to take such an initiative could constitute another instance of maladministration.

The Commission's opinion

In its opinion, the Commission made the following comments:

The Commission considered that the Complaints Board should be able to review cases introduced following the entry into force of the new Convention (on 1 October 2002) but before the adoption of the implementing provisions of this Board. However, this should not call into question existing decisions taken by the European Schools which had not been the subject of an appeal before February 2005. Therefore, the Commission would ask the Secretary-General to present a proposal to the next Board of Governors in order to amend the implementing provisions of the Complaints Board. This amendment would allow the Complaints Board to deal with existing complaints lodged after 1 October 2002.

In the same spirit, the Commission would also ask the Secretary-General to present a proposal to the next Board of Governors in order to amend Article 6.3.10.11 of the IPEB. This proposed amendment would ensure that any marked paper that could provide proof in a case dealt with by the Complaints Board be kept until the appeal had been definitively closed.

The Commission was unable to agree with the Ombudsman's statement according to which it had not referred to any concrete initiative it had taken in the Board of Governors with a view to improving transparency and good administration in the European Schools. As mentioned in its opinion on the complaint, the Commission had already pushed for specific actions such as the adoption of a Code of Good Administrative Conduct, the provision of justification along with the notification of decisions taken at various levels, greater access to documentation and information, and improved management and accountability.

At its meeting of 28-30 April 2004, the Board of Governors had approved the following text:(5)

"It is proposed that the Board of Governors should take note of the document in annex and should ask the Secretary-General to consider the question of good administrative practice and in particular the need for maximum transparency in the management of the European Schools when he makes his annual report to the Board of Governors.

This document is to be referred to the Preparatory Committees with a view to its integration into the document on Quality Assurance in the European Schools."

The Commission therefore considered that there was no maladministration in this case and confirmed that it consistently used its influence in the European Schools to promote good governance and decision-making based on the principles of fairness and transparency. However, the Ombudsman's attention was again drawn to the fact that as one member out of 29 on the Board of Governors, the Commission's ability to influence the taking of decisions was correspondingly limited.

A copy of the letter inviting the Secretary-General to make proposals concerning the first two points raised by the complainants would be sent to the Ombudsman.

The complainant's observations

In their observations, the complainants made the following comments:

As regards the first two of the three proposals made by the Ombudsman, the reaction of the Commission would, if properly followed up by the European Schools, largely re-establish their right to a fair investigation of their original complaint to the European School. However, this was subject to two caveats as regards the first issue (the amendment of the implementing provisions as regards the Complaints Board). First, the amendment proposed by the Commission should be actually adopted and put into force without delay. Second, the Secretary-General should be requested to report to the Board of Governors on its prompt implementation, also with regard to their complaint, including reconvening the Complaints Board without delay to deal with this complaint in a substantive manner and to undertake the necessary investigation of facts. The Ombudsman's decision should explicitly mention these two points. As regards the second issue (ensuring that Article 6.3.10.11 of the IPEB has retroactive effect), the Ombudsman's decision should explicitly mention a reporting requirement to the Board of Governors and to the complainants. So far, the Secretary-General had refused to provide any information to the complainants as to whether the evidence in question still existed or had been destroyed in the meantime.

As regards the Commission's reaction to the third proposal made by the Ombudsman, they remained unconvinced that the action undertaken by the Commission so far had been sufficient or had been pursued sufficiently forcefully in the Board of Governors. The complainants' experience with the European Schools had been largely negative. Neither their letter of 7 July 2003 nor that of 12 September 2004 had been answered. The Ombudsman should therefore ask the Commission to request further measures of transparency.

Finally, the Commission's argument that its role in the Board of Governors was quite limited could not be accepted. The EU provided the major part of the financing of the European Schools. The Commission therefore had a duty to ensure that the funds provided were spent under conditions of good governance.

Further inquiries

Having examined the Commission's opinion on his proposal for a friendly solution and the complainants' observations, the Ombudsman considered that he needed further information in order to deal with the case.

First request for further information

On 4 November 2005, the Ombudsman therefore wrote to the Commission. In this letter, he asked the Commission to provide him with a copy of the letter that it had proposed to send to the Secretary-General concerning the first two issues raised by the complainants and to report on any follow-up that might have been given to this letter by the Secretary-General and the Board of Governors. The Ombudsman further noted that the text that appeared to have been approved at the meeting of the Board of Governors in April 2004 invited the Secretary-General "to consider the question of good administrative practice and in particular the need for maximum transparency (...) when he makes his annual report to the Board of Governors." It seemed, however, that these issues were not addressed in great detail in the annual report submitted by the Secretary-General for 2004, which was available on the website of the European Schools. The Ombudsman therefore asked the Commission to specify in detail what action it had taken to ensure that correspondence addressed to the European Schools was properly dealt with.

The Commission's letter of 27 October 2005

On 9 November 2005, the Ombudsman received a letter dated 27 October 2005 by which the Commission forwarded to him its recent correspondence with Mr R., the Secretary-General. This correspondence consisted of three letters.

In the first letter, dated 29 July 2005, the Commission asked Mr R. to present proposals for an amendment (1) of the implementing provisions of the Complaints Board and (2) of Article 6.3.10.11 of the IPEB to the next meeting of the Board of Governors.

In his reply dated 30 August 2005, Mr R. pointed out that the implementing provisions concerning the Complaints Board did not provide for retroactivity. According to Mr R., retroactivity was provided for in legislation only in very exceptional circumstances. Mr R. presumed that, even though there was no record of this, the Board of Governors had not provided for retroactivity because it had not seen any such exceptional reasons for it. He submitted that he was therefore unable to follow the Commission's proposal for an amendment in this sense. As regards Article 6.3.10.11, Mr R. noted that an appeal against a baccalaureate should finally be decided upon by 15 April of the year following the one in which the examination was taken. Mr R. stated that he therefore did not see the necessity for any further amendment. He added, however, that in order to reassure the Commission and any possible complainant he would prepare a proposal to the effect that documents should be kept "for at least three years 'or as long as an appeal before the Complaints Board is not finally decided'".

The Commission replied to this letter on 26 September 2005. In this reply, the Commission noted that the Secretary-General's reaction had been globally negative but pointed out that one proposal, which had been submitted (by the Secretary-General) to the Administrative and Financial Committee ("CAF") of 29 September 2005, seemed to meet the concerns expressed by the Commission and the Ombudsman. This proposal appeared(6) to provide for a general competence of the Complaints Board to hear appeals and also for the possibility that appeals that have already been rejected by the Complaints Board on the grounds that it was not competent to deal with them may be re-introduced before the latter. The Commission also asked for a confirmation that all necessary action had been taken to ensure that the files of pupils whose cases had been submitted to the Complaints Board in recent years were preserved, so as to make it possible to relaunch proceedings before the latter.

Second request for further information

On 11 November 2005, and after having taken cognizance of the correspondence forwarded to him by the Commission, the Ombudsman informed the Commission that he appreciated the fact that it had acted rapidly and had forwarded copies of the relevant letters to him, as it had previously announced.

In the light of the correspondence forwarded to him, the Ombudsman informed the Commission that he would appreciate it if, in its reply to his request for information of 4 November 2005, the Commission could also provide information on any reply the Secretary-General might have given to the Commission's letter of 26 September 2005 and on the outcome of the meeting on 29 September 2005 (including copies of any relevant documents that might have been adopted at this meeting).

The Ombudsman pointed out that the approach adopted by the Secretary-General in his letter of 30 August 2005 confirmed the need for a reply to the second question set out in the letter of 4 November 2005. He added that in the light of the contents and wording of the Secretary-General's letter of 30 August 2005, he would also appreciate it if the Commission could inform him (1) whether it had or was in a position to obtain any information as to whether the file concerning the complainants' case had or had not been kept by the European Schools and (2) whether it would be possible for the Commission to obtain a copy of the complainants' file for safe keeping.

The Commission's reply

In its reply, the Commission made the following comments:

At the time of drafting the reply (13 December 2005), no reply had been received from the Secretary-General to the Commission's letter of 26 September 2005. Nor had the CAF, at its meeting of 29 September 2005, approved the text submitted to it, since more information was needed for such a radical change of the competence of the Complaints Board.

The proposed changes had again been discussed at the CAF meeting of 6-7 December 2005, in the light of information provided by the office of the Secretary-General and of the opinion of the Legal Service of the Commission which had been consulted on this matter. The latter had stressed, in its reply, that the proposed changes would require a change in the Convention.

At this meeting, the Commission had insisted that, even if the far-reaching changes proposed by the Secretary-General could not be approved, the CAF, and later the Board of Governors, should approve a certain retroactivity of the competence already given to the Complaints Board by Article 27 of the Convention, so that the case of the complainants could be reviewed.

Given the opinion of the Commission's Legal Service, the Secretary-General withdrew his proposal and the CAF asked for a precise proposal on the issue of limited retroactivity, to be reviewed by the Commission's Legal Service. The Commission asked for the proposal to be drawn up as soon as possible.

Consulted on the precise point as to whether the file concerning the complainants' case had or had not been kept, the Secretary-General had given a very clear and positive answer: all the pedagogical documents were safely kept by the European School, all documents related to the administrative appeal were kept by the Secretary-General and all documents related to the Complaints Board were kept by the Secretary of the latter. In view of the above, there was no need for the Commission to ask for a copy of the already sizeable files, nor would it, in the Commission's view, be a good practice to ask for such a copy.

As regards the request to specify what action had been taken to ensure that correspondence addressed to the European Schools was properly dealt with, the Commission considered that it was not within its competence to take such precise action. The Commission pointed out, however, that rules had been laid down by the Board of Governors to evaluate the Directors of the European Schools which took into account, inter alia, the way in which the Directors dealt with correspondence and the relations with the parents(7).

In addition, the Commission referred to the information it had already provided to the Ombudsman about the Commission's proposed actions for greater transparency and good administration in the European Schools, which had been sent to the Secretary-General in January 2004 and tabled at the meeting of the Board of Governors in April 2004. This document had proposed specific actions on transparency and good administration such as the adoption of a Code of Good Administrative Behaviour. All Administrative Boards of the European Schools had discussed the Commission's proposals and agreed on the importance of the principles laid down and on the necessity and determination to respect them.

Since then, the Commission's proposals aiming at the creation of a Code of Good Administrative Behaviour had been submitted to the Mixed Pedagogical Committee (a preparatory committee of the Board of Governors) in November 2004 in order to incorporate the document in the existing document on 'Quality Assurance in the European Schools'. Whilst parents' and teachers' representatives supported the proposed text, some remarks had been made by some directors, on, for example, the need to distinguish between documents which could be made public by the European Schools, and the more sensitive ones, which should not. These points had been supported by some national representatives.

Nevertheless, the document had not been presented again at a meeting of the Board of governors, nor have the proposals for a Code of Good Administrative Behaviour yet been incorporated in the existing document on 'Quality Assurance in the European Schools'. The Commission had therefore already envisaged asking the Secretary-General to table a specific document to the Board of Governors in January 2006 at the latest.

Concerning the specific case of the complainants, the Commission had been informed that the School's response had been given after thorough consideration by the Secretary-General and the President of the Jury of the Baccalaureate, who had finally decided to advise the School not to provide the requested documents.

The complainants' observations

In their observations, the complainants voiced their astonishment that the full implementation of the Convention and the rights conferred by it should require a change to the Convention itself. The complainants stressed that, after all the delaying tactics that the European School system had in their view deployed, they insisted on their right to receive a fair procedure and on the duty of the Commission to ensure such a procedure. They stressed that, in the present case, they had been faced with a complete breakdown of the European Schools' assessment system and that they believed that it was only legitimate under these circumstances to ask for a proper investigation. The complainants submitted that such a detailed review had been constantly refused and that they had been led round in circles.

In the complainants' view, it was unacceptable that those responsible in the European School System for ensuring that the Convention (in force since 1 October 2002) was implemented, should now be allowed to rely on their own lack of action (i.e., the failure to adopt implementing provisions in time or to introduce the necessary retroactive effect of these provisions) in order to avoid an apparently embarrassing impartial investigation of the facts in question. The complainants further submitted that the Commission should not be allowed to accept such an administrative malfunctioning from an institution that it largely financed and on which it could therefore exercise a determining influence. They thus called on the Ombudsman to request the Commission to act decisively in order to rectify the unacceptable situation at hand.

The Ombudsman's appraisal

On the basis of the information received from the Commission and the observations submitted by the complainants, the Ombudsman concluded that no friendly solution could be achieved.

THE DECISION

1 Introductory remark

1.1 The complainants are a Commission official and his wife whose son attended the European School in Woluwe ( Brussels) until 2003 when he took his school-leaving examination (“European Baccalaureate”). In German, the complainants’ son only obtained a mark of 6.00 in the written examination.

According to Article 6.3.10 of the rules applicable at the European Schools as regards school-leaving examinations, the Implementing Provisions for the European Baccalaureate ("IPEB"), each of the written examinations is marked first by the teacher who taught the subject in question and then by one or two external examiners. If the difference between the two marks is deemed substantial by the school inspector, the external examiner may reconsider his mark on the basis of the comments justifying his mark made by the teacher. The final mark is the arithmetical average of the marks thus awarded. However, where the difference between the two marks is still appreciable, the school inspector may call on a third marker. He has to do so where the difference is greater than two marks. The third marker knows the results given by the first two markers. The mark given by him is the final mark. This mark must however be within the range set by the two first markers.

In the present case, the teacher had given 9.5 ("excellent") for the written examination prepared by the complainants’ son. The external marker had only given 5.5 ("insufficient"). The third marker had given 6.0.

The complainants were informed of the examination result on 5 July 2003. In order to enable them to submit a complaint, the complainants wrote to the European School on 7 July 2003 in order to ask for information and for access to the relevant documents. According to the complainants, this request was never answered.

On 15 July 2003, the complainants lodged an appeal under Article 12 of the IPEB to the Chairman of the Examining Board. In this complaint, the complainants argued that the letter and the spirit of Article 6.3.10 of the IPEB had not been complied with. This complaint was rejected on 11 September 2003.

The complainants thereupon wrote to the Secretary-General of the Board of Governors of the European Schools (the "Secretary-General") in order to ask to be given the name of the external tribunal to which the School submitted for judicial review. In his reply of 29 September 2003, the Secretary-General pointed out that the present rules did not foresee any right of appeal against the decisions of the chairman of the Examining Board. However, the Secretary-General mentioned the existence of the Complaints Board of the European Schools, referring to Article 27 of the Convention signed in 1994 (the "Convention")(8).

On 9 November 2003, the complainants asked for their complaint to be dealt with by the Complaints Board.

In its decision of 28 July 2004, the Complaints Board came to the conclusion that it was not competent to deal with the complainants' appeal. The Board held that, whereas it could be concluded from Article 27 of the Convention that persons other than teachers could complain to the Complaints Board, the implementing provisions that existed did not allow an appeal to be brought before it in a case like the present one. During the proceedings before the Complaints Board, the representative of the Secretary-General in these proceedings had expressed the view that the Complaints Board was unable to deal with the case.

On 12 September 2004, the complainants wrote to the Secretary-General to request him to make sure that all relevant documentation should be kept on the file to allow for further procedures.

1.2 In their complaint to the European Ombudsman, the complainants submitted that the decision of the Complaints Board rendered any appeal rights for parents and students nugatory. The complainants took the view that the behaviour of the authorities concerned failed to respect the Ombudsman's decision of 19 July 2004 in his own-initiative inquiry OI/5/2003/IJH regarding the activity of the Commission to promote the good administration of the European Schools.

1.3 In their observations on the Commission's opinion, the complainants submitted that there was no valid reason why Regulation 1049/2001 should not be adopted by the Board of Governors for full application in the European Schools system. In their view, such a step would be the critical test for the willingness of the European Schools system to break with the behind-the-doors procedures of the past. The complainants also stressed that irreparable moral and substantial material damage had been done to their son and left it to the Ombudsman and the European Schools system to see how that damage could be remedied without further delay.

1.4 The Ombudsman considered that the complainants had thus submitted two new claims in their observations. Given that these two claims did not appear to have been submitted to the Commission previously, the Ombudsman informed the complainants that these new claims could not be dealt with in the present inquiry.

2 The complainants' case against the Commission

2.1 The complainants basically made the following allegations:

1. The European Schools had failed to deal with their appeal properly.
2. The Secretary-General of the Board of Governors of the European Schools had failed to propose proper implementing measures for the appeals procedure.
3. The Secretary-General had acted abusively (in order to gain time and to avoid any investigation) by first advising them to turn to the Complaints Board and then pleading that this body was not competent to deal with their case.
4. The Secretary-General had not replied to their letter of 12 September 2004, in which they had requested him to make sure that all relevant documentation should be kept on the file to allow for further procedures.

The complainants in substance made the following claims:

1. Any missing implementing provisions for giving effect to Article 27 of the Convention should be submitted by the Secretary-General without further delay for adoption at the meeting of the Board of Governors in January 2005.
2. All cases (including their own) that had been rejected because of the lack of these provisions should be immediately reopened and fully investigated.
3. The European School should keep all documentation concerning their case on record for at least three years.

2.2 In its opinion, the Commission submitted that, as to the first and the second allegations, it could only regret that the rules necessary for the appeal procedure before the Complaints Board had not yet been adopted at the beginning of this case (in July 2003). The Commission further took the view that the third allegation was groundless, given that the Secretary-General's letter of 29 September 2003 could not be considered an invitation or advice to appeal to the Complaints Board. As regards the fourth allegation, the Commission had repeatedly emphasized the importance of observing deadlines for responses to correspondence and that the interested party had a right to receive a full response on the substance of the questions. It considered that the European Schools should adopt measures for the improvement of service delivery similar to those already in force at the EU institutions.

In what concerned the first claim, the Commission pointed out that such implementing provisions had been adopted by the Board of Governors at its meeting on 1 and 2 February 2005. The rules adopted by the Board of Governors at that meeting included a new Article 67 allowing a contentious appeal before the Complaints Board as a second instance for administrative appeals (including the decisions taken on the appeals before the Chairman of the Examining Board). As to the second claim, the Commission submitted that it was not responsible for the Complaints Board. However, should the complainants wish to have their case reviewed, they had the right to resubmit their appeal to the Complaints Board under the new rules. As regards the third claim, the Commission pointed out that the Board of Governors had decided, at its meeting on 1 and 2 February 2005, to amend Article 6.3.10.11 IREB. The new version provided that the relevant documents were to be kept in the school for at least three years after the Baccalaureate. The complainants' request had thus been satisfied.

2.3 In their observations, the complainants stated that t he adoption of the implementing provisions for Article 27 of the Convention was most welcome. The complainants noted that they had immediately resubmitted their case to the Complaints Board by letter of 22 April 2005. In their view, it was however not excluded that it could be argued that the new regulation did not explicitly provide for transitional arrangements concerning complaints launched before the entry into force of the new rules. In that contingency, the Ombudsman should ask the Commission to initiate without delay a complementary procedure in the Board of Governors addressing such transitional provisions. As regards the third claim, the complainants acknowledged that the implementing provisions had taken up this request. In their view, however, it was still unclear whether the provisions would apply to their case.

The complainants also stressed that the Commission provided the major part of the financing of the European Schools and that it was bound by its own financial and auditing regulations to ensure that its funds were spent under conditions of good governance. According to the complainants, the Commission could therefore at any time withhold financing and thereby exert determining control on the European Schools when it found that those conditions were not fulfilled.

On 24 May 2005, the complainants informed the Ombudsman that by decision adopted the same day, the Complaints Board had rejected their renewed appeal as not admissible.

2.4 It should be recalled that the European Schools themselves do not belong to the Community institutions or bodies whose administrative behaviour the Ombudsman is empowered to examine by virtue of Article 195 of the EC Treaty and that the present inquiry is thus directed exclusively at the Commission. The Ombudsman therefore considered that he was unable to examine the allegations and claims that are directed at the European Schools and its organs as such. In these circumstances, the Ombudsman took the view that his inquiry needed to focus on whether there was maladministration on the part of the Commission as regards the issues raised by the complainants. The Ombudsman considered that three such issues could be identified, which concerned (1) the availability of implementing provisions for Article 27 of the Convention allowing the complainants' case to be examined by the Complaints Board, (2) the duty of the European Schools to preserve documents and (3) the duty of the European Schools as regards letters addressed to them.

2.5 On 14 June 2005, the Ombudsman submitted a proposal for a friendly solution to the Commission. In this proposal, the Ombudsman suggested that the Commission could consider taking the necessary measures to see to it that proposals are presented to the Board of Governors of the European Schools as follows: (1) a proposal for an amendment of the implementing provisions as regards the Complaints Board with a view to ensuring that these implementing provisions give full effect to Article 27 of the Convention, (2) a proposal for an amendment to Article 6.3.10.11 of the IPEB in order to ensure that this provision has retroactive effect and (3) a proposal for the adoption of measures to ensure that correspondence addressed to the European Schools is properly dealt with.

2.6 From the Commission's opinion on this proposal and its reply to two letters in which the Ombudsman asked for further information, it emerges that the Commission's position regarding these three points is as follows:

As regards the first and the second of these issues, the Commission asked Mr R., the Secretary-General, in a letter sent on 29 July 2005, to present proposals for an amendment (1) of the implementing provisions of the Complaints Board and (2) of Article 6.3.10.11 of the IPEB to the next meeting of the Board of Governors. In his reply dated 30 August 2005, Mr R. expressed the view that, even though there was no record of this, the Board of Governors had not provided for retroactivity because it had not seen any reasons for doing so. Mr R. submitted that he was therefore unable to follow the Commission's proposal for an amendment in this sense. As regards Article 6.3.10.11, Mr R. noted that an appeal against a baccalaureate should finally be decided upon by 15 April of the year following the one in which the examination was taken. Mr R. stated that he therefore did not see the necessity for any further amendment. He added, however, that in order to reassure the Commission and any possible complainant he would prepare a proposal to the effect that documents should be kept "for at least three years 'or as long as an appeal before the Complaints Board is not finally decided'".

In its reply of 26 September 2005, the Commission noted that the Secretary-General's reaction had been globally negative but pointed out that a proposal that had been submitted (by the Secretary-General) to the Administrative and Financial Committee ("CAF")(9) of 29 September 2005 seemed to meet the concerns expressed by the Commission and the Ombudsman. This proposal appeared to provide for a general competence of the Complaints Board to hear appeals and also for the possibility that appeals that had already been rejected by the same board on the grounds that it was not competent to deal with them might be re-introduced before it. The Commission also asked for a confirmation that all necessary action had been taken to ensure that the files of pupils whose cases had been submitted to the Complaints Board in recent years were preserved, so as to make it possible to relaunch proceedings before the latter. As of 13 December 2005, the Commission had not received any reply to this letter.

According to the Commission, the changes proposed by the Secretary-General were discussed at meetings of the CAF on 29 September and 6-7 December 2005 but not approved. It appears that this was due to the fact that the Commission's Legal Service had expressed the view that adopting these changes would require a change in the Convention. The relevant proposal was therefore withdrawn. The Commission noted, however, that it had insisted that, even if the far-reaching changes proposed by the Secretary-General could not be approved, the CAF, and later the Board of Governors, should approve a certain retroactivity of the competence already given to the Complaints Board by Article 27 of the Convention, so that the case of the complainants could be reviewed. According to the Commission, it had asked for the proposal to be drawn up as soon as possible.

The Commission added that the Secretary-General, when consulted on the precise point as to whether the file concerning the complainants' case had or had not been kept, had given a very clear and positive answer: all the pedagogical documents were safely kept by the European School, all documents related to the administrative appeal were kept by the Secretary-General and all documents related to the Complaints Board were kept by the Secretary of the latter.

As regards the third issue, the Commission considered that it was not within its competence to take precise action to ensure that correspondence addressed to the European Schools was properly dealt with. The Commission noted, however, that the rules laid down by the Board of Governors for the evaluation of the Directors of the European Schools took into account, inter alia, the way in which the Directors dealt with correspondence. It also referred to the information it had already provided as regards the actions for greater transparency and good administration in the European Schools that it had proposed in January 2004 and tabled at the meeting of the Board of Governors in April 2004. This document contained specific proposals for actions on transparency and good administration such as the adoption of a Code of Good Administrative Behaviour. The Commission pointed out that its proposals had been discussed within the European School System but had not yet been adopted. According to the Commission, it therefore envisaged asking the Secretary-General to table a specific document to the Board of Governors in January 2006 at the latest.

2.7 In their observations, the complainants stressed that, after all the delaying tactics that the European School System had in their view deployed, they insisted on their right to receive a fair procedure and on the duty of the Commission to ensure such a procedure. The complainants submitted that it was unacceptable that those responsible in the European School System for ensuring that the Convention (in force since 1 October 2002) was implemented, should now be allowed to rely on their own lack of action (i.e., the failure to adopt implementing provisions in time or to introduce the necessary retroactive effect of these provisions) in order to avoid an apparently embarrassing impartial investigation of the facts in question. They further submitted that the Commission should not be allowed to accept such an administrative malfunctioning from an institution that it largely financed and on which it could therefore exercise a determining influence. The complainants thus called on the Ombudsman to request the Commission to act decisively in order to rectify the unacceptable situation at hand.

2.8 The Ombudsman notes that it emerges from the positions adopted by the parties in the present case that no friendly solution could be achieved.

2.9 However, the Ombudsman acknowledges and welcomes the fact that after having received his proposal for a friendly solution, the Commission has asked the Secretary-General to submit a proposal (1) for an amendment of the implementing provisions as regards the Complaints Board and (2) for an amendment to Article 6.3.10.11 of the IPEB in order to ensure that these provisions have retroactive effect. The Commission would thus appear to have done what the Ombudsman, in his proposal for a friendly solution, suggested that it do with regard to the first two issues raised by the present complaint. It therefore needs to be examined whether the provisional finding of maladministration is still valid in these circumstances (see points 2.10-2.16). The Commission's handling of the third issue raised by the present complaint will be considered subsequently (points 2.17-2.18).

2.10 As regards the first issue, that is to say, the availability of satisfactory implementing provisions for Article 27 of the Convention allowing the complainants' case to be examined by the Complaints Board, the Ombudsman notes that the Convention, which was signed in 1994, entered into force on 1 October 2002. In order to give full effect to Article 27 of the Convention, the implementing provisions should therefore have given the Complaints Board the power to deal with complaints such as the one submitted to it by the complainants as from that date. The decision of the Complaints Board of 28 July 2004 in the complainants' case made it clear, however, that this was not the case. The Board of Governors subsequently adopted rules that empowered the Complaints Board to deal with complaints such as the one that had been brought by the complainants. At the time when this was done (1 or 2 February 2005), both the Secretary-General and the Commission were aware of the complainants' case. Moreover, the Ombudsman considers it likely that the decision of the Secretary-General to submit the relevant proposal to the Board of Governors was influenced (if not triggered) by the decision of the Complaints Board in the complainants' case. In these circumstances, the Ombudsman finds it difficult to understand why the question as to the effect in time of this amendment does not appear to have been considered and addressed when the proposal was made. In view of the fact that the Commission's Legal Service was consulted on a later proposal tabled by the Secretary-General, it would not appear to have been impossible to obtain legal advice on this important aspect before the amendment was adopted by the Board of Governors.

2.11 The Ombudsman notes, however, that the Commission endeavoured to assist the complainants by asking the Secretary-General, in its letter of 29 July 2005, to submit a proposal giving the rules adopted by the Board of Governors retroactive effect, as suggested in the Ombudsman's proposal for a friendly solution. The Ombudsman considers nevertheless that regard must also be had to the fact that the Commission's suggestion was categorically refused by the Secretary-General in his reply of 30 August 2005. The question therefore arises as to whether the Commission did all that could be expected of it by making such a request or whether principles of good administration required it, in the given circumstances, to do more than that.

2.12 Before addressing this decisive issue, the Ombudsman considers it useful briefly to discuss the events that have taken place since the letter of 30 August 2005. The Commission's view that the (far-reaching) proposal submitted to the meeting of the CAF on 29 September 2005 would, if adopted, have been likely to meet the concerns expressed by both itself and the Ombudsman does not appear to be unreasonable(10). However, the Commission has explained that this proposal was withdrawn in December 2005. The Ombudsman therefore considers that this proposal does not need to be considered any further in the present case.

2.13 The Commission has emphasised that it is only one of 29 members of the Board of Governors and that its influence is thus necessarily limited. In the Ombudsman's view, it is therefore clear that the Commission would be unable to force the Board of Governors to adopt any specific measure. However, the Ombudsman takes the view that the importance of the Commission’s involvement is such that it must play an active role in order to ensure that the European Schools comply with principles of good administration in this area. This view is based on the following considerations: First, the relevant amendment of the implementing provisions aims at nothing more than giving practical effect to Article 27 of the Convention from the very date on which the Convention entered into force. Unless one were to presume that the institutions set up by the Convention have the right to prevent the latter from becoming fully effective, there would appear to be no valid reason that could prevent the Board of Governors from accepting such an amendment. Second, the relevant amendment would appear to be straightforward and is unlikely to require much time and effort to prepare. Third, the Ombudsman considers that the Commission, supported by the advice of its own Legal Service, would clearly be in a position to prepare such a proposal itself. Fourth, the Ombudsman notes that the Commission has not disputed the complainants' view that it provides the major part of the financing of the European Schools and that it is bound by its own financial and auditing regulations to ensure that funds provided from the budget of the European Union are spent under conditions of good governance.

2.14 The Ombudsman acknowledges and welcomes (as already mentioned earlier) that the Commission has taken steps to try and find a solution for the problem facing the complainants. The Ombudsman notes that, in its reply to his request for further information, the Commission stated that it had insisted, at the meeting of the CAF on 6-7 December 2005, that the Board of Governors should approve of a certain retroactivity of the competence given to the Complaints Board, so that the case of the complainants could be reviewed. The Commission had further stated that it had asked for the proposal to be drawn up as soon as possible. The Ombudsman notes, however, that the Commission’s reply to the Ombudsman appears to have been drafted on 13 December 2005. No further information has been submitted to the Ombudsman by the Commission. The Ombudsman takes the view that the Commission must actively follow up the matter and do all it can in order to ensure that a proposal for an amendment of the implementing provisions is submitted to the Board of Governors. In the absence of further information to show that the Commission continues to be active, the Ombudsman finds an instance of maladministration.

2.15 As regards the second issue, that is to say, the duty of the European Schools to preserve documents, the Ombudsman notes that the Commission has referred to a statement made by Mr. R., the Secretary-General. According to this statement, all the relevant documents were safely being kept by the European School, the Secretary-General himself or the Complaints Board. It should be noted that the purpose of the suggestion made by the Ombudsman, in his proposal for a friendly solution, that the Commission should initiate an amendment to Article 6.3.10.11 of the IPEB in order to give this provision retroactive effect was to avoid the risk that the relevant documents might be destroyed. The Ombudsman considers that the Commission was entitled to take Mr R.'s statement as sufficient assurance that the relevant documents were being preserved and that the amendment suggested by the Ombudsman was no longer necessary. In these circumstances, the Ombudsman considers that there is no maladministration on the part of the Commission as regards the second issue raised by the complainants.

2.16 However, the Ombudsman considers it useful to note that this understanding is based on the assumption that the relevant documents will indeed be kept until the case of the complainants is re-submitted to and examined by the Complaints Board. The Ombudsman notes that, in its letter of 26 September 2005, the Commission asked Mr R. for a confirmation that all necessary action had been taken to ensure that the files of pupils whose cases had been submitted to the Complaints Board in recent years were preserved, so as to make it possible to relaunch proceedings before the latter. In its reply to the Ombudsman's request for further information, the Commission noted that, until 13 December 2005, it had not received any such confirmation. The Commission may therefore find it useful to assure itself that the relevant documents will be kept until the Complaints Board is in a position to examine the complainants' case.

2.17 As regards the third issue, that is to say, the duty of the European Schools as regards letters addressed to them, the Ombudsman acknowledges that the Commission made suggestions for the introduction of a Code of Good Administrative Behaviour in the European Schools as early as 2004. According to the Commission, the Board of Governors, at its meeting of 28-30 April 2004 and after having looked at this and other proposals made by the Commission, took note of the relevant document and decided that the question of good administrative practice was to be considered by the Secretary-General in his annual report and that the document was to be referred to committees with a view to its integration into the document on 'Quality Assurance in the European Schools'. The Ombudsman notes, however, that the issue of good administrative practice was not addressed in great detail in the annual report submitted by the Secretary-General for 2004 . Furthermore, the Commission itself, in its reply to the Ombudsman's request for further information, pointed out that its proposal had met with objections in the committee dealing with it and had not been presented to the Board of Governors again. Nor had the document yet been incorporated into the existing document on 'Quality Assurance in the European Schools'. It is true that in this reply, the Commission referred to a document setting out the rules laid down by the Board of Governors for the evaluation of the Directors of the European Schools. According to the Commission, these rules take into account, inter alia, the way in which the Directors deal with correspondence. However, it is clear that such a document cannot be a valid substitute for a Code of Good Administrative Practice in general and for a provision that requires the European Schools to ensure that correspondence addressed to the European Schools is properly dealt with in particular.

For the avoidance of doubt, dealing with letters properly also means that such letters are answered within a reasonable period of time. The fact that the issue raised in such a letter may have been dealt with correctly as to its substance (as the Commission appears to suggest) does not mean that no written reply needs to be given. Besides, the fact that the Commission itself had not received, until 13 December 2005, a reply to its letter to the Secretary-General of 26 September 2005 would appear to confirm the need for further action in this field.

2.18 The Ombudsman is conscious of the fact that the Commission is not itself competent to take action to ensure that correspondence addressed to the European Schools is properly dealt with. However, in view of the Commission's specific responsibility for helping to ensure good administration in the European Schools (see point 2.13 above), the Ombudsman considers that the Commission should play an active role in advocating principles of good administration in the European Schools. The Ombudsman notes that the Commission appears to have made proposals to that effect in 2004. He also notes that, in its reply to his request for further information, the Commission stated that it envisaged asking the Secretary-General to table a specific document to the Board of Governors by January 2006 at the latest. In these circumstances, the Ombudsman considers that there is at present insufficient evidence to warrant a conclusion that there is maladministration as regards this aspect of the case. The complainants are of course free to renew their complaint if it should prove that the Commission is not pursuing this issue vigorously enough.

3 Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3(6) of the Statute of the Ombudsman:

The draft recommendation

The Commission should take the necessary measures to see to it that a proposal is presented to the Board of Governors of the European Schools for an amendment of the implementing provisions as regards the Complaints Board in order to ensure that the complainants' case can be examined by that body.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 15 September 2006. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 31 May 2006

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) Convention defining the Statute of the European Schools, OJ 1994 L 212, p. 3.

(3) According to this decision, the Board of Governors had amended the General Rules of the Schools. The Complaints Board noted that, as a result, it would now have jurisdiction as regards complaints against decisions adopted by the Chairman of the Examining Board as regards administrative appeals. It considered, however, that this change did not have retroactive effect and that it was therefore not in a position to deal with the complainants' case.

(4) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(5) The document referred to in the following passage was however not attached to the Commission's opinion.

(6) The Commission forwarded a copy of an undated document which appears to have been prepared for the meeting of 29 September 2005 and which sets out the reasons for the proposal. The proposal itself was not submitted to the Ombudsman.

(7) A copy of this document ('Règlement d'application concernant la nomination et l'évaluation des directeurs et des directeurs adjoints des Ecoles européennes') was submitted to the Ombudsman.

(8) Convention defining the Statute of the European Schools, OJ 1994 L 212, p. 3.

(9) The CAF appears to be one of the committees which prepare the meetings of the Board of Governors.

(10) If the Commission's interpretation is correct, there would appear to be a marked discrepancy between the position adopted by the Secretary-General in his letter of 30 August 2005 and the approach proposed to the CAF. In the light of his conclusion on this point, the Ombudsman does not, however, consider it necessary to try and find an explanation for this discrepancy.