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

THE COMPLAINT

The complainant works as a seconded national expert ("SNE") for the European Commission. In 2004, she was summoned to appear as a witness before a German court. Her request for one day's special leave for this purpose was rejected on 14 October 2004 on the grounds that the rules in force did not foresee this possibility for SNEs. On 15 November 2004, the complainant lodged an internal complaint under Article 90 (2) of the Staff Regulations of officials of the European Communities (the "Staff Regulations") against this decision. In this complaint, the complainant argued that persons summoned to appear as witnesses were obliged to comply with this order. The complainant further submitted that the duty to appear as a witness before a court did not depend on the position that the relevant person had in the Commission. She added that giving testimony was not a pleasure and that it was therefore not appropriate to oblige SNEs to use a day taken from their entitlement to annual leave for this purpose.

According to the complainant, this complaint was rejected as inadmissible by the Commission on the grounds that SNEs do not have the right to use the procedure foreseen by Article 90 (2) of the Staff Regulations.

Article 6 of Annex V of the Staff Regulations provides that officials may, on application, be granted special leave in addition to annual leave.

According to Heading II.b.3 ("Summons") of the Annex to Commission Decision C(2004) 1587 of 28 April 2004 introducing implementing provisions on leave, officials and other servants may be granted one working day's special leave if they are summoned to testify in a case that does not concern them directly and personally. However, no provision for special leave in such cases is made for SNEs.

In her complaint to the Ombudsman, the complainant alleged that the refusal to grant SNEs special leave when they are summoned to testify before a court constituted discrimination. She claimed that one day should be credited to her leave account for 2004 and that the existing rules should be changed so as to provide for special leave for SNEs in the same way as for officials in cases where they are summoned to testify before a court.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Whereas officials were subject to the Staff Regulations, SNEs were exclusively subject to the Commission Decision of 27 February 2004 governing their position(2) (the "Commission Decision of 27 February 2004"). These two categories of staff were thus subject to different rules.

Furthermore, the Commission was not the employer of SNEs. According to Article 1 (2) of the Commission Decision of 27 February 2004, SNEs remained in the service of their employers throughout the period of their secondment and continued to be paid by their employers.

There was thus no statutory link or other employment relation between the Commission and SNEs, even though, for essentially practical reasons, SNEs depended on the Commission as regards some of their rights, notably in the area of leave. The Commission had nevertheless granted SNEs a certain number of days of normal and special leave. In addition to that, and upon a duly justified request from the SNE's employer, up to two days' special leave in a 12-month period could be granted by the Commission on a case-by-case basis, in accordance with Article 14 (4) of the Commission Decision of 27 February 2004. The complainant had availed herself of this possibility on 14 April and 10 December 2004.

However, on 22 March 2005, the Commission added the following sub-paragraph(3) to Article 14 (4) of the Commission Decision of 27 February 2004:

"Upon a duly justified request from the SNE, additional special leave may be granted by the SNE's Head of Unit in agreement with the Head of Unit responsible for Human Resources of the Directorate-General concerned, if this paid special leave is in the interest of the Commission. DG Personnel and Administration shall be informed."

The Commission had fully respected its Decision of 27 February 2004 in the present case. Not being the employer of SNEs, it was not under an obligation to change this Decision so as to grant ad hoc leave for the purpose of permitting SNEs to appear as witnesses before a court.

The Commission already granted to SNEs numerous possibilities of leave that could be used to cover the needs that might arise during the secondment.

However, given that the above-mentioned amendment of the Commission Decision of 27 February 2004, which provided for the possibility of granting additional days' leave, had recently been adopted, the Commission was ready to grant the complainant an additional day's leave for 2005. This offer was exclusively made with a view to settling the matter and was motivated by the fact that the complainant had asked for leave in order to comply with a duty imposed on her as a citizen. It was not to be considered as a precedent as regards the handling of leave entitlements of SNEs or as regards the margin of discretion of which its services disposed in the matter.

The complainants’ observations

In her observations, the complainant acknowledged the Commission's offer to grant her an extra day's leave. She expressed the view, however, that the Commission had failed to provide a justification as regards the unequal treatment of officials and SNEs in the field concerned.

The complainant submitted that the possibility of granting two days' special leave to an SNE upon a duly justified request from his or her employer was not relevant in the present context but was justified by the position of SNEs, who remained in the service of their employers and continued to be paid by them. She further considered that the new sub-paragraph of Article 14 (4) of the Commission Decision of 27 February 2004 was not likely to help solve future cases of a similar nature, given that it required the granting of leave to be in the Commission's interest and that the present case gave rise to doubts as to whether the Commission really had an interest in seeing SNEs fulfil their duties as citizens.

The complainant also stressed that it was the Commission, and the Commission alone, that decided on the granting of leave for SNEs. In her view, there was no reason that could justify the fact that the Commission treated SNEs differently from its own officials in what concerned the fulfilment of duties imposed on SNEs in their capacity as citizens.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and of the observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegation and her second claim.

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 in order to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal for a friendly solution to the Commission:

The Commission could consider amending or clarifying the existing rules to ensure that seconded national experts may be granted special leave under the same conditions as officials in cases where they have to appear as witnesses before a court.

This proposal was based on the following preliminary conclusions:

The position adopted by the Commission in the present case was not entirely clear. It seemed, however, that the Commission appeared to pursue two main lines of argument. First, the Commission appeared to suggest that it considered that any unequal treatment that might exist was explained by the objective differences between officials and SNEs and thus did not constitute discrimination. Secondly, the Commission appeared to suggest that, in substance, there was no unequal treatment between officials and SNEs, given that the absence of a specific provision allowing for special leave in cases where SNEs have to appear as witnesses before a court was compensated for by the possibility of obtaining special leave under other headings.

As regards the first line of argument, however, the Commission had not provided a satisfactory explanation as to why the existing differences between officials and SNEs could entitle it to treat these two categories of staff differently when it came to deciding on applications for special leave to appear as a witness before a court. As to the second line of argument pursued by the Commission, the possibility afforded by the first sub-paragraph of Article 14 (4) of the Commission Decision of 27 February 2004 did not appear sufficient to allow the conclusion that officials and SNEs were, in substance, treated equally. The second sub-paragraph of Article 14 (4) could only be relevant in the present context if the Commission was ready to accept that granting special leave to SNEs, in cases where they have to appear as witnesses before a court, was in the interest of the Commission. However, it was far from clear that this was indeed the case. Even if the comments made by the Commission were to be understood as meaning that the Commission accepted that the second sub-paragraph of Article 14 (4) could be used in cases such as the complainant's, the need to ensure legal clarity would require that this view be expressed with sufficient precision by the Commission.

In view of the above, the Ombudsman came to the preliminary conclusion that the Commission's failure to treat officials and SNEs alike, as regards requests for special leave to appear as witnesses before a court or, alternatively, the Commission's failure to clarify that it interprets the existing rules so as to avoid an unequal treatment of officials and SNEs in this field, could constitute maladministration.

The Commission's opinion

In its opinion, the Commission made the following comments:

Although, from a legal point of view, the status of a civil servant differed from that of SNEs and although the Commission was not the employer of SNEs, it had always seen to it that the rules applicable to SNEs could not be considered to be discriminatory. In so far as leave was concerned, and with a view to avoiding any discrimination between SNEs and between SNEs and civil servants (who benefited from more days of special leave), the Commission had decided to grant a leave of 2.5 working days for each entire month of service by SNEs, in other words a total of 30 days per year. By way of comparison, a civil servant was entitled to a leave of 2 days per month, that is to say, 24 days per year.

On the occasion of the last revision of the Commission Decision, of 27 February 2004 the Commission had furthermore, again with the intention to achieve an equitable situation,

- aligned the number of days for which leave was granted to SNEs on account of the birth of a child with the number of leave days granted to civil servants (which had been increased from 2 to 10 when the Staff Regulations were amended in 2004);

- granted a new leave of 2 days to SNEs in the event of moving house on taking up employment; and

- added the possibility of a new, additional special leave for SNEs where this paid special leave was in the interest of the Commission.

In addition to a normal leave of 30 days, SNEs thus now disposed of nine types of special leave and the two possibilities of additional leave set out in subparagraphs 1 and 2 of Article 14 (4) of the Commission Decision of 27 February 2004.

In view of the above, the Commission wished to insist that there was no unequal treatment between civil servants and SNEs as regards special leave in the case of a summons to appear as a witness before a court, to the extent that the absence of such a special leave for SNEs was compensated for by the higher number of days of ordinary leave.

The fact of referring SNEs to their Member States, with a view to applying the national law on this issue, whilst at the same time granting them the possibility of absenting themselves from work when they are summoned to testify as a witness before a court, notably, in cases like the present one, where the testimony was not linked to the activities of SNEs during their secondment to the Commission, could not be considered to be discriminatory.

The Commission concluded by saying that it considered to have acted in full conformity with its rules applicable to SNEs. It added that it had already granted the complainant an additional day of ordinary leave for 2005 and that this had been done exclusively with the purpose of finding a solution for the present case.

The complainant's observations

In her observations, the complainant maintained her complaint. She also mentioned that the additional day's leave had not yet been credited to her leave account.

The Ombudsman's appraisal

On the basis of the Commission's opinion and the complainant's observations thereon, the Ombudsman concluded that no friendly solution could be achieved.

THE DECISION

1 Alleged discrimination as regards special leave for seconded national experts

1.1 The complainant works as a seconded national expert ("SNE") for the European Commission. In 2004, she was summoned to appear as a witness before a German court. Her request for one day's special leave for this purpose was rejected by the Commission on 14 October 2004 on the grounds that the rules in force did not foresee this possibility.

1.2 In her complaint to the Ombudsman, the complainant alleged that the refusal to grant SNEs special leave when they are summoned to testify before a court constituted discrimination, given that it was possible to grant special leave to officials in similar circumstances. She claimed that one day should be credited to her leave account for 2004 and that the existing rules should be changed so as to provide for special leave for SNEs in the same way as for officials in cases where they are summoned to testify before a court.

1.3 In its opinion, the Commission stressed that whereas officials were subject to the Staff Regulations of officials of the European Communities (the "Staff Regulations"), SNEs were exclusively subject to the Commission Decision of 27 February 2004 governing their position(5) (the "Commission Decision of 27 February 2004"). The Commission further pointed out that it was not the employer of SNEs, who remained in the service of their employers throughout the period of their secondment and continued to be paid by their employers. According to the Commission, there was thus no statutory link or other employment relation between the Commission and SNEs, even though, for essentially practical reasons, these SNEs depended on the Commission as regards some of their rights, notably in the area of leave. The Commission added that it had nevertheless granted SNEs a certain number of days of normal and special leave. In addition to that, and upon a duly justified request from an SNE's employer, a special leave of up to two days in a 12-month period could be granted by the Commission on a case-by-case basis, in accordance with the first sub-paragraph of Article 14 (4) of the Commission Decision of 27 February 2004.

The Commission further pointed out that the following sub-paragraph(6) had recently been added to Article 14 (4) of the Commission Decision of 27 February 2004:

"Upon a duly justified request from the SNE, additional special leave may be granted by the SNE's Head of Unit in agreement with the Head of Unit responsible for Human Resources of the Directorate-General concerned, if this paid special leave is in the interest of the Commission. DG Personnel and Administration shall be informed."

The Commission submitted that it had fully respected its Decision of 27 February 2004 in the present case and that it already granted to SNEs numerous possibilities of leave that could be used to cover the needs that might arise during the secondment.

It added, however, that since the newly adopted amendment to the Commission Decision of 27 February 2004 provided for the possibility of granting additional days of leave, it was ready to grant the complainant an additional day of leave for 2005. The Commission stressed that this offer was exclusively made with a view to settling the matter and was motivated by the fact that the complainant had asked for leave in order to comply with a duty imposed on her as a citizen. It added that it was not to be considered as a precedent as regards the handling of leave entitlements of SNEs or as regards the margin of discretion of which its services disposed in the matter.

1.4 In her observations on this opinion, the complainant maintained her complaint.

1.5 Upon having examined the Commission's opinion and the complainant's observations, the Ombudsman noted that the Commission had offered to grant the complainant an additional day's leave. However, the Commission had added that this offer was made with a view to settling the matter. Given that the complainant had made it clear, in her observations on the Commission's opinion, that the Commission had not satisfactorily replied to the more general aspect of her complaint, the Ombudsman concluded that no settlement had been achieved so far in the present case. It was therefore necessary to deal with the substance of the complainant's case, that is to say, the alleged discrimination between officials and SNEs in so far as the grant of special leave was concerned.

1.6 On 6 September 2005, the Ombudsman submitted a proposal for a friendly solution to the Commission in which he invited the latter to consider amending or clarifying the existing rules to ensure that SNEs may be granted special leave under the same conditions as officials in cases where they have to appear as witnesses before a court.

1.7 In its reply to that proposal, the Commission pointed out that SNEs were granted a leave of 2.5 working days for each entire month of service, in other words a total of 30 days per year, whereas a civil servant was only entitled to a leave of 2 days per month, that is to say 24 days per year. The Commission further submitted that on the occasion of the last revision of its Decision of 27 February 2004, it had (1) aligned the number of days for which leave was granted to SNEs on account of the birth of a child with the number of days for which leave granted to civil servants, (2) granted a new leave of 2 days to SNEs in the event of moving house on taking up employment, and (3) added the possibility of a new, additional special leave for SNEs where this paid special leave was in the interest of the Commission. In addition to the normal leave of 30 days, SNEs thus now disposed of nine types of special leave and the two possibilities of additional leave set out in subparagraphs 1 and 2 of Article 14 (4) of the Commission Decision of 27 February 2004. In view of these facts the Commission insisted that there was no unequal treatment between civil servants and SNEs as regards special leave in case of a summons to appear as a witness before a court, to the extent that the absence of such a special leave for SNEs was compensated for by the higher number of days of ordinary leave. The Commission added that the fact of referring SNEs to their Member States, with a view to applying the national law on this issue, whilst at the same time granting them the possibility of absenting themselves from work when they are summoned to testify as a witness before a court, notably, in cases like the present one, where the testimony was not linked to the activities of SNEs during their secondment to the Commission, could not be considered to be discriminatory.

The Commission concluded that it considered that it had acted in full conformity with its rules applicable to SNEs. It added that it had already granted the complainant an additional day of ordinary leave for 2005 and that this had been done exclusively with the purpose of achieving a solution in the present case.

1.8 In her observations on this opinion, the complainant maintained her complaint. . She also mentioned that the additional day of leave had not yet been credited to her leave account.

1.9 T he Ombudsman notes that it emerges from the Annex to Commission Decision C(2004) 1587 of 28 April 2004 introducing implementing provisions on leave (excerpts from which were submitted by the complainant), that officials and other servants of the Commission may be granted one working day's special leave if they are summoned to testify in a case which does not concern them directly and personally. The relevant text notes, however, that no provision for special leave in such cases exists for SNEs. On the basis of this provision, a difference in treatment thus appears to exist between officials (and other servants) on the one hand and SNEs on the other hand.

1.10 In its opinion on the complaint, the Commission stressed the differences between officials and SNEs. These submissions appeared to suggest that the Commission considered that any unequal treatment that might exist was explained by the objective differences between officials and SNEs and thus did not constitute discrimination. The Ombudsman accepts that there are important differences between officials on the one hand and SNEs on the other hand. It should be noted, however, that what needs to be compared in the present case is not the position of these categories of Commission staff in general but their position as regards the concrete situation in which the members of the Commission's staff find themselves when they are called upon by a court to appear as witnesses in a case which does not concern them directly or personally. The Commission does not dispute that a person who is called upon to give testimony in such circumstances fulfils a duty that is incumbent upon that person in his or her capacity as a citizen. However, the Ombudsman fails to see how the fact that a person is an official or an SNE could be relevant in this context. The duty to comply with a request made by a court to appear as a witness flows from the duty that the person concerned has as a citizen, and not from his capacity as an official or an SNE. In the Ombudsman's view, it has not been shown how the differences between the respective status of officials and SNEs could entitle the Commission to treat these two categories of staff differently when it comes to deciding on applications for special leave to appear as a witness before a court.

The Ombudsman notes that the Commission does not appear to maintain this line of argument in its reply to his proposal for a friendly solution. However, the Commission again stresses in this reply that it is not the employer of SNEs but that SNEs remain in the employment of the national authorities seconding them to the Commission. It is therefore useful to recall that the Commission does not dispute that decisions on leave as regards SNEs are taken by itself and not by the seconding national authorities. The fact that the Commission is not the employer of SNEs is thus without relevance in the present context.

1.11 In its opinion on the complaint, the Commission appeared to rely on the fact that the rules in force provide for further possibilities of granting special leave to SNEs that could be used to cover the needs that might arise during the secondment. In its reply to the Ombudsman's proposal for a friendly solution, the Commission also referred to the differences between officials and civil servants as regards normal leave. The Commission thus appears to suggest that, in substance, there was no unequal treatment between officials and SNEs, given that the absence of a specific provision allowing for special leave in cases where SNEs have to appear as witnesses before a court is compensated for by the fact that SNEs obtain more normal leave than officials and by the possibility of obtaining special leave under other headings.

1.12 In order to deal with this argument, the Ombudsman considers it appropriate to distinguish between normal leave and special leave.

1.13 As regards normal leave, it is true that SNEs obtain a leave of 30 working days per year whereas the basic entitlement for officials provides for a leave of only 24 working days. However, regard should be had to the fact that the Staff Regulations and Commission Decision C(2004) 1587 of 28 April 2004 introducing implementing provisions on leave foresee that Commission officials are eligible for further days of leave on account of their age (up to 6 days) and their category (up to 3 days), and that travelling time (up to 6 days) is added, depending on the distance between the place of employment and the place of origin of these officials. As regards SNEs, Article 14 (5) of the Commission Decision of 27 February 2004 stipulates that the entitlement to annual leave of 30 working days shall be "considered exhaustive. In particular, no further entitlement shall be allowed in respect of travel, age or category." This means that whereas the normal leave of SNEs in every case amounts to 30 working days per year, officials receive a minimum of 24 days to which a number of further days will be added as mentioned above. The comparison between the leave entitlement of SNEs (30 days) and the basic leave entitlement of officials (24 days) would thus appear to be inappropriate. In any event, the Commission has not explained how any such difference between SNEs and officials as regards the entitlement to normal leave could justify the difference in treatment as regards special leave. The Ombudsman finds it useful to note that the Commission itself mentions that it recently aligned the number of days of (special) leave granted to SNEs on account of the birth of a child with the number of days of leave granted to civil servants. This would appear to suggest that even in the Commission's own opinion, SNEs and officials are comparable at least as regards certain types of special leave.

1.14 As regards special leave, the Ombudsman notes that the Commission refers to Article 14 (4) of the Commission Decision of 27 February 2004 in this context.

1.15 The first sub-paragraph of this provision foresees the possibility of granting SNEs up to two days of special leave in a 12-month period to SNEs. Given that this provision does not specify the grounds on which such special leave can be granted, it does not appear to be excluded that this provision may be invoked in cases where an SNE has to appear as a witness before a court. It should be noted, however, that the said provision only applies when a duly specified request is made by an SNE's employer whereas officials can themselves directly apply to the Commission for special leave in similar circumstances. It should also be noted that the said provision foresees a maximum of two days of special leave per 12 months, whereas the rules applicable to officials could be interpreted in the sense that one day's special leave can be granted whenever the official has to give testimony before a court. In its reply to the Ombudsman's proposal for a friendly solution, the Commission did not dispute that this interpretation was possible. In the Ombudsman's view, the possibility afforded by the first sub-paragraph of Article 14 (4) of the Commission Decision of 27 February 2004 is thus not sufficient to justify the conclusion that officials and SNEs are, in substance, treated equally.

1.16 The second sub-paragraph of Article 14 (4) of the Commission Decision of 27 February 2004, which was added to this provision in 2005, does not contain any such limitation. It should be noted, however, that this provision is only applicable where the special leave requested by an SNE is "in the interest of the Commission". The relevant provision could thus only be relevant in the present context if the Commission were ready to accept that granting special leave to SNEs in cases when they are summoned to testify as witnesses before a court is in the interest of the Commission. However, it is far from clear that this is indeed the case. In his proposal for a friendly solution, the Ombudsman noted that the comments that the Commission had made in its opinion on the complaint could also be interpreted in the opposite sense. In its reply to this proposal, the Commission nevertheless refrained from clarifying whether it considered that granting special leave to SNEs who has to appear as a witnesses before a court is or can be "in the interest of the Commission". Even if the Commission's submissions were to be understood as meaning that the Commission accepted that the second sub-paragraph of Article 14 (4) could be used in cases such as the complainant's, the need to ensure legal clarity would require that this view be expressed with sufficient precision in the relevant rules. In the Ombudsman's view, this could for example be achieved by amending the Commission Decision on SNEs of 27 February 2004 or its Decision of 28 April 2004 introducing implementing provisions on leave. It should be noted that the relevant section of the latter Decision still states that "no provision for special leave" exists for SNEs in cases where they are called upon to give testimony before a court.

1.17 In view of the above, the Ombudsman comes to the conclusion that the Commission's failure to treat officials and SNEs alike, as regards requests for special leave to appear as witnesses before a court or, alternatively, the Commission's failure to clarify that it interprets the existing rules such as to avoid an unequal treatment of officials and SNEs in this field, constitutes maladministration.

1.18 The Ombudsman considers it useful to add, for the avoidance of any possible misunderstanding, that he is fully aware of the fact that the Commission has discretion as to whether to grant special leave to an official who has to appear as a witness before a court. The above-mentioned conclusion of maladministration thus concerns the absence of a corresponding discretionary power to grant special leave to SNEs (or the Commission's failure to clarify that such a corresponding discretionary power exists with regard to requests for special leave in such circumstances). The Ombudsman also finds it useful to recall that the present inquiry only concerns cases where officials or SNEs are called upon to give evidence in cases in which they are not directly or personally concerned. As the Commission's Decision of 28 April 2004 explains, such special leave may thus only be granted if the applicant is not involved in the case, that is to say if he is not under investigation, the SNE being either the party bringing a civil action or the opposing party in such a case.

2 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 amend or clarify the existing rules to ensure that seconded national experts may be granted special leave under the same conditions as officials in cases where they have to appear as witnesses before a court and apply these rules to the complainant's case.

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 30 April 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, 2 February 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) Commission Decision C(2004) 577 of 27 February 2004 concerning the amendment of Decision C(2002) 1559 of 30 April 2002, amended by Decision C(2003) 406 of 31 January 2003, laying down rules on the secondment of National Experts to the Commission.

(3) Commission Decision C(2005) 872 of 22 March 2005.

(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) Commission Decision C(2004) 577 of 27 February 2004 concerning the amendment of Decision C(2002) 1559 of 30 April 2002, amended by Decision C(2003) 406 of 31 January 2003, laying down rules on the secondment of National Experts to the Commission.

(6) Commission Decision C(2005) 872 of 22 March 2005.