Made in accordance with Article 3(5) of the Statute of the European Ombudsman^[1]

The complainant was awarded financial compensation in a court case against the former EU security reform support mission in Guinea-Bissau. However, after appeal, the mission was found to enjoy immunity. Consequently, the court's decision could not be enforced. The complainant then turned to the Ombudsman for help.

The Ombudsman found that using immunity to avoid having to implement a judgment entails serious risks for the EU, namely of it being perceived as disrespectful of decisions delivered by foreign judicial authorities when these decisions are not in its favour. Therefore, she proposed a solution to the EEAS that it pays the complainant a fair compensation.

Background

1. The complainant worked for the (no longer existing) EU Mission in Support of the Security Sector Reform in Guinea-Bissau (the 'Mission') on the basis of a fixed-term contract governed by the labour law of Guinea-Bissau. In 2010, the complainant filed an action with the Regional Court of Bissau (the 'Court') against the decision not to renew her contract, asking for compensation.

2. On 28 April 2010, the Court ruled that no conciliation on the matter was possible due to what it considered to be the Mission's repeated unjustified absences from the settlement meetings that it had been notified to attend. In its ruling, the Court acknowledged the complainant's right to seek redress against the termination of her contract, and to request compensation, through an action in a court of law.

3. On 28 May 2010, the Court requested the Ministry for Foreign Affairs of Guinea-Bissau (the 'Ministry'), to notify the Mission that the complainant had initiated court proceedings against it.

4. On 28 July 2010, the Court requested the Ministry to confirm that the Mission had been duly notified of the request to submit observations on the complainant's pleas.

5. In the meantime, on 7 July 2010, and also on 11 September 2010, the complainant informed the High Representative of the EU for Foreign and Security Policy (the 'High Representative') about the Court proceedings against the Mission.

6. On 28 September 2010, the Civil Operations Commander (the 'COO')[2] replied to the complainant, by e-mail, expressing regret, on behalf of the High Representative, at the fact that the complainant's contractual relationship with the Mission had not ended on good terms. The COO explained that the contract between the complainant and the Head of the Mission ('HoM') was subject to the applicable social and labour laws of Guinea-Bissau. He emphasised that the EU institutions have no authority to intervene in legal relationships between HoMs and employees of Missions. Therefore, any relating claims could be resolved directly between the employer and the employee only, either by mediation or through the legal means available under the legislation of the country in question. The COO assured the complainant, however, that the EU would fully respect the outcome of the legal proceedings before the competent judicial authorities of Guinea-Bissau on the matter.

7. On 10 January 2011, the Court gave its decision. According to its ruling, the Mission had not presented any observations on the complainant's pleas, despite having been notified of a request to do so. The Court therefore ordered the Mission to pay the complainant an amount of FCFA 23 216 373 (circa EUR 35 000 at current rate) in compensation for lost income and the nuisance caused.

8. In April 2011, the European External Action Service (EEAS) appealed the Court's decision.

9. In April 2014, the Appeal Court ruled that the Mission enjoyed immunity and that no measures to execute the Court's decision could be adopted.

10. In June 2014, the complainant turned to the European Ombudsman regarding the matter (complaint 1588/2014/JF).

The inquiry

11. On the basis of the complaint, the Ombudsman opened an own initiative inquiry into the following allegation and claim[3]:

1) The EEAS failed to comply with the Court's ruling of 10 January 2011.

2) The EEAS should comply with that ruling.

12. In the course of the inquiry, the Ombudsman received the opinion of the EEAS as well as the comments of the complainant in response to the EEAS's opinion. The Ombudsman's services carried out an inspection of the relevant EEAS file. The Ombudsman's friendly solution proposal takes into account the arguments and opinions put forward by the parties, as well as the information in the EEAS file.

Allegation of failure to comply with the Court's ruling

Arguments presented to the Ombudsman

13. According to the complainant, the EEAS failed to respect the institutions of Guinea-Bissau.

14. In its opinion, the EEAS stated that the Mission had offered compensation to the complainant equivalent to three months' salary, in accordance with the local law. The complainant, however, refused this offer and went to the Court instead. According to the EEAS, "no EU/Mission representative ever received a summons from this Court enabling it to defend the case" and the judgment was, therefore, delivered in absentia. In addition to that, the Court calculated the compensation it awarded on the basis of the complainant's lost income until January 2011, while the Mission ended on 30 September 2010. The Court's decision was later overruled by the Appeal Court and considered unenforceable, in line with the Status of Mission Agreement signed between the EU and Guinea-Bissau[4].

15. The complainant contested the EEAS's position that the Mission did not know about the Court proceedings. She enclosed a copy of a letter from the Ministry to the Mission, dated 4 June 2010, notifying it of the complainant's Court action against the Mission, as requested by the Court on 28 May 2010. She pointed to the Mission's stamp, acknowledging receipt of the letter on 7 June 2010, which is visible on that letter.

16. The complainant also argued that the Appeal Court had not overruled the Court's judgment, but rather recognised that, because of the Mission's immunity, this judgment could not be enforced.

17. Finally, the complainant stated that the Mission's mandate ended on 30 November 2010 and not on 30 September 2010.

The Ombudsman's preliminary assessment leading to the solution proposal

18. This inquiry concerns the alleged failure to respect a court ruling. The question as to whether the termination or non-renewal of the complainant's employment contract was justified falls outside the scope of the Ombudsman's inquiry. This issue has, moreover, already been decided upon by the competent Court of Bissau and the Ombudsman cannot, therefore, inquire into this matter[5]. Nor is the Ombudsman entitled to question the soundness of a Court's ruling[6].

19. According to the Court, the Mission did not make any observations on the complainant's pleas, despite having been notified of a request to submit such observations. On the basis of the laws of Guinea-Bissau, the Court considered the Mission to have accepted the complainant's pleas. The Court's ruling therefore ordered the Mission to pay the complainant compensation for lost income and the nuisance caused.

20. The EEAS argued that the Mission received no notifications from the Court about the proceedings. The complainant, however, submitted evidence to the Ombudsman that suggests the opposite. The copy of the Ministry's letter of 4 June 2010 appears to give effect to the Court's request of 28 May 2010 for the Ministry to notify the Mission of the proceedings initiated by the complainant against it[7]. The Mission's stamp on the Ministry's letter, acknowledging its receipt, is dated 7 June 2010, and the letter also bears a signature, presumably of a member of the Mission's staff. It would, therefore, seem that someone at the Mission received a notification of the Court proceedings long before the Court delivered its judgment. Consequently, the fact that "no EU/Mission representative" made any observations on the complainant's pleas, and that the Court's ruling was delivered in absentia, does not, in the Ombudsman's view, and at first sight, constitute a valid reason for not respecting the outcome of the legal proceedings before the Court.

21. It appears the only reason why the Court's ruling of 10 January 2011 was not enforced was because the Appeal Court found that the Mission enjoyed immunity. The Ombudsman has not been provided with any information to suggest that the Appeal Court put into question the Court's ruling on the substance (which was a writ of execution, that is, it contained an order that the judgment be enforced). The Appeal Court appears simply to have ruled that, because of the Mission's immunity, no enforcement measures could be taken against the Mission[8].

22. The Ombudsman notes further that the COO had informed the complainant that, because EU institutions have no authority to intervene in legal relationships between HoMs and Missions' employees, employment related claims were to be resolved directly between the employer and the employee, either by mediation or "through the legal means available under the legislation of the country in question". The COO has also stated that "the EU respects fully the outcomes of legal proceedings of the competent judicial authorities of Guinea-Bissau on the matter".[9] The complainant chose to turn to Court regarding the matter. The Court first tried conciliation between the parties and later, when this failed, dealt with the case in formal proceedings. The complainant thus complied with the procedure that the COO considered appropriate. The EEAS did not comment, in its opinion to the Ombudsman, on any of the statements made by the COO.

23. The EEAS eventually chose to rely on the Mission's immunity and not to comply with the Court's ruling of 10 January 2011. The Ombudsman considers that, whereas the immunity was clearly established by the Appeal Court, the fact that the complainant had obtained a judgment in her favour on the substantive issue cannot be ignored when assessing the issue from the perspective of what constitutes good administrative behaviour by the Mission and/or the EEAS. The Ombudsman's preliminary assessment is that there is merit in the positions put forward by each of the parties. However, clarifying and analysing fully the legal issues at stake would require specific expertise and knowledge of, for instance, the laws of Guinea-Bissau. Such expertise and knowledge is not available to the Ombudsman. Furthermore, an analysis of that nature could possibly be contrary to the provision in the Ombudsman's Statute providing that the Ombudsman may not question the soundness of a court's ruling[10].

24. Notwithstanding the above, the Ombudsman is of the view that using immunity as an argument for not implementing a judgment entails the risk of the EU being perceived as disrespectful of substantive decisions delivered by the judicial authorities of sovereign States where these decisions are not in the EU's favour.

25. The Ombudsman notes that, before the issue was brought before the Court, the Mission offered the complainant compensation equivalent to three months' salary. The Court, however, awarded the complainant compensation corresponding to 20 months' salary. It is clear that this compensation covers a period when the Mission no longer existed. The Ombudsman considers that a fair and adequate solution could consist of the EEAS paying the complainant what the Court awarded to her, less payment for those months when the Mission was no longer in existence[11].

26. In light of the above, the Ombudsman proposes the following solution, in accordance with Article 3(5) of the Statute of the European Ombudsman:

The proposed solution

The Ombudsman proposes that the EEAS pays the complainant compensation equivalent to sixteen months of salary.

Emily O'Reilly

Strasbourg, 20/07/2015

 

 

[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2]  The COO's mail address was cpcc.secretariat@consilium.europa.eu. According to the EEAS's website, 'CPCC' stands for Civil Planning and Conduct Capability which is "mandated to plan and conduct civilian Common Security and Defence Policy missions [and to] provide assistance and advice to the High Representative".

[3] The Treaty on the Functioning of the European Union ('TFEU') empowers the Ombudsman to investigate complaint submitted by "[a]ny citizen of the Union or any natural or legal person residing or having its registered office in a Member State." Given that the complainant did not appear to fall within any of these categories, the Ombudsman decided, on the basis of Article 228 TFEU, to open an own-initiative inquiry into the matter raised by the complainant, in view of its potential impact on the image and reputation of the Union in third countries. The complainant later clarified that she is an EU citizen.

[4] Agreement between the European Union and the Republic of Guinea-Bissau on the Status of the European Union Mission in Support of Security Sector Reform in the Republic of Guinea-Bissau (OJ 2008 L 219, p. 66).

[5] Article 228 of the Treaty on the Functioning of the European Union empowers the European Ombudsman to receive complaints “[c]oncerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies… except where the alleged facts are or have been the subject of legal proceedings.” (emphasis added)

[6] Article 1(3) of the Ombudsman's Statute.

[7] In its letter of 4 June 2010, the Ministry informs the Mission that it received a note, dated 28 May 2010, from the Court, whereby the Court requests it to notify the Mission about the proceedings (in the original Portuguese: "[T]ribunal Regional de Bissau... serve-se da presente para solicitar... a vossa exc. no sentido de citar a Missão... no âmbito do processo que corre os seus termos nesta instância judicial...". (The Regional Court of Bissau... requests you through this note... to notify the Mission... in the context of the ongoing proceedings in this jurisdiction...) (Free translation by the Ombudsman) The Ministry attached a copy of the note to its letter to the Mission.

[8] In the original Portuguese: "[c]om base nesses considerandos e apesar da validade do título executivo, as legislações acima referidas impedem a aplicação de qualquer medida de execução à ora executada por esta gozar de imunidades." (emphasis added) (In light of these observations, and despite the validity of the writ of execution, the laws mentioned above prevent the application of any enforcement measure to the judgment debtor due to the fact that it enjoys immunities). (Free translation by the Ombudsman).

[9] According to the COO's e-mail to the complainant of 28 September 2010, enclosed by the complainant with her complaint and forwarded to the EEAS for its opinion.

[10] Article 1(3) of the Ombudsman's Statute.

[11] According to the 'Factsheet on the EU SSR Guinea-Bissau' available on the EEAS's website, the Mission's "[l]ast extension ended on 30 September 2010, date on which the mission closed down."