Dear Ms T.,

On 15 November 2000 you made a complaint to the European Ombudsman against the European Commission concerning your employment relationship within the framework of a service contract between the European Community represented by the European Commission and Cohausz Hannig Dawidowicz & Partner, Patent- und Rechtsanwalts-Kanzlei. This service contract was concluded on 15 July 1998 for the implementation of a service to help participants in Community research and technological development activities in dealing with intellectual property issues (IPR Helpdesk).

On 20 December 2000, I forwarded the complaint to the President of the European Commission. On 13 December 2000, you sent further documents which I forwarded to the European Commission. The Commission sent its opinion on 15 March 2001. I forwarded it to you with an invitation to make observations, which you sent on 30 April 2001. On 18 October 2001, I forwarded your observations to the Commission with a request to review the additional information provided by you in your observations regarding the alleged financial irregularities by Eupat and if necessary to provide for a complementary opinion. On 7 December 2001, the Commission sent a complementary opinion which was forwarded to you for your observations. On 27 February 2002, you sent your observations on the Commission's complementary opinion.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the facts are as follows. On 15 July 1998, the European Community represented by the European Commission and Cohausz Hannig Dawidowicz & Partner, Patent- und Rechtsanwalts-Kanzlei concluded a service contract for the implementation of a service to help participants in Community research and technological development activities in dealing with intellectual property issues (IPR Helpdesk). The contractor Cohausz Hannig Dawidowicz & Partner Patent- und Rechtsanwalts-kanzlei is assisted by two partners, one of which is Eupat S.à.r.l. (hereafter 'Eupat'), established in Luxembourg. The complainant was employed as a receptionist at Eupat on the basis of an employment contract dated 3 May 1999 between Eupat and the complainant.

The complainant alleges that she was recruited as a receptionist, with a salary lower than those of her colleagues who are secretaries, although the Manager of Eupat requires her to provide the same work as a secretary. On 8 September 2000, the complainant contacted the Commission and informed it that the Manager of Eupat had required her to sign an "annex" according to which she would renounce her social rights, whereas the contract with the Commission binds the Manager to respect the social laws in force in Luxembourg. After having made this known to the Commission, no follow-up has been taken. The Commission has not deemed appropriate to take a position nor to intervene in view of a clarification of such dubious situation. Furthermore, the complainant alleges that the wife of the Manager has received a salary, financed by the European Commission, for a fictitious employment.

On 29 September 2000, the Commission informed the complainant that her letter and its annexes had been transferred to the Legal Service of the European Commission. Until 15 November 2000, she had not received a reply from the Commission.

The complainant makes the following allegations and claim:

1) The complainant alleges that she was recruited as a receptionist, with a salary lower than that of a secretary. The complainant claims requalification of her post and payment of the salary difference with interest.

2) The complainant alleges lack of follow-up by the European Commission to her letter of 8 September 2000.

3) The complainant alleges financial irregularity within Eupat.

THE INQUIRY

The Commission's opinion

The Commission made in its opinion the following comments:

Within the framework of its activities in support of Innovation, a service contract was concluded with Cohausz Hannig Dawidowicz & Partner, Patent- und Rechtsanwalts-Kanzlei on 15 July 1998 for the implementation of a service to help participants in Community research and technological development activities in dealing with intellectual property issues (IPR-Helpdesk).

This contract is subject to an Addendum signed on 10 August 2000. Pursuant to this Addendum, in the execution of its contractual tasks the contractor is assisted by two partners, one of which is Eupat, established in Luxembourg.

According to the Commission, the issues raised by the complainant can be grouped under two headings:

I - Request for job requalification and payment of the salary difference with interest

The complainant is employed by Eupat, a company with its own legal personality established in, and subject to, the laws and jurisdiction of the Grand Duchy of Luxembourg. As such, there is no direct contractual link between the complainant and the European Commission. Eupat is one of the partners of another company, Cohausz Hanning Dawidowicz & Partner, Patent- und Rechtsanwalts-Kanzlei, established in Düsseldorf, which has signed a contract with the European Community, represented by the European Commission, to implement a support service in the area of intellectual property rights (IPR Helpdesk) to participants in Community research activities. Being an employee of another legal entity, the exercise of the legal powers normally vested in employers vis-à-vis their employees under the relevant laws belongs to the employer, Eupat, and not to the European Commission, with which the complainant has no contractual or statutory link. This is also confirmed by Article 2.1.2 of Annex II to the above-referenced contract which states that "The duty to respect provisions on safety at work, working hours and all other relevant legislation is incumbent solely on the contractor." It is beyond the powers of the Commission to requalify the complainant's post and pay the difference in her salary retroactively with interest, as requested.

II - Absence of any decision or position by the Commission

In a letter to the Commission services dated 8 September 2000, the complainant reports several claims of misconduct against her employer, which would be in violation of the relevant labour and social rules. The Commission services replied to that letter on 29 September 2000, acknowledging receipt of the complaint and informing the complainant that her case had been put forward for legal advice by the competent services of the Directorate-General. The complainant was further informed that she would be kept informed of any possible follow-up given to the file in question. Following the above mentioned letter, the Commission services have addressed to the Manager of Eupat, a letter asking him to clarify certain aspects relating to the employment contracts binding Eupat and its employees, and drawing attention to the need to respect the Luxembourg laws and regulations in performing the tasks assigned in the framework of the IPR-Helpdesk contract and to the fact that there should be no discrepancy between the function described in the employment contract of the employed staff and the corresponding one in the contract signed with the Commission.

Following a first reply by the Manager on 23 November 2000, which the Commission did not find completely satisfactory the Commission services addressed to him a second letter on 15 December 2000, insisting on a written confirmation of the following:

"-the employment contracts binding Eupat and all its former and current employees fully respected and respect the Luxembourg laws and regulations".

"-the function description and title in all Eupat employment contracts are identical to the one stated in the contracts binding CHDP with the European Commission."

By letter dated 28 December 2000, the Manager confirmed both these two statements in writing.

In its letter of 16 November 2000 to the complainant the Commission services also informed that even if the European Commission is not a party to any legal action relating to the employer's obligation, it is nevertheless interested in its results because of the consequences it may have on the contractor's contractual obligations to the Commission.

It is therefore not appropriate to claim that the Commission staff involved have not followed up the complainant's letter of 8 September 2000.

The Commission position, which in view of the nature of the issues raised has only recently been forwarded to the complainant, is that the possible claims which the latter may have against the employer on the basis of the employment contract between them are to be settled before the competent Luxembourgish authorities and jurisdictions, in accordance with the relevant laws and regulations.

This is confirmed by the advice given to the complainant by the Luxembourgish "Inspection du Travail et des Mines", to whom the complainant also addressed similar claims. According to the Luxembourgish authority, it is up to the courts to assess the employment situation and where appropriate requalify the employment contract and allocate any compensation deemed justified. The complainant herself seems to share this approach when, in her letter of 8 September 2000 to the Commission, she mentions that she had written to the competent Luxembourg authorities and was looking forward to meet her lawyer shortly with a view to launching the necessary legal proceedings.

As far as the allegation regarding the fictitious employment of the wife of the Manager is concerned, the complainant does not provide any elements to substantiate the claim, enabling the Commission to provide a proper reply.

Having regard to the above, the Commission considers that the conflict between the complainant and her employer should be settled before the competent authorities and jurisdictions of Luxembourg, but reserves the right to take any appropriate measure vis-à-vis its contractors, should any irregularity be verified by the competent instances.

It goes without saying that this does not preclude any appropriate steps being taken in the meanwhile within the limits of its contract with Eupat, such as an audit or other inspection measure, to assess the strict compliance of the contractual obligations by the contractors concerned.

The complainant's observations

The complainant took careful note of the Commission's conclusion that the conflict between the complainant and her employer should be settled before the competent authorities and jurisdictions of Luxembourg. However, the complainant maintained that on the Eupat list of staff she is listed under "secretaries", but that she is categorised as a "receptionist" on her salary slips. The complainant provided additional information about the alleged irregularities within Eupat. This additional information on the alleged financial irregularities will be forwarded to the Commission with a request to keep the European Ombudsman informed of a possible follow-up given to the matter.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. Therefore, the Ombudsman forwarded the complainant's observations to the Commission with a request to review the additional information provided by the complainant in her observations regarding the alleged financial irregularities by Eupat and if necessary to provide for a complementary opinion.

The Commission's complementary opinion

According to the Commission, the complainant has not provided any elements to substantiate the claim of financial irregularities by Eupat. The material provided by the complainant in her observations in no way proves the existence of an employment relationship Eupat and the Manager's wife, let alone that such a relationship is a fictional one financed by the European Commission. The Commission pointed out that European Anti-Fraud Office (OLAF) has indicated that it has opened an inquiry on 21 March 2001.

Finally, the Commission stated that the complainant's observations and documents attached thereto did not justify any change of its position as stated in its previous opinion to the Ombudsman.

The complainant's complementary observations

The complainant maintained her complaint and annexed a copy of the acknowledgment of receipt letter from OLAF dated 23 January 2002.

THE DECISION

1 Requalification of the complainant's post and payment of the salary difference with interest

1.1 The complainant alleges that she was recruited as a receptionist with a salary lower than those of her colleagues who are secretaries, but the Manager of Eupat requires her to provide the same work as a secretary. The complainant claims that the Commission should requalify her post and pay the salary difference with interest.

1.2 The Commission in its opinion stated that being an employee of another legal entity, the exercise of the legal powers normally vested in employers vis-à-vis their employees under the relevant laws belongs to the employer, Eupat, and not to the European Commission, with which the complainant has no contractual or statutory link. This is also confirmed by Article 2.1.2 of Annex II to the above-referenced contract which states that "The duty to respect provisions on safety at work, working hours and all other relevant legislation is incumbent solely on the contractor." It is beyond the powers of the Commission to requalify the plaintiff's post and pay the difference in her salary retroactively with interest, as requested.

1.3 Based on the Ombudsman's inquiries it appears that the complainant has no contractual or statutory link with the Commission. Therefore, the Commission is not in a position to requalify the complainant's post and pay the salary difference with interest. There appears to be no maladministration by the Commission regarding this aspect of the case.

2 Alleged lack of follow-up by the Commission

2.1 According to the complainant, on 8 September 2000 she informed the Commission that the Manager of Eupat required her to sign an "annex" according to which she would renounce to her social rights, whereas the contract with the European Commission binds the Manager to respect the social laws in force in Luxembourg. The complainant claims that after having made the facts known to the European Commission, no follow-up has been given and the Commission has not deemed appropriate to take a position nor to intervene in view of a clarification of such dubious situation.

2.2 The Commission in its opinion explained its services replied to the complainant on 29 September 2000, acknowledging receipt of the complaint and informing the complainant that her case had been put forward for legal advice by the competent services of the Directorate-General. The complainant was further informed that she would be kept informed of any possible follow-up given to the file in question. On 23 November 2000, the Commission addressed a letter to the Manager of Eupat asking him to clarify certain aspects relating to the employment contracts binding Eupat and its employees, and drawing attention to the need to respect the Luxembourg laws and regulations in performing the tasks assigned in the framework of the IPR-Helpdesk contract and to the fact that there should be no discrepancy between the function described in the employment contract of the employed staff and the corresponding one in the contract signed with the Commission. On 28 December 2000, after a second letter from the Commission on 15 December 2000 the Manager of Eupat gave the following confirmation to the Commission:

"-the employment contracts binding Eupat and all its former and current employees fully respected and respect the Luxembourg laws and regulations".

"-the function description and title in all Eupat employment contracts are identical to the one stated in the contracts binding CHDP with the European Commission."

2.3 According to the Commission it is therefore not appropriate to claim that following the complainant's letter of 8 September 2000, no follow-up has been given to the matter by the Commission. The Commission considered that the conflict between the complainant and her employer should be settled before the competent authorities and jurisdictions of Luxembourg, and reserves the right to take any appropriate measure vis-à-vis its contractors, should any irregularity be verified by the competent instances. Furthermore, the Commission underlined that this does not preclude any appropriate steps being taken in the meanwhile within the limits of the contract, such as an audit or other inspection measure, to assess the strict compliance of the contractual obligations by the contractors concerned.

2.4 The Ombudsman's inquiries indicate that the Commission has sent an acknowledgement of receipt to the complainant on 29 September 2000. On 23 November and on 15 December 2000, the Commission addressed letters to the Manager of Eupat asking him to clarify certain aspects of the employment contracts between Eupat and its employees. Furthermore, the Commission requested confirmation that the company is respecting Luxembourg laws and regulations. The Commission appears to have reserved the right to take any appropriate measure vis-à-vis its contractors, should any irregularity be verified by the competent instances. Based on the above findings, it appears that the Commission has made a follow-up of the complainant's letter of 8 September 2000. Therefore, there appears to be no instance of maladministration regarding this aspect of the case.

3 Alleged financial irregularities within Eupat

3.1 The complainant alleges a financial irregularity within Eupat. According to the complainant, the wife of the Manager has received a salary, financed by the Commission, for a fictitious employment.

3.2 As a preliminary remark, the mandate of the Ombudsman is to help to uncover maladministration in the activities of the Community institutions and bodies. Therefore, the Ombudsman is not competent to investigate the activities of a private company such as Eupat. As a result the Ombudsman's inquiry into this allegation is limited to the investigation of the Commission's activities regarding the alleged financial irregularities by Eupat.

3.3 The Ombudsman notes that the Commission has both in its opinion and complementary opinion explained that it has found no elements to substantiate the claim of financial irregularities within Eupat. Furthermore, both the Commission and the complainant have informed the Ombudsman that the matter is currently being examined by OLAF which is an appropriate body to investigate the allegation made by the complainant.

3.4 The Ombudsman is of the view that the Commission position appears to be reasonable on the basis of information available to it. Therefore, there appears to be no maladministration regarding this aspect of the case.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

Yours sincerely,

 

Jacob SÖDERMAN