THE BACKGROUND TO THE COMPLAINT

1. The complainant was an official at the European Parliament until the end of 2006. In the interest of the service, he was seconded to another Community institution as of 2002. With effect from 1 January 2007, he was transferred to the latter institution.

2. Promotions within Parliament take place on the basis of an annual staff assessment procedure, during which a staff report is made and a maximum of three merit points is awarded. On 13 February 2006, Parliament's Bureau adopted a Decision on Promotion and Career Planning Policy ('the Bureau's Decision'). An annex to the Bureau's Decision provides for a "[d]etailed timetable for the staff reports and promotion exercise" ('the detailed timetable'), which contains the following provisions:

"1.9. Last week of April - first week of May: Staff members being assessed are notified of the proposals for the award of merit points.

Each staff member being assessed receives from the central secretariat of his or her DG [Directorate-General], by letter or e-mail, an invitation to collect in person, in return for a signed acknowledgment of receipt, the proposal which has been made concerning him or her. [...]

1.10. May: Consideration by the Reports Committee of appeals concerning the substance of staff reports.

1.11. Mid-May - late July: Consideration by the Reports Committee of appeals concerning proposals for the award of merit points.

1.12. Second week of September: Decision by the DGs concerning the award of merit points.

Each staff member being assessed receives from the central secretariat of his or her DG, by letter or e-mail, an invitation to collect in person, in return for a signed acknowledgment of receipt, the decision which has been taken by the director-general concerning him or her. He or she has five working days in which to do so. Once this deadline has passed, the central secretariat of the DG in question sends the decision to the staff member's place of residence by registered letter with acknowledgment of receipt."

3. The present complaint relates to the procedure for the award of merit points to the complainant for the year 2005[1].

4. In July 2006, a proposal was made to award two merit points to the complainant[2]. Following the complainant's appeal against this proposal, Parliament's Reports Committee gave its opinion in November 2006, in which it concluded that the award of a third merit point to the complainant would be justified.

5. In January 2007, Parliament had not yet issued a decision on the award of merit points to the complainant. He brought this fact to the attention of Parliament's Secretary-General and asked for a date by which a decision would be issued. His letter to that effect dated 10 January 2007 received no reply.

6. On 6 February 2007, the complainant, invoking Article 90(1) of the Staff Regulations, requested Parliament to issue a decision on the award of merit points to him.

7. On 9 June 2007, having received no reply to his request, the complainant submitted to Parliament a complaint pursuant to Article 90(2) of the Staff Regulations.

8. His complaint to Parliament having remained without a reply, he submitted a complaint to the Ombudsman, on 20 November 2007.

THE SUBJECT MATTER OF THE INQUIRY

9. In his complaint, he submitted the following allegations and claim.

Allegations:

(1) Contrary to the detailed timetable annexed to the Bureau's Decision of 13 February 2006 ("Promotion and Career Planning Policy"), Parliament failed to issue a decision on the award to him of merit points for the year 2005.

(2) Parliament failed to reply to his letter to the Secretary-General of Parliament of 10 January 2007, his request of 6 February 2007, pursuant to Article 90(1) of the Staff Regulations, that Parliament take a decision on the matter, and his complaint of 9 June 2007 pursuant to Article 90(2) of the Staff Regulation.

Claim:

Parliament should properly conclude the procedure for the award to him of merit points for the year 2005.

10. In his observations on Parliament's opinion (see paragraph 11 below), the complainant submitted the following further allegation:

(3) In view of the fact that his transfer took effect on 1 January 2007 and that the transfer of his personal file was requested on 8 December 2006 only, and thus apparently after the conclusion of the procedure for the award of merit points for the year 2005, Parliament failed to provide a satisfactory explanation for its failure properly to conclude the procedure to determine the number of merit points to be awarded to him for the year 2005.

THE INQUIRY

11. The complaint was forwarded to Parliament for an opinion, which it sent on 10 April 2008. Parliament's opinion was forwarded to the complainant with an invitation to make observations, which he sent on 14 May 2008. Given that, in his observations, the complainant submitted a further allegation, the Ombudsman asked Parliament for a supplementary opinion. At the same time, he also requested Parliament to provide some further information, which, in light of Parliament's opinion and the complainant's observations, he considered to be necessary for the examination of the present complaint. Parliament sent its reply on 9 July 2008 and this was forwarded to the complainant with an invitation to submit observations. The complainant submitted observations on 9 September 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

12. Given their close factual ties, it is appropriate to consider together the complainant's first and second allegations as well as his claim.

A. Allegation of Parliament's failure to issue a decision on the award of merit points and to reply to a request and a complaint submitted by the complainant (the complainant's first and second allegation and his claim)

Arguments presented to the Ombudsman

13. In relation to the complainant's first and second allegations, Parliament submitted that a thorough examination had shown that it had indeed failed to send the complainant the form showing the number of merit points awarded to him for 2005. Moreover, it acknowledged that it had not responded to the complainant's subsequent requests. According to Parliament, "[t]hese are very regrettable oversights which are undoubtedly connected with the [complainant's] transfer [...], together with his personal file, to the Court of Auditors."

14. Parliament furthermore explained that the merit points awarded to the complainant for 2005 appeared in its official records. However, no corresponding individual decision was communicated to the complainant.

15. Parliament asserted that, as soon as this oversight had been detected, the relevant department took the necessary steps to normalise the situation. Thus, on 14 March 2008, a decision on the award of merit points was sent to the complainant by registered letter. Parliament finally stated that the complainant could, if appropriate, submit a complaint pursuant to Article 90(2) of the Staff Regulations against this decision.

16. In his observations, the complainant pointed out that, by letter of 14 March 2008, he had indeed received a decision on the number of merit points awarded to him. This decision was dated 12 March 2008 and, according to Parliament's cover letter, was a "décision d'attribution rectifiée de points de mérite"[3]. Against this background, he stated that he had still not received Parliament's original decision on the number of merit points awarded to him, which he had meanwhile requested from Parliament's Secretary-General.

17. In his request for further information, the Ombudsman noted Parliament's reference to a "décision d'attribution rectifiée" and asked it to provide him with a copy of its original decision on the number of merit points awarded to the complainant for 2005. In case an original decision did not exist, he requested Parliament to explain the meaning of its reference to a revised decision ("décision d'attribution rectifiée") in its letter of 14 March 2008 to the complainant.

18. In its reply, Parliament stated that the word "rectifiée" was "an incorrect qualifying adjective, in that there was no individual decision communicated to [the complainant]". Therefore the form showing the award of merit points for 2005, issued on 12 March 2008 and sent to the complainant on 14 March 2008, should be regarded by the latter as the definitive decision on the award of merit points for 2005. Parliament enclosed a copy of its decision of 12 March 2008.

19. In his supplementary observations, the complainant took the view that, in its reply to the Ombudsman's request for further information, Parliament did not clearly distinguish between decisions taken and their communication. As was apparent from its opinion, Parliament had taken an individual decision relating to him some time ago, which, however, had not been communicated to him. The complainant took the view that Parliament's decision of 12 March 2008 differed from its original decision in the sense that reasoning justifying the award of merit points had apparently been added. The complainant also informed the Ombudsman that he had submitted to Parliament a complaint pursuant to Article 90(2) of the Staff Regulations, contesting the decision of 12 March 2008.

The Ombudsman's assessment

20. The Ombudsman notes at the outset that the complainant's first allegation relates to a failure to adopt a decision on the award of his merit points for the year 2005. In its opinion, Parliament admitted that it failed to communicate a respective individual decision to the complainant. Parliament thus appears to have interpreted the complainant's first allegation as entailing a failure to communicate a decision to him in line with the detailed timetable. However, this is not the most obvious interpretation of the terms used in the said allegation. Moreover, it emerges from the complaint which has been forwarded to Parliament that the complainant had no knowledge of the steps, if any, that Parliament had taken in relation to the award of merit points to him. In these circumstances, the Ombudsman considers that interpreting the complainant's first allegation as merely entailing a failure to communicate an individual decision would not be consonant with either the wording of, or the intention underlying, this allegation. It follows that the complainant's first allegation must be understood as relating to Parliament's failure to adopt and/or communicate an individual decision to him in line with the detailed timetable.

21. Against this background, the Ombudsman will consider first whether Parliament failed to communicate to the complainant the decision on the award of merit points, in line with the detailed timetable. He will then assess whether Parliament failed to adopt this decision in accordance with the detailed timetable.

22. There is agreement between the parties to the dispute that it was on 14 March 2008 only that Parliament's decision on the award of merit points for the year 2005 was communicated to the complainant. It is thus clear that Parliament did not comply with the deadline set by point 1.12. of the detailed timetable. Moreover, it appears useful to add that Parliament admitted that it failed to communicate the respective decision to the complainant within the deadlines foreseen by the detailed timetable. Other than referring to "very regrettable oversights which are undoubtedly connected with the transfer of [the complainant]", Parliament did not put forward any explanation that could justify the delay in communicating the decision.

23. Turning to the alleged failure to adopt a decision concerning the complainant, the Ombudsman notes that, according to Parliament, the merit points awarded to the complainant for the year 2005 appeared in its official records, but no individual decision concerning them was communicated. It appears from the detailed timetable, and in particular its point 1.12., that Parliament has to issue an individual decision, which is then collected by or sent to the official concerned. It follows, therefore, that entering an official's merit points in the official records cannot be considered to be an individual decision within the meaning of the detailed timetable. It emerges from the documents provided by Parliament that it was only on 12 March 2008 that the individual decision concerning the complainant was adopted.

24. In his observations, the complainant indicated that he surmised that Parliament had taken an individual decision relating to him some time before 12 March 2008 but that it had not been communicated to him. Parliament's decision of 12 March 2008 apparently merely added reasons to a decision which had been taken earlier. There is, however, no evidence to suggest that an individual decision concerning the complainant's merit points for 2005 was adopted prior to 12 March 2008. Parliament itself has confirmed that the decision of 12 March 2008 is the individual decision concerning the complainant's merit points for 2005. The Ombudsman therefore considers that the complainant's relevant remarks would seem to concern the entry of his merit points for the year 2005 in Parliament's official records. However, and as shown above, this cannot be considered to amount to an individual decision, as required by the detailed timetable. The complainant's respective observations therefore do not appear to challenge the conclusion that an individual decision was only adopted on 12 March 2008.

25. Given that Parliament's decision of 12 March 2008 is clearly outside the time limit set by the detailed timetable, the Ombudsman thus arrives at the conclusion that no individual decision has been issued to the complainant in line with the detailed timetable.

26. Parliament expressed its sincere regret for its failure. In the Ombudsman's view, however, this cannot be considered as a satisfactory reaction. The Ombudsman considers that where, as in the present case, considerable delays occur, principles of good administrative practice require that at least an apology is made to the citizen concerned. However, no such apology was offered by Parliament.

27. The Ombudsman therefore considers that Parliament's failure to adopt and communicate to the complainant a decision in line with applicable internal rules constitutes an instance of maladministration.

28. Given that Parliament has issued and communicated to the complainant a decision on the award of merit points for the year 2005, there is no need for further action on the Ombudsman's part as regards his claim.

29. However, a critical remark will be made below as regards Parliament's failure to adopt and communicate a decision to the complainant in line with the detailed timetable.

30. Regarding the complainant's second allegation, Parliament admitted that it failed to reply to the complainant's letter to the Secretary-General of Parliament of 10 January 2007, his request of 6 February 2007 to take a decision pursuant to Article 90(1) of the Staff Regulations, and his complaint of 9 June 2007 pursuant to Article 90(2) of the Staff Regulations. The Ombudsman therefore considers that Parliament's failure to reply constitutes an instance of maladministration.

31. The Ombudsman considers that where, as in the present case, repeated failures to reply occur, principles of good administrative practice, at the very least, require that an apology is made to the citizen concerned. Parliament has not, however, apologised to the complainant. In addition, it is difficult to accept Parliament's argument that its failure to reply was simply due to an oversight, given that the complainant had addressed three letters to Parliament, each of which remained unanswered. In light of all of these circumstances, the Ombudsman will make a critical remark below.

B. Allegation of Parliament's failure to provide a satisfactory explanation (the complainant's third allegation)

Arguments presented to the Ombudsman

32. In its opinion, Parliament submitted that its failure to issue a decision to the complainant was "undoubtedly connected" with the complainant's transfer, along with his personal file. In his observations, the complainant alleged that Parliament failed to provide a satisfactory explanation for its failure properly to conclude the procedure for the award of merit points to be awarded to him for the year 2005. He pointed out that his transfer took effect on 1 January 2007. The transfer of his personal file was requested on 8 December 2006 only, and thus, apparently, after the conclusion of the procedure for the award of merit points for the year 2005.

33. In its supplementary opinion, Parliament stated that it wished to reiterate its sincere regret concerning the lack of communication of the award form for 2005. Parliament did not comment any further on the complainant's allegation.

34. In his supplementary observations, the complainant stated that an inquiry as to why Parliament failed to issue a decision to him had apparently not taken place. Likewise, Parliament had not addressed the issue of the plausibility of the reason it gave initially.

The Ombudsman's assessment

35. The Ombudsman notes that, in its opinion, Parliament sought to explain its failure to issue a decision by reference to the transfer of both the complainant and of his personal file. He furthermore understands Parliament's remarks in its supplementary opinion as a reference to the position already expounded in its opinion. However, it is clear that by merely restating its position, Parliament did not substantively address the complainant's arguments as regards the timing of his transfer.

36. The Ombudsman agrees with the complainant that the reason given by Parliament for its failure properly to conclude the procedure to award the claimant's merit points for the year 2005 is insufficient. This conclusion is based on the following reasons.

37. First, the explanation given by Parliament is vague in the sense that it does not really indicate a concrete reason to account for its failure. In fact, Parliament merely suggests that its failure was "undoubtedly connected" to the complainant's transfer. This statement is not an adequate explanation for Parliament's failure. Second, as to substance, Parliament's argument is clearly unconvincing. Parliament has not been able to identify a provision which would entitle it to refrain from awarding merit points to an official in relation to a given year if this official is transferred to another institution at a subsequent point in time. This is especially the case where the year in question has long passed. The Ombudsman notes that Parliament was given the possibility to comment on the complainant's third allegation in the course of his inquiry, but merely reiterated the explanation previously given. For the reasons stated, however, this explanation cannot be considered to be satisfactory.

39. In view of the above, the Ombudsman considers that Parliament failed to provide a satisfactory explanation for its failure properly to conclude the procedure for the award to the complainant of merit points for the year 2005. This constitutes an instance of maladministration. He will therefore make a critical remark below.

C. Conclusions

On the basis of his inquiries into this complaint, the Ombudsman makes the following critical remarks:

Parliament failed to issue a decision on the award of merit points for the year 2005 to the complainant in line with the detailed timetable. This constitutes maladministration.

Parliament failed to reply to the complainant's requests and his complaint pursuant to Article 90(2) of the Staff Regulations. This constitutes maladministration.

Parliament failed to provide a satisfactory explanation for its failure properly to conclude the procedure for the award to the complainant of merit points for the year 2005. This constitutes maladministration.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 27 July 2009

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[1] Apart from the present complaint, the complainant also submitted complaints concerning the number of merit points awarded to him for the years 2003 and 2004. Complaint 3051/2005/(PB)WP related to the staff assessment exercise for the year 2003. After having issued a draft recommendation, which was not implemented by Parliament, the Ombudsman closed the case with the following critical remark:

"It is good administration for an Appointing Authority to conduct the periodic assessment of its staff in line with the applicable rules, whilst observing the principle of non-discrimination and respecting the legitimate expectations of its staff members. In the present case, Parliament (1) failed to conduct a proper comparative assessment of the complainant's merits in 2003 with those of his colleagues, (2) failed to fulfil his legitimate expectations as regards a letter sent to him by Parliament's Secretary-General on 24 June 2004 and (3) failed to send the complainant a correctly made proposal for the award of merit points. This constitutes maladministration."

On 11 February 2009, the Civil Service Tribunal annulled Parliament's decisions on the award of merit points for 2003 to the complainant and held that, by arguing that the complainant could only obtain a third merit point if his merits were superior to those of his colleagues who had received a third merit point, Parliament had failed to respect the principle of equal treatment (Case F-7/2008).

In complaint 344/2007/(WP)BEH which related to the staff assessment exercise for the year 2004, the Ombudsman, on 15 October 2008, issued a draft recommendation to Parliament which reads as follows:

"Parliament should revisit its decision on the award of merit points to the complainant for the year 2004 by (1) conducting a proper comparative assessment of his merits and of the merits of officials in the relevant reference group in that year, taking into account all relevant facts, and by (2) transmitting a new and properly reasoned decision to the complainant."

In its detailed opinion, Parliament informed the Ombudsman that it felt unable to accept his draft recommendation.

In its reasoning in Case F-7/2008, the Civil Service Tribunal declared that Parliament's approach infringed the principle of non-discrimination because, for the complainant to receive a third merit point, it required his merits to be superior to those of his colleagues who were awarded a third merit point, when his merits were, in fact, comparable to those of the aforesaid colleagues. In light of the said judgment, the Ombudsman asked Parliament to inform him whether it wished to modify its position.

By letter of 14 April 2009, Parliament informed the Ombudsman that, notwithstanding the judgment in Case F-7/2008, it remained convinced of the legality of its approach, which it upheld. The inquiry into this case is still pending.

[2] Against the background of the detailed timetable, and in particular its point 1.9., it appears that the assessment procedure started later than foreseen by the timetable. However, none of the parties to the dispute has commented on this aspect.

[3] Emphasis added by the complainant.