Decision of the European Ombudsman closing the inquiries into complaints 26/2011/DK and 1307/2012/DK against the European External Action Service
Kanteluasia 26/2011/DK - Tutkittavaksi otetut kantelut, pvm Torstaina | 24 maaliskuuta 2011 - Päätökset, pvm Torstaina | 04 kesäkuuta 2015 - Toimielin, jota kantelu koskee Euroopan ulkosuhdehallinto (Kriittinen huomautus )
Kanteluasia 1307/2012/DK - Tutkittavaksi otetut kantelut, pvm Torstaina | 02 elokuuta 2012 - Päätökset, pvm Torstaina | 04 kesäkuuta 2015 - Toimielin, jota kantelu koskee Euroopan ulkosuhdehallinto
The case concerned the complainant's dismissal as a member of staff in a European Union Police Mission, and his subsequent request to have access to the documents contained in his personal file.
The Ombudsman inquired into the issue and found that the complainant's dismissal was legal. However, she also found that the Mission should have waited for the completion of the internal review process, which actually dealt with the complainant's situation, before dismissing the complainant. The Ombudsman therefore considered it appropriate to ask the European External Action Service (EEAS), in a proposal for a solution, to offer the complainant an ex gratia payment in recognition of the errors made by the Mission. The EEAS accepted the proposal and offered to make an ex gratia payment of EUR 2000.The complainant did not accept the offer. The Ombudsman considered that the amount offered by the EEAS was appropriate and that there were therefore no grounds for further inquiries into this aspect of the case.
As regards the complainant's access to his personal file, the Ombudsman found that there had not been any maladministration on the part of the EEAS.
The background to the complaint
1. The complaints concerned the dismissal of the complainant from a position at a European Union Police Mission (EUPM) and the manner in which the EUPM dealt with the complainant's request to access his personal file.
2. In March 2010, the complainant and his supervisor, who both worked in the Legal Office of the EUPM sent a letter to the Head of Mission outlining what it considered to be 20 irregularities at the EUPM. On 19 April 2010, the Head of Mission informed the complainant that he had made "serious and unsubstantiated" allegations against the EUPM's senior management in that letter. When the complainant claimed that his allegations against the management of the EUPM could be substantiated and further documented upon request, the Head of Mission launched an investigation into the allegations made by the complainant.
3. On 11 May 2010, the complainant was interviewed by a senior EUPM staff member as part of the investigation. On 13 May 2010, the report on the interview was sent to the Head of Mission with the conclusion that the complainant's allegations were unsubstantiated.
4. On 17 May 2010, the complainant informed the Civilian Operation Commander of the Civilian Planning and Conduct Capability (CPCC) of the Council of the European Union of the alleged irregularities at the EUPM. In his letter, he listed 45 issues concerning: (i) alleged irregularities with the contracts for national and international staff; (ii) alleged lack of gender balance at the Mission; and (iii) an allegedly illegal "internal investigation" against him.
5. On 25 May 2010, the Deputy Chief of Staff of the CPCC informed the complainant that two members of his staff would travel to the EUPM to conduct preliminary enquiries into the allegations made by the complainant.
6. The following day, on 26 May 2010, the Head of Mission informed the complainant that his employment contract would be terminated with a 30-day notice period because the trust and confidence between him and the complainant had been "irreconcilably destroyed".
7. On 27 May 2010, the Internal Control Officer of the EUPM sent a note to the complainant stating that he might have committed breaches of EUPM Standing Operating Procedure and therefore a disciplinary investigation would be carried out.
8. Also on 27 May 2010, the Head of Administration of the EUPM sent the complainant a checkout memorandum indicating that the complainant's checkout procedure was scheduled for 24 and 25 June 2010. However, the next day, the complainant was informed that the Head of Mission decided to reschedule his checkout procedure to commence with immediate effect and to be finalised by 1 June 2010.
9. On 2 June 2010, the complainant sent a letter to the Head of Mission appealing his decision to terminate his employment contract.
10. On 8 June 2010, the Commander of the CPCC informed the complainant that, based on the outcome of the preliminary inquiry, he had decided to initiate a Directed Management Review to consider the allegations the complainant had made against the management of the EUPM.
11. On 21 June 2010, the Head of Mission rejected the complainant's appeal of 2 June 2010 against his dismissal.
12. On 22 July 2010, the Commander informed the complainant that the CPCC review was completed and its conclusion was that the complainant's allegations were not substantiated.
13. In January 2011, the complainant turned to the Ombudsman as regards his allegedly wrongful dismissal (complaint 26/2011/DK).
14. On 4 June 2012, the complainant wrote to the Head of Mission of the EUPM with a request to have access to his personal file at the EUPM, in accordance with Article 26 of the Staff Regulations. When the Mission failed to deal adequately with his request, the complainant submitted a second complaint to the Ombudsman (1307/2012/DK).
Allegation of wrongful dismissal
The Ombudsman's findings and the friendly solution proposal
15. Having carefully examined the complainant's arguments and the opinion of the EEAS on the complaint, the Ombudsman found that the Standing Operating Procedures (SOP), which governed the complainant's relationship with the EUPM together with his contract of employment, did not provide any guidance as to how to report alleged malpractice, corruption and incompetence within the Mission, and that this lack of clarity in the SOP had an impact in the present case.
16. The Ombudsman also found that the Head of Mission established, on a one-off ad hoc basis, an internal review process to examine the complainant's allegations and assigned one person to carry out a review. The Ombudsman strongly disapproved of the ad hoc basis of this review and considered that any review mechanism should be pre-established in the SOP.
17. The Ombudsman further found that the position of the EEAS, that there was no connection between the reporting by the complainant of the allegations to the CPCC and the termination of his contract, was not supported by the facts of the case. In fact, the letter of termination stated that the contract was being terminated because the "trust and confidence" between the Head of Mission and the complainant was irreconcilably "destroyed", but did not explain how this had occurred. The letter of termination was handed to the complainant 8 days after he sent his report to the CPCC. The Ombudsman considered that the letter of dismissal could easily have been (mis)interpreted as a sanction for complaining to the CPCC. This course of action put a question mark over the freedom of staff to submit complaints or report possible irregularities to the CPCC. The Ombudsman thus concluded that this was an instance of maladministration.
18. In light of the above, and in line with the Ombudsman's mission to seek fair outcomes to complaints that satisfy both the complainant and the institution concerned, on 23 January 2014, the Ombudsman made the following proposal for a friendly solution:
The EEAS could offer the complainant an ex gratia payment in recognition of the errors made by the Head of Mission.
19. The Ombudsman underlined that such an ex gratia payment would have symbolic importance for others working in EU missions, who would be reassured that they may report what they consider, in good faith, to be irregularities without fear of retaliation. The Ombudsman considered that the EEAS should itself decide on the amount of the ex gratia payment that it considers to be appropriate in the complainant's case.
20. On 2 February 2015, the complainant wrote to the Ombudsman stating that the EEAS had informed him that it was willing to pay him EUR 2000. The complainant informed the Ombudsman that he considered this offer to be "the most humiliating and insulting way of closing my case". On 25 February 2015, the complainant wrote again saying that "it is unquestionable that the proposed payment is insulting, to say the least". On 11 March 2015, the EEAS officially sent its reply to the Ombudsman's proposal for a friendly solution. Further to the Ombudsman's invitation to the complainant to make observations on that reply, the complainant sent observations on 10 April 2015. In his observations, the complainant stated that the amount of money offered by the EAAS was humiliating and disproportionate in view of the pain, struggle and damage he had to endure since his dismissal. He therefore did not accept the ex gratia payment offered by the EEAS.
The Ombudsman's assessment after the friendly solution proposal
21. The Ombudsman notes that the EEAS has offered to make an ex gratia payment of EUR 2000.The complainant did not accept the offer.
22. In this regard, the Ombudsman understands the complainant's frustrations to be based on his view that the maladministration caused him harm which far exceeds the amount offered by the EEAS. The Ombudsman underlines, however, that a request by the Ombudsman to an institution to make an ex gratia payment does not reflect any assessment of the degree of harm that a complainant may suffer. Rather, it has symbolic value. Specifically, it seeks to underline even further that the institution sincerely considers that it has erred and that it regrets its error.
23. The Ombudsman also underlines that she makes requests to institutions for ex gratia payments only in those cases that are particularly serious. This is particularly the case when there is an important public interest at stake. The present complaint led the Ombudsman to identify a serious instance of maladministration which could, if not dealt with properly, undermine the legitimacy of the EEAS, namely the freedom of members of staff to make whistleblowing complaints. Such members of staff must be allowed to make such complaints, such complaints must be dealt with seriously and the persons making the complaints must be protected from any form of retribution for having made the complaints. If not, the public interest, in ensuring that a public institution is truly accountable, will be undermined.
24. The Ombudsman thus took very seriously the fact that the dismissal of the complainant was initiated 8 days after he had made a complaint to the CPCC. The letter of dismissal also referred to the fact that the contract with the complainant was terminated because the "trust and confidence" between the Head of Mission and the complainant was irreconcilably "destroyed". This could have led any reasonable person, including the complainant, to believe that the complainant was dismissed because he had made a whistleblowing complaint.
25. The complainant is of course entirely free to reject the offer of the EEAS. This is, the Ombudsman insists, entirely reasonable in light of how he feels about how his employment contract was terminated by the Head of Mission.
26. Given that it has not been possible to find a solution which is acceptable to the complainant, the Ombudsman will close her inquiry as regards this allegation with a critical remark below.
27. The Ombudsman hopes that the EEAS will draw the necessary conclusions from the present case by putting in place procedures and staff training to ensure that such errors are not repeated. In this regard, the Ombudsman again notes that in the present case, the Head of Mission established, on a one-off ad hoc basis, an internal review process to examine the complainant's allegations and assigned one person to carry out a review. The Ombudsman strongly disapproved of the ad hoc basis of this review and considered that any review mechanism should have been provided for already in the SOP. The Ombudsman will make a further remark with the intention of ensuring that the EEAS takes action in this regard.
Allegation of failure to grant access to the complainant's personal file
Arguments presented to the Ombudsman
28. On 4 June 2012, the complainant requested the Head of Mission of the EUPM to provide him with access to his personal file at the EUPM, in accordance with Article 26 of the Staff Regulations. In particular, he requested the following documents:
1) The internal decision to open an internal investigation into the complainant's allegation of mismanagement within the administration of the EUPM;
2) The final report/conclusions of the internal investigation;
3) The letter, report or document sent by the Head of Mission to the former Civilian Operation Commander further to the complainant's letter of 24 May 2010;
4) The minutes (or other records) of the meeting held on 26 May 2010, drafted by two officers of the EUPM Internal Control Unit who were present at the meeting;
5) All communications between the Head of Mission and the European Commission that refer to the complainant, his ability, efficiency and conduct;
6) All communications between the Head of Mission and the Council of the European Union that might refer to the complainant, his ability, efficiency and conduct;
7) The report on the outcome of the internal disciplinary investigation conducted by the EUPM Internal Control Unit;
8) Any document produced by the EUPM Internal Control Unit that might refer to the complainant, his ability, efficiency and conduct;
9) The decision of the Head of Mission to reduce the complainant's check-out procedure from the customary 30 days to only 2 days, and
10) Any other document contained in the complainant's personal file.
29. On 16 June 2012, the complainant sent a reminder e-mail to the EUPM as he had not received any reply. On 24 June 2012, the complainant submitted a complaint to the Ombudsman, alleging that the EUPM failed to reply to his request or even to acknowledge receipt of it.
30. On 28 June 2012, the EUMP provided access to "copies of documents in line with Human Resources Handbook for CSDP Missions March 2010 Ver.1.0.".
31. On 10 July 2012, the complainant forwarded to the Ombudsman the above reply by the EUMP. The complainant pointed out that, on the basis of the documents he received, it seemed that his personal file does not contain any document relating to his dismissal from the EUPM, except the letter of dismissal. However, he stated, he knew that the documents to which he had requested access indeed exist, as they were mentioned in e-mails, letters, reports, as well as in the Directed Management Review.
32. In its opinion, the EEAS pointed out that, on 28 June 2012, the complainant received copies of all documents which were kept in his personal file. As regards the ten documents to which the complainant specifically requested access, the EEAS stated that communications between the Head of Mission and the Council that might refer to the complainant's ability, efficiency and conduct were not kept in his file and, in any case, such documents are covered by the legitimate interest of confidentiality and of professional and business secrecy, as they concerned a separate internal inquiry, the Directed Management Review. The EEAS said that a copy of the report on the Directed Management Review was sent to the complainant on 26 July 2011. The EEAS also clarified that the rules governing the personal files of employees of missions established under the Common Security and Defence Policy are contained in the Human Resources Handbook and in the Operational Plan. The complainant did not submit any observations on the opinion.
The Ombudsman's assessment
33. The Ombudsman notes the EEAS statement that it provided the complainant with access to all the documents contained in his personal file, but that the majority of the documents he requested were simply not included in that file.
34. The Ombudsman notes that members of staff have an absolute right of access to all documents contained in their personal file. However, the documents that must be included in a personal file are strictly limited in scope. A personal file contains only documents concerning the "administrative status" of a staff member and all "reports" relating to his/her "ability, efficiency and conduct".
35. The case-law of the Union courts provides that the purpose of the absolute right of a member of staff to have access to his/her personal file is to respect his/her rights of defence by avoiding a situation in which a decision taken by the appointing authority, which affect his/her administrative status or career, is based on facts that are not contained in his/her personal file. The case-law also holds that the term 'administrative status' includes not only the main events of the official's career (such as, recruitment, secondments, reassignments, personal leave, etc.) but also other events concerning certain rights recognized by the Staff Regulations concerning the privileges and immunities of officials. However, opinions that have no relation to the main events of the official's career cannot be considered as reports on the ability, efficiency or conduct of the official.
36. As regards the documents requested by the complainant, the Ombudsman notes the following. Documents 1-4 do not concern the complainant's administrative status or relate to his ability, efficiency or conduct.
37. As regards documents 5 and 6, they cannot be considered as "reports" on the complainant's ability, efficiency or conduct, in accordance with the above-mentioned case-law of the Union courts. To understand the term "report" as covering all communications relating to a staff member would imply that staff members would have access to all emails concerning their behaviour, even if such emails were never to be used for the purposes of staff appraisal. Therefore, the Mission was under no obligation to include these documents in the complainant's personal file.
38. As regards documents 7 and 8, the Ombudsman obtained, during the inspection carried out by her services, a copy of a note for the file by the EUPM Internal Control Unit. This note shows that the internal disciplinary investigation conducted by the EUPM Internal Control Unit was closed on 8 June 2010 after the complaint against the complainant was withdrawn on 31 May 2010. Consequently, there was no report or any other document drawn up by the Internal Control Unit concerning the complainant's ability, efficiency or conduct.
39. Finally, as regards documents 9 and 10, the complainant has already been provided with copies of these documents.
40. In light of the above, the Ombudsman finds no maladministration as regards the allegation that the EEAS failed to grant the complainant access to his personal file.
On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion, critical and further remarks:
The Ombudsman finds no maladministration as regards the allegation that the EEAS failed to grant the complainant access to his personal file.
The EEAS should put in place procedures and staff training to ensure that the errors that occurred in the present case are not repeated. If it has not already done so, and as required by the Staff Regulation, the EEAS should draw up appropriate rules for the protection of whistleblowers; these rules should, in particular, enable the whistleblower to seek a review where he or she is not satisfied with the manner in which the whistleblowing report has been handled.
The complainant and the EEAS will be informed of this decision.
 The complainant has provided the Ombudsman with a copy of the 14-page long interview transcript. The complainant signed every page and made hand-written corrections to the text.
 A check-out memorandum is used when staff leave the employment of the EUPM.
 "An official shall have the right, even after leaving the service, to acquaint himself with all the documents in his file and to take copies of them."
 Drawn up by the Review Team of the EUPM further to the complainant's request for internal review.
 Article 26 of the Staff Regulations provides that the personal file shall contain: "(a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;
(b) any comments by the official on such documents. … An official's personal file shall contain no reference to his political, trade union, philosophical or religious activities and views, or to his racial or ethnic origin or sexual orientation. The precedent paragraph shall not however prohibit the insertion in the file of administrative acts and documents known to the official which are necessary for the application of these Staff Regulations. There shall be only one personal file for each official. An official shall have the right, even after leaving the service, to acquaint himself with all the documents in his file and to take copies of them. The personal file shall be confidential and may be consulted only in the offices of the administration or on a secure electronic medium. It shall, however, be forwarded to the Court of Justice of the European Communities if an action concerning the official is brought."
 Case C-294/95 Ojha vs. Commission  ECR-I-5863, p. 57.; Case T-77/99 Ohja vs Commission  ECR-I-A-61 and ECR-II-293 point 56.; and Case T-302/02 Kenny vs Court of Justice  ECR-I-A-235 point 32.
 Case T-93/04 Kallianos vs Commission  ECR-II-A-2-537, p. 80-83.
 Letter of 28 May 2010, addressed to the complainant by the Head of Administration of the EUPM and letter of 28 June 2010, addressed to the complainant by the Head of Mission of the EUPM, respectively.