• Déposer une plainte
  • Demande d'information
60th Rome Treaty anniversaryL’Europe est à vous - Le portail des services publics européens et nationaux en ligne

Decision in case 134/2016/AMF on the refusal to grant leave to a staff member of an EU mission

Langues disponibles : en
  • Affaire : 134/2016/AMF
    Ouvert le 7 mars 2016 - Décision le 10 nov. 2017
  • Institution(s) concernée(s) : Service européen pour l'action extérieure

A member of staff of the EUCAP Sahel Niger Mission[1] (’the Mission’) complained to the Ombudsman that the Mission had wrongly denied him leave and delayed informing him that it had refused other leave requests. The Ombudsman inquired into the issue and suggested that the Mission should reconsider how it handled the issues.

Following the Ombudsman’s intervention, the European External Action Service (‘EEAS’) and the Mission apologised to the complainant for the delay and agreed to compensate him for some of the leave. The Ombudsman closed the case as resolved.

Background to the complaint

1. The complainant worked as a Seconded National Expert for the EUCAP Sahel Niger Mission (hereafter, ’the Mission’) from December 2013 until December 2016.

2. At the time, staff at the Mission were entitled to additional leave when it took more than 12 hours travel to reach their leave destination.[2]

3. On 21 March 2014, the Mission sent an administrative notice to its staff[3] stating that, from that date on, the shortest possible flight itinerary from Niamey (Niger’s capital) to the leave destination would be the basis for calculating whether or not this additional leave for travel time would be granted.

4. On 15 July 2014, the rules for staff working at the Mission were amended as follows: “Mission members are entitled to 1 travel day/month to be used for travel in conjunction with leave outside the Mission area and only applicable when the trip lasts 12 hours or more, in accordance with the mission’s administrative notice”. At the time the applicable administrative notice was the notice of 21 March 2014 which were now being given formal ratification in the rules amendment.

5. After taking up his role at the Mission, the complainant requested additional travel leave days for different journeys between Niamey and Madrid, for which the total duration of the journey was more than 12 hours. He provided the Mission with copies of the airline tickets as proof.

6. As the complainant was not informed whether the Mission had accepted or refused his requests, he asked for a copy of his personal “tableau de décompte de congés” (the document summarising staff members’ total annual leave rights) in September 2014. He received a copy of this document in November 2014 from which he could see that none of his additional travel leave requests had been granted. He also noticed that he had been denied 3 days of sick leave that he had requested in June 2014. The Mission had not notified the complainant of any of these leave refusals.

7. In August 2015, the Mission issued a new administrative notice[4], revising the earlier notice. It stated that the additional leave for journeys over 12 hours would be based on actual flight travel time and no longer on the shortest available flight itinerary from Niamey to the final destination.

8. The complainant raised his concerns about the refusal of his leave requests with the Mission on a number of occasions, but received no satisfactory reply.

9. Dissatisfied with how the Mission had handled the issue, the complainant turned to the Ombudsman in January 2016.

The inquiry

10. The Ombudsman opened an inquiry into the complaint and identified the following issues:

1) The EUCAP Sahel Niger Mission failed to notify the complainant of its decisions to refuse to grant sick leave and leave for travel time.

2) The EUCAP Sahel Niger Mission was wrong in refusing the extra leave for travel time, requested by the complainant between December 2013 and July 2014.

11. In the course of the inquiry, the Ombudsman requested clarifications from the European External Action Service (EEAS), which has overall responsibility for the Mission, on two occasions.

12. The Ombudsman pointed out to the EEAS that, under the Code of Good Administrative Behaviour, the Mission had a duty to notify and explain to the complainant its decisions on his leave requests[5].

13. The Ombudsman also considered that, before the revision on 15 July 2014, the applicable rules clearly provided for additional leave time (of 1 day per month) for journeys where the actual travelling time was 12 hours or more. The Ombudsman therefore asked the Mission, through the EEAS, whether it would reconsider its position on the additional travel leave days in question.

14. The Ombudsman received a positive reply from the EEAS, as well as comments of the complainant in response. The decision of the Ombudsman takes into account the arguments and views put forward by the parties.

Failure to notify the complainant of the refusal to grant leave

Arguments presented to the Ombudsman

15. The complainant argued that, to find out whether his leave requests had been accepted or refused, he had to request a copy of his “tableau de décompte de congés”. It took the Mission two months to give him this document with the information on his leave rights.

16. In reply to the Ombudsman, the EEAS stated that the Mission is committed to provide its staff with timely information on their leave rights, in accordance with the principles of good administration. It regretted that, in exceptional situations, delays may take place. The EEAS added that the Mission apologises for the delay in responding to the complainant about his leave requests.

The Ombudsman's assessment

17. The EEAS has acknowledged that the Mission is bound by the principles of good administration. This is confirmed in the ‘Code of Conduct and Discipline for EU Civilian Missions’, which stipulates that “all mission members shall have regard to and act in conformity with the currently applicable versions of [...] The European Code of Good Administrative Behaviour”[6].

18. The Mission has apologised for the delay that occurred in the complainant’s case. The Ombudsman therefore considers this aspect of the case to have been resolved, given also the positive steps taken by the EEAS and the Mission to resolve the substantive issue of granting leave for travel time (see below).

Refusal to grant leave for travel time

Arguments presented to the Ombudsman

19. The complainant argued that the Mission introduced its new policy concerning leave for travel time (based on the shortest itinerary) before the rules for staff working at the Mission were officially modified on 15 July 2014.

20. In reply to the Ombudsman, the EEAS stated that the Mission acknowledges that the administrative notice was adopted and implemented prior to the related amendment of the rules for staff working at the Mission. The Mission is therefore willing to grant monetary compensation to the complainant equivalent to the travel leave days refused before the amendment of the rules on 15 July 2014.

21. In his comments on the EEAS’s reply, the complainant stated that he accepted the compensation offered by the Mission.

The assessment of the Ombudsman

22. On the basis of the above, the Ombudsman finds this aspect of the case to have been resolved.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusions:

The EEAS and the EUCAP Sahel Niger Mission have taken steps to resolve the matter complained about.

The complainant and the EEAS will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 10/11/2017

 

[1] https://eeas.europa.eu/csdp-missions-operations/eucap-sahel-niger_en

[2] Article 12.f of Annex 10 of the Mission´s Operation plan (OPLAN) approved by the Member States for 2013-14, which stated that “Mission members are entitled to 1 travel day/month to be used for travel in conjunction with leave outside the mission area and only applicable when the trip lasts 12 hours or more.”

[3] 2014/RH/265

[4] 2015/RH/1399/EG

[5] The European Code of Good Administrative Behaviour states that persons whose rights or interests are affected by a decision are informed of that decision in writing, as soon as it is taken” and that  every decision of the institution which may adversely affect the rights or interests of a private person shall state the grounds on which it is based by indicating clearly the relevant facts and the legal basis of the decision [...]If it is not possible, because of the large number of persons concerned by similar decisions, to communicate in detail the grounds of the decision and where standard replies are therefore sent, the official shall subsequently provide the citizen who expressly requests it with an individual reasoning”. This obligation is based on EU case law, as well as Article 41 of the Charter of Fundamental Rights: “Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. This right includes:[...] b. the right of every person to have access to his or her file [...] c. the obligation of the administration to give reasons for its decisions.

[6] Article 4.3 of the Code of Conduct and Discipline for EU Civilian CDSP Missions, adopted in September 2016 by the Council of the European Union https://eeas.europa.eu/sites/eeas/files/code_of_conduct_and_discipline_public_version.pdf