Dear Mr P.,

On 28 June 2001, you made a complaint to the European Ombudsman concerning your personal file with the European Commission.

On 17 September 2001, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 7 December 2001. I forwarded it to you with an invitation to make observations, which you sent on 26 February 2002. On 22 March 2002, the Commission forwarded its latest correspondence with you.

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

THE COMPLAINT

The complainant lodged a complaint with the European Ombudsman against the European Commission in June 2001. The complainant had worked for the Commission at the beginning of the 1980s and his complaint concerned his personal file with the Commission from that period.

The complainant stated that he had tried to see his personal file in the 1980s and 1990s without success. After he had found out about his right to access his personal file under the Staff Regulations, he again contacted the Commission who advised him to contact its Research Centre in Ispra, were his file was kept. On 20 April 2001, he addressed the personnel department in Ispra in writing, thereby making a formal request to consult his personal file in accordance with Article 26 of the Staff Regulations. The Commission sent his file to its premises in Brussels where the complainant consulted it on 21 May 2001. Following the inspection, the complainant wrote to the Commission stating that documents were missing from the file.

In his complaint to the Ombudsman, the complainant alleged that documents that had been in his personal file when he consulted it in 1982, were now missing from the file. The missing documents were (i) the complainant's staff reports, (ii) his comments on the reports, and (iii) a number of letters of appreciation from within and outside the Commission. The complainant claimed to receive an explanation and perhaps an apology.

THE INQUIRY

The Commission's opinion

The complaint was forwarded to the Commission, In its opinion, the Commission explained that the complainant had requested to consult his personal file by letter of 20 April 2001. The file was held by the Directorate-General of the Joint Research Centre. Following a lengthy exchange of letters, it was agreed that the complainant could consult his file at the premises of the assistant to the Director-General. To facilitate the inspection, the Commission had the file transferred from Ispra, where it was archived, to Brussels. The consultation took place on 21 May 2001.

On 22 May 2001, the complainant sent a letter with a number of questions to the Commission. The Commission replied by letter of 7 June 2001. One of the questions concerned the alleged loss of the complainant's personal file. The Commission had already explained to the complainant that the file had never been lost. Instead, in line with the normal practice for personnel working for the Joint Research Centre with an employment relationship of less than ten years, the file was kept at the Joint Research Centre's Human Resources Unit.

At the complainant's express request, the Commission had further carried out a check at the department responsible for the archives to establish whether anyone had asked to consult his file, which the complainant thought might explain the alleged missing documents. It was established that no one had consulted the file and the complainant was informed thereof.

The complainant sent a further letter on 12 June 2001 with various questions. The Commission replied on 15 June 2001 and pointed out that if the file did not contain certain documents the reason was that no such documents had ever been added to the file.

The Commission concluded that it had explained the situation in its opinion and related correspondence with the complainant and that it did not consider an apology to be justified.

The complainant's observations

In his observations, the complainant maintained his complaint and put forward in summary the following additional information.

The complainant's personal file consisted of five parts. The third subfile, labelled "Rapport et Appréciations", should have contained a number of documents but was empty when the complainant consulted it in May 2001. According to the complainant he had personally registered reference letters and letters of appreciation to be included in his file at the time he was employed by the Commission. Also his staff report from 1982 including his comments put forward, as well as the six-month probationary report should have been inserted into the file. The complainant reiterated that all these documents had been in the file when he consulted it in 1982. He underlined that he remembered that the third subfile of his personal file contained a thick collection of papers and was by far the most voluminous subfile of the five. When he consulted the file in May 2001, the third subfile was empty and it was obviously a substitute file, as the pins had never been bent to accommodate a thick collection of papers. The complainant pointed out that all pages in the personal file have to be registered and numbered in serial order according to the Staff Regulations. The complainant thus concluded that for some reason all documents had been removed at the same time, since due to the serial numbering the removal of only one document would not have been possible without showing. According to the complainant, the fact that a new empty substitute file was to be found in the file, rather than a missing one, shows that someone took the initiative to put in the new empty folder. The complainant was still in contact with the Commission in trying to reconstitute the file.

In addition, the complainant put forward information in relation to actions undertaken by the Commission and the European Environment Agency which fall outside the scope of the present complaint.

THE DECISION

1 Documents missing from the personal file of the complainant

1.1 The complaint related to the personal file of the complainant who had been employed by the Commission in the early 1980s. The complainant alleged that documents that had been in his personal file when he consulted it in 1982, were now missing from the file. The missing documents were (i) the complainant's staff reports, (ii) his comments on the reports, and (iii) a number of letters of appreciation from within and outside the Commission. The complainant claimed to receive an explanation and perhaps an apology.

1.2 The Commission explained that the complainant had requested to consult his personal file by letter of 20 April 2001 and that the consultation had taken place on 21 May 2001. In correspondence with the complainant, it pointed out that if the file did not contain certain documents the reason was that no such documents had ever been added to the file. It concluded that it had explained the situation and it did not consider an apology to be justified.

1.3 There is a conflict of evidence regarding what documents were in fact put in the complainant's personal file. The complainant stated that certain documents that had been in his file when he consulted it in 1982, were missing when he consulted the file in May 2001. The Commission on the other hand states that the only reason for the documents not being in the file in May 2001 is that they were never introduced in the file. The Ombudsman cannot establish what documents were in the file in 1982 and if some documents were lost. It seems however to be common ground between the parties that the third subfile called "Rapport et Appréciations" was aimed at containing staff reports(1) and that it was empty in May 2001. It can also be concluded that the staff reports were not to be found in any of the other subfiles.

1.4 According to Article 26 of the Staff Regulations, which by virtue of Article 11 of the Conditions of Employment of Other Servants is applicable to temporary staff members which was the complainant's status at the Commission during the years 1980-82, the personal file shall contain all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct, and further, any comments by the staff member on such documents.

1.5 The Commission stated that the complainant had been employed from 16 June 1980 to 31 December 1982. The complainant submitted copies of his contracts as temporary agent covering those periods. His first contract stipulates a probationary period of six months. According to Article 14 of the Conditions of Employment of Other Servants a report shall be made on the ability of the temporary agent to perform the duties pertaining to his post and his conduct and efficiency before the expiry of the probationary period. This report shall be communicated to the person concerned who shall have the right to submit comments in writing. It therefore follows that a probationary report should have been drawn up for the complainant. Furthermore, Article 43 of the Staff Regulations, which by virtue of Article 15(2) of the Conditions of Employment of Other Servants is applicable to temporary staff members of a certain category to which the complainant did belong according to his contract, the ability, efficiency and conduct of the staff member shall be subject of a periodical report made at least once every two years. Since the complainant was employed for more than two years, next to the probationary report also a staff report under Article 43 of the Staff Regulation should have been drawn up. The Commission neither denied nor confirmed the existence of such reports but has in recent correspondence stated its willingness to include such reports into the personal file if provided by the complainant.

1.6 As regards reference letters and letters of appreciation which according to the complainant should have been in his file, for reasons of lack of evidence, the Ombudsman cannot establish if such documents were ever added to the file.

1.7 From the above, the Ombudsman makes the following findings. As a temporary staff member at the Commission for a period of more than two years, at least one probationary report and one periodical staff report should have been drawn up for the complainant. According to the Conditions of Employment of Other Servants, the complainant's personal file should have contained those reports and any subsequent comments on the reports made by the complainant. In May 2001, it was established that no such documents were contained in the complainant's personal file. The Commission's failure to ensure that the personal file contained the statutory documents was an instance of maladministration. The Ombudsman will therefore make a critical remark.

1.8 As regards the complainant's claim to receive an explanation, it is the Ombudsman's understanding that the Commission explained the situation as far as it was able to and that no further explanation can be obtained. As regards the claim to receive an apology, the Ombudsman notes that in his original complaint, the complainant stated that he would "perhaps" like an apology. As the complainant did not reiterate this claim in his observations, the Ombudsman will not pursue the matter further.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

As a temporary staff member at the Commission for a period of more than two years, at least one probationary report and one periodical staff report should have been drawn up for the complainant. According to the Conditions of Employment of Other Servants, the complainant's personal file should have contained those reports and any subsequent comments on the reports made by the complainant. In May 2001, it was established that no such documents were contained in the complainant's personal file. The Commission's failure to ensure that the personal file contained the statutory documents was an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) As regards the Commission's position on this question, it is confirmed in a letter it sent to the complainant on 18 March 2002.