Strasbourg, 8 September 2006

Dear Mr S.,

On 15 December 2005, you made a complaint to the European Ombudsman against the European Commission.

On 17 January 2006, I forwarded the complaint to the President of the Commission.

On 12 May 2006, the Commission informed me that its reply to your complaint was delayed due to difficulties during the internal consultation procedure.

On 1 June 2006, the Commission sent an opinion on your complaint and stated that you had initiated proceedings before the Civil Service Tribunal on 2 March 2006.

On 19 June 2006, my services contacted you by telephone.

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

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant, who was at the time a head of the unit in the Commission, successfully participated in the COM/R/8003/03 selection procedure for the post of director in DG Information Society and Media (published in the Official Journal C268 A of 7 November 2003). The selection procedure began in November 2004 and ended in July 2004 and thus began before the new Staff Regulations entered into force (1 May 2004). The notice of competition stated that the conditions of employment, including salary, for that post correspond to grade A2 under the Staff Regulations in force at the time (hereinafter, the old Staff Regulations). The notice of competition did not refer to any possible changes of the employment conditions, including salary, after the new Staff Regulations entered into force.

However, on 18 May 2005, the complainant was offered grade A14 under the new Staff Regulations which, according to the complainant did not correspond to the grade A2 that he had applied for. As a result, the complainant's salary in his new post of director appeared to be lower than his salary in his previous post as head of unit. In the complainant's view, the Commission should have offered him grade A15 under the new Staff Regulations, which corresponds to the grade A2 under the old Staff Regulations. In this context, the complainant pointed out that his colleagues who are also Directors in DG Information Society and Media and were recruited following the competitions for the A2 posts under the old Staff Regulations, received the grade A15 under the new Staff Regulations.

On 14 July 2005, the complainant made a complaint under Art. 90 (2) of the Staff Regulations.

On 21 November 2005, the Commission informed the complainant of its decision by e-mail. The Commission rejected the complainant's arguments and maintained its original decision concerning the salary offered to the complainant in his post of director (i.e., grade A14). The Commission's main argument in support of its decision appears to be, in summary, that the selection procedure in question was for external candidates so the complainant could not compare his new employment conditions with the previous ones because he participated in that selection procedure as an external candidate. Moreover, he could not participate in selection procedures for internal candidates because he did not have two years of seniority as a Community official. Furthermore, according to the Commission, under the new Staff Regulations, grade A14 is now equivalent to grade A2 in the case of external candidates whereas grade A 15 is the equivalent of grade A2 in the case of internal candidates.

In his complaint to the Ombudsman, the complainant alleged that, by offering him grade A14 instead of grade A15 under the "new" Staff Regulations, the Commission infringed (1) the principle of non discrimination (the complainant's colleagues recruited under the same conditions as directors received grade A15); (2) the principle of vested rights (the complainant applied for the post A2 which corresponds under the new Staff Regulations to grade A15); and (3) the principle of equity (the salary offered to the complainant in his new post of director is lower than the salary in his previous, and hierarchically inferior, post of head of unit).

The complainant also alleged that the Commission failed to reply to all the arguments contained in his Article 90 (2) complaint and in particular, that the Commission's legal analysis of the complainant's arguments was wrong, given that it failed to recognise that the above principles should be respected.

He claimed (i) that the post should be remunerated at the A15 level and (ii) that in any event he should not be offered a lower salary than he receives at present.

THE INQUIRY

The Commission's opinion

On 1 June 2006, the Commission informed the Ombudsman that, on 2 March 2006, the complainant had initiated proceedings at the European Union Civil Service Tribunal concerning the same allegations and claims as he had submitted to the Ombudsman.

The complainant's observations

In a telephone conversation of 19 June 2006 with the Ombudsman's services the complainant confirmed that he had initiated proceedings at the Civil Service Tribunal concerning the allegations and claims raised in his complaint to the Ombudsman.

THE DECISION

1 The complainant's allegations and claims

1.1 The complainant worked, at the time of his complaint to the European Ombudsman, in the Commission.

In his complaint to the Ombudsman, he alleged that that, by offering him grade A14 instead of grade A15 under the new Staff Regulations, the Commission infringed (1) the principle of non discrimination (the complainant's colleagues recruited under the same conditions as directors received grade A15); (2) the principle of vested rights (the complainant applied for the post A 2 which corresponds under the "'new" Staff Regulations to grade A15); and (3) and principle of equity (the salary offered to the complainant in his new post of director is lower than the salary in his previous, and hierarchically inferior, post of head of unit).

The complainant also alleged that the Commission failed to reply to all the arguments contained in his Article 90 (2) complaint and in particular, that the Commission's legal analysis of the complainant's arguments was wrong, given that it failed to recognise that the above principles should be respected.

He claimed (i) that the post should be remunerated at the A15 level and (ii) that in any event he should not be offered a lower salary than he receives at present.

1.2. In its opinion, the Commission informed the Ombudsman that the complainant had initiated proceedings before the Civil Service Tribunal on 2 March 2006, and that the proceedings concern the same allegations and claims as his complaint to the Ombudsman.

1.3. The complainant confirmed this information in a telephone conversation of 19 June 2006 with the Ombudsman's services.

1.4. The Ombudsman recalls that Article 195 of the Treaty establishing the European Community empowers the European Ombudsman to receive complaints "...concerning instances of maladministration in the activities of the Community institutions or bodies...except where the alleged facts are or have been the subject of legal proceedings." Moreover, Article 2(7) of the European Ombudsman's Statute provides that "when the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action."

1.5. Since the complainant has initiated proceedings before the Civil Service Tribunal concerning the same allegations and claims as those in his complaint, the Ombudsman considers that the alleged facts of the complaint are now the subject of legal proceedings. The Ombudsman therefore terminates his consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

2 Conclusion

The Ombudsman terminates consideration of the complaint and files the outcome of his inquiries carried out so far without further action.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS