Dear X,
On 24 June 1997, you made a complaint against the European Commission concerning the latter's refusal to consider your request for a review of your initial grading.
On 30 July 1997, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 23 October 1997 and I forwarded it to you with an invitation to make observations, if you so wished. By letter of 22 December 1997, you informed me that you would lodge observations before 28 February 1998. By letter of 12 March 1999 you lodged observations.
I am now writing to you to let you know the results of the inquiries that have been made.

THE COMPLAINT

The background to the complaint is in brief the following: In June 1996, the complainant, a Commission official, asked the Commission to review the complainant's position as regards the category. The complainant was in category B but considered that they should be in category A. In the view of the complainant, the Belgian diploma "Ingénieur Technicien" entitled the complainant to be graded in category A. On 8 August 1996, the Commission refused to put the complainant in category A.
The complainant considered this decision to be wrong and discriminatory, as other servants holding the same diploma were working in category A.
Against this background, the complaint was lodged with the European Ombudsman.

THE INQUIRY

The Commission's opinion
In its opinion, the Commission explained that the complainant's request for becoming an A official was sparked off by a judgment of the Court of First Instance of 5 October 1995 in case T-17/95, Alexopoulo v Commission. In that judgment the Court of First Instance annulled a Commission decision not to make the initial grading of a servant in a superior grade than the basic grade of the category. The reason for the annulment was that the Commission had given wrong reasons for its decision. In fact, according to Art 31 of the Staff Regulations, the Commission has within certain limits a discretionary power to make an initial grading in a superior grade, while the Commission had refused to make the grading in the case in question on the grounds that its internal rules, adopted in 1983, completely excluded such a possibility.
The Commission thereafter observed that the internal rules of 1983 had never been applied to the complainant as the complainant had been recruited in 1964, and ever since 1964, the complainant had been in the B category. According to the Staff Regulations, the complainant would therefore have had to contest the grading at that time. Finally, the Commission observed that even if the judgment of the Court of First Instance had been relevant to the case of the complainant, the complainant would not have been entitled to a regrading according to the ruling of the Court of First Instance of 11 July 1997 in case T-16/97, Charvin v Commission.
The complainant's observations
In observations, the complaint maintained the complaint.

THE DECISION

1. The Commission's refusal to regrade the complainant
1.1. The complainant considered that the Commission's refusal to grant a regrading was wrong and discriminatory because other servants having the same diploma as the complainant were to the complainant's knowledge graded better.
1.2. In taking a stand on this complaint, it shall firstly be observed that the Ombudsman cannot look into the merits of the complainant's original grading made in 1964, as Art 2 (4) of the Statute of the Ombudsman provides that complaints shall be made within two years of the date of the facts on which the complaint is based came to the complainant's attention. The object of the present inquiry is therefore to examine whether the Commission has infringed any rule or principle binding upon it in taking the decision in 1996 not to regrade the complainant.
1.3. The Staff Regulations and the case law of the Community Courts set narrow limits for regrading persons, once their initial grading has become definitive. Basically, a request for regrading has to be based on the advent of new facts. In the present case, there appears to be no such new facts. It shall be observed that there are no elements at hand to the effect that the Commission has given a different treatment to servants who are in a situation identical to the complainant's.
2. Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN