(Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1])

THE BACKGROUND TO THE COMPLAINT

The events leading to the present complaint

1. Between 15 January 1999 and 15 January 2002, the complainant worked as a PhD Fellow at the Institute for Reference Materials and Measurements ("IRMM") in Geel (Belgium). The IRMM is part of the Joint Research Centre ("JRC"), a Directorate-General ("DG") within the European Commission.

2. In 2001, the complainant had an affair with a colleague, Ms Y, that did not last long. According to information provided by the Commission that was not disputed by the complainant, the latter, beginning in 2001, sent Ms Y. a long series of letters and e-mails which Ms Y. perceived as harassment. In the second half of 2001, Ms Y. complained to her superiors about the complainant's behaviour. Having looked into the matter, Professor G., the then Director of the IRMM, decided that no follow-up contract should be offered to the complainant.

3. On 18 December 2001, the complainant wrote to Professor G. in order to summarize the results of a discussion that they had had on 13 December 2001. According to this letter, Professor G. made it clear that the accusations put forward by Ms Y. were not sufficiently concrete to justify a further inquiry. Apart from the refusal to grant a further contract, the matter would therefore not have any further consequences for the complainant. Professor G. noted in particular that he did not see any reason to object to further professional contacts between the IRMM and the complainant and his company. Still according to this letter, Professor G. further promised that all relevant documents would be kept absolutely confidential and that, after he had found a 'solution' for Ms Y., these documents would be destroyed.

4. Shortly afterwards, Ms Y. moved to the JRC's site in Ispra (Italy).

5. According to information provided by the Commission that was not disputed by the complainant, the letters and e-mails he sent to Ms Y. became less numerous in 2003 and 2004 and ceased altogether afterwards.

6. In 2007, the complainant contacted Ms Y. again in relation to the thesis that she was about to complete. In an e-mail sent in December 2007, the complainant informed Ms Y. that he intended to be present at the public defence of her thesis before the University of Gent.

7. On 20 December 2007, Ms R., a Director within the JRC, wrote to the complainant. Ms R. noted that it had been brought to her attention that the complainant had, for a number of years, sent unsolicited e-mail messages, letters and other correspondence to Ms Y. According to Ms R., this correspondence was offensive to Ms Y. and was disrupting her ability to carry out her tasks at the JRC. As regards the complainant's announcement that he would attend the public defence of Ms Y.'s thesis, Ms R. pointed out that this could be interpreted as harassment. Ms R. therefore asked the complainant to stop and desist from any further contact with Ms Y. and to avoid any correspondence with her.

8. In his reply sent the same day, the complainant pointed out that Ms Y.'s thesis was to be defended in public and that he therefore did not see any reason why he should not attend this event. The complainant added that he did not see how writing to Ms Y. could constitute harassment.

9. On 24 January 2008, Ms R. informed the complainant that her letter had addressed the impact that his correspondence had had on Ms Y. and that she had intended to indicate to him that this correspondence was disturbing Ms Y. and making it difficult for her to carry out her work. Ms R. concluded by stating that she trusted that the complainant would refrain from contacting Ms Y., as requested.

10. In his reply of 28 January 2008, the complainant pointed out that he would postpone any further communication with Ms Y. for the time being, although he still believed that there had been nothing wrong with writing to her in the past.

11. It seems that the complainant was not present when Ms Y. defended her thesis in public.

12. At some unknown point in time in early 2008, a decision was taken at the IRMM to the effect that the complainant would no longer be allowed onto the IRMM's premises. The complainant was not informed of this decision.

13. It appears that the complainant subsequently learnt that the IRMM had taken such measures concerning him.

14. During the course of the present inquiry it emerged that a similar decision had been taken as regards the JRC's premises in Ispra.

15. On 19 June 2008, the complainant sent an e-mail to Mr H., the Director of the IRMM. In this communication, the complainant suggested that the approach that had been adopted concerning him should be corrected. In this context, he submitted that the IRMM needed his co-operation on the so-called 'Avogadro' project.

16. On 25 June 2008, the complainant sent a further e-mail to the Director of the IRMM.

17. In a letter to the Director of the IRMM sent on 18 July 2008, the complainant noted that his e-mails had remained unanswered. The complainant submitted that the Director of the IRMM had asked his staff to refrain from any communication or co-operation with him. He also stated that the Director of the IRMM had tried to convince the staff in the unit concerned that the complainant was trying to 'sabotage' other people's work. According to the complainant, these defamations threatened his reputation. The complainant submitted that the National Institute of Standards and Technology ("NIST", a US federal agency) and the Physikalisch-Technische Bundesanstalt ("PTB", a German federal institute) had assigned him the task to support and facilitate the work of the IRMM on the Avogadro project.

18. On 18 July 2008, the complainant also turned to Mr S., the Director-General of the JRC. In his reply of 25 July 2008, Mr S. noted that he had spoken to the Director of the IRMM and that he trusted that the latter would soon write to the complainant.

19. On 25 July 2008, the Director of the IRMM replied to the letter of 18 July 2008, asking the complainant to clarify the nature and extent of the mandate given to him by the NIST and the PTB. The Director further stated that he had not given instructions to IRMM staff not to speak to the complainant.

20. In his reply of 29 July 2008, the complainant provided certain information concerning the question put to him. In turn, the complainant asked (i) whether the Director of the IRMM had ever given any of his staff the impression that he did not wish them to have an open communication with the complainant, (ii) whether he ever asked any IRMM staff to refrain from further co-operation with the complainant or his company, (iii) whether it would be possible for him to visit the IRMM and discuss problems related to the project concerned and (iv) whether the Director of the IRMM was willing to discuss with him in person the issues that had given rise to the current problems.

21. In his reply of 4 September 2008, the Director of the IRMM stated the following:

"(...) I have never prevented scientific contacts from being maintained - indeed these are encouraged to the extent that they are constructive, productive and professional. In particular, (...) IRMM has been strongly supporting the Avogradro [sic] project for a very long time and continues to do so.

As you know, your physical presence on IRMM premises has caused problems in the past and professional contacts should be continued off IRMM premises by other means.

Not being involved in the day-to-day work of the IM unit on the Avogadro project, I do not see the necessity to meet with you in person.

I trust that this will be the end of your correspondence with me on this subject. (...)"

A copy of this letter was sent to two persons at the PTB.

22. In a letter sent on 18 September 2008, the complainant objected to the statement that his physical presence at the IRMM had caused problems. He pointed out that during the last six years, he had visited the IRMM several times a year, including a two-week stay in 2007, and that there had not been a single problem in the time that Mr H. had been Director. The complainant therefore called on the Director of the IRMM to withdraw the said statement or to present evidence for it. He added that he would otherwise consider the relevant statement as constituting defamation.

23. On 23 September 2008, the complainant again turned to Mr S., the Director-General of the JRC, alleging that the Director of the IRMM had not addressed the substance of his grievances.

24. On 25 September 2008, the Director of the IRMM informed the complainant that he considered that the latter's letters had become repetitive and that he would therefore discontinue the correspondence.

25. On 30 September 2008, the complainant addressed a further letter to the Director of the IRMM in which he provided a detailed account of his views. He added that if the Director of the IRMM were not to raise any objections by 24 October 2008, he would take this as an implicit acknowledgement.

26. On 3 October 2008, the Director of the IRMM reminded the complainant that he had announced that he would no longer answer his letters. The Director added that the purpose of the present letter was simply to contest the complainant's claim that the absence of an answer was to be construed as an acknowledgement of the views the complainant put forward in his letter of 30 September 2008.

Events relevant for the present inquiry that took place after the complaint was lodged

27. On 22 May 2009, the complainant wrote to the Director-General of the JRC in relation to the letter the Director of the IRMM had addressed to him on 4 September 2008. The complainant submitted that this letter had contained an incorrect, defamatory statement. He also criticized the fact that this letter had been sent to two persons at the PTB. The complainant claimed (i) that the relevant statement should be withdrawn, (ii) that the JRC should apologize in writing, (iii) that the facts should be corrected in a letter to the PTB and (iv) that the Commission should confirm that there was no reason not to associate him to the Avogadro project.

28. In his reply of 27 May 2009, the Director-General of the JRC referred to the Commission's opinion in the present case, in which the Commission had rejected the complainant's claims. The Director-General took the view that the claims set out in the letter of 22 May 2009 concerned the same case and thus had to be treated in the same way. He therefore rejected these claims.

29. In a letter of 8 June 2009, the complainant criticized this approach and invited the Commission to reconsider its position.

30. In his reply of 22 June 2009, the Director-General of the JRC confirmed the position he had adopted in his previous letter. He submitted that the Director of the IRMM had been entitled to forward his letter of 4 September 2008 to the PTB since the complainant had claimed to have a mandate from this institute. The Director-General of the JRC further argued that the complainant had not raised the relevant issue in good time.

31. On 7 July 2009, the complainant again objected to this position. In a letter of 23 July 2009, the Director-General of the JRC however confirmed the views he had put forward.

32. In a further letter sent on 7 July 2009, the complainant addressed himself to the Director of the Institute for Health and Consumer Protection ("IHCP") within the JRC in Ispra concerning the decision not to allow him access to the JRC's premises in Ispra any more. The complainant asked to know (i) when this decision had been adopted, (ii) how it had been laid down, (iii) on what reasons it was based, (iv) why he had not been informed of it, (v) why he had not been asked for his views before the decision was adopted, (vi) why he had not been informed how he could appeal against it and (vii) how he could bring an appeal against that decision.

33. In her reply of 28 July 2009, the Director of the IHCP referred to the Commission's opinion in the present case. According to the Director, this opinion explained the conditions of access to Commission premises and possible measures of protection. The Director added that measures similar to those adopted in Geel had been taken in Ispra.

34. In a letter of 29 July 2009, the complainant pointed out that this reply did not adequately address his questions.

35. In her reply of 10 August 2009, the Director of the IHCP again referred to the Commission's opinion in the present case. In a further reply of 5 October 2009, she added that the Commission had in the meantime received a request for further information from the Ombudsman. The Director of the IHCP added that the Commission would reply to this request and that therefore it was no longer necessary to reply to the complainant.

36. In his reply of 6 October 2009, the complainant underlined that he considered the manner in which his questions had been handled so far to constitute a further instance of maladministration. He again asked for a reply to the questions he had submitted on 7 July 2009.

37. On 11 January 2010, the complainant informed the Director of the IHCP that the Commission's reply to the Ombudsman's request for further information did not address the questions he had submitted on 7 July 2009.

38. On 22 January 2010, the Director-General of the JRC replied to the complainant's letter of 6 October 2009 to the Director of the IHCP. The Director-General argued that the replies sent by the Director of the IHCP answered his questions and that additional clarifications had been provided in the Commission's reply to the Ombudsman's request for further information. As regards the letter of 11 January 2010, the Director-General explained that the complainant would receive a letter from the Commission's Secretariat-General, in which the Commission's procedures concerning complaints would be explained. The Director-General added that the complainant could address himself to the Secretariat-General if he was not satisfied with this answer.

THE SUBJECT MATTER OF THE INQUIRY

39. The complainant presented a number of allegations and claims in his complaint. In his observations on the Commission's opinion, he raised further allegations and claims. In a letter of 11 May 2009, the Ombudsman informed the complainant that he was unable to take these further issues up for inquiry, given that the complainant had not yet made the appropriate prior approaches concerning these issues. On 26 and 29 July 2009, the complainant renewed these further allegations and claims. Given that appropriate approaches concerning these issues had in the meantime been undertaken, the Ombudsman thereupon included these issues in his inquiry.

40. The present inquiry thus covers the following allegations and claims:

Allegations

(1) The complainant alleges that the measures taken against him by the IRMM, in particular an order to stay away from its premises, were (a) the result of an incorrect procedure and (b) substantively not justified.

In support of this allegation, the complainant argues (i) that he was not informed about the order at the time when it was imposed, (ii) that he was not informed about the grounds on which the order was based, (iii) that the accusations against him which led to the order were not properly examined, (iv) that he was not given the opportunity to comment on these accusations before the decision was taken, and (v) that the Director of the IRMM failed properly to handle his correspondence in this matter.

(2) In the complainant's view, the order and the way in which his correspondence was handled infringed Articles 6, 9, 11, 14, 16, 18, 19, 20 and 22 of the European Code of Good Administrative Behaviour.[2]

(3) The Commission failed to inform the complainant about the fact that its services in Ispra decided to prevent him from entering their premises.

(4) The Commission acted wrongly and in a defamatory manner when it forwarded the letter of 4 September 2008 to persons at the PTB and failed to take remedial action even though the complainant had asked it to do so.

Claims

(1) The order to stay away from the IRMM's premises should be lifted;

(2) He should be informed in detail about the accusations made against him, as well as about all supporting documents and information;

(3) He should be given the opportunity to comment on these accusations;

(4) Should it not be possible to clarify the matter on the basis of his comments, a proper investigation should be launched;

(5) All decisions in this matter should respect the principle of proportionality;

(6) In the event that the accusations against him turn out to be unfounded, the Director of the IRMM should apologise to him in writing;

(7) The defamatory statement made by the Director of the IRMM in his letter of 4 September 2008 should be withdrawn in writing;

(8) The Director-General of the JRC should apologise to the complainant in writing.

(9) The matter should be clarified in a letter to be sent to the PTB;

(10) DG JRC should confirm in writing to him that there was no reason not to include him in the Avogadro project.

41. Together with his complaint, the complainant submitted a copy of the letter he had addressed to the Director of the IRMM on 30 September 2008. According to this letter, the Director of the IRMM told a member of his staff that the complainant was 'sabotaging' other peoples' work. The Director also had a meeting with a member of his staff in which he clearly expressed his disapproval of the open communication between this member of staff and the complainant. Still according to this letter, when the head of the relevant unit within the IRMM had refused to follow the decision that had been taken as regards the complainant, because he considered that interests of the IRMM were at stake, the Director of the IRMM had applied disciplinary measures to force him to comply. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant pointed out that considerable pressure had been brought to bear on staff of the IRMM to make them stop any official communication with him. The complainant stated that he had evidence to show that the Director of the IRMM had taken further measures that aimed at making scientific cooperation between him and the staff of the IRMM more difficult or impossible. The Ombudsman notes that the complainant has not submitted to him any evidence or allegations or claims concerning the above issues. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant pointed out that he was afraid that disclosing the relevant evidence would lead to negative consequences for the staff of the IRMM. He added that he would therefore only submit this evidence if there was genuine doubt that the decision that had been taken negatively affected co-operation between IRMM staff and himself. As will be seen below, the Ombudsman does not have any such doubts. In any event, the Ombudsman notes that the above additional issues are currently not covered by the present inquiry.

42. During the course of the present inquiry, the Ombudsman informed the Commission that it is good administrative practice to keep a complete record of all decisions affecting citizens. However, the file inspected by the Ombudsman's services did not contain any trace of the decision taken against the complainant that barred him from entering the IRMM's premises. In its reply, the Commission explained that it regretted this omission and that it would amend its file. In his observations, the complainant asked the Ombudsman to inspect the Commission's file in order to ascertain that this correction had been carried out properly. He further submitted that it should carefully be examined whether any other documents were missing from this file. It should be stressed that the Ombudsman's services proceeded to an inspection of the Commission's file in order to enable the Ombudsman to deal with the allegations and claims submitted by the complainant. However, the complainant had not criticized the fact that the relevant decision had not been properly recorded in the Commission's file. In view of the draft recommendation that will be made in the present case, the Ombudsman considers that it is not necessary to pursue this issue. The same holds true as regards the question whether the Commission's file contained all the documents that were relevant for this case.

43. In his complaint, the complainant criticized the fact that certain e-mails he had addressed to the Director of the IRMM in June 2008 remained unanswered. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant pointed out that further e-mails of his had also been ignored. In particular, the Director of the IRMM had omitted acknowledging receipt of the complainant's thesis that the complainant had, at the Director's request, sent to him by e-mail in early 2008. The complainant submitted a copy of a further e-mail sent to the Director of the IRMM on 13 May 2008, in which he referred to his previous e-mail and asked the Director to confirm that he had received the present e-mail and the thesis that had been sent earlier. The Ombudsman understands that the relevant observation made by the complainant constitutes a comment on a statement made by the Commission in its reply to the Ombudsman's request for further information, but that he did not wish to raise a further allegation in this context.

44. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant further pointed out that the Commission had referred to a letter he had addressed to Professor G. and which he had submitted to the Ombudsman during the course of the present inquiry. The complainant stated that he doubted whether the Director of the IRMM had known of this letter when he sent his letter of 4 September 2008. He therefore asked the Commission to present the original of this letter signed by the complainant. The Ombudsman considers that if the complainant wishes to pursue this request, he would need to address it to the Commission. In any event, regard should be had to the fact that the issue raised by the complainant is not relevant for the assessment of the present complaint by the Ombudsman.

45. In the e-mail message accompanying his observations on the Commission's reply to the Ombudsman's request for further information, the complainant also informed the Ombudsman that on 6 October 2009 he addressed a letter to the Director of the IHCP, in which he argued that the query he had sent to this official had not been handled in conformity with principles of good administration. According to the complainant, the Director of the IHCP interpreted the complainant's comments in the said letter as a complaint and forwarded the latter to the Secretariat-General. In the complainant's view, a new complaint procedure had thus been initiated. It is true that, in the observations themselves, the complainant called on the Commission to explain to him who had adopted the entry ban in Ispra and on what grounds this ban was based. However, in light of the wording of the above-mentioned accompanying message the Ombudsman considers that the complainant does not wish to submit the above issue to him for the time being. The complainant obviously remains free to submit a new complaint concerning this issue to the Ombudsman.

46. In his observations on the Commission's opinion, the complainant submitted a further allegation to the effect that the JRC had, without sufficient justification, without his consent and without informing him disclosed private data relating to him. In his reply, the Ombudsman informed the complainant that he was not able to deal with this allegation before appropriate approaches to the Commission had been made concerning this issue. He further pointed out that the complainant could also consider submitting this issue to the European Data Protection Supervisor ("EDPS"). In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant pointed out that he would turn to the EDPS concerning the issues relating to data protection, once the Ombudsman's inquiry was concluded.

47. The complainant initially asked for his complaint to be treated confidentially. In his observations on the Commission's reply to the Ombudsman's request for further information, the complainant withdrew this request. The Ombudsman nevertheless considers it appropriate and justified to keep the identity of the complainant's former colleague at the IRMM confidential. This person is therefore referred to as Ms Y in this draft recommendation.

THE INQUIRY

48. The present complaint was lodged on 26 October 2008. On 19 November 2008, the Ombudsman asked the Commission for an opinion, which was submitted in March 2009. This opinion was forwarded to the complainant, who presented observations on 14 April 2009.

49. On 11 May 2009, the Ombudsman replied to the complainant's e-mail of 14 April 2009. On the same day, he informed the Commission that he considered it necessary to inspect its file.

50. This inspection took place on 16 June 2009. A copy of the report on the inspection was sent to both the Commission and the complainant. On 26 July 2009, the complainant submitted further allegations and claims to the Ombudsman. On 29 July 2009, he made observations on the report on the inspection.

51. On 10 and 21 September 2009, the Ombudsman asked the Commission for further information concerning this case. He also asked it to provide a supplementary opinion on the additional allegations and claims submitted by the complainant.

52. The Commission sent its reply in December 2009. This reply was sent to the complainant, who presented his observations on 31 January 2010.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

53. It should be noted that the complainant has submitted a considerable number of allegations and claims. In the Ombudsman's view, these allegations and claims can be grouped under four headings concerning (i) the substance of the decision to prevent him from having access to the premises of the IRMM in Geel, (ii) the procedure applied by the Commission in relation to this decision, (iii) the alleged failure to inform him of the corresponding measure adopted in Ispra, and (iv) the alleged defamation arising from the letter of 4 September 2008.

54. As already noted above, no written record of the decision adopted by the Commission concerning access by the complainant to the premises of the IRMM in Geel was found on the Commission's file when the Ombudsman's representatives inspected it. However, it emerges from the information that has been provided by the Commission in the course of the present inquiry that this decision had the intention and the effect of making it impossible for the complainant to have access to the premises of the IRMM in Geel. For easy reference, the term "entry ban" will be used in this draft recommendation to denote the decision at issue.

A. As regards whether the entry ban was well-founded and the issues related thereto

Arguments presented to the Ombudsman

55. The complainant alleged that the entry ban was not justified. In this context, he submitted the following specific arguments: (i) The entry ban was not proportionate and failed to take into account his personal interests (Article 6 of the European Code of Good Administrative Behaviour); (ii) the relevant decision was not objective, given that factors pleading in his favour were not taken into account (Article 9 of the Code); (iii) the accusations against him which led to the decision were not properly examined and (iv) there was an absence of fairness and reasonableness (Article 11 of the Code). According to the complainant, the Commission infringed Articles 6 (proportionality), 9 (objectivity) and 11 (fairness) of the European Code of Good Administrative Behaviour. The complainant claimed that the entry ban should be lifted, that all decisions in this matter should respect the principle of proportionality and that DG JRC should confirm in writing to him that there was no reason not to include him in the Avogadro project.

56. In its opinion, the Commission submitted that the relevant decision had its origin in instances of harassment and threatening behaviour by the complainant against Ms Y. and other members of the IRMM's staff which, as evidenced by the material in its possession, had taken place between 2001 and 2007. According to the Commission, this material included copies of correspondence between the complainant and Ms Y.; statements, notifications and correspondence regarding physical threats by the complainant against Ms Y. and other staff; correspondence between the complainant and various members of the JRC's management; and correspondence between the various Commission services concerned. The Commission noted that the above documents were available to the Ombudsman if he wished to consult them. It added that its services had taken into consideration all the evidence that was available in determining whether or not to grant the complainant access to the IRMM site.

57. The Commission pointed out that, following the instances of harassment perpetrated by the complainant against Ms Y. in 2001, the then Director of the IRMM decided to phase out the complainant's involvement in the IRMM's activities. According to the Commission, the complainant had been well aware of this. In this context, the Commission referred to a letter dated 14 January 2002, in which the complainant stated that he had been told that he would "not get an unpaid visitor status" and that "if I am not wanted in the IRMM I had to leave".

58. The Commission submitted that a particularly significant instance of threatening behaviour had occurred in December 2007, when the complainant announced that he intended to attend the public defence of Ms Y.'s thesis.

59. The Commission explained that, in view of all the above, "measures were taken by the IRMM and the JRC hierarchy in January 2008 to prevent [the complainant] from entering its premises." According to the Commission, these decisions were in line with its normal policy of protecting staff.

60. The Commission added that access to its premises was controlled by its services or by external security firms acting on its instructions. The IRMM was a nuclear site and thus subject to even stricter access conditions than other sites. Third parties like the complainant had no right of access. In the complainant's case, there was ample evidence that his presence on the IRMM site could potentially create concerns about the safety of IRMM staff; at the same time, there was no valid reason for granting him access. The Commission stressed that it could not tolerate any kind of harassment. It added that it therefore intended to maintain the entry ban concerning the complainant.

61. The Commission submitted that the "second decision refusing the complainant access to the JRC site" was based on all the material available in January 2008. It pointed out that its priority had been to protect Ms Y. and other staff of the IRMM who had been the subject of threats by the complainant. It further argued that all the available evidence had been taken into consideration and that, based on the evidence in its file, it did not consider it appropriate to launch an investigation. The Commission also stated that its decisions had been in full conformity with the principle of proportionality. The complainant's record of harassment and threats against his former colleagues fully justified taking measures to ensure that he could not continue such behaviour. The instruction to refuse him access to the site had been the most appropriate means of preventing this from happening.

62. The Commission concluded by stating that it was of the opinion that all its actions were fully justified in view of its obligations towards its staff and that it had no intention of offering an apology to the complainant.

63. In his observations, the complainant submitted that he had never harassed or threatened Ms Y. Nor had there been any physical threats, either against Ms Y. or any other members of the IRMM staff. The complainant stated that he did not know of any decision to put an end to the co-operation between himself and the IRMM that would have been taken by Professor G. What had happened was that his contract had expired, as foreseen, on 15 January 2002. However, a number of contracts had been concluded between the IRMM and the complainant's company since 2002. The complainant stressed that, until the end of 2007, he had visited the IRMM on several occasions each year without encountering any obstacles. He added that the Commission had quoted from a private letter he had written without indicating the addressee, the type of document or its context. The statement made in that letter had thus been falsified. In any event, it was clear that the relevant letter reflected his state of mind at the time and did not constitute a description of the objective situation.

64. The complainant acknowledged that he had addressed several strictly private letters and e-mails to Ms Y. However, this correspondence was neither intended to harass or threaten Ms Y nor objectively in a position to do so. The Commission ought clearly to distinguish between private and professional matters. The complainant further noted that the Commission did not specify who the other persons were that he was supposed to have threatened. He added that, to his knowledge, none of the members of the IRMM with whom he had been in contact in the last years had been consulted.

65. As regards the issues surrounding Ms Y.'s thesis, the complainant explained that he had read an article published by the latter in a scientific review. Given that he had had certain doubts concerning the statistical methods used in that article, he had written to Ms Y. to allow her properly to consider the issue before the public defence of her thesis. He had also offered to discuss the issue over the telephone or by e-mail, in case she preferred this to a public discussion. The complainant stressed that the rules of the University of Gent stipulated that a thesis had to be defended in public. His intention to be present on that occasion was based on the right of the public to attend the public defence of a thesis and could thus not constitute harassment. The complainant added that if Ms Y. needed to be protected against his scientific criticism when publicly defending her thesis, banning him from entering the premises of the IRMM was in any event an utterly inappropriate measure. Ms Y. was not physically present in the IRMM. Nor could the entry ban prevent him from sending further e-mails to her. The complainant submitted that what the entry ban could achieve was to make his scientific co-operation with the IRMM more difficult or impossible. This was disproportionate.

66. The complainant submitted that the Commission had rushed to take action without examining with a critical eye the accusations made against him. The Commission had apparently not been interested in analysing the situation objectively and neutrally or had not been able to do so. It appeared that the Commission had based itself on guesses and one-sided accusations and thus acted arbitrarily.

67. The complainant queried whether the entry ban had really been imposed by the management of the JRC. In his view, it had to be assumed that this decision had been taken by the Director of the IRMM.

68. The complainant took the view that the Commission's argument that the entry ban was justified for security reasons was only a pretence and in any event not well-founded. There was a clear geographic separation at the IRMM between the area where nuclear material was handled and the area where the administration was located and where meetings and conferences took place. Entry into the 'controlled' zone was subject to a special permission.

69. The complainant further submitted that particularly high standards should be applied as regards how the Director of a public scientific institution dealt with critical scientists. Fairness, respect and transparency should be the supreme law in this context. These requirements had not at all been respected in the present case.

70. According to the complainant, the Commission distorted the facts by referring to a "second" entry ban. He had no knowledge of any prior entry ban.

71. The complainant underlined that he did not claim to have a right of access to the IRMM's premises. He pointed out that even if the entry ban were lifted, he would remain subject to the usual entry controls. The complainant further clarified that he would only be able to enter the IRMM if he had been invited by one of the IRMM's scientists and if the latter's head of unit approved this invitation.

72. Having examined the Commission's opinion and the complainant's observations, the Ombudsman decided that it was necessary to inspect the Commission's file.

73. On this occasion, the Ombudsman's representatives asked how the decision to prevent the complainant from entering the IRMM's premises could protect Ms Y., who no longer worked on these premises. The Commission's representatives answered that the complainant had also expressed threats to other staff members (and in particular one person), who still worked at IRMM and required protection. They further explained that the Commission followed a 'zero tolerance policy' in case of harassment and that the measure to prevent the complainant from having access to the IRMM's premises had been taken in light of this. The Commission's representatives added that the measure was also of a precautionary nature, given that the complainant's correspondence from 2007 showed that the case could not be regarded as dormant.

74. In his observations on the report on the said inspection, the complainant pointed out that the Commission had manifestly based itself on documents provided to it by Ms Y. The Commission had never examined whether the accusations that Ms Y. appeared to have made were well-founded. The complainant stressed that it was not correct to say that he had made threats against members of the IRMM's staff who were still working there.

75. Having examined these observations, the Ombudsman asked the Commission to provide him with further information concerning the present case. The Ombudsman pointed out that it would seem obvious that the entry ban could not be justified by the (perceived or real) need to protect Ms Y., who did no longer work at the IRMM. In its opinion and on the occasion of the inspection, the Commission referred to other members of staff that needed to be protected and against whom the complainant had allegedly made threats. The Ombudsman therefore asked the Commission to specify (i) who these members of staff were, (ii) what threats the complainant allegedly made, (iii) when the alleged threats were made and (iv) how these alleged threats could justify the relevant decision in light of the fact that the complainant appeared to have returned to the IRMM, as an external expert, on several occasions since 2002.

76. In its reply, the Commission explained that the information covered by points (i) and (ii) of the Ombudsman's request needed to be considered as being confidential in order to protect the staff members concerned against further threats and potential harmful actions by the complainant. As regards point (iii), the relevant threats had been made in 2001. Regarding point (iv), the Commission considered that the incident that occurred in December 2007 was particularly serious, all the more so since the defence of a thesis was the culmination of several years of work and a step that was vital for a further career in research. The Commission submitted that it owned the results in question, since they were obtained by a grant-holder who had been paid by it. It took the view that it therefore had an institutional interest and duty to protect those results.

77. According to the Commission, the said incident demonstrated that the complainant had not changed the behaviour that had led the then Director of the IRMM to phase out his involvement in the activities of the IRMM in 2001. The decision taken in January 2008 to bar the complainant from entering the IRMM's premises was taken in response to this incident and "other events".

78. In its reply, the Commission also reiterated that there was no right of access to Commission premises and that any request for access was in any event examined as to whether there was a qualified interest justifying access. The Commission did not consider that the complainant had a justified interest in such access. The measure taken by the Director of the IRMM was of a general order and did not affect any determined right or qualified interest of the complainant. It was based on the basic principles of protective security: it was of precautionary character, justified and pragmatic.

79. The Commission further submitted that its approach had been made necessary by the obligation laid down in Article 24 of the Staff Regulations of officials of the European Communities (the "Staff Regulations"), according to which the institutions had to assist their staff, particularly in cases of harassment. In this context, the Commission referred to its Decision of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment[3] (the "Decision of 26 April 2006"). According to the Commission, the relevant entry ban was the expression of its discretion in taking the appropriate measures to protect its staff. The Commission further referred to the overriding duty to protect its staff and the need to maintain the security of the site.

80. As regards the complainant's claim that it should be confirmed in writing to him that there was no reason not to include him in the Avogadro project, the Commission submitted that deciding with whom it co-operated was a management decision that was within its full discretion. There was no absolute right of third parties to 'co-operate' with the Commission. In this context, the Commission referred to the contents of its letter of 4 September 2008.

81. In his observations, the complainant maintained his complaint. He noted that the Commission relied on the accusations that had been made against him as if they were established facts. However, so far there had not been any proper procedure to assess the veracity of these accusations, which in his view were unfounded. The complainant further submitted that it was not proper to consider the Commission's duties towards its staff as being more important than respecting the rights of citizens. He also referred to the scientific co-operation between himself and the IRMM and the services which his company provided to the latter. Against this background, the Commission's view that he did not have a justified interest to be given access to the IRMM was incomprehensible. As regards the Staff Regulations, the complainant considered that they were not applicable in his case. The Decision of 26 April 2006 was not applicable, either, because he was not a member of the Commission's staff. In any event, the Commission had not made any attempt to apply the principles and rules set out in this Decision. In this context, the complainant noted that point 6.1 of the Decision of 26 April 2006 stipulated that "the presumption of innocence is fully guaranteed to alleged harassers".

82. The complainant argued that, in Belgium, the public defence of a thesis was a substantial requirement aimed at ensuring the quality of the titles awarded. By trying to make him refrain from attending the public defence of Ms Y.'s thesis, even though he was a recognised expert in the relevant field, the Commission had impinged on the competencies of the University of Gent. The Commission did not have any ownership in the results of Ms Y.'s research. In any event, he had never threatened the work of Ms Y. and the results to which it had led.

83. The complainant noted that the Commission had again referred to "other events", without specifying what they were. He insisted that the Commission should either refrain from making such statements or provide specific details to support them.

The Ombudsman's assessment

84. The Commission has made it clear that it will not and cannot accept any form of harassment against members of its staff. The Ombudsman wholeheartedly applauds this 'zero tolerance' policy.

85. Article 24(1) of the Staff Regulations provides as follows: "The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties." It follows from the case-law of the Community courts that, by reason of the duty to provide assistance, the administration must, when faced with an incident which is incompatible with the good order and tranquillity of the service, intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and, consequently, taking the appropriate action in full knowledge of the facts.[4]

86. It is true that the complainant is not an official and thus not subject to the Staff Regulations. However, and as the wording of Article 24 shows, the EU institutions, bodies, agencies and offices have a duty of assistance towards their staff not only in cases of harassment by colleagues but also where the harassment is perpetrated by third parties, provided that that it takes place "by reason of [the official's] position or duties".

87. The complainant has argued that the Commission ought clearly to distinguish between private and professional matters and that the letters and e-mails he addressed to Ms Y. were of a strictly private nature. The Ombudsman agrees that, as a matter of principle, the Commission has no mandate to intervene in private matters concerning a member of its staff and a third party. He further considers, however, that where a member of its staff has been harassed by a third party the Commission is entitled to take appropriate action in so far as its own sphere is concerned. The Commission is clearly competent to decide who should be allowed to have access to its premises. It therefore appears logical to assume that the Commission must be entitled to limit or prevent access to its premises by third parties who have harassed members of its staff, to the extent that this is necessary to prevent further instances of harassment from occurring.

88. It should be noted from the outset, however, that the administration also has certain duties to comply with if its attention is drawn to a potential case of harassment. In such a case, the administration is, as the above-mentioned case-law of the Community courts shows, under an obligation to ascertain the facts and then to take appropriate action in full knowledge of these facts. In its submissions, the Commission has referred to its Decision of 26 April 2006 in this context. Although the complainant has correctly observed that this text concerns cases of harassment by members of the Commission's staff and is therefore not applicable in his case, the Ombudsman considers that it provides useful guidance as regards the examination that the administration has to carry out, regardless of whether the alleged harasser is a member of the Commission's staff or not. In particular, and as point 6.1 of the said Decision provides, the presumption of innocence must be respected.

89. The Ombudsman considers that he therefore has to examine whether, in the present case, the Commission ascertained all relevant facts and whether the action it took was appropriate.

90. Before starting his examination, the Ombudsman considers it useful to clarify a number of preliminary issues. Although some of these issues are linked to the procedural aspects that will be discussed under section B. below, these issues need to be addressed already here since they concern the substance of the decision taken by the Commission.

91. First, the Ombudsman notes that the entry ban to be examined here does not appear to have been laid down in an appropriate document at the time when it was adopted. This has led the complainant to speculate as to who the author of this decision was. In its response to the Ombudsman's request for further information, the Commission referred to "the decision taken in 2008 by the Director of the IRMM not to allow the complainant onto IRMM premises". The Ombudsman considers that this clarifies the situation.

92. Second, the complainant has made a number of comments that concern the behaviour of the Director of the IRMM. It should be recalled that the Ombudsman has the duty to examine possible instances of maladministration in the activities of the Union institutions, bodies, agencies and offices. His inquiries are therefore directed at these institutions, bodies, agencies and offices, and not individual officials concerned. However, the way in which officials behave in their capacity as EU officials obviously forms part of the activities of the Union institutions, bodies, agencies and offices that the Ombudsman has to examine as to their conformity with principles of good administration.

93. Third, it appears useful to clarify the contents and the nature of the relevant decision before examining its merits and how it was adopted. In its reply to the Ombudsman's request for further information, the Commission submitted that the complainant had no right of access to the premises of the IRMM and that he had no qualified interest justifying access, either. It also argued that the relevant decision was of a "general order" and constituted the expression of its discretion. These statements could be interpreted as suggesting that the Commission considers that it is entirely free to decide to whom to give access to its premises and that there is no need for any justification if it intends to impose an entry ban. The Ombudsman trusts that this was not the view that the Commission intended to put forward. In his view, it is obvious that such an entry ban can only be adopted if there is a good reason for doing so. This is all the more true if the Commission decides to ban a scientist from having access to a research institute with which he has already co-operated in the past.

94. The Ombudsman notes that the complainant acknowledges that he has no right of access to the IRMM's premises but that any visit there would take place on the basis of an invitation by the IRMM. Whether or not the complainant had a justified interest in obtaining access would therefore have to be decided on a case-by-case basis. The complainant further noted that, if the entry ban were lifted, he would obviously remain subject to the usual entry controls. The question to be examined here, therefore, is whether the Commission was entitled to prevent the complainant from entering the IRMM's premises in all circumstances, i.e., even in situations where a visit would have been useful for scientific purposes.

95. By arguing that the complainant did not have any qualified interest justifying access, the Commission may also have intended to suggest that the complainant was not negatively affected by its decision. The Commission's reference to the "general" nature of the entry ban may point in the same direction. The Ombudsman would be unable to accept any such arguments. The entry ban to be examined here was an individual decision that directly and individually concerned the complainant. This decision was clearly capable of negatively affecting the complainant. Even though the Commission pointed out that it did not object to professional contacts between the IRMM and the complainant that took place without involving the physical presence of the complainant at the IRMM, it appears certain that the entry ban is capable of affecting the complainant's activity as a scientist. Moreover, any such decision is bound to have an impact on the professional reputation of such a person.

96. Fourth, the Ombudsman considers that the complainant is right when he objects to the Commission's reference to the entry ban adopted in 2008 as a "second" decision to that effect. The wording used by the Commission and the context in which it was employed create the impression that a first entry ban had been imposed in 2001. In its opinion, however, the Commission itself noted that, in 2001, the then Director of the IRMM had decided to phase out the involvement of the complainant in the IRMM's activities. This is clearly not the same as an entry ban. In this context, the complainant has pointed to a letter he addressed to the then Director of the IRMM on 18 December 2001. According to this letter, Professor G. had noted that he did not see any reason to object to further professional contacts between the IRMM and the complainant and his company. The Commission has not disputed this statement. The complainant has furthermore consistently argued that he had subsequently, and until 2007, visited the IRMM on several occasions each year without encountering any obstacles. Again, the Commission has not disputed this statement. The Ombudsman therefore concludes that the Commission has not established that the entry ban adopted in 2008 followed an earlier entry ban.

97. Fifth, the complainant has made a number of comments as regards the request addressed to him by Ms R. on 20 December 2007 to stop and desist from any further correspondence with Ms Y. It appears useful to point out that this request is not covered by the present inquiry. In these circumstances, the Ombudsman considers that he does not need to deal with this aspect of the case in the present inquiry.

98. Sixth, regard should he had to the fact that the Commission has only provided fairly general explanations as to why it considers that its decision was justified. This applies in particular as regards the harassment in which the complainant is said to have engaged in 2001 and the threats he allegedly made at that time. Instead, the Commission has referred to the documents on its file and invited the Ombudsman to inspect these documents. The Ombudsman has made use of this offer. On this occasion, the Commission's representatives made it clear that the documents on its file were to be considered as being confidential. Article 4(2) of the Ombudsman's Statute stipulates that "the Ombudsman may not divulge the content of such documents." This limitation will have to be taken into account in the following examination.

99. In order to justify the entry ban that was imposed on the complainant, the Commission has invoked a number of arguments. The Ombudsman considers that these arguments can be grouped under the following headings: (i) security considerations linked to the nature of the IRMM as a nuclear site; (ii) the complainant's alleged behaviour towards Ms Y. in 2001; (iii) the complainant's behaviour towards Ms Y. in December 2007; (iv) the complainant's alleged behaviour towards other members of the IRMM's staff in 2001; (v) certain "other events"; and (vi) various considerations of a more general nature.

100. As regards (i) the alleged justification linked to the nature of the IRMM as a nuclear site, the Ombudsman notes that the Commission has limited itself to a general reference to the need to maintain the security of the site. In the absence of any details that could support the proposition that admitting the complainant might cause dangers to the site as such, the Ombudsman considers that the relevant argument is clearly unconvincing.

101. As regards (ii) the alleged harassment of Ms Y. in 2001 and the threats against her that the complainant allegedly made at the time, the Ombudsman considers that he can be brief in the present context.[5] As the complainant has pointed out, without being contradicted by the Commission, Ms Y. had left the IRMM in 2002 in order to work at the JRC's site in Ispra. Despite an express question to that effect put to it on the occasion of the inspection, the Commission has been unable to explain why it was necessary in 2008 to prohibit the complainant from having access to the IRMM's premises in Geel (Belgium) in order to protect an official working in Ispra (Italy) since 2002.

102. The same conclusion applies (iii) as regards the Commission's argument that the entry ban was justified in light of the complainant's behaviour towards Ms Y. in December 2007. As the complainant correctly observed, if Ms Y. needed to be protected against his scientific criticism when publicly defending her thesis in Gent, banning him from entering the premises of the IRMM in Geel was clearly ineffective. The complainant is further right in pointing out that the entry ban could not prevent him from sending further e-mails to Ms Y., either.

103. Given the significance of the accusations made against the complainant, the Ombudsman nevertheless considers it appropriate to take a closer look at how the Commission assessed the complainant's relevant behaviour.

104. Having examined the documents in the Commission's file, the Ombudsman understands why Ms Y. may have considered the e-mails addressed to her in relation to the public defence of her thesis as constituting harassment. However, he also notes that the complainant has consistently argued that, being a member of the public and an expert in the relevant field, he was entitled to attend the public defence of Ms Y.'s thesis. The Ombudsman is fully aware of the fact that the e-mails sent by the complainant in December 2007 should be seen against the background of the events that occurred in 2001. He also accepts the possibility that an act that is perfectly legal as such could nevertheless, depending on the context in which it takes place, be considered to constitute harassment. Finally, he considers the Commission's reference to the importance of the relevant event for Ms Y. to be perfectly pertinent. However, deciding on what action needs to be taken by the Commission in order to protect a member of its staff against (alleged or actual) harassment requires, as already mentioned above, that all the relevant facts are established and considered before taking action. It would seem obvious that this includes a careful examination of any explanations put forward by the person concerned. The Ombudsman notes, however, that the Commission has so far refrained from even addressing the argument put forward by the complainant, even though the latter had raised this argument already in his correspondence with Ms R. in late 2007 and early 2008.

105. In its reply to the Ombudsman's request for further information, the Commission argued that it owned the results of Ms Y.'s research and that it therefore had an institutional interest and duty to protect those results. The Ombudsman considers that it is not necessary to examine whether the Commission's claim of ownership is well-founded. It should be noted that the complainant had informed Ms Y. that he considered her work to contain some errors and that, if she was not ready to discuss the matter with him on a personal basis, he intended to put questions to that effect to her at the public defence of her thesis. The Ombudsman is obviously not in a position to determine whether the objections raised by the complainant were justified from a scientific point of view. However, if they were not, it is difficult to see why the Commission needed to take action to protect the results of Ms Y.'s research against these objections. If, on the other hand, the objections were justified, it is difficult to understand why the Commission had a 'duty' to protect Ms Y.'s results. Indeed, the Ombudsman would expect that a scientific institution like the IRMM would, on the contrary, welcome any such corrections, particularly if it owned the results of the relevant research.

106. As regards (iv) the complainant's alleged behaviour towards other members of the IRMM's staff in 2001, the inspection of the Commission's file has shown that there is only one person, i.e., Mr X., to whom the comments made by the Commission in this respect could have been meant to refer. It would appear that Ms Y. had turned to Mr X. in 2001, that the latter had then confronted the complainant and that a dispute arose between these two persons as a consequence. It is doubtful whether, on the basis of the evidence contained in the Commission's file, the complainant's behaviour towards Mr X. in 2001 can be considered as threatening. However, even if one were to assume that the complainant made threats against Mr X. in 2001, regard must be had to the complainant's statement that he visited the IRMM on various occasions since then without ever encountering any problems. As already mentioned above, the Commission did not challenge this statement. As far as can be judged from the file, no disputes appear to have occurred between the complainant and Mr X. after 2001. The Ombudsman is therefore at a loss to understand how the entry ban adopted in 2008 could be justified by the need to protect Mr X. or any other official or employee of the IRMM.

107. In his request for further information, the Ombudsman put a precise question to that effect to the Commission. He notes that the Commission nevertheless refrained from providing a clear answer on this central point. Instead, the Commission merely submitted that the complainant's behaviour towards Ms Y. in 2007 showed that he had not changed his previous behaviour. The Ombudsman presumes that this statement was meant to suggest that since the complainant had, according to the Commission, made threats against Mr X. in 2001, he might make further threats against this person in 2008. It appears clear to the Ombudsman that a measure as drastic as an entry ban cannot be based on hypothetical speculations that take no account whatsoever of the fact that the complainant's visits to the IRMM between 2002 and 2007 do not appear to have caused any problems. Besides, if the Commission's intention was to protect Mr X. one would have expected it to hear the latter's views. However, the results of the inspection of the Commission's file do not suggest that Mr X. was consulted.

108. As regards (v) certain "other events", to which the Commission referred in its reply to the Ombudsman's request for further information, it should be noted that no indications whatsoever have been provided as to what these events might have been. If any such events had occurred, it could be expected that they were documented in the Commission's file. However, no evidence concerning any such "other events" was found by the Ombudsman's representatives when they inspected the file. Nor did they find any evidence to show that a proper examination of any such events had been carried out before the entry ban adopted. The Ombudsman considers that the entry ban thus cannot be justified by reference to these "other events". He further considers that accusing a person of harassment on the basis of unspecified events is incompatible with the presumption of innocence that the Commission is required to respect.

109. As regards finally (vi) the various considerations of a more general nature that have been put forward, the Ombudsman notes that the Commission has argued that the complainant's presence on the IRMM's premises could potentially create concerns about the safety of IRMM staff and that its measure had a precautionary character. The Ombudsman fully understands that preventive measures can and should be taken in order to avoid instances of harassment from happening. He takes the view, however, that such measures need to be based on factual elements that give rise to a reasonably certain assumption that such harassment would otherwise indeed occur. The Ombudsman considers that the Commission has not been able to show that there was any likelihood that the complainant would harass staff working at the IRMM when the entry ban was adopted in 2008. In the absence of any such evidence the entry ban was clearly disproportionate.

110. The Ombudsman considers it appropriate to recall that, in any event, a proper assessment of the facts needs to be carried out before action is taken in cases where a person is accused of harassment. He agrees with the complainant that this requirement is of particular importance in the case of a scientific institution such as the IRMM. The Ombudsman regrets to say that all the evidence in his possession points towards the conclusion that such an objective and neutral assessment, which would also have taken proper account of the complainant's interests, has not taken place in the present case. In these circumstances, the Commission's behaviour must also be considered as unfair towards the complainant.

111. In view of the above, the Ombudsman takes the view that the Commission failed to establish that the entry ban it adopted in 2008 in relation to the complainant was justified, proportionate and fair. The complainant's claim that it should be lifted is therefore well-founded.

112. As regards the complainant's claim that the Commission should confirm in writing to him that there was no reason not to include him in the Avogadro project, the Ombudsman notes that the Commission is indeed free to decide with whom it wishes to co-operate on a given project. If the complainant's claim were to be interpreted as requesting the Commission to accept him as a co-operator on the said project, it would therefore have to be rejected. However, the Ombudsman considers that what the complainant wishes the Commission to acknowledge is that the accusations of harassment made against him do not stand in the way of his possible participation in the Avogadro project. Seen from this perspective, the Ombudsman considers that his findings concerning the entry ban already provide the necessary clarifications. There is thus no need for further inquiries as regards the claim concerning the Avogadro project.

B. As regards the procedure applied by the Commission in relation to the entry ban

Arguments presented to the Ombudsman

113. The complainant alleged that the procedure followed by the Commission had been incorrect. More specifically, he argued (i) that he was not informed about the decision at the time when it was taken, (ii) that he was not informed about the grounds on which the decision was based, (iii) that he was not given the opportunity to comment on the accusations against him before the decision was taken, and (iv) that the Director of the IRMM failed properly to handle his correspondence in this matter. According to the complainant, the Commission had infringed Articles 14 (acknowledgment of receipt), 16 (right to be heard), 18 (duty to state reasons), 19 (indication of the possibilities of appeal), 20 (notification of decision) and 22 (handling of requests for information) of the European Code of Good Administrative Behaviour The complainant claimed (i) that he should be informed about the accusations made against him in detail, as well as about all supporting documents and information, (ii) that he should be given the opportunity to comment on these accusations, (iii) that, if it should not be possible to clarify the matter on the basis of his comments, a proper investigation should be launched and (iv) that, in the event that the accusations against him turn out to be unfounded, the Director of the IRMM should apologise to him in writing.

114. In its opinion, the Commission argued that, given the complainant's record of harassment and threatening behaviour, it was not advisable to inform him at the time of the decision, or of the reasons for it, since this might have provoked a reaction on his part which could have had unfortunate consequences for staff members. It further submitted that it was not obliged to 'substantively justify' its reasons for denying access to its premises by a third party, in particular in cases where there is reason to believe that Commission staff are at risk of harassment or threats from that person. However, in his letter of 4 September 2008 the Director of the IRMM did inform the complainant that "your physical presence on IRMM premises has caused problems in the past and professional contacts should be continued off the IRMM premises by other means". The complainant had had every opportunity to comment on this and had done so in numerous letters, e-mails and telephone calls to the JRC. The Commission submitted that it had not 'accused' the complainant.

115. The Commission further argued that the allegation that the complainant's correspondence had not been handled in conformity with the European Code of Good Administrative Behaviour was not sustained by the facts. It submitted that the provisions of that Code were also reflected in the Code of good administrative behaviour for staff of the European Commission in their relations with the public[6] (the "Commission's Code"), which it had followed. Between April and June 2008, the complainant had sent five e-mails to the Director of the IRMM, which were not answered. However, all the complainant's letters to the Director of the IRMM were answered. The Director of the IRMM regretted not having answered the e-mails. However, this was of no consequence, given that the substance of these e-mails was exactly the same as that of the letters. The only mistake had been not to mention in the letters that they should also be considered as a reply to the parallel e-mails. However, this should have been obvious to the complainant in any event.

116. In his observations, the complainant maintained his allegation. He pointed out that it was only in its opinion on the present complaint that the Commission had first informed him that the entry ban was based on allegations of harassment and threats. The complainant submitted that an acknowledgement of receipt should be sent within two weeks of receipt of a letter and that this rule also applied to e-mails.

117. Having examined these observations, the Ombudsman asked the Commission to provide him with further information concerning the present case. He pointed out that the right to be heard before decisions adversely affecting a person are adopted is one of the fundamental concepts inherent in Community law (see Article 16 of the European Code of Good Administrative Behaviour). Article 20 of the Code provides that decisions affecting the rights or interests of individual persons should be communicated to them in writing, as soon as they have been adopted. Article 18 of the Code stipulates that such decisions shall state the grounds on which they are based by indicating clearly the relevant facts and the legal basis of the decision. At first sight, none of these rules appeared to have been respected in the present case. The Ombudsman therefore asked the Commission to explain why it considered that its behaviour nevertheless did not constitute maladministration. As regards the way in which the complainant's e-mails or letters to the Director of the IRMM were handled, the Ombudsman noted that, in its opinion, the Commission had limited itself to stating that it acted correctly and in accordance with its own Code. The Ombudsman therefore asked the Commission to specify in detail why it considered that its behaviour was in conformity with principles of good administration.

118. In its reply, the Commission basically referred to its opinion.

119. In his observations, the complainant pointed out that the Commission had failed to answer the Ombudsman's questions.

The Ombudsman's assessment

120. The Ombudsman regrets that the Commission has refrained from addressing the substance of the questions he put to it and instead referred to its opinion. In the Ombudsman's view, the Commission has thus wasted an opportunity to reconsider its approach and to show that it is ready to respond to the arguments put forward by the complainant.

121. The Ombudsman notes that the complainant was not given the possibility to present his observations before the entry ban was adopted. This constitutes a flagrant breach of the right to be heard and thus of Article 16 of the European Code of Good Administrative Behaviour. The fact that the complainant was able to make observations after the Commission had, in its letter of 4 September 2008, implicitly confirmed that such a ban existed cannot remedy this defect.

122. The Commission does not deny that the complainant was not informed of the entry ban at the time when it was adopted, contrary to Article 20 of the European Code of Good Administrative Behaviour. In order to justify this omission, it submitted that it did not consider it advisable to inform the complainant since this might have provoked a reaction on his part which could have had unfortunate consequences for staff members. The Ombudsman is unable to accept this explanation. It should be noted that the complainant was working in the USA at the relevant time. Moreover, he was prevented from obtaining access to the premises of the IRMM by virtue of the very entry ban that the Commission had decided not to bring to his attention. It is therefore difficult to see how any reaction by the complainant could have had 'unfortunate consequences' for members of its staff. The Ombudsman notes that the Commission referred to "the complainant's record of harassment and threatening behaviour" in this context. It is therefore possible that the Commission was afraid of the possibility that if it informed the complainant of the entry ban it had adopted, he might turn to Ms Y. again and renew what the Commission considered to be his harassment of the latter. The Ombudsman agrees that the Commission was entitled to take steps to prevent such behaviour from happening. He takes the view, however, that not disclosing a measure affecting the interests of a person to that person does not fall within the category of measures that can legitimately be taken in such a case.

123. Given that the complainant was not informed of the entry ban when it was adopted, it follows that he was also not informed of the reasons on which this measure was based. This was contrary to Article 18 of the European Code of Good Administrative Behaviour. The Ombudsman cannot accept the Commission's argument that there was no need to 'substantively justify' its decision. As already indicated above (see point 93), the Ombudsman considers it obvious that such an entry ban can only be adopted if there is a good reason for doing so. It is equally obvious that good administrative practice demands that the person concerned be informed of this reason.

124. The Ombudsman further notes that the failure to inform the complainant of the entry ban and the reasons on which it was based also meant that he was not informed about the appeal possibilities for challenging this decision. This was contrary to Article 19 of the European Code of Good Administrative Behaviour.

125. In view of the above, the Ombudsman concludes that the procedure followed by the Commission was clearly not in conformity with principles of good administration. This constitutes an instance of maladministration.

126. The complainant has claimed (i) that he should be informed about the accusations made against him in detail, (ii) that he should be given the opportunity to comment on these accusations, (iii) that, if it should not be possible to clarify the matter on the basis of his comments, a proper investigation should be launched and (iv) that in the event that the accusations against him turn out to be unfounded, he should receive an apology. The Ombudsman recalls that he has concluded that the entry ban was not justified. In these circumstances, he takes the view that, with one exception, the relevant claims no longer need to be dealt with. These claims would of course remain valid if the Commission were to disagree with the Ombudsman's assessment as regards the justification of the entry ban. They would also be relevant as regards the entry ban adopted with regard to the JRC's site in Ispra. However, and as will be explained below, the question whether that entry ban was justified is not covered by the present inquiry.

127. The complainant has claimed that the Commission should apologize if the accusations made against him proved to be unfounded. Given that the above examination has shown that the entry ban was not justified and that the procedure used by the Commission in relation to this decision was seriously flawed, the Ombudsman takes the view that an apology would be appropriate in any event.

128. As regards the way in which the Commission handled the correspondence sent to it by the complainant, the Ombudsman notes that the complainant's comments focus on the alleged failure to reply to his e-mails. The Ombudsman considers that he therefore does not need to examine the decision set out in the Commission's letter of 25 September 2008 to discontinue the correspondence on the grounds that the complainant's e-mails and letters had become repetitive. However, it appears useful to add that the complainant can hardly be blamed for repeating his questions, given that the Commission continued to avoid providing a satisfactory answer to them.

129. The Ombudsman notes that the Commission does not dispute that the e-mails sent to it by the complainant on 19 and 25 June 2008 remained unanswered. As a matter of fact, the Commission accepts that a total of five e-mails sent between April and June 2008 were not answered. As already indicated earlier (see point 43 above), it appears appropriate, however, to focus on the two e-mails sent in June 2008 that were specifically mentioned in the complaint. The Commission's Code stipulates that e-mails should be answered "promptly" or, where they constitute, by their nature, the equivalent of a letter, in accordance with the same deadlines that apply to letters. As regards letters, the Commission's Code provides for a reply within 15 working days. If such a reply is not possible, a holding letter is to be sent. The Ombudsman notes that the Commission has not respected its own Code in the present case. Even if one were to accept that these e-mails had the same contents as the complainant's letters, which the Commission did answer, the Commission's failure to reply to the e-mails was nevertheless not in conformity with good administrative practice. The Ombudsman notes that the Commission has expressed its regrets in this respect. However, regard should be had to Article 12(3) of the European Code of Good Administrative Behaviour, which provides as follows: "If an error occurs which negatively affects the rights or interests of a member of the public, the official shall apologise for it (...)". No such apology was offered in the present case. It should further be noted that whilst the Commission expressed regrets at its failure to reply to the said e-mails, it submitted at the same time that this failure was of no consequence. However, in order for a mere expression of regret to be acceptable, it would in any event have to be unqualified and genuine.

130. The Ombudsman therefore concludes that the Commission's failure to reply to the complainant's e-mails of 19 and 25 June 2008 constitutes a further instance of maladministration.

C. As regards the alleged failure to inform the complainant of the entry ban relating to the JRC's premises in Ispra

Arguments presented to the Ombudsman

131. The complainant alleged that the Commission failed to inform him about the fact that its services in Ispra had decided to prevent him from entering their premises.

132. In its reply to the Ombudsman's request for an opinion on this allegation, the Commission took the view that the arguments it had put forward regarding the entry ban concerning the IRMM in Geel applied equally to the instruction given not to allow him onto the site in Ispra.

133. In his observations, the complainant stated that the Commission's explanations were insufficient. He had not had, and did not have, any reasons to enter the premises of the JRC in Ispra. The arguments put forward by the Commission in relation to the need to avoid security risks were therefore inapplicable.

The Ombudsman's assessment

134. The Ombudsman notes that the complainant's allegation only concerns the alleged failure to inform him of the ban to enter the JRC's premises in Ispra, and not the question whether this ban was justified or not.

135. As regards the issue of notification, the Ombudsman has already found that the failure to inform the complainant of the ban to enter the IRMM's premises in Geel constituted maladministration. The same conclusion applies to the Commission's failure to inform the complainant of the ban to enter the JRC's premises in Ispra.

136. As a matter of fact, the Ombudsman notes with astonishment that this ban was first mentioned by the Commission when his representatives inspected the latter's file. The Ombudsman considers that such secretive behaviour is not worthy of an institution like the Commission.

D. As regards the alleged defamation arising from the letter of 4 September 2008

Arguments presented to the Ombudsman

137. The complainant alleged that the Commission acted wrongly and in a defamatory manner when it forwarded the letter of 4 September 2008 to persons at the PTB and failed to take remedial action even though he had asked it to do so. He claimed that the defamatory statement made in the letter of 4 September 2008 should be withdrawn in writing, that an apology should be presented to him and that the matter should be clarified in a letter to be sent to the PTB.

138. In its reply to the Ombudsman's request for an opinion on this allegation, the Commission submitted that its opinion on the original complaint provided sufficient elements to sustain the claim made in its letter of 4 September 2008. The complainant was aware of these elements, as several letters he had addressed to the then Director of the IRMM in 2001 confirmed. The Commission argued that the relevant statement was in any event not defamatory. It added that the complainant had claimed to have a mandate from the PTB for co-operating with the IRMM as regards the Avogadro project. However, he had never established that such a mandate had indeed been given to him. It was for this reason that the Director of the IRMM had copied his letter of 4 September 2008 to both his correspondent for management decisions and the scientific leader of the Avogadro project at the PTB. Furthermore, the complainant had only raised the issue covered by his present allegation in a letter of 22 May 2009. The Commission also pointed to the e-mail the complainant had sent to the Director-General of the JRC on 23 September 2008. This e-mail contains the following passage: "It cannot be in the interest of [the Director of the IRMM] to continue to extend the readership of the correspondence. After all, this could even be agreeable to me (...)."

139. In his observations, the complainant submitted that if the Commission had doubts regarding his mandate, the logical solution would have been to ask the PTB for clarifications. However, the purpose of the letter of 4 September 2008 had been to defame him. The complainant added that his e-mail of 23 September 2008 had been incorrectly interpreted and that it had not at all been "agreeable" to him that the Director of the IRMM had sent his letter to third parties. He also pointed out that he had already raised the issue of his present allegation in his letter of 18 September 2008 to the Director of the IRMM and in his e-mail to the Director-General of the JRC of 23 September 2008.

The Ombudsman's assessment

140. As regards the Commission's argument that the complainant had raised the relevant objection only belatedly, the Ombudsman finds that it has no basis. As the complainant explained, he had raised the relevant issue with the Commission already in September 2008.

141. The first question to be addressed here is therefore whether the relevant statement made by the Commission in the letter of 4 September 2008, i.e., that the complainant's "physical presence on IRMM premises has caused problems in the past", was correct.

142. The complainant has correctly observed that so far no proper procedure appears to have been carried out to assess the veracity of the allegations of harassment and threatening behaviour made against him. Given the need to protect the presumption of innocence, it would therefore not be correct to refer to the behaviour of the complainant in a way that would imply that it had already been found to constitute harassment. The Commission's reference, in its reply to the Ombudsman's request for further information, to "the complainant's record of harassment and threatening behaviour", is thus clearly inappropriate. The Ombudsman notes, however, that the letter of 4 September 2008 does not make any such reference but merely states that the "physical presence" of the complainant has caused "problems" in the past. It is true that the complainant has argued that the problems that did occur were not, or not entirely, his responsibility and that he has made certain comments on Ms Y.'s behaviour in this respect. However, the fact remains that the then Director of the IRMM decided, after having considered the facts, that the complainant's stay at the IRMM should not be extended beyond the expiry of his initial contract. The Ombudsman takes the view that the wording used by the Commission in its letter of 4 September 2008 cannot be said to be incompatible with what actually happened, therefore.

143. It is true that the use of the past continuous tense in this context could suggest that the relevant problems still continued. This was not the case, as the frequent visits by the complainant to the IRMM after 2001 showed. However, it is doubtful whether such a minute interpretation from a linguistic point of view would be appropriate in the present case. In any event, the Ombudsman considers that the complainant has not established that the relevant remark was made with a defamatory intention. The mere fact that the letter of 4 September 2008 was copied to two persons at the PTB, and thus outside the Commission, does not prove that such an intention existed, since there are other possible explanations. Indeed, the Commission has referred to the fact that the complainant had claimed to have received a mandate from the PTB concerning the Avogadro project and that it had therefore decided to copy its letter to persons at the PTB in charge of that project. The Ombudsman notes that the letter of 4 September 2008 does indeed refer to the mandate allegedly given to the complainant by the PTB.

144. It therefore remains to be examined whether the Commission was indeed entitled to copy its letter of 4 September 2008 to persons at the PTB. The Ombudsman considers that this was clearly not the case. The Commission's letter referred to problems at the IRMM that had been caused by the complainant and to a decision not to allow the complainant onto the IRMM's premises any longer. Given that such a statement was likely to affect the complainant's reputation, the Commission could only copy it to third parties if there was a good reason for doing so. However, the only explanation that the Commission has offered in this context was that the mandate the complainant claimed to have received from the PTB had not been clearly established. If the Commission did have doubts concerning this mandate, it could nevertheless, as the complainant has correctly observed, have addressed itself to the PTB with a request for clarifications. However, any such need for further information on the mandate did not entail any need whatsoever to refer to problems that had, in the Commission's view, been caused by the complainant's presence at the IRMM.

145. In order to justify its behaviour, the Commission has also referred to a remark made by the complainant in an e-mail of 23 September 2008. Having examined the relevant passage, the Ombudsman concludes, however, that it does not have the meaning attributed to it by the Commission. It appears useful to note that, in the very same letter, the complainant expresses his conviction that the remarks made towards third parties by the Director of the IRMM in his letter of 4 September 2008 constitute defamation.

146. In these circumstances, forwarding the letter of 4 September 2008 to third parties without a good reason for doing so was not in conformity with principles of good administration. This constitutes a further instance of maladministration.

147. In view of the above, the Ombudsman considers that the complainant's claim for an apology is also justified. As regards the claim that the matter should be clarified in a letter to be sent to the PTB, it should be recalled that the Ombudsman does not consider the reference made in the letter of 4 September 2008 to problems caused by the complainant to be incompatible with actual events. However, the complainant's reputation could also be jeopardised by informing the PTB of the fact that the complainant had been banned from entering the premises of the IRMM. Given that the Ombudsman considers that this entry ban is not justified and should be lifted, the draft recommendation made below therefore also calls on the Commission to inform the PTB as soon as it cancels its decision.

E. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the Commission:

The Commission should

- lift the entry ban imposed on the complainant as regards the IRMM in Geel;

- apologize to the complainant for having adopted this entry ban, for the deficiencies concerning its procedure in relation to this decision and for the failure to inform the complainant of its decision to ban him from entering the premises of the JRC in Ispra;

- apologize to the complainant for having copied its letter of 4 September 2008 to two persons at the PTB; and

- inform these two persons at the PTB that the entry ban as regards the IRMM in Geel has been lifted.

The Institution and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Institution shall send a detailed opinion by 30 June 2010. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 17 March 2010

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] The Code is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

[3] C(2006) 1624/3.

[4] See, for example, Case 224/87 Koutchoumoff v Commission [1989] ECR 99, paragraphs 15 and 16; Case T-5/92 Tallarico v Parliament [1993] ECR II-477, paragraph 31; and Case T-136/98 Campogrande v Commission [2000] ECR-SC I-A-267 and II-1225, paragraph 42).

[5] The issue will have to be addressed in more detail below in the context of examining the complainant's allegations concerning the Commission's letter of 4 September 2008.

[6] The Commission's Code is annexed to the Commission's Rules of Procedure (OJ 2000 L 308, p. 32.