Strasbourg, 12 March 2004

Dear Mr S.,

On 11 July 2003, you made a complaint to the European Ombudsman against the Commission on behalf of Mrs L., Mrs L., Mrs O. and yourself, concerning an alleged discriminatory practice regarding merit points for staff members who take leave on personal grounds for bringing up their children.

On 23 July 2003, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 3 November 2003. I forwarded it to you with an invitation to make observations, which you sent on 19 December 2003.

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

THE COMPLAINT

This complaint, lodged by four Commission staff members (the Eurostat Equal Opportunities Officer and three members of the Equal Opportunities Working Group) concerns alleged discrimination against staff members who take leave on personal grounds in order to bring up their children. According to the complainants, the relevant facts are as follows:

As the European Commission has still not implemented Directive 96/34/EC of 3 June 1996(1) to provide for parental leave, staff members who want to bring up their children are obliged to take leave on personal grounds. However, it appears that merit points - awarded in the staff report on the basis of the individual's overall performance - are deducted from staff who have taken leave on personal grounds. This practice is discriminatory. For example, 1/12 of the merit points awarded were deducted in the case of staff members who took one month of leave on personal grounds during 2002. The complainants refer to the Ombudsman's own initiative inquiry OI/4/2001/ME into the subject of parental leave for officials and other servants of the European Communities. The Commission should not punish its staff who do not have the right to take parental leave and who therefore take leave on personal grounds for the purpose of bringing up their children. The complainants also point out that the existing practice discriminates against women, since more women than men take leave on personal grounds to bring up children. The complainants have not made an appeal on the basis of Article 90 of the Staff Regulations, because they consider that this is not an individual matter, but that it concerns the system as such.

On 11 July 2003, the complainants lodged the present complaint with the Ombudsman and alleged that :

1) the Commission has not implemented Council Directive 96/34/EC of 3 June 1996 on parental leave for its own staff;

2) the system of deducting merit points from staff members who take leave on personal grounds for raising their children is discriminatory.

THE INQUIRY

The Commission's opinion

As regards the complainants' first allegation, the Commission observed that the reduction in merit points applied to those who have taken leave on personal grounds is in accordance with the provisions of Article 40(3) of the Staff Regulations, according to which "during leave [on personal grounds], an official shall not be entitled to advancement to a higher step or promotion in grade", and of Article 4(4) of the Commission Decision of 26 April 2002 concerning the general implementing provisions for Article 43 of the Staff Regulations. These provisions provide that the overall mark for the reporting period is to be calculated on a pro rata basis (in relation to the number of months covered by the report) if the report covers part of the year only. Footnote 6 states that such a situation would occur, for example, "when the jobholder has taken leave on personal grounds during part of the year".

The aim of the new appraisal and promotion system is to allow the merits of every official to be assessed over a period of time on the basis of his/her efficiency, ability and conduct in the service. These three elements can only be evaluated to the extent that the official is pursuing a professional activity within the institutions, or in an organisation to which he has been seconded. If the aforementioned provisions of Article 4 did not exist, an official who was on leave on personal grounds between 1 January and 30 November would be treated in the same way as another official who worked from 1 January to 31 December, although it is perfectly clear that the basis for evaluating their merits is completely different.

Merit points are reduced for all officials or other servants who have taken leave on personal grounds and not only for those who have applied for leave on personal grounds in order to raise children. Leave on personal grounds may in fact be granted for various reasons, in accordance with Article 40 of the Staff Regulations. Granting a derogation for one or more specific reasons and not for others could be regarded as discriminatory.

The Commission is currently evaluating the first CDR (career development review) exercise and could reconsider the detailed rules concerning merit points for periods of leave on personal grounds taken for family reasons.

As regards the complainants' second allegation, the Commission argued that, from a legal point of view, Directive 96/34/EC is aimed at the Member States and not the European institutions. This Directive obliges Member States to grant men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a certain age up to 8 years to be defined by Member States and/or the social partners. It grants workers the right to return to the same job or, if that is not possible, to an equivalent or similar job.

Article 40 of the Staff Regulations also allows officials to take leave on personal grounds for the sake of their children's upbringing. It provides that leave on personal grounds of one year, which may be extended annually four times, may be granted to officials to bring up a child who is under the age of five.

The Commission has also proposed a further improvement in its proposal to amend the Staff Regulations of the European Communities(2) which goes well beyond the requirements of Directive 96/34/EC. It has in fact proposed that every official be entitled to up to six months' parental leave for each child, during which time the official will retain his post and continue to be entitled to advancement to a higher step or promotion in grade.

The complainants' observations

As regards Directive 96/34/EC, the complainants pointed out that the Ombudsman had referred explicitly to this Directive in his own-initiative inquiry into parental leave for officials and other servants of the European Communities. The Ombudsman had welcomed the actions taken by the Commission as regards the question of parental leave. The Ombudsman had noted, however, that two years after Council Directive 96/34/EC on parental leave had been adopted by the Member States, there were still no rules to guarantee the right to parental leave of officials and servants of the European Communities.

As regards the second allegation, the complainants do not call into question Article 40(3) of the Staff Regulations, but the deduction of merit points for staff members who have taken leave on personal grounds for bringing up their children. These staff members lose these points for their whole career although the Commission itself recognises, in its proposed amendments to the Staff Regulations, the need for a parental leave during which the staff members will be entitled to advancement to a higher step or promotion. In this context, the complainants made the following remarks:

A letter sent to the Committee on Equal Opportunities between Women and Men on 4 July 2003 by 135 staff members describes the current practice regarding merit points for staff members who take leave on personal grounds for bringing up their children as discriminatory, and asks the said Committee to take action. The complainants fully agree with this position. The Committee has asked for a derogation from the application of Article 4(4) of the General Provisions implementing Article 43 of the Staff Regulations for staff who have applied for leave on personal grounds for family reasons. The complainants also refer to an article in "Commission en Direct" of 30 May 2002, in which staff recall the "glass-ceiling" that women often meet in their career since they are not "entitled to advancement to a higher step or promotion in grade during leave on personal grounds".

In a telephone conversation with the Ombudsman's office on 5 March 2004, the complainant who had lodged the complaint on behalf of himself and the three other complainants indicated that he could, given the provision for parental leave foreseen in the proposed new Staff Regulations to enter into force on 1 May 2004, consider the first allegation to be settled to their satisfaction. As regards the second allegation, however, he was not satisfied with a situation in which staff members who had lost merit points in the past for their whole career could not recuperate them.

THE DECISION

1 The allegation that the Commission has failed to implement Directive 96/34/EC for its own staff

1.1 The complainants allege that the Commission has not implemented Council Directive 96/34/EC of 3 June 1996 on parental leave for its own staff.

1.2 The Commission argued that that, from a legal point of view, Directive 96/34/EC is aimed at the Member States and not the European institutions. The Commission indicated, however, that it had proposed an improvement in its proposal to amend the Staff Regulations of the European Communities(3) which goes well beyond the requirements of Directive 96/34/EC. It has proposed that every official be entitled to up to six months' parental leave for each child, during which time the official will retain his post and continue to be entitled to advancement to a higher step or promotion in grade.

1.3 In his decision of 26 February 2002 in the own initiative inquiry into the subject of parental leave for officials and other servants of the European Communities(4), the Ombudsman stated that "the Commission is at present taking steps that are likely to remedy the lack of adequate rules on parental leave for officials and other servants of the European Communities in the near future. The Ombudsman therefore takes the view that his own-initiative inquiry has achieved its purpose and that there is no need to pursue it further" and concluded that he "will continue to follow the development of this matter".

1.4 The Ombudsman notes that the latest development in this matter is the Commission's amended proposal of 18 November 2003 for a Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities(5). The Ombudsman understands that it is intended that this version of the new Staff Regulations will be adopted at the General Affairs/External Relations Council of 22-23 March 2004 and that the revised Staff Regulations will be implemented as of 1 May 2004.

1.5 The Ombudsman notes that point 42 of the proposed amendments (Annex I to the Regulation) foresees that a new Section 6 entitled "Parental or family leave" will be inserted after Article 42 of the current Staff Regulations. The new Article 42a foresees that "An official shall be entitled to up to six months of parental leave without basic salary for every child, to be taken during the first twelve years after the birth of adoption of the child. The duration of the leave may be doubled for single parents recognised under general implementing provisions adopted by the institutions".

1.6 The complainants expressed satisfaction with the revision of the Staff Regulations in a telephone conversation with the Ombudsman's office on 5 March 2004. The Ombudsman therefore finds that the Commission has taken appropriate steps to settle this aspect of the complaint to the satisfaction of the complainants.

2 The alleged discriminatory system of merit points for staff taking leave on personal grounds for raising their children

2.1 The complainants allege that the system of deducting merit points from staff members who take leave on personal grounds for raising their children is discriminatory.

2.2 The Commission argued that the reduction in merit points applied to those who have taken leave on personal grounds is in accordance with the provisions of Article 40(3) of the Staff Regulations, according to which "during leave [on personal grounds], an official shall not be entitled to advancement to a higher step or promotion in grade", and of Article 4(4) of the Commission Decision of 26 April 2002 concerning the general implementing provisions for Article 43 of the Staff Regulations. The Commission also pointed out that merit points are reduced for all officials or other servants who have taken leave on personal grounds and not only for those who have applied for leave on personal grounds in order to raise children.

2.3 The Ombudsman notes that, under the amended Staff Regulations to enter into force on 1 May 2004, officials and other servants will no longer have to take leave on personal grounds to raise their children, as they will be entitled to parental leave (see point 1.5 above). Moreover, the proposed new Article 42a of the Staff Regulations provides that during parental leave, "the official shall retain his post, and continue to be entitled to advancement to a higher step or promotion in grade".

2.4 Considering the amended Staff Regulations to enter into force on 1 May 2004 - and particularly the new Article 42a -, the Ombudsman finds that no further inquiries into this aspect of the complaint are justified.

2.5 The point made by the complainants in the telephone conversation of 5 March 2004, according to which staff members who took leave on personal grounds have lost merit points in the past for their whole career and cannot recuperate those points anymore, appears to raise legal and administrative issues that are outside the scope of the original inquiry. If the complainants wish to pursue this claim, they should first make appropriate administrative approaches to the Commission in accordance with Article 2 (4) of the Statute of the European Ombudsman.

3 Conclusion

It appears from the Commission’s proposal of 18 November 2003 amending the Staff Regulations and the complainants' observations that the Commission has taken steps to settle part 1 of this complaint and has thereby satisfied the complainants. No further inquiries appear necessary as regards part 2 of this complaint. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ 1996 L 145/4.

(2) COM(2002) 213 final of 24 April 2002.

(3) COM(2002) 213 final of 24 April 2002.

(4) See the Annual Report of the European Ombudsman for the year 2002, p. 201, and http://www.ombudsman.europa.eu/decision/en/01oi4.htm

(5) COM(2003)721 final.