Strasbourg, 2 May 2007

Dear Ms B. and Mr A.,

On 8 March 2005, you submitted a complaint to the European Ombudsman against the European Economic and Social Committee (the "EESC") concerning the composition of the joint evaluation committee of the EESC. The complaint was made on behalf of a trade union.

On 12 April 2005, I forwarded the complaint to the President of the EESC, which sent its opinion on 14 July 2005. I forwarded this opinion to you with an invitation to make observations, which you sent on 29 September 2005.

On 6 March 2006, I requested further information from the EESC. The EESC sent its additional comments on 28 April 2006. I forwarded them to you with an invitation to make observations, which you sent on 30 June 2006.

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

THE COMPLAINT

The facts according to the complainants can be summarised as follows:

The complainants are acting on behalf of a trade union of agents and officials of the European Communities. The complaint is against a decision of the President of the Economic and Social Committee (the "EESC") (Decision No 034/05A, dated 8 February 2005) concerning the appointment of members of the joint evaluation committee ("JEC"). The JEC is consulted before the Appointing Authority makes a decision on promotions of staff.

On 19 November 2004, the complainants drew the attention of the Secretary-General of the EESC to the messages sent by Mr X., a member of the JEC and candidate in the context of the elections of members of the Staff Committee, from which it could be understood that, if elected, he would favour particular categories of staff, notably his subordinates and members of his trade union. The complainants suggested modifying the rules of the JEC to ensure that its proceedings were legitimate, impartial and credible. A rule should state that members of the committee who have a personal interest in cases submitted to it should not take part in its proceedings. The complainants also suggested that the members of the committee should be reminded of their duty of confidentiality.

On 25 November 2004, the Secretary-General replied to the complainants, indicating that such a rule was not necessary in view of past experience and was impossible in such a small institution. He indicated that he would ask the President of the JEC to remind its members of their duty of confidentiality.

On the same date, the complainants wrote to the Secretary-General, challenging the appointment of one member of the JEC, Mr X., because of his electoral campaign and claiming that he should be replaced.

On 7 December 2004, the Secretary-General replied to the complainants, stating that he was against the initiative taken by Mr X. during his campaign and had conveyed his opinion to the President of the Staff Committee. He also indicated that the complainants' request to replace this person within the JEC should be better reasoned. He recalled (a) the fact that the message was sent during an electoral campaign; (b) the conditions in which the complainants obtained this message; (c) the role of the person concerned over the preceding years and in the same capacity within the JEC and (d) the fact that the JEC's proceedings are confidential. He indicated that, if the complainants were to repeat their request to replace Mr X., he would consult the Staff Committee and the trade unions.

On 23 December 2004, the complainants wrote to the Secretary-General, repeating their request.

On 8 February 2005, the President of the EESC made a decision (Decision No 034/05 A) concerning the composition of the JEC from 8 February 2005 until the elections of the new Staff Committee in 2006.

On 14 February 2005, the complainants wrote again to the Secretary-General, taking note of the appointment of Mr X. as permanent member of the JEC and regretting the absence of information on the steps taken by the Secretary-General following their letter of 23 December 2004.

On 8 March 2005, the complainants informed the Secretary-General that they had the intention to submit a complaint to the European Ombudsman. They noted that the Secretary-General had not consulted the Staff Committee and the trade unions on this issue.

In their complaint to the Ombudsman, the complainants alleged that the EESC failed to ensure that the proceedings of the JEC were impartial, credible and legitimate. They also alleged that the EESC failed to reply to their letters of 23 December 2004 and 14 February 2005. The complainants claimed that one member of the JEC should be replaced.

THE INQUIRY

The European Economic and Social Committee's opinion

The opinion of the EESC can be summarised as follows:

On 6 October 2004, in the framework of the campaign for the election of members of the Staff Committee, Mr X., a candidate and a member of a trade union, sent to his colleagues of the English Linguistic Division a message with the title "Please vote tomorrow!!!!". In this message, he stated the following:

"I will continue to work in the interests of all staff; needless to say all other things being equal, I will also do my best to defend the interests of the English Division; I have consistently done so in the past, in various negotiations with the Administration on recruitment, new posts, contracts, promotions etc.; my hand has certainly been strengthened by my membership of the Staff Committee. If re-elected, I hope to be re-appointed to the Promotions Committee. Promotions are made on the basis of personal files, points and seniority but, needless to say, there is some room for manoeuvre in any negotiations; I believe that I have consistently and successfully defended our Division's interests, in terms of promotions and new posts."

On the same day, Mr X. sent to other colleagues, not working within the English Linguistic Division, a slightly modified version of his message.

On 19 November 2004, the complainants wrote to the Secretary-General, regretting that candidates committed themselves to defending the interests of certain categories of staff and requesting that members of the JEC be excluded from its proceedings when they have a personal interest in the matters discussed.

On 22 November 2004, Mr X. was appointed by the Staff Committee to be a representative in the JEC.

On 25 November 2004, the Secretary-General replied to the complainants that no problem in the functioning of the JEC had been noticed when members were examining their subordinates' cases. He expressed his trust in the way members of the JEC carried out their duties in the past. He indicated that he would ask the President of the JEC to remind members of their duty of confidentiality and noted that the limited size of the EESC would make the complainants' proposal difficult to put in place.

In a letter of the same date, the complainants considered Mr X.'s appointment as inappropriate. Given his messages to staff, an element of doubt was cast over the impartiality, the credibility and the legitimacy of the proceedings of the JEC and, as a result, the reputations of the Staff Committee and the institution were damaged. It requested that Mr X. be replaced.

On 7 December 2004, the Secretary-General replied that he was against Mr X.'s initiative and that he had informed the President of the Staff Committee. He drew the attention of the complainants to the fact that the replacement of a representative appointed by the Staff Committee should be more reasoned than the explanations given so far.

On 23 December 2004, the complainants maintained their request.

On 8 February 2005, the President of the EESC took a decision as regards the composition of the JEC.

In its letter dated 14 February 2005, the complainants regretted not having been informed beforehand of the appointment of Mr X. as a permanent member of the JEC and maintained that it was inappropriate.

In its opinion, the EESC made the following comments on the complaint:

(1) Impartiality of the joint evaluation committee

The message of Mr X. had to be seen in the context of an electoral campaign. It was known that promises made in such circumstances could be diverse and did not necessarily commit their authors to a particular course of action. Even if Mr X. stated that he would be particularly attentive to the interests of the English Linguistic Division, he also indicated that he would work in the interests of all staff.

As the elections for the Staff Committee were made by secret ballot, there was absolutely no means for Mr X. to know who voted for him and reward those who had done so.

Mr X. had been sitting in the JEC for many years and there is no evidence to suggest that his honesty and impartiality were questionable. This was confirmed by the President of the JEC, who added that there was no possibility for a member of the JEC to influence decisions in favour of one official.

In conclusion, there was no evidence to suggest that the confidentiality and impartiality of the proceedings of the JEC were questionable.

(2) Allegation of maladministration

The Secretary-General publicly expressed his commitment to the principles governing the functioning of the JEC, namely, the confidentiality of the proceedings of the JEC, which was mentioned in a note to the complainants dated 5 November 2004(1) and repeated, verbally, to the President of the JEC. The Secretary-General also expressed his disapproval of Mr X.'s initiative both in a note dated 7 December 2004 and addressed to the same persons and in an oral communication to the President of the Staff Committee.

It has to be noted that Mr X. was appointed by the Staff Committee, following a decision collectively taken by representatives elected by the staff of the EESC. Representatives of the trade union of the complainants were present and had the opportunity to express their opinion.

If the administrative authority had not wanted Mr X. to be appointed, it would have had to go against a decision of staff representatives, which was not in itself inconceivable. As shown in his note of 7 December 2004, the Secretary-General did not, in fact, rule out this possibility. However, such a serious decision required serious and well-supported reasons. The information submitted by the complainants, which did not show that Mr X. distorted the functioning of the JEC to the benefit of his voters, was clearly insufficient.

The EESC concluded that the Ombudsman should declare the present complaint inadmissible or close it with a finding of no maladministration.

3. Consultation notes

The Secretary-General consulted the President of the JEC, the President of the Staff Committee and Mr X. The Committee attached to its opinion the replies of the President of the JEC, the President of the Staff Committee and Mr X.

- Note from the President of the JEC to the Secretary-General dated 8 July 2005:

The President of the JEC first noted that, ideally, he should have been consulted or at least informed of the criticisms made against Mr X.

The President of the JEC condemned Mr X.'s messages because he considered that they were incompatible with the impartiality and the objectivity of a member of the JEC. As regards the conduct of Mr X. within the JEC, he indicated that he had not noticed any representations by Mr X. in favour of one member of his trade union or agent of his division that were made without a legitimate reason. The President of the JEC pointed out that the proposals of the JEC were the result of in-depth collective reflection and discussion and that objective and common criteria, established before the selection proceedings, were applied to all candidates. It was therefore impossible that one member of the JEC imposed other criteria.

- Note from the President of the Staff Committee dated 8 July 2005:

The President of the Staff Committee explained that one member of the JEC, together with Mr X., as the substitute member, obtained 165 votes during the elections to the Staff Committee on 7 October 2004. The ballot was secret and it was impossible to know who had voted for whom. Consequently, the allegation that Mr X. could have benefited from votes from colleagues whom he would have subsequently rewarded was not grounded. The messages sent by Mr X. were addressed to colleagues of the English Linguistic Division and other colleagues personally. Most of the recipients were not members of the trade union, of which Mr X. was a member. Very few recipients were likely to be promoted (three out of 67 persons proposed, one of whom is a member of this trade union). The argument that Mr X. would favour members of his trade union was not grounded. As demonstrated objectively by the fact, both e-mails were clumsy, but not ill-intentioned. Finally, in these two e-mails, Mr X. clearly indicated his commitment to merit, in the framework of promotions, and to the defence of the general interest of the staff of the Committee.

- Note from Mr X. dated 13 July 2005:

Mr X. confirmed the note from the President of the Staff Committee and repeated that in his electoral messages he insisted on the merit of candidates for promotion.

The complainants' observations

The complainants' observations can be summarised as follows.

The complainants noted that the President of the JEC was not consulted or informed of the criticisms made against Mr X., which was in itself a case of maladministration. The President of the JEC considered that Mr X.'s e-mails were not appropriate in view of the impartiality and the objectivity of the proceedings of the JEC and that Mr X.'s behaviour was reprehensible.

They noted that the President of the Staff Committee was also the President of the trade union, of which Mr X. was a member. For this reason, the President of the Staff Committee could not be considered to have been entirely impartial.

Finally, the EESC's argument that Mr X.'s e-mails should be considered within the context of an electoral campaign was not acceptable or within the law, as the Secretary-General should not accept political lies as a normal and natural practice in an electoral campaign. In the framework of the Staff Regulations, the matter at issue should be dealt with as an issue of legality. The Appointing Authority should review and remedy all breaches of legality.

The complainants concluded that their complaint was founded and asked the Ombudsman to confirm this.

Further inquiries

After careful consideration of the EESC's opinion and the complainants' observations, it appeared that further inquiries were necessary. The Ombudsman therefore requested the EESC to specify:

1. the basis of its request that the complaint be declared inadmissible;
2. the legal provision or principle, on the basis of which it did not rule out the possibility to go against the decision of the Staff Committee to appoint one member of the JEC.

The Ombudsman also asked the EESC to provide a copy of the rules regarding the composition, the procedures and the functions of the JEC, in particular Decision No 238/01 A of 23 July 2001 regarding the composition and the functioning of the JEC and Decision No 511/04 A of 15 December 2004 modifying Decision No 238/01 A.

Finally, he noted that, in their observations, the complainants made a new allegation that the President of the JEC should have been consulted or informed of the criticisms made against one member of the JEC. As this allegation was not part of the initial complaint and as no prior administrative approaches had been made in this regard, he considered that this new allegation would not be dealt with in the context of the present inquiry.

The European Economic and Social Committee's further reply

The EESC's further reply can be summarised as follows:

As regards the remark concerning the inadmissibility of the complaint, the EESC indicated that it only intended to refer to the argument that the criticisms should be addressed to the decision of the Staff Committee to appoint Mr X. as a member of the JEC and not against Decision No 034/05 A of the President of the EESC.

The EESC indicated that the legal basis for the appointment of the members of the JEC is Article 2, paragraph 1, of Decision No 511/04 A of the Bureau dated 15 December 2004, which states the following:

"Article 2

1. Les membres du Comité sont désignés, paritairement, par le Secrétaire général et le Comité du personnel, lesquels doivent assurer une représentation équilibrée de l'ensemble des fonctionnaires. Le Président est désigné par le Secrétaire général après consultation du Comité du Personnel."

The EESC emphasised, once again, the context in which the message from Mr X. was sent. It added that the trade union to which Mr X. belongs won the elections by a substantial majority, obtaining 9 seats out of 11. The complainants' trade union obtained one seat, despite the information it provided to voters about Mr X's message. It appeared that the voters did not react positively to this information. The EESC believed that, in the hope of obtaining a better result, the complainants had wished to shift the emphasis of the electoral debate from the political ideas of each trade union to a more legal sphere.

In accordance with the applicable rules, the President of the EESC had to appoint the members proposed by the Staff Committee for the JEC. In case of an offence or a substantial administrative error, the Appointing Authority could react and stop the appointment proposed by the Staff Committee. However, the EESC did not consider that such was the case.

The EESC could not act otherwise because blocking an appointment proposed by the Staff Committee could be seen to imply a hidden sanction for the official, which would have no legal basis in the Staff Regulations.

The EESC finally repeated the different steps it took in this matter and concluded that there was no maladministration in this case.

The complainants' final observations

By letter of 19 April 2006, the complainants acknowledged that the new allegation contained in their observations could not be part of the present inquiry.

The complainants' final observations can be summarised as follows:

The complainants repeated that they considered that Mr X.'s political lies could not be justified.

They added that Mr. X.'s trade union did not win the elections by a substantial majority, as it obtained 52,27% of the votes, while the complainants' trade union had obtained 39,23% of the votes. In addition, it was wrong to state that the complainants' trade union informed voters about Mr X's message during the campaign because its first information note was issued on 22 October 2004, while the elections took place on 7 October 2004. Contrary to the EESC's statement, the complainants' trade union chose not to use Mr X's message during the electoral campaign.

According to the complainants, the EESC seemed to have chosen to avoid entering into a dispute with the various unions to the detriment of impartiality and objectivity of the members of the JEC. Moreover, the EESC had tried to turn the complainants' complaint into an alleged trade union dispute in order to avoid its responsibility and to avoid replying clearly to the questions put to it.

The complainants noted that the Secretary-General submitted his concerns to the President of the JEC, who, in his note dated 8 July 2005, regretted that the JEC had not been consulted or informed of the situation before it had started its proceedings.

They also noted that the Secretary-General addressed a limited public, that is to say the persons in charge of the complainants' trade union and the Presidents of the Staff Committee and of the JEC.

The complainants referred to Case T-396/03 Vanhellemont v Commission, in which the Court of First Instance annulled the Commission's decision not to act in the electoral procedure of the Staff Committee(2).

THE DECISION

1 Provisions of the Staff Regulations and Decision No 511/04 A of 15 December 2004 concerning the joint evaluation committee

The Staff Regulations provide, in relevant part, the following:

Article 9: "1. There shall be set up: (a) within each institution:

- a Staff Committee, which may be organised in sections for the different places of employment;

- one or more Joint Committees, as appropriate for the number of officials at the places of employment;

(...) which shall perform the functions assigned to them by these Staff Regulations. (...)

2. The composition and procedure of the bodies shall be determined by each institution in accordance with the provisions of Annex II. (...)

3. The Staff Committee shall represent the interests of the staff vis-à-vis their institution (...). It shall contribute to the smooth running of the service by providing a channel for the expression of opinion by the staff. (...)".

Annex II to the Staff Regulations provides that

"The Joint Committee or Committee of an institution shall consist of:

- a chairman appointed each year by the appointing authority,

- members and alternates appointed at the same time in equal numbers by the appointing authority and by the Staff Committee."

Decision No 511/04 A of 15 December 2004 of the Bureau of the Economic and Social Committee, modifying Decision No 238/01A of 23 July 2001 of the Bureau of the Economic and Social Committee, setting up a JEC provides, in relevant part, the following:

Article 2: "1. Les membres du Comité sont désignés, paritairement, par le Secrétaire général et le Comité du personnel, lesquels doivent assurer une représentation équilibrée de l'ensemble des fonctionnaires (...)".

Article 3: "1. Le Président et les membres sont désignés pour une période de deux ans (...)".

Article 4: "1. Le Comité est chargé de soumettre à l'Autorité investie du pouvoir de nomination des avis sur les fonctionnaires qu'il considère les plus méritants pour obtenir une promotion, après examen comparatif des mérites des fonctionnaires ayant vocation à la promotion au 31 décembre de l'exercice en cours, ainsi que des rapports de notation dont ils ont fait l'objet. (...)".

Article 5: "1. L'Autorité investie du pouvoir de nomination procède aux promotions après avoir pris connaissance des avis du Comité paritaire de promotion. (...)".

Article 6: "1. Le Comité se réunit au moins deux fois pas an, sur convocation de son Président ou à la demande du secrétaire général. Il délibère valablement si tous les membres titulaires sont présents ou représentés, selon les différentes compositions prévues à l'article 2 (soit, respectivement, six(quatre), huit et dix membres).

2. Le Comité procèdera, pour chaque grade, à l'examen comparatif des mérites de l'ensemble des fonctionnaires promouvables, en tenant compte des points de promouvabilité cumulés par chacun de ces fonctionnaires depuis leur dernière promotion et en vérifiant leur cohérence avec les commentaires des rapports de notation. (...)".

Article 7: "3. Les avis du Comité sont pris à la majorité absolue de voix des membres titulaires présents ou représentés (...)".

2 Allegation that the Economic and Social Committee failed to ensure that the joint evaluation committee's proceedings are impartial, credible and legitimate as well as the related claim

2.1 The complainants are acting on behalf of a trade union of agents and officials of the European Communities. The complaint is against a decision of the President of the European Economic and Social Committee (the "EESC") (Decision No 034/05 A dated 8 February 2005) concerning the composition of the joint evaluation committee (the "JEC") until the elections for the Staff Committee that were to take place in 2006. The complainants challenged this decision to the extent it determined that Mr X. would be a member of the JEC and, more specifically, one of the members appointed by the Staff Committee. They argued that Mr X. had sent messages during the campaign for the election of the Staff Committee from which it could be understood that, if elected, he would favour particular categories of staff, notably his colleagues from the English Linguistic Division and members of his trade union. The complainants had raised the issue with the Secretary-General of the EESC on 19 November, 25 November and 23 December 2004. The European Ombudsman opened an inquiry, inter alia, into (i) the complainants' allegation that the EESC had failed to ensure that the proceedings of the JEC would be impartial, credible and legitimate, and (ii) the complainants' claim that the above-mentioned member of the JEC should be replaced.

2.2 In its opinions, the EESC rejected the complainants' allegation, making the following arguments:

1. Promises made in the context of an electoral campaign can be diverse and do not necessarily commit their authors to a particular course of action.
2. Even if Mr X. stated that he would be particularly attentive to the interests of the English Linguistic Division, he also indicated that he would work in the interests of all staff.
3. There was no way for Mr X. to know who voted for him and reward those who had done so.
4. Mr X. had been sitting on the JEC for many years and there was no evidence to suggest that his honesty and impartiality were questionable. This was confirmed by the President of the JEC, who added that there was no possibility for a member of the JEC to influence the JEC's decisions in favour of a particular official.
5. Mr X. was appointed by the Staff Committee on the basis of a collective decision taken by representatives elected by the Staff of the EESC. Representatives of the complainants' trade union were present and had the opportunity to express their opinion. If the administrative authority had not wanted Mr X. to be appointed, it would have had to go against a decision of staff representatives. However, such a serious decision required serious and well-explained reasons. In case of an offence or a substantial administrative error ("dans le cas d'un délit ou d'une faute administrative substantielle"), the Appointing Authority could prevent the appointment proposed by the Staff Committee. However, the EESC did not consider that such was the case in relation to the appointment of Mr X. The evidence submitted by the complainants, which did not show that Mr X. distorted the operation of the JEC to the benefit of his voters, was clearly insufficient.

2.3 In their final observations, the complainants noted, inter alia, that the President of the JEC regretted that he had not been consulted in relation to or informed of the situation before the JEC had started its proceedings. They also made a reference to Case T-396/03 Vanhellemont v Commission(3), in which the Court of First Instance annulled the Commission's decision not to act in the electoral procedure of the Staff Committee.

2.4 The Ombudsman first recalls that the present inquiry concerns the issue of whether Decision No 034/05 A, dated 8 February 2005, of the President of the EESC, constituted an instance of maladministration, to the extent that it determined that Mr X. would be a member of the JEC. This allegedly involved a failure on the part the EESC to ensure that the proceedings of the JEC would be impartial, credible and legitimate. The Ombudsman's inquiry does not concern the integrity or regularity of the election procedure or the question whether the decision of the Staff Committee to appoint Mr X. as a member amounted to an instance of maladministration. The Ombudsman notes in this regard that this decision concerning Mr X. was not communicated to the Ombudsman in the context of the present inquiry.

2.5 The Ombudsman further notes that, according to Article 11 of the Staff Regulations, an official

"shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Communities" and "shall not, in the performance of his duties (...) deal with a matter in which, directly or indirectly, he has any personal interest such as to impair his independence, and, in particular, family and financial interests".

Relatedly, Article 8 of the European Code of Good Administrative Behaviour provides that

"1. The official shall be impartial and independent. The official shall abstain from any arbitrary action adversely affecting members of the public, as well as from any preferential treatment on any grounds whatsoever. 2. The conduct of the official shall never be guided by personal, family or national interest or by political pressure. The official shall not take part in a decision in which he or she, or any close member of his or her family, has a financial interest."

2.6 The Ombudsman reiterates that principles of good administration require that the staff of the Community institutions and bodies not only perform their duties impartially, but also demonstrate their impartiality by avoiding any action which could lead to their impartiality being reasonably called into question(4). Furthermore principles of good administration require that the relevant Community institution or body take appropriate action to ensure both the reality and the appearance of impartiality in the performance of the administrative functions entrusted to its staff members. What is at stake, in this context, is the confidence which the Community Administration must inspire in the public or, as regards the administration of staff matters, in its staff.

2.7 The issue of compliance with the impartiality requirements in a case such as the present one must be determined not only according to a subjective test, that is on the basis of the personal convictions and predispositions of the staff representative concerned, but also according to an objective test(5). In the context of this second test, it must be ascertained whether the Administration offered sufficient guarantees to exclude any legitimate doubt in respect of compliance with the above-mentioned impartiality requirements. Under the objective test, it must, first, be determined, in this case, whether there were ascertainable facts which were brought to the attention of the EESC before the issuance of the challenged decision and which might have raised doubts as to the impartiality of Mr X., who, in his capacity as staff representative in the JEC, would be dealing with staff matters. In this respect even appearances may be of considerable importance.

2.8 In the case at hand, Mr X. stated the following in a message he sent to his colleagues in the English Linguistic Division on 6 October 2004:

"I will continue to work in the interests of all staff; needless to say all other things being equal, I will also do my best to defend the interests of the English Division; I have consistently done so in the past, in various negotiations with the Administration on recruitment, new posts, contracts, promotions etc.; my hand has certainly been strengthened by my membership of the Staff Committee. If re-elected, I hope to be re-appointed to the Promotions Committee. Promotions are made on the basis of personal files, points and seniority but, needless to say, there is some room for manoeuvre in any negotiations; I believe that I have consistently and successfully defended our Division's interests, in terms of promotions and new posts."

The Ombudsman finds that the above statement could be reasonably understood as a promise on the part of Mr X. to favour, as a member of the JEC, the interests of his colleagues in the English Linguistic Division in the context of the promotions procedure. In this regard, it must be noted that the Institution itself, and, more specifically the Secretary-General, in his letter of 7 December 2004, that is, long before the issuance of the challenged decision, condemned this statement, as did the President of the JEC in a letter dated 8 July 2005, in which he stated that he considered the statement to be incompatible with the impartiality and the objectivity of a member of the JEC. Moreover, it has not been contested that there were members of the English Linguistic Division who were eligible for promotion. The Ombudsman, thus, finds that, under the circumstances of the case, reasonable and objectively justified doubts as to the impartial and objective performance by Mr X. in the exercise of his duties as a member of the JEC might be raised and apparently were indeed raised, as evidenced from undisputed facts brought to the attention of the EESC long before the issuance of its challenged decision. Relatedly, it must be noted that the participation on the JEC of other members whose impartiality was not called into question does not detract from the merits of the present inquiry(6). Indeed, in a case such as the present one, the requirements referred to in point 2.6 above imply that the participation in the JEC of a person whose impartiality may reasonably be called into question must be viewed as likely to undermine the fairness of the JEC's proceedings and the pertinent administrative procedure regarding promotions(7). In light of the above, the Ombudsman does not accept the above-mentioned arguments (i) - (iv) put forward by the EESC, in support of its rejection of the allegation.

2.9 As to argument (v) put forward by the EESC, the Ombudsman notes that, when it comes to the selection of the members of the JEC by the Staff Committee, the responsibility for ensuring compliance with the impartiality requirements mentioned above lies, in the first place, with the Staff Committee. This body is not relieved of its foregoing responsibility merely because it has already selected the officials to participate in the JEC. Hence, if a relevant complaint is made to the Administration of the EESC before the issuance of its decision regarding the composition of the JEC, the institution must, first, ascertain whether the matter had been brought to the attention of and considered by the Staff Committee. Should this not be the case, the EESC should, at least in principle(8), refer the matter to the Staff Committee and invite it to examine the complaint and, in so doing, either confirm or modify its selection decision within a reasonable time-limit. On the basis of the information provided to the Ombudsman in the context of his present inquiry, it seems that the EESC failed to take such steps. This was an instance of maladministration and the Ombudsman will make a relevant critical remark below.

Moreover, the EESC has not contested that, in the context of the issuance of its challenged decision, it had the power to review the selection made by the Staff Committee and not to accept it, to the extent it would not be compatible with pertinent rules binding on the Staff Committee. Although not in a sufficiently clear and precise manner, the EESC did, in fact, refer to the conditions under which it could exercise this power, that is, in the event of being provided with serious and well-explained reasons, or in the case of an offence or of a substantial administrative error. The EESC also indicated that these conditions were not met in the specific case, because the complainants had not shown that Mr X. had engaged in actions aimed at distorting the operation of the JEC and to benefit his voters. The Ombudsman does not accept this reasoning. As explained above, Mr X.'s message of 6 October 2004 raised reasonable doubts as to his impartiality and objectivity in the performance of his duties as a member of the JEC. And ensuring both the reality and appearance of impartiality in cases such as the present one constitutes a rule binding on the Staff Committee which furthers an important Community interest. The mere fact that the complainants had not demonstrated to the EESC that Mr X. had attempted to distort the operation of the JEC to the benefit of his voters is not relevant. The Ombudsman, thus, finds that the EESC failed to provide valid and adequate grounds for its refusal to grant the complainants' request of 25 November 2004 (repeated on 23 December 2004) concerning the participation of Mr X. in the JEC. This constitutes an instance of maladministration, and the Ombudsman will make a critical remark below.

2.10 As regards the complainants' claim that Mr X. should be replaced, the Ombudsman notes that the applicability of the challenged decision expired at the time of the 2006 elections for the Staff Committee. For this reason and taking into account his remarks in points 2.4 and 2.9 above, the Ombudsman does not consider it justified to address this claim or make a pertinent friendly solution proposal.

3 Alleged failure to reply

3.1 The complainants alleged that the EESC failed to reply to their letters of 23 December 2004 and 14 February 2005.

3.2 Principles of good administration, embodied in Article 13 of the European Code of Good Administrative Behaviour, require that the EESC reply to these letters sent by complainants. However, it appears that the EESC neither replied to the complainants' letters nor provided any reasons for its failure to do so . The Ombudsman considers that this is an instance of maladministration. Taking also into account his findings in point 2.8 above and that, in the context of both its prior correspondence with the complainants and the one pertaining to the present inquiry, the EESC expressed its views on the issue (of the composition of the JEC) referred to by the complainants in their letters of 23 December 2004 and 14 February 2005 , the Ombudsman will make a critical remark below.

4 Conclusion

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

Principles of good administration require that the staff of the Community institutions and bodies not only perform their duties impartially, but also demonstrate their impartiality by avoiding any action which could lead to their impartiality being reasonably called into question. Furthermore principles of good administration require that the relevant Community institution or body take appropriate action to ensure both the reality and the appearance of impartiality in the performance of the administrative functions entrusted to its staff members.

In the case at hand, reasonable doubts as to the impartial and objective performance by Mr X. of his duties as a member of the JEC might be raised and apparently were indeed raised, on the basis of undisputed facts (content of Mr X.'s message sent to his colleagues in the English Linguistic Division on 6 October 2004), or brought to the attention of the EESC long before the issuance of its challenged decision regarding the composition of the JEC.

The responsibility for ensuring compliance with the impartiality requirements mentioned above when the Staff Committee selects members of the JEC lies, in the first place, with the Staff Committee itself. If a relevant complaint is made to the institution before the issuance of its decision regarding the composition of the JEC, the institution must, first, ascertain whether the matter had been brought to the attention of and considered by the Staff Committee. If this turns out not to have been the case, the institution should, at least in principle, refer the matter to the Staff Committee, inviting it to examine the complaint and, in so doing, either confirm or modify its selection decision within a reasonable time-limit. It seems that the EESC failed to take such steps in the case at hand. This was an instance of maladministration.

Moreover, the EESC has failed to provide valid and adequate grounds for its refusal to grant the complainants' request of 25 November 2004 (repeated on 23 December 2004) concerning the participation of Mr X. in the JEC. This was another instance of maladministration.

Finally, principles of good administration require that the EESC should have replied to the complainants' letters of 23 December 2004 and 14 February 2005. It appears that the EESC neither replied to the complainants' letters nor provided any reasons for its failure to do so. This was also an instance of maladministration.

On the basis of the above, the Ombudsman closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman understands that the Committee wishes to refer to the note dated 25 November 2004.

(2) Case T-396/03 Vanhellemont v Commission, judgment of 22 November 2005, not yet reported:

"52 Selon une jurisprudence constante, il résulte de l’article 9, paragraphe 2, du statut et, en général, du pouvoir d’organisation que chaque institution exerce dans le domaine de sa propre compétence ainsi que de son devoir d’assurer à ses fonctionnaires la possibilité de désigner leurs représentants en toute liberté et dans le respect des règles démocratiques, que les institutions ont non seulement le droit, mais encore l’obligation, d’intervenir d’office au cas où elles éprouveraient un doute sur la régularité de l’élection du comité du personnel, et qu’elles sont encore tenues de statuer sur les réclamations qui pourraient leur être adressées à ce sujet dans le cadre de la procédure fixée par les articles 90 et 91 du statut (arrêt de la Cour du 29 septembre 1976, De Dapper e.a./Parlement, 54/75, Rec. p. 1381, points 21 à 23 ; ordonnance du Président de la Cour du 11 juin 1985, Diezler e.a./CES, 146/85 R, Rec. p. 1805, point 6 ; arrêt du Tribunal du 8 mars 1990, Maindiaux e.a./CES, T-28/89, Rec. p. II-59, point 32).

53 Ce devoir d’intervention d’office des institutions pour assurer la régularité des élections comprend également celui de créer des conditions de sécurité juridique et de résoudre avec effet obligatoire des questions douteuses, sans que l’institution doive attendre qu’un conflit plus grave se produise à leur sujet. Les pouvoirs qui appartiennent aux institutions en vertu de leur devoir d’assurer la régularité des élections comprennent donc celui de prendre des mesures préventives (arrêt Maindiaux e.a./CES, point 52 supra, point 32)."

(3) Case T-396/03 Vanhellemont v Commission, judgment of 22 November 2005, not yet reported, paragraphs 52 and 53.

(4) See the Ombudsman's decision on complaint 751/2000/(BB)IJH and in particular paragraph 4 of the draft recommendation cited therein.

(5) It must be noted that such a double test is applied mutatis mutandis by the European Court of Human Rights in the context of Article 6, paragraph 1 (Cf., e.g., judgment of the European Court of Human Rights of 24.2.1993, Fey, series A no. 255, paragraphs 28-30), which may also apply to administrative proceedings (See, e.g., judgment of the European Court of Human Rights of 10.2.1983, Albert and Le Compte, series A no 58).

(6) Cf. judgment of the European Court of Human Rights of 22.6.1989, Langborger, series A no. 155, paragraph 35.

(7) Cf. Ombudsman's decision on complaint 829/2004/PB, points 4.5 and 4.6.

(8) The Ombudsman does not exclude in particular that the institution might not be required to act in this way where the complaint is abusive or manifestly ill-founded. However, the Economic and Social Committee did not make such a finding in the case at hand.