Strasbourg, 15 March 2004

Dear Mr X.,

On 21 June 2003, you made a complaint to the European Ombudsman concerning the alleged failure by the European Commission properly to deal with a complaint that you had submitted to the Commission.

On 23 July 2003, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 2 October 2003 and I forwarded it to you with an invitation to make observations, if you so wished, by 15 November 2003 at the latest. No observations appear to have been received from you.

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

THE COMPLAINT

The complaint was submitted by a German citizen living in Belgium, and concerned an alleged failure by the European Commission properly to deal with a complaint submitted against a Commission official. The official had made replies to the complainant's requests for help against alleged discrimination by his employer.

In a previous complaint to the Ombudsman, the complainant had submitted allegations against his employer, also concerning alleged discrimination. The Ombudsman informed the complainant that his employer was not within the Ombudsman's mandate, and that his complaint could therefore not be taken up for inquiry.

In the present case, the complainant had sent a letter to European Commission President Prodi on 6 April 2003, making a complaint against Ms N., a Commission official. The complaint concerned the following correspondence.

On 19 May 2002, the complainant had written to the "Grundrechtskonvent der Europäischen Union" (the Convention for the Charter of Fundamental Rights of the EU). The address on the envelope containing the complainant's letter was that of the European Commission in Brussels. The complainant described in some detail how he was, in his opinion, a victim of sexual discrimination at his workplace.

On 20 June 2002, the complainant's letter was replied to in writing by Ms N. from the Commission's Directorate General for Employment and Social Affairs. In her letter, Ms N. informed the complainant that the Council of Ministers had adopted anti-discrimination legislation under Article 13 of the European Community Treaty (Directives 2000/43(1) and 2000/78(2)). These directives had to be implemented by the Member States by 19 July 2003 and 2 December 2003 respectively. Before these dates, the Commission could take no action regarding possible non-compliance with the directives. Ms N. therefore advised the complainant to make use, if possible, of the relevant national law.

On 9 February 2003, the complainant wrote to the European Commission again, stating that no European institution wanted to help him. His letter was replied to on 20 March 2003, in a letter written Ms N. Ms N. clarified her previous reply from 20 June 2002 as well as the role of the European Commission. She added that she presumed that her correspondence with the complainant on his case was closed.

On 6 April 2003, the complainant wrote to Commission President Prodi, complaining about Ms. N.'s reply of 20 June 2002. The complainant stated, in summary, that Ms N. had refused to deal with his discrimination case, and had therefore committed an act of mobbing and discrimination; that Ms N. had refused to take action to make EC anti-discrimination Directive 2000/78 effective; that Ms N. was therefore protecting, in the name of the Commission President, senior civil servants who commit discriminating acts and "who give the Hitler salute and use Nazi slogans in public while abroad". He asked the Commission President to take action against a number of persons and organs, including Ms N., the then European Ombudsman, "the person responsible for the European Convention", as well as the Belgian and the German governments.

On 15 May 2003, Ms N. wrote to the complainant again. She stated that Commission President Prodi had asked her to reply to the complainant's letter of 6 April 2003. Ms N. informed the complainant that she had no further comments to add to her previous letters, of which she enclosed copies.

In his complaint to the Ombudsman, the complainant alleged that the complaint that he lodged with the President of the European Commission on 6 April 2003 against a Commission official was dealt with and replied to by the official herself. The complainant also alleged that with her action, Ms N. supported discrimination on the grounds of sexual orientation. The complainant claimed that sanctions should be taken against Ms N.

THE INQUIRY

The Commission's opinion

In its opinion, submitted on 2 October 2003, the Commission made the following comments:

1. Background

[ One section deleted due to the anonymisation of the complaint ]

On 27 May 2002, a letter signed by the complainant dated 19 May 2002 addressed to “Grundrechtskonvent der Europäischen Union” (the Convention for the Charter of Fundamental rights of the EU), rue de la Loi 200, 1049 Brussels” was sent to the Anti-discrimination, Fundamental Social Rights and Civil Dialogue Unit in the Directorate General for Employment and Social Affairs, which appeared to be the service best placed to reply. In her reply dated 20 June 2002, the Head of the Anti-Discrimination Unit referred to Council Directive 2000/78/EC and explained that the Commission could not intervene in cases of discrimination until the end of the transposition period, and that victims of discrimination should rely on national legislation if any. The Commission concluded that it was unfortunately unable to help the complainant.

In his letter dated 9 February 2003 addressed to President Prodi, the complainant deplored the fact that no European institution would help him - enclosing as an example the negative reply by the European Ombudsman referred to above and the response from the “Grundrechtskonvent der Europäischen Kommission” (by which the Commission understood the complainant to refer to the replies he had received from the Unit for Anti-Discrimination, Fundamental Social Rights and Civil Dialogue of the Directorate General for Employment and Social Affairs). The Secretariat-General (Cellule Courrier du Président) asked the DG for Employment and Social Affairs to reply on behalf of the President. In her reply dated 20 March 2003, the Head of the Anti-discrimination Unit explained that the European Commission could only take action within the limits of its competence as set out in the Community Treaties, and confirmed the content of her previous letter. She also explained the status of her Unit and regretted that she was unable to help him. She also informed him that she considered the correspondence on this issue to be closed.

2. The present complaint

The current complaint refers to the second letter sent by the complainant to President Prodi on 6 April 2003. The complainant alleged that he had been discriminated against by the Head of the Anti-discrimination Unit and asked President Prodi to adopt sanctions against her. Having considered the nature of the letter, the Cellule Courrier du Président again requested the competent services in the Directorate General for Employment and Social Affairs to deal with it and to keep them informed.

The DG for Employment and Social Affairs replied on 16 May 2003, confirming the position set out in its previous correspondence. The DG did not feel it appropriate to respond to allegations such as that the Head of Unit, through her responses, was tolerating assault by hierarchical superiors or protecting officials who “give the Hitler salute and use Nazi slogans in public while abroad”. A copy of the reply sent to the complainant was duly sent to the Cellule Courrier du Président on 16 May 2003.

The Commission considers that the complainant has received, on repeated occasions, polite, correct and consistent factual responses to the questions he had raised. The legal position, that Directive 2000/78/EC would only have to be implemented by the Member States by 2 December 2003, and that the events about which the complainant is complaining occurred even before the adoption of the Directive by the Council, unfortunately prevented the Commission from doing any more to assist him.

The complainant's observations

The Ombudsman forwarded the Commission's opinion to the complainant for observations. No observations have been received by the Ombudsman.

THE DECISION

1 Handling of complaint against Commission official

1.1 In his complaint to the Ombudsman, the complainant alleged that the complaint that he lodged with the President of the European Commission on 6 April 2003 against a Commission official, Ms N., was dealt with and replied to by the official herself.

1.2 In its opinion, the Commission stated that, having considered the nature of the complainant's letter of 6 April 2003, the Cellule Courrier du Président again requested the competent services in the Directorate General for Employment and Social Affairs to deal with it and to keep them informed.

The Directorate General for Employment and Social Affairs replied on 16 May 2003 reconfirming the position set out in its previous correspondence. According to the Commission, the DG did not feel it appropriate to respond to allegations such as that the Head of Unit, through her responses, was tolerating assault by hierarchical superiors or protecting officials who “give the Hitler salute and use Nazi slogans in public while abroad”.

1.3 A complaint made against an official to the official's superior should normally be replied to by a person other than the official against whom the complaint was made.

The Ombudsman has, however, thoroughly examined the letters that gave rise to the complainant's complaint against Ms N. Upon this examination, the Ombudsman takes the view that the information contained in these letters is factually correct, and that the advice to the complainant is presented in an accessible and courteous style. In these circumstances, and also considering the contents of the complainant's letter of 6 April 2003, the Ombudsman considers that the Commission was entitled to conclude that a reply by Ms N., in which she confirmed the information and content of her previous letters, would be an adequate response.

It appears, therefore, that there has been no maladministration as regards this aspect of the case.

2 The official's alleged support of discrimination

2.1 The complainant alleged that with her action, Ms N., the Commission official, supported discrimination on the grounds of sexual orientation.

2.2 In its opinion, the Commission has stated that it considers that the complainant has received, on repeated occasions, polite, correct and consistent factual responses to his questions.

2.3 The Ombudsman has thoroughly examined the correspondence between the complainant and the Commission. There is nothing in this correspondence to suggest that, through her replies, Ms N. supported discrimination on the grounds of sexual orientation. It appears, therefore, that there has been no maladministration with regard to this aspect of the complaint.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L 180, p. 22.

(2) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.