THE BACKGROUND TO THE COMPLAINT

1. Since 16 June 2005, the complainant has been working as an Accounting Officer at the European Railway Agency ("ERA"). He had a four-year contract as a temporary agent at grade A5. His post was directly attached to ERA’s Executive Director (the "Executive Director").

2. After the complainant's probation period, the Executive Director drew up and signed a final evaluation report which was positive. Since then, no periodical evaluation reports were carried out.

3. In September 2006, the Internal Audit Service ("IAS") of the European Commission performed an audit of ERA. The audit was designed further to improve ERA's performance. The audit report contained 37 recommendations covering a wide range of issues. A limited number of recommendations referred directly to the Accounting Officer, that is to say, the complainant. In the complainant's view, the IAS report had a serious impact on ERA.

4. In September 2006 also, the complainant was orally informed by the Executive Director that he had to "dismiss him immediately".

5. In December 2006, the Executive Director interviewed two candidates for the post occupied by the complainant. These candidates finally refused to take the job offer. The complainant was at the same time asked to resign, which he refused to do. In the complainants’ view, given that he refused to resign, the Executive Director intimidated him by his subsequent actions.

6. On 11 January 2007, the Executive Director decided to move the post of the Accounting Officer from the Directorate to the Administration Unit.

7. In the context of this re-organisation, a meeting was organised on 19 January 2007 between the complainant and ERA's management Board. The official agenda of the meeting was to discuss the work done by the complainant’s assistant. In the complainant's view, there was also a "hidden agenda". During the meeting, he was told that the only solution was for him to express, on paper, his willingness to move to another unit. The complainant further underlined that one member of the Board "lost his self-control" and accused him publicly of incompetence.

8. By letter of 13 April 2007, the Executive Director informed the complainant that, following the report of the IAS, he decided to take the following measures in the financial sector: (i) recruit a new Accounting Officer, "following the departure of the person exercising the function", and (ii) transfer the complainant, as from 1 October 2007, to the post of "Budget Officer" in the unit "Evaluation économique".

9. On 23 April 2007, the complainant lodged an Article 90(2) complaint with ERA, in which he referred to the meeting of 19 January 2007. He alleged that he was the victim of moral harassment and that he was the "scapegoat" for the administrative imperfections in ERA. At the date of his complaint to the Ombudsman on 28 September 2007, the complainant had still not received a reply to his Article 90(2) complaint from ERA.

10. On 11 May 2007, the complainant’s post of Accounting Officer was published, even though he had not resigned.

11. On 13 July 2007, the complainant lodged a further Article 90(2) complaint with ERA concerning the publication of his post. He did not receive a reply either.

THE SUBJECT-MATTER OF THE INQUIRY

12. In his complaint, the complainant submitted the following allegations:

1. There was an abuse of power by ERA to the extent that the complainant was wrongly held responsible for the irregularities in the functioning of ERA established by the audit report of the IAS.
2. ERA sought to oblige the complainant to resign, which, in the latter’s view, constituted moral harassment.
3. ERA wrongly decided to publish the post occupied by the complainant and subsequently to recruit another Accounting Officer.

The complainant also submitted the following claims:

1. He should be offered a new contract or be allowed to complete his four-year contract as Accounting Officer (until 2009).
2. He should be promoted in accordance with the standard procedures.

13. In his further observations, the complainant referred to some issues related to his evaluation procedure.

14. Since these issues were not raised in the complainant's original complaint, they fall outside the scope of the present inquiry. The complainant could consider renewing these allegations after having exhausted the internal remedies foreseen by Article 90 of the Staff Regulations. This requirement is in accordance with Article 2(8) of the Ombudsman’s Statute(1).

THE INQUIRY

15. The Ombudsman initially opened an inquiry as regards the complainant’s allegations (i) and (ii) described in point 12 above; on 29 February 2008, he extended the inquiry to the further allegation (iii) and claims (i) and (ii), after the complainant had informed him that he had exhausted the relevant appeal procedure as foreseen in Article 90 of the Staff Regulations.

In the context of the complainant’s allegation (i), the Ombudsman asked ERA to explain in detail the reasons why it considered the complainant to be responsible for the irregularities that had been identified in the functioning of ERA.

16. ERA sent its opinion on 26 February 2008.

17. On 5 March 2008, the Ombudsman forwarded it to the complainant with an invitation to make observations, which he sent on 5 May 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. The alleged abuse of power from ERA
Arguments presented to the Ombudsman

18. The complainant alleged that there was an abuse of power by ERA to the extent that the complainant was wrongly held responsible for the irregularities in the functioning of ERA established by the audit report of the IAS.

19. In summary, ERA denied in its opinion that the complainant had been held responsible for the irregularities in the functioning of ERA even if it noted that the audit report of 15 February 2007 put in evidence "serious weaknesses" in the way the accounts were kept and organised by the complainant who was, at the time, the Accounting Officer of ERA. The auditors found, for instance, that the basic accounting data were missing and recommended immediate action in this respect. Even though the performance of the Accounting Officer may have been questioned, there had been no abuse of power by ERA in its further actions. The complainant was given the opportunity to continue in his post for a limited period of time, in order to close the accounts exercise corresponding to the current year and received the relevant support to do so.

20. ERA also referred in this context to certain difficulties the complainant had encountered in performing his duties in general. These included communication difficulties with ERA's delegated authorising officers and following basic internal rules and procedures. In particular, he refused to indicate a deputy accountant who would, inter alia, assure continuity and provide back-up support in the accounting section during his absence, although he was repeatedly requested to do so and the human resources unit was available to help him. Finally, the complainant did not agree to follow coaching sessions, claiming that he did not have time to do so.

21. In his observations, the complainant denied that he had had problems with the authorising officers of ERA. However, he had the impression that "his point of view" was not taken into consideration because of his "junior" A5 grade. The complainant finally informed the Ombudsman of some changes in his professional situation which took place after his complaint had been submitted. Since September 2007, he had been a member of a financial team of more than ten persons, which was supervised and coached by a grade A7 co-ordinator. The Head of the Administration sector supervised the Finances, Human Resources and IT sectors. In the complainant’s view, this new organisation enhanced the working atmosphere and led to harmonious working relationships.

The Ombudsman's assessment

22. First, the Ombudsman understands that, apart from accountancy shortcomings, the auditors also found other irregularities in ERA's functioning and notes that ERA strongly denied that it held the complainant responsible for such irregularities.

23. Second, he considers that, following the auditors' findings that there had been shortcomings in ERA’s accountancy sector in particular, it is reasonable to expect ERA to take measures to remedy the functioning of that sector. By deciding to take such measures, ERA did not therefore abuse its power.

24. The question arises, however, as to how the above measures were taken.

25. The Ombudsman points out that ERA’s measures to remedy the functioning of the accountancy sector should be taken in a way which does not put into question the integrity and feelings of the officials concerned, and more particularly it should avoid leaving them with the impression that there could be a case of abuse of power towards them.

The Ombudsman refers therefore to the principle of welfare of the officials. According to the case-law of the Community Courts(2), the principle concerning the welfare "[w]hich falls on the administration, means in particular, according to consistent case law, that when the administration comes to a conclusion about the situation of an official, the competent authority takes into account all the elements likely to determine its decision and that, by doing this, it takes account not only of the interest of the service, but also of that of the official concerned"(3).

26. The Ombudsman notes therefore that, according to ERA, it assisted the complainant in the accountancy closing exercise following the audit, by proposing coaching sessions to him and by inviting him to designate a deputy accountant. In his observations, the complainant did not contradict ERA's above statements.

27. It does not appear therefore that the above actions towards the complainant exceeded what objectively could be considered to be adequate in the given circumstances.

28. Moreover, it emerges from the complainant’s observations that, since September 2007, a new hierarchical organisation in ERA had been set out in ERA and that he was transferred to another post with which he expressed his satisfaction.

29. Finally, although the Ombudsman notes the complainant’s specific statement that "his point of view was not taken into consideration because of his "junior" A5 grade", he considers first, that it follows from the above statement that the complainant could indeed present his views in his relationship with his superiors and, second, that, even though it may have been the case that such views were not taken into consideration, this does not necessarily constitute evidence of an abuse of power.

30. In light of points 26 to 30 above, the Ombudsman considers that the complainant did not succeed in demonstrating that there was an abuse of power by ERA and does not find maladministration in this respect.

B. The alleged moral harassment by ERA
Arguments presented to the Ombudsman

31. The complainant alleged that ERA sought to oblige him to resign, which, in his view, constituted moral harassment.

He stated therefore that, in September 2006, that is, just after the audit had taken place in ERA, the Executive Director of ERA informed him orally that he had to "dismiss him immediately". In December 2006, the same director interviewed two candidates for the post occupied by the complainant but those candidates finally refused the job offer. The complainant was at the same time asked to resign, which he refused to do. In the complainants’ view, given that he refused to resign, the Executive Director intimidated him by the subsequent actions, such as his transfer to another post in ERA, which he took as regards his professional situation.

32. In support of his allegation, the complainant also referred to two incidents which, in his view, constituted moral harassment, namely, (i) that, on one occasion, he partly overheard a discussion between some ERA members of staff, who were socialising in a corridor, make what he believed to be disparaging comments about him and (ii) that, on another occasion, the complainant's line manager raised his voice during a discussion with him.

33. ERA gave a detailed answer to this allegation in its opinion. ERA first offered assurances to the effect that under no circumstances had the complainant been asked to resign. On the contrary, the approach adopted by ERA was to find a reasonable and efficient way to resolve the situation which took into consideration the complainant's professional qualifications, as well as his career development within ERA.

34. ERA also stated that the complainant "never submitted a substantiated claim" informally or formally concerning moral harassment against a specific ERA member of staff(4) and never mentioned exactly which specific events or aspects of behaviour were considered to constitute moral harassment.

As regards incident (i), ERA explained that the discussion in question had not concerned the complainant at all and that he made a harassment complaint merely on the basis of overhearing an isolated phrase expressed as part of the above-mentioned conversation.

As regards incident (ii), ERA recognised that, in "one isolated case", the complainant's line manager raised his voice during a discussion with him. However, he apologised for his behaviour and assured him that such an incident would not be repeated again, which was indeed the case.

35. ERA stated that, as foreseen in the Staff Regulations, moral harassment means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person. ERA stated that no evidence of the above was ever brought to its attention.

36. In his observations, the complainant stated that he had in his possession relevant documents attesting moral harassment towards him, namely, (i) a document dated January 2007 concerning a training programme which he had to refuse to attend because the said document referred to the complainant's private life; (ii) the report from his doctor and the transfer of his file to a psychologist who detected symptoms of moral harassment in the complainant’s state of health and testimony; (iii) the report of a member of the staff committee containing a reference to the request to resign that was put to the complainant at a meeting(5). He also stated that he could provide these documents to the Ombudsman's services if necessary.

The Ombudsman's assessment

37. The Ombudsman thanks the complainant for his willingness to provide further documents. The Ombudsman considers however that the information provided by the parties so far is sufficient to enable him to take a decision on the complainant's allegations and claims. The Ombudsman does not therefore consider it useful in the present case to ask the complainant for further evidence. Moreover, he points out that his inquiries into complaints concerning moral harassment in the workplace are limited to assessing whether the internal complaints concerning that issue have been dealt with properly and whether the system of help and advice for victims has been established.

38. It follows from the above that the Ombudsman’s present inquiry will only concern the procedure applied by ERA and the approaches eventually taken by it to deal with the complainant’s allegation of moral harassment.

39. The Ombudsman recalls Article 12(a) of the Staff Regulations:

"1. Officials shall refrain from any form of psychological or sexual harassment.

2. An official who has been the victim of psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution. An official who has given evidence on psychological or sexual harassment shall not suffer any prejudicial effects on the part of the institution, provided the official has acted honestly.

3. “Psychological harassment” means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person. (…)".

40. As regards the two incidents in question and on the basis of the explanation offered by ERA in its opinion, it appears that the Agency carried out an inquiry with an eye to establishing the facts that lay at the origin of those incidents. Moreover, according to ERA, the line manager apologised to the complainant for his inappropriate behaviour. In his observations, the complainant did not challenge ERA's explanation.

41. As regards the issue of the complainant's resignation, however, the Ombudsman notes that ERA assured him that under no circumstances was the complainant requested to resign while the complainant argued that his hierarchy asked him orally to resign in September and December 2006. He also argued that he had in his possession the report of the staff committee which stated that, during a meeting, the complainant had been asked to resign.

42. The Ombudsman is therefore not convinced that the complainant was not indeed asked to resign, even if only informally.

43. Nevertheless, as pointed out in point 37 above, the Ombudsman does not consider it to be his task to take a position as to whether such requests for resignation, if any, may have constituted a case of harassment but to review the procedure applied by ERA while dealing with the complainant's concerns in this respect.

44. The Ombudsman notes therefore that, in its reply of 26 November 2007 to the complainant’s Article 90(2) complaint, ERA stated that, during a conversation with the complainant held on 26 January 2007, the Executive Director informed the complainant that the Commission's Directorate-General for Transport had upheld the criticisms concerning his professional abilities and proposed to him a transfer to the Agency's "Evaluation économique" Unit. The Executive Director made a commitment that, in case the complainant were to accept the transfer proposal, he would be given the possibility objectively to prove his professional capacities in a similar field. The complainant accepted the transfer proposal and orally undertook to ask for his transfer on his own initiative, in order not to damage his professional reputation.

45. Moreover, the Ombudsman understands that the complainant was transferred to another post in the Unit "Evaluation économique", namely, "Budget Officer" and appears to be satisfied with this change. In addition, according to ERA, the Executive Director decided to put the complainant under the direct managerial responsibility of the Head of Administration and the latter proposed to provide the complainant with professional assistance and accepted to offer him the possibility to solve the problems he encountered in the exercise of his functions. In his observations, the complainant did not contest the above.

46. Hence, the Ombudsman considers that ERA has made reasonable efforts to deal with the complainant's concerns that he was morally harassed in the workplace. Moreover, it tried to help the complainant to solve his difficulties in exercising his duties as Accounting Officer and assisted him in his further duties as Budget Officer. In light of the above, the Ombudsman therefore considers that ERA took proper action in response to the complainant’s situation following the audit.

47. On the basis of the above, the Ombudsman does not find an instance of maladministration.

C. ERA’s allegedly wrong decision to publish the post occupied by the complainant and subsequently to recruit another Accounting Officer
Arguments presented to the Ombudsman

48. The complainant alleged that ERA wrongly decided to publish the post occupied by the complainant and subsequently to recruit another Accounting Officer.

49. In its opinion, ERA stated that the publication of a post did not necessary entail recruitment, as ERA reserved the right to publish posts in order to constitute reserve lists available for the recruitment of additional staff or replacement of staff that left ERA.

The Ombudsman's assessment

50. The Ombudsman understands ERA's above explanation as referring to its general policy of recruitment and regrets that it did not make more specific comments in regard to the complainant's present allegation.

51. Notwithstanding the above and on the basis of the evidence available, it appears that the alleged publication took place on 11 May 2007, that is, approximately five months after the complainant had had the conversation with the Executive Director also referred to in point 44 above. Given that it appears that, during this conversation, the complainant agreed to be transferred to another post, the publication of the post does not appear to be unreasonable or unfair.

52. There appears therefore to be no maladministration on the part of ERA as regards the complainant’s allegation.

D. The complainant’s claims
Arguments presented to the Ombudsman

53. The complainant claimed that he should be (i) offered a new contract or be allowed to complete his four-year contract as Accounting Officer (until 2009), and (ii) promoted in accordance with the standard procedures.

54. ERA stated that the decision to reassign the complainant in the interest of the service allowed him to preserve his grade, complete the four-year employment contract with ERA and possibly have an extension of its duration. ERA stated that, after numerous meetings and discussions with the complainant, which took place in the presence of staff representatives, he agreed to be transferred to the post of "Budget officer" with a defined job description, mission and duties. The complainant signed an addendum to his employment contract effective as from 1 December 2007.

55. ERA stated that, as regards the complainant’s claim to be promoted in accordance with the standard procedures, it shall indeed apply the standard procedures for promotion on the basis of a fair and equitable appraisal involving all staff, including the complainant.

The Ombudsman's assessment

56. As regards the complainant’s first claim, it appears that the complainant’s four-year contract was not interrupted by ERA but that, on the contrary, he signed an addendum to his employment contract which became effective as from 1 December 2007, albeit for a post other than Accounting Officer. Given that, in his observations, the complainant expressed his satisfaction with his new post (as also noted in point 21 above), the Ombudsman considers that there appears to be no grounds for further inquiries into this claim.

57. As regards the complainant’s second claim, in view of ERA's commitment to apply the standard procedures for promotion on the basis of a fair and equitable appraisal involving all staff, including the complainant, the Ombudsman considers that there appears to be no grounds for further inquiries into this claim.

E. Conclusions

On the basis of the Ombudsman’s inquiries into this complaint, as regards the complainant’s three allegations, there appears to be no maladministration on the part of ERA.

As regards the complainant’s two claims, there appears to be no grounds for further inquiries.

The Ombudsman therefore closes the case. The complainant and the Executive Director of ERA will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 23 September 2008

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(1) According to Article 2(8) of the Ombudsman's Statute, "No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)".

(2) See Case F-21/06 Da Silva v Commission, judgment of 28 June 2007 (not yet reported).

(3) Also see Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 38; Case T-133/89 Burban v Parliament [1990] ECR II-245, paragraph 27; and Joined Cases T-114/98 and T-115/98 Rodríguez Pérez v Commission [1999] ECR-SC I-A-97 and II-529, paragraph 32.

(4) The Ombudsman understands that the complainant lodged a harassment complaint with ERA, without specifying the author of the alleged moral harassment.

(5) The Ombudsman notes that, in his observations, the complainant did not specify when this meeting took place.