THE BACKGROUND TO THE COMPLAINT

1. A private consultancy company entered into a contract with the authorities of a non-EU country ('the national authorities') for the purposes of running a programme ('the Programme') financed by the European Commission.

2. A Programme Support Unit was established to implement the Programme. The said Unit has four long-term posts, namely, team leader, the team leader's assistant, a grants expert and the grants expert's assistant. The team leader took up his position in January 2008. The complainant entered into a contract with the consultancy company to work as the grants expert on the Programme. He took up his duties on 11 February 2008.

3. As of 10 April 2008, a number of meetings took place between the Commission, the national authorities, the Programme Support Unit and the consultancy company to discuss concerns about various aspects of the Programme.

4. On 23 October 2008, the complainant received a letter terminating his contract as a grants expert. The team leader's contract was also terminated. On 24 October 2008, the complainant turned to the Ombudsman challenging the Commission's consent to his dismissal.

THE SUBJECT MATTER OF THE INQUIRY

5. The Ombudsman opened an inquiry into the complainant's allegation that the Commission allowed him to be unfairly dismissed from his position as grants expert. The inquiry also covered the claims that the Commission should:

1. apologise to the complainant; and
2. compensate the complainant for direct costs and loss of income.

6. In his letter opening an inquiry into the complaint, the Ombudsman also asked the Commission to explain the exact decision-making process relating to the complainant's dismissal and to describe the efforts it made to ensure that, as stated in its letter of 10 November 2008, the complainant's rights were respected.

THE INQUIRY

7. After receiving the complaint of 24 October 2008, as well as further information submitted by the complainant in November and December 2008, the Ombudsman opened an inquiry on 17 December 2008. The Commission requested an extension of the deadline to submit its opinion on the complaint, which the Ombudsman granted. On 20 April 2009, the Commission submitted its opinion, which was then forwarded to the complainant. The complainant submitted observations on 15 June 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. The allegation that the Commission allowed the complainant to be unfairly dismissed

Arguments presented to the Ombudsman

The complaint

8. According to the complainant, the concerns that the national authorities and the Commission Delegation had about the Programme were all in the area for which the team leader was responsible. The decision to replace the team leader, therefore, came as no surprise to the complainant. However, the complainant never received any criticism, be it oral or written, concerning his area of responsibility (which related to the grant scheme). Nevertheless, the consultancy company also terminated his contract. The consultancy company informed him that, while the national authorities had requested the termination of his contract, the request originated from the Commission Delegation (with which the national authorities wished to maintain good relations).

9. The complainant argued that he does not know who decided to replace him and why he was replaced. He was not given the right to defend himself, or even made aware of the allegations against him.

The Commission's opinion - background

10. In its opinion on the complaint, the Commission explained that the Programme was implemented by a "private indirect decentralised management mode". This means that the contracting authority, that is, the national authorities, entered into a service contract with a third party. The third party was the private consultancy company, which provided services relating to the financial implementation of the programme. The Commission signed a Financing Agreement with the national authorities, but had no contractual link with the consultancy company.

11. The Commission explained that, at an early stage, it became clear to the Commission Delegation and the national authorities that the Programme Support Unit was not working properly. Indeed, the complainant clearly shared this view: he stated that "quite early it became apparent that the (Programme Support Unit) was struggling". According to the Commission, while it is understandable that a newly arrived team needs initial support and guidance, its results for the first months of the project were unsatisfactory. This was in spite of support and guidance from the national authorities and the Commission.

12. According to the Commission, the national authorities and the Commission Delegation first raised their concerns at a meeting with the team leader and the grants expert on 9 April 2008. These concerns were also communicated to Mr X., who worked for the consultancy company. After the meeting on 9 April 2008, the national authorities asked Mr X. to come to the non-EU country concerned to deal with performance concerns relating to the Programme Support Unit. Following Mr X.'s visit, it was decided to give the team until mid-August 2008 to improve its performance. It would then be decided whether to continue with the existing team or to change personnel.

13. The Commission concluded that all the arguments put forward by the complainant in his complaint to the Ombudsman suggest that the team did not function properly from the beginning of the project. This was one of the main reasons for the slow progress of the programme. This state of affairs was confirmed by a document drafted by Mr X. after his first visit to the non-EU country concerned. The main finding of that document was that:

"team cooperation is not optimal, i.e. communication blockage/distortion between team members, Delegation and distribution of work not optimal, work load of team members not yet optimally balanced, not yet sufficient focus on common objective, difficulties to achieve consensus on certain approaches and concepts."

The Commission's opinion - the decision making process

14. According to the Commission, it was the consultancy company that suggested to have the grants expert replaced. This suggestion was made in a letter from the consultancy company, which stated that the team was not functioning properly[1]. In its letter, the consultancy company presented three alternative solutions, two of which envisaged the replacement of the grants expert.

15. Since the Commission was not a party to the contract between the national authorities and the consultancy company, it could not have asked for experts to be replaced.

16. It was clear from the national authorities' answer to the consultancy company, dated 16 October 2008, that the national authorities preferred the solution where both the team leader and the grants expert would be replaced[2]. The national authorities wrote this letter, which summarises the conclusions reached following discussions with all parties involved, after Mr X. had visited the non-EU country concerned for a second time.

17. The Commission considered that, if, as alleged by the complainant, he did not know the reasons for his dismissal, then the consultancy company must have failed to inform him in this regard. The Commission has no contractual link with, and hence no contractual obligation towards, the consultancy company or its experts. The institution also has no right to intervene in the contractual relationship between the consultancy company and the complainant and it is not aware of the contractual provisions governing that relationship. To the extent that the consultancy company found that its team did not function properly and made proposals to correct this problem, it was for the consultancy company to manage the consequences of these proposals with its staff.

18. The main interest of the Commission was to ensure that the programme was properly implemented and that results were delivered as foreseen. However, the Commission was also interested in the protection of the rights of the employees working on projects. It, therefore, wrote a letter to the consultancy company asking for the complainant to be informed about his situation.

19. The Commission also argued that it promptly answered the complainant's e-mails and letters. The complainant's e-mail of 12 October 2008, in which he expressed concerns regarding his possible dismissal, was replied on the same day. In his reply, the Head of Delegation assured the complainant that all the issues raised would be forwarded to the national authorities and would be taken into consideration during the meeting which was scheduled to take place the next day. The Commission underlined that it never asked for the grants expert to be replaced. Taking into consideration the consultancy company's suggestions, the Commission Delegation expressed the view that a solution would only be fair if the responsibilities of the team leader were taken into account. These aspects were discussed with the national authorities, which concluded that both experts should be replaced.

20. On 30 October 2008, the complainant wrote to the Head of Delegation, complaining that the decision making process regarding his dismissal was not transparent and that his rights had not been respected. The Head of Delegation replied on 10 November 2008, explaining that it was the consultancy company which had suggested the personnel changes. The Head of Delegation also explained that the concerns about the team, expressed by the national authorities and supported by the Commission Delegation, were "focused on problems in delivering outputs and aimed at getting a team that could work together for a maximum of performance". The professional capabilities of the complainant were not questioned. The Head of Delegation expressed his regrets about the impact that the problems concerning the project had had on the complainant personally. The Head of Delegation also wrote to the consultancy company, advising it to respect the complainant's rights as an employee and to answer the points raised by the complainant.

21. The Commission does not consider that it has committed an instance of maladministration. There are consequently no grounds for presenting apologies or awarding compensation. Any request for compensation should be settled with the consultancy company, the complainant's employer.

The complainant's observations

22. In his observations, the complainant acknowledged that the team did not function. He did not consider, however, that he was responsible for this state of affairs.

23. According to the complainant, the Commission was involved in the decision to dismiss him. E-mails sent in October 2008 and the meeting between the national authorities and the Head of Delegation on 13 October 2008 indicate the Commission's involvement. The Commission could even be viewed as the decision-maker. In its e-mail of 12 October 2008, the Commission does not contradict the complainant's statement that he had been informed that it was the Commission Delegation that had initiated his dismissal. Rather, it could be argued that they agreed with the complainant's statement.

24. On 9 October 2008, Mr X. informed the complainant that he was going to be replaced. This was before Mr X. met the Commission Delegation or the national authorities. The decision to dismiss him may, therefore, have been agreed with the Commission Delegation already in September 2008. On 10 October 2008, Mr X. informed the complainant that he had met the programme manager from the Commission Delegation in the morning, who had insisted that both the team leader and the grants expert should be replaced. In the afternoon, Mr X. met the national authorities. According to Mr X., the national authorities stated that, if they were to decide to replace both the team leader and the grants expert, this would not be a professional decision but a political one, in order to maintain good relations with the Commission Delegation. On 13 October 2008, there was a meeting between the Head of the Commission Delegation and the national authorities. According to the complainant, this was the meeting during which the national authorities were finally persuaded that the complainant should be replaced. To the complainant's knowledge, the consultancy company was not even represented at the meeting. There is no evidence that the Commission made any efforts to protect the complainant's rights during that meeting. After the meeting, the national authorities informed Mr X. that both experts should be replaced. The reality is that the national authorities decided practically nothing on its own. Almost everything was decided by the Commission Delegation.

25. The complainant argued that Mr X. and the team leader were old friends and that they believed they could save the team leader by sacrificing the complainant. The national authorities were against this solution. However, the Commission Delegation insisted. In the complainant's view, the solution to dismiss both senior experts at the same time was not conducive to good programme performance.

26. The complainant had hoped to gain clarifications from the Commission as to what he should have done differently, or what actions the Commission expected of him in order to ensure the success of the programme. Unfortunately, no such clarifications were made. The complainant cannot see that the Commission did anything to protect his rights prior to his dismissal. The Commission also appears to be unaware of any other rights than those of an employee. The complainant wants his rights as a human being and as an EU citizen to be respected.

The Ombudsman's assessment

27. The Ombudsman notes that all parties involved in the Programme appear to agree that the Programme Support Unit, that is, the team whose task it was to implement the Programme, did not function properly. The Commission argues that the complainant's professional capabilities were not questioned. However, the measures taken were aimed at "getting a team that could work together".

28. In the Ombudsman's view, ensuring that teams function well is an important objective of an effective administration. Whether a team functions well is not only dependent on the professional capabilities of individual team members - other factors also play an important role. These factors include whether specific team members can work well with other specific team members.

29. It may, therefore, be necessary to restructure a team in order for a team to function properly.

30. Since the functioning of a team is a legitimate reason for staff reorganisation within the Community institutions, the same should apply in the context of programmes funded by the Community.

31. In light of the above, the Ombudsman finds that the fact that the Programme Support Unit did not function properly constituted a valid reason for replacing team members.

32. However, in the context of such reorganisation, it would clearly not be in line with the principles of good administration for the Commission to attempt to oblige a party (regardless of whether that party has a contractual link with the Commission or not) to do something that would be illegal or in breach of contractual obligations.

33. In that regard, the Ombudsman first notes that he has not been provided with any concrete evidence to show that the complainant was dismissed at the Commission's initiative. In sum, no evidence has been provided to show that the Commission attempted to oblige the consultancy company (directly or through the national authorities) to dismiss the complainant. In any case, no argument or evidence has been provided to the Ombudsman suggesting that the complainant's dismissal was illegal or in breach of his contract with the consultancy company.

34. The Commission answered the complainant's e-mails and letters promptly. In doing so, it explained that it would bring the complainant's concerns pertaining to the dismissal to the attention of the national authorities. It further suggested that, in the first place, he should seek redress from his employer. This appears to have been the appropriate action and advice to give.

35. On the basis of the above, the Ombudsman does not find that the Commission committed an instance of maladministration in relation to the complainant's dismissal.

B. The complainant's claims

The Ombudsman's assessment

36. Given the Ombudsman's conclusions in respect of the complainant's allegation, the claim that the Commission should apologise to the complainant and compensate him for his direct costs and loss of income must fail.

C. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no instance of maladministration in relation to the present complaint.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 18 November 2009

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[1] In its opinion, the Commission states that, given the fact that the document in question does not belong to the Commission, but to a third party, and taking into account the sensitive nature of the information it contains, disclosure of the document could harm the commercial and personal interests of the persons concerned by it. For these reasons, the Commission considers the document as confidential and places it at the Ombudsman's disposal, should he consider that an inspection of the file is required.

[2] See footnote 2.