The background to the complaint

1. This case concerns the drafting of a performance evaluation report ('PER') concerning a staff member who had lodged a harassment complaint with the European Medicines Agency ('EMA').

2. The complainant has worked for EMA since 1997. The complainant stated that, following an important restructuring within EMA, a new supervisor was appointed for her team. According to the complainant, from June 2011 onwards, her manager started psychologically to harass her. Thus, on 26 January 2012, the complainant lodged a psychological harassment complaint against her manager.

3. On 9 March 2012, the complainant received her PER for the period from 30 June 2009 to 30 June 2011.

4. On 14 March 2012, the complainant lodged a complaint concerning her PER, pursuant to Article 90(2) of the Staff Regulations.

5. On 16 April 2012, EMA informed the complainant that, having thoroughly considered the results of the investigation into the allegations of psychological harassment, no further action would be taken and the case was closed. EMA informed the complainant that she could lodge a complaint pursuant to Article 90(2) of the Staff Regulations against this decision.

6. It appears from the information in the Ombudsman's file that the complainant was on sick leave from 30 January 2012 to 1 May 2012, on annual leave from 2 May 2012 to 25 June 2012, and on unpaid leave for a period of one year starting on 26 June 2012. According to the complainant, due to the traumatic nature of these events, she had decided to take one year of unpaid leave.

7. In this context, on 21 May 2012, the complainant turned to the Ombudsman. In particular, the complainant contended that EMA had terminated her access to her professional e-mail account although she was on annual leave until 25 June 2012. For this reason, the complainant argued, she was unable to provide supporting evidence for her case. Moreover, although she had requested a copy of the final report on which the decision rejecting her psychological harassment complaint was based, she had not received it yet.

8. In view of this, the Ombudsman's services initiated an informal procedure inviting EMA to address the complainant's concerns regarding access (i) to her professional e-mail account, and (ii) to the final report on which EMA's decision not to take further action in the complainant's case was based.

9. On 29 June 2012, EMA rejected the Article 90(2) complaint concerning the complainant's PER.

10. On 9 July 2012, EMA provided the Ombudsman with its reply, enclosing a copy of an e-mail sent to the complainant on 22 May 2012, informing her that she would have access to her professional e-mail account to print and make copies of documents a few days later. Moreover, EMA provided a copy of the letter sent to the complainant on 29 May 2012, which enclosed the final report concerning the harassment complaint.

11. The Ombudsman's services forwarded EMA's reply to the complainant for her observations, which she provided on 28 August 2013.

12. Following a request from the Ombudsman's services, on 4 and 18 October 2012, the complainant provided certain additional documents.

The subject matter of the inquiry

13. On 10 December 2012, the Ombudsman opened an inquiry into the following allegation:

Allegation:

The complainant's performance evaluation report ('PER') was unfair.

14. In this respect, the Ombudsman noted that the harassment complaint predated the PER and that the person directly concerned by the harassment complaint (i.e., the complainant's supervisor) participated in the drafting of the PER, together with two other persons who were also involved in the harassment investigation.

15. As regards the allegation and related claim that EMA failed properly to handle the complainant's request for access (i) to her professional e-mail account, and (ii) to the final report on which EMA's decision not to take further action in the complainant's case was based, the Ombudsman considered that EMA had already addressed these issues. Thus, there were no grounds for further inquiries as regards this aspect of the complaint.

16. As concerns the allegation and related claims that EMA failed to prevent the psychological harassment which the complainant suffered, the Ombudsman concluded that this aspect of the complaint was inadmissible. This was due to the fact that the complainant did not lodge an Article 90(2) complaint against the decision to close the harassment investigation, although she had been informed of this possibility by EMA.

The inquiry

17. On 25 March 2013, EMA provided its opinion on the above allegation, which was forwarded to the complainant for her observations.

18. On 24 April 2013, the complainant submitted her observations.

The Ombudsman's analysis and conclusions

A. Allegation that the complainant's PER was unfair

Arguments presented to the Ombudsman

19. In its opinion, EMA said that the PER reflected the complainant's work performance from 30 June 2009 to 30 June 2011. As it had already admitted in its decision rejecting the Article 90(2) complaint, EMA acknowledged that the timeline for preparing the PER should have been better respected. It was regrettable that the PER was not finalised within the appropriate deadline and apologised to the complainant for this.

20. However, performance evaluation discussions did take place between the complainant and her supervisor on 5 July 2011, and regular feedback on her performance had been given to her during monthly bilateral meetings or weekly team meetings during the reference period. Therefore, in EMA's view, there was sufficient supervision and management of the complainant's performance on an ongoing basis by the complainant's supervisor.

21. Thus, when EMA assessed the complainant's Article 90(2) complaint, it concluded that the PER was fair and accurate, and neither unduly negative nor retaliatory as the complainant argued.

22. EMA acknowledged that the complainant's manager and another superior were interviewed during the harassment investigation. Moreover, the investigator in the harassment case was another superior of the complainant, who also took part in the drafting of the PER. However, EMA emphasised that they prepared the PER in a responsible and unbiased manner.

23. EMA further noted that the harassment investigation was ongoing at the time when the PER was being finalised. These were two separate formal procedures which had to be completed within strict deadlines. Thus, it would have been inappropriate to suspend either of them pending the outcome of the other.

24. Moreover, EMA enclosed a copy of its Guide to Performance Evaluation Reports (the 'Guide'). It added that it is in line with its practice that the supervisor of a staff member is responsible for drafting the PER.

25. In her observations, the complainant rejected EMA's arguments. In essence, the complainant's position was that, as argued in her Article 90(2) complaint, her PER was "partially incorrect, unduly negative and retaliatory in nature" as a result of her psychological harassment complaint.

26. She noted that the PER in question was in sharp contrast with her previous PERs, which were highly positive and referred to a large extent to the same or similar duties. The complainant also pointed out that she had received the PER 8 months after the end of the reference period, despite her numerous reminders to her supervisor.

The Ombudsman's assessment

27. As a starting point, the Ombudsman notes that Article 41(1) of the Charter of Fundamental Rights establishing the right to good administration provides that:

"Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union."

28. Pursuant to Article 43 of the Staff Regulations, "[t]he ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution".

29. It appears from EMA's Guide that evaluations are carried out every two years.[1] The Guide indicates that the PER "provides an objective summary assessment of the staff member's performance and achievements."[2]

30. It should be noted that, within the EU institutions, the PER is usually prepared by a 'reporting officer' and an 'assessor'. Moreover, other superiors may be consulted, if appropriate. In relation to this, EMA's Guide establishes that "[a]s a general principle the reporting officer shall be the next line manager or delegated line manager of a staff member and the assessor shall be the next higher level line manager".[3] However, the Guide points out that "[t]he assessor may delegate the reporting officer role within the section if required."[4]

31. Moreover, "[a] performance evaluation report must be prepared when it falls due even where a staff member is away from the office at the time on maternity leave, long term sick leave or leave without pay."[5]

32. According to the Guide, "[t]he performance evaluation report should be as objective as possible [...]. The assessor should watch out for any sign of partiality and verify that the reporting officer's judgment is based on professional grounds."[6]

33. In relation to the present matter, the EU Courts have consistently held that staff reports, although difficult for a court to review, can be vitiated by procedural errors, manifest errors of substance and misuse of discretionary power.[7]

34. Moreover, the Ombudsman has consistently taken the view that principles of good administration and, in particular, the principle of equal treatment, require that the EU institutions ensure that no actual, potential or apparent conflicts of interest affect their work.[8]

35. In this context, the Ombudsman has considered it helpful to refer to the OECD Guidelines for Managing Conflicts of Interest in the Public Service,[9] which provide the following definition of 'conflict of interest':

(i) An actual conflict of interest exists when there is a conflict between a
public official's public duty and his/her private interests, such as where the public official has private interests which could improperly influence the performance of their official duties and responsibilities.

(ii) An apparent conflict of interest can be said to exist where, despite the
fact that there is no actual conflict of interest, an impression exists that a public official's private interests could improperly influence the
performance of his/her duties.

(iii) A potential conflict arises where a public official has private interests which are such that a conflict of interest would arise if the official were to become involved in relevant official responsibilities in the future.

36. As regards the present case, the Ombudsman considers that the complainant's contention that the PER was "unduly negative and retaliatory in nature" amounts in essence to an allegation of a manifest error and/or a misuse of powers in its preparation. In contrast, EMA argued that the PER was prepared in a "responsible and unbiased manner".

37. The Ombudsman notes that neither party has submitted evidence to substantiate their respective positions. In such circumstances, the Ombudsman does not have a sufficient basis for knowing whether the PER was or was not vitiated by a manifest error or a misuse of powers. In other words, it cannot be established whether the PER was accurate and fair, as contended by EMA, or inaccurate, unfair and motivated by punitive considerations, as the complainant argued.

38. However, it cannot be disputed that the complainant lodged a complaint for psychological harassment against the 'reporting officer' (i.e., her direct manager). Moreover, it is clear from the documents in the file that the 'assessor' for the purposes of the PER was also involved in the harassment investigation. Indeed, although this person was not accused by the complainant of psychological harassment, he strongly denied the accusations made against her direct manager and strongly supported the position of the manager. Finally, the investigator in the harassment investigation, who ultimately proposed the rejection of the harassment complaint, also participated in the preparation of the PER.

39. The Ombudsman notes that EMA's choice of the members of staff who prepared the PER was in line with the general principles established in its Guide (point 30 above). However, as the Guide itself also recognises, the PER aims at providing an objective assessment of the performance of a member of staff. Moreover, the Guide recognises that the relevant roles can be delegated "if required".

40. Having regard to the present circumstances, in which a psychological harassment investigation was being conducted simultaneously and involved the same persons as those responsible for the preparation of the PER, the Ombudsman takes the view that, in line with the principles of good administration, EMA should have entrusted the preparation of the PER to other members of staff not affected by or involved in the harassment investigation.

41. This would have prevented the emergence of at least an apparent conflict of interest. Indeed, it is difficult to dispel the impression that the simultaneous involvement of the members of staff in question in the harassment investigation could have compromised them in the performance of their duties, and in particular their objectivity and fairness, in the preparation of the PER.

42. EMA's argument that the harassment investigation and the preparation of the PER were two separate formal procedures which had to be completed within strict deadlines is unconvincing. The Ombudsman agrees with EMA that it would have been inappropriate to suspend either of them pending the outcome of the other. In practice, in line with the principles of good administration and as provided for in EMA's own Guide, EMA should have entrusted the preparation of the PER to other members of staff not involved in the harassment investigation.

43. In view of the foregoing, the Ombudsman concludes that EMA has committed an instance of maladministration in the present case. In such a case, the Ombudsman could consider proposing a friendly solution or addressing a draft recommendation to the institution concerned. It should be noted, however, that the complainant did not claim that EMA should prepare a new PER which is not vitiated by irregularities. Moreover, this did not emerge either from the complainant's observations. It should also be noted, according to the information provided by the complainant, that she has left EMA in the meantime. In these circumstances, the Ombudsman considers that it is not appropriate to propose a friendly solution or to make a draft recommendation. The Ombudsman will therefore make a critical remark instead.

44. As regards the complainant's argument that the PER was not prepared in due time, the Ombudsman notes that EMA's Guide is clear in this respect insofar as it indicates that a PER must be prepared when it falls due (i.e., every two years). Moreover, the Court has ruled that delays in the preparation of PERs are not compatible with the principles of good administration.[10]

45. The Ombudsman notes that EMA has admitted this point and has apologised for it. Moreover, there are no indications in the Ombudsman's file that the complainant was adversely affected (for instance, as regards promotions) by the delay of approximately 8 months. In such circumstances, the Ombudsman takes the view that there is no need for further action in relation to this aspect of the complaint.

B. Conclusions

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following critical remark:

It is good administrative practice to ensure that performance evaluation reports are prepared by members of staff who are not affected by any actual, potential or apparent conflict of interest. In the present case, EMA failed to prevent an apparent conflict of interest. This constitutes maladministration.

The complainant and EMA will be informed of this decision.

Emily O'Reilly

Done in Strasbourg on 28 January 2014