The background to the complaint

1. The complainant, an EU citizen, is a teacher who was seconded to a EuropeanSchool ('ES') in Brussels. For the purposes of her secondment, the complainant signed a specific work contract on secondment with her regular employer in her MemberState of origin.

2. Between March and November 2011, in view of the fact that she was about to give birth, the complainant exchanged several e-mails and letters with the Director and the Secretary-General of the ESs concerning the possibility of requesting parental leave immediately following her maternity leave, that is, after the birth of her child. In her letters, the complainant argued, in sum, that, although the Staff Regulations of the ESs ('SRES') do not provide for a right to parental leave, both the national law of the Member State she hails from, which applies to her employment contract, as well as European legislation, provide for such a right. In its replies, the ES considered that only the SRES govern the conditions of work of seconded staff and that national rules are not applicable.

3. On 20 September 2011, the complainant informed the Director and the Secretary-General of the ESs that her period of maternity leave would most likely begin in December 2011. She stated that she had obtained her national employer's consent to take parental leave after the end of her maternity leave. She therefore submitted a formal application to the ES, requesting parental leave following her statutory maternity leave. As grounds for her request, the complainant mentioned the law of her Member State, which provides for that right, and Council Directive 2010/18/EU of 8 March 2010, implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC[1] (the 'Directive'). Pursuant to the Directive, Member States should ensure that parents may, upon request, benefit from at least four months of parental leave. Member States had to transpose the Directive into national law before 8 March 2012, that is, before the end of the complainant's maternity leave.

4. By letters of 13 and 28 October 2011, the Secretary-General of the ESs stated that the Staff Regulations of the ESs applicable to seconded national staff did not provide for a right to parental leave and considered that neither the law of the complainant's Member State nor the Staff Regulations of EU officials, which do grant such a right, could apply to seconded staff of the ESs. Therefore, the Secretary-General informed the complainant that she was not entitled to parental leave.

5. In November 2011, the complainant approached the Commission's Directorate-General for Justice, Fundamental Rights and Citizenship concerning the matter.

6. On 3 January 2012, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The complainant, a teacher seconded to work in a European School, alleges that her right to parental leave is not recognised, thereby breaching Article 33(2) of the Charter of Fundamental Rights of the EU.

Claim:

The European Commission should ensure that the SRES are modified to reflect Article 33(2) of the Charter of Fundamental Rights of the EU. Until such time as those regulations are modified, the Commission should ensure they are interpreted and applied in accordance with the Charter.

The inquiry

8. On 26 January 2012, the Ombudsman opened an inquiry into the complaint and asked the President of the Commission to submit an opinion on the above allegation and claim. In his letter opening the inquiry, the Ombudsman acknowledged the efforts made by the Commission until then to investigate the issues raised by the complainant and expressed his hope that the Commission would complete its internal investigation in due time.

10. On 19 April 2012, the Commission submitted its opinion, which was forwarded to the complainant with an invitation to submit observations.

11. On 6 June 2012, the complainant submitted her observations.

The Ombudsman's analysis and conclusions

Preliminary remarks

12. The complaint concerns the conduct of an ES. The Ombudsman points out that he has consistently taken the view that the ESs are not an EU institution or body. The Ombudsman is therefore competent to deal with complaints concerning them only insofar as they are directed against the Commission. This is due to the fact that, in the Ombudsman's view, the Commission has a general responsibility as regards the European Schools, arising from the fact that it is represented in their Board of Governors and that the European Union contributes to the European Schools' funding. In any event, the Ombudsman's competence does not extend to matters of internal management of the European Schools[2].

A. Alleged refusal to recognise the complainant's right to parental leave and claim that the Staff Regulations of the European Schools should include such as right

Arguments presented to the Ombudsman

13. In her complaint, the complainant put forward that the law of her Member State, which is applicable to her employment contract, does provide for the right to parental leave. In fact, her national employer, who seconded her to the ES, agreed to her being placed on parental leave at the end of the maternity leave period. Moreover, the right in question is enshrined in EU law, in particular, in Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC[3], in the aforementioned Directive 2010/18/EU, and in the Staff Regulations applicable to EU officials and other agents of the European Union (the 'Staff Regulations').

14. In its opinion, the Commission stated that the ESs' system is managed on an intergovernmental basis under an international agreement to which the 27 Member States and the Commission, on behalf of all the EU institutions, are party. The Board of Governors is the ESs' decision-making body and it is composed of 27 Member States, the Commission and the European Patent Office, each of which has one vote, as well as a staff representative and a representative of pupils' parents. The Commission mentioned that decisions concerning the review of regulations for teaching staff have to be adopted unanimously[4]. In November 2011, the Commission requested the Board of Governors of the ESs to include in the agenda for its December meeting an item concerning the interpretation of the SRES in light of Directive 2010/18/EU. During that meeting, the Board of Governors mandated the ESs' Secretary-General to consider granting the right to parental leave to seconded staff members of the ESs. In order to draw up the proposal, a working group, of which the Commission formed part, was established.

15. The Commission further explained that it cannot intervene in individual cases such as the complainant's. The interpretation and application of Article 33(2) of the Charter, the management of seconded staff at the ESs and the interpretation and application of the SRES fall within the mandate of the Governors and the Secretariat-General of the ESs. In the event of disputes, matters should be brought before the Complaints Board. The Commission considered that it did its utmost to ensure that parental leave in line with Directive 2010/18/EU be included in the SRES. The amendment was to be approved by the Board of Governors in April 2012, thus allowing the complainant's application for parental leave to be accepted.

16. In her observations, the complainant confirmed that the amendment of the SRES concerning parental leave was approved by the Board of Governors on 14 May 2012 and came into force on 1 June 2012. Pursuant to this provision, the complainant applied for four months of parental leave from 1 September to 31 December 2012, and her request was granted. However, the complainant was unhappy about the fact that, at the end of her maternity leave, she had to return to work and was not allowed to take parental leave immediately, in accordance with the law of her MemberState. She added that the new text of the SRES does not provide for a genuine right to parental leave, but simply entitles staff members to make a request in this regard, which has to be approved by the ESs' Secretary-General and which may also be rejected. She also stressed that, under the law of her MemberState, parental leave can extend until the child is aged three, while the SRES only allow for four months' parental leave.

The Ombudsman's assessment

17. The present complaint concerns the situation of teachers seconded to a ES, whose employment is governed by the specific rules, namely, the SRES, adopted by the ESs' Board of Governors. Given that, during their period of secondment, teachers do not lose their status as employees of the national education system in their MemberStates of origin, their contracts of employment with the national employer remain governed by national law.

19. As regards the right to parental leave, which constitutes the core issue of the complaint, the national laws of the Member States were harmonised by Council Directive 96/34/EC, which obliged all Member States to lay down a right to parental leave of at least three months' duration[5]. At the time when the complaint was submitted, such provisions thus existed in all Member States[6]. Moreover, as of 8 March 2012, Directive 2010/18/EU raised the minimum duration of parental leave to four months.

20. The Ombudsman is, of course, not empowered to interpret or apply national law or to decide upon the rights and obligations that EU citizens may derive from it. Therefore, his assessment of the present case is not based on national legislation, but on the relevant provisions of EU law, and, in particular, the Charter of Fundamental Rights of the EU, which provides, in Article 33 concerning family life, that "[t]o reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child." Pursuant to Article 51 of the Charter, its provisions "are addressed to the institutions, bodies, offices and agencies of the Union".

21. When he opened his inquiry into the present complaint, the Ombudsman thus took the view that the Commission was bound by the provisions of Article 33 of the Charter in every aspect of its activity, including in its capacity as member of the Board of Governors of the ESs. The Ombudsman acknowledges, however, that the Commission is only one of 31 Board members, whose decision on the matter at hand required unanimity. Therefore, the Commission was manifestly not in a position actually to determine the Board's course of action by itself.

22. The Ombudsman is thus particularly pleased to see that, within the limits of its competencies as a member of the Board of Governors, the Commission took efficient action as soon as it became aware of the problem and responded positively to the complainant's grievances and the Ombudsman's inquiry. In particular, the Commission's contribution took the form of a request to the Board of Governors to place the issue of the SRES's amendment on the agenda of its next meeting, thereby initiating the process which led to the adoption of the amendments on 14 May 2012.

23. The amendments came into force on 1 June 2012. The new paragraph 3 of Article 42 of the SRES stipulates that "[a]t the written request of the member of staff and with the agreement of his or her seconding authority, the School may authorise suspension of the period of secondment for reasons of parental leave on the grounds of the birth or adoption of a child to take care of that child up to a maximum age of eight years". The period of suspension cannot extend the period of secondment.

24. Moreover, Article 42(3) lays down the conditions under which parental leave can be granted. First, the request must be submitted to the Director of the ES at least three months before the requested starting date, save for justified cases of emergency in which the period is reduced to four weeks. Second, during the suspension, the staff member is not entitled to any kind of remuneration from the ES. Finally, "notwithstanding national provisions imposing a longer minimum duration for parental leave, the suspension shall not exceed a maximum of four months per child and shall only be taken as a single block". Pursuant to Article 66(7) of the SRES, the member of staff may, during the suspension of the secondment period and under certain conditions, request to retain membership in the Sickness Fund.

25. It follows that, contrary to the situation which existed at the time the complaint was submitted to the Ombudsman, at present, the SRES do provide for the right to parental leave in a manner which is both reasonable and consistent with EU law, particularly the Charter. This is a very positive result which the Ombudsman warmly welcomes.

26. While acknowledging that, due to these amendments, she was granted parental leave for the period between September and December 2012, in her observations, the complainant nevertheless objected to the fact that parental leave (i) is not granted as a right, but must be requested and is subject to the ES's approval and (ii) is shorter (four months) under the SRES than under the law of her Member State (until the child is three years old). She also criticised the fact that she had to return to work at the end of her maternity leave, because the amendments to the SRES had not yet been adopted at the time.

27. As regards the first issue, the Ombudsman notes that the Framework agreement implemented by Directive 2010/18/EU provides, in paragraph 1 of its third Clause, that the right to parental leave may be submitted to "conditions of access and detailed rules [of application]", as long as the minimum requirements of the Agreement are respected. The Agreement further foresees that the employer may "postpone the granting of parental leave for justifiable reasons related to the operation of the organisation" (Clause 3(1)(c)) and "establish notice periods to be given by the worker to the employer when exercising the right to parental leave" (Clause 3(2)).

28. Therefore, the Ombudsman understands that, even in the EU legislation applicable to Member States, including the complainant's country of origin, parental leave is not shaped as an absolute right, but as one that is subject to certain conditions which enable both parties involved, that is, the employer and the employee, to accommodate their specific needs. Moreover, the specific conditions imposed by the SRES are not contradictory to those that the Directive enables Member States to establish or to those accompanying the same right in the Staff Regulations of EU officials.

29. In any event, the Ombudsman trusts that the governing bodies of the ES entrusted with the application of Article 42(3) of the SRES will make use of their power to authorise parental leave reasonably and will in no way hinder the exercise by the seconded experts concerned of this right, which is ultimately based on the provisions of the Charter.

30. As regards the duration of parental leave, the Ombudsman notes that there is no provision that obliges the ESs to establish a particular duration. The fact that the law of the complainant's Member State, or any other national law, provides for a longer period of parental leave does not render the provision of the SRES inappropriate. Indeed, the activity of seconded experts within the ESs, as well as their rights and obligations whilst working at the ESs, are governed by common rules that are equally applicable to all teachers, irrespective of their origin. Accepting that teachers who are seconded to the ESs may be treated differently by the ESs depending on the rights and obligations granted by their own national laws would most likely be incompatible with the principle of equal treatment. Seconded experts, whatever their origin, must be aware that their secondment may imply not only additional rights and benefits, but also additional obligations or, at least, certain modifications of the rights they enjoy in their Member States[7].

31. Finally, the Ombudsman regrets the fact that the complainant could not take parental leave immediately after her maternity leave, as she wished, because, at the relevant time (30 April 2012), the SRES had not yet been amended and she was not allowed to take parental leave on the basis of the law of her Member State, either. However, a review of the chronology of the case shows that the complainant approached the Commission for the first time in November 2011. That same month, the Commission requested the Board of Governors to include the issue of parental leave in its agenda for the December 2011 meeting. The Board of Governors mandated the Secretary-General to provide the Board, by April 2012, with its proposal on this matter. The working group established for this purpose met in January and February 2012. In order to submit a final proposal to the Board of Governors, the working group consulted the Joint Board of Inspectors[8] and the Budgetary Committee[9]. The Board of Governors supported the working group's proposal and, since the decision upon it required unanimity, decided to adopt it by written procedure.  The final decision was adopted on 14 May 2012.

32. From the above, it appears that the time taken in order to comply with the amendment procedure (several meetings, opinions, legal assessment and approval by unanimity) was necessary and proportionate. In any event, as stated above, the Ombudsman cannot review the Board of Governors' actions, but only the Commission's, and the latter clearly took all the necessary steps to ensure that the relevant rules were modified.

33. Finally, for the reasons provided in paragraph 30 of this decision, the Ombudsman does not share the complainant's view that she should have been allowed to take parental leave immediately after the end of her maternity leave on the sole basis of the law of her Member State.

34. In light of the foregoing, the Ombudsman concludes that the Commission, in its capacity as member of the Governing Board of the ESs, took reasonable and timely steps in order to comply with the complainant's request to correct the prior situation in which the SRES did not provide for a right to parental leave and to bring them in line with the provisions of the Charter and other provisions of EU law concerning parental leave. He therefore considers that no further inquiries are justified in this case.

35. Finally, the Ombudsman notes that the proposal for amendment of the SRES mentions that, although the Commission has not provided for specific rules concerning parental leave for seconded national experts, in practice, it allows those who wish to take such leave to request the suspension of their secondment. The Ombudsman commends the Commission for adopting this practice, which enables seconded national experts to enjoy their parental rights despite the lack of clear provisions in this regard. Since he has observed that virtually none of the EU institutions, offices, bodies and agencies which recruit seconded national experts has adopted specific rules concerning parental leave, the Ombudsman will consider introducing the relevant rules himself and encouraging others to do so. For this purpose, he might open an own-initiative inquiry in order to find out how EU institutions, offices, bodies and agencies deal with the issue in practice and, eventually, identify best practices in this regard.

B. Conclusions

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

There are no grounds to conduct further inquiries into this complaint.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 16 October 2012

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[1] OJ 2010 L 68, p.13.

[2] See Case 199/23.10.95/EP/B/KT (1996 Annual Report, pp. 35-36), available at: http://www.ombudsman.europa.eu/report96/pdf/en/rap96_en.pdf

[3] OJ 1996 L 145, p. 4.

[4] For all other decisions, only a two-thirds majority is required. However, a decision affecting the specific interests of a MemberState requires the consent of that Member State, and decisions on the closure of schools also require the approval of the Commission. The European Patent Office and the representatives of staff and parents vote only on certain matters.

[5] Clause 2(1) of the Framework Agreement implemented by the Directive states: "men and women workers have an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member states and /or management and labour."

[6] Study on "Parental leave in Council of Europe member States", page 17, available at: http://www.coe.int/t/dghl/standardsetting/equality/03themes/women-decisionmaking/CDEG(2004)14final_en.pdf

[7] In fact, the proposal for amendment of the SRES shows that the ES sought to strike a fair balance and to implement a set of rules that "takes into consideration the individual national rules on the one hand and establishes a general tailor-made framework for the European Schools on the other."

[8] The ES has two Boards of Inspectors, one for the primary and nursery sections and one for the secondary section. They supervise the education provided by the schools and are composed of one Inspector from each MemberState. The Inspectors regularly visit classes, issue directives to heads and teaching staff, meet periodically for discussions and submit proposals concerning syllabi, teaching methods and evaluation to the Board of Governors.

[9] The Budgetary Committee is composed of financial experts from the Member States who examine the financial implications of educational proposals and the budgets of individual schools and of the Secretariat-General. The European Commission and the European Patent Office are also represented in this Committee.