Dear Mrs B.,

On 25 January 2000, you lodged a complaint with the European Ombudsman concerning the non-renewal of your auxiliary contract with the European Commission.

On 1 March 2000, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 17 July 2000. I forwarded it to you with an invitation to make observations, which you sent on 30 August 2000. I asked the Commission for further information on 4 October 2000. The Commission replied on 21 December 2000, and I forwarded its reply to you with an invitation to make further observations, which you sent on 15 February 2001.

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

THE COMPLAINT

In summary, the facts according to the complainant were as follows:

From 1994 to 1999, the complainant worked as an employee of various companies providing services to Commission DG V (today part of DG Health and Consumer Protection). Following the scandals at the Commission in 1999, contracts of this type were not renewed. However, personnel who had worked on Commission premises for less than three years were offered auxiliary contracts for five months from 1 August 1999 to 31 December 1999, with the possibility of renewal up to a maximum of one year. On 20 December 1999, the complainant and others in the same position received an e-mail from the assistant to the Director of Unit F4 of DG V, which stated that her auxiliary contract would be prolonged from 1 January 2000 to 31 January 2000. However, when she returned to work at the Commission on 3 January 2000, she was told to leave the Commission's premises, following the refusal of the financial controller to renew her contract.

In her complaint to the Ombudsman, the complainant criticised the attitude adopted by the Commission towards workers under contract and alleged that the non-renewal of her auxiliary contract was arbitrary and unfair. She claimed that she had worked 110 days on Commission premises and that this number of working days was therefore in accordance with the rule laid down in the Commission's code of conduct concerning the maximum length of time that external staff may work on Commission premises. She also claimed that the contracts of other persons with the same length of service off Commission premises had been renewed.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission stated that an ad hoc check in June 1995 revealed that some employees, including the complainant, were working on Commission premises although their contract required them to work off Commission premises. Consequently, when a request was made to prolong the complainant's auxiliary contract, the Commission considered that the complainant had worked in a mixed way, both on and off Commission premises, and that the number of days worked exceeded the three-year rule. Following this assessment, the Commission did not prolong the complainant's auxiliary contract.

The Commission also explained that the e-mail informing the complainant of the prolongation of her contract had been sent to her in error. The Commission expressed regrets for creating false expectations and offered to pay the complainant an amount equivalent to the net salary of an Auxiliary agent in January 2000 as compensation.

The complainant's observations

In her observations, the complainant noted that the Commission had acknowledged and offered compensation for the non-renewal of her auxiliary contract for the month of January 2000. However, as regards the number of working days on Commission premises, she maintained her complaint. She pointed out that her auxiliary contract at DGV/F4 was for a maximum period of 12 months and claimed that the quota of working days was therefore sufficient. Furthermore, the Commission services considered that the ratio between the days worked on and off Commission premises was 50:50, whereas DG IX (personnel) had established a quota of 110 days worked on Commission premises, which implies a more favourable ratio.

Further inquiries

In October 2000 the Ombudsman asked the Commission to reply to the points made in the complainant's observations.

In response, the Commission first recalled that all auxiliary contracts are established for a maximum of one year, taking into consideration Art. 52 of the "Conditions of Employment of other Servants" and the principle of annuality of the budget.

As regards the 50:50 ratio between the days worked on and off Commission premises, the Commission said that it was a claim made by the complainant. Following checks in 1995, the Commission services considered that the services carried out by the complainant were of a mixed nature until 31 December 1999. The Commission further pointed out that, according to its Code of Conduct, the duration of a contract for any person classified as an external member of personnel, including auxiliaries, cannot as a general rule exceed three years. It is for this reason that the appointing authority did not prolong the complainant's contract beyond 31 December 1999.

In observations on the Commission's reply, the complainant pointed out that the Commission's reply had not dealt with the calculation of the number of days that she had worked on Commission premises. She also recalled that, at the time she was employed by the companies retained by DG V, she had a contract to work off Commission premises, and that the DG V services did what was necessary to comply with the terms of her contract. She also pointed out that she was not responsible for the mixed nature of her work, since it was her superiors or colleagues who were officials who required her to go back and forth to the premises of the Commission.

THE DECISION

1. Non-renewal of an Auxiliary contract

1.1 The complainant alleged that the Commission's refusal to renew her auxiliary contract was an arbitrary decision. She claimed that she had worked 110 days on Commission premises and that this number of working days was in accordance with the rule laid down in the Commission's code of conduct concerning the maximum length of time that external staff may work on Commission premises. She also pointed out that her auxiliary contract at DGV/F4 was for a maximum period of 12 months for which the quota of working days established by DG IX was sufficient.

1.2 In its opinion, the Commission stated that an ad hoc check in June 1995 revealed that some employees, including the complainant, were working on Commission premises although their contract required them to work off Commission premises. Consequently, when a request was made to prolong the complainant's auxiliary contract, the Commission considered that the complainant had worked both on and off Commission premises, and that the number of days worked exceeded the three-year rule. Following this assessment, the Commission did not prolong the complainant's auxiliary contract.

1.3 The Commission also explained that the e-mail informing the complainant of the prolongation of her contract had been sent in error. The Commission expressed regrets for creating false expectations and offered to pay the complainant an amount equivalent to the net salary of an Auxiliary agent in January 2000 as compensation.

1.4 The Ombudsman notes that the Commission has not replied to the complainant's allegation that she was treated differently from others in the same position. However, the complainant did not provide sufficient evidence to justify further inquiry into this allegation.

1.5 The Ombudsman also notes that auxiliary contracts are governed by the Staff Regulations which provide that the employment of auxiliary staff shall cease, where the contract is for a fixed period, on the date stated in the contract. The Ombudsman therefore considers that the complainant had no right to expect that her contract would be prolonged beyond the period of one month foreseen in the e-mail sent to her. Since the Commission has apologised to the complainant and offered compensation for the failure to renew her contract, the Ombudsman considers that no further inquiries into the complaint are justified.

2. Conclusion

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

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

Yours sincerely,

 

Jacob SÖDERMAN