Dear Mr J.,

On 2 March 2001, you made a complaint to the European Ombudsman against the European Commission, DG Personnel and Administration, concerning the handling of an incident of violence at the workplace.

On 30 March 2001, I forwarded your complaint to the President of the Commission. The Commission sent its opinion on 19 June 2001, and I forwarded it to you with an invitation to make observations, which you sent on 9 August 2001. Your observations were forwarded to the Commission with a request to submit further information. On 30 January 2002, the Commission replied to the request for further information. Its reply was forwarded to you with an invitation to make observations, which you sent on 25 March 2002.

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

THE COMPLAINT

The complainant works at the European Commission. According to the complainant, the relevant facts are as follows:

On 15 March 2000, the complainant's superior kicked him in the back. The complainant made a statement about the incident to the Protocol and Security Department of the Commission. On 6 April 2000, a disciplinary procedure concerning the incident was opened.

On 30 October 2000, the complainant made an application under Article 24 of the Staff Regulations to cover his medical expenses resulting from the incident. According to the complainant, the Commission has not dealt with his application.

On 30 October 2000, the complainant applied, under Article 90 of the Staff Regulations, for access to documents relating to the incident. As he received no reply, the complainant renewed his application on 7 December 2000.

On 1 February 2001, the complainant asked to be informed of the situation of the disciplinary procedure initiated on 6 April 2000, but without success. On 15 February 2001, the disciplinary procedure was closed without further action.

In his complaint to the European Ombudsman, the complainant asked the Ombudsman to inquire whether the administrative and disciplinary procedures of the European Commission have been appropriate and apt to ensure equal treatment of the parties.

Moreover, the complainant alleged that the Commission failed to provide him with assistance under Article 24 of the Staff Regulations, as the Commission has not dealt with the application he made under the said Article to cover medical expenses due to the incident. The complainant also alleged that the Commission failed to provide him with assistance in legal matters under the same provision.

Furthermore, the complainant alleged that the Commission wrongly denied him access to the documents relating to the incident, which he requested under Article 90 of the Staff Regulations. The complainant argued that, as a result, the incident could not be dealt with in a court as a criminal matter. He also argued that the Belgian authorities do not have access to the Commission premises without authorisation.

Finally, the complainant claimed access to all documents relating to the incident. In this connection, the complainant referred to Article 9 of Regulation 45/2001.

THE INQUIRY

The Commission's opinion

As regards the alleged lack of medical coverage under Article 24 of the Staff Regulations, the Commission stated in its opinion that the complainant's accident report was sent to the Sickness Insurance Unit on 10 October 2000. The procedure under the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease was initiated. On 19 March 2001, the Sickness Insurance Unit decided that, under Articles 72 and 73 of the Staff Regulations, the expenses incurred by the complainant as a result of the incident qualified for a full reimbursement, the payment of which was subsequently made to the complainant.

As to the question of whether the administrative and disciplinary procedures have been appropriate and apt to ensure equal treatment of both parties, the Commission stated that, in order to ensure a balanced approach, both parties were heard at length. As a result of the inquiry, the complainant's superior was considered responsible for the incident and disciplinary action was taken against him.

Finally, the Commission considered that it was unable to fulfil the complainant's request for access to the documents related to the incident. The Commission assumed that the request was for access to statements made by the complainant's superior. The Commission argued that such statements made within a disciplinary procedure are confidential in nature and thus access could be granted to the complainant only if this was in the interests of his right of defence.

The complainant's observations

In his observations, the complainant maintained his complaint. According to the complainant, the Commission is not competent to handle a criminal case and by denying access to the documents relating to the incident on false grounds it is preventing the matter from being taken to the competent national authority.

The complainant also alleged that the Commission's action is inconsistent with Human Rights conventions, including Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union. The complainant further argued that Articles 86 to 89 of the Staff Regulations are not in conformity with said Article 47, as they deny the right of public trial, and thus the Staff Regulations should not be applied when dealing with criminal matters. The complainant was of the view that the hearing of the parties does not in itself guarantee an impartial handling of the case and equal treatment of the parties.

According to the complainant, the Commission did not follow previous legal practice in which a violent offence resulted in dismissal(1). The complainant argued that in this matter the victim, i.e. the complainant, was punished by assigning him against his will to a new post and by denying him assistance in legal matters under Article 24 of the Staff Regulations. The complainant also argued that the Commission has disregarded international norms against violence at the workplace and failed to follow Community law on the position of the victim. According to the complainant, the fact that a person who is known to be violent is allowed to continue his work violates the duties of the employer.

The complainant submitted together with the observations a document he had drafted concerning the proper handling of violence at the workplace.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

On 30 October 2001, the European Ombudsman sent the complainant's observations to the Commission, together with a request for further information about the disciplinary action undertaken in the case.

The Commission's complementary opinion

As regards the disciplinary action taken, the Commission repeated its position, according to which both parties were duly heard and that the complainant's superior was considered responsible for the incident.

The Commission stated that the following procedural steps had been taken against the complainant's superior:

- the Security Service launched inquiries after the incident of 15 March 2000 by hearing two witnesses on 3 April 2000;

- the Appointing Authority opened a disciplinary procedure against the complainant's superior on 6 April 2000;

- the complainant's superior gave a written declaration on 10 April 2000;

- hearings of the two parties took place on 26 April 2000 and on 18 May 2000;

- the final investigation report was delivered on 3 November 2000; and

- the Commission Legal Service gave its opinion on 27 December 2000.

As a result of this procedure, the Appointing Authority decided on 5 March 2001 to give the complainant's superior the disciplinary sanction of a written warning under Article 86 (2) (a) of the Staff Regulations.

As regards the complainant's observations, it was stated that the Commission had taken appropriate measures by launching a disciplinary procedure under Articles 86 to 87 and Annex IX of the Staff Regulations.

The Commission also stated that, if the complainant considers that the acts committed by his superior might infringe national criminal law, it is up to him to address the relevant prosecuting authorities. In that case, the Commission, in due respect of the Treaty and of the Protocol on the privileges and immunities of the European Communities, would give to the relevant national court its full official assistance if so required.

The Commission also stated that the disciplinary sanction given in this case was similar to that in comparable earlier cases, and that all the circumstances of this particular case were taken into consideration.

Finally, the Commission referred to its previous opinion as regards access to files related to the case, by reiterating that the disciplinary procedure is confidential and access is only granted to the defendant where it is justified in order to ensure that his rights of defence are fully respected. The Commission also referred to Article 2 of Annex IX of the Staff Regulations, which only stipulates "the official charged shall have the right to see his complete personal file". In addition, the Commission argued that access to these files could be denied under Article 4 (1) (b) of Regulation 1049/2001(2) on public access to European Parliament, Council and Commission documents, when disclosure would undermine the protection of privacy and the integrity of the individual.

The complainant's complementary observations

The complainant submitted complementary observations in which he made, in summary, the following points:

The outcome of the disciplinary procedure was inadequate as the complainant's superior was given a purely formal sanction. As to the Commission's position that the disciplinary sanction given in this case was similar to that in comparable earlier cases, the complainant argued that disciplinary decisions taken by a public authority cannot be based on previous decisions that have been taken in secrecy. The complainant also made a new allegation that his superior had in fact been rewarded by putting him on the list of promotions after the incident.

As to the Commission's position that disclosure of the documents might undermine the protection of privacy and the integrity of the individual, the complainant argued that the procedure includes material that is not to be considered as forming part of the disciplinary procedure. The complainant also referred to Articles 8 and 41 of the Charter of Fundamental Rights of the European Union, as well as to Article 3 of Directive 95/46, arguing that the Directive does not apply to criminal matters.

Furthermore, the complainant made a new allegation, to the effect that the handling of a violent offence in a disciplinary procedure is not consistent with Community law. According to the complainant, the Commission should have applied Article 2 of Commission Decision 1999/396.

Moreover, the complainant criticised Articles 17 and 19 of the Staff Regulations as preventing an injured party from taking the matter to a competent court. The complainant also argued that the procedure the Commission has applied puts the burden on the victim of a violent offence to initiate criminal proceedings.

THE DECISION

1 The complainant's new allegation and argument

1.1 In his complementary observations, the complainant made a new allegation that the handling of a violent offence in a disciplinary procedure is not consistent with Community law. According to the complainant, the Commission should have applied Article 2 of Commission Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests(3).

1.2 The Ombudsman considers that this new allegation raises potentially complex legal issues relating to the interpretation of the Staff Regulations, Commission Decision 1999/396 and Regulation 1073/1999(4), and cannot therefore be dealt with satisfactorily at this stage of the present inquiry. The complainant has the possibility to make a new complaint to the Ombudsman concerning this new allegation.

1.3 Also in his complementary observations, the complainant presented a new argument that his superior had in fact been rewarded by putting him on the list of promotions after the incident.

1.4 The Ombudsman notes that the disciplinary and promotions procedures are separate. The Ombudsman considers that it would unduly delay the present inquiry to ask the Commission to give an opinion on this new argument. If the complainant considers that there is evidence of maladministration by the Commission in relation to the promotions procedure, he has the possibility to make a new complaint to the Ombudsman.

1.5 The Ombudsman also notes that the complainant criticises Articles 17 and 19 of the Staff Regulations in his complementary observations. The Ombudsman does not understand this point as raising an issue of possible maladministration that could be dealt with in the framework of the present inquiry. The Ombudsman points out that if the complainant wishes to propose amendments to existing Community law he has the possibility to address a petition to the European Parliament.

2 Alleged unequal treatment of parties within the administrative and disciplinary procedures of the Commission

2.1 The complainant asked the Ombudsman to inquire whether the administrative and disciplinary procedures of the Commission were appropriate and apt to ensure equal treatment of the parties following an incident of workplace violence. In this connection, the complainant alleged that the Commission's action is inconsistent with Human Rights conventions, including Article 6 of the European Convention on Human Rights, as well as Article 47 of the Charter of Fundamental Rights of the European Union, and that the Staff Regulations should not be applied when dealing with criminal matters. In his observations, the complainant argued that the Commission is not competent to handle a criminal case.

2.2 The complainant also alleged that the outcome of the disciplinary procedure was inadequate, as his superior was given a purely formal sanction.

2.3 According to the Commission, both parties were duly heard in connection with the incident. The Commission argued that it had taken appropriate measures by launching a disciplinary procedure under Articles 86 to 87 and Annex IX of the Staff Regulations, as a result of which the Appointing Authority decided on 5 March 2001 to give the complainant's superior the disciplinary sanction of a written warning under Article 86 (2) (a) of the Staff Regulations.

2.4 The Commission also stated that if the complainant considers that the action by his superior might be an infringement of national criminal law, it is up to the complainant to address the relevant prosecuting authorities. In this case, the Commission would give to the relevant national court its full official assistance if so required.

2.5 The Ombudsman is not aware of any rule or principle that prevents the Commission from deciding to discharge its responsibilities as an employer by dealing with a case of this kind through disciplinary procedures. Nor is the Ombudsman aware of any rule or principle that would oblige the Commission to refer a case of this kind to the national authorities to be dealt with under criminal law. Moreover, the Ombudsman does not consider that the complainant has shown that the Commission has infringed any binding rule or principle by deciding not to refer this case to the national authorities.

2.6 As regards the conduct of the administrative and disciplinary procedure, the evidence available to the Ombudsman is that the Security Service launched inquiries after the incident by hearing both the complainant and his superior as witnesses. Thereafter a disciplinary procedure was opened against the complainant's superior, during which the complainant and his superior were both heard. The Ombudsman does not consider that the complainant has shown that the administrative and disciplinary procedures used by the Commission have infringed his rights under Article 6 of the European Convention on Human Rights or Article 47 of the Charter of Fundamental Rights of the European Union. In this context, the Ombudsman notes that the Court has observed that proceedings before the Commission are administrative, rather than judicial, with the result that the Commission cannot be characterised as a 'tribunal' within the meaning of Article 6 ECHR(5).

2.7 As regards the alleged inadequacy of the penalty imposed on the complainant's superior in the disciplinary procedure, the Ombudsman notes that the Appointing Authority found that the complainant's superior was responsible for the incident and imposed the disciplinary sanction of a written warning under Article 86 (2) (a) of the Staff Regulations.

2.8 According to the case law of the Court of Justice, the determination of the sanction to be imposed must be based on a comprehensive appraisal by the Appointing Authority of all the particular facts and the aggravating or mitigating circumstances peculiar to each individual case(6). In the Ombudsman's view, the case law to which the complainant refers(7) indicates that a violent act of aggression resulting in injuries is sufficiently serious to justify the removal of an official from his post, but not that this sanction is mandatory in cases of violence. The Ombudsman's inquiry has therefore revealed no evidence to show that the Appointing Authority has acted outside the limits of its legal authority in determining the sanction in the present case.

2.9 In view of the above, the Ombudsman finds no maladministration in relation to this aspect of the case.

2.10 The Ombudsman notes that the Commission made no reference in its opinion to any written policy guidance on the handling of incidents of violence in the workplace. The Commission may wish to consider the adoption of such guidance, which would demonstrate its commitment to good employment practices and the seriousness with which it views violence in the workplace. The Ombudsman will make a further remark to this effect below.

3 Alleged failure to provide assistance under Article 24 of the Staff Regulations

3.1 The complainant alleged that the Commission did not deal with his application under Article 24 of the Staff Regulations to cover medical expenses due to the incident.

3.2 The complainant also alleged that the Commission failed to provide him with legal assistance under the same Article.

3.3 According to the Commission, the complainant's accident report was sent to the Sickness Insurance Unit on 10 October 2000. On 19 March 2001, the Sickness Insurance Unit decided that, under Article 72 and 73 of the Staff Regulations, the expenses incurred by the complainant as a result of the incident qualified for a full reimbursement, the payment of which was subsequently made to the complainant.

3.4 The Ombudsman therefore considers that the Commission has taken appropriate action to settle the complaint as regards the complainant's medical expenses.

3.5 As regards the complainant's allegation that the Commission failed to provide him with assistance in legal matters under Article 24 of the Staff Regulations, the Ombudsman notes that the complainant does not appear to have made any request to the Commission for assistance to enable the complainant to address the Belgian authorities. The complainant could therefore make such a request. In the event of a negative reply, the complainant could make use of the procedure under Article 90 (2) of the Staff Regulations.

3.6 The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint.

4 Access to documents

4.1 The complainant alleged that the Commission wrongly denied him access to the documents relating to the incident. In his observations, the complainant argued that by denying access to the documents the Commission is preventing the matter from being taken to the competent national authority. The complainant claims access to all documents relating to the incident.

4.2 According to the Commission, it is unable to fulfil the complainant's application for access to the documents related to the incident due to the fact that statements made within a disciplinary procedure are confidential in nature and thus access could be granted to the complainant only if this was in the interest of his right of defence. The Commission also argued that access to the documents concerned could be denied under Article 4 (1) (b) of Regulation 1049/2001(8) regarding public access to European Parliament, Council and Commission documents, which provides for an exception where disclosure would undermine the protection of privacy and the integrity of the individual.

4.3 The Ombudsman understands the complainant's claim to be based not on the public right of access to documents but on his specific interest in the documents concerned. Moreover, the Ombudsman notes that the complainant also refers to Regulation 45/2001(9) concerning data protection.

4.4 As regards the complainant's specific interest in access, the Ombudsman first notes that Article 2 of Annex IX of the Staff Regulations stipulates that the official charged shall have the right to see his complete personal file. The complainant was not, however, the official charged and the Ombudsman is not aware of any provision of the Staff Regulations that would require the Commission to provide the documents concerned to the complainant.

4.5 Also as regards the complainant's specific interest in access, the Ombudsman notes that the Commission appears to accept that access could be granted to the complainant if this was in the interest of his right of defence. The Ombudsman is not aware that the complainant has addressed the Belgian authorities with a view to initiating a procedure in the national courts. If the complainant should take such a step, he could inform the Commission accordingly and seek to invoke the right of defence as a specific interest in obtaining access to the documents. If the complainant were to be dissatisfied with the Commission's response, he could complain to the Ombudsman.

4.6 As regards the complainant's reference to Regulation 45/2001 concerning data protection, the Ombudsman notes that Article 50 of the Regulation provides that the Community institutions and bodies shall ensure that processing operations already under way on the date the Regulation enters into force are brought into conformity with the Regulation within one year of that date. The Ombudsman therefore notes that the complainant has the possibility to invoke Article 13 of the Regulation if he wishes to exercise the right of access to data, related to himself, which the Commission may be storing as regards the incident in question. It would be for the Commission to deal with such an application in accordance with the provisions of Regulation 45/2001. If the complainant were to be dissatisfied with the Commission's handling of such an application, he could complain to the Ombudsman.

4.7 In the light of the above, the Ombudsman find no maladministration in relation to this aspect of the complaint.

5 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 Commission will also be informed of this decision.

FURTHER REMARK

The Ombudsman notes that the Commission made no reference in its opinion to any written policy guidance on the handling of incidents of violence in the workplace. The Commission may wish to consider the adoption of such guidance, which would demonstrate its commitment to good employment practices and the seriousness with which it views violence in the workplace.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Case 228/83, F v Commission 1985 ECR 275, Case 403/85, F v Commission, 1987 ECR 645, especially the Opinion of Advocate General Mischo.

(2) Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145/43.

(3) 1999/396/EC, ECSC, Euratom: Commission Decision of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests (notified under document number SEC(1999) 802).

(4) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF).

(5) Case C-252/97 P, N v Commission, Order of the Court (Third Chamber) 1998 ECR I-4871, point 4.

(6) Case T-26/89, Henri de Compte v European Parliament, 1991 ECR II-781, point 8.

(7) Case 228/83, F v Commission, 1985 ECR 275, Case 403/85, F v Commission, 1987 ECR 645.

(8) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145/43.

(9) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L8/1.