# Decision of the European Ombudsman on complaint 1200/2003/OV against the Council of the European Union
- Autore: Mediatore Europeo
- Data: 2003-12-19T00:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/it/decision/it/1934)
---
Strasbourg, 19 December 2003   

Dear X,

On 26 June 2003, you made a complaint to the European Ombudsman against
the Council of the EU, concerning the termination of your contract of
employment as a civilian IT expert in the European Union Police Mission
(EUPM) in Sarajevo.

On 29 July 2003, I forwarded the complaint to the Secretary-General and
High Representative of the Council. The Council sent its opinion on 7
October 2003. I forwarded it to you with an invitation to make observations,
which you sent on 27 November 2003.

Although you did not request confidentiality, the Ombudsman considered
it appropriate, in view of the substance of the case, to classify it as
confidential in order to protect your interests (Article 10 (1) of the
Implementing Provisions). You, however, are free to make whatever use
of the present decision you wish, including publishing it.

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

THE COMPLAINT
-------------

According to the complainant, the relevant facts were as follows:

The administration of the Planning Team of the European Union Police
Mission (EUPM) in Sarajevo terminated the complainant's employment contract
as a civilian expert (Information Technology Expert), without providing
any reasons, and on the basis of unsubstantiated allegations. This was
done in violation of the complainant's right of defence.

The complainant objected to the procedure followed by letter to the Planning
Team dated 19 November 2002. In his reply of 26 November 2002, the Head
of the EUPM Planning Team indicated that the complainant's contract of
employment had been terminated because of his inappropriate behaviour
and because he had contravened the ethos of the EUPM Planning Team and
his responsibilities as a professional member of the mission.

On 17 December 2002, the complainant lodged a complaint with the European
Ombudsman (ref. 2188/2002/OV). This complaint was however inadmissible,
as the complainant had not made prior administrative approaches to the
Council with regard to the subject matter of his complaint. The Ombudsman
advised the complainant to write to the Council. According to the complainant,
he has sent two registered letters to the Council, but received no reply.

On 26 June 2003, the complainant lodged the present complaint with the
Ombudsman. The complainant alleged that his contract as a civilian expert
with the EUPM was terminated without any reasons and on the basis of unsubstantiated
allegations, and that the Council has not replied to his two registered
letters about the matter. He claimed that the Council should clear him
of the allegations against him and that he should receive his salary for
the whole month of December 2002.

THE INQUIRY
-----------

**The Council's opinion**   

In a short opinion, the Council argued that its General Secretariat did
not intervene either in the complainant's appointment or in his dismissal.
The complainant was directly employed by the EUPM Planning Team, pursuant
to the powers awarded to the mission by Council Joint Action of 11 March
2002 on the European Police Mission[(1)](#(1)){#Footnote1}.
He was dismissed for reasons of which the General Secretariat of the Council
was unaware.

Article 2(1) of the Council Joint Action establishes that "the Planning
Team comprises the Police Head of Mission/Head of Planning Team and the
necessary staff to deal with functions ensuing from the needs of the mission".
The EUPM may recruit international civilian staff on a contractual basis,
according to its needs[(2)](#(2)){#Footnote2}. It is,
however, the task of the Head of Mission/Police Commissioner to exercise
operational command over the EUPM, to assume the day-to-day management
of operations[(3)](#(3)){#Footnote3} and to exercise the
ensuing powers. These powers necessarily include the recruitment and the
eventual dismissal of contractual staff, as was the case with the complainant.

From the above it appears that it is not for the General Secretariat
of the Council to recruit (and eventually dismiss) contractual staff for
the EUPM.
**The complainant's observations**   

The complainant maintained his complaint. He stated that he has already
started writing letters to lawyers in Brussels.

THE DECISION
------------

**1 The scope of the Ombudsman's inquiry**   

1.1 In his letter of 29 July 2003, the Ombudsman informed the complainant
that, in dealing with complaints concerning a contractual relationship
with a Community institution or body, the Ombudsman limits his inquiry
to examining whether the Community institution or body has provided him
with a coherent and reasonable account of the legal basis for its actions
and why it believes that its view of the contractual position is justified.
If that is the case, the Ombudsman concludes that his inquiry has not
revealed an instance of maladministration.

1.2 The Ombudsman's decision on a contractual case does not affect the
right of the parties to have the dispute subsequently examined and authoritatively
settled by a court of competent jurisdiction.
**2 The termination of the contract without reasons and on the basis of
unsubstantiated allegations**   

2.1 The complainant alleged that his contract as a civilian expert with
the European Union Police Mission (EUPM) was terminated without any reasons
and on the basis of unsubstantiated allegations. According to the complainant,
his rights of defence have been violated.

2.2 The Council argued that its General Secretariat did not intervene
either in the complainant's appointment, or in his dismissal. The complainant
was directly employed by the EUPM Planning Team, pursuant to the powers
awarded to the mission by Council Joint Action of 11 March 2002 on the
European Police Mission. He was dismissed for reasons of which the General
Secretariat of the Council was unaware.

2.3 The Ombudsman notes that the European Union Police Mission was established
by Council Joint Action of 11 March 2002. Article 4.1 of the Joint Action
provides that the Head of Mission/Police Commissioner, appointed by the
Council, shall exercise operational command over the EUPM and assume the
day-to-day management of the EUPM operations. Article 4.4 further provides
that the Head of Mission/Police Commissioner shall be responsible for
disciplinary control over the personnel. Article 3.2 of the Agreement
between the EU and Bosnia and Herzegovina (BiH) on the activities of the
EUPM in BiH[(4)](#(4)){#Footnote4} provides that the Head
of Mission/Police Commissioner shall report to the Secretary-General/High
Representative for the Common Foreign and Security Policy through the
European Union Special Representative in BiH.

2.4 In the light of the above provisions, the Ombudsman considers that
the Council is responsible for ensuring that the EUPM's actions respect
the principle of the rule of law and the fundamental rights recognised
by the European Union.

2.5 The Ombudsman has carefully studied the documents supplied to him
by the complainant and the Council. On the basis of this evidence, the
facts of the case appear to be as follows:
> (i) The contract of employment of the complainant was signed on 26
> June 2002 with the EUPM Planning Team, in accordance with Article 5.3
> of the Council Joint Action of 11 March 2000 on the EUPM, which provides
> that *"international civilian staff and local staff shall be
> recruited on a contractual basis by the EUPM as required"*.
> The duration of the contract was from 1 July to 31 December 2002.
>
> (ii) The termination of the complainant's contract was decided as
> a disciplinary measure. The documentation sent by the complainant contains
> a note of 12 November 2002 from the Legal Adviser of the EUPM Planning
> Team entitled "Recommendation on a disciplinary case". This
> note mentions that an internal investigation report was compiled by
> the Deputy Police Commissioner into alleged misconduct by the complainant.
> The alleged misconduct concerned the supposed relationship of the complainant
> with a Moldavian woman who was staying illegally in Bosnia-Herzegovina
> working as a dancer in two local bars and whom the complainant was supposed
> to have paid for "services". The note, which also refers to
> "commercial sexual purchasing", concluded that *"(..)
> because of being a member of the EUPM Planning Team and thus being under
> an obligation not to foster any illegal activities, \[the complainant\]
> should have been more reserved to establish any kind of emotional/romantic
> relationship with Ms X. As having ignored a decent and reserved behaviour
> in this regard, \[the complainant\] has endangered the impeccable reputation
> of the EUPM Planning Team"* (sic).
>
> (iii) The Legal Adviser's conclusion and recommendation was that *"the
> behaviour of \[the complainant\] has been seriously inconsistent with
> his obligations emanating from his contract of employment. \[The complainant\]
> has severely jeopardised the reputation of the EUPM Planning Team. His
> actions in this regard have constituted a serious misconduct. THE EUPM
> PT Commissioner is advised to terminate \[the complainant\]'s contract
> with immediate effect"* . As the legal basis for the termination
> of the contract, the Legal Adviser referred to paragraph 15 of the contract,
> which provides that *"in the case of serious misconduct, the
> Employer reserves the right to terminate the Employee's contract without
> prior written notice."* The Police Head of Mission decided to
> terminate the complainant's contract as from 8 December 2002.

2.6 Article 41 of the Charter of Fundamental Rights of the European Union
(right to good administration) includes the right of every person to be
heard before any individual measure which would affect him or her adversely
is taken. On the basis of the evidence available to the Ombudsman, it
appears that the complainant was never given the opportunity to express
his views on the supposed facts which formed the basis of the disciplinary
action against him. This constitutes an instance of maladministration.
Given that the complainant's contract was terminated more than one year
ago, it is not appropriate to propose a friendly solution. The Ombudsman
therefore makes the critical remark below.
**3 The claims of the complainant**   

3.1 The complainant claims that the Council should clear him of the allegations
against him and that he should receive his salary for the whole month
of December 2002.

3.2 The Ombudsman suggests that the most useful course of action would
be for the complainant to make the above claims directly to the Council,
which could consider them in the light of the Ombudsman's findings and
conclusion under point 2.6 above. In case of an unsatisfactory reply from
the Council, the complainant would then have the possibility either to
take the case to a court of competent jurisdiction, or to make a new complaint
to the European Ombudsman.
**4 Failure to reply**   

4.1 The complainant alleged that the Council did not reply to the two
registered letters he sent with regard to his dismissal. The Council did
not comment on this point, but merely noted that it did not intervene
in the complainant's recruitment or dismissal.

4.2 The Ombudsman office asked the complainant for a copy of the two
registered letters the complainant sent to the Council. The complainant
did not have a copy of one registered letter. As regards the other letter,
dated 18 March 2003, it appears that it was sent by registered post on
19 March 2003 to a Head of Unit in DG A (Personnel and Administration)
of the Secretariat General of the Council.

4.3 Principles of good administration require that the institutions reply
to letters sent by citizens[(5)](#(5)){#Footnote5}. In the present case, it appears that the
Council has neither replied to the complainant's letter, nor explained
the reasons for its failure to reply. This constitutes an instance of
maladministration and the Ombudsman makes the critical remark below.
**5 Conclusion**   

On the basis of the Ombudsman's inquiries into parts 2 and 4 of this
complaint, it is necessary to make the following critical remarks:
> Article 41 of the Charter of Fundamental Rights of the European Union
> (right to good administration) includes the right of every person to
> be heard before any individual measure which would affect him or her
> adversely is taken. On the basis of the evidence available to the Ombudsman,
> it appears that the complainant was never given the opportunity to express
> his views on the supposed facts which formed the basis of the disciplinary
> action against him. This constitutes an instance of maladministration.
> {#CR21/2003}
>
> Principles of good administration require that the institutions reply
> to letters of citizens. In the present case it appears that the Council
> has neither replied to the complainant's letter, nor explained the reasons
> for its failure to reply. This constitutes an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific
events in the past, it is not appropriate to pursue a friendly settlement
of the matter. The Ombudsman therefore closes the case.

The Secretary General and High Representative of the Council will also
be informed of this decision.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} OJ L 70/1 of 13 March 2002.

[(2)](#Footnote2){#(2)} Council Joint Action of 11 March
2002 on the European Police Mission, article 5(3).

[(3)](#Footnote3){#(3)} Council Joint Action of 11 March
2002 on the European Police Mission, article 4(1) and 7, 3rd indent.

[(4)](#Footnote4){#(4)} OJ L 293/2 of 29 October 2002.

[(5)](#Footnote5){#(5)} Article 13 of the European Code of Good Administrative Behaviour.