Strasbourg, 30 May 2005

Dear Mr X.,

On 18 June 2005, you made a complaint to the European Ombudsman against the European Commission concerning your grading as an auxiliary agent working for the JRC.

On 15 July 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 17 August 2004 and I forwarded it to you on 30 September 2004 with an invitation to make observations, if you so wished by 31 October 2004. No written observations were received from you, but you provided my services with further information regarding the matter in a telephone conversation on 18 May 2005.

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 are, in summary, the following:

In 2003, he signed a contract with the JRC (the Joint Research Centre, which is a service of the European Commission) in Ispra, Italy, as an auxiliary agent. He took up his duties on the same day. One month earlier, when visiting the Joint Research Centre (hereafter "the JRC") for the medical examination preceding the taking up of his duties, he had been informed that his grading as an auxiliary agent would be AIII.2. The AIII group is the lowest group of researchers and step 2 is the second lowest step in this group. Since the complainant had been working as a researcher for eight years, he asked the auxiliary office whom to contact in order to get a clarification as to why his professional experience had not been taken into account. He received an answer saying that, according to the rules applied at the JRC, his grading should be AIII.2. He was not, however, informed about the rules that had been applied. The complainant therefore contacted the auxiliary office again, to obtain information on whom to contact regarding the matter. The complainant received a reply saying that he did not have to sign the contract if he did not agree with the grading. The complainant did sign the contract, since he had already left his job in his home country and made arrangements to move to Ispra. However, he did not expect such arrogance from the EU administration or such secrecy regarding the rules of recruitment. Nor did he think that professional experience would be taken into account in the selection of staff but not as regards their grading.

The complainant alleges that the Commission has failed to inform him of the rules according to which he was given the grading AIII.2 as an auxiliary agent.

The complainant claims that:

1. He should be informed of the rules according to which he was given the grading AIII.2; and

2. If the rules violate the Staff Regulations, his grade should be corrected and he should be compensated for the loss of remuneration.

The Ombudsman's analysis of the admissibility of the complaint

The Treaty establishing the European Community and the Statute of the European Ombudsman set precise conditions as to the admissibility of a complaint. The Ombudsman can only start an inquiry if these conditions are met.

One of these conditions is:

Art. 2.8 Statute of the European Ombudsman:

“No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)”

After a careful examination of the complaint, it appeared that this condition was not met as regards the complainant's second claim that, if the rules violate the Staff Regulations, his grade should be corrected and he should be compensated for the loss of remuneration. The Ombudsman therefore concluded that he was not entitled to deal with this aspect of the complaint unless and until the complainant has exhausted all possibilities for internal administrative requests and complaints.

However, the Ombudsman opened an inquiry into the complainant's allegation and first claim.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission makes, in summary, the following comments:

Article 53 of the then applicable Conditions of Employment of Other Servants provides that, "auxiliary staff shall be divided into four categories (A, B, C, D), subdivided into groups corresponding to the duties to be performed. Within each group, auxiliary staff shall be graded in four classes. This grading shall take into account the qualifications and experience of the persons concerned." According to the Commission, these Conditions of Employment of Other Servants are made widely available through the Commission Intranet and cannot be regarded as secret, contrary to the complainant’s argument.

The Commission notes that, according to Article 53 of the Conditions of Employment of Other Servants, the grading is not automatically linked to the number of years of professional experience, but qualifications should also be taken into account. In the case of the complainant, his professional experience was counted as from when he graduated from University. For the period between that date and the date on which he was engaged as an auxiliary agent, the complainant had supplied documents to justify a professional experience of 87 months (7 years and 3 months).

As regards the complainant's qualifications, the Commission notes that he has one university degree whilst most of the JRC scientific officers have, at the time of their engagement, a second university degree and/or a Ph.D. They also often have longer professional experience than the complainant.

Based on the information provided by the complainant, the Commission considered him to be a good candidate for the post in question. However, the complainant's professional experience, as far as duration and quality was concerned, was not considered sufficient for him to be graded as an AII auxiliary agent.

The Commission also points out that the complainant did not challenge his grading under Article 90(2) of the Staff Regulations within three months of having signed his contract. Any complaint lodged after the three month deadline would be inadmissible.

The Ombudsman invited the complainant to submit observations on the Commission's opinion. No written observations were submitted by the complainant. However, the Ombudsman's services contacted the complainant by telephone on 18 May 2005. In the telephone conversation, the complainant explained that he had not submitted written observations because he knows a change of his grading is not possible since he has not made a complaint in this regard under Article 90 of the Staff Regulations and that the only thing that could be achieved would be confirmation that the institution had acted wrongly. The complainant also notes that there has been a change of head of the unit concerned and that he therefore hopes that the situation has improved. The complainant indicated that he would appreciate it if the Ombudsman could pursue his complaint to the maximum extent possible.

THE DECISION

1 The alleged failure to provide information about the rules applied to determine the complainant's grading

1.1 The complaint concerns the complainant's grading as an auxiliary agent working for the JRC, a service of the European Commission. Since the complainant had been working with research for eight years before taking up his duties at the JRC, he tried to find out why his professional experience had not been taken into account. He received an answer saying that, according to the rules applied at the JRC, his grading should be AIII.2. He was not, however, informed about the rules that had been applied. The complainant therefore tried again to obtain information on whom to contact regarding the matter. He received a reply saying that he did not have to sign the contract if he did not agree with the grading. The complainant alleges that the Commission has failed to inform him of the rules according to which he was given the grading AIII.2 as an auxiliary agent.

1.2 According to the Commission, the applicable rules are Article 53 of the then applicable Conditions of Employment of Other Servants, which state: "auxiliary staff shall be divided into four categories (A, B, C, D), subdivided into groups corresponding to the duties to be performed. Within each group, auxiliary staff shall be graded in four classes. This grading shall take into account the qualifications and experience of the persons concerned." The Commission argues that these rules are made widely available through the Commission Intranet and cannot be regarded as secret. The Commission further argues that according to these rules, the grading is not automatically linked to the number of years of professional experience, but qualifications should also be taken into account. The complainant had supplied documents to justify a professional experience of 87 months. As regards the complainant's qualifications, he has one university degree whilst most of the JRC scientific officers have, at the point of their engagement, a second university degree and/or a Ph.D. They also often have longer professional experience than the complainant. The complainant's professional experience, as far as duration and quality was concerned, was therefore not considered sufficient for him to be graded as an AII auxiliary agent.

1.3 The Ombudsman notes the Commission's explanation that the complainant's grading was determined on the basis of Article 53 of the then applicable Conditions of Employment of Other Servants. In its opinion on the complaint, the Commission further appears to have explained the way in which this provision was applied when assessing the complainant's experience and qualifications in order to determine his grading. In view thereof, and given that the complainant has not availed himself of the complaint procedure under the Staff Regulations and recognises that he cannot challenge the grading as such, the Ombudsman considers that no further inquiries into the matter are justified.

1.4 However, although not the main issue covered by the present inquiry, the Ombudsman notes that the Commission has not commented on the complainant's statement that, in reply to his inquiries about the rules according to which his grading was determined, he was informed by the JRC that he did not have to sign the contract if he did not agree with the grading. In this respect, the Ombudsman would like to recall his own initiative inquiry into the administration of the JRC in Ispra, in which he welcomed measures promoting and consolidating changes in the culture of management of the JRC, which could help to prevent maladministration in the future(1). The Ombudsman takes the view that a reaction such as the one mentioned by the complainant to a request for information from a possible future member of staff would not be in line with an enhanced culture of management at the JRC in Ispra. The Ombudsman would appreciate it if the Commission could confirm that it shares this view. The Ombudsman will make a further remark in this regard.

2 Conclusion

For the reasons stated in 1.3 above, the Ombudsman considers that no further inquiries into the present complaint are justified. 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 has not commented on the complainant's statement that in reply to his inquiries about the rules according to which his grading was determined, he was informed by the JRC that he did not have to sign the contract if he did not agree with the grading. In this respect, the Ombudsman would like to recall his own initiative inquiry into the administration of the JRC in Ispra, in which he welcomed measures promoting and consolidating changes in the culture of management of the JRC, which could help to prevent maladministration in the future. The Ombudsman takes the view that a reaction such as the one mentioned by the complainant to a request for information from a possible future member of staff would not be in line with an enhanced culture of management at the JRC in Ispra. The Ombudsman would appreciate it if the Commission could confirm that it shares this view.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case OI/3/2001/SM, available at the Ombudsman's website: http://www.ombudsman.europa.eu.