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Draft recommendation to the European Commission in complaint 489/98/OV
Raccomandazione
Caso 489/98/OV - Aperto(a) il Lunedì | 18 maggio 1998 - Raccomandazione su Giovedì | 04 novembre 1999 - Decisione del Mercoledì | 12 aprile 2000
(Made in accordance with Article 3 (6) of the Statute of the Ombudsman.(7))
Dear Mr P.,
On 1 April 1998 you made a complaint to the European Ombudsman concerning the failure of the European Commission to reinstate you at the end of your unpaid leave on personal grounds and to refuse to pay you a compensation for the loss of salary and the reduced pension.
On 18 May 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 27 July 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 14 September 1998, I received your observations on the Commission's opinion. On 31 March 1999 I received a letter from Mr Brendan Donnelly MEP who wrote on your behalf to inquire about the outcome of your complaint. On 12 April 1999 I sent a reply to inform him that your complaint was still under investigation. I informed you accordingly on the same day.
On 22 April 1999 you sent more detailed information with regard to your complaint. On 23 April 1999 I asked the Commission for further comments on certain aspects of your complaint. The Commission sent its second opinion on 1 July 1999 and I forwarded it to you on 20 July 1999 with an invitation to make new observations. On 11 August 1999 you sent your observations on the Commission's second opinion.
I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay it has taken to decide upon your complaint.
According to the complainant, the relevant facts were as follows:
The complainant, an A4 grade official of the European Commission, went on unpaid leave on personal grounds for one year from 1 October 1995 to 30 September 1996. He complained that the Commission failed to reinstate him after this period. More particularly, two months after the expiry of his unpaid leave, the Commission had still not made an offer of reinstatement, nor was there any prospect for a reinstatement in the future.
The complainant consequently wrote to the Director General of DG IX on 25 November 1996 informing him that, in order to secure a source of regular income, and given that he had no other option than taking early retirement, he resigned from the service with effect from 1 October 1996.
On 10 June 1997, the complainant made a request, under Article 90(1) of the Staff Regulations, for a financial compensation for the loss of salary from the expiry of his leave up to the date of his letter of resignation, and for the reduced pension. On 5 August 1997, DG IX replied that the complainant had made an unequivocal request for resignation as foreseen in Article 48 of the Staff Regulations, and that therefore, it could not take into consideration his request for compensation.
On 17 September 1997, the complainant submitted to the appointing authority an appeal against this refusal under Article 90(2) of the Staff Regulations, reiterating his demand for financial compensation. The appointing authority rejected the complainant's request in its letter of 16 February 1998. It considered that the Commission had not committed administrative irregularities and was not responsible for his resignation, and that therefore it had not to pay a compensation. The complainant therefore lodged the present complaint to the Ombudsman, alleging that the Commission had failed to reinstate him at the end of his unpaid leave on personal grounds and refused to pay a compensation for a) the loss of salary because of the failure to reinstate him and for b) the financial loss due to his resignation.
The Commission's opinion
In its opinion, the Commission referred to the reply of the appointing authority dated 16 February 1998. The appointing authority had reminded the complainant of the provision in Article 40(4)(d) of the Staff Regulations which requires the institution to reinstate an official at the expiry of the unpaid leave for personal grounds in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post. The procedure for establishing whether an official satisfies these requirements must actually take place and must be conducted in such a way that the institution concerned can prove that the stipulation was complied with. Failure to carry out such checks would constitute a wrongful act or omission which would entail liability from the Commission towards the applicant.
The Commission then observed that an examination of the steps taken by the complainant on the one hand and the Commission on the other did not show any irregularity in the reinstatement procedure. The appointing authority considered that the fact that the complainant had not been reinstated at the end of November 1996 was reasonable given that his leave on personal grounds expired two months before, on 30 September 1996. On these grounds, the complainant's request for compensation was refused as regards the period from the end of his leave on personal grounds to the date of his letter of resignation.
The appointing authority pointed out that, in its judgment of 1 July 1976(1), the Court of Justice ruled that in the case of an application for damages for failure to reinstate after the expiry of leave on personal grounds, the applicant cannot, in the absence of services rendered, claim payment of arrears of salary. He is nevertheless entitled to receive compensation for the actual damage he has suffered through the loss of this salary as a result of the unlawful conduct of the administration.
As regards the application for financial compensation from the date on which he retired, the complainant argued that he was forced to resign given that the administration left him with no income during the two months following the expiry of his leave. The Commission recalled the established case law according to which the Community institution is liable if the alleged conduct is unlawful, damage has actually been sustained and a causal link exists between the said conduct and the damage.
In the present case, the appointing authority checked that the Commission had actually taken steps and had done so in a proper manner, and that the period of two months between the expiry of the leave and his letter of resignation was a reasonable period, even if the complainant had not been reinstated. Also the complainant's resignation was the result of his having stated unequivocally in writing his intention to leave the service of the institution definitively, as laid down in Article 48 of the Staff Regulations. Given thus that the resignation was a voluntary act of the complainant, the Commission concluded that it beared no direct responsibility in this matter and that no blame could be attached to the Commission. Therefore the application for financial compensation was rejected.
The complainant's observations
The complainant maintained his complaint. He stated that there were in fact a number of perfectly suitable posts vacant at the time, and that the Commission did not examine his qualifications for any of these posts. He stated that four suitable posts were reserved for other particular candidates or for individuals from the new Member States. Therefore the complainant considered that the Commission's statement that there had not been an irregularity in the reinstatement procedure was not correct. The steps taken by the Commission had not been efficient given that they had not resulted in a single offer of reinstatement in the course of 3,5 months from the date he confirmed his intention to return, neither in a prospect of reinstatement in the future. The complainant concluded that the Commission's conduct was negligent, that he suffered damage and that the causal link between both was clear. On 22 April 1999, the complainant sent further details as regards 4 posts which were vacant at the time he asked for reinstatement.
In order to verify whether the Commission examined in detail the abilities of the complainant in relation to the vacant posts corresponding to his grade, the Ombudsman asked on 23 April 1999 for further comments from the Commission on three points.
Firstly, the Ombudsman asked to obtain the list of all posts (including the requirements) corresponding to the complainant's grade (A4) which were vacant in the period following the expiry of his leave on personal grounds (30 September 1996).
Secondly, the Commission was requested to respond to the complainant's allegation that it did not examine his qualifications for any of the vacant posts, because they were reserved for other applicants.
Finally, the Ombudsman asked what was the justification for the consideration of the appointing authority that the posts which were vacant did not correspond to the complainant's qualifications (letter of Commissioner Liikanen dated 16 February 1998, page 3, last paragraph).
The Commission's second opinion
The Commission sent to the Ombudsman the lists of vacant management posts which were published every week between 18 July 1996 and 28 November 1996. The Commission reiterated that this dispute was the consequence of the complainant's unilateral decision of 25 November 1996 to resign from the Commission, less than two months after 1 October 1996. Therefore the Commission stated that it could not be held responsible for that decision or its impact on the complainant's income.
With regard to the complainant's allegation that it had not examined his qualifications for any of the vacant posts, the Commission observed that it is not disputed that there were A5/A4 posts vacant between 1 October 1996 and 30 November 1996, including the four Head of Unit posts cited by the complainant. The Commission first pointed out that one of the posts to which the complainant referred was an A3 post and therefore not relevant. It was thus necessary to examine whether the complainant's curriculum vitae demonstrated that he satisfied the requirements for the other three posts.
According to the complainant's CV, as an A4 official he had been principal administrator (A5/4) and subsequently Head of Division in DG II (Economic and Financial Affairs) between 1974 and 1990. Between 1990 and 1995 he was counselor to DG I in Paris. The Commission observed that the complainant's CV was sketchy on his career and skills, and that until 1988 the post of Head of Division was reserved for A3 officials. After 1990, the complainant was no longer Head of Division (or rather, Head of Unit).
The vacancies in question were for Head of the External dimension of the Internal Market and Financial Services Unit in DG XV, Head of the Unit monitoring the impact of the European Social Fund in DG V, and Head of the United Nations Unit in DG IA. Each of these posts required special skills. The Commission stated that there was reasonable doubt as to whether the complainant satisfied the requirement for these posts, both in relation to the level of responsibility (a candidate for a Head of Unit post must have proven management skills) and the other requirements. The administration could therefore not be blamed for not having reinstated the complainant immediately, because in such circumstances it must request additional information from the person concerned. That the Commission did not do so was due to the fact that the complainant retired before this could be done within a reasonable period of time.
DG IX of the Commission also contacted various Directorates-General, including DG I, DG II, DG VI and DG XXI in an attempt to find a suitable post for the complainant. However, those attempts did not lead to his reinstatement because the complainant's CV did not contain sufficient details on his abilities. The Commission observed that this CV was too vague to make an immediate decision possible.
The Commission therefore concluded that the administration was far from inactive in this matter and had started taking steps to reinstate the complainant.
The complainant's additional observations
The complainant maintained his complaint reiterating that he had not been offered any post in the 3,5 months following his request for reinstatement. The complainant also observed that his CV was intended to summarise his professional experience that was already known to the Commission since 22 years. The complainant added that he was indeed occupying an A3 post as Head of Division in DG II-E-2 from 1986 to 1987. The complainant stated that the posts to which the Commission referred were all in line with his experience and responsibilities at the Paris Delegation. Finally, he observed that the Commission could have asked for the additional information concerning his CV.
1 The Commission's failure to reinstate the complainant at the end of his unpaid leave on personal grounds
1.1 The complainant alleged that the Commission failed to reinstate him at the end of his unpaid leave on personal grounds, on 30 September 1996. More particularly, two months after this date he still had not received an offer of reinstatement, nor was there any prospect of reinstatement for the near future. The Commission observed that the examination of the steps taken by the Commission showed that there had not been any irregularity in the reinstatement procedure. In its second opinion, the Commission added that there were reasonable doubts as to whether the complainant satisfied the requirements for the posts which were vacant. The Commission also pointed out that the complainant's CV was too vague to take an immediate decision on his reinstatement.
1.2 The Ombudsman notes that Article 40(4)(d) of the Staff Regulations foresees that on the expiry of his leave an official must be reinstated in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post. According to the case-law of the Court of First Instance, the administration shall verify systematically, through a detailed examination, the abilities of the official awaiting reinstatement in relation to each vacant post corresponding to his grade. Therefore the procedure for verifying the ability of officials awaiting reinstatement must be effective and must take its course in such a way that the institutions can prove that it has been observed. With this regard, although the competent authorities cannot be compelled to prove that they have examined the abilities of the official where there is a manifest divergence between his abilities and those required for a particular post which is vacant, such proof must nevertheless be adduced in all cases where, in the absence of such a manifest divergence, a complete verification of the abilities of the person concerned in relation to a vacant post is necessary. The failure to verify systematically the abilities of the official in question in relation to each vacant post to which he could have been reinstated constitutes a service-related fault which may give rise to liability on the administration's part insofar as such failure delays the reinstatement of the person concerned(2).
1.3 The Ombudsman shall therefore verify whether, in the present case, the Commission has made a detailed examination of the abilities of the complainant in relation to the posts which were vacant. It appears that the complainant asked on 12 August 1996 to be reinstated with effect from 1 October 1996. In its final decision of 16 February 1998 on the complainant's appeal under Article 90(2) of the Staff Regulations, the Appointing Authority merely observed that no Directorate General was able to offer a post to the complainant before the end of November 1996, because "either they had no pertinent vacant posts available, or the vacant posts did not correspond to the complainant's abilities". The Appointing Authority did not give any justification whatsoever for its conclusion that the complainant's abilities did not correspond to those required by the vacant posts, nor referred to the particular posts which were vacant.
1.4 The Ombudsman therefore asked for more details on the list of posts which were vacant in the period following the expiry of the complainant's leave on personal grounds. He also requested the Commission to indicate what was the Appointing Authority's justification for its conclusion that the complainant's abilities did not correspond to those of the vacant posts. From the lists of vacant posts published between 18 July 1996 and 28 November 1996, it appears that during this period there were more than twenty-five A5/A4 posts vacant(3).
1.5 However, in its opinion to the Ombudsman, with the exception of the 4 posts indicated by the complainant himself, the Commission made no reference to any particular vacant A5/A4 post out of these lists, nor gave a justification, even shortly, why the complainant could not be reinstated in one of those posts. With regard to three of the four posts mentioned by the complainant, the Commission again merely observed, without a detailed examination, that there was reasonable doubt whether the complainant satisfied the requirements for these posts, both in relation to the level of responsibility (need of proven management skills for Head of Unit posts) and the other requirements. The Commission even added that, given this genuine uncertainty, the administration must, in such circumstances, request additional information from the person concerned. This requirement has also been confirmed by the jurisprudence of the Court of First Instance(4). However, the Commission did not proceed so.
1.6 From the above, the Ombudsman concludes that the Commission failed to carry out the detailed examination, as required by the case-law of the Court of Justice, of the complainant's abilities in relation to each vacant post corresponding to his grade. This is also confirmed by the fact that the Commission based its judgement of the abilities of the complainant with regard to the vacant posts only on the complainant's curriculum vitae, which it considered itself to be too vague and sketchy, and without asking the complainant for more detailed information. It also appears that at no time did the Commission consult the details of the complainant's personal file, what it could have done given that he had worked for the Commission for 22 years.
1.7 It appears thus from these considerations that the Commission's failure to undertake a detailed examination of the complainant's qualifications for the posts in question constitutes an instance of maladministration capable of rendering the Commission liable to the complainant. Given that, because of the Commission's and the complainant's opposite opinions, it was not possible to find a friendly solution between the parties on this point, the Ombudsman makes the draft recommendation below.
2 The complainant's claims for a financial compensation for the Commission's failure to reinstate him and the financial implications of his resignation
2.1 The complainant claimed a compensation for 1) the loss of salary (between the end of his unpaid leave until the date of his resignation) due to the Commission's failure to reinstate him at the end of his unpaid leave on personal grounds, and for 2) the financial loss linked to the fact that he had to resign from the Commission. The Commission refused to pay both compensations because it considered that, on the one hand, it had not committed an irregularity in the reinstatement procedure, and on the other hand, it could not be held responsible for the complainant's unilateral decision to resign from the Commission.
2.2 With regard to the first claim for compensation due to the Commission's failure to reinstate the complainant, the Ombudsman notes that, according to the case-law of the Court of Justice, the applicant for damages for failure to reinstate after the expiry of the leave on personal grounds cannot, in the absence of services rendered, claim payment of arrears of salary. He is nevertheless entitled to receive compensation for the actual damage suffered through the loss of this salary as a result of the unlawful conduct of the administration(5).
2.3 Therefore, in the present case, the Commission should compensate the complainant for the material damage directly suffered by him as a result of the Commission service's related fault which is the failure to undertake a detailed examination of the complainant's qualifications for the posts which were vacant after the expiry of his leave on personal grounds. The Ombudsman does not consider himself able to determine the amount of this compensation. He invites the parties to agree on the principle and the amount of a financial compensation. The Ombudsman therefore makes the draft recommendation below. 2.4 With regard to the second claim, the Ombudsman notes that, according to the case law of the Court of Justice, the institution concerned cannot be held liable for any financial loss arising out of the official's decision to leave his employment before receiving notice of his reinstatement(6). Article 40(4)(d) in fine indeed foresees that until effectively reinstated, the official shall remain on unpaid leave on personal grounds. The Ombudsman therefore considers that in the present case the Commission cannot be held responsible for the complainant's unilateral decision to resign. Therefore the complainant's claim for compensation is not grounded, and no maladministration was found concerning this aspect of the case.
3 Conclusion
According to the case-law of the Court of First Instance, the administration shall verify systematically, through a detailed examination, the abilities of the official awaiting reinstatement in relation to each vacant post corresponding to his grade.
In the present case, the Appointing Authority did not give any justification whatsoever for its conclusion that the complainant's abilities did not correspond to those required by the vacant posts. Also, with the exception of the 4 posts indicated by the complainant himself, the Commission made no reference to any particular vacant A5/A4 post out of the lists, nor gave a justification, even shortly, why the complainant could not be reinstated in one of those posts. The Commission based its judgement of the abilities of the complainant with regard to the vacant posts only on the complainant's curriculum vitae, which it considered itself to be too vague and sketchy, and without asking the complainant for more detailed information. Therefore, the Ombudsman concludes that the Commission failed to carry out the detailed examination, as required by the case-law of the Court of Justice, of the complainant's abilities in relation to each vacant post corresponding to his grade. This failure constitutes an instance of maladministration capable of rendering the Commission liable to the complainant.
In view of these conclusions (points 1.7 and 2.3), and given that it was not possible to find a friendly solution between the parties on this point, the Ombudsman makes the following draft recommendation to the European Commission:
The European Commission will be informed of these draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion within three months. The detailed opinion could consist of the acceptance of the Ombudsman's recommendation and a description of the measures taken to implement the recommendation.
Yours sincerely
Jacob SÖDERMAN
Strasbourg, 4 November 1999
Dear Mr P.,
On 1 April 1998 you made a complaint to the European Ombudsman concerning the failure of the European Commission to reinstate you at the end of your unpaid leave on personal grounds and to refuse to pay you a compensation for the loss of salary and the reduced pension.
On 18 May 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 27 July 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 14 September 1998, I received your observations on the Commission's opinion. On 31 March 1999 I received a letter from Mr Brendan Donnelly MEP who wrote on your behalf to inquire about the outcome of your complaint. On 12 April 1999 I sent a reply to inform him that your complaint was still under investigation. I informed you accordingly on the same day.
On 22 April 1999 you sent more detailed information with regard to your complaint. On 23 April 1999 I asked the Commission for further comments on certain aspects of your complaint. The Commission sent its second opinion on 1 July 1999 and I forwarded it to you on 20 July 1999 with an invitation to make new observations. On 11 August 1999 you sent your observations on the Commission's second opinion.
I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay it has taken to decide upon your complaint.
THE COMPLAINT
According to the complainant, the relevant facts were as follows:
The complainant, an A4 grade official of the European Commission, went on unpaid leave on personal grounds for one year from 1 October 1995 to 30 September 1996. He complained that the Commission failed to reinstate him after this period. More particularly, two months after the expiry of his unpaid leave, the Commission had still not made an offer of reinstatement, nor was there any prospect for a reinstatement in the future.
The complainant consequently wrote to the Director General of DG IX on 25 November 1996 informing him that, in order to secure a source of regular income, and given that he had no other option than taking early retirement, he resigned from the service with effect from 1 October 1996.
On 10 June 1997, the complainant made a request, under Article 90(1) of the Staff Regulations, for a financial compensation for the loss of salary from the expiry of his leave up to the date of his letter of resignation, and for the reduced pension. On 5 August 1997, DG IX replied that the complainant had made an unequivocal request for resignation as foreseen in Article 48 of the Staff Regulations, and that therefore, it could not take into consideration his request for compensation.
On 17 September 1997, the complainant submitted to the appointing authority an appeal against this refusal under Article 90(2) of the Staff Regulations, reiterating his demand for financial compensation. The appointing authority rejected the complainant's request in its letter of 16 February 1998. It considered that the Commission had not committed administrative irregularities and was not responsible for his resignation, and that therefore it had not to pay a compensation. The complainant therefore lodged the present complaint to the Ombudsman, alleging that the Commission had failed to reinstate him at the end of his unpaid leave on personal grounds and refused to pay a compensation for a) the loss of salary because of the failure to reinstate him and for b) the financial loss due to his resignation.
THE INQUIRY
The Commission's opinion
In its opinion, the Commission referred to the reply of the appointing authority dated 16 February 1998. The appointing authority had reminded the complainant of the provision in Article 40(4)(d) of the Staff Regulations which requires the institution to reinstate an official at the expiry of the unpaid leave for personal grounds in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post. The procedure for establishing whether an official satisfies these requirements must actually take place and must be conducted in such a way that the institution concerned can prove that the stipulation was complied with. Failure to carry out such checks would constitute a wrongful act or omission which would entail liability from the Commission towards the applicant.
The Commission then observed that an examination of the steps taken by the complainant on the one hand and the Commission on the other did not show any irregularity in the reinstatement procedure. The appointing authority considered that the fact that the complainant had not been reinstated at the end of November 1996 was reasonable given that his leave on personal grounds expired two months before, on 30 September 1996. On these grounds, the complainant's request for compensation was refused as regards the period from the end of his leave on personal grounds to the date of his letter of resignation.
The appointing authority pointed out that, in its judgment of 1 July 1976(1), the Court of Justice ruled that in the case of an application for damages for failure to reinstate after the expiry of leave on personal grounds, the applicant cannot, in the absence of services rendered, claim payment of arrears of salary. He is nevertheless entitled to receive compensation for the actual damage he has suffered through the loss of this salary as a result of the unlawful conduct of the administration.
As regards the application for financial compensation from the date on which he retired, the complainant argued that he was forced to resign given that the administration left him with no income during the two months following the expiry of his leave. The Commission recalled the established case law according to which the Community institution is liable if the alleged conduct is unlawful, damage has actually been sustained and a causal link exists between the said conduct and the damage.
In the present case, the appointing authority checked that the Commission had actually taken steps and had done so in a proper manner, and that the period of two months between the expiry of the leave and his letter of resignation was a reasonable period, even if the complainant had not been reinstated. Also the complainant's resignation was the result of his having stated unequivocally in writing his intention to leave the service of the institution definitively, as laid down in Article 48 of the Staff Regulations. Given thus that the resignation was a voluntary act of the complainant, the Commission concluded that it beared no direct responsibility in this matter and that no blame could be attached to the Commission. Therefore the application for financial compensation was rejected.
The complainant's observations
The complainant maintained his complaint. He stated that there were in fact a number of perfectly suitable posts vacant at the time, and that the Commission did not examine his qualifications for any of these posts. He stated that four suitable posts were reserved for other particular candidates or for individuals from the new Member States. Therefore the complainant considered that the Commission's statement that there had not been an irregularity in the reinstatement procedure was not correct. The steps taken by the Commission had not been efficient given that they had not resulted in a single offer of reinstatement in the course of 3,5 months from the date he confirmed his intention to return, neither in a prospect of reinstatement in the future. The complainant concluded that the Commission's conduct was negligent, that he suffered damage and that the causal link between both was clear. On 22 April 1999, the complainant sent further details as regards 4 posts which were vacant at the time he asked for reinstatement.
FURTHER INQUIRIES
In order to verify whether the Commission examined in detail the abilities of the complainant in relation to the vacant posts corresponding to his grade, the Ombudsman asked on 23 April 1999 for further comments from the Commission on three points.
Firstly, the Ombudsman asked to obtain the list of all posts (including the requirements) corresponding to the complainant's grade (A4) which were vacant in the period following the expiry of his leave on personal grounds (30 September 1996).
Secondly, the Commission was requested to respond to the complainant's allegation that it did not examine his qualifications for any of the vacant posts, because they were reserved for other applicants.
Finally, the Ombudsman asked what was the justification for the consideration of the appointing authority that the posts which were vacant did not correspond to the complainant's qualifications (letter of Commissioner Liikanen dated 16 February 1998, page 3, last paragraph).
The Commission's second opinion
The Commission sent to the Ombudsman the lists of vacant management posts which were published every week between 18 July 1996 and 28 November 1996. The Commission reiterated that this dispute was the consequence of the complainant's unilateral decision of 25 November 1996 to resign from the Commission, less than two months after 1 October 1996. Therefore the Commission stated that it could not be held responsible for that decision or its impact on the complainant's income.
With regard to the complainant's allegation that it had not examined his qualifications for any of the vacant posts, the Commission observed that it is not disputed that there were A5/A4 posts vacant between 1 October 1996 and 30 November 1996, including the four Head of Unit posts cited by the complainant. The Commission first pointed out that one of the posts to which the complainant referred was an A3 post and therefore not relevant. It was thus necessary to examine whether the complainant's curriculum vitae demonstrated that he satisfied the requirements for the other three posts.
According to the complainant's CV, as an A4 official he had been principal administrator (A5/4) and subsequently Head of Division in DG II (Economic and Financial Affairs) between 1974 and 1990. Between 1990 and 1995 he was counselor to DG I in Paris. The Commission observed that the complainant's CV was sketchy on his career and skills, and that until 1988 the post of Head of Division was reserved for A3 officials. After 1990, the complainant was no longer Head of Division (or rather, Head of Unit).
The vacancies in question were for Head of the External dimension of the Internal Market and Financial Services Unit in DG XV, Head of the Unit monitoring the impact of the European Social Fund in DG V, and Head of the United Nations Unit in DG IA. Each of these posts required special skills. The Commission stated that there was reasonable doubt as to whether the complainant satisfied the requirement for these posts, both in relation to the level of responsibility (a candidate for a Head of Unit post must have proven management skills) and the other requirements. The administration could therefore not be blamed for not having reinstated the complainant immediately, because in such circumstances it must request additional information from the person concerned. That the Commission did not do so was due to the fact that the complainant retired before this could be done within a reasonable period of time.
DG IX of the Commission also contacted various Directorates-General, including DG I, DG II, DG VI and DG XXI in an attempt to find a suitable post for the complainant. However, those attempts did not lead to his reinstatement because the complainant's CV did not contain sufficient details on his abilities. The Commission observed that this CV was too vague to make an immediate decision possible.
The Commission therefore concluded that the administration was far from inactive in this matter and had started taking steps to reinstate the complainant.
The complainant's additional observations
The complainant maintained his complaint reiterating that he had not been offered any post in the 3,5 months following his request for reinstatement. The complainant also observed that his CV was intended to summarise his professional experience that was already known to the Commission since 22 years. The complainant added that he was indeed occupying an A3 post as Head of Division in DG II-E-2 from 1986 to 1987. The complainant stated that the posts to which the Commission referred were all in line with his experience and responsibilities at the Paris Delegation. Finally, he observed that the Commission could have asked for the additional information concerning his CV.
THE DECISION
1 The Commission's failure to reinstate the complainant at the end of his unpaid leave on personal grounds
1.1 The complainant alleged that the Commission failed to reinstate him at the end of his unpaid leave on personal grounds, on 30 September 1996. More particularly, two months after this date he still had not received an offer of reinstatement, nor was there any prospect of reinstatement for the near future. The Commission observed that the examination of the steps taken by the Commission showed that there had not been any irregularity in the reinstatement procedure. In its second opinion, the Commission added that there were reasonable doubts as to whether the complainant satisfied the requirements for the posts which were vacant. The Commission also pointed out that the complainant's CV was too vague to take an immediate decision on his reinstatement.
1.2 The Ombudsman notes that Article 40(4)(d) of the Staff Regulations foresees that on the expiry of his leave an official must be reinstated in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post. According to the case-law of the Court of First Instance, the administration shall verify systematically, through a detailed examination, the abilities of the official awaiting reinstatement in relation to each vacant post corresponding to his grade. Therefore the procedure for verifying the ability of officials awaiting reinstatement must be effective and must take its course in such a way that the institutions can prove that it has been observed. With this regard, although the competent authorities cannot be compelled to prove that they have examined the abilities of the official where there is a manifest divergence between his abilities and those required for a particular post which is vacant, such proof must nevertheless be adduced in all cases where, in the absence of such a manifest divergence, a complete verification of the abilities of the person concerned in relation to a vacant post is necessary. The failure to verify systematically the abilities of the official in question in relation to each vacant post to which he could have been reinstated constitutes a service-related fault which may give rise to liability on the administration's part insofar as such failure delays the reinstatement of the person concerned(2).
1.3 The Ombudsman shall therefore verify whether, in the present case, the Commission has made a detailed examination of the abilities of the complainant in relation to the posts which were vacant. It appears that the complainant asked on 12 August 1996 to be reinstated with effect from 1 October 1996. In its final decision of 16 February 1998 on the complainant's appeal under Article 90(2) of the Staff Regulations, the Appointing Authority merely observed that no Directorate General was able to offer a post to the complainant before the end of November 1996, because "either they had no pertinent vacant posts available, or the vacant posts did not correspond to the complainant's abilities". The Appointing Authority did not give any justification whatsoever for its conclusion that the complainant's abilities did not correspond to those required by the vacant posts, nor referred to the particular posts which were vacant.
1.4 The Ombudsman therefore asked for more details on the list of posts which were vacant in the period following the expiry of the complainant's leave on personal grounds. He also requested the Commission to indicate what was the Appointing Authority's justification for its conclusion that the complainant's abilities did not correspond to those of the vacant posts. From the lists of vacant posts published between 18 July 1996 and 28 November 1996, it appears that during this period there were more than twenty-five A5/A4 posts vacant(3).
1.5 However, in its opinion to the Ombudsman, with the exception of the 4 posts indicated by the complainant himself, the Commission made no reference to any particular vacant A5/A4 post out of these lists, nor gave a justification, even shortly, why the complainant could not be reinstated in one of those posts. With regard to three of the four posts mentioned by the complainant, the Commission again merely observed, without a detailed examination, that there was reasonable doubt whether the complainant satisfied the requirements for these posts, both in relation to the level of responsibility (need of proven management skills for Head of Unit posts) and the other requirements. The Commission even added that, given this genuine uncertainty, the administration must, in such circumstances, request additional information from the person concerned. This requirement has also been confirmed by the jurisprudence of the Court of First Instance(4). However, the Commission did not proceed so.
1.6 From the above, the Ombudsman concludes that the Commission failed to carry out the detailed examination, as required by the case-law of the Court of Justice, of the complainant's abilities in relation to each vacant post corresponding to his grade. This is also confirmed by the fact that the Commission based its judgement of the abilities of the complainant with regard to the vacant posts only on the complainant's curriculum vitae, which it considered itself to be too vague and sketchy, and without asking the complainant for more detailed information. It also appears that at no time did the Commission consult the details of the complainant's personal file, what it could have done given that he had worked for the Commission for 22 years.
1.7 It appears thus from these considerations that the Commission's failure to undertake a detailed examination of the complainant's qualifications for the posts in question constitutes an instance of maladministration capable of rendering the Commission liable to the complainant. Given that, because of the Commission's and the complainant's opposite opinions, it was not possible to find a friendly solution between the parties on this point, the Ombudsman makes the draft recommendation below.
2 The complainant's claims for a financial compensation for the Commission's failure to reinstate him and the financial implications of his resignation
2.1 The complainant claimed a compensation for 1) the loss of salary (between the end of his unpaid leave until the date of his resignation) due to the Commission's failure to reinstate him at the end of his unpaid leave on personal grounds, and for 2) the financial loss linked to the fact that he had to resign from the Commission. The Commission refused to pay both compensations because it considered that, on the one hand, it had not committed an irregularity in the reinstatement procedure, and on the other hand, it could not be held responsible for the complainant's unilateral decision to resign from the Commission.
2.2 With regard to the first claim for compensation due to the Commission's failure to reinstate the complainant, the Ombudsman notes that, according to the case-law of the Court of Justice, the applicant for damages for failure to reinstate after the expiry of the leave on personal grounds cannot, in the absence of services rendered, claim payment of arrears of salary. He is nevertheless entitled to receive compensation for the actual damage suffered through the loss of this salary as a result of the unlawful conduct of the administration(5).
2.3 Therefore, in the present case, the Commission should compensate the complainant for the material damage directly suffered by him as a result of the Commission service's related fault which is the failure to undertake a detailed examination of the complainant's qualifications for the posts which were vacant after the expiry of his leave on personal grounds. The Ombudsman does not consider himself able to determine the amount of this compensation. He invites the parties to agree on the principle and the amount of a financial compensation. The Ombudsman therefore makes the draft recommendation below. 2.4 With regard to the second claim, the Ombudsman notes that, according to the case law of the Court of Justice, the institution concerned cannot be held liable for any financial loss arising out of the official's decision to leave his employment before receiving notice of his reinstatement(6). Article 40(4)(d) in fine indeed foresees that until effectively reinstated, the official shall remain on unpaid leave on personal grounds. The Ombudsman therefore considers that in the present case the Commission cannot be held responsible for the complainant's unilateral decision to resign. Therefore the complainant's claim for compensation is not grounded, and no maladministration was found concerning this aspect of the case.
3 Conclusion
According to the case-law of the Court of First Instance, the administration shall verify systematically, through a detailed examination, the abilities of the official awaiting reinstatement in relation to each vacant post corresponding to his grade.
In the present case, the Appointing Authority did not give any justification whatsoever for its conclusion that the complainant's abilities did not correspond to those required by the vacant posts. Also, with the exception of the 4 posts indicated by the complainant himself, the Commission made no reference to any particular vacant A5/A4 post out of the lists, nor gave a justification, even shortly, why the complainant could not be reinstated in one of those posts. The Commission based its judgement of the abilities of the complainant with regard to the vacant posts only on the complainant's curriculum vitae, which it considered itself to be too vague and sketchy, and without asking the complainant for more detailed information. Therefore, the Ombudsman concludes that the Commission failed to carry out the detailed examination, as required by the case-law of the Court of Justice, of the complainant's abilities in relation to each vacant post corresponding to his grade. This failure constitutes an instance of maladministration capable of rendering the Commission liable to the complainant.
In view of these conclusions (points 1.7 and 2.3), and given that it was not possible to find a friendly solution between the parties on this point, the Ombudsman makes the following draft recommendation to the European Commission:
- The Commission should compensate the complainant for the material damage he directly suffered as a result of the Commission's service related fault which is the failure to undertake a detailed examination of the complainant's qualifications for the posts which were vacant after the expiry of his leave on personal grounds.
The European Commission will be informed of these draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion within three months. The detailed opinion could consist of the acceptance of the Ombudsman's recommendation and a description of the measures taken to implement the recommendation.
Yours sincerely
Jacob SÖDERMAN
(1) Case 58/75, Sergy v. Commission, [1976] ECR 1139.
(2) Case T-48/90, Giordani v. Commission, [1993], ECR II-721, paragraphs 50 to 56; Case T-276/94, Buick v. Commission, [1995], ECR, II-667, paragraphs 34 to 46; Case T-205/96, Bieber v. Parliament, [1998], ECR II-723.
(3) Vacancies COM/088/96, COM/090/96, COM/093/96, COM/094/96, COM/095/96, COM/096/96, COM/R/5138/96, COM/036/96, COM/105/96, COM/104/96, COM/103/96, COM/109/96, COM/110/96, COM/065/96, COM/113/96, COM/118/96, COM/122/96, COM/120/96, COM/126/96, COM/115/96, COM/116/96, COM/128/96, COM/R/5659/96, COM/131/96, COM/155/96 COM/157/96, COM/163/96.
(4) See Case T-276/94 above, paragraph 43.
(5) Case 58/75, Sergy v. Commission, [1976] ECR 1139, paragraph 39.
(6) Case 292/87, Pizziolo v. Commission, [1988] ECR 5165.
(7) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, 1994 OJ L 113/15.