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). 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). 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) 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) 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). 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.

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

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(1) OJ L 70/1 of 13 March 2002.

(2) Council Joint Action of 11 March 2002 on the European Police Mission, article 5(3).

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

(4) OJ L 293/2 of 29 October 2002.

(5) Article 13 of the European Code of Good Administrative Behaviour.