Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The Internal rules of the Joint Promotions Committee regarding the promotion of officials of the European and Economic Social Committee ('EESC') dated 3 October 2008 ('the EESC's internal rules for promotion'[2]) set out three possible dates for retroactive promotion of EESC officials:

- As of 1 January 2008, for officials proposed unanimously by the Joint Promotions Committee and who have reached the reference threshold of eligibility for promotion;

- As of 1 April 2008, for officials proposed unanimously by the Joint Promotions Committee and who have not reached the reference threshold of eligibility for promotion or for officials proposed by a majority of the members of the Joint Promotions Committee who have reached the reference threshold of eligibility for promotion;

- As of 1 July 2008: for officials proposed by a majority of the members of the Joint Promotions Committee and who have not reached the reference threshold of eligibility for promotion.

2. The complainant is an official of the EESC. She was proposed for promotion unanimously by the Joint Promotions Committee but had not reached the reference threshold of eligibility for promotion[3].

3. By decision of 23 July 2008, received on 15 September 2008, the complainant was promoted from grade AST 8 to grade AST 9, with a retroactive effect as of 1 April 2008, pursuant to the EESC's internal rules for promotion.

4. On 3 October 2008, the Appointing Authority published in the designated place on the EESC's premises, the list of all the officials promoted in 2008, as well as the specific date of their promotion ('the first list'). This list was then published on EESC's Intranet website on 2 December 2008.

5. Ms F., one of the complainant's colleagues whose name appeared on the first list, was also promoted as of 1 April 2008. Ms F. was then seconded to one of the EESC's political groups.

6. Subsequently, on 10 February 2009, the Appointing Authority published, in the same designated place on EESC's premises, a revised list of the officials promoted in 2008 ('the revised list'). The revised list modified the effective date of Ms F.'s promotion. The Appointing Authority put her name on the list of officials promoted as of 1 January 2008. As regards the promotions of other officials, the content of the second list was the same as that of the first list.

7. On 10 February 2009, the complainant sent a letter to the EESC Appointing Authority. A copy of the letter was also sent to the President of the Staff Committee, and to the Head of Human Resources of the EESC. The complainant stated that Ms F. was promoted as of 1 January 2008, despite having neither been proposed unanimously by the Joint Promotions Committee, nor reached the reference threshold of eligibility for promotion. In her letter, the complainant stated the following:

"On the basis of Article 90 of the Staff Regulations, I request the Appointing Authority to re examine the date of my retroactive promotion.

Actually, in order to be promoted as of 1 January 2008, one had to be proposed unanimously by the Joint Promotions Committee. This would not be the case for one of my colleagues for which a revised list was published. I remind you that I was proposed unanimously and thus retroactively promoted as of 1 April 2008. Thus, on the basis of Article 90 of the Staff Regulations, I request for an equality of treatment and I ask to benefit from the same retroactivity as of 1 January 2008."[4]

8. On 4 June 2009, she sent a follow-up e-mail to the Appointing Authority and asked for a reply to her letter.

9. On 31 July 2009, the Appointing Authority replied to the complainant. It argued that her "Article 90(1) request was inadmissible" because it had been submitted too late. The Appointing Authority stated that she should have submitted her request within three months of being informed of her promotion, that is to say, she should have submitted her request no later than 15 December 2008. The Appointing Authority further argued that the revised list dated 10 February 2009 was merely a confirmatory list as regards the complainant's date of promotion. The Appointing Authority informed the complainant that this list could not be regarded as a new element which would allow the statutory deadline for lodging appeals to be reopened. It further stated that, "should the complainant's letter be considered as an Article 90(2) complaint", the complainant had no direct and individual interest for challenging the decision concerning another official.

10. In a letter dated 4 August 2009 to the EESC, the complainant stated that in her letter of 10 February 2009, she submitted "an appeal which in her view was based on Article 90 of the Staff Regulations." She went on to point out that it would have been impossible for her to lodge an appeal before that date, since it was only on that date that she had herself become aware of the retroactive promotion of her colleague, whose situation she compared to her own. She also argued that (i) Ms F. was promoted as of 1 January 2008 for political reasons, and (ii) she, the complainant, suffered discrimination in light of the fact that Ms F. was promoted as of 1 January 2008, despite the fact that she did not comply with the relevant promotion criteria.

11. On 16 October 2009, the EESC replied to the complainant's letter dated 4 August 2009, repeating its argument that "there was no new element in the complainant's file which could justify the reopening of the deadlines foreseen in Article 90 of the Staff Regulations". It further stated that the complainant had "no individual interest for challenging the Appointing Authority's decision to promote one of her colleagues".

12. The complainant was not satisfied with the EESC's reply. On 20 October 2009, she lodged the present complaint with the Ombudsman[5].

The subject matter of the inquiry

13. In her original complaint, the complainant made the following allegation and claim, both of which were included in the inquiry.

14. She alleged that the EESC failed to reply to the argument set out in her complaint of 10 February 2009, lodged under Article 90 of the Staff Regulations, and reiterated in her letter dated 4 August 2009, that her colleague was promoted because of political reasons. According to the complainant, the EESC thus failed to comply with its obligation to respect transparency.

15. She claimed that she should be given a satisfactory reply to her argument that her colleague was promoted because of political reasons.

16. In her observations on the EESC's opinion, the complainant submitted a new claim that all her colleagues promoted in 2008 or in later years should be promoted as of 1 January 2008, or, where appropriate, as of 1 January of the subsequent years.

17. Moreover, the complainant also argued in her observations that the EESC infringed the principle of equality of treatment by not promoting her together with Ms F. as of January 2008. She recalled that, despite enjoying administrative discretion in assessing the merits of officials when deciding whether they are deserving of promotion, the Appointing Authority is circumscribed by "the need to undertake a comparative consideration of candidates with care and impartiality"[6]. Also, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently unless such treatment is objectively justified, that is to say, that it is based on objective criteria[7]. In her view, there was an instance of discrimination in her case.

18. The Ombudsman does not, however, find grounds to deal with the above new claim and argument within the framework of the present case, for the following reason. Were the Ombudsman to conclude that the promotion of Ms F. as of 1 January 2008 constituted an instance of maladministration because it was contrary to the EESC's internal rules on promotion, the Ombudsman could obviously not propose to the EESC that it should promote the complainant or her other colleagues as of 1 January 2008 (or, as the case may be, as of 1 January of the subsequent years), since such an action by the EESC would also go against the specific provisions of the said rules.

The inquiry

19. On 18 November 2009, the Ombudsman opened an inquiry into the complainant’s allegation and claim. The EESC sent its opinion on 15 March 2010.

20. The Ombudsman forwarded the EESC's opinion to the complainant with an invitation to make observations, which she sent on 4 May 2010.

21. On 10 December 2010, in accordance with Article 3 (2) of the Ombudsman's Statute[8], the Ombudsman's services carried out an inspection of the documents in the file[9]. The report on the inspection was sent to both the complainant and the EESC on 15 December 2010.

The Ombudsman's analysis and conclusions

A. Alleged failure to reply to the complainant's argument and alleged lack of transparency

Arguments presented to the Ombudsman

22. The complainant considered that her letter dated 10 February 2010 constituted an appeal made in conformity with Article 90(2) of the Staff Regulations. She considered that she had an interest in challenging the Appointing Authority's decision of 10 February 2010 to promote Ms F. as of 1 January 2008, to the extent that she was in a similar situation but was promoted only as of 1 April 2008. If she had been promoted as of the same date as Ms F., she could have retired earlier, as had Ms F.

23. In support of her allegation, she argued that the reasons for Ms F.'s earlier date of promotion were politically motivated. In summary, the complainant took the view that the principle of transparency was at stake and that the EESC's failure to reply to her argument was, therefore, particularly serious.

24. In its short opinion, the EESC made only the following statement.

"Further to the letter of 18 November 2009 addressed to the President of the European Economic and Social Committee, the file has been re-examined and the following comments and observations regarding the complainant's complaint can be made:

By reasoned decision of 31 July 2009, the complainant's request/complaint lodged under Article 90 of the Staff Regulations was rejected as being inadmissible. Following the complainant's letter of 4 August 2009, this position was confirmed by way of a decision of 16 October 2009, which has now become definitive.

Since the complainant's pre-contentious letters were inadmissible, there was no basis for the amicable solution sought by the complainant and thus no reason for addressing the substance of her letters.

Concerning the complainant's views on the allegedly political nature of the promotion of one of her colleagues, the complainant's argument can be considered to be inconclusive and indeed contradictory. On the one hand, the complainant questions the legality of the said promotion and, on the other hand, seeks to be given the same or similar treatment.

Finally, I consider that the principle of transparency invoked by the complainant does not set aside or otherwise overrule the aforementioned reasons of inadmissibility and absence of merits of her complaint within the meaning of Article 90 (2) Statute.

Against this background there was no room for addressing the promotion of the complainant's colleague."

25. In her observations, the complainant stated that it was the revised list which adversely affected her situation. Put otherwise, the revised list modified the Appointing Authority's decision of 23 July 2008, received on 15 September 2008, which promoted her to grade AST 9. She then referred to the judgment of the General Court of the EU in the case Christos Michaël v Commission[10], according to which "[t]he promotion procedure culminates in the formal decision of the list of officials promoted. That final decision names the officials promoted as a result of the promotion exercise in question. Accordingly, it is on publication of that list that the officials who considered themselves eligible for promotion learn, in a manner which is final and not open to doubt, of the assessment of their respective merits and are able to tell whether their legal position is affected". She stated that she had already submitted this argument in her letter dated 4 August 2009, but that the Appointing Authority had failed to reply to it.

26. Moreover, the complainant referred to another example taken from the case law which illustrates the duty imposed on the Appointing Authority to state reasons for its decision to reject an appeal lodged under Article 90(2) of the Staff Regulations[11]. The complainant pointed out that, in her case, the Appointing Authority never gave any reasons for its decision to promote Ms F. retroactively as of 1 January 2008, and the complainant as of 1 April 2008.

27. The complainant also argued that the Appointing Authority failed to reply to her appeal of 10 February 2009 within the statutory deadlines, and she referred to the relevant case law[12].

28. The complainant concluded that the Appointing Authority infringed the EESC's internal rules for promotion because Ms F. was retroactively promoted as of 1 January 2008, despite the undisputed fact that she was not proposed unanimously by the Joint Promotions Committee, and she had not reached the reference threshold of eligibility for promotion. The complainant referred once again to the case law of the Court of Justice of the EU, according to which, "[w]hen, by a decision of an internal nature, the appointing authority voluntarily institutes a compulsory consultative procedure which is not prescribed by the Staff Regulations, it is obliged to observe that procedure, which cannot be regarded as having no legal significance"[13].

The Ombudsman's assessment

29. In its letters to the complainant dated 31 July and 16 October 2009, the EESC did not reply to the complainant's concerns relating to the dates on which she and Ms F. were promoted. The Ombudsman regrets that the EESC did not use the present inquiry as an opportunity to remedy this failure, and that its opinion also failed to provide the complainant with a reply to her concerns. The EESC considered that it did not need to do so because the complainant missed the deadline for submitting an appeal under Article 90 of the Staff Regulations. The EESC reached this conclusion by taking the view that, since both the initial and the revised list relating to this case were the same, the decisive factor in this matter was the decision to promote the complainant, which, as shown by the initial list which was published in October 2008, was taken in September 2008, and not the revised list, which was published in February 2009.

30. The Ombudsman cannot agree with the above views of the EESC.

31. First, even if the list published in February 2009 modified the list of October 2008 only in relation to the date of Ms F's promotion, the lists could obviously not have been the same. It is reasonable to assume that the revised list replaced the initial list.

32. Second, according to the judgment in Christos Michaël v Commission, rightly referred to by the complainant in her observations (see paragraph 25 above), which applies by analogy to the present case, the publication of the list of promotions constitutes the act which may adversely affect officials not mentioned on that list[14].

33. Third, it is absolutely clear that the complainant's letter dated 10 February 2009 satisfied the formalities for an Article 90 (2) appeal against the Appointing Authority's decision of that same date, which established the list of promotions, since (i) it was sent to the Appointing Authority via the hierarchical channels; (ii) the complainant herself identified this letter as being such an appeal in her letter dated 4 August 2009, and (iii) in its first reply dated 31 July 2009, the EESC did not exclude treating this letter as an appeal under Article 90(2) of the Staff Regulations (albeit under conditions which appear not to be relevant in light of the judgment in Michaël v Commission). In this respect, the Ombudsman recalls established case law according to which a letter from an official which does not expressly request the withdrawal of a decision in question, clearly constitutes an attempt to achieve an amicable settlement of his or her complaint. Conversely, a letter which clearly expresses an official's intention to challenge a decision adversely affecting him or her, constitutes a complaint[15].

34. Nevertheless, even if one were to assume that the complainant's letter dated 10 February 2009 could not be considered to be an Article 90(2) appeal, the EESC should, nevertheless, have replied to it in substance. The Ombudsman points out that principles of good administration require that the institutions should give clear and precise reasons for their decisions[16].

35. Finally, the Ombudsman points out that the EESC's internal rules for promotion provide clear criteria for establishing the date of retroactive promotions for its officials. In order to be promoted on the relevant date (1 January 2008), officials would, in other words, have needed to (i) have obtained a certain number of points (threshold of reference), and (ii) have been proposed unanimously by the members of the Joint Promotions Committee. The complainant took the view that Ms F. did not fulfill these two criteria for being promoted as of 1 January 2008, but was, rather, promoted because of political reasons.

36. In light of the short and uninformative opinion submitted by the EESC in the inquiry, and with an eye to ascertaining the reasons which led to the modification of Ms F.'s date of promotion so that it could take effect as of January 2008, the Ombudsman considered whether it would be necessary for him to request testimonies from the officials concerned. The Ombudsman recalls that Article 3.2 of his Statute establishes that "[o]fficials and other servants of Community institutions and bodies must testify at the request of the Ombudsman". The Ombudsman considered, however, that it would be appropriate to first inspect the documents in the institution's file relating to promotions for the year 2008.

37. As a result of his inspection, the Ombudsman reached the conclusion that the complainant is justified in taking the view that undue pressure was brought to bear on the EESC's administration to depart from the EESC internal rules on promotion, and to promote Ms F. as of 1 January 2008, and not as of 1 July 2008. The inspection of all the documents in the file also revealed that Ms F. was fully aware of this fact. Since the information and evidence obtained during the inspection of the file is sufficient to establish the relevant facts, the Ombudsman decided not to request testimonies from the public servants involved.

38. In light of the above, the Ombudsman is of the view that the EESC's failure to answer to the complainant's claim that Ms F. was promoted for political reasons, constitutes a particularly serious instance of maladministration, which comes on top of the unacceptable and undue pressure which was brought to bear on the EESC's administration in order to depart from the EESC rules on promotion.

39. The Ombudsman’s Statute requires him to seek a friendly solution to complaints as far as possible. He considers, however, that a friendly solution to the present complaint would not be appropriate.

40. As regards the complainant's interests, the Ombudsman recalls that her claim, which was taken up in the present inquiry, was that the Institution should reply to her argument regarding transparency. However, given the outcome of the Ombudsman’s inspection of documents described in paragraph 37 above, a reply from the EESC to that argument would no longer serve any useful purpose. The Ombudsman recalls in this regard that his inquiry did not include the claim that the complainant should be treated in the same way as Ms F., since, as rightly noted by the EESC, accepting such a claim, would, in fact, require the EESC to act against its own rules.

41. In the light of the findings of his inquiry, the Ombudsman considers that it is in the public interest for him to pursue the present case. As a first step in doing so, the Ombudsman will make a draft recommendation to the EESC.

B. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the Institution:

The Institution should

(i) acknowledge that it acted wrongly when it changed its original decision and promoted one of its officials as of 1 January 2008, and thus acted against its own rules on promotion;

(ii) correct its wrongful behaviour by rectifying the date of promotion of the official concerned, in accordance with the applicable rules;

(iii) explain to the Ombudsman what measures it intends to take in order to prevent, in the future, situations in which the administration allows undue political interference and pressure to influence its decision-making procedures.

The Institution and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Institution shall send a detailed opinion by 30 April 2011. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 4 February 2011

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] The Director for Financial and Human Resources communicated these rules to the EESC's staff members by e-mail of 3 October 2008.

[3] There is no indication of the reference threshold of eligibility for promotion in the complainant's file.

[4] Translation by the Ombudsman's services from the French original version.

[5] On 18 June 2009, the complainant submitted complaint 1584/2009/MF to the Ombudsman. The complaint was closed as inadmissible in accordance with Article 2(8) of the Ombudsman's Statute because the complainant did not clarify at that time the nature of the letter dated 10 February 2009, which she had sent to the EESC's Appointing Authority.

[6] Case T-76/92 Tsirimokos v Parliament [1993] ECR II-1281-paragraph 21 "Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service. In practice, consideration of the comparative merits of candidates must therefore be undertaken on a basis of equality, using comparable sources of information."

[7] Case T-262/94 Jean Baiwir v Commission [1996] ECR SC I-A-257; II-739.

[8] Article 3 (2) of the Ombudsman's Statute reads as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned."

[9] The EESC considered the inspected documents to be confidential. This meant that the public and the complainant could not have access to them.

[10] Case T-144/95,Christos Michaël v Commission [1996] ECR SC I-A-529,II-01429, paragraph 30.

[11] Case C-343/87 Annibale Culin v Commission [1990] ECR I 225 paragraph 13, which states: "In that connection, it should be noted that the Court has consistently held that the appointing authority is not obliged to give reasons for a promotion decision in so far as they affect candidates who have not been promoted, but that it is obliged to give reasons for its decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations by a candidate who has not been promoted."

[12] Case T-117/01 Marcos Roman Parra v Commission [2002] ECR- SC I-A-27; II-121 ("In such a case, the official is therefore deprived of sufficient information for a preliminary assessment of the grounds justifying his/her decision to appeal against the decision".)

[13] Case T-128/89 Christian Brumter v Council [1990] ECR II-545.

[14] Paragraph 31 of Case T-144/95, Christos Michaël v Commission: "In principle, that decision (formal adoption of the list of officials promoted) constitutes an act adversely affecting the interests of an official, which may be challenged before the Court by those who consider their interests damaged thereby, in that they have not been promoted".

[15] Case T-14/91 Weyrich v. Commission [1991] ECR II-235, paragraph 39.

[16] Article 18 of the European Code of Good Administrative Behaviour (Duty to state the grounds of decisions) states the following:

"1. Every decision of the Institution which may adversely affect the rights or interests of a private person shall state the grounds on which it is based by indicating clearly the relevant facts and the legal basis of the decision.

2. The official shall avoid making decisions which are based on brief or vague grounds or which do not contain individual reasoning.

3. If it is not possible, because of the large number of persons concerned by similar decisions, to communicate in detail the grounds of the decision and where standard replies are therefore made, the official shall guarantee that he subsequently provides the citizen who expressly requests it with an individual reasoning."