Strasbourg, 18 December 2006

Dear Mr X,

On 14 August 2003, you made a complaint to the European Ombudsman against the Commission and the European Anti-fraud Office (OLAF) concerning disciplinary proceedings launched by the Commission against you.

On 30 September 2003, I forwarded the complaint to the President of the Commission and the Director of OLAF. On 23 January 2004, the Commission sent an opinion. On 4 February 2004, the Director of OLAF informed me that OLAF had taken part in the drafting of the Commission's opinion and fully agreed with its content. I forwarded the opinion to you with an invitation to make observations, which you sent on 26 March 2004.

On 11 November 2004, I submitted a proposal for a friendly solution to the Commission, and on that same date I sent you a copy of my letter to the Commission. The Commission sent its reply on 19 January 2005. On 22 February 2005, I requested further information from the Commission and informed you accordingly on the same date. On 21 April 2005, the Commission replied to my request. I forwarded to you both replies from the Commission and invited you to make observations, which you sent on 20 June 2005.

On 15 December 2005, I wrote to Commissioner Kallas about your complaint. Commissioner Kallas' reply was received on 18 April 2006. I invited you to make observations on this reply, which you did on 13 June 2006.

I sent you information on the handling of your complaint on 15 July 2004, 5 October 2004, 14 November 2005, 13 February 2006 and 3 May 2006.

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

THE COMPLAINT

The complainant is a former member of the cabinet of a Commissioner. He lodged a previous complaint with the European Ombudsman (781/2001/IJH) against both the Commission and OLAF.

According to the complainant, the relevant facts are, in summary, as follows:

In 1999, OLAF interviewed the complainant about Mr Y.'s situation and about advice he might have given to colleagues about how to delete sensitive material from their computers at the end of the mandate of the Commission. Following OLAF's inquiry, a disciplinary procedure was launched against the complainant. The complainant made a complaint under Article 90 (2) of the Staff Regulations concerning the decision to begin disciplinary proceedings against him and a press release.

In his previous complaint to the Ombudsman (781/2001/IJH), he alleged that:

• the Commission violated his civil rights by publishing a press release concerning the disciplinary procedure against him and failed both to respond to his questions concerning the disciplinary procedure and to inform him of the outcome of the procedure;
• OLAF had violated the rights of the defence, as well as the principle that the conclusions of an investigation must be based solely on elements which have evidential value.

He also claimed compensation.

The Ombudsman addressed a draft recommendation to the Commission, stating that the Commission should inform the complainant of the outcome of, or the next step in, the disciplinary procedure. He also addressed a critical remark to OLAF in relation to its failure to inform the complainant of the allegation against him and to give him the opportunity to express his views, before reaching a conclusion that he was implicated in the deletion of electronic versions of false reports. In September 2002, the Ombudsman was informed that the Appointing Authority had acquitted the complainant of the charges made against him in the disciplinary procedure. It seemed therefore unnecessary for the Ombudsman to make further inquiries concerning this aspect of the complaint.

As regards the complainant's claim for compensation, the Ombudsman noted that the complainant had submitted a request to the Commission pursuant to Article 90 (1) of the Staff Regulations and pointed out that the complainant could submit a new complaint when the procedures referred to in Article 90 (1) and (2) had been exhausted. This is the object of the present complaint.

On 13 May 2002, the complainant claimed compensation from OLAF on the basis of Article 288 of the EC Treaty, arguing that the Ombudsman's decision on complaint 781/2001/IJH stated that OLAF did not comply with Commission Decision 1999/396(1) and Regulation (EC) No 1073/1999(2) and that the damage was the result of the disciplinary proceeding. On 19 July 2002, OLAF replied in the negative. On 29 August 2002, the complainant made a complaint to the Director of OLAF under Article 14 of Regulation 1073/1999 against OLAF's decision of 19 July 2002. On 5 November 2002, OLAF rejected his complaint, considering that the letter of 19 July 2002 was not a decision adversely affecting the complainant.

On 8 October 2002, the complainant claimed compensation from the Commission, based on Article 90 (1) of the Staff Regulations, in which he requested the repayment of the costs he incurred during the disciplinary procedure and compensation. According to the complainant, the illegality of the Commission's behaviour is based on the fact that:

• his involvement in writing false reports is not established,
• the rights of the defence and the right to good administration were not complied with,
• the length of the disciplinary procedure was excessive, as pointed out by the Ombudsman in decision 781/2001/IJH,
• the Commission did not comply with the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union,
• OLAF's inquiry was illegal, as stated in the Ombudsman's decision 781/2001/IJH.

The complainant considered that the damage resulted directly from the disciplinary procedure and its length. He evaluated the material loss at EUR 6 500 (of which EUR 5 439 corresponds to lawyer's fees, the rest being postal expenses and time spent to prepare his defence) and the non-material loss at EUR 5 000 (damage to his reputation as a senior official, non-material damage to himself and his family). He indicated that he had made the same request to OLAF and that he had no intention to request compensation twice for the same damage.

On 27 February 2003, the complainant lodged a complaint pursuant to Article 90 (2) of the Staff Regulations for failure to reply to his previous request. This complaint was registered but he received no reply within the prescribed deadline, which constituted an implied decision rejecting the complaint(3).

In his complaint to the Ombudsman, the complainant alleged that the Commission and OLAF rejected the requests for compensation he addressed to them following the Commission's decision to acquit him and the decision of the European Ombudsman in a previous complaint on the same subject. He claimed compensation from the Commission and OLAF in respect of the costs of preparing his defence and the loss he suffered.

The complainant requested confidentiality.

THE INQUIRY

The Commission's and OLAF's opinion

The Ombudsman forwarded the complaint to the President of the Commission and to the Director of OLAF. The Ombudsman received an opinion from the Commission. The Director of OLAF informed the Ombudsman that OLAF had taken part in the drafting of this opinion and fully agreed with its content. The Ombudsman therefore understood the opinion to represent the joint views of the Commission and OLAF on the complaint. The opinion can be summarised as follows:

The complainant was a former temporary agent of the European Commission. On 13 May 2002, he claimed compensation from OLAF in accordance with Article 288 of the Treaty. On 19 July 2002, the Director of OLAF rejected his request. The complainant then lodged a complaint against this decision in accordance with Article 14 of Regulation 1073/1999. This complaint was rejected on 5 November 2002.

On 8 October 2002, the complainant submitted a request to the Appointing Authority of the Commission that it take a decision in accordance with Article 90 (1) of the Staff Regulations. Following an implicit refusal, the complainant lodged, on 27 February 2003, a complaint in accordance with Article 90 (2) of the Staff Regulations. Contrary to what the complainant stated, the Commission rejected this complaint on 31 July 2003. This decision was sent by registered mail to the complainant, who never took delivery of it and it was returned to the Commission. A copy of the decision was sent by ordinary mail to the complainant on 27 August 2003.

The Commission referred to the decision taken by the Commission on 31 July 2003 and to the decisions taken by OLAF on 19 July 2002 and 5 November 2002:

Letter from OLAF to the complainant dated 19 July 2002

This letter replied in the negative to the complainant's claim for compensation based on Article 288 of the Treaty.

According to OLAF, a disciplinary action cannot lead to compensation. All guarantees were taken during the procedure to ensure that the rights of the defence had been complied with.

OLAF also stated that after having been informed of the content of its final report, the complainant did not lodge, within three months, an appeal on the basis of Article 14 of Regulation 1073/1999. His request was not within the deadline.

Letter from OLAF to the complainant dated 5 November 2002

OLAF did not consider that the complainant's request based on Article 14 of Regulation 1073/1999 was relevant, as the letter from OLAF dated 19 July 2002 was not a decision adversely affecting the complainant.

Moreover, OLAF referred to a judgment of the Court(4) and gave substantial reasons to explain why the complainant's case was unfounded:

- "the final report is, by definition, supposed to be followed up by the administration, which means that it is preparatory, and thus does not give rise to compensation"(5);

- damage due to a disciplinary action is correctly compensated by the final decision, i.e., the acquittal;

- "if the final report had been shown to you and if it had been amended, there is no evidence to enable the administration to launch disciplinary proceedings"(6).

As, on 30 June 2000, the complainant was informed that OLAF rejected his complaint under Article 14 of Regulation 1073/1999 and, as no new decision affecting him was taken, his request was rejected.

The Commission's decision dated 31 July 2003(7)

On 8 October 2002, the complainant requested the repayment of the costs incurred in preparing his defence and compensation for the delay in the procedure. On 8 February 2003, this request was implicitly rejected.

On 27 February 2003, the complainant lodged an appeal based on Article 90 (2) of the Staff Regulations against the implicit rejection of his request made on 8 October 2002. He requested compensation, in accordance with Article 288 of the Treaty, for the material loss (including the costs of his defence) and the non-material loss that he suffered.

The Commission drew a distinction between two types of disciplinary proceedings. The reimbursement of expenses for lawyers only applied to the disciplinary procedure described by Annex IX to the Staff Regulations. This meant that reimbursement was limited to disciplinary procedures in which the Disciplinary Board gave an opinion and when a written warning or a reprimand was issued, or when the case was dismissed.

According to the legislator, when the Appointing Authority takes a decision which could have been made without the intervention of the Disciplinary Board, the official or the agent could have been spared the expenses that he or she incurred and should therefore be reimbursed.

The legislator evidently excluded the general reimbursement of lawyer's fees incurred on the initiative of an official who is the subject of a disciplinary procedure that results, at most, in a reprimand and does not involve the convocation of the Disciplinary Board.

In the present case, the procedure involving the complainant did not go to the Disciplinary Board and led to the case being dismissed. Therefore, the complainant was not entitled to reimbursement of his expenses.

As regards compensation for the delays in the procedure, the complainant based his request on Article 288 of the EC Treaty. The Commission considered that, in accordance with a judgment of the Court(8), Article 288 did not apply to the complainant's case, but Article 236 of the EC Treaty and Articles 90 and 91 of the Staff Regulations did. The Commission could only be held liable for damages if a number of conditions were satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered(9). The Commission considered that, because of the involvement of other persons against whom disciplinary proceedings were also launched, the disciplinary proceedings against the complainant, were long but not disproportionate. In view of the complexity of the file, it thus disagreed with the Ombudsman's conclusion in the previous complaint. The condition as regards the illegality of an act committed by the Commission was thus not met.

The complainant's observations

In his observations, the complainant made, in summary, the following points:

The complainant found it surprising that the Commission and OLAF replied only on 23 January 2004 to the Ombudsman whereas the deadline granted was 31 December 2003. He drew attention to the fact that delays in the replies of the Commission and OLAF were common in this file.

The complainant stressed the fact that he never received the registered letter from the Commission dated 1 August 2003 and that he only received the letter dated 27 August 2003 in September 2003 after having lodged the present complaint with the Ombudsman.

The complainant made the following observations on the various documents attached to the Commission's opinion:

Letter from OLAF to the complainant dated 19 July 2002

On 29 August 2002, the complainant lodged an appeal, based on Article 14 of Regulation 1073/1999, against this decision.

Letter from OLAF to the complainant dated 5 November 2002

According to the complainant, the judgment of the Court quoted by OLAF was not relevant as OLAF was not acting as Appointing Authority and as the complainant's appeal was based on Regulation 1073/1999.

The complainant agreed that OLAF's report was preparatory. However, if OLAF's inquiry had been carried out according to the principle of good administration, no disciplinary action should have been launched against the complainant.

The final decision in the disciplinary action did not lead to compensation for the complainant.

The complainant did not understand the third indent of the letter.

Decision from the Commission dated 31 July 2003

The complainant wondered about the link between the disciplinary action launched against him and the disciplinary action against other agents. The Commission indicated that it should await the decision of the Disciplinary Board in another case. The Disciplinary Board met in October 2001; however, the procedure concerning the complainant lasted more than a year after this meeting, during which he had to take on his defence and the non-material damage continued. As regards the other agent, no decision has yet been taken.

The complainant considered that he was the object of disciplinary proceedings in the framework of Annex IX of the Staff Regulations because he was informed that a disciplinary action was opened against him. If no disciplinary action had been launched by the Commission, the complainant would not have been obliged to request the help of a lawyer and to spend money and energy on his defence. Also the non-material damage would have been less.

As regards his request for compensation based on Article 288 of the EC Treaty, the complainant considered that the Court judgment quoted by the Commission was irrelevant as the damage suffered by the complainant did not come from the fact that the complainant worked for the Commission but from the disciplinary action, which had adverse effects after the end of his contract with the Commission.

The complainant considered that all conditions related to an application for compensation and quoted in the Court's judgment in Case C-111/86(10) were met in his case. The complainant noted that the Commission challenged the conclusions of the Ombudsman as regards the length of the procedure. The Commission did not answer the points made by the complainant in his letter of 8 October 2002, notably his involvement in writing false reports. The complainant considered that the Ombudsman had concluded that OLAF's inquiry was illegal.

Finally, the complainant referred to a letter from the Commission dated 14 October 2003, which replied to the complainant's letter dated 14 August 2003. In his letter, the complainant wished to know why the Commission informed him only that his name was mentioned once in OLAF's report, while he had learnt from his lawyer that it was mentioned elsewhere. In its reply, the Commission had explained that his name was mentioned in one paragraph and that it was because of this paragraph that disciplinary proceedings were initiated. The complainant did not understand the Commission's reply.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the Commission's and OLAF's opinion and the complainant's observations, the Ombudsman did not consider that the Commission had responded adequately to all the complainant's allegations and claims.

The proposal for a friendly solution

In accordance with Article 3 (5) of the Statute(11), the Ombudsman therefore wrote to the President of the Commission to propose a friendly solution.

The European Ombudsman suggested that the Commission could consider reimbursing the complainant for the expenses he reasonably incurred for his defence during the disciplinary procedure.

This proposal was based on the following preliminary conclusions:

1. The Ombudsman recalled that Title VI (Articles 86 to 89) of the Staff Regulations dealt with disciplinary measures. According to Article 87: "[t]he Appointing Authority shall have the right to issue a written warning or a reprimand without consulting the Disciplinary Board, on a proposal from the official's immediate superior or on its own initiative. (...) Other measures shall be ordered by the Appointing Authority after the disciplinary procedure provided for in Annex IX has been completed (...)".
2. The Ombudsman observed that Annex IX seemed to deal mainly with disciplinary proceedings involving the Disciplinary Board. However, according to a judgment of the Court concerning a disciplinary procedure not involving the Disciplinary Board(12), "[n]either Article 87 of the Staff Regulations of officials nor Annex IX thereto, nor those two provisions read in conjunction, allow a distinction to be drawn between the different defences of which an official may avail himself in the course of disciplinary proceedings depending upon whether or not those proceedings entail a reference to the disciplinary board or according to the severity of the disciplinary measure which might be imposed on the official". The Ombudsman considered that a similar approach was justified in the present case, in which the Disciplinary Board was not involved and which dealt with the repayment of expenses incurred by the complainant for his defence.
3. The Ombudsman noted that Article 10 of Annex IX to the Staff Regulations stated that "[c]osts incurred on the initiative of an official in the course of disciplinary proceedings, in particular fees to a person chosen for his defence from outside the three European Communities, shall be borne by the official where the disciplinary proceedings result in any of the measures provided for under Article 86 (2) (c) to (g)(13) of the Staff Regulations or where the procedure under Article 51 of the Staff Regulations results in dismissal for incompetence."
   The Ombudsman recalled that, according to case law(14), it followed from the above provision that "the payment by the Commission of expenses incurred by an official on his own initiative in the course of disciplinary proceedings, and legal fees in particular, (...) is only possible if no disciplinary measure or only a minor disciplinary measure is imposed at the end of the proceedings."
   The Ombudsman also recalled that, in the present case, the disciplinary procedure against the complainant resulted in his acquittal.
4. In light of the above, the Ombudsman took the view that the Staff Regulations did not prevent the Commission from paying expenses reasonably incurred by the complainant for his defence and that the Commission had not therefore adequately justified its decision not to pay these expenses. The Ombudsman pointed out that, in deciding what expenses it was reasonable for the complainant to incur, it would seem relevant to take into account the seriousness of the charges made against him and the length of time which elapsed before the Commission decided not to convoke the Disciplinary Board. The Ombudsman therefore provisionally concluded that the Commission’s refusal to pay the complainant’s expenses without addressing these issues constituted an instance of maladministration.

The Commission's reply to the Ombudsman's proposal for a friendly solution

The Commission’s reply to the Ombudsman's proposal was, in summary, as follows:

The Commission did not agree with the interpretation of Article 10 of Annex IX to the Staff Regulations put forth by the Ombudsman. According to the Commission, it was settled case law that financial provisions in the Staff Regulations were to be strictly interpreted(15). Annex IX of the Staff Regulations (in its relevant version) applied only to proceedings before the Disciplinary Board, as was clear from the wording of Article 87: "[t]he appointing authority shall have the right to issue a written warning or a reprimand without consulting the Disciplinary Board (...) Other measures shall be ordered by the appointing authority after the disciplinary procedure provided for in Annex IX has been completed". Given the fact that it was part of Annex IX to the Staff Regulations, Article 10 applied only to procedures before the Disciplinary Board and, as it should be strictly interpreted, this Article was not to be applied to situations which were not covered by it. The Commission therefore did not agree that Article 10 of Annex IX did not prevent the Commission from paying expenses in the current case, in which the Annex IX procedure was not applied.

The Commission added that the interpretation of the Ombudsman would mean that if the Appointing Authority closed a case or imposed a written warning or a reprimand without sending the case to the Disciplinary Board (that is in all cases not sent to the Disciplinary Board), it would have to reimburse the person's legal costs.

This interpretation would imply that, if the explanations given by the official at the initial hearing under Article 87 are satisfactory, the Appointing Authority should compensate the person concerned and implicitly accept that it was at fault or had acted in some way illegally for having opened disciplinary proceedings in the first place. However, in cases where the Appointing Authority acts on the basis of an enquiry which establishes facts which indicate a breach of the Staff Regulations, the Appointing Authority not only has a discretionary power but also a public duty to launch such proceedings. In this context, the precise purpose of the initial hearing under Article 87 is to give the official concerned the possibility to provide an explanation in relation to the allegations brought against him or her and to enable the Appointing Authority to close the case if it was not fully aware of circumstances which the Article 87 hearing was designed to elicit. Under these circumstances, it cannot be said that the Commission would in any way be at fault if it exercises its discretionary power and indeed its public duty to open disciplinary proceedings and if it complies with its obligation to hear the person concerned under Article 87 of the Staff Regulations.

In contrast, the rationale of Article 10 of Annex IX was that if, after hearing the person's explanations at the initial Article 87 hearing, the Appointing Authority still decided to send a file to the Disciplinary Board, and the Disciplinary Board did not impose a more severe sanction than one that the Appointing Authority could have imposed without putting the person to the trouble of defending him- or herself before the Disciplinary Board, it was then (and only then) that the Appointing Authority should bear the financial consequences of its decision to send the file to the Disciplinary Board.

The Commission pointed out that the judgment in case 115/80 Demont v Commission concerned the extent of the rights of the defence of the official. In the current case, the issue was not about the rights of an official to be assisted by a person of his or her choice or to have access to the file, which, according to the judgment, applied at each stage of the disciplinary procedure. The issue was the right to obtain reimbursement of legal expenses, which was a different and separate right, as it depended on the outcome of the disciplinary procedure and the involvement of the Disciplinary Board. This right was not dealt with by - or even mentioned in - the above-mentioned judgment. The Commission therefore did not agree that the judgment in case 115/80 Demont v Commission was a relevant precedent for the question of reimbursement of legal expenses in cases where the Appointing Authority decided to close the case after the initial hearing under Article 87.

In light of the above, the Commission was unable to accept the friendly solution proposal of the European Ombudsman.

Further inquiries

After careful consideration of the Commission's reply to the friendly solution proposal, it appeared that further inquiries were necessary. The Ombudsman understood the Commission's view to be that the Staff Regulations prevented it from paying expenses reasonably incurred by the complainant for his defence, regardless of the seriousness of the charges made against him and the length of time which elapsed before the Commission decided not to convoke the Disciplinary Board. The Ombudsman asked the Commission to confirm that this was indeed its interpretation of the Staff Regulations.

The Commission's further reply

In its further reply, the Commission made the following points:

The Commission confirmed that the Ombudsman correctly understood its view.

The circumstances to be taken into account when reimbursing legal expenses were, in the Commission's opinion, entirely dependent on the question of whether there was a power under the Staff Regulations to reimburse such expenses. The Commission considered this not to be the case, for the reasons set out in detail in its reply to the friendly solution proposal. If the Staff Regulations do not allow for the reimbursement of these expenses, the circumstances to be taken into account in determining the amount to be reimbursed naturally lose their relevance.

The Commission added that the issue of the length of the procedure was addressed in its opinion on the complaint. These comments referred to the Commission's reply of 31 July 2003 to a complaint lodged by the complainant under Article 90 (2) of the Staff Regulations, where this issue was discussed in detail.

The complainant's observations on the Commission's replies

The complainant's observations can be summarised as follows:

The complainant noted that the Commission replied one month after the deadline set by the European Ombudsman and that this reply did not contain any new element. This showed, according to him, casualness and contempt towards the European Ombudsman and the European Parliament which had created the institution.

The complainant considered that the Commission continued to minimise its responsibility in his case. He stated that disciplinary proceedings launched on the basis of similar serious facts led to the involvement of the Disciplinary Board and were finalised within reasonable deadlines. Consequently, granting compensation to the complainant would not create a precedent.

According to the complainant, the Staff Regulations do not provide for the launching of a disciplinary procedure when the Appointing Authority decides to impose a written warning or a reprimand. However, in his case, the Commission launched disciplinary proceedings in accordance with Annex IX to the Staff Regulations. He considered that the Commission's response concerning the rationale of Article 10 of Annex IX and case 115/80 Demont v Commission was irrelevant.

The complainant believed that the Commission's refusal to compensate him showed that the Commission did not want any instance of maladministration to be revealed. He concluded that the cost of the procedure launched by OLAF and the Commission could not be compared with the compensation due to the complainant.

Letter from the Ombudsman to Commissioner Kallas

On 15 December 2005, in the spirit of the Commission's new internal procedure for handling the Ombudsman's inquiries, adopted by the Commission in November 2005(16), the Ombudsman wrote to Commissioner Kallas asking for his personal involvement in seeking a satisfactory outcome to the complaint.

In his letter, the Ombudsman first pointed out that it was important to distinguish between, on the one hand, the complainant's legal rights (which would be the only relevant consideration if the matter were before a court) and, on the other hand, the Commission's response to a finding by the Ombudsman of maladministration.

He recalled that the background to the complaint was the Ombudsman's finding, in case 781/2001/IJH, that the Commission did not pursue the disciplinary procedure against the complainant with due diligence and that this was an instance of maladministration. The Ombudsman found difficult to understand that the Staff Regulations could prevent the Commission from responding positively to a suggestion from the Ombudsman that an ex gratia payment would be an appropriate way to deal with this situation.

Finally the Ombudsman expressed the view that it would be possible for the Commission to modify the stance it has taken up to now, so as to demonstrate its willingness to cooperate with the Ombudsman.

On 12 January 2006, the Ombudsman had a meeting with Commission Vice-President Siim Kallas, at which the Commissioner stated that the case would be looked at again by the Commission.

The written reply from Commissioner Kallas

In his written reply to the Ombudsman’s letter of 15 December 2005, Commissioner Kallas repeated that the Commission did not share the Ombudsman's reading of the Staff Regulations and indeed of its financial provisions that, according to settled case law, are to be strictly interpreted(17).

As was clear from the wording of Article 87 of the Staff Regulations, Annex IX to the Staff Regulations, in the version applicable at the time, applied only to proceedings before the Disciplinary Board. This included Article 10 of Annex IX to the Staff Regulations, which dealt with costs incurred on the initiative of an official in the course of disciplinary proceedings within the meaning of Article IX, in particular fees for legal assistance. As this Article must be strictly interpreted, it is not to be applied to situations which are not covered by it.

In the present case, the disciplinary procedure provided for in Annex IX was not initiated. The Commission, therefore, did not agree that Article 10 of Annex IX allowed it to bear expenses incurred in this case.

As regards compensation for the length of the procedure, the Commission can only be held liable for damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. The Commission considered that, because of the involvement of other persons against whom disciplinary proceedings were also launched, the disciplinary proceedings against the complainant were long but, in view of the complexity of the file, not disproportionate. Thus, the condition of the illegality of an act committed by the Commission is not met.

Under these circumstances, the Commission regretted that it could not agree to the proposal to offer an ex gratia payment to the complainant.

The complainant's observations on Commissioner Kallas' reply

The complainant made, in summary, the following points:

The Commission's reply was late and did not contain any new element. It shows that the Commission acts casually and disregards the Ombudsman and Parliament, as it has always done in this file. He considered that this was a fault and a discrimination against him.

The Commission keeps on minimising its responsibility in the loss suffered by the complainant. He repeated his arguments as regards the Commission's denial of the length of the procedure.

He disagreed with the Commission's statement that there was no illegality in its behaviour. He added to the previous arguments that he submitted that the whole matter was based on allegedly false statements from one Commission's official. This person gave testimony on 9 September 1999 to OLAF and subsequently before a Belgian court.

He attached to his observations a table summarising the various delays in the Commission's replies to requests made under Article 90 of the Staff Regulations.

THE DECISION

1 Preliminary remarks

1.1 The complainant was a temporary agent of the Commission. A disciplinary procedure was launched against him and he was acquitted of the charges made against him. Following his acquittal, the complainant requested compensation from OLAF and from the Commission.

1.2 On numerous occasions, the complainant raised the lateness of the Commission's replies to the Ombudsman. The Ombudsman would like to recall that the co-operation of the Community institutions and bodies in respecting deadlines is of fundamental importance in enabling the Ombudsman to deal with complaints promptly and effectively and thereby fulfil his mission of enhancing relations between the citizens and the Community institutions and bodies. Furthermore, avoidable delay is contrary to the principles of good administration(18). If there is a good reason in a particular case why an institution cannot meet a deadline, the Ombudsman normally responds positively to a request for extension of the deadline to a specific date, provided that the request is reasoned and is made before the expiry of the original deadline.

1.3 On 20 May 2001, the complainant lodged a previous complaint (781/2001/IJH) with the Ombudsman against both OLAF and the Commission. The complaint concerned an investigation and an investigation report by OLAF, a disciplinary procedure launched by the Commission against the complainant, and a press release about the disciplinary procedure.

In complaint 781/2001/IJH as it relates to the Commission, the Ombudsman concluded that the Commission had not pursued the disciplinary procedure against the complainant with due diligence. The Ombudsman therefore made a draft recommendation that the Commission should inform the complainant of the outcome of, or the next step in, the disciplinary procedure as soon as possible. In view of the Commission's detailed opinion, the Ombudsman concluded that the Commission had taken adequate steps to satisfy the Ombudsman's draft recommendation and he closed the case.

As regards complaint 781/2001/IJH as it relates to OLAF, the Ombudsman made the following critical remark:

Article 4 (1) of Commission Decision 1999/396 provides in part that "conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation had been completed without the interested party's having been enabled to express his views on all the facts which concern him." In the Ombudsman's view, this provision requires OLAF, before reaching a conclusion unfavourable to a person who is being investigated, to inform the person concerned of the allegation against him and the facts on which it is based and to give him the opportunity to express his view. This is a normal part of a fair and effective investigation procedure. Moreover, testimony that has not been subject to challenge in this way normally lacks evidential value. In the present case, OLAF should have informed the complainant of the allegation against him and given him the opportunity to express his view, before reaching a conclusion that he was implicated in the deletion of traces of false reports from computers. Its failure to do so was an instance of maladministration.

1.4 In his complaint, the complainant claimed compensation from the Commission and OLAF in respect of the costs of preparing his defence and the loss he suffered. He evaluated the material loss at EUR 6 500 (of which EUR 5 439 correspond to lawyer's fees) and the non-material loss at EUR 5 000. The Ombudsman considers it useful to deal first with the complainant's claim for compensation for loss generally and then more specifically, in Part 3 below, with the question of reimbursement of his legal expenses.

2 Alleged unlawful rejection of the complainant's request for compensation

2.1 The complainant claimed compensation from the Commission and OLAF in respect of material and non-material loss.

The Ombudsman notes that the complainant has presented his claim in terms of a legal right to damages under Article 288 of the EC Treaty(19).

According to the complainant, the illegality of the Commission's behaviour was based on the fact that:

• his involvement in writing false reports was not established,
• the rights of the defence and the right to good administration were not complied with,
• the length of the disciplinary procedure was excessive, as pointed out by the Ombudsman in decision 781/2001/IJH,
• the Commission did not comply with the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union,
• OLAF's inquiry was illegal, as stated in the Ombudsman's decision 781/2001/IJH.

He also argued that the Ombudsman's decision on complaint 781/2001/IJH stated that OLAF did not comply with Commission Decision 1999/396 and Regulation 1073/1999 and that the damage was the result of the disciplinary proceeding.

2.2 In their joint opinion, the Commission and OLAF referred to the decision taken by the Commission on 31 July 2003 and to the decisions taken by OLAF on 19 July 2002 and 5 November 2002.

The Commission could only be held liable for damages if a number of conditions were satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered(20). Because of the involvement of other persons against whom disciplinary proceedings were also launched, the Commission considered that the disciplinary proceedings against the complainant, were long but, in view of the complexity of the file, not disproportionate. It thus disagreed with the Ombudsman's conclusion in the previous complaint. The condition as regards the illegality of an act committed by the Commission was thus not met.

According to OLAF, a disciplinary action cannot lead to compensation, because all guarantees were taken during the procedure to ensure that the rights of the defence had been complied with. OLAF also stated that, after having been informed of the content of its final report, the complainant did not lodge, within three months, an appeal on the basis of Article 14 of Regulation 1073/1999. His request was not within the deadline. Finally, OLAF did not consider that the complainant's request based on Article 14 of Regulation 1073/1999 was relevant, as the letter from OLAF dated 19 July 2002 was not a decision adversely affecting the complainant.

2.3 Given that the complainant has presented his claim in terms of a right to damages under Article 288 of the EC Treaty, the Ombudsman will examine whether the conditions for non-contractual liability under that Article are fulfilled. He recalls that, according to the established case law, in order for the Community to incur non-contractual liability, "[t]he Community can only be held liable for damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered"(21).

2.4 As regards the claim against the Commission, the Ombudsman recalls that his task is not the same as that of a court and there are specific features of the Ombudsman's procedures (for example, search for a friendly solution, draft recommendation) which cannot be assimilated to judicial procedures. It is true that the Ombudsman's draft recommendation to the Commission in complaint 781/2001/IJH was based on a finding of maladministration. However, the Ombudsman finally closed the complaint on the basis that the Commission's detailed opinion showed that it had taken adequate steps to satisfy that draft recommendation. In these circumstances, the Ombudsman takes the view that the complainant has not provided evidence to support the view that the Commission's conduct was marked by illegality in the meaning of the case law on non-contractual liability.

2.5 As regards the claim against OLAF, the Ombudsman recalls that his decision closing the complainant's earlier complaint against OLAF with a critical remark was based on a finding that OLAF had failed to comply with a provision of Commission Decision 1999/396. However, the Ombudsman takes the view that the complainant has not shown the existence of a causal link between OLAF's failure to comply with Commission Decision 1999/396 and the loss he claims to have suffered as the result of the opening of a disciplinary procedure against him, because even if it had heard the complainant before reaching a conclusion unfavourable to him, OLAF could have maintained its view that a disciplinary procedure could be opened against him.

2.6 Therefore, the Ombudsman finds no maladministration as regards the Commission’s and OLAF’s rejection of the complainant’s claim based on non-contractual liability.

3 Reimbursement of the complainant's expenses

3.1 According to the Commission, the disciplinary action against the complainant did not go to the Disciplinary Board and led to the case being dismissed. Therefore, the complainant is not entitled to reimbursement of his expenses.

3.2 For the reasons explained above, the Ombudsman made a proposal for a friendly solution to the Commission in accordance with Article 3 (5) of the Statute. In his proposal, he suggested that the Commission could consider reimbursing the complainant for the expenses he reasonably incurred for his defence during the disciplinary procedure, taking into account the seriousness of the charges made against him and the length of time which elapsed before the Commission decided not to convoke the Disciplinary Board.

3.3 In reply to the Ombudsman's proposal, the Commission took the view that the Staff Regulations prevented it from paying expenses reasonably incurred by the complainant for his defence, regardless of the seriousness of the charges made against him and the length of time which elapsed before the Commission decided not to convoke the Disciplinary Board.

3.4 In December 2005, the Ombudsman addressed a letter to Commissioner Kallas asking for his personal involvement in seeking a satisfactory outcome to the complaint. The Ombudsman suggested that it would be appropriate for the Commission to offer to make an ex gratia payment to the complainant and expressed the view that it would be possible for the Commission to modify the stance it had taken until then, so as to demonstrate its willingness to cooperate with the Ombudsman.

3.5 The reply signed by the Commissioner repeated that the Commission did not share the Ombudsman's interpretation of the Staff Regulations and rejected the Ombudsman's proposal to make an ex gratia payment to the complainant.

3.6 The Ombudsman continues to consider that the Staff Regulations did not prevent the Commission from responding positively to his proposal to consider paying, on an ex gratia basis, the expenses reasonably incurred by the complainant for his defence. The Ombudsman concludes that the Commission's refusal to pay the complainant's expenses, regardless of the seriousness of the charges against him and the length of time which elapsed before the Commission decided not to convoke the Disciplinary Board, is an instance of maladministration.

4 Conclusion

4.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to address the following critical remark to the Commission:

The Ombudsman considers that the Staff Regulations did not prevent the Commission from responding positively to his proposal to consider paying, on an ex gratia basis, the expenses reasonably incurred by the complainant for his defence. The Ombudsman concludes that the Commission's refusal to pay the complainant's expenses regardless of the seriousness of the charges against him and the length of time which elapsed before the Commission decided not to convoke the Disciplinary Board is an instance of maladministration.

The Ombudsman considers it useful to emphasise that the critical remark in the present case is addressed only to the Commission and not to OLAF.

4.2 The Ombudsman has carefully considered the next step in this case. Given that the Commission has refused not only a proposal for a friendly solution but also a further initiative to resolve the case, addressed to the responsible Commissioner personally, the Ombudsman takes the view that a draft recommendation to the Commission would be pointless. The Ombudsman takes the view that the likely consequences of the maladministration identified in the present case are not of a sufficiently serious nature to justify a special report to the European Parliament. The Ombudsman will therefore include a short summary of this decision in the annual report for 2006 that will be submitted to the European Parliament. The Ombudsman thus closes the case.

4.3 However, the Ombudsman regrets that the Commission's DG Administration has failed to use this opportunity to demonstrate its commitment to principles of good administration. The Ombudsman therefore intends to examine, with the responsible Commissioner, how best to promote a culture of service in the DG concerned.

4.4 The President of the Commission and the Director of OLAF will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Commission Decision No 1999/396 of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests, OJ 1999 L 149.

(2) Regulation (EC) No 1073/99 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ 1999 L 136.

(3) Article 90 (2) of the Staff Regulations states: "[a]ny person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. (...)The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91 (...)."

(4) See Case 401/85 Schina v Commission [1987] ECR 3911

(5) In French: "[l]e rapport final est, par définition, supposé être suivi par l'administration, c'est-à-dire qu'il est de nature préparatoire, et ainsi ne donne pas lieu à des dommages".

(6) In French: "[s]i le rapport final vous avait été montré et s’il avait été amendé, il n’y a aucune preuve pour que l’administration puisse commencer une procédure disciplinaire".

(7) The decision was sent on 1 August 2003.

(8) See Case 401/85 Schina v Commission [1987] ECR 3911.

(9) See Case 111/86 Evelyne Delauche v Commission [1987] ECR 5345.

(10) See Case 111/86 Evelyne Delauche v Commission [1987] ECR 5345.

(11) "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint."

(12) See Case 115/80 René Demont v Commission [1981] ECR 3147, paragraph 9.

(13) Article 86 (2) (c) to (g) deals with deferment of advancement to a higher step, relegation in step, downgrading, removal from post and withdrawal of entitlement to retirement pension.

(14) Case T-121/99 Sean Irving v Commission of the European Communities [2000] ECR-SC IA-85 and II-357, paragraph 82.

(15) Case T-302/01 Birkhoff v Commission [2003] ECR-SC IA-245 and II-1185 , paragraph 39.

(16) Communication from the President in agreement with Vice-President Ms Wallström: Empowerment to adopt and transmit communications to the European Ombudsman and authorise civil servants to appear before the European Ombudsman (SEC(2005)1227/4), 4 October 2005).

(17) See Case T-302/01 Birkhoff v Commission [2003] ECR-SC I-A-245 and II-1185, paragraph 39.

(18) Case T-83/91 Tetra Pak International SA v Commission [1994] ECR II-755; Case T-126/97 Sonasa Sociedade Nacional de Segurança, Ld. v Commission [1999] ECR II-2793.

(19) Article 288 of the EC Treaty states that: "the contractual liability of the Community shall be governed by the law applicable to the contract in question. In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. (...)"

(20) Case 111/86 Evelyne Delauche v Commission [1987] ECR 5345.

(21) Case 111/86 Evelyne Delauche v Commission [1987] ECR 5345.