Dear Mr V.,

On 9 February 2001, you made a complaint to the European Ombudsman concerning your employment relationship with the European Commission and the tendering procedure for Finnish language teachers (ref. 97/41/XI.D.1).

On 30 March 2001, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 22 June 2001. I forwarded it to you with an invitation to make observations, which you sent on 23 September 2001.

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

THE COMPLAINT

On 1 March 1995 the complainant, a Finnish national, was hired as a Finnish language teacher for the Commission's civil servants and other staff. Employed under a number of temporary contracts, the complainant worked with the Commission from 1 March 1995 to 15 February 1999. He had in all eight interim contracts with the Commission during this period: from 1 March 1995 to 30 June 1995; 1 October 1995 to 31 January 1996; 1 March 1996 to 30 June 1996; 1 October 1996 to 31 January 1997; 1 March 1997 to 30 June 1997; 1 October 1997 to 15 February 1998; 1 March to 15 July 1998 and 16 September to 15 February 1999.

The complainant considers that under Belgian labour law, that is the law applicable to his temporary contracts, his employment should have been made permanent as he had worked from 1995 to 1999 with the Commission performing the same work. He is also of the opinion that the Commission's decision to rationalise costs should not apply to his contractual situation, as this decision by the Council, the Commission and the European Parliament not to award any new permanent employment contracts was taken much later in time compared to when his employment started.

The Commission launched a call for tender, no 97/41/XI.D.1 in August 1998 in which the complainant participated but failed to be awarded the contract for Finnish teaching. The complainant considers that the winning bid did not fulfil the criteria stipulated in the tender. He states that the courses were delayed because the new contractor, a language school, did not have any teachers and that the Commission official in charge personally contacted teachers to ask them to work for the language school. The language school also asked the complainant to work for it but he turned down the offer, considering that the salary was too poor compared to what he had previously earned for the same employment.

The complainant put forward two allegations and two claims in his letter of 9 February 2001 which were as follows:

The complainant alleges that: (i) according to Belgian law his employment relationship should have been regularised after a series of temporary contracts. He claims his job back. (ii) The successful language school did not match the criteria set out in the invitation for tender. He claims that the Commission decision regarding the tendering procedure should be replaced with a fair decision.

THE INQUIRY

The Commission's opinion

The Commission states that the complainant worked with it as a Finnish language teacher on the basis of several contracts, each with a limited duration under Belgian law. Each temporary contract indicated an expiry date and was terminated accordingly as none of them contained a tacit clause for renewal or a preliminary notice for continuation. Regarding these contracts, the Commission furthermore states that the periods were not consecutive as they included shorter or longer breaks and that it complied with the contractual provisions.

The Commission takes the view that it was not possible in the present case to conclude a contract for a permanent duration because of the political decision on rationalisation of administrative costs in the teaching field taken by the European Parliament, the Commission and the Council in 1995. The purpose of this tripartite decision was to rationalise costs in that one institution would administer the language teaching services for all the institutions. The decision also aimed at gradually re-defining the institutions' language teaching system and launching calls for tenders to find a new and less expensive appropriate organisational framework.

The Commission is of the opinion that it had to follow this decision and launch calls for tenders for all new demands which could not be covered by existing teaching staff. By "existing teaching staff" the Commission considers that it only refers to those teachers who were committed to the Commission by unlimited contracts signed in 1992. Following the tendering procedures, new contracts were signed on 18 December 1998 with CLL for Danish, Finnish, Greek, Dutch, Portuguese, Swedish and the languages of the accession countries, on 7 January 1999 with CICEB for Danish, German, Spanish, French and Italian and finally on 18 January 1999 with Linguarama for English.

Regarding the award for contract for the Finnish language the Commission explains that the complainant's bid was not selected because it was an individual offer and did therefore not correspond to the technical capacity needed. The service requested could not have been provided by only one person, as there would have been no replacement in case of absence.

The Commission considers that the language school which was awarded the contract fulfilled the criteria in the call for tender and that it is not responsible for the contacts between the Commission official, the Head of the Language Training Sector, and the Finnish teachers. It considers that this took place after the signature of the contract and the completion of the tendering procedure and that it did therefore not influence the award of the contract. Moreover, the fact that the Commission contacts potential language teachers is normal practice as Article 1 of the signed framework contract provides that the contract does not give the contractor exclusive rights to perform the services provided. It also considers that the fact that it invites people who are interested in working with the institutions to contact the selected contractor after the signature is standard practice and should simply be seen as a courtesy gesture.

The complainant's observations

The complainant maintains that under Belgian law a temporary employment contract is made permanent if it lasts for a certain period and the same work is performed during this period. The complainant considers that this is the case and points out that the Commission is incorrect in stating that there were sometimes long breaks between his contracts. These breaks were, according to the complainant, normal Commission annual holiday breaks and were following normal term periods.

The complainant moreover considers that an exception could very well have been made in his case despite the political tripartite decision because other contracts, equivalent to his, had previously been made permanent which was standard practice even after 1992 when the first contracts were made permanent. According to the complainant, the Commission's interpretation of the term in the political decision "existing teachers" is uncertain and he questions why he was not considered as one. The complainant argues that he should have been included under existing teachers as his temporary employment had been going on prior to the political decision in question. The complainant states that despite several discussions with the Commission's services regarding a "regularisation" of his contract, no new contract was signed.

Regarding the tendering procedure and the award of a contract to the language school, the complainant points out that tenderers had to provide a teaching program including a pedagogical plan and curriculum vitae of qualified personnel who were to teach but that the winning bidder, the language school, did not have any teachers ready. The complainant alleges that it only provided names of teachers whom it presumed would do the work. The complainant alleges that the language school knew that it had been awarded the contract before the official decision was taken. He finally argues that the competition criteria did not rule out individual teachers as he could easily have found a replacement in the event of absence if needed.

THE DECISION

1. New contract and regularisation of employment relationship following several consecutive contracts

1.1 The complainant complains that the Commission did not give him a new contract when a new contractor was hired after several consecutive temporary employment contracts and it did not regularise his contract. He claims that the Commission should provide him with an appropriate employment contract.

1.2 The Commission considers that each contract with the complainant indicated an expiry date, that each contract was terminated accordingly as none of them contained a tacit clause for renewal or a preliminary notice for continuation and that it complied with the contractual provisions. It takes the view that it was not possible in the present case to conclude a contract for a permanent duration with the complainant because of the political tripartite decision on rationalisation of administrative costs in the teaching field taken by the European Parliament, the Commission and the Council in 1995.

1.3 The Ombudsman notes that the complainant's last contract from 16 September 1998 to 15 February 1999 expired as stipulated and was not followed by a new one. Regarding the issue of whether the complainant has the right to a new contract, the Ombudsman notes that the complainant was given individual contracts for limited teaching course periods and that as Community law stands, there is no general principle of law to employ again an individual following expiry of his contract. The Commission could for instance have dropped the Finnish language courses and chosen other teachers for future courses and the complainant would not have the right to be employed again by it. In the present case, it appears that the Commission chose not to award a new individual contract to the complainant once a general contractor was found.

1.4 The Ombudsman recalls that the complainant considers that he was entitled to a "regularisation" of his employment relationship. It appears from the documents before the Ombudsman that the Staff Regulations of officials of the European Communities were not applicable to the complainant's contract as his employment relationship falls outside the scope of these Rules.

1.5 In this context, the question arises whether the complainant had the right to be given an unlimited contract and be kept on as was done with other language teachers. It appears from the documents before the Ombudsman that no promises, which would commit the Commission, were made to the complainant. Therefore, in case there is a right to an unlimited contract, the base for such a right would reside in the law applicable to the contract, that is Belgian labour law. The complainant alleges that Belgian labour law gives him this right whereas the Commission claims that it has complied with the provisions of the contract and that the contracts in question expired without providing such a right.

1.6 This claim concerns the obligations arising under a contract concluded between the Commission and the complainant.

1.7 According to Article 195 of the EC Treaty, the European Ombudsman is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle binding upon it. Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

1.8 However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. In particular, the Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

1.9 The Ombudsman therefore takes the view that in cases concerning contractual disputes it is justified to limit 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 will conclude that his inquiry has not revealed an instance of maladministration. This conclusion will not affect the right of the parties to have their contractual dispute examined and authoritatively settled by a court of competent jurisdiction.

1.10 In the present case, the Ombudsman notes that the Commission has put forward a coherent and reasonable account of the reasons for which it believes that it could not conclude a contract for a permanent duration with the complainant. The Ombudsman also notes that the European Court of Justice in the case Commission v Tordeur(1) denied the applicability of a Belgian provision that interim personnel working for more than six months at one site are to be considered as permanently employed.

1.11 In these circumstances, there appears to be no maladministration on the part of the Commission.

2. Failure to match competition criteria in the tendering procedure

2.1 The complainant alleges that the language school which won the bid did not match the criteria set out in the invitation for tender. The complainant furthermore alleges that the responsible Commission official contacted teachers and invited them to work for the chosen language school. He claims the Commission's decision to award the contract to his competitor should be replaced by a fair decision.

2.2. The Commission argues that the complainant's bid was not selected because it was an individual offer and did not correspond to the technical capacity needed. It claims that only one person could not have provided the service requested, as there would have been no replacement in case of absence. The Commission also considers that the language school who was awarded the contract fulfilled the criteria in the call for tender. It moreover points out that the contacts between the Commission official took place after the signature of the contract and the completion of the tendering procedure, that it did therefore not influence the award of the contract and that this behaviour is standard practice.

2.3 The Ombudsman notes that the issue in question arises from a change of policy in the administration of language teaching at the Commission. On the basis of the documents before the Ombudsman, it appears that the Commission has changed from a policy of individual teaching contracts with all the personnel management this entails to contracting a general contractor under a service contract. This general contractor does all hiring and personnel management himself instead as opposed to the former policy. In the Terms of Reference (TOR) of the call for tender, it appears that the Commission looked for an experienced organisation, which had to show the general level of its teachers and indicate its criteria of selection (Annex 1, point 14). The tenderer was also requested to give examples of the teachers to be employed who had during the previous three years worked with language teaching (TOR, point 5). It also appears that the organisation did not have to identify the exclusive teachers put to work already in the offer but only later when the course is to begin (Annex 1, point 12). The Ombudsman notes that these conditions in the TOR appear to exclude individual offers in favour of organisations able to organise and carry out a whole series of courses with a greater number of teachers.

2.4 The Ombudsman finally notes that the Commission decides on its own administration of language personnel and that it chose to look for a general contractor instead of individual teachers in the call for tender. This approach appears to be consistent with the Report from 26 June 1996 relating to the rationalisation of administrative expenses in the teaching field concerted between the institutions (ref. IX.A/119). In these circumstances, the Ombudsman considers that the Commission has provided a reasonable explanation as to why the complainant as an individual was rejected and that it has acted within the limits of its legal authority.

2.5 On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by theCommission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Case 232/84, Commission v Jean-Louis Tordeur and others, [1985] ECR 3223, p. 29.