Background to the complaint

1. The complainant is a temporary agent at the European Maritime Safety Agency (EMSA). The complaint concerns how EMSA acted in relation to the complainant's reinstatement following leave on personal grounds (CCP) and the subsequent handling of her salary step reclassification.

2. In October 2021, the complainant went on CCP for an agreed period of twelve months. After nine months of the CCP, in response to an email request from EMSA, the complainant formally asked to return to work. However, EMSA could not offer the complainant a post at that time, and she continued to be on CCP.

3. Between October 2022 and mid-2024, the complainant requested information from EMSA about posts for which she was being considered, for her to be able to return to work. During this period, the complainant noted that there were several vacancies in EMSA, including one arising from a retirement in her former team, which were, however, filled by other staff members.

4. In June 2024, the complainant, with the assistance of a trade union legal representative, made a request under Article 90(1) of the EU Staff Regulations[1] to be reinstated, noting that nearly two years had elapsed without reinstatement. EMSA made the complainant a job offer in June 2024. The complainant accepted the post and her reinstatement took effect in September 2024.

5. In December 2024, the complainant, again with the help of a trade union legal representative, submitted a complaint under Article 90(2) of the EU Staff Regulations[2] requesting rectification of her salary step. She relied in particular on case-law[3] (the Sergy-case) and on the applicable provisions governing reinstatement following CCP.

6. In April 2025, EMSA rejected the Article 90(2) complaint, informing the complainant that no additional salary step would be granted. The complainant then turned to the European Ombudsman.

The inquiry

7. The Ombudsman opened an inquiry into how EMSA dealt with the complainant’s reinstatement in view of the exceptionally long time the complainant had remained on CCP after her request to be reinstated.

8. In the course of the inquiry, the Ombudsman inspected EMSA’s file on the case and met with its representatives. Subsequently, the complainant sent the Ombudsman her comments on the report of the meeting.

Arguments presented to the Ombudsman

By the complainant

9. The complainant argues that she should have been reinstated with effect from 1 October 2022 in accordance with the applicable provisions of the Conditions of Employment of Other Servants (CEOS)[4]. She considers that, between October 2022 and mid-2024, EMSA provided no information about posts for which she was being considered, despite her repeated requests. Furthermore, several posts which became vacant after she had requested to be reinstated were filled by other people without her being offered the opportunity to return to work.

10. The complainant’s situation is among the most prolonged reinstatement cases in EMSA's history: of 23 CCPs exceeding six months since 2003, only three staff members experienced delays of more than six months before reinstatement, her own case being the most prolonged.

11. The complainant argues that she initially requested only six months of CCP, which would have guaranteed that her job be reserved for her. EMSA conditioned the approval of her request on her extending the CCP to one year, citing its own operational priorities and the need for her position to be filled while she was away. She submits that EMSA should not rely on the length of her CCP as a reason for the reinstatement difficulties that followed.

12. The complainant also raises concerns about the reliability of the vacancy assessments that EMSA carried out during the period 2022 to 2023. The information obtained through her administrative complaint and in the course of the inquiry shows that assessments of vacant posts for staff members requesting to return from CCP were not systematically registered in ARES[5] until 2024, and that EMSA retroactively entered the records relating to her case following her Article 90(1) request. In the complainant’s view, this raises doubts as to whether those records accurately reflect the assessments carried out at the time, or whether they were formalised ex post in support of EMSA's position. She further notes that the one formal assessment that was carried out regarding her suitability for a vacant post was conducted by the hiring manager alone, without the involvement of the HR department and with no mechanism for independent review.

13. The complainant further argues that, according to established case-law[6], where an EU institution has failed to reinstate a staff member in breach of the applicable provisions, it is obliged to expunge the consequences of that failure by backdating seniority in grade and step to the date on which the reinstatement should have taken place, and by paying compensation equal to the net remuneration lost during the period of unjustified delay. Applying those principles to her situation, the complainant submits that her seniority should be backdated to October 2022, the date on which she should have been reinstated. EMSA's approach of treating the entire period from the start of her CCP until her actual reinstatement as a period not contributing towards her eligibility for promotion wrongly attributes to her the consequences of a delay not of her making.

14. On EMSA's objection that her acceptance of the reinstatement offer in June 2024 bars any challenge about the delayed reinstatement, the complainant responds that her Article 90(2) complaint was not directed at the reinstatement decision itself, but at the payroll communication of 5 November 2024, which constitutes the first act formally establishing her step classification following reinstatement.

By EMSA

15. EMSA maintains that it fulfilled its obligations by giving the complainant priority consideration for all suitable vacancies throughout the period concerned, and that reinstatement took place as soon as a post matching her function group, grade, and abilities became available.

16. Six relevant vacancies arose at EMSA during the period in question. EMSA assessed the complainant's profile against the requirements of each post and concluded in each case that she lacked the necessary abilities. No suitable post therefore existed before mid-2024, and the complainant's return was made possible solely by the emergence of an appropriate vacancy, not by legal pressure or any acknowledgment of wrongdoing by EMSA.

17. EMSA rejects the complainant's reliance on the Sergy-case, on two grounds. First, the factual situations are not comparable: in Sergy, the Commission acknowledged that over 200 posts in the relevant career bracket had been advertised during the period at issue without demonstrating that the staff member had been given priority consideration, whereas only six posts arose at EMSA. Second, the judgment itself confirms that the appointing authority enjoys discretion in reinstatement decisions, to be exercised in the interests of the service, and makes clear that the obligation to remedy a failure, including by backdating seniority, arises only where there has been an actual failure by the administration. Since no suitable post was available for the complainant before mid-2024, EMSA maintains there was no such failure on its part, and therefore no legal basis to backdate the complainant’s seniority or grant her an additional salary step.

18. The complainant accepted the reinstatement offer on 12 June 2024 without formally challenging its timing, and the period for contesting that decision had elapsed. Thus, any claim relating to delay or compensation for lost salary is foreclosed and could not be reopened based on the Article 90(2) complaint that she made based on her payroll communication.

19. In the course of the inquiry, EMSA explained that it is a small agency with 212 temporary agent and official posts, of which 152 were administrator function group temporary agent posts in the period 2022-2024, with a 99-100% occupation rate and zero staff growth over several years. These structural constraints significantly limited its capacity to reinstate staff members on CCP.

20. EMSA provided statistics on CCP requests since its creation in 2003: of 40 requests in total, 23 exceeded six months. Of those 23 cases, the average waiting time for reinstatement was 2.67 months. Five staff members faced a delayed reinstatement, with an average waiting time of 12.3 months; of those, three waited more than six months, corresponding to reinstatements in 2022, 2024 (the present complainant), and 2025 respectively.

21. EMSA’s reinstatement procedure is limited to what is required under its implementing rules: contacting the staff member three months before the end of their CCP and, if they wish to return, examining all current vacancies for a suitable match before publication. When a post falls vacant through resignation or retirement, it returns to a pool allocated according to the interests of the service and the recruitment plan, not specifically to facilitate reinstatement. EMSA acknowledged that it has not developed, and does not foresee developing, any additional arrangements for staff returning from CCP, citing both the zero-growth establishment plan and the deeply technical nature of most posts as limiting factors.

The Ombudsman's assessment

22. The Ombudsman acknowledges that the complainant experienced a lengthy period between her request to be reinstated following her CCP and her eventual reinstatement, with associated professional and financial consequences. This situation inevitably had a personal impact, of which the Ombudsman is mindful.

Legal framework

23. The complainant is a temporary agent employed under Article 2(f) of the Conditions of Employment of Other Servants (CEOS). Her situation is therefore governed by Article 52 of the CEOS on unpaid leave on personal grounds and reinstatement, as well as EMSA’s Administrative Board Decision of 17 September 2015, laying down implementing provisions on leave on personal grounds.

24. Article 52 CEOS provides that, upon expiry of unpaid leave, a temporary staff member must be reinstated in the first vacant post corresponding to their grade within their function group, provided that they meet the requirements for that post. The provision thus requires the administration to give priority consideration to staff members returning from CCP, while recognising that reinstatement depends on the availability of a suitable vacancy.

25. Article 18 of EMSA’s Administrative Board Decision requires EMSA to take the necessary measures to facilitate return to work and to examine the staff member’s request as a priority before any vacancy is filled. The vacant post may only be filled by another person if the staff member returning to work after CCP does not possess the abilities required for the post to be filled.

26. The Ombudsman recalls that Article 52 CEOS does not guarantee reinstatement, but establishes a right to priority consideration for suitable, but not any, vacant posts. It does not require the EU body concerned to create a post or to reorganise its structure in order to accommodate a staff member wishing to return from CCP, as argued by the complainant.

27. Within that framework, the EU body retains a margin of discretion in assessing whether a post is suitable and whether the staff member meets its requirements. While the complainant considers that she was qualified for certain posts which became vacant during the relevant period, it is not for the Ombudsman to substitute her assessment for that of EMSA’s hiring managers. Because Article 52 CEOS requires an assessment of suitability for specific posts, the Ombudsman’s role is limited to assessing whether there is evidence of a manifest error in the assessment of the complainant’s suitability for the relevant posts or in complying with the applicable rules and procedure.

The assessments carried out by EMSA and the procedure followed

28. The Ombudsman notes that EMSA examined six vacancies that arose in the relevant function group and grade bracket against the complainant’s profile. For each post, EMSA concluded that the complainant did not meet the requirements of each position.

29. EMSA’s file, as inspected by the Ombudsman, shows that, for each vacancy, EMSA carried out the assessment before publication or filling of the post. It listed the essential requirements of each post and assessed whether the complainant met them. Although the complainant doubts that she was appropriately considered for certain posts, there is no indication that the complainant was not considered or that her suitability was not properly assessed.

30. Therefore, the Ombudsman finds that EMSA complied with the requirement that priority consideration should be given to the complainant and acted within its discretion in how it assessed the complainant’s suitability for the individual posts in question. There is thus no indication of a manifest error by EMSA in this regard. The fact that the assessment was made by the hiring managers alone, without involving the HR department, does not change this finding.

31. The Ombudsman notes that some assessments were initially carried out through oral exchanges or email communications and were subsequently formalised and registered in ARES. While earlier documentation practices were not fully standardised, there is no evidence that this affected the timeliness or existence of the assessments themselves.

32. For these reasons, the Ombudsman cannot thus support the complainant’s claim that she should be considered for promotion as if she had returned to work on 1 October 2022. Such an obligation, according to the case-law, arises only where reinstatement has been unlawfully delayed.

Administrative coordination and documentation practices

33. For the sake of completeness, the Ombudsman notes that, during part of the relevant period, EMSA’s assessment of vacancies for the purposes of reinstating staff members on CCP was not recorded in a fully standardised manner, with some evaluations initially carried out through oral exchanges or email communications and only at a later stage formalised and registered in ARES. There was thus a degree of inconsistency in the documentation practices prior to the introduction of a standardised template and a systematic registration. However, the file inspected by the Ombudsman does contain contemporaneous email exchanges and vacancy timelines that corroborate the substance and timing of the assessments. There is thus nothing to suggest that the later ARES registration altered the content of the assessments previously made.

34. The Ombudsman welcomes the fact that assessments of vacancies for the purposes of reinstating staff members after CCP are now recorded in a timely manner, in a standardised format, and centrally registered. This enhances transparency and allows for effective ex post verification of how the assessment and priority consideration have been applied.

35. The Ombudsman also notes that EMSA’s communication with the complainant during her extended period of unpaid leave appears to have been limited and not based on a structured follow-up mechanism. Regular follow-up in cases of prolonged CCP could alleviate some of the uncertainty a staff member can feel in such a situation. The Ombudsman will make a suggestion for improvement in this regard.

EMSA’s operational context

36. EMSA argued during the inquiry that the post initially occupied by the complainant was considered important for operational continuity and that it was necessary to replace the complainant during her CCP.

37. The complainant’s concern is that she may have been encouraged to extend her unpaid leave beyond six months because of the above-mentioned operational constraints. For the Ombudsman, this shows the importance of ensuring that staff members are clearly informed, before taking extended (more than six months) CCP, of the possible implications for their subsequent reinstatement. This is particularly relevant in agencies with highly specialised profiles and limited staffing flexibility. The Ombudsman will make a suggestion for improvement in this regard.

38. Although Article 52 CEOS does not require EMSA to reserve or strategically allocate posts for reinstatement purposes, neither does it prevent EMSA from taking proactive steps, consistent with its duty of care and principles of good administration, to facilitate the timely return of staff members from CCP. EMSA enjoys a broad margin of discretion in organising its services and workforce planning. That discretion also gives it scope to reflect proactively on how the interests of staff members on (prolonged) CCP can properly be taken into account in the organisation of its services, with a view to avoiding unnecessary delays in the reinstatement of staff who have decided to end their CCP.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following findings[7]:

On reinstating the complainant, following the expiry of her CCP, in the first vacant post that was found to correspond to her grade and category, EMSA acted within the limits of its discretion under Article 52 CEOS and its internal implementing rules.

The Ombudsman therefore finds no maladministration in this case. She does however make a suggestion for improvement.

The complainant and the European Maritime Safety Agency will be informed of this decision.

Suggestion for improvement

Although no instance of maladministration has been found in the present case, the Ombudsman makes the following suggestion for improvement in order to strengthen the transparency of EMSA’s reintegration procedures following long periods of unpaid leave.

Information and communication related to long CCP periods
The Ombudsman suggests that EMSA ensure that staff members who request unpaid leave exceeding six months are explicitly informed, in a clear and standardised manner, of the potential risk of delays in reinstatement. This is particularly important given the technical and specialised nature of many of the posts within EMSA and the limited availability of suitable vacancies.

The Ombudsman also suggests that EMSA follow up regularly with any staff member who cannot be immediately reinstated at the end of their CCP, to inform them about how it has assessed their profile against available vacant posts.

Teresa Anjinho
European Ombudsman

Strasbourg, 06/08/2026

 

[1] Under Article 90(1) of the SR, any person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. For temporary agents, under Article 46 of the Conditions of Employment of other servants of the European Union (CEOS), Title VII of the Staff Regulations, concerning appeals, shall apply by analogy.

[2] Under Article 90(2) of the SR, any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him. For temporary agents, under Article 46 of the Conditions of Employment of other servants of the European Union (CEOS), Title VII of the Staff Regulations, concerning appeals, shall apply by analogy.

[3] Judgment of the Court (First Chamber) of 1 July 1976, Jacques Sergy v European Commission, C-58/75, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61975CJ0058&qid=1770981852313

[4] Articles 17 and 52 of the Conditions of Employment of Other Servants (CEOS).

[5] Ares is an advanced records management system used by the Commission and other EU bodies, used to create, receive, and manage official documents.

[6] Judgment of the Court (First Chamber) of 1 July 1976, Jacques Sergy v European Commission, C-58/75, see paragraphs 17 and 18; Judgment of the Court (Fourth Chamber) of 22 September 1988, Adriano Pizziolo v Commission, C-292/87, see paragraph 10; Judgment of the General Court of 1 July 1993, Bruno Giordani v European Commission, T-48/90, see paragraph 57

[7] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions