Dear Mrs C.,

On 12 April 2000, you lodged a complaint with the European Ombudsman against the European Parliament concerning your appointment by the Parliament following your success in competition EUR/C/23.

On 25 May 2000, I forwarded the complaint to the Parliament asking for its comments by the end of September 2000. On 29 September 2000, the Parliament requested an extension of the deadline. The European Ombudsman accepted the Parliament's request and fixed 31 October 2001 as new deadline. The Parliament sent its opinion on 16 November 2000, and I forwarded it to you on 27 November 2000. On 21 December 2000, you sent me your observations on the Parliament's opinion.

On 18 May 2001, I addressed a draft recommendation to the Parliament.

On 10 October 2002, I sent a letter to the institution in which I pointed out that the Parliament had still not provided its detailed opinion on the draft recommendation, despite the fact that the deadline had expired at the end of September 2001. I therefore asked the Parliament to reply in the shortest possible delay.

On 5 November 2001, the Parliament sent its detailed opinion.

On 23 January 2002, I forwarded a further letter to the President of the Parliament, Mr Pat COX. A copy of this letter was also sent to Mrs Raquel de VICENTE, political advisor.

I received the President's reply on 5 April 2002. A copy of the letter was sent to you on 9 April 2002.

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

THE COMPLAINT

The complainants participated in competition EUR/C/23 jointly organised by the European Parliament and the Court of Justice of the European Communities. Having succeeded in the competition, her name was included in the reserve list of successful candidates.

On 1 November 1996, the complainant was recruited by Parliament, at grade C5 step 3 of the career.

In her complaint to the Ombudsman, the complainant alleged to have been discriminated against compared to other candidates who had participated in the same competition, and who were recruited at grade C4 step 3.

THE INQUIRY

The complaint was sent to the Parliament for its comments.

The Parliament's opinion

In its opinion on the complaint, the Parliament pointed out that the complainant appealed against the institution's decision, by lodging a complaint under Article 90 of the Staff Regulation, on 25 September 1998. The complaint was rejected because it was not made within the time limit.

The institution stressed that, as Community Courts have consistently held, only the presence of new substantial elements could justify the introduction of a complaint under Article 90 (2) for the re-examination of a previous decision concerning recruitment that was not appealed within the time limit. However, if a Court's judgement annulling an administrative act could constitute a new element, this is only vis à vis those people who are directly affected by the annulled act. The Monaco(2) case law, invoked by the complainant, cannot therefore apply since she has not participated in the same open competition as Mr Monaco.

Moreover, the institution stated that, according to the policy followed by the Parliament in recruitment matters after the entry into force of the new Internal Directives in May 1995, the Appointing authority can nominate an official at a higher grade than the starting grade of his/her category only in exceptional cases, and to attract qualified candidates when extremely complex tasks have to be carried out.

The complainant's observations

In her observations on the Parliament's opinion, the complainant basically maintained her original complaint.

THE DRAFT RECOMMENDATION

By decision dated 18 May 2001, the Ombudsman addressed a draft recommendation to the Parliament in accordance with Article 3(6) of the Statute of the European Ombudsman(3). The basis of the draft recommendation was the following:

1. The European Parliament's recruitment procedure

1.1 The complainant succeeded in competition EUR/C/23 jointly organised by the European Parliament and the Court of Justice of the European Communities, and she was recruited at grade C 5 step 3. In her complaint to the Ombudsman, she alleged to have been discriminated against compared to other candidates who had participated in the same competition, and who were recruited at grade C 4 step 3.

1.2 In its opinion, the Parliament stressed that the complainant appealed against the institution's decision by lodging a complaint under Article 90 of the Staff Regulations. However, the Parliament rejected it, because it was not made within the time limit.

1.3 Only the presence of new substantial elements could justify the introduction of a complaint under Article 90 (2) for the re-examination of a previous decision concerning recruitment that was not appealed within the time limit. However, if a Court's judgement annulling an administrative act could constitute a new element, this is only vis à vis those people who are directly affected by the annulled act. The Parliament pointed out that the judgement of the Court of First Instance in the Monaco case, invoked by the complainant, did not apply to her case, since she was not directly affected by the annulled act.

1.4 The Ombudsman noted that the main issue in this case was to determine whether the complainant had been discriminated against by the European Parliament when recruited and if there had been maladministration by the Parliament.

1.5 The principle of non discrimination and of equal treatment is one of the fundamental principles of Community law. As consistently held by Community Courts, it requires that comparable situations should not be treated in a different manner and different situations should not be treated alike unless such treatment is objectively justified(4).

1.6 In its judgement in case T-92/96 (Monaco case), the Court of First instance considered that candidates in the same competition are, in principle, to be considered to be in a similar situation. Furthermore, the Court has stated that an institution breaches the principle of equal treatment and non discrimination if it applies to an official recruited from a competition the provisions of the new Internal Directives which provide for a stricter application of Article 31(2) of the Staff Regulation, whereas other officials recruited from the same competition by the institution before the entry into force of the new Internal Directives were classified according to the previous Internal directives.

The Court considered that the only reference to new rules adopted by the Parliament in the meantime was not an adequate justification to recruit candidates from a same competition with different contractual conditions.

1.7 The Ombudsman considered that it was important to recall that the competition to which the complainant had participated, was organised jointly by the Parliament and the Court of Justice.

However, after the judgement of the Court of First Instance in the above mentioned case, the Court of Justice reclassified, at its own initiative, those civil servants who, after the entry into force of the new Internal Directives, were recruited under less favourable conditions than those applied to candidates recruited on the basis of the previous Internal directives.

1.8 The Ombudsman considered that, even if the Monaco judgement did not apply to the complainant as a new element, the appointing authority had the possibility to modify the recruitment conditions of the complainant, as the Court of Justice did.

1.9 On the basis of these considerations, the Ombudsman concluded that the Parliament's decision to recruit the complainant applying to her the new Internal Directives, when other candidates recruited from the same reserve list were classified according to the previous Internal Directives, resulted in a discriminatory treatment for the complainant. The fact that the institution did not act in light of the principle stated by the Court of First Instance in case T - 92/96, and its refusal to reconsider its decision constituted therefore an instance of maladministration.

In view of the position adopted by Parliament it did not appear possible to achieve a friendly solution. The Ombudsman therefore considered it appropriate to make the following draft recommendation, in accordance with Article 3 (6) of his Statute.

The draft recommendation read as follows:

The Parliament should follow the example of the Court of Justice and reclassify the complainants at grade C 4 step 3 with effect from the date of their appointment as civil servants.

The Ombudsman informed the European Parliament that, according to Article 3 (6) of the Statute, it should send a detailed opinion by 30 September 2001 and that the detailed opinion could consist of the acceptance of the Ombudsman's recommendation and a description of how it had been implemented.

The Parliament's detailed opinion

The Parliament's detailed opinion, received by the Ombudsman on 7 November 2001, reads as follows:

The institution is unable to accept your draft recommendation on the following grounds.

In the first place, this institution continues to hold the view that the complaints must barred on the grounds of inadmissibility. The complaints were introduced long after the decision complained of. Even if one were to admit that the decision in Monaco case constituted a new fact 8a point not conceded by this institution with respect to the instant case, on the basis that it could do so only for persons directly affected by the annulled act), it would remain the case that the complaints were introduced outside the time limit laid down in Article 90 of the Staff Regulations. This aspect of the case - that is, the admissibility of the complaint - appear to be completely ignored in your draft recommendation (...).

In the second place, it is clear that decisions on one institution's appointing authority do not bind the appointing authority of another authority. The Court of Justice and the Parliament are two distinct institution of the European Union. Nonetheless, your stated in your draft recommendation that "(...)even if the Monaco judgement does not apply to the complainant as a new element, the appointing authority has the possibility to modify the recruitment conditions of the complainant, by following the example of the court of Justice. The fact that the Court of Justice has reclassified certain complainants in no way creates an obligation on the part of the European Parliament's appointing authority to do likewise. the wide discretion of the appointing authority has been recognised time and again in numerous cases (...) where the right of a Community institution to establish internal rules on grading in this context was recognised.

For these reasons, the institution is unable to accept the above mentioned draft recommendation.

The Ombudsman's further letter of 23 January 2002

After careful examination of the Parliament's detailed opinion, the Ombudsman considered it necessary to express his view on it and to focus on some points which were at the origin of his draft recommendation. On 23 January 2002, he therefore addressed a further letter to the President of the Parliament, Mr Pat COX.

In his letter, the Ombudsman recalled that the Court of Justice of the European Communities, which is the highest authority on the meaning and interpretation of Community law, has consistently stated that the general principle of equality is one of the fundamental principles of the law of the Community civil service. The Court has recognised that Community recruitment must respect the principle of equality. That principle requires that comparable situations shall not be treated differently and different situations should not be treated alike unless such differentiation is objectively justified.

Furthermore, the Court of First instance considered that candidates in the same competition are, in principle, to be considered to be in a similar situation. According to the Court, an institution breaches the principle of equal treatment and non discrimination if it applies to an official recruited from a competition the provisions of the new Internal Directives which provide for a stricter application of Article 31(2) of the Staff Regulation, whereas other officials recruited from the same competition by the institution before the entry into force of the new Internal Directives were classified according to the previous Internal directives. The Court considered that the only reference to new rules adopted by the Parliament in the meantime was not an adequate justification to recruit candidates from a same competition with different contractual conditions.

The Ombudsman pointed out that it appeared that this was what had happened to the complainant in the present case.

The Ombudsman considered that the Parliament still had, however, the possibility to remedy this case of apparent discrimination and to take measures to set right an injustice. He therefore asked the institution to reconsider its position in the light of the principle of equality and non discrimination and address the draft recommendation made by the Ombudsman.

The Parliament's further reply

On 5 April 2002, the Ombudsman received the Parliament's further reply. The Parliament stressed that its secretariat had reconsidered the cases concerned by the draft recommendation in detail and had decided, despite some reservation of legal and administrative character, to comply with the Ombudsman's request.

The Parliament committed itself to reviewing the situation of the complainant on the basis of the rules in force prior to the changes introduced in 1995.

Copy of the Parliament's reply was sent to the complainant on 9 April 2002. During a telephone conversation with the Ombudsman's service on 8 April 2002, the complainant was informed of the content of the above mentioned letter and expressed her satisfaction with the outcome of the inquiry.

THE DECISION

On 18 May 2001, the Ombudsman addressed the following draft recommendation to the European Parliament:

"The Parliament should follow the example of the Court of Justice and reclassify the complainants at grade C 4 step 3 with effect from the date of their appointment as civil servants".

On 5 April 2002, the Parliament informed the Ombudsman that it accepted to comply with the draft recommendation and explained that the complainant's situation would be revised.

The Ombudsman considers that the Parliament has accepted his draft recommendation and he therefore decides to close the case.

The President of the European Parliament will be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Dealt with jointly with complaint 545/2000/IP

(2) Judgment of the Court of First Instance (Fourth Chamber) of 9 July 1997, Roberto Monaco v European Parliamen. Case T-92/96. ECR - SC [1997] page IA-0195; II-0573

(3) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performances of the Ombudsman's Duties, OJ 1994 L 113, page 15.

(4) Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25, and Case C-15/95 EARL de Kerlast [1997] ECR I-1961, paragraph 35 - Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraph 97.