Strasbourg, 23 January 2004

Dear Mrs H.,

On 5 February 2003, you made a complaint to the European Ombudsman concerning the implementation and enforcement of the European Parliament's internal rules on smoking in its premises in Luxembourg.

On 20 February 2003, I forwarded the complaint to the President of the European Parliament. Parliament sent its opinion on 2 May 2003. I forwarded it to you with an invitation to make observations, which you sent on 23 June 2003.

On 30 September 2003, I wrote to the President of Parliament with a request for further inquiries. Parliament sent its additional opinion on 13 November 2003. I forwarded it to you with an invitation to make further observations, which you sent on 26 December 2003.

On 1 December 2003, I received an e-mail from Mr Jan-Paul Brouwer, an assistant to an MEP, in which he enclosed a copy of a petition, with 450 signatures, that he had presented to the Quaestor for Health and Safety issues. I decided to add this e-mail to the file on your complaint and informed the President of the Parliament of this by letter of 15 December 2003.

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

THE COMPLAINT

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

The complainant, who works for the European Parliament in Luxembourg, complains about smoking in the buildings of the Parliament in Luxembourg. According to the complainant, 8 years after Parliament adopted internal rules on smoking in its premises (decision of the Secretary-General of 12 July 1994), the administration still fails to implement and enforce the rules in all its premises, notably the KAD and Schuman buildings.

The complainant wrote several letters to the administration about the matter since February 1996. However, very little action was taken. The complainant gives a detailed description of the situation in the various buildings in Luxembourg. She argues that more "no smoking" signs should be installed.

On 5 February 2003, the complainant lodged the present complaint with the Ombudsman, alleging that the Parliament's administration fails to implement and enforce the internal rules on smoking in all its premises, notably the KAD and Schuman buildings in Luxembourg.

THE INQUIRY

The European Parliament's opinion

In its opinion, Parliament firstly stated that smoking in its premises is currently governed by a decision of the Secretary-General of 12 July 1994, which contains two main principles, namely 1) that smoking is strictly prohibited in some places, such as transit areas (entrances, halls, toilets, stairways and lifts), offices shared by several persons and meeting rooms, and 2) that areas may be specifically reserved for smokers, subject to certain conditions. This means that the basic rule is that smoking is prohibited on the premises as a whole, while it is authorised as an exception in certain limited areas.

Pursuant to this rule, in accordance with Article 3 of the above decision, many "no- smoking" signs were posted in the no-smoking areas and smoke extraction systems were established in areas reserved for smokers. These technical measures were followed by administrative measures, including a large number of communications of these rules to both staff and Members. The rules have also been adjusted to meet new needs.

The complainant's allegation that the administration and its services have taken a passive approach to implementing the rules is therefore inaccurate. The complaint only relates to the Parliament buildings in Luxembourg. The task conferred on the administration, more specifically DG VI, is not as simple as might appear, because it also involves the installation of ventilation systems which is extremely difficult in technical terms. Parliament made also the following detailed comments concerning the different buildings.

1. As regards the ADG Building, Parliament observed that posting more "no-smoking" signs will not in itself ensure a better compliance with the rules. All Parliament buildings are already equipped with such signs which shows that the administration has taken all the necessary steps. The number of signs at the entrance of the building could be increased, possibly even by clearly warning people entering the premises that smoking is prohibited throughout the building. Such signs could be produced in all the EU languages.

2. As regards the KAD Building, Parliament stated that, for the entrance and transit areas on the ground floor, the above remarks on the posting of signs can be made here also. As regards the presence of ashtrays in these areas, Parliament observed that what the complainant describes as ashtrays are in fact wastepaper bins containing receptacles to throw away small waste items. The presence of these "ashtrays" protects the floors against the damage caused by cigarettes smoked in breach of the ban. The removal of these bins is liable to lead to various forms of damage without, however, guaranteeing that the rules will be complied with and that the complainant's demands would be satisfied.

As regards the ground-floor bar, the fact that there are only "smoking" signs in this bar simply means that, in areas where such signs are posted, smoking is tolerated. In any area where no sign is visible, the general rule that smoking is prohibited applies.

As regards the staff restaurant, reversing the smoking and no-smoking areas, as requested by the complainant in a letter of 6 June 1998, would produce the opposite of what was intended in that the extraction system is designed to protect the no-smoking area by preventing the smoke from reaching it.

It would also be possible to post "no-smoking" signs next to the escalators.

3. As regards the SCH Building, Parliament stated that the complainant's claim that the ban on smoking during the lunch break (12.30-14.30 h) should be extended to all restaurant opening hours, would be most inappropriate. It would mean going beyond the requirements of Article 2 of the Rules. And, secondly, compliance with such a ban would in all probability be extremely limited since, if no area is set aside for people to smoke after lunch, smokers (or at least some of them) would be likely to smoke nonetheless. In this respect, excessive prohibition often proves ineffective.

Parliament concluded that its administration has in fact taken all the necessary measures to ensure that the rules are applied. The administration has tried to find an effective solution that is acceptable to all concerned. The fact that the complainant believes that the rules are not sufficiently adhered to is not due to any failure to apply the rules on the part of the administration, and DG VI in particular. One cannot deny the fact that some people unfortunately do not feel bound by the rules and break them, regardless of the efforts made by the administration. The problem lies in a lack of discipline and manners, which cannot be solved merely by posting more signs. It is up to each individual to act responsibly and make it possible for smokers and non-smokers to live together, without the need for constant checks to be made, which in any case would be impossible in practice.

Parliament enclosed with its opinion 14 annexes concerning its non-smoking policy in its buildings, including various notices to staff.

The complainant's observations

The complainant observes that Parliament's opinion appears to have been drawn up by the DG for Administration and that Parliament sees the issue as a purely administrative matter. However, legal and medical issues are also involved, and it would be appropriate for Parliament to ask an opinion from the Medical Service on the health consequences, and from the Legal Service on both the legal aspects of Parliament's failure to enforce its rules after 8 years and its liability as an employer towards its staff. An opinion from Parliament's Advisory Committee for Prevention and Protection at the Workplace would also be welcome.

As regards the ground-floor bar, the complainant notices that many people smoke there and that there are no signs put up and no ventilation system. It is against article 2 of Parliament's Rules that the bar is a 100 % smoking area. As the administration explains that the task conferred on it is not as simple as might first appear, the simple solution would be to declare the area smoke-free. As regards Parliament's remarks concerning the ashtrays, the complainant points out that the administration seems to attach more importance to the condition of the floors in the KAD building than to the health of its staff.

The administration appears to be convinced that by putting up signs and sending a few notices to staff, it has taken all the necessary measures to ensure that the rules are implemented. However, Parliament has also a duty to enforce its rules. The last time the Secretary-General circulated a reminder of the Rules on smoking was in 1998.

In the KAD reception hall, ground floor lobby and first floor lobby, there are only two or three signs on each floor and they are not clear and visible. Therefore smokers consider the sign-free areas to be smoking areas, even if they are smoke-free based on the general rule in Article 1 of the Rules.

It is poor management to leave it up to the smoking and non-smoking staff to fight it out among themselves. Parliament has a legal obligation to protect the health of its staff and it is not enough that the administration regrets the uncivilised behaviour of smokers who do not respect the rules. It is possible in practice to make constant checks, for instance by giving security guards the task of preventing smokers from smoking in the smoke-free areas.

In Canada, the United States, Norway and Singapore, smoking is prohibited in all public places and it works, because health authorities make a real effort to enforce the rules.

No-smoking signs should be put up in strategic places inside the buildings and especially at eye level on all doors at all entrances, back entrances and side entrances.

The complainant finally enclosed two draft decisions drawn up by the Commission in which all Commission premises are declared smoke-free areas. The decisions are supposed to enter into force on 1 May 2004. Parliament should follow the Commission's example.

The complainant's rejection of a possibility of a friendly solution

The Ombudsman's office explored the possibility of a friendly solution with the complainant, in a telephone conversation of 23 September 2003. The complainant however indicated that she could not accept a proposed friendly solution which would consist in asking the Parliament to put up better and more no-smoking signs in its buildings. The complainant maintained that the real problem is not the implementation, but the enforcement of the rules. She stated that the security guards should be instructed by Parliament to supervise that everybody respects the rules, as they have to do with the rules concerning the wearing of badges. The complainant again mentioned that the Commission buildings will be completely smoke-free from 1 May 2004 onwards, and that Parliament should follow the Commission's example and take the same decision, as the same rules should apply everywhere.

Further inquiries

After careful consideration of Parliament's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 30 September 2003, the Ombudsman wrote to Parliament asking it to comment in particular on the following two points raised by the complainant in her observations:

a) Parliament should instruct security guards to prevent smokers from smoking in no-smoking areas of its buildings.

b) The Commission has adopted a decision on 16 July 2003 which will enter into force on 1 May 2004 on the protection of staff against the effect of tobacco smoke in Commission buildings, according to which all Commission premises are declared smoke-free areas. Parliament should follow this example.

Parliament's additional opinion

Parliament firstly pointed out that it is clear from the complainant's correspondence that her interest is confined to the Luxembourg buildings, more particularly the KAD Building. It is nevertheless clear that the rules apply without distinction to the three sites of the European Parliament (Strasbourg, Luxembourg and Brussels).

As regards the possibility of instructing security guards to police no-smoking areas, Parliament mentioned several reasons why this suggestion cannot be accepted. The security guards have the clearly defined task of guaranteeing the security of persons who enter Parliament's premises. This task is vitally important, given the sensitive character of the premises from the security point of view.

Every day, the security guards perform a range of duties including identity checks (10 000 people a day in the Brussels main buildings), checks on personal belongings, etc. It would therefore not be appropriate to give the guards other responsibilities not falling directly within their remit.

These comments are not intended to deny the harm that tobacco does to the health of both smokers and no-smokers, but this matter cannot be considered as falling under security problems in the strict sense. Also, it is not possible to draw a parallel between the wearing of a badge and smoking outside the designated areas. It is unrealistic to believe that the guards' uniform might carry any weight with offenders. Moreover, although security services can, for example, refuse to admit a person without a badge, when they find a smoker outside the smoking areas, they can do no more than speak to him or her, as they have no power to insist. Consequently, the security guards cannot be asked to enforce smoking restrictions.

By stating that Parliament should follow the Commission's decision to treat its premises as a whole as no-smoking areas, thus implying that Parliament does not follow the same practice, the complainant is misinterpreting Parliament's internal rules.

As already indicated, the Secretary-General's decision of 12 July 1994 stipulates that all of Parliament's premises are no-smoking areas barring certain clearly demarcated and suitably equipped places of limited size in which smoking is tolerated. The areas in question have been chosen quite deliberately, since they are places in which people tend not to stay very long (parts of cafeterias or bars). On the other hand, places where staff remain for longer periods (offices, meeting rooms, restaurants) or have to pass through (lifts, escalators, lobbies, corridors) are clear no-smoking areas.

It is thus incorrect to say that Parliament is applying rules radically different from those laid down by the Commission. Parliament has opted for an approach affording greater scope for closely supervised coexistence, rather than resorting to a more extreme position.

The complainant's additional observations

According to the complainant, Parliament puts forward several excuses for not being able to use the security guards to prevent users of its premises from smoking in the smoke-free areas.

It is high time that Parliament quit its irresponsible attitude of extreme complacency towards the numerous smokers who are systematically breaking the rules. Environmental tobacco smoke is a serious problem to a large number of staff in all Parliament's premises. As evidence, the complainant enclosed the latest opinion n° 05/2003 of the Advisory Committee for Prevention and Protection at the Workplace of 13 November 2003 and a petition of Mr Jan-Paul Brouwer of 21 October 2003, signed by 450 staff members, calling for a ban on smoking in all Parliament's buildings, and presented to the Quaestor for Health and Safety issues. The complainant also enclosed a report by an official on the results of his investigations at the Parliament's premises in Strasbourg and Luxembourg which illustrates how Parliament's administration fails to implement and enforce the rules efficiently.

The complainant states that Parliament has a legal obligation to protect staff health from environmental tobacco smoke by rigorously both implementing and enforcing the rules. Parliament should put forward a concrete action plan with efficient measures. This action plan should be drawn up and implemented within a month. Parliament could get inspiration from the Commission, for instance from the setting up of an Accompanying Committee (Article 5 of the Decision of 16 July 2003) or from its Note of 1 December 2003 to all staff. It is important that Parliament offer prompt and efficient assistance to staff who report cases of infringement of the rules.

Parliament has now had over nine years to implement and enforce its rules on smoking, but has so far failed miserably. Time has come for Parliament to live up to its responsibility as a large employer, which ought to set a good example.

THE DECISION

1 The implementation and enforcement of the European Parliament's internal rules on smoking in its premises

1.1 The complainant alleges that eight years after the adoption of the internal rules on smoking in the European Parliament premises, Parliament's administration fails to implement and enforce the rules in all its premises, notably the KAD and Schuman buildings in Luxembourg. In her observations, the complainant argued that Parliament should instruct its security guards to prevent smokers from smoking in no-smoking areas. She referred to a Commission decision of 16 July 2003 on the protection of staff against the effect of tobacco smoke, adding that Parliament should follow this example.

1.2 Parliament argues that its administration has taken all the necessary measures to ensure that the rules are applied. Many "no-smoking" signs were posted in the no-smoking areas and smoke extraction systems were established in areas reserved for smokers. These technical measures were followed by administrative measures, including a large number of communications of these rules to both the staff and Members. However, some people unfortunately do not feel bound by the rules and break them, regardless of the efforts made by the administration. It is up to each individual to act responsibly and make it possible for smokers and non-smokers to live together. As regards the complainant’s observations, Parliament argued that the security guards cannot be asked to enforce smoking restrictions and that Parliament is not applying rules that are radically different from those laid down by the Commission.

1.3 The Ombudsman firstly notes that principles of good administration require that the institutions respect the legitimate and reasonable expectations that members of the public have in the light of how the institution has acted in the past(1). This principle equally applies in the relations between Parliament and its own staff and Members. By adopting internal rules on smoking in European Parliament premises (Decision of the Secretary-General of 12 July 1994), and by communicating those rules to its staff and Members in various notices, Parliament has created a reasonable expectation amongst non-smokers that it will take adequate measures to promote effective compliance with the rules.

1.4 The Ombudsman also considers that, in view of the possible adverse health effects of exposure to smoke, the European Parliament should pay particular attention to the need to promote effective compliance with its internal rules on smoking. The Ombudsman also points out in this regard that the exposure of staff to smoke in the workplace raises potential issues of legal liability.

1.5 The Ombudsman notes that Parliament's administration has taken several measures to implement the general rules contained in the Secretary General's decision of 12 July 1994: Firstly, the administration has posted numerous "no-smoking" signs in the various buildings. As regards the KAD, SCH and ADG buildings in Luxembourg, this appears in detail from the maps - annexed to the Parliament's opinion - which show where those signs have been posted. Parliament has further installed smoke extraction systems in certain areas such as the restaurant in the KAD building. Finally, Parliament's administration has informed both Parliament staff and Members of the rules. This appears from the various communications - also annexed to the opinion - sent to the staff and the Members, recalling them of the rules.

1.6 It appears however from Parliament's own comments that Parliament has not yet succeeded in promoting effective compliance with the internal rules on smoking. The Ombudsman also notes that opinion n° 05/2003 from the Advisory Committee for Prevention and Protection at the Workplace of 13 November 2003 addressed to the Secretary-General of Parliament identifies non-compliance with the rules as a problem.

1.7 The Ombudsman considers that the European Parliament’s arguments concerning the complainant’s proposal that the security staff should enforce the no-smoking rules do not appear unreasonable. However, the Ombudsman does not consider that the view expressed by Parliament in its opinion that it is up to each individual to act responsibly is an adequate response to the problems of non-compliance.

1.8 In the light of the above, the Ombudsman considers that the European Parliament has failed to take adequate measures to promote compliance with its internal rules on smoking in European Parliament premises. This constitutes an instance of maladministration and the Ombudsman makes the critical remark below.

2 Conclusion

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

The European Parliament has failed to take adequate measures to promote compliance with its internal rules on smoking in European Parliament premises. This constitutes an instance of maladministration.

It does not appear possible to achieve a friendly solution. Moreover, the Ombudsman considers that the above critical remark is sufficient to draw the European Parliament’s attention to the need to take action in the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See Article 10.2 of the European Code of Good Administrative Behaviour.