Strasbourg, 27 January 2006

Dear Mrs B.,

On 9 March 2005, you made a complaint to the European Ombudsman concerning your appointment by the European Parliament following your success in Open competition EUR/C/23.

On 19 April 2005, I forwarded the complaint to the President of the Parliament asking him to submit an opinion on your complaint by the end of July 2005. On 3 August 2005, Parliament informed me that its services were still investigating your case and it therefore asked for an extension of the deadline. By letter of 30 August 2005, I agreed with Parliament's request and I extended the deadline to 30 September 2005. On the same date, I informed you accordingly.

On 12 October 2005, Parliament sent its opinion which I forwarded to you on 4 November 2005 with an invitation to make observations, if you so wished. Since Parliament had marked its opinion as "confidential", although you had not asked for your complaint to be treated confidentially, on the same date (4 November 2005) I wrote to its President. In my letter, I recalled that Article 10.1 of the Ombudsman's implementing provisions(1) foresees that if the complainant so requests, the Ombudsman classifies a complaint as confidential. Since you had not asked for confidentiality when you made your complaint, I had therefore dealt with it publicly. I further stated, in my letter inviting you to submit observations on Parliament's opinion, that you had the possibility to ask for your case to be handled confidentially, if you so wished.

You sent me your observations on Parliament's opinion on 25 November 2005.

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

THE COMPLAINT

Background

On 12 April 2000, the Ombudsman received three complaints (545/2000/IP, 546/2000/IP and 547/2000/IP) made by three Parliament officials against Parliament. These complaints concerned the complainants' appointment by Parliament following their success in Open competition EUR/C/23.

The complainants had participated in Open competition EUR/C/23, which had been jointly organised by Parliament and the European Court of Justice. Having succeeded in the competition, the complainants' names had been put on the reserve list of successful candidates. They had then been recruited by Parliament, at grade C5 step 3. In their complaints, the complainants alleged that then had been discriminated against compared to other candidates who had participated in the same competition, and who had been recruited at grade C4 step 3.

Complaints 545/2000/IP and 547/2000/IP were declared admissible and an inquiry was opened on 25 May 2000. As regards complaint 546/2000/IP, made by the complainant in the present case, it was closed on the basis of Article 2(8) of the Ombudsman's Statute, since the internal remedies had not been exhausted.

On 18 May 2001, the Ombudsman addressed a draft recommendation to Parliament in accordance with Article 3(6) of the Statute of the European Ombudsman in cases 545/2000/IP and 547/2000/IP(2). In his draft recommendation, the Ombudsman set out the following considerations:

"[t]he 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.

In its judgement in Case T-92/96 ( Monaco v Parliament)(3), 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 who had succeeded the same competition with different contractual conditions.

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.

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.

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".

The draft recommendation read as follows:

"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".

Following an initial refusal by Parliament to accept his draft recommendation, the Ombudsman wrote a further letter to Parliament on 23 January 2002, in which he stated that "[t]he Ombudsman recalls 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 Regulations, 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.

It appears that this was what has happened to the complainant in the present case".

The Ombudsman considered that Parliament still had 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.

By letter of 5 April 2002, Parliament informed the Ombudsman that its secretariat had reconsidered the cases concerned by the draft recommendation in detail and had decided to comply with the Ombudsman's request. Parliament committed itself to reviewing the situation of the complainants on the basis of the rules in force prior to the changes introduced in 1995.

Letter of the complainant in the present case of 25 June 2002

In a letter of 25 June 2002, the complainant in the present case claimed that her situation should be revised in view of Parliament's decision to accept the draft recommendation made by the Ombudsman in cases 545/2000/IP and 547/2000/IP.

In his reply of 22 July 2002, the Ombudsman invited the complainant to contact Parliament's competent services in order to ask them to reconsider her situation, in the light of the results of the Ombudsman's inquiries in complaints 545/2000/IP and 547/2000/IP.

The present complaint

According to the complainant, in May 2004, she was informed by Parliament's services that, due to the entry into force of the new Staff Regulations on 1 May 2004, the new classification of the grade of her recruitment was C*2 (former grade C5). On 15 June 2004, the complainant wrote to Parliament asking to be reclassified from former C 5 step 3 (equivalent to C* 2 step 3 under the new Staff Regulations) to former grade C 4 step 3 (equivalent to C* 3 step 3 under the new Staff Regulation). The complainant argued that this would be consistent with the decision taken by Parliament following the Ombudsman's draft recommendation in cases 545/2000/IP and 547/2000/IP. The complainant also referred to the fact that the complainants in the two relevant cases had been reclassified, with retroactive effect from the date of their nomination, at former grade C4 step 3.

By letter of 9 December 2004, the Secretary General of the Parliament rejected the complainant's complaint stating that her classification had been made in accordance with the new Staff Regulations. Parliament further informed the complainant that its services were examining the position of the complainants in cases 545/2000/IP and 547/2000/IP and that she would be informed of the relevant result in early 2005.

In her complaint to the Ombudsman, the complainant alleged that, when she made her complaint, she was the only official who had been recruited following Open competition EUR/C/23, at grade C5 step 3. She considered this situation to be unfair and discriminatory compared to that of other officials recruited following the same competition.

The complainant claimed that Parliament should also follow in her case the commitments that, in her view, the institution had entered into following the Ombudsman's draft recommendation in cases 545/2000/IP and 547/2000/IP. She further claimed that Parliament should reclassify her at (former) grade C 4 step 3 with effect from the date of her appointment as a civil servant.

THE INQUIRY

The European Parliament's opinion

In its opinion, Parliament stated that it had reconsidered the administrative position of the complainant (and of 56 other Parliament officials). On the basis of this reconsideration, it had finally decided that the complainant's grading (and that of the other officials in the same situation) would be established in accordance with the principles set out in the Court of First Instance's decision in Case T-92/96 Monaco v Parliament(4).

The complainant's observations

On 25 November 2005, the complainant sent a letter to the Ombudsman in which she stated that she had no comments on Parliament's opinion. She expressed her wish, however, that Parliament would honour without delay the commitment that it had entered into in its opinion.

The complainant further stated that she would inform the Ombudsman of her reclassification as soon as she had received the relevant information from Parliament.

She finally expressed to the Ombudsman her thanks and her satisfaction as regards the results obtained with his inquiry.

THE DECISION

1 The complainant's appointment by the European Parliament

1.1 The complainant, a Parliament official, had been appointed at grade C5 step 3, following her success in Open competition EUR/C/23 which had been jointly organised by Parliament and the Court of Justice of the European Communities. In May 2004, she had been informed by Parliament's services that, due to the entry into force of the new Staff Regulations on 1 May 2004, the new classification of the grade of her recruitment was C*2 (former grade C5). On 15 June 2004, the complainant wrote to Parliament asking to be reclassified from former C 5 step 3 (equivalent to C* 2 step 3 under the new Staff Regulations) to former grade C 4 step 3 (equivalent to C* 3 step 3 under the new Staff Regulation). The complainant argued that this would be consistent with the decision taken by Parliament following the Ombudsman's draft recommendation in cases 545/2000/IP and 547/2000/IP.

By letter of 9 December 2004, the Secretary General of the Parliament rejected the complainant's complaint, stating that her classification had been made in accordance with the new Staff Regulations.

In her complaint to the Ombudsman, the complainant alleged that, when she had made her complaint, she was the only official who had been recruited at grade C5 step 3 following Open competition EUR/C/23. She considered this situation to be unfair and discriminatory compared to that of other officials recruited following the same competition.

The complainant claimed that Parliament should also follow in her case the commitments that, in her view, the institution had entered into following the Ombudsman's draft recommendation in cases 545/2000/IP and 547/2000/IP and reclassify her at (former) grade C 4 step 3 with effect from the date of her appointment as civil servant.

1.2 In its opinion, Parliament stated that it had reconsidered the administrative position of the complainant (and of 56 other Parliament officials). On the basis of this reconsideration it had finally decided that the complainant's grading (and that of the other officials in the same situation) would be established in accordance with the principles set out in the Court of First Instance's decision in Case T-92/96 Monaco v Parliament.

1.3 In her letter of 25 November 2005, the complainant stated that she had no comments on Parliament's opinion. She expressed her wish, however, that Parliament would honour without delay the commitment that it had entered into in its opinion. She finally expressed her gratitude and satisfaction as regards the results obtained thanks to the Ombudsman's inquiry.

1.4 The Ombudsman notes that in her complaint the complainant claimed that Parliament should reclassify her at (former) grade C 4 step 3 with effect from the date of her appointment as civil servant.

On the basis of the information in his possession, the Ombudsman notes that the complainant has not yet been re-graded by Parliament. However, the Ombudsman further notes that Parliament, in its opinion, committed itself to applying to the complainant (and to 56 other officials in the same situation) the principles set out in the Court of First Instance's decision in Case T-92/96 and to re-grade the officials concerned accordingly. This commitment has been welcomed by the complainant in her observations forwarded to the Ombudsman on 25 November 2005.

The Ombudsman has no reasons to doubt that Parliament will adopt the necessary measures in order to put into effect its commitment.

In the light of the above, the Ombudsman therefore considers that Parliament has taken steps in order to settle the matter of the present complaint.

2 Conclusion

It appears from the European Parliament’s comments and the complainant's observations that the European Parliament has taken steps to settle the matter and has thereby satisfied the complainant. 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) Adopted on 8 July 2002 and amended by decision of the Ombudsman of 5 April 2004.

(2) The full text of these decisions is available at: http://www.ombudsman.europa.eu.

(3) Case T-92/96 Monaco v Parliament [1997] ECR-SC IA-195, II-573.

(4) Case T-92/96 Monaco v Parliament [1997] ECR-SC IA-195, II-573.