The background to the complaint

1. The complainant, a former European Commission official, started to receive an invalidity pension following an accident.

2. In May 2009, the complainant sent a letter to the President of the European Parliament in which he invoked the provisions of Articles 22b of the Staff Regulations[1] and, in substance, made allegations of irregularities in the Commission's handling of his medical file. The complainant further stated that he had informed the Secretary-General of the Commission about the above-mentioned irregularities, in accordance with the provisions of Article 22a of the Staff Regulations[2]. The latter brought the complainant's allegations to the attention of OLAF, which decided not to open an investigation.

3. Parliament did not reply to the complainant's correspondence. In August 2009, the complainant again wrote to Parliament reiterating his allegations. Parliament also failed to reply to this correspondence. The complainant then turned to the European Ombudsman.

The subject matter of the inquiry

4. In his complaint to the European Ombudsman, the complainant submitted the following allegation and claim.

Allegation:

Parliament failed to respond adequately to the disclosure he made to its President under Article 22b of the Staff Regulations.

Claim:

Parliament should fulfil its responsibilities to the complainant under Article 22b of the Staff Regulations.

5. In addition, the Ombudsman asked Parliament to explain the general procedure which it follows to deal with correspondence from persons who invoke Article 22b of the Staff Regulations.

The inquiry

6. In view of the fact that the Ombudsman considered that the complainant's complaint contained information to which Article 22b of the Staff Regulations applied, he decided to classify it as confidential[3].

7. On 15 June 2011, the Ombudsman opened an inquiry and asked Parliament to provide an opinion on the complaint by 30 September 2011. Subsequently, Parliament requested an extension of the deadline for sending its opinion and submitted it on 21 November 2011.

8. Parliament's opinion was forwarded to the complainant, with an invitation to submit observations. The complainant sent his observations on 31 December 2011.

9. On 10 February 2012, the Ombudsman asked Parliament for further information regarding certain aspects of the case. Parliament replied to the Ombudsman's further inquiries on 3 April 2012.

10. Parliament's reply to the Ombudsman's request for further information was forwarded to the complainant, who submitted his observations on the above reply on 31 May 2012.

The Ombudsman's analysis and conclusions

A. Alleged failure to respond adequately to the complainant's disclosure made under Article 22(b) of the Staff Regulations

Arguments presented to the Ombudsman

11. In support of his allegation, the complainant argued that Parliament failed to reply to his correspondence of May and of August 2009.

12. In its opinion, Parliament first stated that, in April 2009, the complainant submitted to the Committee on Petitions a petition concerning "the Ombudsman's failure to publish his decision on the complainant's previous complaint." Subsequently, the complainant withdrew his petition and wrote to the Committee in this respect. In July 2009, the Committee declared his petition closed.

13. The complainant's letter of May 2009 was assigned to the Secretariat of the Committee on Petitions which wrongly considered it to be related to the above-mentioned then ongoing petition. Moreover, in August and September 2009, the complainant sent further letters to Parliament concerning a complaint which he had lodged against the Court of Justice. This correspondence was also forwarded to the Committee on Petitions. Subsequently, the Committee informed the complainant that his complaint against the Court of Justice concerned allegations of maladministration. Therefore, it decided not to treat his request as a petition and that the complainant could address the matter to the Ombudsman.

14. Parliament admitted that it failed to reply to the complainant's letters of May and August 2009. This was due to the fact that "a misunderstanding occurred because of the closing of his initial petition". Parliament regretted the misunderstanding and stated that "it will take [the] necessary steps to remedy the situation."

15. Finally, Parliament explained that "the legislator is not required to put in place specific implementing measures" concerning the provisions of Articles 22a and 22b. In Parliament's view, these provisions aim to protect the official. Therefore, Parliament does not maintain any database of correspondence invoking Article 22b, in order to ensure the highest level of confidentiality and to protect the interests of whistleblowers. Cases under Article 22b may be referred to i) OLAF (if such referral has not already occurred under Article 22a); and ii) the Committee on Budgetary Control. Moreover, if such cases concern maladministration outside the scope of financial management, the complainants may approach the Ombudsman.

16. The complainant expressed his dissatisfaction with Parliament's reply. First, he noted that he never received (i) Parliament's letter of July 2011 closing his petition and (ii) another message which, according to Parliament, relates to his complaint against the Court of Justice and was presumably sent after September 2011.

17. Furthermore, he clarified that his correspondence of April 2011 was wrongly registered as a petition and that he did not complain against the Ombudsman about the publication of the decision on his previous complaint. In addition, the complainant noted that his letters of May August and September 2011 were sent by registered post and were addressed to the President of Parliament. The title of these letters ("Signalement des dysfonctionnements au sein de la Commission européenne (article 22ter du Statut des fonctionnaires") clearly indicated that they did not relate to his previous correspondence concerning the publication of the Ombudsman's decision on his complaint. In addition, these three letters bore the indication "Restreint EU". Nor did they constitute a complaint against the Court of Justice. In this respect, the complainant pointed out that his letters of August and September 2009 indicated that he had filed an appeal before the Civil Service Tribunal. Parliament wrongly interpreted his letters to mean that he wished to complain against the Court of Justice.

18. The complainant took the view that Parliament failed to handle his correspondence properly and to offer a convincing explanation in this respect. Moreover, Parliament did not apologise and failed to explain the concrete measures taken in order to remedy the situation. In any event, Parliament only replied to him after he made his request under Article 22b of the Staff Regulations. The complainant also underlined that Parliament failed to set up a general procedure to handle correspondence invoking Article 22b of the Staff Regulations. Furthermore, Parliament did not explain the 'informal rules', which it applies when dealing with this kind of correspondence. The complainant also doubted Parliament's claim that it did not keep a record of the above correspondence. If this was the case, then Parliament could have not traced his three missing letters.

19. In reply to the Ombudsman's request for further information, Parliament sent a letter to the complainant deeply regretting the fact that it had failed to reply to his correspondence of May 2009. It noted that the complainant's correspondence related to facts which concerned the Commission and not Parliament. Finally, Parliament pointed out that OLAF, which is the competent body to handle allegations of fraud concerning an EU institution, was informed of the complainant's allegations and decided to close the case. In these circumstances, Parliament considered that no further action was required on its part.

20. In his observations on Parliament's reply to the Ombudsman's further inquiries, the complainant noted with dissatisfaction that Parliament failed to provide a substantive reply to his concerns. In this respect, the complainant reiterated that Parliament failed to explain the general procedure it follows to handle correspondence invoking Article 22b of the Staff Regulations.

21. The complainant further emphasised that the facts referred to in his correspondence concern matters that are detrimental to the EU budget, an area in which Parliament has important competencies. Finally, the complainant took the view that Parliament failed to explain why it considered that it was not 'concerned' by the complainant's correspondence and did not refer his case to its Committee on Budgetary Control.

The Ombudsman's assessment

22. At the outset, the Ombudsman points out that, in the absence of relevant case-law, he took a position on the interpretation and application of Article 22b of the Staff Regulations in his decisions on other complaints[4].

23. The Ombudsman found in substance that the five office-holders mentioned in Article 22b are free to establish their own administrative procedure for handling information received from civil servants concerning alleged wrongdoings within another institution. Nevertheless, good administration requires that the basic principles which should guide any administrative procedure should also be applied by the said office-holders when dealing with information disclosed under Article 22b.

24. In this regard, the whistleblower's rights to privacy, data protection and confidentiality (unless he or she expressly requests public treatment of the disclosure) should be respected. As the European Data Protection Supervisor has underlined, the position of whistleblowers is a sensitive one. Persons who provide such information should receive guarantees that their identity will be kept confidential, in particular vis-à-vis the person about whom an alleged wrongdoing is being reported[5]. In addition, the whistleblower's right to present his or her views must be safeguarded when handling information disclosed under Article 22b. This is particularly important when the relevant office-holder does not have the means or the power to address the whistleblower's concerns properly and he or she decides to refer the issue to another body for further consideration. In such cases, the office-holder must ensure that, following such referral, the whistleblower may still properly exercise the rights he or she would have enjoyed if the case had not been referred.

25. Principles of good administration also require that the substantive assessment of the information disclosed under Article 22b be carried out carefully, impartially and objectively. The official who discloses such information obviously expects that the authorities informed take action. On the other hand, the primary obligation of these authorities is to evaluate thoroughly the information disclosed before deciding on the appropriate follow-up action. In some circumstances, it may be appropriate not to take any follow-up action at all. However, whatever the decision may be, the authority informed should give reasons for it. Doing so properly and explaining to the whistleblower the steps taken in the handling of his or her disclosure would avoid giving the impression that the authority approached on the basis of Article 22b of the Staff Regulations did not assess the file at all or that there was collusion between the said authority and the institution concerned by the disclosure.

26. In light of the above considerations, the Ombudsman's review in the present case is limited to ascertaining: (i) whether Parliament followed its internal procedure correctly when it handled the complainant's disclosure made under Article 22b; and (ii) whether the decision it took following the complainant's disclosure is properly justified.

27. In accordance with principles of good administration, Parliament has to reply to all the correspondence it receives from citizens. This applies whether or not it acts under Article 22b of the Staff Regulations. In the present case, it failed to answer the complainant's letter of May 2009 and his reminder of August 2009. However in the opinion, Parliament expressed its regret for its failure and acknowledged that it should have replied to the complainant's concerns at an earlier stage. Therefore, the Ombudsman does not consider it useful to pursue this aspect of the inquiry any further.

28. As regards the assessment of the complainant's disclosure made under Article 22b, Parliament noted that OLAF had already assessed the information disclosed by the complainant and decided to close the case. Indeed, OLAF appears to be the best placed body to handle an alleged case of fraud. For this reason, Parliament's above explanation is reasonable.

29. As regards the complainant's argument that Parliament should have referred his case to its Committee on Budgetary Control, the Ombudsman takes the view that the assignment of matters to its committees is an internal matter for Parliament. In any event, the complainant did not provide any convincing arguments to show that Parliament was not entitled to rely on OLAF's assessment.

30. In light of the foregoing, the Ombudsman considers that no further inquiries into the complainant's claim against Parliament are justified.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No further inquiries are justified.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 September 2012

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[1] Article 22b(1) of the Staff Regulations reads as follows: "An official who further discloses information as defined in Article 22a to the President of the Commission or of the Court of Auditors or of the Council or of the European Parliament, or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the institution to which he belongs provided that both of the following conditions are met:

(a) the official honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and

(b) the official has previously disclosed the same information to OLAF or to his own institution and has allowed OLAF or that institution the period of time set by the Office or the institution, given the complexity of the case, to take appropriate action. The official shall be duly informed of that period of time within 60 days."

[2] Article 22a(1) of the Staff Regulations reads as follows: "Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Communities, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Communities, shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or the European Anti-Fraud Office (OLAF) direct."

[3] In accordance with the provisions of Article 10.1 of the Ombudsman's Implementing provisions, "[i]f the complainant so requests, the Ombudsman classifies a complaint as confidential. If he considers that it is necessary to protect the interests of the complainant or of a third party, the Ombudsman may classify a complaint as confidential on his own initiative."

[4] Decisions on complaints 1068/2011/RT and 1069/2012/RT, available at: http://www.ombudsman.europa.eu/en/cases/home.faces

[5] See the Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EURATOM) No 1074/1999 (OJ 2011 C 279, p. 11), paragraph 45, available at: www.edps.europa.eu