Mr President,

On 28 February 2001, I wrote to you in order to inform you that I had opened an own-initiative inquiry into the subject of the freedom of expression of the staff of the European Commission.

On 14 June 2001, the Commission sent its opinion in this case.

On 27 June 2001, I wrote to request further information in relation to my inquiry.

On 29 November 2001, the Commission replied to my request for further information.

I am now writing to let you know the results of my inquiries in this case.

BACKGROUND OF THE INQUIRY

The reasons for the inquiry
The Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union was adopted at the summit of Nice on 7 December 2000(1).

The European Parliament, the Council of the European Union and the European Commission solemnly proclaimed the text as the Charter of Fundamental Rights of the European Union. It follows therefrom that the said institutions have pledged to apply the principles laid down in this Charter.

Article 11 of this Charter recognises the right to freedom of expression.

Freedom of expression

Freedom of expression is one of the fundaments of a democratic society. This is confirmed by the first sentence of Article 10 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which is worded as follows:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

The original Treaties establishing the European Communities did not contain any express provisions regarding human rights. However, the Court of Justice has held in 1969 that human rights are protected in Community law(2). It is now the settled case-law of the Court of Justice that fundamental rights form an integral part of the general principles of law whose observance the Court ensures, and that freedom of expression, as enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is one of those general principles(3). Article 6 (2) of the Treaty on European Union expressly endorses this case-law.

Freedom of expression and civil servants

The European Court of Human Rights has ruled in Vogt v Germany that officials are individuals and as such qualify for the protection of the freedom of expression as laid down in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms(4).

Likewise, the European Court of Justice has held that freedom of expression is a fundamental right that is also enjoyed by Community officials(5).

However, it is also clear that Community officials owe a special duty of allegiance to the Communities. The question thus arises as to the relationship between this duty and the officials' freedom of expression.

The Staff Regulations

Freedom of expression is not expressly guaranteed to the officials of the Communities in the Staff Regulations.

There are however certain provisions that are relevant in this context.

The first paragraph of Article 12 of the Staff Regulations provides as follows:

"An official shall abstain from any action and, in particular, any public expression of opinion which may reflect on his position."

Article 17 of the Staff Regulations contains the following provisions:

"An official shall exercise the greatest discretion with regard to facts and information coming to his knowledge in the course of or in connection with the performance of his duties; he shall not in any manner whatsoever disclose to any unauthorised person any document or information not already made public. He shall continue to be bound by this obligation after leaving the service.

An official shall not, whether alone or together with others, publish or cause to be published without the permission of the appointing authority, any matter dealing with the work of the Communities. Permission shall be refused only where the proposed publication is liable to prejudice the interests of the Communities."

The relevant case-law of the Community courts

The Court of Justice has ruled that

"the Staff Regulations cannot be interpreted in such a way as to conflict with freedom of expression, a fundamental right which the Court must ensure is respected in Community law".

It further follows from the case-law of the Community courts that Articles 12 and 17 of the Staff Regulations "do not constitute a bar on the freedom of expression of officials but rather place reasonable limits on the exercise of that fundamental right, in the interests of the service"(6).

Several details have been clarified by the case-law of the Community courts. In the Cwik case for instance, the Court of First Instance has held that whilst according to Article 17 of the Staff Regulations a publication by a Community official that deals with the work of the Communities is subject to the requirement of a prior permission, such permission may only be refused if the publication "is liable to prejudice the interests of the Communities". The permission may thus only be refused where this is necessary in the specific circumstances of the case(7). The Court of First Instance has also underlined that the mere fact that the official expresses an opinion that differs from that of the institution for which he works is not sufficient to establish that the publication is liable to prejudice the interests of the Communities(8).

Remaining problems

There was no denying the fact, however, that important problems remained unsolved.

If taken at face value, Articles 12 and 17 (1) of the Staff Regulations could be construed as preventing any useful communication between an official of the Communities and members of the public who turn to this official for information. Officials did not seem to dispose of any clear guidance as to where the line was to be drawn between an open and helpful approach towards citizens (which the Ombudsman considers to be imposed on the Communities by the duty of transparency) and communications by an official that "may reflect on his position" within the meaning of Article 12 of the Staff Regulations. It was to be feared that such a state of affairs would prevent the Communities from achieving the measure of openness and transparency that was both desirable and necessary.

In so far as Article 17 (2) of the Staff Regulations was concerned, the case-law of the Community courts could be interpreted in the sense that any publication "dealing with the work of the Communities" by an official required prior permission. The Court of First Instance has indicated that an official may lodge an internal complaint pursuant to Article 90 of the Staff Regulations where the permission is refused and, if the decision still is negative, bring an action before the Court(9). However, these possibilities to obtain redress inevitably took time(10). By the time the permission is finally granted, the proposed publication may thus well have become obsolete.

It was concerns like these that led the Ombudsman, when dealing with the first complaint concerning the freedom of expression of Community officials (complaint 794/5.8.1996/EAW/SW/VK) back in 1997, to make the following remark:

"The Commission may wish to consider whether it could provide guidance to its officials on what it considers to be a fair balance between their individual right to freedom of expression, which includes the freedom to impart information and ideas, and their duties and responsibilities as officials, in particular under Articles 12 and 17 of the Staff Regulations."

This concern was reiterated in the Ombudsman's recent decision on complaint 1219/99/ME(11).

The Ombudsman was aware of certain measures or communications that the Commission was preparing in the context of the proposed overhaul of the Staff Regulations. Some of them (like the Consultative Document SEC (2000) 2078 'Raising Concerns about Serious Wrongdoing' of 29 November 2000) were to some extent related to the problem described above. However, as far as the Ombudsman could see no general set of rules or guide had yet been proposed with respect to the specific issue of the freedom of expression of Community officials.

The Inquiry

The Ombudsman therefore requested the Commission to inform him whether it had taken or intended to take any steps in order clarify the scope of its officials' right to freedom of expression.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission recalled the legal provisions that were applicable in the field. It also gave a short overview of the rules governing civil servants' freedom of expression in the member states of the EU and summarised the relevant case-law of both the European Court of Human Rights and the Court of Justice of the European Communities and the Court of First Instance.

Against this background, the Commission made the following comments:

Given that the application of the Staff Regulations and the rules implementing its provisions had come to be seen as complex and lacking transparency, the Commission had fixed the aim, in its White Book on administrative reform, of improving the transparency of its staff policy and of simplifying and consolidating the relevant legal instruments. A simplified and updated version of the Staff Regulations was therefore planned, on the basis of which guidelines on the rights and obligations of civil servants were to be established. There was a need to modify certain provisions, to clarify them and to abolish those that had become outdated. This also applied to the provisions concerning freedom of expression.

A certain number of consultative documents had already been adopted with a view to carrying out the reform. Two of these documents concerned specifically the rights and obligations of civil servants and tried to clarify their scope of application, including the issues relating to freedom of opinion.

One of these documents was the consultative document "The Reform of Disciplinary Proceedings"(12) which provided, inter alia, for a handbook of rules and guidelines on the rights and obligations of civil servants ('Guide des règles et des lignes directrices sur les droits et obligations des fonctionnaires') to be drawn up. A further consultative document on "Raising Concerns about Serious Wrongdoing"(13) foresaw provisions that would not exonerate officials from their general obligation of secrecy but which would define the conditions under which disclosure would be justified.

Besides, a further document was being prepared with a view to assuring the transparency of civil servants' rights and obligations.

Further inquiries
The Ombudsman's request for further information

On the basis of the above, the Ombudsman considered that he needed further information to be able to complete his inquiries, He therefore asked the Commission (1) to specify which changes in the Staff Regulations it considered necessary and when the proposals for these changes would be made and (2) to inform the Ombudsman of the contents of the 'Guide des règles et des lignes directrices sur les droits et obligations des fonctionnaires' and submit a copy thereof or, if the document should not yet exist, to indicate when it intended to adopt such a guide.

The Commission's reply

In its reply sent on 29 November 2001, the Commission pointed out that the following two modifications were proposed in the document "General Review of the Staff Regulations" of 14 September 2001 that was actually under discussion between the Commission and the staff representatives:

• The limits of the general obligation of professional secrecy and its relation with the new rules on transparency had been better defined. The obligation of professional secrecy would thus only apply if the relevant information had not yet been published or did not figure in a document available to the public (new Article 17).
• Article 17 (2) required civil servants to obtain prior authorisation for publications dealing with the work of the Communities. The criteria for a negative decision by the appointing authority had been clearly defined in the light of recent decisions of the Community courts. It was proposed furthermore that the appointing authority would be deemed to have accepted an application if it failed to react to it within a certain period of time. This would represent an element of legal security for civil servants and simplify the administrative procedures.

The Commission should be able to present draft changes to the Staff Regulations to the Staff Regulations Committee before the end of the year. After having obtained the opinion of that committee, the draft would be submitted to Council.

A new action plan on "Transparence dans la politique du personnel" had been approved by the Commission on 6 August 2001(14). This document explicitly provides for an administrative guide to be prepared and published that would explain the application and interpretation of the rules in the Staff Regulations. This guide will enable civil servants to dispose of clear and understandable information on all issues relating to their status, and particularly on the main questions in relation to their rights and obligations. The drafting of this guide had been commenced and its completion was foreseen for April 2003. The guide would however be established in steps, and its first part should become available on the intranet website of the Commission towards the beginning of 2002.

THE DECISION

1. In February 2001, the Ombudsman started an own-initiative inquiry into the subject of the freedom of expression of the staff of the European Commission. This inquiry was based on the consideration that the rights and obligations of civil servants in this field were insufficiently clear in several respects. The Ombudsman also recalled that he had already previously invited the Commission to contemplate providing guidance to its officials on what it considered to be a fair balance between their individual right to freedom of expression, which includes the freedom to impart information and ideas, and their duties and responsibilities as officials.

2. In its opinion and in its reply to a request for further information made by the Ombudsman, the Commission informed the Ombudsman that it intended to prepare an administrative guide that would explain the application and interpretation of the rules in the Staff Regulations. According to the Commission, this guide will enable civil servants to dispose of clear and understandable information on all issues relating to their status, and particularly on the main questions in relation to their rights and obligations. The guide is to be established in steps, and its first part should become available on the intranet website of the Commission towards the beginning of 2002.

3. The Commission also indicated that it intended to propose concrete modifications to Article 17 (2) of the Staff Regulations that requires civil servants to obtain prior authorisation for publications dealing with the work of the Communities. According to the Commission, its proposal better defined the criteria for a negative decision by the appointing authority in the light of recent decisions of the Community courts. It was proposed furthermore that the appointing authority would be deemed to have accepted an application if it failed to react to it within a certain period of time.

4. In the light of the above, the Ombudsman considers that the Commission has reacted in a positive way to his inquiry and has taken or is considering taking steps that are likely to remedy or at least substantially reduce the problems that currently exist. The Ombudsman therefore takes the view that his own-initiative inquiry has achieved its purpose and that there is no need to pursue the inquiry at present. The Ombudsman will however continue to follow this issue closely and if necessary consider further actions in the future.

5. The Ombudsman therefore closes the file.

Yours sincerely,

 

Jacob SÖDERMAN

 

cc Mr Massangioli

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(1) OJ 2000 C 364, page 1.

(2) Case 29/69 Stauder v City of Ulm [1969] ECR 419.

(3) Case C-150/98 P Economic and Social Committee v. E [1999] ECR I-8877.

(4) Judgement of 26 September 1995, Series A, No 323.

(5) Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16.

(6) Case C-150/98 P loc. cit., paragraph 41; Joined cases T-34/96 and T-163/96 Connolly v Commission [1999] ECR-SC I-A-87 and II-463, paragraph 130.

(7) Judgement of 14 July 2000 in Case T-82/99, [2000] ECR-SC II-713, paragraph 52. In its judgement of 13 December 2001 on Case C-340/00 P, the Court of Justice rejected the Commission's appeal against this judgement.

(8) Case T-82/99 loc. cit, paragraph 57.

(9) See the Connolly case loc. cit., paragraph 152.

(10) Cf. the facts of the Cwik case, where the Article 90 complaint was lodged in August 1998 but where the judgement was given in July 2000.

(11) Decision of 18 December 2000.

(12) SEC(2000)2079/5.

(13) SEC(2000)2078/6.

(14) PE(2001) 1609 C(2001)2466.