Strasbourg, 27 September 2007

Dear Dr S.,

On 31 August 2005, you submitted a complaint to the European Ombudsman against the European Commission concerning your recruitment for a post of temporary agent at the Commission’s Directorate-General for Translation.

By e-mail of 7 September 2005, my services requested that you send the documents showing that you had made appropriate prior administrative approaches to the Commission.

On 28 September 2005, you sent me the relevant documents.

On 8 November 2005, I forwarded the complaint to the President of the Commission.

On 21 December 2005, you sent me a further letter concerning your complaint.

On 10 February 2006, the Commission requested an extension of the deadline for the submission of its opinion until 28 February 2006. You were informed accordingly by letter of 20 February 2006.

On 22 March 2006, the Commission sent me the French original of its opinion. The Maltese translation followed on 28 March 2006.

On 12 May 2006, I forwarded the Commission’s opinion to you with an invitation to make observations. I also informed you that, in view of your further letter of 21 December 2005 in which you had submitted a new allegation, I had asked the Commission to submit a supplementary opinion on it by 30 June 2006.

On 18 July 2006, the Commission sent me the French original of its supplementary opinion. The Maltese translation was sent on 25 July 2006.

On 26 July 2006, I forwarded the Commission’s opinion to you with an invitation to make observations.

On 31 July 2006, you sent an e-mail to my services, to which they replied on 16 August 2006. On the same day, you sent your observations on the Commission’s supplementary opinion.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay in the handling of your complaint.

THE COMPLAINT

The original complaint

According to the complainant, the relevant facts were, in summary, as follows:

In 2004, the complainant applied for a post of temporary agent in the Directorate-General for Translation of the European Commission ("DG Translation").

In a letter of 17 March 2005, the Commission informed the complainant that he had passed the tests and that he would be employed as a temporary agent for a period of two years. The Commission further asked him to inform it of the date on which he wished to take up his duties. In this regard, it specified that he could begin either on the first or the sixteenth of the month, except for 16 August and 16 December, and that he must inform the Commission of his chosen date at least 15 days in advance.

The Commission further informed the complainant that the date on which he would take up his duties should not normally exceed by more than one month the end of his period of notice to his current employer. The Commission also explained that it reserved the right to withdraw the offer of employment if the complainant could not respect this timetable and in case the date proposed by him were to be more than six months after the date of its letter of 17 March 2005.

In the complainant's view, given that the six-month deadline expired on 17 September 2005, from which 15 days had to be deducted, he had until 29 August 2005 to reply to the Commission's letter of 17 March 2005.

In a letter of 29 June 2005, the Commission informed the complainant that it withdrew its offer of employment because he had failed to inform the responsible service of the date on which he wished to take up his duties. On 4 July 2005, the complainant contacted the Commission as regards his situation. He asked the Commission to declare its letter of 29 June 2005 null and void and to withdraw it.

In view of the lack of reply from the Commission, the complainant wrote a further letter to the Commission on 18 August 2005, in which he asked it to confirm that it had received his letter of 4 July 2005. He pointed out that he had been in an uncertain situation, due to the lack of reply from the Commission to his letter of 4 July 2005.

On 31 August 2005, the complainant lodged a complaint with the European Ombudsman. He pointed out that he had not received a reply from the Commission to his letter of 4 July 2005. The complainant stated that he did not only complain about the Commission's failure to reply but also about its decision to withdraw the offer of employment.

The complainant alleged that the Commission's decision, in its letter of 29 June 2005, to withdraw the offer of employment already made to him was unjustified, given that the six-month deadline to reply to the Commission's letter of 17 March 2005 and to confirm the date on which he would take up his duties had not yet expired. The complainant further alleged that the Commission had failed to reply to his letters of 4 July and 18 August 2005.

The complainant claimed that the Commission should make him a new offer of employment in DG Translation. Alternatively, the Commission should compensate him for the damage he had suffered. The complainant further claimed that the Commission should declare its letter of 29 June 2005 null and void and withdraw it.

The complainant’s letter of 21 December 2005

On 21 December 2005, the complainant sent the Ombudsman a further letter relating to his complaint in which he submitted a new allegation. He alleged that, by giving him a totally irrelevant reason in order to justify its withdrawal of its offer of employment, namely, his arrest at Malta Airport in April 2005, the Commission had wrongly upheld its decision not to recruit him.

THE INQUIRY

The Commission's opinion

The opinion of the Commission on the complaint was, in summary, as follows:

As regards the factual background

By letter of 17 March 2005, the complainant received an offer of employment for a temporary post at the Commission, under Article 2(b)(1) of the Conditions of Employment of Other Servants of the European Communities ("CEOS"). The length of the proposed contract amounted to two years.

This job offer contained, in its third paragraph, the following provision:

"Please let me know as soon as possible on what date you will be taking up your appointment (the 1st or the 16th of the month, except 16th of August and of December) free from any contractual obligations."

On 17 March 2005, the complainant contacted the Commission in order to obtain information on the salary he would receive in the event he accepted the offer of employment. On the same day, the Commission replied to the complainant.

On 14 and 21 April 2005, given the lack of reply from the complainant to the offer of employment, DG Translation contacted him, first, by e-mail and then by fax, in order to be informed of the date on which he wished to take up his duties.

By e-mail of 29 June 2005, in view of the continued lack of reply from the complainant, the Commission informed the latter that it wished to withdraw its offer of employment.

By letter of 4 July 2005, the complainant challenged the Commission’s decision to withdraw its offer of employment and described it as being unjustified. The complainant further informed the Commission of the reasons for which he had not replied to its letters of 14 and 21 April 2005.

On 18 August 2005, the complainant sent a further letter to the Commission in which he pointed out that he had not received a reply to his letter of 4 July 2005.

On 25 November 2005, the Commission sent a further letter to the complainant in which it confirmed the withdrawal of its offer for the reasons invoked in its letter of 29 June 2005. It further informed the complainant that it had been made aware of his arrest at Malta Airport on 23 April 2005, for being in possession of a loaded gun.

As regards the substance of the complainant’s allegations

As regards the complainant's first allegation, the Commission stated that its decision of 29 June 2005 to withdraw the complainant's offer of employment was justified and had been taken pursuant to the Staff Regulations. In the Commission’s view, the complainant had failed to reply to its letter of 17 March 2005 in which he was asked to inform it as soon as possible and in any event within six months of the date on which he wished to take up his duties. The lack of reply of the complainant, after a period of 67 working days, had been interpreted as an expression of his obvious lack of interest in the relevant post. The Commission recalled that an institution is under no obligation to complete a recruitment procedure, even in case the recruitment procedure has already been launched.

The Commission pointed out that the reasons invoked by the complainant in his letter of 4 July 2005, namely, the fact that he had to carry out his studies and that he had health problems, could not justify his total lack of reaction. In this regard, the Commission stated that an official who is on sick leave or the victim of an accident has the obligation to inform his superior and to provide, in certain cases, a medical certificate.

The Commission underlined that, due to the complainant's lack of response, the relevant post in DG Translation was blocked, which prevented the latter from recruiting another candidate who probably would have accepted to take up his duties more rapidly. In the context of the accession of 10 Member States to the EU in 2004, the recruitment of administrators-linguists mastering the new official languages depended on rigorous human resource planning, particularly as regards Maltese.

The Commission further referred to its letter of 25 November 2005 in which it informed the complainant of its intention not to pursue his recruitment, in view of his arrest at Malta Airport in April 2005. The Commission further stated that the complainant's arrest at Malta Airport, for being in possession of a loaded gun, had raised further doubts as to the appropriateness of his recruitment, given that the conditions laid down in paragraph (c) of Article 12(2) of the CEOS(2), had to be fulfilled before he could take up his appointment.

As regards the complainant's second allegation, the Commission stated that, in its letter, it had replied to the complainant's letters of 4 July and 8 August 2005. The Commission acknowledged that a certain delay had occurred between the complainant’s two letters and its reply of 25 November 2005, and apologised for it.

Further inquiries
The request for information addressed to the Commission

After careful consideration of the Commission's opinion and the complainant's observations, the O mbudsman considered that, although the Commission had made some comments as regards the issue raised by the complainant in his further letter of 21 December 2005, it had not yet been informed that this constituted a further allegation.

The Ombudsman therefore found it appropriate to inform the Commission of the complainant's new allegation and to ask it for a supplementary opinion on it.

The Commission's reply

In its reply, the Commission made, in summary, the following statements:

The complainant’s arrest only corroborated the main reason for withdrawing the offer of employment. His arrest only raised a further doubt as regards the appropriateness of his recruitment. The Commission stated that it did not seek, by its reference to the complainant’s arrest, to infringe the principle of the presumption of innocence. In the Commission’s view, given that legal proceedings had been taken before the national courts, the complainant was likely to be unable to take up his duties within a reasonable period of time.

It had to be further pointed out that, in his letter of 14 December 2005, the complainant stated that, during the selection interview, he had mentioned some of the difficulties he faced. In the Commission’s view, this statement was not grounded and such information was mentioned neither in the report of the selection interview nor by the members of the Selection Board.

Furthermore, in the Commission’s view, the complainant had, on several occasions, had the opportunity to inform the Commission of his continuing problems. It was only by e-mail of 4 July 2005 that the complainant replied to the Commission’s letter informing him of the withdrawal of the offer of employment, stating that he had health problems. The complainant, however, did not mention that he was unable to take up his duties.

The complainant’s further observations

In his reply, the complainant made, in summary, the following comments:

He first repeated his view that his arrest had been the only reason for the early termination of the period of time at his disposal to accept the offer of employment. In his view, this early termination was motivated by reasons which were extraneous to his employment.

The complainant maintained his view that the presumption of innocence and the principle of "audi alteram partem" had been infringed because the Commission had decided to withdraw its offer of employment without having heard his explanations as regards his arrest.

In the complainant’s view, the Commission’s reference to a "reasonable period of time" for the taking up of his duties was unclear.

The complainant further alleged that he had been the victim of discrimination because, if he had lived in a country larger than Malta, the Commission would never have been made aware of his arrest through articles in national newspapers.

THE DECISION

1 The Commission’s allegedly unjustified decision to withdraw the offer of employment made to the complainant and its allegedly wrongful confirmation of this decision

1.1 In 2004, the complainant applied for a post of temporary agent in the Directorate-General for Translation of the European Commission ("DG Translation"). By letter of 17 March 2005, the Commission informed the complainant that he had passed the tests and that he would be employed as a temporary agent for a two-year period. The Commission further asked him to inform it of the date on which he wished to take up his duties. In this regard, it specified that he could begin either on the first or the sixteenth of the month, except for 16 August and 16 December, and that he must inform the Commission of his chosen date at least 15 days in advance. The Commission further informed the complainant that the date on which he would take up his duties should not normally exceed by more than one month the end of his period of notice to his current employer. The Commission also explained that it reserved the right to withdraw the offer of employment if the complainant could not respect this timetable, and in case the date proposed by him were to be more than six months after the date of its letter of 17 March 2005. In the complainant's view, given that the six-month deadline expired on 17 September 2005, from which 15 days had to be deducted, he had until 29 August 2005 to reply to the Commission's letter of 17 March 2005. In a letter of 29 June 2005, the Commission informed the complainant that it had decided to withdraw its offer of employment because he had failed to inform the responsible service of the date on which he wished to take up his duties. By letter of 4 July 2005, the complainant asked the Commission to declare its letter of 29 June 2005 null and void and to withdraw it. In his complaint to the European Ombudsman, the complainant alleged that the Commission's decision to withdraw its offer of employment was unjustified, given that the six-month deadline to reply to the Commission's letter of 17 March 2005 and to confirm the date on which he wished to take up his duties had not yet expired.

1.2 In its opinion, the Commission stated that its decision of 29 June 2005 to withdraw the complainant's offer of employment was justified and had been taken pursuant to the Staff Regulations. It stated that the complainant had failed to act on its letter of 17 March 2005 in which he was asked to inform it as soon as possible of the date on which he wished to take up his duties. The lack of reply by the complainant, after a period of 67 working days, had been interpreted as an expression of his obvious lack of interest in the relevant post. The Commission pointed out that the reasons invoked by the complainant in his letter of 4 July 2005, namely, the fact that he had to carry out his studies and that he had health problems, could not justify his total lack of reaction. The Commission underlined that, due to the lack of response from the complainant, the relevant post in DG Translation had been blocked, which prevented the latter from recruiting another candidate who probably would have accepted to take up his duties more rapidly. The Commission further referred to its letter of 25 November 2005 in which it had informed the complainant of its intention not to pursue his recruitment in view of his arrest at Malta Airport in April 2005. The Commission stated that the complainant's arrest, for being in possession of a loaded gun, had raised further doubts as to the appropriateness of his recruitment, given that the conditions laid down in paragraph (c) of Article 12(2) of the Conditions of Employment of Other Servants of the European Communities ("CEOS")(3) had to be fulfilled before he could take up his appointment.

1.3 On 21 December 2005, the complainant sent the Ombudsman a further letter in which he submitted a new allegation. He alleged that, by giving him a totally irrelevant reason in order to justify its withdrawal of its offer of employment, namely, his arrest at Malta Airport in April 2005, the Commission wrongly upheld its decision not to recruit him. The Ombudsman considered that, although the Commission had made some comments as regards the issue raised by the complainant in his further letter of 21 December 2005, it had not yet been informed that this constituted a new allegation. The Ombudsman therefore found it appropriate to inform the Commission of the complainant's new allegation and to ask it for a supplementary opinion on it.

1.4 In its reply, the Commission stated that, in referring to the complainant’s arrest in its letter of 25 November 2005, it did not seek to infringe the principle of the presumption of innocence. The information related to the complainant’s arrest only raised a further doubt as regards the appropriateness of his recruitment. Given that legal proceedings had been initiated before the national courts, the complainant was likely to be unable to take up his duties within a reasonable period of time. It had to be further pointed out that, in his letter of 14 December 2005, the complainant stated that he had mentioned some of his difficulties as regards taking up the offer of employment on the occasion of the selection interview. In the Commission’s view, this statement was not grounded and such information was mentioned neither in the report of the selection interview nor by the members of the Selection Board. Furthermore, in the Commission’s view, the complainant had, on several occasions, had the opportunity to inform the Commission of his continuing problems as regards taking up the offer of employment. It was only by e-mail of 4 July 2005 that the complainant had replied to the Commission’s letter informing him of the withdrawal of the offer of employment, stating that he had health problems. The complainant, however, did not mention that he was unable to take up his duties. The Commission concluded that the termination of the complainant’s recruitment procedure was fully justified and had been taken in conformity with the Staff Regulations in force.

1.5 In his observations, the complainant repeated his view that his arrest had been the only reason for the early termination of the period of time at his disposal to accept the offer of employment and that this early termination was motivated by reasons extraneous to his employment. The complainant maintained his view that the presumption of innocence and the principle of "audi alteram partem" had been infringed because the Commission had decided to withdraw its offer of employment without having heard his explanations as regards his arrest. In the complainant’s view, the Commission’s reference to a "reasonable period of time" for the taking up of his duties was unclear. The complainant further alleged that he had been the victim of discrimination because, if he had lived in a country larger than Malta, the Commission would never have been made aware of his arrest through articles in national newspapers.

1.6 The Ombudsman notes that principles of good administration require that the administration give adequate reasoning to the citizens for the decisions it takes.

1.7 The Ombudsman notes that, in its letter to the complainant of 17 March 2005, the Commission wrote the following:

"I am pleased to inform you that the European Commission is able to appoint you to its temporary staff under Article 2 b) of the Conditions of Employment of Other Servants, for a period of 2 years, with the Translation Directorate General in Luxembourg. (…)

Please let me know as soon as possible on what date you will be taking up your appointment (the 1st of the month, except the 16th of August and of December) free from any contractual obligations. (…)

Your reply should reach us at least 15 days before the date you wish to take up duties. (…)

You will appreciate that the Commission would like [ you] to take up your duties as quickly as possible, therefore this date should not normally exceed by more than one month the end of your period of notice to your current employers. The Commission reserves the right, after consultation with your future service, to withdraw this offer if you cannot respect this timing and in the event that your proposed date is more than six months from the date of this letter".

1.8 The Ombudsman further notes that, by e-mail of 14 April 2005(4) and by fax of 21 April 2005, the official in charge of the complainant’s file at DG Translation asked the complainant for the date on which he would like to start employment at DG Translation. The Ombudsman further notes that, by letter of 29 June 2005, the Head of Unit of DG ADMIN of the Commission wrote the following:

"On 17 March 2005, you received a proposal for an appointment as temporary staff (…).

You were requested to inform us on the date you would be able to take up your assignment free from any contractual obligation. Despite reminders by e-mail and fax, we didn’t receive any reply by today.

In agreement with the Translation Directorate General that was requesting your recruitment, we therefore withdraw the above mentioned proposal".

1.9 The Ombudsman notes that, in its letter of 17 March 2005 containing the offer of employment, the Commission clearly informed the complainant that he had to reply "as soon as possible" to its letter and that it wished him to take up his duties "as quickly as possible". The Ombudsman considers that it is evident from the Commission’s letter that, while the complainant could, potentially, have delayed taking up his duties for up to six months from the date of the offer, he was also required to inform the Commission "as soon as possible" of the date chosen to take up his duties.

1.10 The Ombudsman notes that the Commission sent to the complainant two reminders, on 14 and 21 April 2005, to which the complainant did not give any response until 4 July 2005.

1.11 In his letter of 4 July 2005, the complainant stated that he did not reply to the Commission’s letters because he wanted to finish his postgraduate studies in Translation and Interpretation in Malta. In the same letter, the complainant stated that he had to undergo a surgical operation and that he could not commit himself to giving a date when he could take up his duties at the Commission.

1.12 The Ombudsman is of the view that even if the complainant's studies, or a medical condition, impeded him from taking up his duties soon after receiving the offer of 17 March 2005, this does not explain why he did not respond to the Commission within a reasonable period after receiving the letter of 17 March 2005, or after receiving the two subsequent reminders, in order to inform it of a date on which he could take up his duties or, at least, inform it of the difficulties he encountered as regards fixing a date.

The Ombudsman notes that, in his letter of 14 December 2005, the complainant stated that, during the selection interview, he had mentioned some of the difficulties he faced. Notwithstanding the fact that the complainant has not produced any evidence that he made such statements in the selection interview - according to the Commission, this information was not mentioned in the report of the selection interview nor by the members of the Selection Board - the Ombudsman is of the view that the complainant had the opportunity, subsequently to receiving the letter of 17 March 2005, to inform the Commission of his continuing problems. He did not, despite reminders from the Commission, make use of this opportunity.

In light of the above, the Ombudsman considers that the complainant did not inform the Commission "as soon a possible" as regards the date on which he could take up his duties, as requested in the letter of 17 March 2005.

Therefore, the Commission's decision, by letter of 29 June 2005, to withdraw its offer of employment on the grounds that the complainant had failed to respond to respond to its letter of 17 March 2005, and the two subsequent reminders, appears to be reasonable.

The Ombudsman considers that there appears to have been no maladministration on the part of the Commission as regards this allegation.

1.13 The complainant also alleges that, by giving him a totally irrelevant reason in order to justify its withdrawal of its offer of employment, namely, his arrest at Malta Airport in April 2005, the Commission wrongly upheld its decision not to recruit him.

1.14 Principles of good administration require that the administration give adequate reasoning to the citizens for the decisions it takes. As noted in Paragraph 1.12 above, the letter of 29 June 2005, in which the Commission informed the complainant that it withdrew its offer of employment, contained adequate reasoning for the decision taken. The letter stated that he had failed to inform the responsible service of the date on which he wished to take up his duties. The Ombudsman considers that the reason set out in the letter of 29 June 2005 was, in and of itself, sufficient to justify the withdrawal of the offer to the complainant. As such, the letter of 29 June 2005 therefore contained adequate reasoning for the decision taken. The complainant's arrest at Malta Airport was not mentioned in that letter.

The Ombudsman also considers that the Commission was entitled to withdraw the offer for the reason it gave in its letter of 29 June 2005 and that, having withdrawn its offer for a valid reason, the Commission was under no obligation to make any new offer to the complainant. Moreover, the Commission’s opinion on the allegation indicates that, in responding to the complainant's letters of 4 July and 18 August 2005, it continued to rely on the reason given in its letter of 29 June 2005, as well as the other factors mentioned. The Ombudsman therefore considers it unnecessary to prolong the present inquiry in order to take a position on whether, and under what conditions, the Commission could properly take into account those other factors.

1.15 As regards the complainant’s allegation that he was the victim of discrimination, the Ombudsman notes that this allegation was not raised in his original complaint and was only raised in his observations on the Commission's response to the Ombudsman's further inquiries. This issue will therefore not be examined in the present decision.

2 The Commission’s alleged failure to reply to the complainant’s letters of 4 July and 18 August 2005

2.1 In his complaint, the complainant alleged that the Commission has failed to reply to his letters of 4 July and 18 August 2005.

2.2 In its opinion, the Commission stated that it had replied to the complainant's letters of 4 July and 8 August 2005. The Commission acknowledged that a certain delay had occurred between the complainant’s two letters and its reply of 25 November 2005, and apologised for it.

2.3 It is good administrative practice for the administration to reply to letters or e-mails it receives within a reasonable period of time and in an adequate way. The Ombudsman also finds it useful to recall that, pursuant to Article 17 of the European Code of Good Administrative Behaviour(5), "[t]he official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case no later than two months from the date of receipt. (...)".

2.4 In his complaint, the complainant alleged that the Commission had failed to reply to his letters of 4 July and 18 August 2005. Given that these two letters appear to have been sent in the course of the present inquiry, the Ombudsman considers that what needs to be examined is whether the Commission sent its replies within a reasonable period of time.

In this context, the Ombudsman notes that, in his letter of 4 July 2005, the complainant challenged the Commission’s decision to withdraw its offer of employment. On 18 August 2005, the complainant sent a further letter to the Commission. The Ombudsman notes that the Commission replied to the complainant’s two letters on 25 November 2005, that is, more than four months after the complainant’s first letter and more than three months after his further letter. The Ombudsman considers that this went manifestly beyond what could be considered to be a reasonable period of time for answering such requests. The Ombudsman, however, notes that, in its opinion, the Commission acknowledged that a certain delay had occurred when replying to the complainant’s two letters and apologised for it. In these circumstances, the Ombudsman considers that there appears to be no grounds for further inquiries into this allegation.

3 The complainant's claims

3.1 The complainant claimed that the Commission should make him a new offer of employment in its DG Translation or, alternatively, it should compensate him for the damage he has suffered. The complainant further claimed that the Commission should declare its letter of 29 June 2005 null and void and should withdraw it.

3.2 In its opinions, the Commission made no statement on the complainant’s claims.

3.3 In view of his conclusion in points 1.12 and 1.14 above, the Ombudsman considers that there appears to be no need to further pursue his inquiry into the complainant’s claims.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission as regard the decision to withdraw its offer of employment on the grounds that the complainant had failed to inform as soon as possible the responsible service of the date on which he wished to take up his duties. As regards the complainant's other allegations and claims, the Ombudsman considers that there are no grounds for further inquiries. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 2 of the CEOS provides:

For the purposes of these conditions of employment, 'temporary staff' means:

(...)

(b) staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution;

(...)".

(2) "A member of the temporary staff may be engaged only on condition that:

(...)

(c) he produces the appropriate character references as to his suitability for the performance of his duties;

(...)".

(3) See note 2 above.

(4) The official wrote the following to the complainant: "(…) I am not aware if you have already replied to DG ADMIN, but I would be very grateful if you would let me know the date you wish to start employment".

(5) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).