Strasbourg, 28 January 2008

Dear Ms W.,

On 4 June 2007, you submitted a complaint to the European Ombudsman against the European Parliament concerning the award of merit points for the year 2005.

On 31 July 2007, I forwarded the complaint to the President of Parliament.

Parliament sent its opinion on 15 November 2007. I forwarded it to you with an invitation to make observations, which you sent on 30 November 2007.

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:

Up to her retirement on 1 October 2006, the complainant had worked as a European Parliament official dealing with staff insurance for accidents and work-related illness. The evaluation of her performance, which was carried out by her superiors, was positive throughout her 39-year career. However, Parliament's Directorate-General ("DG") for Personnel proposed to award her only two merit points for the reference year 2004(1) and did the same for the year 2005.

The complainant was not satisfied with these proposals, especially as they concerned the two last years of her career and therefore had consequences on her promotion and thus on the calculation of her pension rights.

The complainant therefore started the special procedure of appeals prior to the final decision to award merit points and, on 19 June 2006, she made a referral to the Reports Committee as regards her merit points for 2005. The Reports Committee found that it would be justified for the complainant to receive an additional (third) merit point. In its opinion of 29 June 2006, the Committee stated that it compared the complainant's evaluation report with the reports of all of her colleagues of the same category and grade in the same DG whom the DG had proposed to receive a third merit point, and concluded that the complainant's report was of a level "equivalent to at least four of them."

According to the established procedure, the Reports Committee forwarded its opinion to DG Personnel and to the Secretary-General for the final decision.

On 13 October 2006, DG Personnel decided to maintain its original decision and award her only two points. In its letter addressed to the complainant, DG Personnel justified its decision by stating that the complainant had started her retirement and, even though her work may be recognised, this did not justify depriving other officials of merit points. In this regard, DG Personnel noted that only a limited number of merit points was distributed among all the officials(2). The complainant found this justification unfounded given that she worked in the reference period, namely, 2005, and started her retirement only on 1 October 2006.

Then, on 13 November 2006, the complainant lodged an appeal pursuant to Article 90(2) of the Staff Regulations, to which the Secretary-General replied on 9 May 2007. In her Article 90(2) complaint, the complainant argued that (i) DG Personnel's justification was incorrect because she started her retirement only on 1 October 2006 and worked in 2005; and (ii) she performed her duties exceptionally well. She expressed her doubts as to whether it would be justified to rely on the current retirement of an official when awarding merit points for the period when this official still worked. She asked for a third merit point to be awarded to her. In this context, the complainant mentioned that one of her colleagues, Ms V.C., had been retroactively promoted, even though she started her retirement on 1 February 2006.

In its reply, the Secretary-General agreed that the statement of reasons in the decision of DG Personnel dated 13 October 2006 was wrong and therefore he decided that the complainant's evaluation report should be re-examined. However, a third merit point could not be awarded to the complainant. The Secretary-General stated that the Appointing Authority disposes of wide discretionary powers as regards the promotion of officials and the award of merit points and it makes its decisions carefully and impartially, on the basis of a comparative analysis of the merits of officials. In this regard, the Secretary-General made reference to (i) Case T-76/92 Tsimorkos v Parliament(3), and (ii) to the Ombudsman's decision on complaint 1634/2003/(ADB)GG(4). In the complainant's case, despite the fact that her report showed the quality of her work, it was not considered superior to reports of officials who had received a third merit point. The Secretary-General noted, in particular, that "the Reports Committee did not conclude that the complainant's merits were clearly superior to those of her colleagues who had received a third merit point". The Secretary-General also pointed out that an official may be promoted even when he or she did not receive a third merit point.

On 4 June 2007, the complainant turned to the European Ombudsman.

The complainant alleged that the reasoning given by the Secretary-General for rejecting her Article 90(2) complaint was inadequate.

The complainant argued, in particular, that the reasoning given by the Secretary-General failed to demonstrate that her retirement was not the real explanation for the failure to award her a third merit point.

The complainant claimed that Parliament should award her a third merit point for the reference year 2005, and to promote her retroactively.

The Ombudsman opened the inquiry into the above allegation and claim and asked Parliament to comment on them and, in addition, on the point made by the complainant that the new Staff Regulations no longer allow action to be taken on the basis of "the concept of the end of career" ("la notion de fin de carrière") as regards promotions.

THE INQUIRY

Parliament's opinion

On 15 November 2007, Parliament sent its opinion to the Ombudsman, in which it made the following comments:

As to the facts

By decision of 13 October 2006, the complainant was awarded two merit points for 2005.

Then the complainant lodged a complaint pursuant to Article 90(2), challenging the decision and the reasons given for it, which made reference to her retirement at the end of September 2006. She also referred to the opinion delivered by the Reports Committee that her staff report was of an equivalent level to those of at least four colleagues in the same grade who were awarded three points.

Her complaint was rejected by the decision of 13 November 2006.

As to the merits

According to the Implementing measures concerning the award of merit points and promotion, adopted by the Secretary-General on 10 May 2006, each Director-General receives a total number of points calculated as follows: 2.1 multiplied by the number of staff in his/her DG. The Secretary-General also has a reserve of points. This reserve could be used to correct "distortions" which could result from the small number of officials and staff in a given grade. As regards the procedure, the merit points are awarded on the basis of grade, in each category, in accordance with the Staff Regulations and of a comparative assessment of merits.

Parliament pointed out that, in the present case, the comparative assessment of merits was made within DG Personnel between the complainant's staff report and those of her colleagues of categories "A", "B" and "C"(5).

Parliament stated that, contrary to the opinion of the Reports Committee, the comparative assessment did not show that the complainant's merits were equivalent to those of her colleagues in the same grade who were awarded a third merit point. As regards the officials of category "B" who were awarded a third merit point, Parliament took the view that all of them had better staff reports than the complainant had. As regards the comparison made between the complainant's staff report and those of her colleagues of categories "A" and "C" who received a third merit point, Parliament considered that the complainant's merits were not greater that those of her colleagues.

Parliament also noted that the complainant’s staff report was a very good report that showed the complainant's excellent understanding of her field of work.

Parliament recalled the Ombudsman's Decision 1634/2003/(ADB)GG(6), which recognised the power of discretion vested in the Appointing Authority for the purpose of awarding a third merit point.

As regards the point as to whether the complainant's retirement had any influence on the decision to award a third merit point, Parliament stressed that the Secretary-General, in his decision of 9 May 2007, made the appropriate correction in the statement of reasons given to the complainant by her DG. Parliament took the view that the complainant's retirement had no influence on the decision of the Appointing Authority to award her only two merit points.

Parliament also pointed out that the complainant was eligible for promotion to grade "B11" and her merits were duly considered by the Promotion Committee. Moreover, it emphasised that the Promotion Committee took into account not only the number of points obtained by officials who are eligible for promotion, but also their evaluation sheet and staff reports. In this respect, one of the officials promoted to grade "B11" in 2006 had in fact been awarded two merit points in 2004 and 2005. Parliament stressed that, in 2006, there were only seven opportunities for promotion to grade "B11". Therefore, the Appointing Authority had to decide which grade "B10" officials were the most deserving for such promotion. Parliament concluded that the Appointing Authority had made proper use of the broad discretionary power assigned to it in connection with the award of a third merit point.

Finally, in its opinion, Parliament challenged the admissibility of the present complaint, on the grounds that the complainant had failed to lodge a complaint, concerning the fact that she had not been promoted, within the time-limits laid down by Article 90(2) of the Staff Regulations.

The complainant's observations

In her observations on Parliament's opinion, the complainant made the following comments:

The complainant remained convinced that her retirement had an influence on the decision to award her only two merit points for 2005. She complainant contested the comparative assessment of merits made by Parliament in her case and also expressed doubts about the fact that "her merits were duly considered by the Promotion Committee and by the Appointing Authority". In this respect, the complainant stated that she had to ask her DG to take her staff report into consideration for the 2005 notation exercise(7). As regards the admissibility of her complaint submitted to the Ombudsman, the complainant pointed out that her complaint concerned the award of merit points for the year 2005 and not the promotion exercise.

She pointed out that Parliament failed to reply to her request that she be provided with reasons as to why it did not follow the opinion of the Reports Committee.

THE DECISION

1 Preliminary remarks
Admissibility of the complaint to the Ombudsman

1.1 First, the European Ombudsman notes that, in its opinion, the European Parliament appears to argue that the complaint should not have been considered admissible by him, given that the complainant failed to lodge a complaint, concerning the fact that she had not been promoted, within the time-limits laid down by Article 90(2) of the Staff Regulations.

1.2 The Ombudsman notes that the original complaint concerned the decision not to award the complainant a third merit point for the year 2005. In this respect, the Ombudsman notes that the complainant has referred to this issue in her Article 90(2) complaint submitted to the Secretary-General on 13 November 2006, to which the Secretary-General replied on 9 May 2007, that is, before the original complaint was submitted to the Ombudsman. The Ombudsman considers therefore that the complainant complied with the provisions of Article 2(8) of his Statute(8).

2 Alleged failure to justify the decision not to award a third merit point and related claim

2.1 The complainant alleged that the reasoning given by the Secretary-General for rejecting her Article 90(2) complaint was inadequate.

She argued, in particular, that the reasoning given by the Secretary-General fails to demonstrate that her retirement is not the real explanation for the failure to award her a third merit point.

The complainant claimed that Parliament should award her a third merit point for the reference year 2005, and promote her retroactively.

2.2 In its opinion, Parliament explained that merit points are awarded on the basis of grade, in each category, in accordance with the Staff Regulations and of a comparative assessment of merits. Parliament pointed out that the comparative assessment of merits made between the complainant's staff report and those of her colleagues of categories "A", "B" and "C" who received a third merit point showed that all of them had better staff reports than the complainant. Parliament also stressed that the merits of the complainant were taken into consideration by the Promotion Committee, but given the limited possibilities of promotion to grade "B11" in 2006, only the most deserving officials were promoted. Parliament emphasised that the complainant's retirement had no influence on the decision of the Appointing Authority to award her only two merit points. Parliament concluded that the complainant's staff report did not show that the quality of her work was superior to the work of other colleagues who had received a third merit point. Thus, its decision not to award a third merit point to the complainant did not constitute a manifestly erroneous appraisal.

2.3 At the outset, the Ombudsman recalls his earlier decisions(9) in which he referred to the established case-law, in particular, Case C-277/01 P Parliament v Samper(10). In that case, the Court held that:

"in assessing the interests of the service and the qualifications and merits of the candidates to be taken into consideration in making a promotion decision pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion, and in that connection the Community Court's review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Community court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority"(11).

The Ombudsman has consistently taken the view that his own review(12), when dealing with complaints concerning the award of merit points, should be based on the same approach.

In light of the above, in the present case, the review by the Ombudsman is therefore limited to ascertaining whether (i) Parliament followed correct procedures in arriving at its decision to award the complainant two instead of three merit points and (ii) this decision was tainted by a manifest error.

2.4 First, as regards the divergences between the opinion of the Staff Reports Committee and the final decision of Parliament, the Ombudsman points out that the views of the Staff Reports Committee are not binding on Parliament(13). However, should the Staff Reports Committee take a view that is subsequently not followed in the decision to award merit points, Parliament is obliged duly to explain its decision not to follow the views of the Staff Reports Committee.

2.5 In the present case, the Ombudsman first notes that the complainant had to submit a special request in order for her staff report to be taken into account for the 2005 notation exercise. The Ombudsman also notes that DG Personnel justified its decision to award only two merit points to the complainant by stating that the complainant had started her retirement. In order to justify its decision with regard to the complainant, DG Personnel also stated that, even though her work may be recognised, this does not justify depriving other officials of the merit points(14). The Ombudsman also notes that, in its reply to the complainant's Article 90(2) complaint, the Secretary-General agreed that the above statement of reasons by DG Personnel was wrong and indicated that he had therefore decided that the complainant's evaluation report should be re-examined. Following the re-examination, the Secretary-General concluded that the merits of the complainant were not superior to those of her colleagues who had received a third merit point. The Secretary-General also pointed out that an official may be promoted even when he/she did not receive a third merit point.

2.6 Further, the Ombudsman notes that, in its opinion, Parliament stated that the complainant's retirement did not lead the Appointing Authority to award her two merit points instead of three. In this respect, the Ombudsman also notes that, according to Article 45 of the Staff Regulations, when considering comparative merits for promotion, the Appointing Authority shall in particular take account of the reports on the officials, the languages used in the execution of their duties and, where appropriate, the level of responsibilities exercised by them. The Ombudsman also notes that, for the 2006 promotion exercise, there were only seven possibilities for promotion at grade "B11"(15).

2.7 In its opinion, Parliament explained that the award of merit points was solely done on the basis of a comparison of merits of the officials. It went on to state that the complainant was eligible for promotion to grade "B11" and that her merits were duly considered by the Promotion Committee and by the Appointing Authority. Finally, Parliament emphasised that the Promotion Committee took into consideration not only the number of merit points gained by officials eligible for promotion, but also their evaluation sheet and staff reports.

2.8 In light of the explanation provided by Parliament, as outlined in point 2.7 above, the Ombudsman considers such a view to be reasonable.

2.9 In these circumstances, the Ombudsman concludes that there is nothing to suggest that Parliament failed to apply the correct procedure as regards its decision to award the complainant two instead of three merit points.

2.10 As regards the substance of Parliament's decision, the Ombudsman takes the view that two aspects need to be distinguished, namely, (i) whether Parliament was right to compare the complainant's staff report to those of her colleagues to whom it was proposed to award a third merit point and (ii) whether Parliament applied the correct approach when carrying out this comparison.

2.11 The Ombudsman first notes that, in its opinion, Parliament referred to its rules of procedure which prescribe that the award of merit points should be based on the comparison of the staff reports. Second, the Ombudsman notes that, in its opinion, Parliament pointed out that a comparative assessment was made within DG Personnel between the complainant's staff report and levels of responsibility and those of her colleagues of categories "A", "B" and "C".

2.12 First, Parliament compared the complainant's staff report with those of officials having the same grade as the complainant, who received a third point. It concluded that all of the category B officials to whom DG Personnel awarded a third merit point had obtained better staff reports than the complainant. Second, Parliament compared the complainant’s levels of responsibility, which is under the constant Community case-law one of the elements of assessing the merits of the officials(16), to those of category "C" and "A" officials who received a third point and concluded that the complainant's merits were not greater that those of her colleagues.

2.13 The Ombudsman takes the view that Parliament offered a detailed explanation concerning the comparative assessment made between the complainant's staff report and those of officials who had received a third merit point and who were promoted. Furthermore, it does not appear that that assessment was tainted by a manifest error.

The Ombudsman considers therefore that the decision not to award a third merit point to the complainant remained within the bounds of the discretion that Parliament enjoys in the matter.

2.14 In light of the above and for the reason explained in point 2.8 above, the Ombudsman does not find an instance of maladministration as regards the complainant's allegation. Therefore, the complainant's claim cannot be sustained.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by Parliament. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) In this respect, the complainant submitted another complaint to the Ombudsman. The Ombudsman closed the case with decision 2977/2006/(MHZ)RT, which is available on his website (http://www.ombudsman.europa.eu).

(2) "Cette fonctionnaire est partie en retraite et même si son travail est bien reconnu, il ne justifie pas de priver d'autres fonctionnaires des points accordés à juste titre afin de combler le déficit de points disponibles".

(3) Case T-76/92 Tsimorkos v Parliament [1993] ECR II-1281, paragraphs 16 and 17.

(4) The Ombudsman's decision on complaint 1634/2003/(ADB)GG is available on his website (http://www.ombudsman.europa.eu). In case 1634/2003/(ADB)GG the Ombudsman pointed out that the case-law of the Community Courts recognises that the A ppointing Authority possesses a wide discretion in assessing the interests of the service and the qualifications and merits of the candidates in making a promotion decision. The Ombudsman therefore considered that his review in such circumstances should be limited to ascertaining whether (i) correct procedures were followed in arriving at the decision and (ii) the decision was tainted by a manifest error.

(5) Given the difficulties involved in ensuring the anonymity of the staff reports, Parliament did not attach the reports to its opinion. However, it stated that the Ombudsman could consult them at Parliament's offices, if necessary.

(6) See note 4.

(7) In this respect, the complainant submitted an exchange of correspondence with DG Personnel.

(8) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(9) See the Ombudsman's decisions on complaints 1634/2003/(ADB)GG, 2977/2006/(MHZ)RT, 3052/2006/(MHZ)RT, which are available on the Ombudsman website (http://www.ombudsman.europa.eu).

(10) Case C-277/01 P Parliament v Samper [2003] ECR I-3019, paragraph 35.

(11) Case C-277/01 P Parliament v Samper, cited above, paragraph 35.

(12) See note 9.

(13) See point I.6 of the European Parliament's Implementing measures concerning the award of merit points and promotion, adopted on 13 February 2006.

(14) See note 2.

(15) Article 9 of Annex XIII to the Staff Regulations provides that only 5% of the officials may be promoted to grade "B11".

(16) Case T-89/91, X/Commission, [1993] ECR II-1235, paragraphs 49-50; case T-221/96, Manzo Tafaro/Commission [1998] ECR PF I-A-115, II-307, paragraph 18; case T-82/98, Jacobs/Commission [2000] ECR PF I-A-39 and II-169, paragraphs 36-39; case F-57/06, Hinderyckx/Council, 7 november 2007, paragraphs 45-46.