Strasbourg, 25 May 2005

Dear Mr O.,

On 23 June 2003, you lodged a complaint with the European Ombudsman against the European Commission on behalf of Mrs S. Your complaint concerned the Commission's decision not to take disciplinary action against the complainant's superiors on grounds of psychological harassment, and to reject her request for legal assistance pursuant to Article 24 of the Staff Regulations.

On 29 September 2003, the Ombudsman declared the complaint confidential on the basis of the available information. Following your request of 9 October 2003 that your complaint be treated publicly, I decided that your complaint should no longer be considered as confidential. On 2 December 2003, I wrote to you and to the Vice-President of the Commission, Mr Kinnock, to explain that the complaint would be treated publicly.

On 29 September 2003, I informed the President of the European Commission of your complaint and I asked him to submit an opinion. On 16 December 2003, I received the Commission's opinion, which I forwarded to you for observations. On 15 January 2004, I forwarded the Commission's opinion to you with an invitation to make observations. By letters of 12 and 24 February 2004 you requested a deferment of the deadline to submit your observations, which I granted on 16 March 2003. On 27 May 2004, you submitted your observations on the Commission's opinion.

On 17 June 2004, I asked the Commission to submit additional information concerning an action you had lodged with the Court of Fist Instance. The Commission sent its second opinion on 3 August 2004, which I forwarded to you with a request for observations. On 28 October 2004, you requested a one-month extension of the deadline for your observations, which I granted on 4 November 2004. On 29 November 2004, you sent your observations on the Commission's second opinion to me.

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

THE COMPLAINT

The facts of the case according to the complainant are, in summary, as follows:

The complainant is a former EC official who joined the Commission's DG Eurostat in 1993, where she worked until November 2002. At that time, she was forced to retire due to medical reasons. In 1995, she was made responsible for the statistical programme "Prodcom". In that capacity, she had to manage a number of contracts with external contractors, one of then with the firm "Eurogramme Ltd". Her working relationship with Eurogramme's responsible managers took a downturn, and she found herself accused of unduly interfering with the firm's internal management. Her hierarchical superior then received a number of communications from Eurogramme which, in the complainant's view constituted false accusations. In the absence of a more forceful response, the complainant believed that her Head of Unit was not properly responding to those charges. She had a number of harsh exchanges with her superior concerning the follow-up of the project carried out by Eurogramme. In October 2000, she was released from her duties in connection to this project and transferred to a different service. As a result of the situation, the complainant's physical condition deteriorated and she felt unable to continue her professional tasks. Having recognised her invalidity, the Commission granted the complainant early retirement on 8 November 2002.

The complainant considered that Eurogramme had launched false accusations against her, and that her Head of Unit had improperly used these allegations to discredit her work.

In response to the accusations made by Eurogramme's employees, the complainant filed a lawsuit for libel before the High Court in London, where the firm had its headquarters. In order to pursue this legal case, she requested permission from the Commission to disclose information she knew on the basis of her work, as required by Article 19 of the Staff Regulations. The Commission rejected the request on 26 April 2002. She appealed the Commission's decision on 19 July 2002. By not replying formally to her appeal, the Commission implicitly rejected the complainant's appeal. Against this implicit rejection, the complainant brought an action against the Commission before the Court of First Instance on 13 December 2002 (T-387/02), which is still pending. The complainant explained that her lawsuit for libel against Eurogramme had recently been settled following an offer for compensation which she accepted.

The complainant also sought to pursue legal actions against her hierarchical superiors. On 23 February 2001, she formally asked the institution to initiate a disciplinary action against her former Head of Unit on grounds of psychological harassment pursuant to Article 90 (1) of the Staff Regulations. Upon her request, the Commission's internal Office of Investigation and Discipline (IDOC) carried out a number of interviews with several witnesses, including the complainant and her superiors, and established a report on the matter ("IDOC report"). The complainant, however, was not given access to all information and materials pertaining to the inquiry, in particular to the conclusions of the IDOC report and to the testimony of the witnesses.

The Commission did not reply to the complainant's request for disciplinary action against her former Head of Unit. In the absence of a formal reply within four months, her request was to be deemed rejected. On 21 September 2001, the complainant lodged an appeal against this implicit refusal, in which she asked the Commission to provide her with legal assistance, as foreseen in Article 24 of the Staff Regulations. On 25 January 2003, the Commission dismissed the appeal on the grounds that no evidence had been found of any wrongdoing on the part of her former Head of Unit in his handling of the situation. The institution concluded that the actions of the external contractor (Eurogramme) and the manner in which its employees had expressed their views appeared to be inappropriate, but that the nature of the offence and its circumstances did not warrant legal assistance from the Commission.

The complainant had a number of written exchanges with Mr Kinnock, who was at the time Vice-President of the Commission for personnel matters. Following the settlement of the complainant's legal case before the High Court in London, Mr Kinnock wrote to her on 22 May 2003, and recognized in his letter that "some mistakes may have occurred in the course of the [Commission's] administrative inquiry". He therefore offered the complainant an amount of EUR 3 000 as a partial compensation for the costs incurred.

In her complaint to the Ombudsman, the complainant contested the grounds put forward by the Commission to refuse taking disciplinary action against her former Head of Unit on grounds of psychological harassment, and to reject her request for legal assistance under Article 24 of the Staff Regulations.

In the light of the available information, the Ombudsman opened an inquiry against the Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following:

The complainant alleges that the Commission refused her request on the basis of a report established by its services ("IDOC report") to which she could not have access, in breach of Article 26 of the Staff Regulations. By not being able to consult the report, the complainant alleges that her rights of defence were encroached.

The complainant therefore claims that the Commission should reconsider its decision in the light of the contents of Mr Kinnock's letter to the complainant dated 22 May 2003, which recognizes a number of shortcomings in the Commission's handling of her case, and offers her a compensation of EUR 3 000. The complainant asks the Commission to take all necessary measures to restore her honour and reputation, and claims full payment of her attorney's fees.

Having considered the nature of the complaint and that some of the documents included by the complainant in the file appeared to be confidential, the Ombudsman declared the complaint confidential on 29 September 2003 pursuant to Article 10.1 of his Implementing Provisions(1). In the light of a request from the complainant dated 9 October 2003 to have her complaint treated publicly, the Ombudsman reversed his initial decision. On 2 December 2003, the Ombudsman informed both the complainant and Mr Kinnock that the complaint would henceforth be treated on a non-confidential basis, since there appeared to be no grounds for him to maintain the confidentiality of the complaint in order to protect the interests of the complainant and, accordingly, that all the documents in the file would become accessible to the public pursuant to Article 14.4 of the Ombudsman's Implementing Provisions(2). In his letter, the Ombudsman gave Mr Kinnock the opportunity to express an opinion on this point as regards his letter to the complainant dated 22 May 2003, which was marked confidential.

THE INQUIRY

The Commission's opinion

In its opinion of 16 December 2003, the Commission pointed out that its decision of 26 April 2002 to reject the complainant's request for assistance was subject to a pending action before the Court of First Instance (case T-387/02) [henceforth, the CFI]. The institution argued that the complaint to the Ombudsman was, on the whole, identical to the appeal lodged before the CFI. It noted that, in comparison with the Court's pending action, the only new points raised in the complaint to the Ombudsman related to the contents of the letter from the then Vice-President of the Commission, Mr Kinnock, dated 22 May 2003. This issue, however, had in fact been addressed in the defence note submitted by the Commission to the CFI. The institution took the view that all the facts which had been put forward were the subject of legal proceedings before the CFI, and that therefore the Ombudsman should declare the case inadmissible.

The Commission's opinion also enclosed a brief reply from Vice-President Kinnock to the Ombudsman's letter of 2 December 2003. The institution informed the Ombudsman that it agreed to the application of Article 14.4 of the Ombudsman's Implementing Provisions to Mr Kinnock’s letter to the complainant dated 22 May 2003.

The complainant's observations

In her observations on the Commission's opinion, the complainant repeated the allegations made in her complaint. She pointed out that the pending case before the CFI and the complaint lodged with the Ombudsman concerned two different situations. In her view, the action before the CFI sought to have the Commission grant assistance to the complainant's legal case before the British courts, whereas the complaint to the Ombudsman relates to the Commission's decision of 25 January 2002 refusing to conduct further inquiries into her allegations of psychological harassment. The complainant concluded that the object of the action before the CFI and that of the complaint to the Ombudsman were dissimilar, and therefore asked the Ombudsman to continue his inquiry into the complaint.

FURTHER INQUIRIES

Having considered the contradictory nature of the available evidence, the Ombudsman concluded that he needed further information. By letter of 17 June 2004, he asked the Commission to explain in detail whether, in its view, the pending action before the CFI and the complaint to the Ombudsman concerned a similar factual situation.

The Commission’s second opinion

In its second opinion, the Commission pointed out that, notwithstanding the statements made by the complainant, the complaint to the Ombudsman also covered the request for assistance which is currently under review by the CFI. The Commission cited the specific section of the complaint which refers to this allegation. In connection with the main allegation made in the complaint to the Ombudsman, the institution pointed out that the complainant had alleged that her right to be heard had been breached by having been refused access to the statements made by her Head of Unit and other witnesses in the report upon which the Commission based its decision. The Commission pointed out that the very same issue had also been raised by the complainant in her appeal to the CFI. On the basis of these arguments, the Commission argued that the complaint to the Ombudsman was largely identical to the appeal lodged with the CFI.

The complainant’s observations on the Commission’s second opinion

In his observations on the Commission's second opinion, the complainant explained that the CFI had decided to open the oral proceedings, and that both parties had been called by the Judge Rapporteur to meet on 14 December 2004 to assess whether or not a friendly solution was still possible. In view of these developments, the complainant suggested that the Ombudsman suspend consideration of the case, and undertook to keep him informed of any further development. She enclosed with her observations a copy of the Report for the Hearing established by the Judge Rapporteur on 15 November 2004. The document described in detail the complainant's allegations and claims, as well as the arguments submitted by the Commission in its defence.

THE DECISION

1 The Commission's decision to reject the complainant's request for disciplinary action

1.1 The complainant alleges that Commission refused her request of 23 February 2001 to initiate a disciplinary action against her former Head of Unit on the basis of a report established by its services ("IDOC report") to which she had no access, in breach of Article 26 of the Staff Regulations(3). By not being able to consult the report, the complainant alleges that her rights of defence were encroached.

The complainant therefore claims that the Commission should reconsider its decision in the light of the contents of letter sent to her by the former Vice-President of the Commission, Mr Kinnock, dated 22 May 2003, which recognized a number of shortcomings in the Commission's handling of the case, and offered her a compensation of EUR 3 000. The complainant asks the Commission to take all necessary measures to restore her honour and reputation, and claims full payment of her attorney's fees.

1.2 The Commission argues that the complaint to the Ombudsman, on the whole, appears to be identical to an appeal lodged by the complainant against its decision of 26 April 2002 rejecting the complainant's request for assistance, which is currently pending before the Court of First Instance (case T-387/02). The institution notes that all the facts which had been put forward in the complaint to the Ombudsman are the subject of legal proceedings before the CFI and that, therefore, the Ombudsman should declare the case inadmissible.

1.3 The Treaty establishing the European Community and the Statute of the European Ombudsman set precise conditions as to the admissibility of a complaint. The Ombudsman can only start an inquiry if these conditions are met.

Article 195 of the Treaty establishing the European Community provides that:

"[T]he Ombudsman shall conduct inquiries for which he finds grounds, except where the alleged facts are or have been the subject of legal proceedings."

Furthermore, Article 2 (7) of the Statute of the European Ombudsman stipulates that:

"When the Ombudsman, because of legal proceedings in progress or concluded concerning facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action."

1.4 The Ombudsman notes that the allegations made in the complaint are twofold: (i) the complainant alleges that the Commission's decision of 25 January 2002 not to take disciplinary action against the complainant's superior on grounds of psychological harassment was based on a report established by its services to which she was not given access, in breach of Article 26 of the Staff Regulations; and (ii) she also claims that, taking into consideration the terms of Mr Kinnock's letter of 22 May 2003, the Commission should reconsider its decision of 26 April 2002 not to furnish the complainant with financial assistance to pursue her libel action, take all necessary measures to restore her honour and reputation, and fully pay her attorney's fees.

1.5 Having carefully examined the scope of the pending case before the CFI (case T-387/02) as set out by the Report for the Hearing established by the Judge Rapporteur [henceforth, RfH], the Ombudsman notes that one of the claims made by the plaintiff refers to the Commission's decision of 26 April 2002 which the CFI has been asked to annul (par. 60 RfH).

It also appears that the manner in which the Commission responded to the complainant's request for an inquiry into the behaviour of her superiors constitutes a relevant component of the factual situation before the CFI (pp. 34-36, 38, 40-44 RfH), and that this aspect of the case has specifically been addressed in the allegations submitted by both parties to the CFI in support of their conclusions (pp. 71; 78, 79 and 81 RfH).

1.6 In the light of the above considerations, and having assessed the allegations and claims made by the complainant in her complaint, the Ombudsman has concluded that the alleged facts appear to be the subject of legal proceedings in progress before the CFI, and thus that Article 195 EC should apply to this case.

In accordance with Article 2.7 of his Statute, the Ombudsman has therefore decided to terminate the consideration of the complaint and to file the outcome of the inquiries carried out so far without further action.

2 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, I have decided to terminate the consideration of the complaint and to file the outcome of the inquiries carried out so far without further action.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) "If 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."; Decision of the European Ombudsman adopting implementing provisions adopted on 8 July 2002 and amended by decision of the Ombudsman of 5 April 2004; available at the Ombudsman' web page (http://www.ombudsman.europa.eu).

(2) "Applications for access to the following documents shall be granted automatically, except in relation to complaints that are classified as confidential in accordance with Article 10.1 above: [...] (b) complaints and documents annexed thereto by the complainant"; see supra footnote 1.

(3) "The personal file of an official shall contain:
(a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;
[...]
Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed.
[...]
An official shall have the right, even after leaving the service, to acquaint himself with all the documents in his file and to take copies of them."