Strasbourg, 1 August 2007

Dear Mr W.,

On 3 September 2004, you submitted a complaint to the European Ombudsman against the European Commission. Your complaint concerns the Commission's decision of 23 March 2004 to reassign you from your position as acting Head of the EU Delegation in Kathmandu (Nepal) to the headquarters of the Directorate-General for External Affairs in Brussels (Belgium).

On 29 October 2004, I informed the President of the Commission of your complaint and asked him to submit an opinion on it by 15 December 2004. On 15 December 2004, the Commission sent its opinion, which was forwarded to you with an invitation to make observations. On 11 February 2005, you sent me your observations.

On 27 September 2005, I asked for further information from the Commission to be sent by 31 October 2005. On the same date, I informed you of my initiative. The Commission requested an extension of the deadline for its reply on 10 November and 12 December 2005, as well as on 10 January, 10 February, 7 March and 6 April 2006. I acknowledged these requests respectively on 15 November 2005, 18 January, 15 February, 15 and 31 March, and 11 April 2006.

You requested information on the progress of your complaint on 20 February 2006, to which I replied on 31 March 2006.

On 22 May 2006, the Commission sent its reply to my request for further information, which was forwarded to you with an invitation to make observations. On 13 June 2006, you sent me your observations on the Commission's reply.

By letter dated 26 November 2006, I informed the Commission that I considered it appropriate to inspect its file concerning your case. The inspection of the file took place on 8 December 2006. A copy of the report established by my Secretariat was forwarded to both you and the Commission on 18 January 2007.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your case.

THE COMPLAINT

Complaint 1912/2004/JMA

On 15 June 2004, the complainant lodged a complaint with the European Ombudsman, which was registered under file number 1912/2004/JMA.

The complainant was a European Commission official who had worked as the acting Head of the EU Delegation in Kathmandu (Nepal) (the "Delegation"). In his complaint, he explained, in summary, that, in a note dated 19 February 2004, the Director-General of the Directorate-General for External Affairs ("DG RELEX"), instructed him to return urgently to the Commission's headquarters in Brussels for a meeting scheduled for 1 March 2004. The Director-General referred to a letter which the complainant had allegedly addressed to an MEP, who at the time was the EU's Chief Observer for the national elections in Nepal, in which he appears to have made a number of critical remarks on the Commission's policy on Nepal. The note also underlined that such an initiative had been taken in breach of the complainant's duties as a Commission official. Since the complainant's letter had been addressed to the MEP and dispatched by diplomatic bag, the complainant considered that the Commission could only have known of its contents if its services had opened it without his agreement and, therefore, in violation of the right to respect for his correspondence.

During his tenure as the acting Head of Delegation, the complainant had had a number of disagreements with his superiors resulting from public statements made to the local press, or from the letters he directly addressed to the responsible Commissioner, Mr Patten, without prior clearance from his immediate superiors.

In the course of the meeting with the Director-General on 1 March 2004, the complainant was severely reprimanded for the contents of his letter to the MEP. He was orally instructed to leave his post in the Delegation at once and take up new duties in the DG RELEX headquarters in Brussels as of 8 March 2004. The Director-General's oral instructions were confirmed in writing by a note dated 3 March 2004, which was faxed to the complainant on 5 March 2004. A formal decision by the appointing authority was adopted on 23 March 2004, which backdated to 8 March 2004 the date on which the complainant should have been reassigned. The transfer was to become effective during a period for which the complainant had requested a leave of absence to begin on 2 March 2004. As a result of this situation, the complainant fell ill and was only able to take up his new duties on 26 April 2004.

In the complainant's view, his sudden move left no one in charge of the Delegation and thus had a detrimental effect on the interests of the service. Furthermore, he questioned the need for such a speedy transfer, since he had not yet been given a new assignment in DG RELEX.

On 20 April 2004, the complainant wrote a note to the Commission in which he expressed his disappointment with the decision taken against him. In the complainant's view, the decision was vitiated by a number of irregularities which should render it null and void.

In his complaint to the European Ombudsman, the complainant argued that the Commission based its decision to reassign him on the content of a private letter which had been opened without either his knowledge or consent, in violation of his right to respect for his correspondence.

In view of the available information, it appeared to the Ombudsman that the complainant had not exhausted all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations. Therefore, the Ombudsman, pursuant to Article 2(8) of his Statute, declared the complaint inadmissible on 22 July 2004. In his letter to the complainant, the Ombudsman suggested that he should exhaust all the possibilities for the submission of internal administrative requests, in particular the appeal procedure set out in Article 90(2) of the Staff Regulations. The Ombudsman added that, once the complainant had done so, he could consider submitting a new complaint to him, should he find the reply from the institution to be unsatisfactory.

Complaint 2763/2004/JMA

On 3 September 2004, the complainant wrote again to the Ombudsman.

In his letter, he stated that, on 28 April 2004, he had lodged an appeal with the Commission, pursuant to Article 90(2) of the Staff Regulations. As he had not received a reply within the four-month deadline, his appeal was deemed to have been implicitly rejected.

Taking into consideration the new evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference 2763/2004/JMA) and to start an inquiry. The allegations and claims on which the Ombudsman asked the Commission to submit an opinion were the following:

The complainant alleges, in summary, that the Commission's decision of 23 March 2004, whereby he was reassigned from his post of the acting Head of Delegation to the headquarters of DG RELEX in Brussels:

1. was based on information contained in a private letter, so that the privacy of his correspondence was not respected;
2. referred to written press opinions expressed by the complainant which did not correspond to the real content of those pieces of information;
3. did not take account of the interest of the service, since it left the Delegation without any managerial staff;
4. imposed extremely harsh conditions for the return of the complainant;
5. unfairly tarnished his reputation.

On the basis of the above allegations, the complainant claims that the Commission's decision should be annulled and that he should be reassigned to his previous post.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first described the factual background to the case. It explained that, in the course of the complainant's duties as acting Head of Delegation, he had made a number of statements to the press which contradicted the institution's policy in Nepal. In addition, as acting Head of Delegation, the complainant had taken a number of irregular initiatives, including direct contacts with MEPs or communications to the responsible Commissioner without prior approval by the complainant's superiors.

Following a number of unsuccessful admonitions by the Commission, the Director-General of DG RELEX, had to summon the complainant to a meeting in Brussels in early March 2004. In the course of the meeting, the Director-General informed the complainant of the Commission's intention to recall him to the Brussels headquarters urgently.

On 2 April 2004, the complainant was formally informed that he should take up his new post in Brussels on 26 April 2004. In response to the appeal submitted by the complainant pursuant to Article 90(2) of the Staff Regulations, the Commission confirmed its position on 8 September 2004. A copy of that decision was attached to the Commission's opinion.

As regards the alleged violation of the privacy of the complainant's correspondence, the Commission noted that the letter in question was enclosed in an envelope with the Commission logo in which the complainant formally identified himself by his official title as the acting Head of Delegation. The letter had been dispatched by internal mail, and there was no indication that it concerned a personal matter. It was addressed to a party outside the institution, and included critical remarks regarding the complainant's hierarchy. In view of these circumstances, the Commission took the view that such a correspondence could not be considered private, and therefore that the handling of this letter by its services had been justified. The Commission further considered that, given the nature and the subject-matter of the letter, it could have given rise to a disciplinary procedure.

The Commission explained that it had decided to reassign the complainant after first having heard him. The institution noted that the complainant had not denied having taken public positions concerning his official duties that were in clear contradiction with the institution's policy. It added that it was the complainant's duty to act loyally vis-à-vis the institution, as required by Articles 11 and 17a of the Staff Regulations.

The Commission indicated that its decision had caused no disruption to the work of the Delegation, which had traditionally been supervised by its counterpart in India. If any problems had arisen, the Commission took the view that they would have been the direct consequence of the initiatives taken by the complainant without the agreement of his superiors.

The Commission noted that its services had sought to lessen any potential hardship that the complainant might have suffered as a result of its decision and that, for that purpose, it had allowed him to take up his new duties on 26 April 2004.

The Commission recalled that it enjoys wide discretion as regards the organisation of its services. Since there had been a breach of mutual trust between the complainant and the institution, the Commission considered that it was reasonable for the appointing authority to regard changing the complainant's position as the most efficient way to resolve the situation. It added that, in view of these circumstances, the complainant could not blame the Commission for any alleged damage to his reputation.

The Commission therefore concluded that its decision to reassign the complainant was a legitimate exercise of its discretionary powers. The Commission further argued that, given the nature of the problem, its response had been carried out with all due respect for the complainant's rights of defence and after having given him adequate time to adjust/react to the Commission's decision.

The complainant's observations

In his observations, the complainant repeated the allegations made in his complaint.

He added that his professional position and actions as the acting Head of Delegation had been consistent with that of the European Union, in particular with the policy set out by the European Parliament in its past resolutions regarding Nepal.

As regards the conditions of his transfer to Brussels, the complainant noted that he was asked to carry out the transfer in the course of a period of leave. He also explained that, whereas his formal request for leave had been duly submitted and approved by his superiors, no reasons were given to him for the sudden cancellation of that leave of absence.

In connection with the violation of the privacy of his correspondence, the complainant disagreed with the Commission's assessment of the situation, and argued that his letter included no criticism of the Commission's policies. He expressed surprise at the Commission's justification of acts which constituted, in his view, a violation of the right to the privacy of his correspondence.

Further inquiries

In view of the observations submitted by the complainant, the Ombudsman wrote to the Commission on 27 September 2005, requesting additional information as regards (i) the reasons why the decision to transfer the complainant took effect during his duly approved period of leave, and the reasons given to him to justify the de facto cancellation of his leave; and (ii) whether or not the Commission considered that its actions in relation to the complainant's correspondence constituted an interference with the complainant's right to respect for his communications enshrined in Article 7 of the Charter of Fundamental Rights of the European Union(1) and Article 8 of the European Convention of Human Rights(2); and, if so, how it could justify such interference.

In connection with this last question, the Ombudsman asked the Commission to explain the legal basis for its actions, and to provide a general statement concerning the conditions under which it considered that the correspondence of members of its staff may be opened and disclosed.

The Commission's reply

In its reply, the Commission addressed the two queries made by the Ombudsman.

As regards the decision to have the complainant transferred during a period of leave, the Commission noted that it had not formally taken any decision to annul the complainant's request for leave. It added however that the complainant should have been on mission from 27 February until 9 April 2004, even though he was in fact on sick leave from 3 March until 8 April 2004. The Commission further added that, in view of the terms of the note of the Director-General of DG RELEX of 3 March 2004, recalling the complainant to Brussels urgently, he should have been aware that his leave of absence had been cancelled. The Commission noted however that the complainant had no right to return to his house in Germany. Since he had done so at the time, the Commission services reprimanded him for not having returned to his official duties.

In connection with the opening of the complainant's letter to the MEP, the Commission stated that it could not determine the exact facts of the case and, as a result, its services had been unable to establish the chain of events that took place at that time. The Commission did not know either whether the letter in question had been opened by its services, or if other sources had informed its services of the contents of the letter. The Commission stressed however that its rules for the dispatching of correspondence are consistent with the provisions of Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention of Human Rights. Accordingly, if the complainant's letter to the MEP had been opened by its services, it would have been due to an unintentional accident, which the Commission regretted.

The complainant's observations on the Commission's reply

In his observations on the Commission's reply, the complainant reiterated the arguments he had already put forward in his complaint. He explained that, following his interview with the Director-General of DG RELEX, he had fallen sick and had therefore taken sick leave from 3 March until 8 April 2004.

The complainant also argued that the Commission's arguments sought to conceal its responsibility in an action which violated the right to the privacy of his correspondence. From the complainant's viewpoint, the Commission became aware of the contents of his letter only after its services had opened it. The complainant added that, regardless of the way the contents of his letter were disclosed, they were improperly used in order to have him recalled from his post in the Delegation. He further noted that, two years after his reassignment, the Commission had not yet found a suitable position for him.

The inspection of the file

After carefully examining the Commission's opinions and the complainant's observations on them, the Ombudsman considered it appropriate to carry out an inspection of some of the materials included in the Commission's file on the complaint. The Ombudsman wrote therefore to the Commission on 26 November 2006 stating that, in accordance with Article 3(2), first paragraph of his Statute, he considered it necessary for his services to inspect certain documents in the possession of the Commission concerning (i) t he complainant's request for leave of absence to begin on 2 March 2004; and (ii) the opinions expressed by the complainant in his letter to the MEP dated 6 February 2004.

The inspection took place at the Commission’s premises in Brussels on 8 December 2006. The documents provided by the Commission consisted of four large ring binders marked: (i) "Chrono plaintes Art. 90"; (ii) "Dossier M. W."; (iii) "Dossier M. W."; and (iv) "Retour au Siège 2004".

The Ombudsman's services reviewed the materials contained in the four ring binders, paying particular attention to those documents which specifically concerned the complainant's request for leave of absence to begin on 2 March 2004(3), and to documents concerning the opinions expressed by the complainant in his letter to the MEP(4).

The Ombudsman's services drafted a report concerning the inspection of the file, a copy of which was forwarded to both the Commission and the complainant on 18 January 2007.

THE DECISION

1 Alleged irregularities of the Commission's decision to reassign the complainant

1.1 The complainant argues that the European Commission's decision of 23 March 2004 ("the decision"), whereby he was reassigned from his post of acting Head of the EU Delegation in Kathmandu (Nepal) (the "Delegation") to the headquarters of the Directorate-General for External Affairs ("DG RELEX") in Brussels (Belgium) was vitiated by a number of irregularities which should render it null and void. He alleges, in summary, that the decision: (i) was based on information contained in a private letter, so that the privacy of his correspondence was not respected; (ii) referred to written press opinions expressed by himself which did not correspond to the real content of those pieces of information; (iii) did not take account of the interest of the service, since it left the Delegation without any managerial staff; (iv) imposed extremely harsh conditions for his return; and (v) unfairly tarnished his reputation.

The complainant explains that, on 1 March 2004, following a meeting with his Director-General, he was orally instructed to leave his post in the Delegation at once and take up new duties in DG RELEX headquarters in Brussels as of (Monday) 8 March 2004. The complainant considers that the decision was the Commission's response to the remarks made by him in a private letter addressed to Mr Collins MEP, regarding the institution's policy on Nepal. He further states that a written confirmation of that instruction was only faxed to him on (Friday) 5 March 2004, leaving him with only half a working day to make the necessary arrangements. The complainant further notes that the transfer was to take place during a period for which he had requested leave of absence. The formal decision of the appointing authority, adopted on 23 March 2004, backdated to 8 March 2004 the date on which the complainant should have been reassigned. As a result of this situation the complainant fell ill. He further notes that, only on 2 April 2004, did the Commission agree to grant him an additional three-week period to take up his new duties. In the complainant's view, the vacuum left in the Delegation as a result of his sudden removal, with no responsible official to take care of the normal business, was detrimental to the interest of the service. Furthermore, the complainant questioned the need for such a speedy transfer, since he had not yet been given a new assignment in DG RELEX.

1.2 The Commission argues that its decision to reassign the complainant was a legitimate exercise of its wide discretion for the reorganisation of its services. Since there had been a breach of mutual trust between the complainant and the institution, the Commission takes the view that it was reasonable for the appointing authority to regard changing the complainant's position as the most efficient way to resolve the situation. Taking into account the nature of the problem created, the Commission believes that the reassignment of the complainant was a proportional response to the situation, and that its response was carried out with all due respect for the complainant's rights of defence and after having given him an adequate time to adjust to the Commission's decision.

The Commission considers that there was no violation of the privacy of the complainant's correspondence. In its view, the complainant's letter could not be considered private to the extent that it was enclosed in an envelope with the Commission logo in which the complainant formally identified himself by his official title, had been dispatched by internal mail, and there was no indication that it concerned a personal matter. Accordingly, the Commission argues that that the handling of this letter by its services had been justified.

The Commission notes that, before having adopted its final decision, it first heard the complainant, who did not deny having taken public positions concerning his official duties which were at variance with both the institution's policy and the provisions of Articles 11 and 17b of the Staff Regulations. The Commission also believes that its decision did not cause disruption to the work of the Delegation, which had traditionally been supervised by its counterpart in India.

In the Commission's view, the complainant's reassignment took place under normal conditions and its services sought to lessen any potential hardship on the complainant by extending until 26 April 2004 the date on which he was due to take up his new duties in Brussels. The Commission added that, in view of these circumstances, the complainant could not blame it for alleged damage to his reputation.

1.3 In its reply to the Ombudsman's request for further information, the Commission elaborates on its position concerning the opening of the complainant's correspondence. The institution explains that, after having unsuccessfully tried to determine the facts of the case, its services had been unable to establish the chain of events that took place at the time. The Commission stresses that, if the letter had been opened, it was an accident which it regrets. It points out that its rules for the handling of correspondence are consistent with the provisions of Article 7 of the Charter of Fundamental Rights of the European Union(5) and Article 8 of the European Convention of Human Rights(6).

In his observations on the Commission's reply, the complainant points out that the institution could have become aware of the contents of his letter only if its services had previously opened it. The complainant added that, regardless of the way the contents of his letter were disclosed, they were improperly used in order to have him recalled.

1.4 As regards the conditions for the complainant's reassignment, the Commission explains in its reply to the request for further information that the complainant should have been on mission from 27 February until 9 April 2004, even though he was in fact on sick leave from 3 March until 8 April 2004. The Commission further adds that, in view of the terms of the note of the Director-General of DG RELEX of 3 March 2004, recalling the complainant to Brussels urgently, he should have been aware that his leave of absence had been cancelled.

In his observations on the Commission's reply, the complainant points out that, following his meeting in Brussels, he fell sick and had to take sick leave from 3 March until 8 April 2004. He also explains that, two years after his reassignment, the Commission has not yet found a suitable position for him.

1.5 The Ombudsman notes that the object of the present inquiry concerns the decision to reassign a Commission official. The legal basis for this type of decisions is to be found in Article 7(1) of the Staff Regulations, according to which the appointing authority has the legal authority to organise its services and, for that purpose, to decide on the appointment of an official to a particular post and on his potential transfer(7).

The Ombudsman also notes that the Community Courts have interpreted the scope of the institutions' legal authority to reassign an official very broadly and have accorded wide discretion to the competent appointing authority in order to exercise this power. According to the Community Courts, this wide discretion is limited to the extent that the new post to which the official is assigned must correspond to the official's grade and that the decision must be in the interest of the service(8).

1.6 Before addressing the allegations made by the complainant, the Ombudsman wishes to clarify a specific aspect pertaining to the scope of his inquiry. The Ombudsman notes that, in his complaint, the complainant mentioned that the Commission had not yet found a suitable position for him after his reassignment to the headquarters of DG RELEX. However, the complainant did not indicate that he wished to make an allegation in this context or that he wished the Ombudsman to examine this issue. Accordingly, the Ombudsman did not include this issue within the scope of his inquiry and, as a result, it will not be examined in the present decision.

Alleged violation of the complainant's correspondence

1.7 The Ombudsman is mindful of the fact that if, as the complainant alleges, the decision had been based on information contained in the letter he had sent to Mr Collins MEP which would have been brought to the Commission's attention as a result of its opening of the complainant's correspondence, it needs to be assessed whether or not that action constituted a violation of the complainant's right to respect for his correspondence which could undermine the validity of the decision.

1.8 The Ombudsman notes that the right to respect for one's communications, as enshrined in Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights, constitutes a fundamental right protected by the legal order of the Community. In the Ombudsman's view, this fundamental right certainly extends to EU officials as well. Furthermore, as the Community Courts have held, an administrative act which is based on facts resulting from a violation of a fundamental right can be annulled if it constitutes a disproportionate and intolerable interference which infringes upon the very substance of the right protected(9).

1.9 It appears to be uncontested that the Commission became aware of the contents of the complainant's letter without his permission. It remains in dispute however how and by whom the complainant's correspondence was opened. In the course of his inquiry, the Ombudsman has devoted particular attention to this aspect of the case in order to determine the role of the Commission in this situation.

However, on the basis of the information made available to him in the course of his inquiry, the Ombudsman has not found concrete evidence that would allow him to establish that a breach of the complainant's fundamental right to respect for his correspondence occurred.

The Ombudsman points out that his inquiry has not been facilitated by the diverging explanations furnished by the Commission. Whilst the statements made in its first opinion appeared to suggest that the institution considered it had the right to open the complainant's correspondence and to read its contents, in its reply to the request for further information the Commission has argued that it had been unable to determine the exact facts of the case, adding that if the letter had been opened by its services, this could only have been the result of an unintentional accident, which it regrets.

In order to try to shed more light on this aspect of the case, the Ombudsman's services have inspected all the documents in the Commission's file concerning this case . Having scrutinised these materials, the Ombudsman has found no proof that the Commission services had incorrectly handled the complainant's letter to the MEP. As noted above, in its reply to the request for further information, the Commission has stated that it had not been able to ascertain the facts in the present case. The documents that were inspected by the Ombudsman's services indeed confirm that the Commission took steps in order to find out what exactly had happened, notably by putting questions to at least some of the persons who were involved. On the basis of these documents, the Ombudsman considers that the Commission's statement that it is no longer able to ascertain the facts of the case appears to be reasonable.

1.10 The rules governing the work of the Ombudsman enable him not only to ask the institution for any information he may need and to inspect the institution's file, but also to take the testimony of officials and servants of the institution. The Ombudsman has therefore carefully considered whether making use of the possibility to hear officials or other servants of the Commission as witnesses would enable him to form a definitive view as to whether the complainant's fundamental right to the protection of his communications was violated in the present case. However, considering the results of the internal examination that had already been carried out by the Commission, the Ombudsman has arrived at the conclusion that any further measures of inquiry he could take are unlikely to shed more light on this problem.

1.11 As mentioned above, the fact that the Ombudsman finds himself unable to ascertain the precise chain of events leading to the opening of the complainant's letter is to a large extent attributable to the fact that the Commission would appear to have failed to keep a proper record of the relevant facts. However, the Ombudsman notes that the present case concerns the alleged violation of the complainant's right to respect for his communications, not the way in which the Commission documents certain facts.

1.12 As regards the issue of respect for the communications of officials in general, the Ombudsman takes note of the fact that the Commission has informed him of its view that its rules for handling mail are in conformity with Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention of Human Rights. The Ombudsman therefore trusts that the Commission is committed to respecting the rights enshrined in these provisions.

1.13 In view of the above, the Ombudsman concludes that no further inquiries appear to be justified as regards this aspect of the case.

Incorrect interpretation of the complainant's public statements
Situation of the Delegation

1.14 The Ombudsman notes that the complainant has put forward two arguments in order to call into question the basis upon which the Commission adopted its decision, and that these arguments relate to the contents of the press reports regarding statements he made on the one hand and to the decision's effects on the Delegation on the other. The complainant argues that the press articles quoted by the Commission did not correspond to his actual statements, and that his transfer had had adverse effects on the Delegation.

The Ombudsman also notes that the Commission has rejected these specific arguments. The Commission took the view that the complainant had taken public positions concerning his official duties that were at variance with the institution's policy , and that its decision did not have a negative impact on the normal functioning of the Delegation.

1.15 The Ombudsman points out that Article 7 of the Staff Regulations, as interpreted by the Community Courts(10), establishes that the power to reassign an official is a discretionary power of the appointing authority. Furthermore, Article 7 provides that the appointing authority's legal authority to reassign is only limited to the extent that it must ensure that the post corresponds to the official's grade and that the decision responds to the interest of the service. Since, in the present situation, there appears to be no dispute as to the grade at which the complainant was to be transferred, the Ombudsman finds that the above allegations would question the Commission's use of its legal authority only if they could show that the decision did not respond to the interest of the service.

The Ombudsman is mindful that, in cases of conflictual administrative situations, the Community Courts have regarded the appointing authority's decision to reassign an official as having in fact been taken in the interest of the service(11).

1.16 It appears undisputed that, as a cting Head of Delegation, the complainant had had several serious disagreements with his superiors, as illustrated by a number of notes exchanged between the complainant and the Commission. Such differences of view culminated, in March 2004, in the recall of the complainant to Brussels.

The Ombudsman is aware of the fact that the complainant and the Commission disagree on whether the former acted properly or not when speaking to the press in Nepal in October 2003. It should be noted, however, that this issue was one of three issues that the Commission has relied on in this context. Another issue to which the Commission referred in this context was the fact that the complainant had directly addressed himself to the Commissioner, Mr Patten. The Ombudsman notes that the complainant does not appear to deny that he acted incorrectly by writing directly to Mr Patten. The Ombudsman considers that the Commission would thus have been entitled to form the view that the complainant should be reassigned even if the latter's view that he acted properly when speaking to the press in October 2003 was correct. In these circumstances, no maladministration can be found as regards this aspect of the case.

1.17 As regards the situation of the Delegation in Nepal following the complainant's departure, the Ombudsman considers that the complainant has not established that any problems that his reassignment may have caused were such that they could call into doubt the Commission's view that its decision was taken in the interest of the service.

The Ombudsman therefore takes the view that the Commission acted within the limits of its legal authority in this case. The Ombudsman concludes that there appears to be no maladministration as regards these aspects of the case.

Conditions for the complainant's return

1.18 The Ombudsman notes that, although the decision to reassign an official is a matter within the legal authority of the appointing authority, its implementation is subject to a number of conditions set out by the Community Courts. In particular, when deciding on the transfer of an official to another country without the person's agreement, the Community Courts have required that the appointing authority act with the necessary diligence and with particular care, taking account of the personal interests of the official concerned in order to define the conditions of the move(12).

1.19 For the purpose of assessing whether or not the above criteria were followed in this case, the Ombudsman finds it useful to recall some relevant dates as regards the manner in which the process took place. In view of the available information, it appears that the Commission had duly approved the complainant's request for a leave of absence in early March 2004. Part of that leave was cancelled however as a result of the complainant's mission to Brussels on 1 March 2004. As set out in an internal note from the complainant dated 26 February 2004, which the Ombudsman reviewed in the course of the inspection of the file, the Commission had also approved an amendment to his leave of absence so that his holiday was now due to start on 4 March 2004. Following his interview with his Director-General, the complainant was orally instructed to begin his new tasks in Brussels as of 8 March 2004. A written confirmation of that instruction dated 3 March 2004 was faxed to him on 5 March 2004. The note asked the complainant to cancel his leave arrangements and to take up his new duties on 8 March 2004. A formal decision on that matter was adopted by the appointing authority on 23 March 2004, although it was due to have taken effect from 8 March 2004.

Soon after his meeting with the Director-General, the complainant fell ill, and had to take sick leave from 3 March until 8 April 2004. In view of this situation, the Commission informed the complainant, by note of 2 April 2004, that the date to start his new tasks had been postponed until 26 April 2004.

1.20 In view of the available evidence, the Ombudsman points out that, on the basis of the oral instructions given to the complainant on (Monday) 1 March 2004, requesting him to take up his new duties on (Monday) 8 March 2004, the Commission only granted him four working days to carry out all necessary arrangements for a complex and burdensome move from Nepal to Belgium. It should be noted that, at the time, the complainant was in Brussels and would thus have had to return to Nepal immediately in order to prepare his departure. It should further be noted that the complainant had been granted leave and that this leave had not yet been cancelled. The formal decision to reassign the complainant as of 8 March 2004, was only adopted by the appointing authority on 23 March 2004, that is, two weeks after the move ought to have taken place.

In the absence of any evidence which could show that the complainant's move had to be carried out as rapidly as the Commission wished, the Ombudsman finds that the Commission has not been able to justify why it imposed such severe conditions on the complainant's reassignment. Having regard to the above circumstances, the Ombudsman takes the view that the Commission manifestly ignored the interests of the complainant in defining the conditions of his reassignment, failing to act with diligence and care towards him. This constitutes an instance of maladministration. A critical remark will be addressed to the Commission in this regard.

1.21 The Ombudsman takes note of the fact that, on 2 April 2004, the Commission granted the complainant an additional three-week period to take up his new duties. The Ombudsman finds it regrettable however that the Commission was only amenable to reconsidering its initial position after the complainant had already fallen ill.

Alleged injury to the complainant's reputation

1.22 In order to assess whether the reassignment of an official may cast doubt on his reputation, the Ombudsman finds it useful to recall that, in line with Article 7(1) of the Staff Regulations as interpreted by the Community Courts(13), this decision stems from the appointing authority's legal authority to organise its services. Accordingly, even in cases in which the official concerned does not agree with his reassignment, the decision cannot be regarded as a disguised sanction(14).

1.23 In view of the available information, the Ombudsman has found no evidence which may lead him to believe that the Commission did not act within the limits of its legal authority when it decided to reassign the complainant, thereby damaging the complainant's reputation.

The Ombudsman has therefore concluded that there appears to be no maladministration as regards this aspect of the case.

2 Claim to have the decision revoked

2.1 The complainant claims that the decision should be annulled and that he should be reassigned to his previous post.

2.2 The Ombudsman notes that the complainant has sought to sustain his claim on a number of allegations concerning different aspects of the decision to reassign him. Having reviewed these aspects of the case, the Ombudsman has found that only the complainant's allegation concerning the conditions for his return appeared to be grounded. As noted above, however, the Commission took account of the complainant's personal situation and reconsidered its initial position on this matter, thereby extending the date for the complainant's return.

2.3 Taking into consideration the findings reached above on the complainant's allegations, the Ombudsman takes the view that the complainant has not established his claim that the decision should be revoked.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

On the basis of the oral instructions given to the complainant on (Monday) 1 March 2004, requesting him to take up his new duties on (Monday) 8 March 2004, the Commission only granted him four working days to carry out all necessary arrangements for a complex and burdensome move from Nepal to Belgium. It should be noted that, at the time, the complainant was in Brussels and would thus have had to return to Nepal immediately in order to prepare his departure. It should further be noted that the complainant had been granted leave and that this leave had not yet been cancelled. The formal decision to reassign the complainant as of 8 March 2004, was only adopted by the appointing authority on 23 March 2004, that is, two weeks after the move ought to have taken place.

In the absence of any evidence which could show that the complainant's move had to be carried out as rapidly as the Commission wished, the Ombudsman finds that the Commission has not been able to justify why it imposed such severe conditions on the complainant's reassignment. Having regard to the above circumstances, the Ombudsman takes the view that the Commission manifestly ignored the interests of the complainant in defining the conditions of his reassignment, failing to act with diligence and care towards him. This constitutes an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. 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) The Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1) was signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission on 7 December 2000. It sets out the civil, political, economic, and social rights of EU citizens and, to a great extent, EU residents. Though the Charter is, as yet, without legal force, the Ombudsman has consistently taken the view that the Charter is binding upon the three institutions that have proclaimed it.

(2) The European Convention on Human Rights was adopted in 1950 under the auspices of the Council of Europe. The Convention provides a high degree of human rights protection for individuals. Protection of the rights guaranteed under the Convention is assured by the European Court of Human Rights.

(3) The documents of the file included the following:

• E-mail of 15 March 2004 from Mrs G.-M. (DG RELEX) to Mrs G. (DG RELEX);
• E-mail of 26 March 2004 from Mr H. (DG RELEX) to Mr D. (Medical Adviser; DG ADMIN);
• E-mail of 11 July 2004 from Mr P. (DG RELEX) to Mrs S. (DG RELEX);
• Note from Mr D.C. to Mrs G.-M. of 6 June 2006.

(4) The documents of the file included the following:

• Exchange of correspondence from Mrs B. (Cabinet of Commissioner Patten) dated 30 September 2005 and 3 October 2005;
• Note for the file prepared by Mrs G.-M. (DG RELEX) on 1 March 2004;
• Note from Mr F (DG RELEX) to Mr L. (DG RELEX) of 12 February 2004;
• Exchange of e-mails between Mr M. (DG RELEX) and Mr H (DG RELEX), dated 30 September 2005;
• E-mail of 7 October 2005 from Mrs M. (Cabinet of Commissioner Patten) to Mr H. (DG RELEX);
• E-mail of 7 October 2005 from Mrs B. (DG RELEX) to Mr H. (DG RELEX).

(5) See above footnote 1.

(6) See above footnote 2.

(7) "The Appointing Authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his function group which corresponds to his grade."

(8) See Case 19/87 Hecq v Commission [1998] ECR 1681, paragraph 6; Case 167/86 Rousseau v Court of Auditors [1988] ECR 2705, paragraph 12; Case T-13/95 Kyrpitsis v Economic and Social Committee [1999] ECR-SC I-A-167 and II-503, paragraphs 51 and 52; Case T-129/98 Sabbioni v Commission [1999] ECR-SC I-A-223 and II-1139, paragraphs 65 and 66.

(9) Case C-404/92 P X v Commission [1994] ECR I-4737, paragraphs 18-24.

(10) See Case 19/87 Hecq v Commission [1998] ECR 1681, paragraph 6; Case 167/86 Rousseau v Court of Auditors [1988] ECR 2705, paragraph 12; Case T-13/95 Kyrpitsis v Economic and Social Committee [1999] ECR-SC I-A-167 and II-503, paragraphs 51 and 52; Case T-129/98 Sabbioni v Commission [1999] ECR-SC I-A-223 and II-1139, paragraphs 65 and 66.

(11) See Joined Cases C-116/88 and C-149/88 Hecq v Commission [1990] ECR I-599, paragraph 22; Case T-98/96 Costacurta v Commission [19988] ECR-SC I-A-21 and II-49, paragraph 39.

(12) See Joined Cases C-116/88 and C-149/88 Hecq v Commission [1990] ECR I-599, paragraph 23; Case T-98/96 Costacurta v Commission [1998] ECR-SC I-A-21 and II-49, paragraph 78.

(13) See Case 19/87 Hecq v Commission [1998] ECR 1681, paragraph 6; Case 167/86 Rousseau v Court of Auditors [1998] ECR 2705, paragraph12; Case T-13/95 Kyrpitsis v Economic and Social Committee [1999] ECR-SC I-A-167 and II-503, paragraphs 51 and 52; Case T-129/98 Sabbioni v Commission [1999] ECR-SC I-A-223 and II-1139, paragraphs 65 and 66.

(14) See Case T-98/96 Costacurta v Commission [1998] ECR-SC I-A-21 and II-49, paragraph 39.