Strasbourg, 21 April 2008

Dear Mr X,

On 14 April 2006, you submitted a complaint to the European Ombudsman against the European Centre for the Development of Vocational Training ("CEDEFOP"). In your complaint you alleged, inter alia, that CEDEFOP had failed to address your request for the suspension of the decision of its Director to reassign you to another post.

On 31 May 2006, I decided to open an inquiry into your above allegation and forwarded your complaint to the Director of CEDEFOP, with an invitation to submit an opinion. CEDEFOP sent its opinion on 25 September 2006. I forwarded it to you with an invitation to make observations. You submitted your observations on 28 November 2006.

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

THE COMPLAINT

The complainant was an agent of CEDEFOP. His contract was terminated by a decision of the new Director of the European Centre for the Development of Vocational Training ("CEDEFOP"), dated 30 November 2005. The notice period was established at three months, starting from 12 December 2005.

By a decision dated 9 December 2005, the complainant was assigned to a different post for the duration of the notice period, and namely to a post of advisor to the same Department of CEDEFOP.

On 28 February 2006, the complainant lodged an appeal with the Appeals Committee of CEDEFOP demanding the annulment of the two aforementioned decisions. On that occasion, he also requested that the execution of these decisions be suspended, on the basis of Article 8 of the amended Rules of Procedure of the Appeals Committee. He argued that the unjustified and unexpected termination of his contract placed his family and himself in a difficult situation, and affected adversely his professional integrity and his chances of finding a new job.

After a relevant opinion was submitted by the Appeals Committee, the Director of CEDEFOP, by a decision dated 10 March 2006, rejected the complainant's request for the suspension of the decision concerning the termination of his contract.

In his complaint to the Ombudsman, the complainant complained, inter alia, of the failure of the Appeals Committee and of the Director of CEDEFOP to address his request for the suspension of the Director's decision of 9 December 2005 to reassign him to a different post.

On 31 May 2006, the Ombudsman opened an inquiry into the complainant's above allegation.

THE INQUIRY

CEDEFOP's opinion

In its opinion, dated 25 September 2006, CEDEFOP pointed out that the appeal submitted by the complainant on 28 February 2006 concerned both the decision to terminate his contract and the decision to assign him to a different post within CEDEFOP. It also stated that, notwithstanding the above, point 3 of the requests in his appeal, in which the request for suspension was formulated, could be seen to refer mainly to the suspension of the decision to terminate his temporary contract, especially in view of the arguments submitted by the complainant. Though in his conclusion the complainant requested, by simple use of the plural, the suspension of the measures complained of, he set out no specific arguments against his reassignment in a function other than his original job. In any case, his reassignment as adviser had already taken place, and had already been in place for three months when the request for suspension was submitted to the Appeals Committee.

It further observed that, in the appeal that the complainant submitted to the Civil Service Tribunal in June 2006 requesting the annulment of a whole series of administrative decisions by CEDEFOP concerning him, he concluded by requesting that the decision of 10 March 2006 by the Director of CEDEFOP rejecting his request for the suspension of the decision referred to in point 1 of his appeal, and which was identified as the decision terminating his temporary contract, be annulled.

CEDEFOP additionally noted that the decision for reassignment was subsequent and subordinate to the decision terminating the complainant's temporary contract, the reassignment being but a direct consequence of the administrative position taken by the complainant during the period leading up to his departure from CEDEFOP.

It noted, furthermore, that the Appeals Committee, in accordance with the provision of Article 8 of the Internal Regulations, had notified the Director of CEDEFOP of its opinion, the Director being called upon to act, as in this case, as the Appointing Authority and as the Authority empowered to conclude contracts of employment. In light of this opinion, the Director, having adopted the position of the Appeals Committee, informed the complainant of her negative decision.

CEDEFOP remarked that the refusal of the request for suspension was based (in light of principles governing the case-law in the matter of interim measures) on the absence, in this particular case, of elements likely to cause irreversible damage to the complainant, such as serious and immediate harm that even the annulment of the decisions contested could no longer rectify.

CEDEFOP argued, furthermore, that the rejection of the request submitted by the complainant for the suspension of the decision on termination of his contract clearly also referred to the related decision of reassignment.

CEDEFOP concluded by saying that there was no instance of maladministration corresponding to the complainant's allegation.

The complainant's observations

In his observations, the complainant rejected the arguments submitted by CEDEFOP in its opinion. He noted, in particular, that his request for suspension contained in his appeal of 28 February 2006 could not be seen to concern exclusively the termination of his contract, taking into account points 8, 9, 13, 14 and 15 of this appeal. Moreover, the opinion of the Appeals Committee and the relevant decision of the Director (dated 10 March 2006) examined exclusively the request for the suspension of the decision terminating his contract, and there was no direct or indirect reference to his request for the suspension of the decision concerning his reassignment. The argumentation proposed by the Appeals Committee further confirmed his allegation that the Committee failed to consider his request for the suspension of his reassignment. The complainant pointed out that, under Article 90 of the Staff Regulations, CEDEFOP was obliged to notify him of its reasoned decision on his request for the suspension of the decision on his reassignment. This obligation to reply was independent of the admissibility or the well-foundedness of his request. Finally, the complainant stressed that he had challenged two separate administrative acts/decisions and that he had made two separate requests for the suspension of these acts. Hence, CEDEFOP had to address both of these requests.

THE DECISION

1 Allegation that the Appeals Committee and the Director of CEDEFOP wrongly failed to reply to the complainant's request for the suspension of the Director's decision (of 9 December 2005) to reassign him to another post

1.1 The complainant was an agent of the European Centre for the Development of Vocational Training ("CEDEFOP"). On 30 November 2005, the Director of CEDEFOP decided to terminate the complainant's contract. By a decision dated 9 December 2005, the complainant was officially assigned to a different post for the remainder of the notice period, and namely to a post of advisor to the same Department of CEDEFOP. On 28 February 2006, the complainant lodged, pursuant to Article 90(2) of the Staff Regulations, an appeal against the two aforementioned decisions, demanding their annulment. By this appeal, he also requested, for the reasons presented therein, that the application of the contested decisions be suspended, on the basis of Article 8 of the amended Rules of Procedure of the Appeals Committee.

This Article provides the following: "The lodging of an appeal has no suspensory effect. However, when the person lodging the appeal runs the risk of serious and irreparable damage due to the contested act, the Appeals Committee may propose to the Director that he or she should suspend the act until the Appeals Committee has adopted its decision. In such cases, the decision on suspension is at the sole discretion of the Director. (...)".

1.2 The Ombudsman takes note of the provisions of Article 90(2) of the Staff Regulations, in conjunction with those of Article 8 of the amended Rules of Procedure of the Appeals Committee of CEDEFOP. In light of those provisions, the Ombudsman considers that the Director of CEDEFOP was obliged to make a reasoned decision on the complainant's request for the suspension of her decision to reassign him to another post. In this regard, the Ombudsman recalls that the rule that the lack of reply constitutes a negative decision is meant to establish a possibility of a legal remedy for the official/agent concerned, but it does not give the Appointing Authority the right to neglect its obligation to provide a reasoned reply in a timely manner(1).

1.3 In the case at hand, the Appeals Committee of CEDEFOP prepared a note (dated 10 March 2006), for CEDEFOP's Director, only in relation to the complainant's request to suspend the application of the decision terminating his contract. The Director's decision of 10 March 2006 also dealt exclusively with the same request for suspension. Thus, the Director did not apparently make an explicit, reasoned decision on the complainant's request for the suspension of her decision to reassign him to another post.

1.4 In its opinion on the complaint, CEDEFOP put forward the following arguments to explain the Director's omission to take such a decision: (a) point 3 of the requests formulated in the complainant's appeal could be seen to refer mainly to the suspension of the decision to terminate his temporary contract, especially in view of the supporting arguments submitted by the complainant, which did not concern his reassignment; (b) the complainant's reassignment as adviser had already taken place, and had already been in place for three months when the request for suspension was submitted to the Appeals Committee; (c) the decision for reassignment was subsequent and subordinate to the decision terminating the complainant's temporary contract; (d) the rejection of the request submitted by the complainant for the suspension of the decision on the termination of his contract clearly also referred to the related decision with respect to his reassignment(2).

The Ombudsman does not accept these arguments. As regards argument (a), it suffices to note that the complainant formulated expressly and clearly in his appeal a request for the suspension of the decision on his reassignment and did not make the examination of this request contingent upon the acceptance of his request for the suspension of the decision terminating his contract. Moreover, it may also be noted that, independently of whether the complainant made in his appeal specific points in support of his former request, CEDEFOP's argument that the complainant presented no such points pertains to the merits of the request and does not justify its failure to take a reasoned decision on this request. This remark is also applicable to argument (b). Besides, with regard to arguments (c) and (d), it is not clear and it has not been explained why the non-suspension of the decision terminating the complainant's contract would necessarily entail and justify the non-suspension of the reassignment decision. Indeed, as the complainant has rightly observed, these two decisions are distinct and CEDEFOP has not put forward any specific, duly substantiated arguments showing that one was an automatic result of the other or, more generally, that one was not severable from the other. Finally, it is noted that, while the former decision might be somehow related to the latter, the Director's reasoned decision on the complainant's request for the non-suspension of the decision terminating his contract cannot also be deemed to constitute a reasoned decision on the request for the suspension of the decision concerning the complainant's reassignment.

1.5 In light of the above, the Ombudsman finds that CEDEFOP wrongly failed to address explicitly and make a reasoned decision on the complainant's request for the suspension of the decision concerning his reassignment. This was an instance of maladministration. Taking into account that the complainant's service at CEDEFOP has ended, the Ombudsman will close the case with a critical remark.

2 Conclusion

On the basis of his inquiries into this complaint, the Ombudsman makes the following critical remark:

Taking into account the provisions of Article 90(2) of the Staff Regulations, in conjunction with those of Article 8 of the amended Rules of Procedure of the Appeals Committee of CEDEFOP, the Director of CEDEFOP was obliged to make a reasoned decision on the complainant's request for the suspension of her decision to reassign him to another post. However, CEDEFOP failed to address explicitly and make a reasoned decision on this request. This was an instance of maladministration.

The Director of CEDEFOP will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Cf., for example,Ombudsman's decision on complaint 75/2004/BB, point 7.8.

(2) In its opinion, CEDEFOP also stated that the complainant had filed, before the Civil Service Tribunal, an action for annulment of the decision of 10 March 2006 by the Director of CEDEFOP rejecting the complainant's request for the suspension of the termination of his temporary contract. In this regard, it must be noted that this action does not concern the subject matter of the present complaint, which refers to the failure of the Director of CEDEFOP to reply to the complainant's request for the suspension of her decision to reassign him to another post.