Strasbourg, 7 April 2008

Dear Mr C.,

On 15 December 2006, you submitted a complaint to the European Ombudsman against the European Parliament concerning its handling of a complaint you lodged with it under Article 90(2) of the Staff Regulations.

On 18 December 2006, my services informed you by e-mail that your complaint had reached the Ombudsman's Secretariat without attachments and invited you to re-send them. On the same day, I received the relevant documents.

On 14 February 2007, I forwarded your complaint to the President of Parliament.

On 21 February 2007, you sent me an e-mail clarifying your complaint, which I forwarded to the President of Parliament on 22 March 2007.

On 23 May 2007, I received Parliament's opinion. I noted that the text of the opinion contained data that needed correction and decided to send the opinion back to Parliament with an invitation to submit a new version.

On 10 July 2007, you requested from my services information about the status of your complaint. My services replied to you on 11 July 2007.

On 3 September 2007, I received the new version of Parliament's opinion, which I forwarded to you with an invitation to submit observations.

On 19 October 2007, you requested further information from my services which replied on 22 October 2007.

On 23 October 2007, I received your observations.

On 5 February 2008, by e-mail, and on 13 February 2008, by telephone, you requested that my services inform you about the status of your complaint.

On 13 February 2008, my services provided you with the requested information.

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

THE COMPLAINT

The complaint may be summarised as follows:

On 13 February 2006, the Bureau of the European Parliament adopted its Secretary-General's "[p]roposals to correct the discriminatory treatment of officials and temporary staff following the entry into force of the new Staff Regulations" ("the Decision"). The Bureau therefore decided to approve the proposals, made by its Secretary-General:

1. "to regrade, on the basis of their salary, those officials who, on 1 May 2004, were receiving a compensatory allowance"; and
2. "to regrade colleagues recruited as temporary agents prior to 1 May 2004 and [who] succeeded in an internal or an open competition published prior to 1 May 2004 and have subsequently been appointed as officials in the same category but in a lower grade than that to which they would have been appointed prior to 1 May 2004".

The Bureau further decided "to apply this approach to any further appointment as officials of colleagues recruited as temporary agents prior to 1 May 2004 following success in an internal or an open competition published prior to that date".

It also requested Parliament's "Secretary-General to look into the possibility that other discriminatory elements of [a] similar nature may have existed in the past for which similar remedies may be justified and admissible under the provisions of the Staff Regulations, and if necessary report back to the Bureau on these, along with full costing for any measures proposed."

On 12 May 2006, the complainant addressed a complaint, filed under Article 90(2) of the Staff Regulations, to Parliament's Secretary-General. The complainant explained that he had been successful in Open Competition PE/99/A and that Parliament had recruited him to grade A*6. In the complainant's view, this recruitment to grade A*6 constituted discrimination because of the "enormous difference between what [was] proposed in the Competition Notice and the final recruitment condition." The complainant therefore referred to the content of the Decision and requested that Secretary-General take his case into due consideration. He further took the view that the Decision only partially corrected the situations of discrimination created by the introduction of the new Staff Regulations.

On 30 May 2006, Parliament's Director for Administrative Staff Management confirmed receipt of the complainant's complaint under Article 90(2) of the Staff Regulations. She also explained that individual replies could be produced outside the deadlines foreseen in the Staff Regulations and that she would keep the complainant informed about the follow-up given to his request.

On 3 July 2006, Parliament's Director-General for Personnel sent the complainant a letter in which he stated that

"[r]equests for an extension of the deadline in the Staff Regulations in cases where the Appointing Authority is unable to reply within that deadline come under a standard procedure in which the complainant is informed that

(a) his/her complaint is being considered by the services responsible and

(b) he/she will receive a reply at the earliest opportunity. In this connection, under Article 91(3) of the Staff Regulations a new period for lodging an appeal with the Court of Justice starts from the date of receipt of an express decision rejecting a complaint.

(...) Parliament has a firm policy of replying to all complaints lodged pursuant to Article 90(2) of the Staff Regulations.

Nonetheless, any complainant who does not wish to wait for a reasoned reply to his/her complaint is, of course, entitled to lodge an appeal with the Court of Justice at the end of the four-month period under the Staff Regulations."

On 4 August 2006, the complainant wrote to the official whom the Secretary‑General had indicated as the person responsible for dealing with his complaint and presented further supporting arguments:

1. Although Open Competition PE/99/A referred to grade A6 as the grade to be granted to successful candidates, the complainant and four of his colleagues were granted grade A*6 (or grade AD6 of the new Staff Regulations), which corresponded to junior positions and was, therefore, not in line with the skills and the eight years of minimum professional experience requested from candidates participating in the said Open Competition.
2. Recruitment in grade A*6 was based on an erroneous interpretation of the table contained in Article 12 of Annex XIII of the new Staff Regulations.
3. Parliament did not respect the Notice of Competition that it had itself organised.
4. Candidates who had been successful in another competition (EPSO/A16/04), although required to provide evidence of only three years of professional experience, were placed in the same grade as the complainant was, and were therefore paid the same salary as the complainant was, which was unfair.
5. After the Decision, only some of the successful candidates in Open Competition PE/99/A were granted the grade announced in the Notice of Competition. While candidates who had been previously employed by Parliament as temporary agents were re-graded in grade A*10, other candidates who had no previous working relations with Parliament, or who had been employed by Parliament as officials or by means of contracts other than those of temporary agents, did not receive that grade. The above treatment of candidates was discriminatory.
6. Not all successful candidates in Open Competition PE/99/A had had their professional experience taken into due account for the purposes of establishing the step within their respective grades to which they were to be assigned. In view of the foregoing, the complainant, and other four of his colleagues, requested Parliament to correct what they considered to be a highly discriminatory situation.

On 14 December 2006, the complainant wrote an e-mail to the Director for Administrative Staff Management and stated that, despite (i) the fact that seven months had passed since his complaint, and (ii) Parliament's policy of replying to all complaints, he had not received any news concerning any possible follow-up to his complaint. The complainant also stressed that:

"[c]onsidering the latest decisions of the Bureau on this field, (...) I will not understand that my reclamation would be included in the general case against the application of the new Staff Regulations, currently in the CoJ [(1)], because my reclamation is specifically based on the decision of the Bureau, taken on February 2006, to upgrade the category of two colleagues from the same competition, and therefore it is meant to demand the same treatment for all candidates in the list."

On 15 December 2006, the complainant lodged his original complaint with the Ombudsman and, on 21 February 2007, clarified his original allegations and claims.

On 29 January 2007, the complainant informed the Ombudsman that he had not received any reply to his complaint of 12 May or to his e-mail of 14 December 2006.

The complainant alleges that Parliament:

1. failed to reply to his complaint of 12 May 2006; and
2. failed to comply with the applicable rules by failing to upgrade him to grade A*10 (or A6).

In support of this allegation, the complainant argues that Parliament upgraded two of his colleagues in the same competition.

The complainant claims that Parliament should:

1. reply to his letter of 12 May 2006;
2. upgrade him to A*10 (or A6) grade.

THE INQUIRY

Parliament's opinion

Parliament's opinion may be summarised as follows.

Chronological background

On 12 February 2004, Parliament published Open Competition PE/99/A for grade A6. After successfully passing the above Competition, the complainant was appointed, on 1 October 2005, as a probationary administrator in grade A*6, step 2.

The Decision applied to colleagues, recruited as temporary agents prior to 1 May 2004, who succeeded in an internal or an open competition published prior to 1 May 2004 and had subsequently been appointed as officials in the same category but in a lower grade than the one to which they would have been appointed prior to 1 May 2004. It also applied to any future appointments as officials of colleagues recruited as temporary agents prior to 1 May 2004 who succeeded in an internal or an open competition published prior to that date.

On 12 May 2006, the complainant wrote to the Secretary-General concerning the grade of his recruitment. Although this letter was presented as a complaint pursuant to Article 90(2) of the Staff Regulations, it was in fact formulated as a request to review the complainant's administrative position, following the new situation created by the Decision. This letter was therefore considered as a complaint made under Article 90(1) of the Staff Regulations.

On 30 May 2006, Parliament informed the complainant that his request had been forwarded to the Director of Directorate-General Personnel, following instructions given by the Bureau to the Secretary-General to look into other possible cases of discrimination arising from the application of the new Staff Regulations.

On 1 July 2006, the complainant was "established" as an official.

On 13 November 2006, on the basis of an interim report presented by the Secretary-General, the Bureau decided to await the rulings in a number of cases brought before the Court of First Instance concerning the interpretation of the new Staff Regulations before taking any decision on the complainant's complaint.

Parliament's position on the complainant's allegations and claims

The colleagues on the list of Open Competition PE/99/A received the following treatment:

1. Mr D., who had, since 1 June 2004, been a member of the temporary staff in grade A*5, was, on 1 June 2005, appointed as official in grade A*6, step 2, in accordance with Article 12(3) of Annex XIII of the Staff Regulations.
2. Mr R., who had, since 1 March 2000, been an official of grade B*6, step 2, was, on 1 October 2005, graded in the new category in grade A*6, step 2, in accordance with Article 12(3) of Annex XIII of the Staff Regulations.
3. Mr W., who had, since 1 November 2002, been a member of the temporary staff in grade A*8, step 3, was appointed, on 1 May 2005, official in grade A*6, step 2, and re-graded, in accordance with the Decision, to grade A*10, step 2 as of that date.
4. Mr N., who had, since 1 March 1994, been a member of the temporary staff in grade AD 10, step 6, was, on 1 September 2006, appointed an official in the same grade AD 10, step 6, in accordance with the Decision.
5. Mr S., who had, since 1 January 1993, been an official in grade B*8, step 1, was, on 15 February 2005, graded in the new category in grade A*8, step 1, in accordance with Article 5(2) of Annex XIII of the Staff Regulations.
6. Mr L., who had, since 1 January 1993, been an official in grade B*8, step 1, was, on 15 July 2005, graded in the new category in the same grade A*8, step 1, in accordance with Article 5(2) of Annex XIII of the Staff Regulations.

It followed from the above that, candidates on the list of Open Competition PE/99/A were graded in accordance with:

1. the general rule provided for in Article 12 of Annex XIII of the Staff Regulations, indicating the correspondence between the grade published in the Competition and the grade of recruitment;
2. if applicable and more favourable, the specific rule provided for in Article 5(2) of Annex XIII of the Staff Regulations (paragraph 4 of the same Article not being applicable to an open competition);
3. if applicable, the specific grading provided in the Decision.

The grading or re-grading, on the basis of the Decision, of two officials from the same reserve list as the complainant who were members of the temporary staff prior to 1 May 2004 could not constitute discrimination, given that the complainant and these officials were not in a comparable situation.

Parliament further noted, in this respect, that similar complaints pursuant to Article 90(2) of the Staff Regulations had been presented by four of his colleagues.

In light of the Bureau's position of 13 November 2006, it had thus not yet been possible to deal with the complainant's request. Under these circumstances, and without any prejudice to any further decision by the Bureau, it was confirmed that the complainant's appointment was made in accordance with Article 12(3) of Annex XIII of the Staff Regulations and that it was not considered to present any irregularities or discrimination.

If the definitive ruling of the Court of Justice were to over-rule the interpretation on which the Decision on the complainant's grading was based, Parliament would rectify the administrative situation of all staff members concerned.

The complainant's observations

The complainant's observations can be summarised as follows.

The complainant first expressed disappointment that Parliament did not explain the reasons for taking the Decision. He emphasised that his complaint concerns the Decision and the fact that only two of his colleagues who, in addition to himself, succeeded in Open Competition PE/99/A, had been re-graded to grade AD 10. The complainant further clarified that he was not attacking the administrative act that, at the time of his establishment as an official, granted him his grade. In relation to this act, the complainant considers that the case lodged with the Court of Justice concerning Parliament's interpretation of the Staff Regulations is sufficient to deal with the issue. The Court's decision on the said case will apply to other cases, such as his, that are of a similar nature. Parliament's Human Resources department had requested his colleagues not to lodge any further additional individual actions. This is why the complainant bases his approaches to Parliament on Article 90(2), and not on Article 90(1), although this aspect is, in his view, not really relevant.

The Decision serves the purpose of correcting discriminatory treatment of officials and temporary staff of the European Parliament. However, at no time did Parliament explain to the complainant what discrimination his two colleagues who were re-graded to grade A*10 had endured. The complainant therefore concludes that the above Decision is arbitrary and subjective, and only benefits some candidates to the detriment of others. It is, in summary, a new instance of discrimination, which is why the complainant, and four of his colleagues, requested Parliament to review their cases.

The Notice of Competition referred to grade AD 10. Parliament explicitly recognised that it should grant all successful candidates the grade of the Notice of Competition (A6, corresponding to the present grade A*10 or AD10). However, this was so only in the case of two of the complainant's colleagues, who, moreover, were not even in the same situation: one was previously in grade A*8 and the other in grade A*10. Other successful candidates were granted grade A*6, in accordance with Parliament's interpretation of the Staff Regulations. The complainant has the same merits and rights as his colleagues and Parliament should, therefore, grant him grade AD10 as well.

The complainant further questioned whether the Decision took into consideration any special merits of his two colleagues. The complainant does not believe that Parliament took into account the fact that these two colleagues had worked in Parliament as temporary agents. Doing so would be, in his view, unfair and had no basis in the Notice of Competition. Competitions for officials should be objective and fair, which is why they are organised by means of tests and are subject to the criteria of equal treatment and evaluation of candidates' merits and skills. For a temporary contract, one can be selected on the basis of personal interviews which are, by their very nature, subjective and may be open to favouritism, personal influence, and bias of any sort, such as cultural or linguistic affinities.

The vast majority of the temporary agents working in Parliament in the field of Computing and Information Technology come from border countries, especially French-speaking countries. This is also the case of the complainant's two colleagues who were re-graded to grade AD 10. This could be explained by the fact that it is certainly easier, from personal and professional points of view, to accept a temporary contract with Parliament when one lives near EU institutions and is a native speaker of the language most commonly used in Parliament's computing department, namely, French. The case is certainly very different when one lives 2000 kilometres away from the EU institutions and has to change radically one's life in order to take up a temporary contract of limited duration. The statistics confirm this phenomenon and may give the Ombudsman, ex officio, a reason to intervene, with a view to promoting more equal representation and real equality of opportunities for all EU nationals. The statistics are more revealing in the case of external companies contracted by Parliament to work in its premises in the field of computing: the percentage of French-speaking personnel is extremely high.

The complainant further asks why the Decision refers only to previous experience of individuals as temporary agents in Parliament and not rather to the entirety of their professional experience, including, for instance, the experience they acquired as officials of national public authorities. Parliament argues that the complainant is not in the same situation as the two colleagues who were re-graded. The complainant agrees with the above on condition that one considers his professional situation prior to his establishment as an official. He emphasises however that he has been in the same situation as his colleagues since the time he became a successful candidate in Open Competition PE/99/A. The Bureau could have opted for re-grading to grade A*10 all candidates who have more than 20 years of experience "in olive producing countries", which would have had the effect of being applicable to the complainant only. This absurd example would be as arbitrary as the decision to re-grade only two of the complainant's colleagues and not all colleagues in the same situation.

The complainant then went on to state that Parliament should be an example of equal treatment, fairness, and equal opportunities and not of arbitrary decisions. It is evident that the above Decision was arbitrary, unfair and discriminatory. The complainant finally questions how it is possible that candidates who were placed in better positions in the reserve list were graded lower than other candidates of that same list.

The complainant concludes that the new discriminatory situation created by the Decision surpasses by far the alleged (and unknown to the complainant) situation of discrimination it intended to solve. The grade announced in the Notice of Competition was awarded only to two candidates and in a totally arbitrary manner. The complainant, as well as four other candidates, had to accept a grade (AD 6) lower than the advertised one (AD 10), and thus a lower salary and lesser professional opportunities, and all this despite the fact that all of them were candidates who had succeeded in the same selection procedure and had duly justified their merits.

THE DECISION

1 Preliminary remark

1.1 The European Ombudsman understands from the complainant's observations that he suggested that the Ombudsman could carry out an own-initiative inquiry into the general issue of the representation of EU nationals in the staff of the EU institutions. The Ombudsman notes, in this regard, that the complainant makes general references to data which allegedly demonstrates that recruitment in the European Parliament is not made on the basis of the broadest possible geographical basis.

1.2 The Ombudsman does not consider that he disposes of enough information to form the view that the situation put before him could constitute an instance of systemic maladministration. The Ombudsman takes therefore the view that, at the present, an own-initiative inquiry into the new issues raised by the complainant does not appear to be useful.

2 The alleged failure by Parliament to reply to the complainant's Article 90 complaint and related claim

2.1 On 1 May 2004, Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities entered into force (the "new Staff Regulations")(2). On 13 February 2006, Parliament's Bureau decided "to correct the discriminatory treatment of officials and temporary staff following the entry into force of the new Staff Regulations" (the "Decision"). On 12 May 2006, the complainant, who had successfully passed Open Competition PE/99/A and was subsequently employed by Parliament, complained to Parliament, under the procedure of Article 90 of the Staff Regulations, about the grade of his recruitment (AD 6) and asked Parliament to take his case into consideration when applying the above Decision(3).

The complainant alleges that Parliament failed to reply to his complaint of 12 May 2006. He claims that Parliament should reply to that letter.

2.2 In its opinion, Parliament stated, in summary, that it had (i) appointed the complainant in accordance with Article 12(3) of Annex XIII of the new Staff Regulations; and (ii) decided to wait for a ruling of the Court of First Instance on a number of cases concerning the interpretation of the new Staff Regulations before taking any decision on the complainant's complaint(4).

2.3 As the outset, the Ombudsman notes that, in summary, and irrespective of any consideration with respect to Article 90 of the Staff Regulations that should be considered as applicable to the complainant's letter of 12 May 2006, Parliament did not send the complainant an explicit reply within the four-month deadline.

2.4 The Ombudsman recalls therefore that it is good administrative practice for the Appointing Authority to reply to complaints made to it under Article 90 of the Staff Regulations(5). In this regard, the Ombudsman notes with satisfaction that, according to its letter of 3 July 2006, "Parliament has a firm policy of replying to all complaints lodged pursuant to Article 90(2) of the Staff Regulations."

2.5 Parliament further explained during the present inquiry that, whilst the complainant based his complaint of 12 May 2006 on Article 90(2) of the Staff Regulations, Parliament considered this letter as having been filed under Article 90(1). For this reason, it decided, on 13 November 2006, to await the Court of First Instance's decision on a number of cases regarding the interpretation of the new Staff Regulations before taking any stance on the complainant's matter.

2.6 Relatedly, according to Parliament's opinion, the complainant's appointment had been made in accordance with Article 12(3) of Annex XIII of the Staff Regulations(6). Should the competent Court overrule Parliament's interpretation of the relevant provisions of the Staff Regulations, the latter will rectify the administrative situation of all the staff concerned. The Ombudsman therefore understands that should the Court of Justice overrule Parliament's interpretation of Article 12(3) of Annex XIII of the Staff Regulations, Parliament will also rectify the complainant's administrative situation.

2.7 In his observations, the complainant stated, in essence, that he was aware that the Court's decision would be applicable to his case. It may therefore be concluded that, in summary, the complainant does not object to Parliament's awaiting the Court's decision before taking any decision on his complaint. The Ombudsman takes the view therefore that Parliament's explanation as to why it has not yet replied to the complainant's complaint appears to be reasonable and considers that no further inquiries into this aspect of the complaint are justified.

3 Alleged failure by Parliament to comply with its own rules and related claim

3.1 The complainant alleges that Parliament failed to comply with the applicable rules by failing to upgrade him to grade AD 10. In support of this allegation, the complainant argues that Parliament upgraded two of his colleagues in the same competition. The complainant claims that Parliament should upgrade him to grade AD 10.

3.2 In its opinion, Parliament stated, in summary, that the complainant and the two colleagues referred to by him were not in a comparable situation.

3.3 In the Ombudsman's understanding, the complainant's allegation amounts to an allegation of discrimination caused by the Decision. According to the complainant, the Decision graded only two of the complainant's colleagues in grade AD 10 of Open Competition PE/99/A. The complainant however, also successfully passed that Open Competition and should, therefore, have been graded in grade AD 10 and not, as finally happened, in grade AD 6. The complainant and Parliament have thus conflicting positions with respect to the latter's treatment through its Decision of laureates of Open Competition PE/99/A.

3.4 The Ombudsman, first, recalls that, according to settled case-law, the principle of equal treatment is breached when two categories of persons whose legal and factual circumstances disclose no essential difference are treated differently(7).

3.5 The Ombudsman recalls Parliament's statements that the two colleagues referred to by the complainant were, prior to 1 May 2004, members of its temporary staff. The Ombudsman therefore understands Parliament's references to correspond to Mr W. and Mr N. who, according to Parliament, were members of its temporary staff since, respectively, 1 November 2002 and 1 March 1994. By applying the Decision, Parliament (i) re-graded Mr W. from grade AD 8, step 3 to grade AD 10, step 2; and (ii) kept Mr N. in grade AD10, step 6.

3.6 On 1 October 2005, Parliament appointed the complainant as a probationary administrator in grade AD 6, step 2, in accordance with Article 12(3) of Annex XIII of the Staff Regulations. In this regard, the Ombudsman notes that Mr W. and Mr N. were appointed officials on, respectively, 1 May 2005 and 1 September 2006. The appointment of the complainant, as well as of his two colleagues who had been re-graded, took place therefore at a time when the new Staff Regulations were already in force (since 1 May 2004).

3.7 The Ombudsman thus notes that, by applying the new Staff Regulations, and notably of Article 12(3) of its Annex XIII, it would appear that, in addition to the complainant, Mr W. should also have been recruited at grade AD 6. However, according to Parliament, at the time of his appointment as an official, and since 1 November 2002, Mr W. had been a temporary agent who had reached grade AD 8, step 3. The Ombudsman therefore notes that, by means of the above provision of the new Staff Regulations, Mr W. who, unlike the complainant, was already working in Parliament as a temporary agent, would, apparently, have received from Parliament a grade lower than the one he already had. The Ombudsman therefore understands that the Decision was intended to correct a situation that could be reasonably perceived as unfair.

3.8 The Ombudsman further notes that Mr N's date of recruitment was 1 September 2006. According to Parliament, Mr N. had been a temporary agent since 1 March 1994, and had, at the time of his appointment as an official, reached grade AD 10, step 6. The Ombudsman therefore notes that, by means of the new Staff Regulations, Mr N. who, unlike the complainant, was already working in Parliament as a temporary agent, would, apparently, have received from Parliament a grade lower than the one he already had(8). The Ombudsman therefore understands that the Decision was also intended to correct this unfair situation.

3.9 According to Parliament and the complainant, Open Competition PE/99/A was published for grade A6 (which corresponds to grade AD 10 in the new Staff Regulations). In this regard however, the Ombudsman notes that after the Open Competition was published (on 12 February 2004), the new Staff Regulations (which entered into force on 1 May 2004) changed the recruitment grade of that Open Competition from AD 10 to AD 6. It is therefore the Ombudsman's understanding that, given that some of the successful candidates were already employed by Parliament as temporary agents in the A category and had grades higher than the new grade AD 6, Parliament decided to re-grade them to the original AD 10 grade of the Notice of Competition and thus to minimise the negative effect of the entry into force of the Staff Regulations on those candidates.

3.10 The Decision was intended "to correct the discriminatory treatment of officials and temporary staff following the entry into force of the new Staff Regulations". In this respect, the Ombudsman notes that (i) as regards "officials", the Decision provided for a "re-grad[ing] on the basis of their salary those officials who on 1 May 2004 were receiving a compensatory allowance"; and (ii) as regards "temporary staff", the Decision provided for a "re-grad[ing of] colleagues recruited as temporary agents prior to 1 May 2004 and succeeded in an internal or an open competition published prior to 1 May 2004 and have subsequently been appointed as officials in the same category but in a lower grade than that to which they would have been appointed prior to 1 May 2004". Parliament also intended "to apply this approach to any further appointments as officials of colleagues recruited as temporary agents prior to 1 May 2004 following success in an internal or an open competition published prior to that date". Finally, the Decision further provided for Parliament's "Secretary-General to look into the possibility that other discriminatory elements of similar nature may have existed in the past for which similar remedies may be justified and admissible under the provisions of the Staff Regulations (...)."

3.11 The Decision was therefore designed to remedy situations that could be reasonably perceived as unfair(9) for certain categories of Parliament's staff due to the entering into force of the new Staff Regulations. The complainant however was not a Parliament official receiving, on 1 May 2004, a compensatory allowance, nor was he recruited by Parliament, prior to that date, as a temporary agent. Parliament's position that, in summary, the complainant's and his two colleagues' situations cannot be compared appears therefore to be reasonable. Furthermore, the Ombudsman considers that the complainant did not advance, during the present inquiry, any arguments showing that, for the purposes of application of the Decision, he was in a situation similar to that of his two colleagues. The Ombudsman thus finds no maladministration by Parliament as regards the allegation that Parliament failed to comply with the applicable rules by failing to upgrade the complainant to grade AD 10. Consequently, the complainant's claim that Parliament should upgrade him to grade AD 10, as far as the Decision is concerned, cannot be sustained.

4 Conclusion

4.1 For the reasons given in point 2.7, the Ombudsman considers that no further inquiries are justified into the complainant's allegation that Parliament failed to reply to his complaint of 12 May 2006 and the related claim.

For the reasons given in point 3.11, the Ombudsman finds no maladministration by Parliament as regards the complainant's allegation that Parliament failed to comply with the applicable rules by failing to upgrade him to grade AD 10. Consequently, the complainant's claim that Parliament should upgrade him to grade AD 10, as far as the Decision is concerned, cannot be sustained.

The Ombudsman therefore closes the case.

The President of Parliament will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman understands the Court of Justice.

(2) OJ 2004 L 124.

(3) The new Staff Regulations provided, inter alia, for a different system of grades and corresponding salaries. For the transitional period between 1 May 2004 and 30 April 2006, the new Staff Regulations provided for "A*" grades. For simplification purposes, the Ombudsman shall use in the present decision the corresponding grading system provided for in the new Staff Regulations as from 1 May 2006 ("AD" grades).

(4) The Ombudsman understands Parliament's references to correspond to cases T-47/05 Pilar Ange Serrano and Others v Parliament and T-58/05 Centeno Mediavilla and Others v Commission. The Ombudsman notes that the Court of First Instance decided on this latter case on 11 July 2007 and that an appeal was brought before the Court of Justice by appellants Centeno Mediavilla and Others on 28 September 2007 (Case C-443/07 P).

(5) See, in this regard, point 1.7 of Ombudsman's Decision on complaint 2227/2004/MF (available at http://www.ombudsman.europa.eu) whereby it is stated that "(...) in his decisions on complaints 1479/99/(OV)MM and 729/2000/OV, the Ombudsman took the view that it was good administrative practice for the Appointing Authority to give an explicit reply to the complaints made by Community staff under Article 90 of the Staff Regulations. He further noted that when the Appointing Authority fails to do so, the person concerned is protected from further delay by the rule that the lack of reply constitutes a negative decision. In the Ombudsman's view, this rule aims to provide a legal remedy for an official where the Appointing Authority does not give an explicit reply, but does not authorise the Appointing Authority to depart from its obligation to comply with principles of good administration. (...)".

(6) Article 12(3) of Annex XIII of the Staff Regulations provides that "[o]fficials who have been included in a list of suitable candidates before 1 May 2006 and are recruited between 1 May 2004 and 30 April 2006 shall:

- if the list was drawn up for category A*, B* or C*, be graded in the grade published in the competition;

- if the list was drawn up for category A, LA, B or C, be graded in accordance with the following table:

Grade of competition A/LA8 [corresponds to] Grade of recruitment A*5;
Grade of competition A/LA7 and A/LA6 [corresponds to] Grade of recruitment A*6;
Grade of competition A/LA5 and A/LA4 [corresponds to] Grade of recruitment A*9 (...)".

(7) Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 56.

(8) Although he notes that, in its opinion, Parliament did not make any references to Article 13 of Annex XIII of the new Staff Regulations, the Ombudsman points out that according to this Article:

"Officials who have been included in a list of suitable candidates before 1 May 2006 and are recruited after that date shall be graded in accordance with the following table:

Grade of competition A/LA8 [or] A*5 [corresponds to] Grade of recruitment AD5;
Grade of competition A/LA7 and A/LA6 [or] A*6 [corresponds to] Grade of recruitment AD6 (...)".

(9) Or "anomalous and discriminatory" (see in this regard the Ombudsman's Decision in case 707/2005/MF, available at http://www.ombudsman.europa.eu).