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Decision of the European Ombudsman on complaint 1917/2005/IP against the European Parliament
Decision
Case 1917/2005/IP - Opened on Thursday | 30 June 2005 - Decision on Monday | 14 May 2007
Strasbourg, 14 May 2007
Dear Mr X,
On 23 May 2005, I received your complaint against the European Parliament concerning its handling of the complaint you had lodged with the institution on 29 October 2001.
On 30 June 2005, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 27 September 2005 and I forwarded it to you with an invitation to make observations, if you so wished, by 30 November 2005. I received no written observations from you. However, you submitted oral observations during a telephone conversation which took place between you and my legal services in mid-November 2005.
In view of Parliament's opinion and your observations, I considered that it was necessary to conduct further inquiries. On 10 July 2006, I therefore wrote to the institution asking for further information to be submitted by the end of September 2006. On 25 September 2006, Parliament informed me that, due to its heavy workload, it would not be possible for its services to finalise its reply within the deadline of 30 September 2006. Parliament therefore asked for a one month extension of the deadline. By letter of 23 October 2006 to Parliament, I informed the institution that I accepted its request and that the new deadline was therefore 31 October 2006. On the same date, I informed you accordingly.
On 31 October 2006, I received the translation into Italian of Parliament's reply which I forwarded to you on 6 November 2006 with an invitation to make observations, if you so wished, by 31 December 2006. Since it appeared that the documents that Parliament had enclosed with its reply had inadvertently not been sent to you, my secretariat sent them to you on 27 November 2005. On 1 December 2006, I received your observations on Parliament's reply.
On 21 March 2007, my legal services contacted Parliament since it appeared to be necessary to clarify certain aspects of the case. On the same date, you were informed accordingly. On 30 March 2007, I received Parliament's reply to my request of 21 March 2007.
I am writing now to let you know the results of the inquiries that have been made.
THE COMPLAINT
Background informationOn 22 November 2004, the complainant submitted a complaint to the European Ombudsman. It was against the European Parliament (3483/2004/IP) and concerned various alleged irregularities during selection procedure PE/81/S for temporary members of staff(1). The complainant, who participated in the selection procedure, was excluded after the first stage of the selection procedure.
By letter of 14 December 2004, the Ombudsman informed the complainant that he had to reject his case on the basis of Article 2(8) of the Statute of the European Ombudsman which provides that:
"No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless 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, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired."
X had, in fact, submitted his complaint to the Ombudsman (3483/2004/IP) before the expiry of the four-month deadline given to Parliament to decide on a complaint X had submitted to it under Article 90(2) of the Staff Regulations, which concerned the same subject-matter as contained in his complaint to the Ombudsman. In his letter to X, the Ombudsman further explained to the complainant that, if X did not receive an explicit reply by Parliament, or if X did not consider Parliament's reply satisfactory, X would be free to submit a new complaint to the Ombudsman.
Complaint 1917/2005/IPIn his complaint 1917/2005/IP, the complainant stated that he had finally received Parliament's reply to his complaint made under Article 90(2) of the Staff Regulations but pointed out that it was 60 days late.
The complainant considered this reply to be unsatisfactory as regards the explanations given by the institution concerning the allegations made in his Article 90(2) complaint. Nevertheless, the complainant stressed that his new complaint only concerned specifically the alleged failure by Parliament to address one of the points he had raised in his Article 90(2) complaint, that is, that Parliament did not give adequate publicity to Recruitment Notice PE/81/S. The Notice was in fact published only in the French, German and English versions of the Official Journal. The complainant considered that a communication should have been published in all the linguistic versions of the Official Journal, as had been the case for competitions or selection procedures before and after the competition in question.
Further, the complainant took the view that several potential candidates did not have the possibility of becoming aware of Recruitment Notice PE/81/S and that their right to information had thus not been respected. X also emphasised that, in its reply of 11 May 2005 to his Article 90(2) complaint, the sole reference that Parliament made to his point as regards the publicity for Recruitment Notice PE/81/S was that X had been aware of the relevant selection procedure and had applied for the competition in question. According to Parliament, the complainant had therefore had no "legal interest" in questioning the way in which the selection procedure was published(2). The complainant took the view that this statement was inappropriate and offensive.
In his complaint to the Ombudsman, the complainant alleged that (i) Parliament failed to give adequate publicity to Recruitment Notice PE/81/S and that (ii) Parliament's statement that he had no legal interest to raise the relevant issue of publicity because he had been aware of the recruitment procedure in question and had applied for it was inappropriate and offensive.
THE INQUIRY
Parliament's opinionIn its opinion on the complaint, Parliament basically repeated what it had already stated in its reply to the complainant's Article 90(2) complaint concerning the complainant's exclusion from the competition(3).
Parliament further explained that (i) the relevant notice had been published on the Parliament's intranet; (ii) a reference to Recruitment Notice PE/81/S had been made in the summary of vacancies; and (iii) an information notice had been posted on Parliament's premises. According to Parliament, all interested persons had the opportunity to become aware of the relevant selection procedure. Furthermore, Parliament emphasised that, as already stated in its reply to the complainant's Article 90(2) complaint, the fact that X had been aware of the procedure meant that X had no legal interest in questioning the way in which it was published.
The complainant's observationsThe Ombudsman forwarded Parliament's opinion to the complainant with an invitation to submit observations if he wished so. No written observations were received by the complainant. However, during a telephone conversation in mid-December 2005 with the Ombudsman's legal services, the complainant expressed his general disappointment with Parliament's opinion.
Further inquiriesAfter careful consideration of Parliament's opinion and the complainant's observations, the Ombudsman took the view that Parliament had failed properly to address the allegation made by the complainant in his complaint. The Ombudsman therefore concluded that further inquiries were necessary and on 10 July 2006 he wrote to Parliament.
Request for further informationIn his letter, the Ombudsman asked Parliament specifically to address the complainant's point that Parliament failed to refer to Recruitment Notice PE/81/S in all the linguistic versions of the Official Journal, as was the case for selection procedures published before and after the relevant one. Parliament was asked to explain for which reasons, if any, it followed a different approach in the case of Recruitment Notice PE/81/S.
The Ombudsman also considered that selection procedure PE/81/S was open to both internal and external candidates. In this respect, the Ombudsman asked Parliament to explain how the fact that (i) the relevant Notice had been published on the intranet; (ii) a reference to this selection procedure had been made in the summary of vacancies; and (iii) an information notice had been posted on Parliament's premises could be sufficient to guarantee that all potential candidates were informed of the relevant selection procedure.
Parliament's replyIn its reply concerning the first question put by the Ombudsman in his letter of 10 July 2006, Parliament pointed out that although it was true that the Recruitment Notice was published in full only in the English, French and German versions of the Official Journal, the other linguistic versions of the Official Journal contained a reference to the selection procedure in question. In light of this, Parliament therefore rejected the complainant's allegation that only the English, French and German versions of the Official Journal contained information on the relevant selection procedure.
Concerning the Ombudsman's second question, Parliament stressed that the selection procedure was drawn to the attention not only of Parliament staff, but also to the staff of the other Community institutions in accordance with the principle set out in Article 1(3) of Annex III to the Staff Regulations.
In view of the above, Parliament considered that the decision to organise selection procedure PE/81/S was communicated to potential candidates through the appropriate channels.
The complainant's observationsIn his observations on Parliament's reply, the complainant basically maintained his complaint. X emphasised that, contrary to what Parliament stated in its reply to the Ombudsman's request for further information, Parliament had not provided evidence of its statement that the linguistic versions of the Official Journal other than the English, French and German versions, in which Recruitment Notice PE/81/S was published in full, contained a reference to the selection procedure in question. The enclosures attached to Parliament's reply, which, in the institution's view, should have proved the accuracy of its statement, were useless for this purpose. None of the relevant enclosures constituted in fact an extract of the linguistic versions of the Official Journal to which Parliament had made reference.
The complainant also noted that among the documents enclosed by Parliament along with its reply there was the copy of a message sent on 19 April 2004 by Parliament Service Concours to the Official Publication Office of the European Communities ("OPOCE"). In this message, Parliament asked OPOCE to confirm the date of 12 May 2004, or another date close to this date, for the publication of Recruitment Notice PE/81/S in the Official Journal. Parliament further informed OPOCE that the length of the relevant text was 11 pages and that the Notice had to be published only in English, French and German. In the complainant's view, the absence of any reference to the fact that an information notice concerning the selection procedure in question had to be made in the other linguistic versions of the Official Journal supported his position that such a publication was, indeed, not made.
The complainant further stated that he considered Parliament's approach to be perfunctory since, after more than two years and two rounds of inquiries carried out by the Ombudsman, Parliament still failed to deal seriously with his complaint. For this reason, X considered that no concrete results could be obtained in the present case. X wished however that the Ombudsman find maladministration by the Parliament so that justice could be done at least from a formal point of view.
The Ombudsman's further actionsHaving carefully analysed Parliament's last reply and the complainant's observations, the Ombudsman noted that there was a discrepancy between Parliament's statements that all the linguistic versions of the Official Journal contained a reference to the selection procedure in question and the complainant's assertion that they did not. The Ombudsman's services therefore checked the different electronic linguistic versions of Official Journal C 134 of 12 May 2004. It emerged that, in fact, only the English, French and German linguistic versions contained, on their last page, the reference to the selection procedure in question, with a cross-reference to Official Journal C 134A where the Recruitment Notice was published in full. However, the other linguistic versions of the Official Journal did not refer to this selection procedure or the Recruitment Notice.
On 21 March 2007, with the aim of clarifying this apparent discrepancy between Parliament's reply and the information available on the electronic versions of the Official Journal, the Ombudsman's services contacted by telephone Mr N., Head of the Legal Affairs Unit of Parliament Directorate-General for Personnel. Mr N. explained that it is possible that sometimes the information notices are published only in the hard version of the Official Journal, and not in the electronic version. However, since he declared that he was not in a position to give a precise reply concerning what had happened in the case in question, he informed the Ombudsman's services that he would inquire into the matter and would inform the Ombudsman of its outcome.
On the same date, the Ombudsman's services contacted the complainant by telephone and informed him of the last action taken with Parliament concerning the present complaint. X thanked the Ombudsman and its services for the work carried out and for having accorded his case such serious consideration. X stated, however, that in his opinion, the information obtained so far by the Ombudsman showed a clear case of maladministration by Parliament. X further added that he was not interested in a possible friendly solution with Parliament in case the Ombudsman would consider this option on the basis of Article 3(5) of his Statute according to which "[a]s far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint." The complainant finally expressed his wish that the Ombudsman will publish this decision in his Annual Report for the year 2007.
On 10 April 2007, Mr N. informed the Ombudsman's services by e-mail that, having contacted the responsible authorities of the Competition Unit, he was informed that a request for publication of the notice for the selection procedure PE/81/S in all the official languages was submitted to OPOCE. However, for unknown reasons, the notice was published only in English, German and French. A research carried out in the archives of the Unit with a view to tracing the communication with OPOCE had unfortunately proved to be fruitless.
THE DECISION
1 Publicity given by Parliament to Recruitment Notice PE/81/S1.1 Recruitment Notice PE/81/S published by Parliament was published in the English, French and German versions of Official Journal C 134 A of 12 May 2004. In his complaint to the Ombudsman, X considered that a communication of the relevant selection procedure should have been published in all the linguistic versions of the Official Journal, as had been the case for competitions or selection procedures before and after the one in question. He therefore alleged that by not doing so, Parliament failed to give adequate publicity to Recruitment Notice PE/81/S.
1.2 In its opinion, Parliament explained that (i) the relevant notice had been published on the Parliament's intranet; (ii) a reference to Recruitment Notice PE/81/S had been made in the summary of vacancies; and (iii) an information notice had been posted on Parliament's premises. According to Parliament, all interested persons had the opportunity to become aware of the relevant selection procedure. In addition, Parliament argued that since, in accordance with the Recruitment Notice, candidates were required to have a very good knowledge of either English, French or German, the fact that the Recruitment Notice was only published in those three languages could not be considered to constitute evidence that the Notice was vitiated by any irregularity.
1.3 The Ombudsman considered that, in its opinion to the Ombudsman, Parliament failed to deal properly with the points made by the complainant in his complaint. He therefore made further inquiries and asked the institution specifically to address the complainant's point that Parliament failed to refer to Recruitment Notice PE/81/S in all the linguistic versions of the Official Journal, as it had done for selection procedures published before and after the relevant one. Parliament was asked to explain for which reasons, if any, it followed a different approach for Recruitment Notice PE/81/S. Since selection procedure PE/81/S was opened to both internal and external candidates, the Ombudsman asked Parliament to further explain how the fact that (i) the relevant Notice had been published on the Parliament's intranet, that (ii) a reference to this selection procedure had been made in the summary of vacancies and that (iii) an information notice had been posted on Parliament's premises could be sufficient to guarantee that all potential candidates were informed of the relevant selection procedure.
1.4 Concerning the first question, Parliament stated in its reply that although it was true that the Recruitment Notice was published in full only in the English, French and German versions of the Official Journal, the other linguistic versions of the Official Journal contained a reference to the selection procedure in question. In light of this, Parliament therefore rejected the complainant's allegation that only the English, French and German versions of the Official Journal contained information on the relevant selection procedure.
Concerning the Ombudsman's second question, Parliament stressed that the selection procedure was drawn to the attention, not only of Parliament staff, but also to staff of the other Community institutions in accordance with the principle set out in Article 1(3) of Annex III to the Staff Regulations. In view of the above, Parliament considered that the decision to organise selection procedure PE/81/S was communicated to potential candidates through the appropriate channels.
1.5 In his further observations, the complainant emphasised that, contrary to what Parliament stated in its reply, it had not provided evidence of its statement that the linguistic versions of the Official Journal, other than the English, French and German versions (where Recruitment Notice PE/81/S was published in full), contained a reference to the selection procedure in question. The enclosures attached by Parliament to its reply, which, in the institution's view, should have proved the accuracy of its statement, were useless for this purpose. None of the relevant enclosures constituted in fact an extract of the linguistic versions of the Official Journal to which Parliament had made reference.
The complainant also noted that among the documents enclosed by Parliament along with its reply there was a copy of the message sent on 19 April 2004 by Parliament Service Concours to the Official Publication Office of the European Communities ("OPOCE"). In this message, Parliament asked OPOCE to confirm the date of 12 May 2004, or another date close to this date, for the publication of Recruitment Notice PE/81/S in the Official Journal. Parliament further informed OPOCE that the Notice had to be published only in English, French and German. In X's view, the fact that no reference at all was made to the fact that an information notice concerning the selection procedure in question had to be made in the other linguistic versions of the Official Journal supported his position that such a publication was indeed not made.
1.6 The Ombudsman noted that an apparent discrepancy existed between the position taken by Parliament and by the complainant concerning the publication of an information notice of selection procedure PE/81/S in the Official Journal.
Furthermore, having carefully analysed all the documents enclosed by Parliament in its reply to his request for further information, the Ombudsman took the view that, as indicated by the complainant in his observations, none of them appeared to be an extract from the Official Journal.
The Ombudsman's legal service therefore contacted Parliament in order to clarify this aspect of the case. In its reply, Mr R., with whom the Ombudsman services had spoken, stated that he had contacted the Competition Unit regarding the relevant recruitment notice. Mr R. informed the Ombudsman that he was informed that a publication of the notice in all the official languages was requested, but it remained unclear why it was ultimately published in only English, French and German. Mr R. stated that, although a search was carried out in the archives of the Unit with a view to tracing the communication with OPOCE, this search had been unsuccessful. It was thus accurate to say that the recruitment notice was published in the Official Journal in the three above-mentioned languages only.
1.7 The aim of the present inquiry carried out by the Ombudsman is to ascertain whether Parliament gave adequate publicity to selection procedure PE/81/S, namely, through the publication of Recruitment Notice PE/81/S in the Official Journal.
1.8 In light of the information obtained from the complainant and from Parliament, and of the evidence obtained by him, the Ombudsman considers that it appears now to be undisputed that the Recruitment Notice PE/81/S was published in full only in the English, French and German versions of Official Journal C 134A of 12 May 2004 and that, as correctly stated by the complainant, no reference to this competition was made in any of the other linguistic versions of the Official Journal. The Ombudsman considers that by not publishing at least an information notice concerning the relevant selection procedure in all linguistic versions of the Official Journal, Parliament did not ensure that adequate publicity was given to recruitment procedure PE/81/S. Furthermore, Parliament had not provided any adequate reason for such a failure.
This failure by Parliament constituted maladministration. The Ombudsman will therefore make a critical remark below.
1.9 The Ombudsman would also like to express his regret that, in its reply to his request for further information, Parliament not only rejected the complainant's allegation that only the English, French and German versions of the Official Journal contained information on the relevant selection procedure, but even attempted to justify its position by sending documents which were quite irrelevant. Contrary to what Parliament stated, the documents sent to the Ombudsman were not extracts from the Official Journal, and therefore could not be expected to corroborate Parliament's position.
Furthermore, the Ombudsman takes note of the fact that, according to Parliament, a publication of the notice in all the official languages was requested from OPOCE. The Ombudsman does not understand why, if such a request was in fact made, Parliament did not ask OPOCE to take remedial action when it appeared that its request was not met by OPOCE. However, in view of the conclusions reached in point 1.8 above, and in view of the fact that it would not serve a practical purpose for the complainant if Parliament were to clarify this point, the Ombudsman considers that it is not justified to pursue his inquiry into this aspect of the case.
2 The complainant's allegation that Parliament's attitude was inappropriate and offensive2.1 In his complaint to the Ombudsman, the complainant alleged that Parliament's statement, that X had no "legal interest" to raise, in his complaint under Article 90(2), the issue of a lack of publicity for recruitment procedure PE/84/S, was inappropriate and offensive.
2.2 In its opinion, Parliament emphasised that, as already stated in its reply to the complainant's Article 90(2) complaint, he had no legal interest in questioning the way in which recruitment procedure PE/84/S was published since X had been aware of the procedure.
2.3 In his observations, the complainant basically maintained his allegation.
2.4 The Ombudsman notes that the existence of an act "adversely affecting" a complainant is a necessary condition for the submission of a complaint under Article 90(2) of the Staff Regulations. Given that the complainant was aware of recruitment procedure PE/84/S, X was not "adversely affected" by the lack of publicity for recruitment procedure PE/84/S. Thus, the Ombudsman sees no reason to doubt the legal correctness of Parliament's position that the complainant could not raise, under Article 90(2) of the Staff Regulations, the issue of a lack of publicity for Recruitment Notice PE/81/S. Furthermore, even in the event Parliament's legal analysis were legally questionable, which it is not, the Ombudsman finds nothing "offensive" or "inappropriate" in the manner in which Parliament communicated its legal arguments to the complainant. The Ombudsman considers, therefore, that there was no maladministration concerning this aspect of the case.
2.5 The Ombudsman considers it worthwhile to underline, however, that, in contrast to the limitations applicable under Article 90(2) of the Staff Regulations, any complainant, including an official or servant of a Community institution or body, has a right to submit a complaint to the Ombudsman even if the act which is the subject of the complaint does not "adversely affect" him or her. The Ombudsman understands that Parliament has, in the present inquiry, only questioned the right of the complainant to complain, under Article 90(2) of the Staff Regulations, about the lack of publicity for recruitment procedure PE/84/S. The Ombudsman understands that Parliament has not called into question the right of the complainant to submit to the Ombudsman a complaint relating to this issue.
3 ConclusionOn the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:
Recruitment Notice of procedure PE/81/S was published in full only in the English, French and German versions of Official Journal C 134A of 12 May 2004. No reference to this competition was made in the other linguistic versions of the Official Journal. The Ombudsman considers that by not publishing at least an information notice concerning the relevant selection procedure in all linguistic versions of the Official Journal, Parliament did not ensure that adequate publicity was given to recruitment procedure PE/81/S. Furthermore, Parliament has not put forward any adequate reason for this failure. This failure constituted maladministration.
Given that a friendly solution does not appear to be possible in the present case, the Ombudsman therefore closes the case with the critical remark above.
As requested by the complainant, the Ombudsman will consider the publication of a summary of the present decision in his Annual Report for the year 2007.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) OJ 2004 C 134 A, p.1.
(2) It stated that: "[v]ous n'avez pas d'intérêt juridique à invoquer ce moyen."
(3) Neither the complainant in his complaint nor the Ombudsman in his opening letter had asked Parliament to deal with issues concerning the complainant's participation in the relevant competition. In his complaint 1917/2005/IP, the complainant had in fact explicitly stated that the object of his complaint was not the same as that of complaint 3483/2004/IP. Parliament's opinion concerning this issue has therefore not been taken into consideration in the present decision since it does not appear to be relevant.
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