ANNUAL REPORT FOR 1997 (98/C 380/01)

Strasbourg, 20 April 1998

MR JOSÉ MARÍA GIL-ROBLES GIL-DELGADO

President

European Parliament

rue Wiertz

B-1047 Bruxelles

Mr President,

In accordance with Article 138e(1) of the Treaty establishing the European Community and Article 3(8) of the Decision of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, I hereby present my report for the year 1997.

JACOB SÖDERMAN

Ombudsman of the European Union

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1. FOREWORD BY THE EUROPEAN OMBUDSMAN

This is the third Annual Report by the European Ombudsman, but only the second to cover a full year of activity. Even though the Office is still at a relatively early stage of its development, we have already in 1997 managed to begin more own-initiative inquiries, close more cases with reasoned decisions and achieve more positive results for complainants. Three friendly solutions have been successfully proposed and the first Special Report was presented to the European Parliament.

During the year it was also possible to inaugurate the main office in Strasbourg with a small celebration and to open an antenna in Brussels. The implementing provisions were adopted by the Ombudsman in accordance with Article 14 of the Statute of the Ombudsman and a network of liaison officers was set up with the national ombudsmen offices and similar bodies in the Member States.

INFORMING CITIZENS OF THE RIGHT TO COMPLAIN

Since beginning work as European Ombudsman on 1 September 1995, I have dedicated a considerable part of my time to informing European citizens of their right to complain to the Ombudsman, about the situations in which it is appropriate to make a complaint and about how this should be done. To promote the citizens' knowledge, I have engaged in regular contact and cooperation with the offices of the national ombudsmen and similar bodies, with the European Parliament information offices and with the European Commission representations in the Member States. All these bodies have our information material available, including the optional standard form on which a complaint may be made. They have shown a positive attitude towards cooperation all the time.

To provide information to citizens more quickly and effectively, we have also opened a website on the Internet, linked to that of the European Parliament, where we give general information about the right to complain and about our activities. We have also released information to the European press about decisions or initiatives of general interest and presented the Ombudsman's work in a number of trade journals.

I have also visited the Member States in order to make the work of the Ombudsman better known. There is only one Member State, Portugal, which I have yet to visit. My visit there is due to take place in April 1998 and is being arranged in cooperation with the European Parliament information office in Lisbon and the office of the Portuguese national Ombudsman.

The statistics showing the number of complaints in relation to population for each Member State give a rough picture of how the information campaign has been received (see Appendix A). There are some significant differences. Leaving aside Belgium, Luxembourg and Finland, each of which has its own explanation, it seems that of the smaller countries Ireland is well informed whereas fewer complaints have been received from Austria and Sweden. As regards the big countries, the information campaign has been successful in Spain and France and less successful in Germany and Italy.

On the general level, 1 181 new complaints were made to the European Ombudsman during 1997. That represents an increase of 40 % on the total of 842 new complaints received in 1996. There has also been an increase in the number of admissible complaints, although it has been clearly slower.

There is still a lot to be done in the field of information. I expect that the European Parliament and the Committee on Petitions have the same problems in promoting knowledge of the right to petition. The difference is that, with my rather limited mandate, confined to the activities of the Community institutions and bodies, I must focus on reaching the people who might have a real reason to complain about the European administration rather than launch general campaigns. During the year 1998, the Ombudsman's information campaign will target citizens and bodies who deal with the European Community administration. More effort will be put into using the possibilities to use the Internet both to communicate directly with citizens and to furnish European information offices and organisations with knowledge of the right to complain to the Ombudsman. It seems to be important also to focus more on the regional level in those Member States which have a more decentralised structure. This information activity could also distribute information on the citizens' right to petition the European Parliament.

INITIATIVES ON TRANSPARENCY

Article 138e of the Treaty gives the Ombudsman the possibility to carry out inquiries on his own initiative as well as in response to complaints. Within the limits of my mandate, I have used the own-initiative power so as to promote transparency in the Union by beginning three inquiries into subjects where a number of complaints suggested more general dissatisfaction on the part of citizens.

The own-initiative inquiry into the procedures used by the European Commission in dealing with complaints from citizens about infringements of Community law by Member States was initiated and closed during 1997 and is presented in this report (See chapter 3). The own-initiative inquiry was welcomed by the Parliament in its Resolution concerning the Fourteenth Annual Report of the Commission on the monitoring of the application of Community law (rapporteur Astrid Thors).

Another own-initiative inquiry which is intended to promote greater transparency concerns the procedures used by the Community institutions for recruitment of staff. This inquiry was launched in November 1997 and is still continuing.

Finally, there is the own-initiative inquiry into public access to documents, which I launched in June 1996. On 20 December 1996, I made draft recommendations to 14 Community institutions and bodies that they should adopt, and make easily available to the public, rules concerning public access to documents. The draft recommendations and the reasons for them were fully explained in the Annual Report for 1996.

The responses of the institutions and bodies concerned to the draft recommendations are the subject of a Special Report by the Ombudsman to the European Parliament, which I presented to the President of the European Parliament, Mr Gil-Robles, on 15 December 1997. Since this is the first ever Special Report under the Statute of the European Ombudsman, I proposed that it could be dealt with through a procedure similar to that used for the Annual Report.

To guarantee a consistent and effective response to the Ombudsman's work, it would be of utmost importance that the Committee of the European Parliament responsible for relations with the Ombudsman also deals with all the reports that the Ombudsman presents to the Parliament in accordance with the Statute. If special expertise is needed in relation to a particular report, this could of course be obtained in an appropriate way, such as an opinion from another Committee. To avoid confusion, it could be helpful for the Parliament to consider a clarification of its Rules of Procedure to specify how the Ombudsman's Annual and Special Reports are dealt with.

RESULTS OF THE WORK

In each year of operation of the Ombudsman's office so far there have been more positive results for the citizens. This year the number of cases settled by the institutions has increased and the first friendly solutions have been reached. Still more must be achieved in this respect during the coming year before the results can be considered satisfactory. The antenna in Brussels will make it easier to carry out the time-consuming activities of inspecting documents and negotiating friendly solutions. The adoption and publication of a code of conduct on good administrative behaviour would surely raise the quality of the institutions' administrative practices and enhance their relations with the European citizens.

Although the Office managed to decide rapidly on the admissibility of new complaints and when necessary advise the complainants of another competent body to which the complaint could be addressed and although it also managed to deal with far more admissible cases and open more own-initiative investigations, a small backlog in dealing with some admissible complaints has developed.

The objective should be to carry out the necessary inquiries into a complaint and inform the citizen of the outcome within one year, unless there are special circumstances which require a longer investigation. At the end of 1997, there were about 30 cases where this goal had not been achieved, partly because the initial phase involved more administrative work than expected, but also because there is an objective need for more staffing. The need for more staff is also underlined by the new responsibilities that the Treaty of Amsterdam will mean for the European Ombudsman. I hope that this will be adequately dealt in the budget procedure for the years 1999 and 2000.

In its resolution dealing with the Ombudsman's Annual Report for 1996, the European Parliament expressed the need to define the term 'maladministration`. I undertook that obligation and a definition which takes into account the experience of the national ombudsmen and similar bodies in the Member States is included in chapter 2 of this Annual Report.

The cooperative and positive atmosphere to which I have referred in the earlier Annual Reports has continued during the year 1997 and I hope that European citizens will benefit from a more open and human European administration.

Jacob SÖDERMAN

2. COMPLAINTS TO THE OMBUDSMAN

The most important task of the European Ombudsman is to deal with maladministration in the activities of Community institutions and bodies. Possible instances of maladministration come to the attention of the Ombudsman mainly through complaints made by European citizens. The Ombudsman can also conduct inquiries on his own initiative.

Any European citizen, or any non-citizen living in a Member State, can make a complaint to the Ombudsman. Businesses, associations or other bodies with a registered office in the Union may also complain. Complaints may be made to the Ombudsman either directly, or through a Member of the European Parliament.

Complaints to the Ombudsman are dealt with in a public way unless the complainant requests confidentiality. It is important that the Ombudsman should act in as open and transparent a manner as possible, both so that European citizens can follow and understand his work and to set a good example to others.

During 1997, the Ombudsman dealt with 1 412 cases. Of these 1 181 were new complaints received in 1997. 1 067 of these were sent directly by individual citizens, 57 came from associations and 38 from companies. 17 complaints were transmitted by Members of the European Parliament. 227 cases were brought forward from the year 1996. The Ombudsman also began four own-initiative inquiries.

As first noted in the Ombudsman's Annual Report for 1995, there is an agreement between the Committee and the Ombudsman concerning the mutual transfer of complaints and petitions in appropriate cases. During 1997, two petitions were transferred to the Ombudsman, with the consent of the petitioner, to be dealt with as complaints. 13 complaints were transferred, with the consent of the complainant, to the European Parliament to be dealt with as petitions. Additionally, there were 86 cases in which the Ombudsman advised a complainant to petition the European Parliament. (See Annex A, Statistics, p. 310)

2.1. THE LEGAL BASIS OF THE OMBUDSMAN'S WORK

The Ombudsman's work is carried out in accordance with Article 138e of the Treaty establishing the European Community and the Statute of the Ombudsman (1). Article 14 of the Statute provides for the Ombudsman to adopt implementing provisions. In view of the limited experience available in 1996 on the operation of the European Ombudsman's office, the implementing provisions were first adopted on an indicative and provisional basis on 4 September 1996. The Ombudsman informed the Committee on Petitions and the Committee on the Rules of Procedure of the European Parliament of his adoption of implementing provisions on a provisional and indicative basis and that formal and durable implementing provisions would be adopted in the course of 1997.

On 16 October 1997, the Ombudsman adopted formal and durable implementing provisions which came into effect on 1 January 1998. The Committee on Petitions and the Committee on Rules of Procedure of the European Parliament were informed of the adoption of the final provisions. The text of the implementing provisions in all official languages, is published on the Ombudsman's website (http://www.euro-ombudsman.eu.int). The text is also available from the Ombudsman's office. A notice giving details of the adoption and publication of the implementing provisions was published in the Official Journal of the European Communities.

The implementing provisions deal with the internal operation of the Ombudsman's office. However in order that they should form a document that will be understandable by and useful to citizens, they also include certain material relating to other institutions and bodies that is already contained in the Statute of the Ombudsman.

Article 13 of the implementing provisions revises and consolidates the rules governing public access to documents held by the European Ombudsman. Previously the rules on access to complaints-related documents were contained in the provisional and indicative implementing provisions, while rules on public access to other documents were contained in a separate decision of the Ombudsman of 24 March 1997.

During 1997 the Parliament's Committee on the Rules of Procedure proposed amendments to Rule 161 (rapporteur, Mr Brian Crowley). The Ombudsman attended a meeting of the Committee on 24 September at which the proposed amendments were discussed. The report of the Committee on Rules of Procedure on the amendment of Rule 161 of the Parliament's Rules of Procedure, unanimously adopted by the Committee at its meeting of 4 November 1997, did not come before a plenary session of the Parliament during 1997.

The Rules of Procedure of the European Parliament contain no specific provisions for how the Parliament deals with the Annual Report and Special Reports of the European Ombudsman. If it is felt that there is a need for such provisions, the Ombudsman is willing to consider making a proposal for this purpose as foreseen by Rule 161(1) of the Rules of Procedure.

2.2. HOW COMPLAINTS ARE DEALT WITH

All complaints sent to the Ombudsman are registered and acknowledged. The letter of acknowledgement informs the complainant of the procedure for considering his or her complaint and includes the name and telephone number of the legal officer who is dealing with it. The next step is to examine whether the complaint is within the mandate of the Ombudsman.

2.2.1. THE MANDATE OF THE EUROPEAN OMBUDSMAN

The mandate of the Ombudsman, established by Article 138e of the Treaty, empowers him to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State, concerning instances of maladministration in the activities of Community institutions and bodies with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. A complaint is therefore outside the mandate if:

(1) the complainant is not a person entitled to make a complaint;

(2) it is not against a Community institution or body;

(3) it is against the Court of Justice or the Court of First Instance acting in their judicial role; or

(4) it does not concern a possible instance of maladministration.

Who is entitled to complain ?

A Turkish citizen residing in the United States complained to the Ombudsman concerning the handling by the European Commission of Turkey's application for membership of the European Union.

Since the complaint came from an individual who was neither a citizen of the Union nor residing in a Member State of the Union, it fell outside the mandate of the Ombudsman.

The Ombudsman suggested to the complainant that he could address the responsible Commissioner about the matter directly and informed him of the address to which he could write.

(1017/97/OV)

A Moroccan citizen wrote to the Ombudsman from an address in Morocco complaining that he had been expelled from France, without a hearing before a court, following the withdrawal of his residence permit by the Prefect of Paris.

Since the complaint came from an individual who was neither a citizen of the Union nor residing in a Member State of the UnionArticlet fell outside the mandate of the Ombudsman.

The Ombudsman informed the complainant in general terms of the conditions under which a case could be dealt with by the European Commission of Human Rights.

NB: Even if the complainant had still been physically present in France, the complaint would nonetheless have fallen outside the Ombudsman's mandate since it was not against a Community institution or body.

(978/97/XD)

Examples of complaints which are not against a Community institution or body

A UK citizen applied to a Business Innovation Centre for support for a project for a start-up business. He complained to the Ombudsman that his application had failed because of irregularities in the way it had been dealt with by the Centre.

The Business Innovation Centre against which the complaint was made is part of the European Business and Innovation Network, which consists of different business centres within the Community. The Community supports the creation and development of these centres both financially and with technical assistance. However, the centres themselves are based on public and private partnerships between such bodies as local authorities, chambers of commerce, professional associations, trade unions, financial institutions, universities, research centres, firms and similar local interests. The Commission is not represented on their governing bodies.

The Ombudsman therefore informed the complainant that business centres in the European Business and Innovation Network are not Community institutions or bodies.

(Complaint 947/97/HMA)

A former employee at the European Molecular Biology Laboratory complained to the Ombudsman concerning the Laboratory. The complainant alleged that she had been mistreated and subjected to harassment and that she had suffered injury because of lack of safety measures in the workplace.

The Laboratory was set up in the context of the European Molecular Biology Conference, of which 16 States are currently members. The agreement to set up the laboratory was originally signed in 1973 by 10 States; Austria, Denmark, France, Germany, Italy, the Netherlands, Sweden, Switzerland and the United Kingdom. Thus, the Laboratory was not established by the Community Treaties, nor by an act adopted by the institutions of the Communities and its funding is not provided by the Communities.

The Ombudsman therefore informed the complainant that the Laboratory is not a Community institution or body.

(Complaint 374/15.01.96/MV/UK/PD)

An official of the European Commission complained to the Ombudsman about the European School of Woluwe in Brussels.

The complaint concerned decisions taken by the class council and the disciplinary council of the School concerning his son. The complainant alleged that there existed no rights of defence, either for the student, or for the parents. He also criticised the appeal system of the European School claiming that it is unfair for the class council to hear appeals against its own decision.

The Ombudsman decided that the complaint was outside his mandate because it was not against a Community institution or body. Although the Commission has some general responsibility, as it is represented on the Board of Governors of the Schools and provides a large part of the budget, it cannot be held responsible for matters of internal management.

(Complaint 989/97/OV)

Another question concerning the competence of the Ombudsman arose from six complaints against the Council made by British journalist Mr Tony Bunyan on behalf of the non-governmental organisation 'Statewatch` in November and December 1996. The complaints concerned the Council's responses to requests made by Mr Bunyan for access to documents relating to activities in the 'third pillar`. ('Third pillar` is an informal term used to refer to cooperation in the fields of Justice and Home Affairs under Title VI of the Treaty on European Union).

After determining that the six complaints were within the mandate, admissible and that there were grounds for an inquiry, the Ombudsman forwarded them to the Council in January 1997. In March 1997, the Council sent a reply which contested the competence of the Ombudsman to deal with the complaints.

On 15 April 1997, the Ombudsman wrote to the Council confirming his original decision that the complaints were within his mandate and renewing his request for an opinion on the substance of the complaints. On 20 June 1997 the Council complied with the Ombudsman's request (2).

The Council's argument that the Ombudsman lacked competence to deal with the complaints from Mr Bunyan appeared to be based on two propositions:

(1) the competence of the Ombudsman does not extend to actions taken by the Council under the third pillar;

(2) the subject matter of the complaints concerned action taken by the Council under the third pillar.

In confirming his earlier decision that he was competent to deal with the complaints, the Ombudsman explained that the second of the above propositions was wrong. It was therefore unnecessary for him to take a position on the first proposition.

The Ombudsman recalled that the complaints concerned the Council's response to requests for access to documents. The requests had been made under the Council Decision on public access to Council documents (3) and were dealt with by the Council in purported application of that Decision. The Council Decision on public access to documents was made under Article 151 of the Treaty establishing the European Community. The Court of Justice confirmed in its judgment in Netherlands v. Council (4), that the Decision has legal effects vis-à-vis third parties as a matter of Community law.

The Decision was interpreted and applied by the Court of First Instance in Carvel and Guardian Newspapers v. Council (5). This case involved access to, inter alia, documents relating to the actions of the Council under the third pillar.

Given the limitations on the jurisdiction of the Court of Justice imposed by Article L of the Treaty on European Union, the Court of First Instance would have had no jurisdiction to deal with this aspect of the Carvel case if access to Council documents concerning actions under the third pillar was itself a third pillar matter. In fact, however, the Court did accept jurisdiction in the case.

The correct interpretation and application of the Council decision on public access to documents is therefore a matter of Community law and not a matter dealt with in the third pillar, even if the documents in question concern actions under the third pillar.

The meaning of maladministration

In its resolution on the Ombudsman's Annual Report for 1996, the European Parliament encouraged the Ombudsman to make full use of the mandate conferred on him by the Treaties to deal with maladministration in the activities of Community institutions and bodies.

The resolution also referred in this context to the need for a clear definition of the term maladministration.

The Treaty establishing the European Community does not define maladministration. On the occasion of the adoption by the Parliament of the above resolution, the Ombudsman therefore undertook to attempt to provide a more precise definition in the Annual Report for 1997.

The Ombudsman's Annual Report for 1995 explained the term 'maladministration` as follows:

'Clearly, there is maladministration if a Community institution or body fails to act in accordance with the Treaties and with the Community acts that are binding upon it, or if it fails to observe the rules and principles of law established by the Court of Justice and Court of First Instance.

For example, the European Ombudsman must take into account the requirement of Article F of the Treaty on European Union that Community institutions and bodies are to respect fundamental rights.

Many other things may also amount to maladministration, including:

-administrative irregularities

-administrative omissions

-abuse of power

-negligence

-unlawful procedures

-unfairness

-malfunction or incompetence

-discrimination

-avoidable delay

-lack or refusal of information.

This list is not intended to be exhaustive. The experience of national ombudsmen shows that it is better not to attempt a rigid definition of what may constitute maladministration. Indeed, the open ended nature of the term is one of the things that distinguishes the role of the Ombudsman from that of a judge.

There are limits, however, to what may count as maladministration. All complaints against decisions of a political rather than an administrative nature are regarded as inadmissible; for example, complaints against the political work of the European Parliament or its organs, such as decisions of the Committee on Petitions. Nor, for example, is it the task of the Ombudsman to examine the merits of legislative acts of the Communities such as regulations and directives`.

This explanation of maladministration was accepted in the European Parliament's Report on the Ombudsman's Annual Report for 1995. It was also referred to with approval at the meeting of the European national ombudsmen held in September 1997.

In order to supplement the above explanation with a definition, the national ombudsman and similar bodies were asked to inform the European Ombudsman of the meaning given to the term 'maladministration` in their Member States.

From the replies received, it appears that the fundamental notion can be defined as follows:

Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding on it.

Two comments concerning this definition are necessary.

First, the mandate of some ombudsmen is expressly limited by the national law establishing the office. For example, the legislation establishing the UK Parliamentary Commissioner for Administration provides that he shall not normally investigate complaints where there is a possible judicial remedy (6). Naturally, the Ombudsman concerned limits his inquiries into 'maladministration` accordingly. However, such restrictions are not part of the normal meaning of the term 'maladministration`, otherwise it would be unnecessary to state them expressly. Thus, for instance, the Office of the Danish Ombudsman, which served as an inspiration for the creation for the office of European Ombudsman, does not know of any such restriction and the Council of Europe's definition of an ombudsman's role includes review of the lawfulness of administrative acts (7).

Secondly, the specific rules and principles which are binding on public bodies vary according to the constitutional, legal and administrative framework of the country concerned. Furthermore the rules and principles are not static. They change and develop as the result of the work of the legislator, of the courts, of the ombudsman and of the administration itself.

It could therefore be helpful to add some further remarks about the rules and principles which are binding in the context of the European Community.

The rule of law

The starting point for the work of all the institutions and bodies created by, or under, the European Union Treaties is law. As the Court of Justice has emphasised on many occasions, the European Community is a Community of law. Therefore, when the European Ombudsman investigates whether a Community institution or body has acted in accordance with the rules and principles which are binding on it, his first and most essential task must be to establish whether it has acted lawfully. In carrying out this task, the Ombudsman is always mindful of the fact that, as stated in the Annual Report for 1995, the highest authority on the meaning and interpretation of Community law is the Court of Justice. Furthermore, in accordance with Article 138e of the Treaty the Ombudsman cannot conduct inquiries where the alleged facts are or have been the subject of legal proceedings.

Some complaints to the European Ombudsman raise issues of national law. In particular, when a complaint concerns an existing contractual relationship between the complainant and a Community institution, the contract is governed by the provisions of the relevant national law.

In many Member States, the Ombudsman does not deal with contractual disputes, either because of the general characteristics of such contracts under national law, or because the law establishing the Ombudsman's mandate expressly excludes contractual matters. As stated in the Annual Report for 1995, part of the mission of the European Ombudsman is to help relieve the burdens of litigation, by promoting friendly solutions and by making recommendations that avoid the need for proceedings in courts. The European Ombudsman, therefore, does deal with complaints of maladministration that arise from contractual relationships.

He does not, however, seek to determine whether there has been a breach of contract by either party. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact. However, as a matter of good administration, a public authority engaged in a contractual dispute with a private party should always be able to provide the Ombudsman with a coherent account of the legal basis for its actions and why it believes that its view of the contractual position is justified.

Rules and principles of good administrative behaviour

What good or bad administration means in practice is usually established and concretised on a case-by-case basis. The matter can also be clarified by adopting a law or a code of conduct concerning good administrative behaviour, as has been done in many of the Member States. An important initiative has been taken by Roy Perry MEP, rapporteur for the report of the Committee on Petitions on its own activities in 1996 to 1997 (8) in calling for a code of good administrative behaviour to be established for Community institutions and bodies. The Secretary-General of the European Commission informed the Ombudsman at a meeting in Strasbourg on 21 October 1997 that the Commission had begun drafting such a code to apply to its officials.

These initiatives should be warmly welcomed. A published code of good administrative behaviour would inform officials of the service they should provide and citizens of what they could expect. It would thereby enhance both the quality of administrative work and relations with citizens.

The office of the European Ombudsman has therefore assisted the preparatory work of the Secretary-General of the Commission by providing information and examples drawn from the experience of the Member States and by commenting on the principles applied in the initial stages of drafting. In particular, the Ombudsman forwarded to the Secretary-General copies of the Danish law on public administration of 1985 and the Finnish law on administrative procedures of 1982, both of which contain detailed provisions concerning matters of procedure, including giving reasons for decisions, the right to be heard and the duty to give information about possible remedies.

The Ombudsman also forwarded to the Secretary-General copies of: the Portuguese code of administrative procedures of 1991; the recent French draft law concerning relations between the administration and the public, which contains provisions concerning acknowledgement of receipt, the obligation to transmit correspondence to the competent service, deadlines for replies and the right to present written and oral observations before a decision; a statement of the principles of the United Kingdom's 'Citizen's Charter`; checklists of good administrative behaviour established by the Ombudsmen of Ireland and Hong Kong and other relevant materials.

The limits of maladministration

To conclude this section of the report, it may be helpful to clarify the limits of maladministration in relation first to the exercise of discretionary administrative power and secondly to the political work of Parliament.

In carrying out the administrative tasks conferred on it by or under the Treaties, a Community institution or body may have legal authority to choose between two or more possible courses of action. For example, if the Commission considers that a Member State has failed to fulfil an obligation under the EC Treaty, it may, after following the necessary procedural steps, bring the matter before the Court of Justice under Article 169 of the Treaty. This is a discretionary power and the Commission cannot, therefore, be required to bring an infringement before the Court of Justice.

The Ombudsman does not seek to question discretionary administrative decisions, provided that the institution or body concerned has acted within the limits of its legal authority. General limits on such authority are established by the jurisprudence of the Court of Justice which requires, for example, that administrative authorities should act consistently and in good faith; avoid discrimination; comply with the principles of proportionality, equality and legitimate expectations and respect human rights and fundamental freedoms (9).

Although Article 138e of the Treaty specifically excludes the judicial work of the Court of Justice from the mandate of the Ombudsman, it is silent concerning the political work of the European Parliament. However, the classical Ombudsman office in the Nordic countries is set up to supervise the public administration on behalf of the Parliament, not to supervise the political activities of the Parliament. Ombudsmen in other Member States also appear not to supervise the political work of their respective Parliaments. Applying therefore a constitutional principle common to the Member States, the European Ombudsman has established that he does not carry out inquiries into the political activities of the European Parliament. This question had to be dealt with in practice because, early on, the Ombudsman's office received a number of complaints alleging maladministration by the Committee on Petitions of the European Parliament in dealing with petitions. Since the Committee is a political body dealing with petitions as a political task of the Parliament, these complaints were not considered to be within the mandate of the Ombudsman.

2.2.2 ADMISSIBILITY OF COMPLAINTS

A complaint that is within the mandate of the Ombudsman must meet further criteria of admissibility before the Ombudsman can open an inquiry. The criteria as set out by the Statute of the Ombudsman are that:

(1) the author and the object of the complaint must be identified (Article 2(3) of the Statute)

(2) the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling (Article 1(3))

(3) the complaint must be made within two years of the date on which the facts on which it is based came to the attention of the complainant (Article 2(4)),

(4) The complaint must have been preceded by appropriate administrative approaches to the institution or body concerned (Article 2(4))

(5) in the case of complaints concerning work relationships between the institutions and bodies and their officials and servants, the possibilities for submission of internal administrative requests and complaints must have been exhausted before lodging the complaint (Article 2(8)).

Examples of inadmissible complaints

In October 1997, a Greek Ph.D. researcher in international and Community law complained to the Ombudsman against the European Commission.

The complaint was based on the following facts. In 1990 he had been excluded, on the basis of his nationality, from competitions organised for posts as a university researcher by the Law School of 'La Sapienza` University in Rome and the Instituto universitario di lingue moderne in Milan. He complained to the Commission by letters in March and June 1990 that his exclusion from the competitions infringed Article 48 of the EC Treaty. According to the complaint to the Ombudsman, although the Commission replied to his letters in May and July 1990 it had not taken satisfactory steps to deal with the discrimination.

The Ombudsman decided that the complaint was inadmissible because the complainant had not contacted the Commission since July 1990, that is for a period of seven years before complaining to the Ombudsman. The time limit of two years established by Article 2(4) had thus been considerably exceeded.

(Complaint 937/97/OV)

A company complained to the Ombudsman against the Commission in relation to a tender procedure in which it participated. The tender used the restricted procedure and was for provision of transport services for the diplomatic bag and other post.

According to the complaint, the facts were as follows. The Commission invited the company to submit a tender, with a deadline of 29 September 1997. On 10 September and 24 September the company requested further information and clarification about certain aspects of the tender documents. On 19 September and 25 September the Commission replied that it was unable to provide the information requested.

According to the complainant, whoever held the previous contract had the advantage of having more background information. The company therefore complained to the Ombudsman whom they asked to clarify the situation.

Although the complainant had been in contact with the Commission during the tender procedure, there was no indication that they had made the Commission aware of their dissatisfaction with the conduct or outcome of the tender procedure. The Ombudsman therefore decided that the complaint was inadmissible, since appropriate administrative approaches had not been made as required by Article 2(4) of the Statute.

The complainant company was advised to contact the Commission, setting out clearly its concerns about the tender process. If it was dissatisfied with the Commission's response, it could then address a complaint to the Ombudsman.

(1136/97/IJH)

2.2.3. Grounds for inquiries

The Ombudsman can deal with complaints that are within his mandate and which meet the criteria of admissibility. Article 138e of the EC Treaty provides for him to 'conduct inquiries for which he finds grounds`. In some cases, there may not be sufficient grounds for the Ombudsman to begin an inquiry, even though the complaint is technically admissible. Where a complaint has already been dealt with as a petition by the Committee on Petitions of the European Parliament the Ombudsman normally considers that there are no grounds for him to open an inquiry, unless new evidence is presented.

Where a complaint alleges only that a letter has not been answered, the Ombudsman's office tries to resolve the matter through informal telephone inquiries. If the institution or body concerned responds by sending an answer to the complainant promptly, the Ombudsman normally considers that there are no grounds for him to make further inquiries and the case is closed for that reason.

Examples of complaints that provided no grounds for an inquiry

In July 1997, Mrs S. complained to the Ombudsman that evidence given to the Committee on Petitions of the European Parliament by two Commission officials failed satisfactorily to explain and justify the Commission's view that there had been no breach of the Habitats Directive 92/43/EEC in the case of the Newbury bypass.

Since the substance of the complaint concerned a matter with which the Committee on Petitions was already dealing in its consideration of petitions relating to the Newbury Bypass, the Ombudsman considered that there were no grounds for him to inquire into the complaint and Mrs S. was informed accordingly.

(646/97/IJH)

On 10 February 1997, Ms V. complained to the Ombudsman about the actions of the Commission in relation to BSE (mad cow disease). She alleged that the Commission had ignored the views of British and European researchers.

On 18 July 1996, a temporary committee of inquiry had been established by the European Parliament under Article 138c of the EC Treaty, to examine the BSE affair. The Committee considered the responsibilities of the Commission as well as those of the Council and the UK Government. The Committee's report, published on 7 February 1997 (10) included findings critical of the Commission and recommendations for the future.

In view of the fact that the Commission's responsibilities in relation to BSE had already been examined by the temporary committee of inquiry, the Ombudsman considered that there were no grounds for him to inquire into the complaint and Ms V. was informed accordingly.

(Complaint 143/97/JMA)

2.3. ANALYSIS OF THE COMPLAINTS

Of the 2 321 complaints registered from the beginning of the activity of the Ombudsman, 14,9 % originated from France, 14,7 % from Germany, 14 % from Spain, 12,5 % from the UK, and 11% from Italy. A full analysis of the geographical origin of complaints is provided in Annex A, Statistics.

During 1997, the process of examining complaints to see if they are within the mandate, meet the criteria of admissibility and provide grounds to open an inquiry was completed in 97 % of the cases. Of the complaints examined 27 % appeared to be within the mandate of the Ombudsman. Of these, 230 met the criteria of admissibility, but 34 did not appear to provide grounds for an inquiry. Inquiries were therefore begun in 196 cases.

Most of the complaints that led to an inquiry were against the European Commission (80 %). As the Commission is the main Community organ that makes decisions having a direct impact on citizens, it is normal that it should be the principal object of citizens' complaints. There were 18 complaints against the European Parliament and 14 complaints against the Council of the European Union.

The main types of maladministration alleged were lack of transparency (60 cases), discrimination (42 cases), unsatisfactory procedures or failure to respect rights of defence (32 cases), unfairness or abuse of power (23 cases), avoidable delay and negligence (both 22 cases), failure to ensure fulfilment of obligations, that is failure by the European Commission to carry out its role as 'Guardian of the Treaties` vis-à-vis the Member States (20 cases) and legal error (14 cases).

2.4. ADVICE TO CONTACT OTHER AGENCIES AND TRANSFERS

If a complaint is outside the mandate or inadmissible, the Ombudsman always tries to give advice to the complainant as to another agency which could deal with the complaint. If possible the Ombudsman transfers a complaint directly to another competent agency with the consent of the complainant, provided that there appear to be grounds for the complaint.

During 1997, advice was given in 490 cases, most of which involved issues of Community law. In 254 cases the complainant was advised to take the complaint to a national or regional Ombudsman or similar body. In addition, with the consent of the complainant three complaints were transferred directly to a national ombudsman and one as a petition to a national Parliament. 86 complainants were advised to petition the European Parliament and, additionally, 13 complaints were transferred to the European Parliament, with the consent of the complainant, to be dealt with as petitions. In 76 cases, the advice was to contact the European Commission. This figure includes some cases in which a complaint against the Commission was declared inadmissible because appropriate administrative approaches had not been made to the Commission. In 73 cases the complainant was advised to contact other agencies.

2.5. DECISIONS FOLLOWING AN INQUIRY BY THE OMBUDSMAN

When the Ombudsman decides to start an inquiry into a complaint, the first step is to send the complaint and any annexes to the Community institution or body concerned for an opinion. When the opinion is received, it is sent to the complainant for observations.

In some cases, the institution or body itself takes steps to settle the case to the satisfaction of the complainant. If the opinion and observations show this to be so, the case is then closed as 'settled by the institution`. In some other cases, the complainant decides to drop the complaint and the file is closed for this reason.

If the complaint is neither settled by the institution nor dropped by the complainant, the Ombudsman continues his inquiries. If the inquiries reveal no instance of maladministration, the complainant and the institution or body are informed accordingly and the case is closed.

If the Ombudsman's inquiries reveal an instance of maladministration, if possible he seeks a friendly solution to eliminate it and satisfy the complainant. At a meeting held in Strasbourg on 21 October 1997, the Ombudsman and the Secretary-General of the Commission, Mr Carlo Trojan agreed that an informal meeting could, in some cases, provide an appropriate way to pursue a friendly solution in cases involving the Commission.

If a friendly solution is not possible, or if the search for a friendly solution is unsuccessful, the Ombudsman either closes the file with a critical remark to the institution or body concerned, or makes a formal finding of maladministration with draft recommendations.

A critical remark is considered appropriate for cases where the instance of maladministration appears to have no general implications and no follow-up action by the Ombudsman seems necessary.

In cases where follow-up action by the Ombudsman does appear necessary (that is, more serious cases of maladministration, or cases that have general implications), the Ombudsman makes a decision with draft recommendations to the institution or body concerned. In accordance with Article 3(6) of the Statute of the Ombudsman, the institution or body must send a detailed opinion within three months. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the recommendations.

If a Community institution or body fails to respond satisfactorily to a draft recommendation, Article 3(7) provides for the Ombudsman to send a report to the European Parliament and to the institution or body concerned. The report may contain recommendations. The possibility for the European Ombudsman to present such a special report to the Parliament is of inestimable value for his work. Some national Ombudsmen have had a long struggle to obtain a comparable possibility. Special reports should not therefore be presented too frequently, but only in relation to important matters when Parliament can take action to assist the Ombudsman in accordance with the Statute of the Ombudsman.

The Ombudsman's first Special Report was made on 15 December, following the own-initiative inquiry into public access to documents held by Community institutions and bodies (see further chapter 4).

In 1997 the Ombudsman began 200 inquiries, 196 in relation to complaints and four own-initiatives.

16 cases were settled by the institution or body itself. Two further cases were dropped by the complainant. In 59 cases, the Ombudsman's inquiries revealed no instance of maladministration.

A critical remark was addressed to the institution in 21 cases. A friendly solution was reached in three cases. Draft recommendations to the institutions and bodies concerned were not made in 1997 (for further details, see Appendix A, Statistics).

3. DECISIONS FOLLOWING AN INQUIRY

3.1. CASES WHERE NO MALADMINISTRATION WAS FOUND

3.1.1. THE EUROPEAN PARLIAMENTY

DECISION ON NON-ACTIVE STATUS UNDER ARTICLE 41 OF THE STAFF REGULATIONS

Decision on complaint 483/4.3.96/DG/L/KT against the European Parliamenty

The complaint

On 27 February 1996, Mrs G. complained to the Ombudsman about the decision of the European Parliament to place her on non-active status under Article 41 of the Staff Regulations. She had already complained to the Ombudsman on 12 February 1996 on the same subject. This complaint (424/14.2.96/DG/L/KT) was deemed inadmissible because internal administrative remedies had not been exhausted (Article 2(8) of the Statute of the Ombudsman).

In early January 1996, the European Parliament informed Mrs G. of its decision to place her on non-active status. The decision itself was dated 21 December 1995 and it took effect from 15 December 1995.

Mrs G. wrote to the Secretary-General contesting the fact that the decision had been communicated three weeks after it had been taken and that it had retroactive effect. Furthermore, she pointed out that she had been placed on sick leave until the end of February 1996. After having received a reply from the Secretary-General, the complainant was still unsatisfied and renewed her complaint to the Ombudsman.

The inquiry

The Parliament's comments

The complaint was forwarded to the European Parliament. In summary, Parliament's comments were as follows:

Mrs G. was one of 34 officials who volunteered in July 1994 for non-active status after having learned of a proposal to reduce posts by means of Article 41 of the Staff Regulations. She subsequently indicated no change in her intentions either to her service or to the Administration. There was therefore never any reason to believe that the decision to transfer her to non-active status was anything other than highly favourable to her.

The decision to place Mrs G. on non-active status had to be taken by the end of the year as the budgetary authority had decided to remove a maximum of 15 posts in the course of the 1995 programme.

As to the retroactivity of the decision, it was necessary for the appointing authority to consult both the Joint Committee and the Reports Committee before deciding on her non-active status. These consultations were completed on 15 November 1995.

On 9 January 1996, Mrs G. asked for the date of her transfer to non-active status to be changed to 1 March 1996 so that she could enjoy the full period of sick leave granted by her doctor from 24 October 1995 to 29 February 1996.

When Parliament learned that the wording of its establishment plan for 1996 allowed outstanding or unused Article 41 procedures to be carried over from 1995 to 1996, the Personnel Service proposed that the date of entry into force of the decision to place Mrs G. on non-active status be changed to 1 February 1996. However, the Financial Controller took the view that the factors involved did not warrant a change in the initial decision.

The comments of the European Parliament were forwarded to Mrs G. with an invitation to make observations, if she so wished. No observations appear to have been received.

The decision

According to Article 41(2) of the Staff Regulations, the appointing authority shall draw up a list of the officials to be assigned non-active status. Any official occupying one of the posts affected by reductions in the number of posts who expresses the wish to be assigned to non-active status shall automatically be entered on this list. Officials whose name appear on this list shall be assigned non-active status by decision of the appointing authority.

On the basis of the information available to the Ombudsman, it appears that Mrs G. wished to be assigned to non-active status and that the European Parliament believed that its decision to do so was highly favourable to her. No evidence was presented to the Ombudsman of any breach of the Staff Regulations by the European Parliament in dealing with this case.

It also appears that Parliament responded to Mrs G.'s request to postpone the entry into force of the decision to transfer her to non-active status, but that the Financial Controller took the view that the factors involved did not warrant a change in the initial decision. No evidence was presented to the Ombudsman questioning the exercise of discretion by the Financial Controller.

In view of these findings, there appeared to be no maladministration and the Ombudsman therefore closed the case.

HANDLING OF A COMPLAINT

Decision on complaint 130/97/HMA against the European Parliament

The complaint

In February 1997, X lodged a complaint concerning the Management Committee of the kindergarten run by the European Parliament. Over a period of 18 months, X's son was bitten six times by other children of the kindergarten. X had numerous contacts with the director of the kindergarten as well as the Management Committee in an attempt to solve this problem. He complained to the Management Committee about the fact that the director of the kindergarten was doing nothing to protect his son from being bitten again. In his view, the Management Committee did not deal properly with his complaint.

The complainant made the following allegations:

- the Management Committee had been negligent as it did nothing to protect children in danger,

- there was abuse of power in the form of intimidation and threats. X claimed that he was told that under the circumstances a future baby of his might not be admitted to the kindergarten,

- here was inequality and discrimination as children who were biting others were treated better than the children who had been bitten. X alleged that he was told that he was free to withdraw his son from the kindergarten if he was not satisfied with the situation,

- the Management Committee refused to disclose the names of children who had bitten X's son and never explained what concrete action had been taken within the kindergarten in regard to children that kept biting others and in preventing incidents of the same kind from happening again.

In accordance with Article 2(3) of the Statute the complaint was classified as confidential at the request of the complainant.

The inquiry

Parliament's comments

The complaint was forwarded to the European Parliament. In summary, the Parliament's comments are as follows:

There was no case of negligence, as the complaint had been dealt with by the relevant authorities in detail. It appeared from the file that a member of the Management Committee had witnessed a similar incident at the kindergarten and saw how it was handled.

The allegation of intimidation and threats was unfounded. There was no obstacle to admitting X's future baby to the kindergarten.

The allegation of abuse of powers was related partly to the fact that the Management Committee refused to apply for a transfer of X's son to the Commission's kindergarten. There are strict rules governing transfer applications and the only situation where such a demand is grounded is if the applicant is high on the list of priorities for entrance to the kindergarten and no place is available in the Parliament facility. Therefore there was no abuse of powers.

The director of the kindergarten gave the Management Committee detailed explanations with regard to the events described and the policies of her staff in dealing with such incidents. On the basis of these explanations, the Management Committee found no evidence of discrimination. According to Parliament, X had never been forced to withdraw his son from the Eastman kindergarten.

The failure to disclose the name of the child who had bitten X's son was justified. This policy was followed in order to avoid any violent scenes between parents in the kindergarten which would be negative for all concerned. The matter was being dealt with between the kindergarten and the parents of the child who had bitten X's son. Parliament stated that otherwise X was being kept informed of the procedures and of all decisions taken by the Management Committee and the director of the kindergarten. X was invited to discuss the matter further with the director of the kindergarten.

The complainant's observations

X observed that even if his complaint had been examined by the Management Committee, this did not mean that there was no negligence as to the substance and outcome of the investigation.

He opposed the fact that he was 'forbidden` to have direct contact with the parents of the children who bit his son. And he claimed that the director had never informed him of her intention to speak to the parents herself, nor about what concrete action had been taken to solve the problem.

Concerning threats, X maintained his position in regard to the threat not to admit his future baby to the kindergarten under the circumstances.

The decision

Concerning the allegation that the Management Committee had been negligent, it appeared that the Committee had examined the complaint and questioned the director of the kindergarten on the matter, thus carrying out an investigation which appeared to be in accordance with the principles of good administration.

As for the allegation of abuse of powers, Parliament had in its opinion stated that there was no obstacle to admitting any future child of the complainant to the kindergarten. As for the demand to transfer the complainant's child to the Commission kindergarten, it did not seem appropriate to inquire further into the justification for the refusal of this demand as, in the mean time, the child had been placed in another kindergarten.

As for the allegation of discrimination, it appeared that the pedagogy followed by the kindergarten was applied to all children in the same way and therefore there appeared to be no discrimination. There was no evidence to the effect that the complainant was forced to withdraw his child from the kindergarten.

As for the refusal of the director, supported by the Management Committee, to disclose the names of children who had bitten X's son, this refusal was based on pedagogical considerations. The director of the kindergarten seemed to be aware that parents often opposed such a decision, but she preferred to channel the parents' anger towards herself rather than towards other parents and their children. This decision of a pedagogical nature did not appear to infringe principles of good administration.

It appeared from the file that the complainant was informed that the children who bit others were being punished according to the pedagogy followed by the kindergarten and that the director was talking with the parents of these children with a view to solving the problem. The complainant was invited to further discuss the matter with the director. The decision not to disclose what concrete action had been taken appeared to be related to work ethics. This decision of an ethical nature did not appear to infringe principles of good administration.

On the basis of the European Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the Management Committee of the kindergarten of the European Parliament. The Ombudsman therefore closed the case.

3.1.2. THE EUROPEAN PARLIAMENT, THE EUROPEAN COMMISSION, THE COURT OF AUDITORS, THE COMMITTEE OF THE REGIONS AND THE ECONOMIC AND SOCIAL COMMITTEE

ACTIO POPULARIS COMPLAINT: AGE LIMITS IN RECRUITMENT COMPETITIONS

Decision on complaint 1042/25.11.96/SKTOL/FIN/BB against the European Commission, the European Parliament, the Court of Auditors, the Committee of the Regions and the Economic and Social Committee

The complaint

In November 1996, Mr B. complained to the Ombudsman on behalf of the Federation of Finnish Translation Offices (Suomen Käännöstoimistojen Liitto r.y.) about age limits in the notices of competition published by the Community institutions and bodies, in particular, the notices for competitions COM/A/1029, EUR/LA/118 and EUR/LA/119.

According to the complaint, the translators' profession was of the opinion that the current practice of the Community institutions discriminates against people on the basis of age and is, therefore, contrary to the principle of equal treatment and possibly even to the United Nations Charter. The translators claimed that it is all the more disconcerting that this practice exists within the European Union, which puts emphasis on free competition and a citizens' Europe.

Mr B. asked the Ombudsman to investigate the legality of all age limits and to take the necessary steps to deal with the matter.

The inquiry

The complaint was forwarded to the institutions and bodies concerned.

The Commission's comments

The Commission's comments began by referring to its opinion to a background note which it had sent to the Ombudsman on 31 October 1996.

Furthermore, the Commission stated that the application of age limits in competitions is an option provided by the Staff Regulations and may be flexibly applied depending on the circumstances and specific objectives of the competitions.

The Commission also explained that the application of age limits has been one tool in managing a high number of potential applications.

Finally, the Commission noted that age limits do not prevent women from applying. Furthermore, results of competitions for the new Member States have shown that age is an important factor affecting mobility.

Parliament's comments

Parliament stated that, according to the Staff Regulations, an age limit may be set for candidates in open competitions organised by the Community institutions. It is up to the various appointing authorities to decide, on the basis of their own judgment and sound administrative principles, whether an age limit is justified.

Parliament stressed that all institutions apply age limits in their recruitment policies. The various institutions have reasoned the application of age limits as follows:

(a) maintenance of the career structure

(b) difficulties in settling in a multicultural and multilinguistic environment far away from home increase with age

(c) administrative and financial problems would increase if age limits were abolished, as recruitment would become more cumbersome, and expensive and there would be no concomitant increase in the number of posts to be filled.

The Court of Auditors' comments

The Court of Auditors associated itself with the Commission's comments transmitted on 19 March 1997.

The Committee of Regions and the Economic and Social Committee

The Committee of Regions and the Economic and Social Committee gave a common opinion associating themselves with the Commission's comments transmitted on 19 March 1997.

The decision

1. Age limits in the recruitment policy of the Community institutions

1.1. It seemed that, as a general rule, all Community institutions apply age limits for the admission of candidates to competitions. This possibility appears in Annex III to the Staff Regulations and, especially, Article 1(g) of Annex III in which it is stated that the notice of open competition must specify, where appropriate, the age limit and any extension of the age limit in the case of officials and other servants of the Communities who have completed not less than one year's service.

1.2. It appeared that age limits may be raised at least for candidates who have performed compulsory military service, who have been looking after a dependent child under compulsory school age or suffering from a severe mental or physical handicap, and for candidates who have a physical handicap.

1.3. The institutions consider age limits as important instruments in assuring a career civil service and the respect of statutory obligations. The institutions follow a principle of recruiting personnel on the basic grade, therefore, changes to this principle might have negative effects on motivation and good management. According to the Commission, research shows that the higher the age limit, the clearer the geographic imbalance. Furthermore, the Commission claimed that experience has shown that more women participate in open competitions for A 8 than A7/6.

2. The European Ombudsman's own-initiative inquiry into the use of age limits for recruitment to the Community institutions

2.1. The European Ombudsman had received a series of complaints alleging instances of maladministration in the use of age limits for recruitment of personnel to the Community institutions.

2.2. The inquiries of the Ombudsman into this complaint and into several other complaints against the use of age limits by various Community institutions, led the Ombudsman to conclude that it is appropriate to conduct a more general examination of the use of age limits.

2.3. On the basis of the complaints that the Ombudsman had received, it appeared that the current practice regarding the use of age limits by the institutions caused considerable dissatisfaction among European citizens, in particular, among citizens of the new Member States.

2.4. According to Article 138e of the EC Treaty, the European Ombudsman is empowered to conduct inquiries on his own initiative in relation to possible maladministration in the activities of Community institutions and bodies. By virtue of this provision, the Ombudsman initiated an own-initiative inquiry into the use of age limits in recruitment of officials and other servants of the European Communities on 14 July 1997.

Conclusion

On the basis of the European Ombudsman's inquiries into this complaint and into other complaints against the use of age limits, it appeared justified to open a general inquiry into the use of age limits.

On 14 July 1997, the Ombudsman initiated an own-initiative inquiry into the use of age limits in the recruitment by the Community institutions. The issues raised by this specific complaint will be taken into account in the own initiative inquiry. The Ombudsman therefore closed the case.

3.1.3. THE COUNCIL OF THE EUROPEAN UNION

RECRUITMENT: EXCLUSION FROM A COMPETITION

Decision on complaint 725/16.7.96/GD/FR/KH against the Council

The complaint

Mr D. complained to the Ombudsman in July 1996 about his exclusion from a general competition (C/360) organised by the Council. He had passed the written tests and was invited by letter, posted on 15 May 1996, to take part in the oral examination, to be held in Paris on 10 June 1996. The letter was posted to the address in Marseilles which Mr D. had given to the Council. Mr D. left Marseilles for Brussels on 22 May 1996 and asked his father to forward his mail to him. It was only on the occasion of a telephone call made to his parents on 16 June 1996 that Mr D. heard that a letter from the Council had arrived for him. On receipt of this letter on 20 June 1996, Mr D. learned about the invitation to the oral tests. When he contacted the Council he was told that the selection board had finished its work on 17 June 1996.

By letter of 21 June 1996 Mr D. asked the chairman of the board to organise a supplementary oral examination for him. One reason put forward for this request was that, given the age limit normally applied to candidates, Mr D. would not have another opportunity to participate in a competition organised by the Community institutions. On 25 June 1996, the chairman of the board informed Mr D. in writing that the selection board had terminated its work and that he had been excluded from the competition.

The inquiry

The Council's comments

The complaint was forwarded to the Council. In its comments, the Council made the following points:

If Mr D. had contacted the General Secretariat of the Council early on 17 June 1996, the board could probably still have fitted him in to the oral examination.

However, from the moment when the reserve list was established, the principle of equal opportunity of all candidates prevented the Council from reopening the competition procedures by organising an oral test specially for Mr D.

The complainant's observations

In his observations on the Council's comments, Mr D. maintained his initial complaint.

The decision

The Ombudsman remarked that, following the Council's comments, it would have been possible to respond favourably to the complainant's request if this had been presented in due time. However, as the request had reached the Council after the closure of the competition procedures, accepting it would have implied the reopening of these procedures. In view of these findings, there appeared to be no maladministration and the Ombudsman therefore closed the case.

Further remarks by the Ombudsman

The Ombudsman remarked that given the large number of complaints he had received concerning age limits for recruitment of personnel to the institutions, he had decided to conduct an own initiative-inquiry into this practice.

3.1.4. THE COUNCIL OF THE EUROPEAN UNION AND THE EUROPEAN COMMISSION

DISCRIMINATION IN OPEN COMPETITIONS

Decision on complaint 851/3.9.96/ALC/ES/VK against the European Commission and the Council of the European Union

The complaint

In August 1996, Mr L.C. from Spain complained to the Ombudsman concerning an alleged instance of maladministration by the Commission and Council of the European Union regarding some aspects of their recruitment systems.

The complainant put forward three claims.

1. In his view there was a gap between what was stated in the Commission's booklet published in Spanish 'La carrera en la Comisión de las Comunidades europeas` and the institution's real policy as regards the recruitment of officials.

2. The principle of non-discrimination on the basis of nationality had been breached by the coming into force of Council Regulation (EC) No 626/95 of 20 March 1995 (11) which introduced special and temporary measures that contradicted, in his opinion, the Staff Regulations.

3. The Council and Commission were discriminating on the basis of age, since they normally applied age limits for the recruitment of their officials.

He requested that any age limit be eliminated in any Community open competition, and that the respect to the principle of non-discrimination on the basis of nationality be ensured.

The inquiry

The complaints were forwarded to the Commission and to the Council.

The Commission's comments

Following a previous request by the Ombudsman, the Commission had already forwarded its comments concerning the general question of the application of age limits.

It pointed out that the institutions had applied age limits for recruitment of officials to the Community on the basis of the provisions of the Staff Regulations, Annex III, Article 1. However, since those age limits had been the object of criticism by several Members of the European Parliament, the Commission had undertaken a thorough assessment of the implications of abolishing any age limit. In the Commission's view, the main reasons in support of age limits were the following:

(1) to assure better conditions for a balanced management of human resources;

(2) to promote a geographical balance within the institution's civil servants; and

(3) to support women's applications.

As regards the specifics of Mr L.C.'s complaint, the Commission indicated that the booklet referred to by the complainant did not have any legal value, and it was designed for information purposes. With respect to the alleged infringement of the principle of non-discrimination on the basis of nationality, Council Regulation (EC) No 626/95 introduced special and temporary measures aimed at promoting the recruitment of officials from the new Member States that joined the Union on 1 January 1995. The Commission stressed that the complainant had previously addressed a petition regarding the same subject-matter to the European Parliament (No 898/95). The Committee on Petitions had already examined the petition and decided to close the file in view of the Commission's reply.

The Council's comments

Firstly, the Council underlined that in the implementation of its recruitment policy, the institution must take into account the posts actually available as well as its budgetary restrictions. Secondly, that Council Regulation (EC) No 626/95, which introduced special and temporary measures in order to promote the recruitment of officials from the new Member States, did not breach the principle of non-discrimination on the basis of nationality.

The complainant's observations

Mr L.C. claimed that the possibility of applying age limits as foreseen in Article 1 of Annex III the Staff Regulations, was contrary to the European Convention on Human Rights and the Spanish Constitution. The argument that the career prospects for a newly appointed official of an older age could be limited was irrelevant, because not all of them considered promotion during their careers as their priority. Finally, he believed that a balanced representation of nationals from all Member States could not be achieved merely by limiting access to open competitions on the basis of nationality, but rather by promoting equal access to those competitions for all Union citizens.

The decision

It appeared from the inquiries that had been made that the type of brochure, as well as its presentation and content, showed that its aim was not to create a legal framework defining access to the Union's civil service, but rather to provide general information on the open competitions for the institutions. The Ombudsman concluded that the potential divergence between the existing situation and the general aim of the brochure, could not be considered as an instance of maladministration on the part of the Commission.

As regards discrimination on the basis of nationality, the complainant had addressed a petition to the European Parliament about the same matter, which had been dealt with by the Committee on Petitions as petition No 858/95. The Ombudsman therefore considered that there were no grounds to pursue further inquiries into the matter.

The question of age limits was the subject of an own-initiative inquiry by the Ombudsman launched on 14 July 1997 and the Ombudsman did not therefore consider it necessary to pursue further inquiries into this particular complaint. However, the complainant will be informed of the outcome of the own initiative inquiry.

Against this background, the European Ombudsman closed the case.

RECRUITMENT: ASSESSMENT OF WORK EXPERIENCE AND FAILURE TO REPLY

Decision on complaint 940/11.10.96/AS/SW/BB against the European Commission and the Council of the European Union

The complaint

In October 1996, Ms S. complained to the Ombudsman concerning the assessment of work experience in competition EUR/LA/75 organised by the Commission and the Council's failure to reply to Ms S.'s request to transmit a copy of her corrected examination script in competition Council/LA/369.

Ms S. had been excluded from open competition EUR/LA/75 on the grounds that she lacked the required minimum work experience of 12 years.

Following Ms S.'s request the selection board reviewed its decision, but maintained its original decision. Later, Ms S. wrote again to the selection board claiming that the Board had not specified how they had assessed her work experience. Furthermore, Ms S. pointed out that she was not aware that study periods parallel to work activity were not recognised. Therefore, she had not sent her study merit certificate but only her merit certificate which states the final dates for each subject. Finally, Ms S. had calculated that her study merit certificate indicated that she had the required 12 years of work experience. Ms S. asked for a second review of the selection board's decision.

In January 1996, the board replied that it had again reviewed its decision. The Board referred to point B.3 of the notice and V.B.2, VI.2 and XI of the application form published in Official Journal of the European Communities C 219 A of 24 August 1995 and stated that no exceptions to these rules were allowed.

In her complaint to the Ombudsman Ms S. claimed that the Commission had not indicated the evaluation criteria used in the assessment of work experience. She stressed that in order to treat applicants equally it was necessary for the selection board to provide information on the assessment method.

In February 1996, Ms S. had sent a letter to the Council requesting a copy of her corrected English examination script in relation to competition Council/LA/369. In her complaint to the Ombudsman, she claimed that she never received any reply to her letter.

The inquiry

The complaint was forwarded to the Commission and to the Council.

The Commission's comments

In summary, the Commission made the following points in its comments:

According to the notice of competition, candidates must have at least 12 years of professional experience, after obtaining their university degree.

The notice of competition stipulated that duly attested periods of specialist or refresher training courses will also count as professional experience. In the case of further training courses, they must be on a level at least equivalent to that required for admission to the competition. Consequently, specialist or refresher training courses and further training courses may be taken into account in the calculation of professional experience. However, in order to be counted as experience, the training must be fulltime. The same rule applies to professional experience. In other words, where training takes place during employment, it cannot be counted as additional to the period of professional experience. According to point XI in the notice of competition, photocopies showing that the candidate satisfies the conditions must be attached to the application.

Ms S.'s professional experience was calculated on the basis of her original application and documents. Altogether, her professional experience amounted to 11 years and 6 months.

The text of the notice of competition is legally binding and the selection board must respect it.

The Council's comments

In summary, the Council made the following points in its comments.

In January 1996, Ms S. was informed that she was not admitted to the oral competition because of her negative result in Part 3 of the written test.

In February 1996, Ms S. requested a copy of her corrected script for the written test.The President of the selection board gave a detailed reply to her request, explaining the procedures, but refusing to submit the corrected script.

In October 1996, Ms S. informed the Ombudsman about the Council's refusal to transmit the corrected script.The same day, she wrote to Mr Brunmayr, Deputy Director-General, requesting a reply.

In October 1996, a copy of the letter of 27 February 1996 was again sent to the complainant.

Corrected scripts are covered by the secrecy of the selection board's proceedings provided for in Article 6 of Annex III to the Staff Regulations.

The high number of candidates participating would make it very difficult to consider accepting requests for copies of corrected scripts.

The complainant's observations

In her observations, Ms S. made, in summary the following points:

As to the assessment of work experience, she still considered that the notice of competition did not mention that further training which has taken place during employment could not be counted as additional to the period of professional experience. If the notice had clearly indicated that this was the case, Ms S. claimed that she would have already sent her study merit certificate from the University of Stockholm with her original application for open competition EUR/LA/369.

When she requested a review of the decision to exclude her from the above-mentioned competition, the Commission should have calculated her work experience according to the study merit certificate enclosed with the request for review. Ms S. claimed that taking into account her study merit she fulfilled the required 12 years work experience.

As regards the Council's letter of 27 February 1996, Ms S. stated that she only received a copy of that letter in October 1996.She alleged that the Council never sent the letter in the first place.She maintained her request to get a copy of her corrected script.

The decision

1. Assessment of work experience

1.1. According to the case law of the Court of Justice, selection boards have wide discretionary powers. In the exercise of these powers, Selection Boards must respect the legal framework for their activities, laid down in the notice of competition.

1.2. In its letter of 19 December 1995 and in its comments to the Ombudsman, the Commission informed Ms S. of the selection board's method of assessment of work experience. Furthermore, the comments specified how the complainant's work experience was calculated.

1.3. Based on the Ombudsman's inquiries into this complaint, it appeared that the selection board has acted in accordance with the notice.

2. Failure to reply to correspondence

2.1. The Council provided the Ombudsman with a copy of its letter dated 27 February 1997. In this letter the Council replied that as a rule it did not send copies of corrected examination scripts.

2.2. The Ombudsman found that there was no evidence to support the complainant's allegation that Council never sent the abovementioned letter.

3. Copy of the corrected examination script

3.1. In the present state of Community law, there is no legal basis for considering that the Council is under any obligation to disclose a copy of a corrected examination scripts to an applicant who so requests.

3.2. The Ombudsman has received a number of complaints within the field of recruitment, in particular concerning a lack of transparency in the procedures. Among other things the complainants have complained about being refused copies of corrected examination scripts on request.

3.3. According to Article 138e of the Treaty establishing the European Community, the Ombudsman is empowered to conduct inquiries on his own initiative in relation to possible instances of maladministration in the activities of the Community institutions and bodies. By virtue of this provision, an own-initiative inquiry was opened on 7 November 1997 concerning the secrecy which forms part of the Commission's recruitment procedures.

3.4. As part of this own initiative the Ombudsman will investigate whether the Commission envisages taking measures in order to allow the disclosure of copies of corrected examination scripts to the applicant concerned.

In view of the above findings, there appeared to be no maladministration either by the Commission or by the Council.The Ombudsman therefore closed the case.

Further remarks

In view of the considerable number of complaints that the Ombudsman has received concerning the lack of transparency in procedures for recruitment competitions organised by the Community institutions, he opened an inquiry on his own initiative on this matter on 7 November 1997.

3.1.5. THE EUROPEAN COMMISSION

SELECTION OF TRAINEES: ACCESS TO THE 'BLUE BOOK`

Decision on complaint 111/95/VK against the European Commission

The complaint

In September 1995, X complained to the European Ombudsman that traineeships with the Commission were not awarded on the basis of merit, but through having the right connections to high-ranking persons.

In support of his allegations X referred to his two unsuccessful applications for a traineeship with the Commission. He claimed it was impossible to understand why he entered the so-called 'Blue Book` of the Commission the first time, but not the second time when he was much better qualified.

In accordance with Article 2(3) of the Statute the complaint was classified as confidential at the request of the complainant.

The inquiry

The Commission's comments

The complaint was forwarded to the Commission, which stated in its comments that X met the necessary requirements for admissibility according to the regulations for traineeships. However, due to the high number of applications received each year, it was necessary to carry out a preselection test on the basis of the actual study results of the candidates and on possible studies undertaken in European integration or in the field of Community law.

The Commission stated that on the grounds of the excellent profile of his curriculum vitae, X had been able to enter the Blue Book and only later failed to meet the requirements. Furthermore, the Commission emphasised that, in principle, geographical balance and the amount of applications each year needed to be taken into account.

The complainant's observations

The Commission's comments were sent to the complainant who maintained his complaint. The complainant added that only a recommendation from a high ranking person helped him to enter the supplementary list of the Blue Book the second time he applied.

Further inquiries

The Ombudsman requested information from the Commission in relation to the procedure of registration in the Blue Book. In addition, the Ombudsman asked for copies of the application forms of the other candidates of the same nationality as X in order to assess their qualification profile.

The Commission submitted additional comments as well as copies of the application forms of the other candidates of the same nationality as X. The Commission pointed out that the supplementary list was used for further assessment of applications and served for correction purposes in technical or printing errors.

The decision

The Ombudsman observed that the criteria applied for the selection of trainees as communicated to him by the Commission did not appear to be unfounded.

It had to be recalled that an administrative authority enjoyed a margin of appreciation in determining whether a concrete application fulfilled the criteria set out for a vacancy.

From the Ombudsman's examination of the applications of other candidates of the same nationality as X, it did not appear that the Commission had disregarded the criteria that it had laid down.

X contended that he had been placed on the supplementary list of the Blue Book because of the recommendation of a high ranking person. Given the lack of any indication as to the identity of this person and of the person or persons on whom influence was allegedly exerted, there were no grounds for further inquiries into this claim.

The Ombudsman therefore closed the case.

REFUSAL TO ACCEPT AN EUR 1 CERTIFICATE FROM CÖTE D'IVOIRE

Decision on complaint 187/17.10.95/FS/B/IJH against the European Commission

The complaint

Mr S. complained to the Ombudsman in October 1995 on behalf of a company called B. NV. The complaint stated that B. NV purchased a quantity of long-grain rice from the Côte d'Ivoire, through a UK trading agent, for importation into the Community in April 1994. Rice originating in Cöte d'ivoire, a Lomé Convention country, is subject to reduced import duty.

B. NV submitted an EUR 1 certificate to the Belgian customs authorities as proof of the rice's origin. The customs authorities, however, suspected that the rice was not of Côte d'Ivoire origin and refused to accept the certificate. To obtain release of the rice, B. NV provided the customs authorities with a guarantee for 10 % of the additional customs duties payable if the rice did not originate in Cöte d'ivoire.

The Belgian customs authorities took samples of the rice for testing and initiated the procedure for subsequent verification of the EUR 1 certificate. In March 1995, B. NV was informed that the Côte d'Ivoire Government had confirmed the validity of the EUR 1 certificate. B. NV then requested release of the guarantee that it had given. By letter of 28 July 1995, the Belgian customs authorities informed B. NV that the Community anti-fraud section refused to release the guarantee and wanted to investigate further.

In his complaint to the Ombudsman. Mr S. claimed that, because the verification procedure had been completed, the guarantee given by B. NV should be released. He claimed that any doubts about the issuing of EUR 1 certificates by the Côte d'Ivoire should be a matter between the Community authorities and the Cöte d'Ivoire Government.

The inquiry

The Commission's comments

The complaint was forwarded to the Commission in January 1996. In its comments, the Commission referred to the reasons why the Belgian customs authorities and the Commission's services suspected that the rice did not originate in Côte d'Ivoire. In summary, the comments also made the following points.

Although the reply from the Côte d'Ivoire confirmed the authenticity of the certificate and the origin of the goods, previous experience has shown that verification by the Cöte d'Ivoire authorities cannot always be relied on and is often a question of verifying the existence of the certificate and not the origin of the goods.

In accordance with Article 26 of Protocol No 1 of the Lomé Convention, the Commission requested the Côte d'Ivoire authorities to make an enquiry regarding the rice and offered to send a Community mission to assist. The request was made on 22 June 1995 and repeated on 12 September 1995.

As subsequent correspondence did not bring an answer to the questions raised the Commission services brought the matter before the EC-ACP Customs Cooperation Committee.

While there was no evidence to show B. NV's involvement in fraud, serious concerns remained as to the validity of the EUR 1 certificate.

A dialogue had been entered into with the Côte d'Ivoire authorities who had requested and been supplied with further information.

The comments concluded by expressing the hope that the dialogue would lead to a settlement of the matter in the near future.

The complainant's observations

The Commission's comments were forwarded to Mr S. in April 1996. His observations contested the evidence concerning the validity of the EUR 1 certificate and claimed that there could be no 'reasonable doubts` to justify the subsequent verification and precautionary measures under the Lomé Convention.

The observations also raised a new issue concerning alleged delay by the Belgian customs authorities in forwarding the EUR 1 certificate to the Côte d'Ivoire authorities for verification.

Further inquiries

In March 1997, the European Ombudsman again wrote to the Commission to enquire whether the dialogue with the Côte d'Ivoire authorities had reached a conclusion and, if not, what other steps the Commission proposed to take to resolve the matter.

In its reply, the Commission gave details of its further attempts to resolve the issue. In particular, it referred to a further request for cooperation at the ACP-EC Customs Cooperation Committee in May 1996 and to an administrative co-operation mission in November 1996.

According to the reply, there was still disagreement between the Community delegation (which included representatives of the Commission and of the Belgian customs authorities) and the Côte d'Ivoire authorities as to the relevant facts.

The reply concluded as follows.

The Commission has been informed that the Belgian authorities have increased the deposit paid by B. NV (the 10 % difference between the preferential import rate and the non-preferential rate was increased to 100 %).

It is for the appropriate Belgian authorities to draw its conclusions from this matter. The Belgian Government is currently unable to notify the importer (B. NV) of the customs debt in the absence of irrefutable proof that the rice did not originate in Côte d'Ivoire.

The Commission can only emphasise once again that it exercises its powers scrupulously to protect the financial interests of the Union as effectively as possible (going beyond own resources losses, there is the aspect of application of agreements with ACP countries). However, it regrets that, contrary to the hopes engendered by the meeting of 3 April 1996, the level of cooperation shown by the Côte d'Ivoire authorities was inadequate, as the circumstances described above show.

The decision

1. Preliminary remarks

1.1. The implementation of Community customs law and carrying out of the relevant administrative procedures are the responsibility of national customs authorities. Although they implement Community law, national customs authorities are not Community institutions or bodies and their activities cannot be the subject of inquiry by the European Ombudsman.

1.2. The Ombudsman was not competent, therefore, to deal with the complaint insofar as it related to the administrative activities of the Belgian customs authorities. In particular, the Ombudsman could not inquire into the allegation, made in the complainant's observations on the Commission's comments, of undue delay by the Belgian customs authorities in forwarding the EUR 1 certificate to the Côte d'Ivoire authorities for verification.

1.3. In examining whether there has been maladministration in the activities of the European Commission, the Ombudsman cannot determine the substantive dispute over the origin of the rice. This question could be determined by a court of competent jurisdiction, which would have the possibility to hear testimony and evaluate conflicting scientific evidence.

2. The role of the Commission

2.1. From the Commission's replies, it appeared that its competences in relation to this case derive from two sources:

- its participation in the Customs Cooperation Committee, established by Article 30 of Protocol 1 of the Lomé Convention (12), which deals with disputes under Articles 26(7) and 27(7) of the Protocol,

- its responsibility, in the execution of the Community budget, to ensure proper accounting for customs duties (which are a Community resource) that are payable.

3. The Commission and the Côte d'Ivoire authorities

3.1. The evidence available to the Ombudsman was that the Commission had:

- requested that the Côte d'Ivoire authorities make appropriate inquiries in accordance with Article 26 of Protocol 1 of the Convention,

- requested, and participated, in an administrative cooperation mission to the Côte d'Ivoire,

- brought the matter before successive meetings of the ACP-EC Customs Cooperation Committee.

3.2. According to the Commission's evidence, the failure of the above activities to resolve the matter resulted from lack of cooperation by the Côte d'Ivoire authorities.

3.3. The Commission therefore appeared to have used fully its possibilities of action under the provisions of the Lomé Convention in relation to this dispute.

4. The Commission and the Belgian customs authorities

4.1. In its comments, the Commission did not contradict the allegation that the Commission services refused to release the guarantee paid by B. NV. On the basis of the limited evidence available, it appeared likely that, in practice, the Commission services played a decisive role.

4.2. In fulfilment of its responsibilities for execution of the Community budget, the Commission has an obligation, repeatedly emphasised by reports of the Court of Auditors, to protect the financial interests of the Community.

4.3. From the Commission's replies in this case, it appeared that its doubts concerning the origin of the rice were based on evidence and therefore constituted 'reasonable doubts` in the sense of Article 26 of Protocol 1 of the Lomé Convention.

4.4. In these circumstances, the lack of progress in resolving the dispute, resulting from the Commission continuing to doubt that the rice is of Côte d'Ivoire origin, did not appear to constitute maladministration in the form of avoidable delay.

In view of these findings, there appeared to be no maladministration. The Ombudsman also noted that the complainant still had the possibility himself to submit the dispute concerning the origin of the rice to a competent judicial authority in proceedings against the national customs authorities. The Ombudsman therefore closed the case

RECRUITMENT: ORAL SELECTION PROCEDURE

Decision on complaint 252/22.11.95/TMF/VK against the European Commission

The complaint

In his complaint to the Ombudsman in November 1995, Mr R. alleged that he was given the impression that he had passed the oral selection procedure organised by DG XII of the Commission in view of the behaviour of the selection board. According to him, the members of the selection board questioned him on his future work and congratulated him and shook hands with him after the interview. Furthermore, he alleged that the Commission did not want to disclose the names of the members of the selection board.

The inquiry

The Commission's comments

The complaint was forwarded to the Commission in February 1996. In its comments, the Commission stated that it had questioned the secretary of the selection board. According to her, no indication had been given to the candidate that he had been successful, nor had he been congratulated. Furthermore, the Commission emphasised that members of selection boards are briefed on how to behave and that they should not give any indication or reaction in relation to the candidates's performance. This is supervised by the secretary of the selection board.

In his observations on the Commission's comments Mr R. maintained his complaint.

The decision

According to the complainant, he was asked questions in relation to the post and the actual work involved. The content of these questions is not disputed by the Commission. It seems natural for the future employer to ask such questions in order to assess the candidate, for example on how a candidate would react in certain work situations. Therefore, the content of the questions does not appear to constitute an indication that the candidate has been chosen for the post.

Mr R. claims that he was congratulated by members of the selection board. This factual issue remains in dispute between the parties. A handshake at the end of an interview can be understood as a gesture of politeness, rather than of congratulation.

In the present state of Community law, a refusal to disclose the names of members of a selection board does not appear to be unlawful.

In view of these findings, there appeared to be no maladministration and the Ombudsman therefore closed the case.

FREEDOM OF MOVEMENT: HANDLING OF COMPLAINTS LODGED WITH THE COMMISSION

Decision on complaint 259/27.11.95/PL/UK/PD against the European Commission

The complaint

On 20 November 1995, Mr L. complained to the Ombudsman on behalf of the B. brothers and as the representative of the National Council for Civil Liberties (Liberty). The complaint alleged maladministration in the handling of two complaints lodged with the European Commission.

The background to the complaint

In November 1990, two Welsh brothers, G.B. and R. B., travelled by train to Belgium to see Wales play a football match. The brothers were taken out of the train at the Belgium - Luxembourg border by the Belgian police and their identity was recorded and photographs were taken. This information was later transmitted to the UK National Criminal Intelligence Service (NCIS) and recorded on a computer list.

In November 1992, the recorded information was passed on to the Belgian police on the occasion of another football