The European Ombudsman - Annual Report for 1997
Date: 1998-04-20
Institutions: European Ombudsman
Subjects: European Ombudsman, activity report

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/1

I

(Information)

THE  EUROPEAN  OMBUDSMAN

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

C  380/2

EN

Official  Journal  of  the  European  Communities

7.12.98

CONTENTS

1.  FOREWORD  BY  THE  EUROPEAN  OMBUDSMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.  COMPLAINTS  TO  THE  OMBUDSMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.1.  The  legal  basis  of  the  Ombudsman’s  work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.2.  How  complaints  are  dealt  with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.2.1.  The  mandate  of  the  European  Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.2.2.  Admissibility  of  complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.2.3.  Grounds  for  inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.3.  Analysis  of  the  complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.4.  Advice  to  contact  other  agencies  and  transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.5.  Decisions  following  an  inquiry  by  the  Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.  DECISIONS  FOLLOWING  AN  INQUIRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1.  Cases  where  no  maladministration  was  found . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1.1.  The  European  Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Decision  on  non-active  status  under  Article  41  of  the  Staff  Regulations . . . . . . . . . . . . . .

Handling  of  a  complaint

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 . . . . . . . . . . . . . . . . . . .

3.1.3.  The  Council  of  the  European  Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  exclusion  from  a  competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1.4.  The  Council  of  the  European  Union  and  the  European  Commission . . . . . . . . . . . . . . . .

Discrimination  in  open  competitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  assessment  of  work  experience  and  failure  to  reply . . . . . . . . . . . . . . . . . . .

3.1.5.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Selection  of  trainees:  access  to  the  ‘Blue  Book’

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Refusal  to  accept  an  EUR  1  certificate  from  Cöte  d’Ivoire . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  oral  selection  procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Freedom  of  movement:  handling  of  complaints  lodged  with  the  Commission . . . . . . . . .

Recruitment  of  a  temporary  agent

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Termination  of  a  contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation  of  Commission  Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rights  of  free  movement  for  persons  on  pre-retirement  pensions

. . . . . . . . . . . . . . . . . . .

Recruitment:  level  of  qualification  required  to  take  part  in  a  competition . . . . . . . . . . . .

Invitation  to  tender:  procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Termination  of  a  PHARE  subcontract:  responsibilities  of  the  Commission . . . . . . . . . . . .

Refusal  of  access  to  a  document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alleged  delay  in  payment  of  a  subvention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Handling  of  a  request  for  information  by  a  Commission  representation . . . . . . . . . . . . . .

Contract  for  technical  assistance  in  Algeria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Non-recognition  of  a  third-Country  diploma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Page

6

9

9

10

10

15

16

16

17

17

19

19

19

19

20

21

21

23

23

24

24

25

27

27

28

31

31

35

37

38

40

41

43

44

46

47

50

51

53

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/3

Recognition  of  a  diploma:  Handling  of  a  complaint  with  the  Commission . . . . . . . . . . .

Financing  of  a  project  under  the  MED-URBS  programme . . . . . . . . . . . . . . . . . . . . . . . . .

Treatment  by  a  Commission  representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment  of  temporary  agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Radionavigation  systems  in  Europe:  lack  of  implementation . . . . . . . . . . . . . . . . . . . . . . .

Agriculture:  tender  for  the  supply  of  rye  flour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeal  against  a  decision  not  to  prolong  an  interuniversity  programme . . . . . . . . . . . . . .

Staff:  additional  salary  payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Development:  application  for  funding  under  the  budget  heading  for  tropical  forests . . . .

Alleged  failure  to  respond  to  a  complaint

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff:  reimbursement  by  the  administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  rights  of  a  person  on  a  reserve  list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure  to  promote  a  Commission  official

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff:  freedom  of  expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Car  imports  into  another  Member  State:  handling  of  complaints  lodged  with  the
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  exclusion  from  an  open  competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Handling  of  a  complaint  lodged  with  the  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VAT  exemption  on  services  provided  to  a  Commission  contractor . . . . . . . . . . . . . . . . . .

Recruitment:  expiry  of  reserve  list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Taxation  of  remuneration  paid  to  experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Selection  of  contractors  in  call  for  tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contested  recruitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Unsuccessful  application  under  the  Copernicus  programme . . . . . . . . . . . . . . . . . . . . . . . .

The  Commission’s  inquiry  into  the  annual  tax  on  Italian  passports . . . . . . . . . . . . . . . . .

Rejection  of  a  call  for  tender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedures  for  the  adjudication  of  a  call  for  tenders  in  Pakistan . . . . . . . . . . . . . . . . . . . .

Contested  grading  of  an  official

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Admission  to  competition  refused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1.6.  The  Court  of  Justice  of  the  European  Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  criteria  for  the  selection  of  candidates  in  an  open  competition . . . . . . . . . .

3.2.  Cases  dropped  by  the  complainant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.2.1.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delay  in  replying  to  complainants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  wong  information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Anti-dumping  duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Research:  refusal  of  information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.  Cases  closed  for  other  reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1.  The  European  Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dismissal  by  the  Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Page

55

57

58

58

59

60

61

62

63

64

64

65

66

68

70

71

72

73

74

75

76

77

79

79

80

82

83

85

86

86

88

88

88

88

88

88

89

89

89

C  380/4

EN

Official  Journal  of  the  European  Communities

7.12.98

3.3.2.  The  European  Parliament  and  the  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . .

89

Page

Withholding  of  Community  tax  by  the  European  Commission  and  the  European
Parliament  to  freelance  interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.3.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Lack  of  recognition  of  medical  degrees  in  public  health  by  the  Spanish  authorities . . . . .

Alleged  discrimination  in  an  internal  competetion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff:  pension  rights  of  a  local  agent

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.4.  The  Court  of  Auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Admissibility:  time  limit  exceeded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.4.  Cases  settled  by  the  institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.4.1.  The  European  Parliament

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment: language discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exclusion  from  an  invitation  to  tender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amounts  paid  to  trainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ackowledgement  of  a  petition  to  the  European  Parliament . . . . . . . . . . . . . . . . . . . . . . . .

3.4.2.  The  Council  of  the  European  Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conservation  of  draft  agendas  of  the  Council  of  Justice  and  Home  Affairs  Ministers . . .

3.4.3.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure  to  reply  to  correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure  to  reply  to  letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Handling  of  a  complaint  on  barriers  to  social  security  payments

. . . . . . . . . . . . . . . . . . .

Disclosure  of  documents  concerning  infringement  procedures . . . . . . . . . . . . . . . . . . . . . .

Failure  to  reply  to  letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Free  movement  of  persons:  handling  of  complaint  to  Commission . . . . . . . . . . . . . . . . . .

Request  for  information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Failure  to  reply  to  a  letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.4.4.  The  European  Agency  for  the  Evaluation  of  Medicinal  Products  (EMEA) . . . . . . . . . . . .

Registration  of  veterinary  drugs  on  the  list  of  the  EMEA . . . . . . . . . . . . . . . . . . . . . . . . .

3.5. 

Friendly  solutions  achieved  by  the  European  Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.1.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment:  publication  of  the  names  and  marks  of  successful  candidates  in  a
competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

89

89

89

90

90

91

91

91

91

91

91

92

92

93

93

94

94

95

96

96

97

98

98

99

99

99

99

99

99

Delay  in  payment  of  salary  and  settling  of  travel  costs . . . . . . . . . . . . . . . . . . . . . . . . . . . .

102

Late  payment  of  translation  services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103

3.6.  Cases  closed  with  a  critical  remark  by  the  Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . .

104

3.6.1.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

104

Failure  to  carry  out  sufficient  checks  before  appointing  a  BRE  representative . . . . . . . . .

104

Measures  taken  by  the  Commission  to  assist  Portuguese  customs  agents  after  entry  into
force  of  the  internal  market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

107

Recruitment:  unreasonable  and  disproportionate  measures  against  a  candidate . . . . . . . .

109

Failure  to  take  adequate  steps  to  inform  external  staff  of  their  position . . . . . . . . . . . . . .

111

Responsibility  for  Community-financed  projects:  the  LIFE  programme . . . . . . . . . . . . . . .

113

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/5

Page

Late  payment  of  fees  and  expenses  and  failure  to  answer  correspondence . . . . . . . . . . . .

114

Alleged  infringement  of  Directive:  handling  of  complaints  lodged  with  the  Commission .

116

Commission’s  responsibility  for  intermediary  organisations . . . . . . . . . . . . . . . . . . . . . . . .

117

Recruitment:  criteria  of  evaluation  and  disclosure  of  names  of  correctors . . . . . . . . . . . .

120

Recruitment:  procedures  in  an  open  competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

122

Recruitment:  information  of  applicant

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

124

Refusal  of  public  access  to  documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

125

Recruitment:  appeal  against  decision  of  a  selection  board . . . . . . . . . . . . . . . . . . . . . . . . .

126

Recognition  of  diploma:  complaint  not  properly  considered . . . . . . . . . . . . . . . . . . . . . . . .

127

Selection  of  a  consultant  to  carry  out  a  TACIS  project

. . . . . . . . . . . . . . . . . . . . . . . . . . .

129

Staff:  incorrect  classification  of  an  expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

131

Failure  to  respect  medical  secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

132

Lack  of  transparency  in  the  running  of  a  competition . . . . . . . . . . . . . . . . . . . . . . . . . . . .

134

Criticism  of  the  running  of  a  competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

136

Reimbursement  of  medical  costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

139

3.7.  Own  initiative  inquiries  by  the  ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

139

Running  of  a  competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

139

The  Commission’s  administrative  procedures  for  Member  States’ 
infringement  of
Community  law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.  RELATIONS  WITH  THE  EUROPEAN  PARLIAMENT,  THE  EUROPEAN  COMMISSION
AND  THE  COUNCIL  OF  THE  EUROPEAN  UNION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

140

143

4.1.  The  European  Parliament  and  the  Committee  on  Petitions . . . . . . . . . . . . . . . . . . . . . . . .

143

4.2.  The  European  Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

144

4.3.  The  Council  of  the  European  Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

145

5.  RELATIONS  WITH  THE  NATIONAL  OMBUDSMEN  AND  SIMILAR  BODIES . . . . . . . . . . .

146

5.1.  The  liaison  network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

146

5.2.  Cooperation  in  dealing  with  complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

146

5.3.  Cooperation  with  regional  ombudsmen  and  similar  bodies . . . . . . . . . . . . . . . . . . . . . . . .

147

5.4.  Meeting  of  the  European  national  ombudsmen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

147

6.  PUBLIC  RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

148

6.1.  Highlights  of  the  year  1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

148

6.2.  Conferences  and  meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

149

6.3.  Other  events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

154

6.4. 

Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

156

6.5.  Media  relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

156

ANNEXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

158

A. 

B. 

C. 

Statistics  concerning  the  work  of  the  European  Ombudsman  in  1997 . . . . . . . . . . . . . . .

158

The  Ombudsmans  budget

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

161

The  personnel  of  the  Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

162

C  380/6

EN

Official  Journal  of  the  European  Communities

7.12.98

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 
in  Lisbon  and  the  office  of  the  Portuguese  national
Ombudsman.

information  office 

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.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/7

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.

C  380/8

EN

Official  Journal  of  the  European  Communities

7.12.98

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

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/9

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 
the
to 
through  complaints  made  by
Ombudsman  mainly 
European  citizens.  The  Ombudsman  can  also  conduct
inquiries  on  his  own  initiative.

the  attention  of 

can  make  a 

Any  European  citizen,  or  any  non-citizen  living  in  a
Member  State, 
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 
the  European
through  a  Member  of 
Parliament.

complaint 

to 

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 
the  European
Parliament.  227  cases  were  brought  forward  from  the
year  1996.  The  Ombudsman  also  began 
four
own-initiative inquiries.

transmitted  by  Members  of 

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 
(See  Annex  A,
Statistics,  p.  310)

the  European  Parliament. 

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
implementing
European  Ombudsman’s  office, 
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.

the 

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.

they  should 

The  implementing  provisions  deal  with  the  internal
operation  of  the  Ombudsman’s  office.  However  in  order
that  will  be
that 
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.

form  a  document 

the  rules  governing  public  access 

Article  13  of  the  implementing  provisions  revises  and
consolidates 
to
the  European  Ombudsman.
documents  held  by 
Previously  the  rules  on  access  to  complaints-related
documents  were  contained 
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.

in 

During 1997 the Parliament’s Committee on the Rules of
Procedure  proposed 
to  Rule  161
(rapporteur,  Mr  Brian  Crowley).  The  Ombudsman
attended a meeting of the Committee on 24 September at

amendments 

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

(1)  European  Parliament  Decision  94/262  ECSC,  EC,  Euratom
of  9  March  1994  on  the  regulations  and  general  conditions
governing  the  performance  of  the  Ombudsman’s  duties  (OJ
1994,  L  113,  4.5.1994,  p.  15).

C  380/10

EN

Official  Journal  of  the  European  Communities

7.12.98

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.

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)

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 
the  United  States
complained  to  the  Ombudsman  concerning  the  handling

residing 

in 

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

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/11

financial 

unions, 
research
centres, firms and similar local interests. The Commission
is  not  represented  on  their  governing  bodies.

institutions,  universities, 

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)

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).

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.

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.

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;
Italy, 
Austria,  Denmark,  France,  Germany, 
the
the  United
Netherlands,  Sweden,  Switzerland  and 
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)

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 (1).

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
documents.  The  requests  had  been  made  under  the
to  Council
Council  Decision  on  public  access 

to  requests 

for  access 

(1)  One  of  the  complaints  from  Mr  Bunyan  was  closed  in  1997
as  settled  by  the  institution  (see  the  summary  in  chapter  3,
point  3.4.2,  entitled  ‘Conservation  of  draft  agendas  of  the
Council  of  Justice  and  Home  Affairs  Ministers’.  At  the  end
of  1997,  the  Ombudsman’s  inquiries  into  the  other  five
complaints  were  still  continuing.

C  380/12

EN

Official  Journal  of  the  European  Communities

7.12.98

documents (1)  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 (2), 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 (3).  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

the  European  Parliament 

In its resolution on the Ombudsman’s Annual Report for
1996, 
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.

encouraged 

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

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 
maladministration, including:

things  may 

other 

also 

amount 

to

— administrative irregularities

— administrative omissions

— abuse  of  power

— negligence

— unlawful  procedures

— unfairness

— malfunction  or  incompetence

— discrimination

— avoidable delay

— lack  or  refusal  of  information.

list 

is  not 

This 
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 
that
distinguishes  the  role  of  the  Ombudsman  from  that  of
a judge.

is  one  of 

things 

term 

the 

the 

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’.

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.

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.

(1)  Decision  93/731/EC  (OJ  L  340,  31.12.1993,  p.  43).
(2)  Case  C-58/94,  judgment  of  30  April  1996.
(3)  Case  T-194/94,  judgment  of  19  October  1995.

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

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/13

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.

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.

Two  comments  concerning  this  definition  are  necessary.

the 

concerned 

legislation 

limits  his 

establishing 

First,  the  mandate  of  some  ombudsmen  is  expressly
limited  by  the  national  law  establishing  the  office.  For
the  UK
example, 
Parliamentary Commissioner for Administration provides
that  he  shall  not  normally  investigate  complaints  where
there  is  a  possible  judicial  remedy (1).  Naturally,  the
into
Ombudsman 
‘maladministration’ 
such
restrictions  are  not  part  of  the  normal  meaning  of  the
term 
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 (2).

‘maladministration’,  otherwise 

accordingly.  However, 

inquiries 

Secondly,  the  specific  rules  and  principles  which  are
the
binding  on  public  bodies  vary  according 
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.

to 

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

(1)  Parliamentary  Commissioner  Act  1967,  section  5(2)
(2)  ‘The  administration  and  you:  a  handbook’,  1996  p.  44.

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

C  380/14

EN

Official  Journal  of  the  European  Communities

7.12.98

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 (1)  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.

initiatives  should  be  warmly  welcomed.  A
These 
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 
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  Finnish 

contains 

The Ombudsman also forwarded to the Secretary-General
the  Portuguese  code  of  administrative
copies  of: 
procedures  of  1991;  the  recent  French  draft 
law
concerning  relations  between  the  administration  and  the
public,  which 
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.

provisions 

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 
the
Commission  cannot,  therefore,  be  required  to  bring  an
infringement  before  the  Court  of  Justice.

is  a  discretionary  power  and 

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 
such  authority  are
limits  on 
established  by  the  jurisprudence  of  the  Court  of  Justice
that  administrative
which 
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 (2).

example, 

requires, 

for 

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

(1)  Also  relevant 

in 

this  context 

is  Council  of  Europe
Recommendation  No  R 
that  an
administrative  authority,  when  exercising  a  discretionary
power:
1.  does  not  pursue  a  purpose  other  than  that  for  which  the

(80)2  which  states 

The  limits  of  maladministration

To  conclude  this  section  of  the  report,  it  may  be  helpful
to  clarify  the  limits  of  maladministration  in  relation  first

(2)  A4-0190/97.

power  has  been  conferred;

2.  observes  objectivity  and  impartiality,  taking  into  account

only  the  factors  relevant  to  the  particular  case;

3.  observes  the  principle  of  equality  before  the  law  by

avoiding unfair discrimination;

4.  maintains  a  proper  balance  between  any  adverse  effects
which  its  decision  may  have  on  the  rights,  liberties  or
interests  of  persons  and  the  purpose  which  it  pursues;
5.  takes  its  decision  within  a  time  which  is  reasonable

having  regard  to  the  matter  at  stake;

6.  applies  any  general  administrative  guidelines 

in  a
consistent  manner  while  at  the  same  time  taking  account
of  the  particular  circumstances  of  each  case.

See  ‘The  administration  and  you:  a  handbook’,  1996  p.
362.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/15

therefore 

Applying 

Parliaments. 

Parliament.  Ombudsmen  in  other  Member  States  also
appear  not  to  supervise  the  political  work  of  their
respective 
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 
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.

complaints 

number 

of 

a 

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.

2.2.2  ADMISSIBILITY  OF  COMPLAINTS

(Complaint  937/97/OV)

that 

is  within 

A  complaint 
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:

the  mandate  of 

(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
the

appropriate 
approaches 
administrative 
institution  or  body  concerned  (Article  2(4))

to 

(5) in 

the 

case  of 

concerning  work
complaints 
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. 
in
international  and  Community  law  complained  to  the
Ombudsman  against  the  European  Commission.

researcher 

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
the
tender  process. 

it  was  dissatisfied  with 

If 

C  380/16

EN

Official  Journal  of  the  European  Communities

7.12.98

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
inquiries.  If  the
informal  telephone 
matter  through 
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 (1) 
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
the  Ombudsman
temporary  committee  of 
considered that there were no grounds for him to inquire
into 
informed
complaint  and  Ms  V.  was 
accordingly.

inquiry, 

the 

(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
(42  cases),
(60  cases),  discrimination 
transparency 
unsatisfactory  procedures  or  failure  to  respect  rights  of

(1)  A4-0020/97,  PE  220.544/fin./A.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/17

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).

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.

2.4.  ADVICE  TO  CONTACT  OTHER  AGENCIES  AND

TRANSFERS

tries 

to  give  advice 

If a complaint is outside the mandate or inadmissible, the
Ombudsman  always 
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.

to 

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
the  Commission  was  declared
complaint  against 
inadmissible 
administrative
approaches had not been made to the Commission. In 73
cases  the  complainant  was  advised  to  contact  other
agencies.

appropriate 

because 

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  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 
finding  of
maladministration  with  draft  recommendations.

formal 

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.

that 

have 

(that 
or 

In cases where follow-up action by the Ombudsman does
is,  more  serious  cases  of
appear  necessary 
maladministration, 
general
cases 
implications),  the  Ombudsman  makes  a  decision  with
institution  or  body
to 
draft  recommendations 
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.

the 

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 
important  matters  when
Parliament  can  take  action  to  assist  the  Ombudsman  in
accordance  with  the  Statute  of  the  Ombudsman.

in  relation 

to 

C  380/18

EN

Official  Journal  of  the  European  Communities

7.12.98

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

inquiry 

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.

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

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).

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/19

3.  DECISIONS  FOLLOWING  AN  INQUIRY

3.1.  CASES  WHERE  NO  MALADMINISTRATION  WAS

FOUND

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.

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

the  decision  of 

On  27  February  1996,  Mrs  G.  complained  to  the
Ombudsman  about 
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 
internal  administrative
remedies  had  not  been  exhausted  (Article  2(8)  of  the
Statute  of  the  Ombudsman).

inadmissible  because 

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 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.

learned  that  the  wording  of 

When  Parliament 
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  Parliament’s  comments

The  decision

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

forwarded 

to 

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
intentions  either  to  her  service  or  to  the
in  her 

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
list  shall  be  assigned
whose  name  appear  on  this 
non-active 
the  appointing
authority.

status  by  decision  of 

C  380/20

EN

Official  Journal  of  the  European  Communities

7.12.98

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.

—  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.

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

the  kindergarten  as  well  as 

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  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 
the
situation,

if  he  was  not  satisfied  with 

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 
the  European
Parliament.  In  summary,  the  Parliament’s  comments  are
as  follows:

forwarded 

to 

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 
threats  was
unfounded.  There  was  no  obstacle  to  admitting  X’s
future  baby  to  the  kindergarten.

intimidation  and 

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
The  matter  was  being  dealt  with  between 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/21

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.

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.

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

that 

the  allegation 

Concerning 
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 
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.

the  demand 

transfer 

for 

to 

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

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 
infringe  principles  of  good
administration.

to 

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
the  European  Parliament.  The
kindergarten  of 
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 
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.

to 

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.

C  380/22

EN

Official  Journal  of  the  European  Communities

7.12.98

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

become  more  cumbersome,  and  expensive  and  there
would  be  no  concomitant  increase  in  the  number  of
posts  to  be  filled.

The  inquiry

The  Court  of  Auditors’  comments

The  complaint  was  forwarded  to  the  institutions  and
bodies  concerned.

The  Commission’s  comments

The  Court  of  Auditors  associated 
Commission’s  comments 
1997.

the
transmitted  on  19  March

itself  with 

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.

The  Committee  of  Regions  and  the  Economic  and
Social  Committee

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

The  decision

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,
in  open
limit  may  be  set  for  candidates 
an  age 
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 

in  a  multicultural  and
multilinguistic  environment  far  away  from  home
increase  with  age

settling 

(c)  administrative  and  financial  problems  would  increase
if  age  limits  were  abolished,  as  recruitment  would

1. 

limits  in  the  recruitment  policy  of  the

Age 
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  officieals
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.

respect  of 

1.3.  The  institutions  consider  age  limits  as  important
instruments  in  assuring  a  career  civil  service  and
statutory  obligations.  The
the 
institutions 
recruiting
follow  a  principle  of 
personnel on the basic grade, therefore, changes to
this  principle  might  have  negative  effects  on
motivation  and  good  management.  According  to

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/23

the  Commission,  research  shows  that  the  higher
the age limit, the clearer the geographic imbalance.
Furthermore, 
that
the  Commission 
experience has shown that more women participate
in  open  competitions  for  A  8  than  A7/6.

claimed 

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

2. 

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

The  complaint

complaints 

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

instances 

alleging 

to 

2.2.  The 

inquiries  of 

the  Ombudsman 

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.

into 

2.3.  On 

the  basis  of 

the  complaints 

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.

that 

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, 
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.

the  Ombudsman 

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  postet  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 
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.

competition  organised  by 

The  inquiry

Conclusion

The  Council’s  comments

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.

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.

the  Ombudsman 

On  14  July  1997, 
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.

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.

C  380/24

EN

Official  Journal  of  the  European  Communities

7.12.98

The  complainant’s  observations

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

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.

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

it  would  have 

implied 

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

concerning 

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

alleged 

an 

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’
institution’s  real  policy  as  regards  the
and  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 (1)  which 
special  and

introduced 

(1)  OJ  66,  24.3.1995,  p.1.

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 
its  comments
concerning  the  general  question  of  the  application  of  age
limits.

forwarded 

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 
management  of  human  resources;

for  a  balanced

(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 
of
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

infringement 

principle 

the 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/25

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,
instance  of
considered 
could  not  be 
maladministration  on  the  part  of  the  Commission.

an 

as 

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

the  assessment  of  work  experience 

In  October  1996,  Ms  S.  complained  to  the  Ombudsman
in
concerning 
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.

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

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
the  European
published 

in  Official 

Journal  of 

C  380/26

EN

Official  Journal  of  the  European  Communities

7.12.98

Communities C 219 A of 24 August 1995 and stated that
no  exceptions  to  these  rules  were  allowed.

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

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  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.

The  Commission’s  comments

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

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.

to 

to 

that  required 

for  admission 

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 
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.

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
the
her 

the  above-mentioned 

competition, 

from 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/27

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.

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.

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 
their
legal 
activities,  laid  down  in  the  notice  of  competition.

framework 

the 

for 

3.3.  According 

to  Article  138e  of 

the  European  Community, 

the  Treaty
establishing 
the
Ombudsman is empowered to conduct inquiries on
his  own  initiative  in  relation  to  possible  instances
in  the  activities  of  the
of  maladministration 
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.

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.

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.

2. 

Failure  to  reply  to  correspondence

3.1.5.  THE  EUROPEAN  COMMISSION

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.

SELECTION  OF  TRAINEES:  ACCESS  TO  THE  ‘BLUE
BOOK’

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

2.2.  The Ombudsman found that there was no evidence
that

to  support 
the  complainant’s  allegation 
Council  never  sent  the  abovementioned  letter.

The  complaint

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

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.

C  380/28

EN

Official  Journal  of  the  European  Communities

7.12.98

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

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.

The  inquiry

The  Commission’s  comments

in 

for 

The complaint was forwarded to the Commission, which
its  comments  that  X  met  the  necessary
stated 
requirements 
the
admissibility 
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.

according 

to 

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

comments  were 

The  Commission’s 
the
complainant  who  maintained  his  complaint.  The
complainant  added  that  only  a  recommendation  from  a
the
high 
supplementary  list  of  the  Blue  Book  the  second  time  he
applied.

ranking  person  helped  him 

enter 

sent 

to 

to 

Further  inquiries

information 

The  Ombudsman  requested 
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.

from 

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.

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.

that  he  had  been  placed  on 

X  contended 
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 Lome´ 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.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/29

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
Lome´ 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.

there  was  no  evidence 

While 
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  Lome´ 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
in  May  1996  and  to  an
Cooperation  Committee 
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
its  powers  scrupulously  to  protect  the
exercises 
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.

C  380/30

EN

Official  Journal  of  the  European  Communities

7.12.98

The  decision

1. 

Preliminary  remarks

1.1.  The  implementation  of  Community  customs  law
and  carrying  out  of  the  relevant  administrative
the  responsibility  of  national
procedures  are 
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 
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.

into  the  allegation,  made 

inquire 

1.3. 

has 

there 

examining  whether 

In 
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 
evaluate
conflicting  scientific  evidence.

testimony  and 

to  hear 

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  Lome´ Convention (1),  which
deals  with  disputes  under  Articles  26(7)  and
27(7)  of  the  Protocol,

—  its  responsibility, 

in  the  execution  of  the
Community 
proper
ensure 
accounting  for  customs  duties  (which  are  a
Community  resource)  that  are  payable.

budget, 

to 

3. 

The  Commission 
authorities

and 

the  Côte  d’Ivoire

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 

an
administrative  cooperation  mission  to  the  Côte
d’Ivoire,

participated, 

in 

—  brought  the  matter  before  successive  meetings
the  ACP-EC  Customs  Cooperation

of 
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  Lome´ Convention 
in  relation  to  this
dispute.

4. 

The  Commission  and 
authorities

the  Belgian  customs

4.1. 

its  comments, 

In 
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  Lome´ Convention.

4.4. 

the  dispute, 

In  these  circumstances,  the  lack  of  progress  in
resolving 
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.

resulting 

from 

(1)  See  Council  Regulation  (EEC)  No  714/90/EEC  of  5  March
1990  concerning  the  application  of  Decision  No  2/90  of  the
ACP-EEC  Council  of  Ministers  on  transitional  measures  to
be applied from 1 March 1990 (OJ L 84.1.1984, 30.3.1990,
p.  1).

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

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/31

customs  authorities.  The  Ombudsman  therefore  closed
the  case

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.

RECRUITMENT:  ORAL  SELECTION  PROCEDURE

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

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

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.

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.
later  transmitted  to  the  UK
This 
National  Criminal 
(NCIS)  and
recorded  on  a  computer  list.

Intelligence  Service 

information  was 

In November 1992, the recorded information was passed
on  to  the  Belgian  police  on  the  occasion  of  another
football  match  the  B.  brothers  were  attending.  The
brothers  were  detained  at  the  police  station  at  Courtrai
and  later  subjected  to  an  identity  check  in  Brussels.
Furthermore,  R.B.  was  detained  at  the  police  station  in
Brussels  for  16  hours,  searched  and  photographed  and
later  deported.

According  to  R.B.,  the  reason  given  to  him  was  that  his
name  was  recorded  on  the  NCIS  list.  The  official  report
from  the  Belgian  Ministry  of  the  Interior  to  NCIS  stated
that R.B. was arrested on 17 November 1992 at Brussels
because  he  was  under  the  influence  of  alcohol,  disturbed
public order during an identity check and did not appear
to  possess  any  identity  papers.

The  B.  brothers  and  their  national  and  European
Parliamentary representatives sought to obtain a national
remedy,  but  were  unsuccessful.

C  380/32

EN

Official  Journal  of  the  European  Communities

7.12.98

The  complaint  to  the  European  Commission

to 

On  8  July  1994,  the  B.  brothers,  represented  by  Liberty,
complained 
the  European  Commission.  The
Commission  registered  the  complaints  as  No  94/4998
against  the  United  Kingdom,  and  No  94/4999  against
Belgium.

Liberty  requested  that  the  Commission  communicate  the
complaint to the Member States concerned and obtain an
undertaking  that  those  Member  States  would  comply
with  the  requirements  of  Community  law.  Liberty  also
requested  the  removal  of  all  records  relating  to  the  B.
brothers.

Furthermore,  the  Commission  was  requested  to  obtain
assurances  for  the  B.  brothers  that  they  would  be  free  to
move  within  the  European  Union  and  that  they  would
not  be  subjected  to  restrictions  that  were  not  justified
under the EC Treaty. If either State were to fail to adopt
such  measures  satisfactorily, 
the  Commission  was
requested  to  institute  infringement  proceedings  under
Article  169  of  the  EC  Treaty.

On  20  October  1994  the  Commission  Directorate
General  XV  responded  by  letter  stating:

‘Belgium  and  the  United  Kingdom  are  bound  to  give
active  consideration  to  the  brothers’  request  to  be
removed  from  any  blacklist  on  which  they  might
appear.  I  have  written  to  both  Member  States  to  this
effect,  asking  them  to  delete  your  clients’  names  from
any  such  blacklist  and,  if  not,  to  give  reasons  for
keeping  them  on  such  a  list.’

By a letter of 6 October 1995 DG XV of the Commission
reported  that  a  reply  had  been  received  from  the  United
Kingdom:

In  substance  the  UK  authorities  indicate  that  A.B.  has
never  been  the  subject  of  an  entry  on  NICS  records,
and  that  while  entries  have  been  made,  in  relation  to
both G.B. and R.B., no details concerning them remain
on  those  records.

The  absence  of  any  mention  of  your  clients  in  the
NCIS  records  leads  us  to  conclude  that  there  are,  at
present,  no  restrictions  envisaged  by  the  United
Kingdom  authorities  on  their  free  movement.

As  a  consequence,  it  must  be  considered  that  there  is
no infringement of Community law in the case in point
and  it  is  my  intention  to  propose  to  the  Commission
that  your  complaint  is  filed.

As  no  response  had  been  received  from  the  Belgian
authorities,  the  Commission  was  continuing  to  press
them  for  their  reply.

Liberty  responded  by  letter  of  11  October  1995  and
presented  the  issues  which  it  considered  still  unresolved.

(The  brothers  had  never  been  told  precisely  which  lists
their  names  appeared  on.

The  brothers  had  not  been  informed  as  to  which  other
States  and  organisations  had  been  provided  with  the  list
or  lists.

The  question  of  the  legality  of  their  names  being
originally  listed  had  not  been  dealt  with  satisfactorily.

The  complaint  to  the  European  Ombudsman

Liberty  alleged  that  there  had  been  maladministration  in
the  Commission’s  handling  of  the  complaint  against  the
United  Kingdom,  for  the  following  reasons:

(1) the delay of 16 months in responding substantively to

the  complaint;

(2) the  failure  to  require  the  United  Kingdom  to  deal
with each of the issues raised in the complaint lodged
in  July  1994;

(3) the  failure  to  institute  proceedings  under  Article  169

of  the  EC  Treaty.

Liberty  alleged  that  there  had  been  maladministration  in
the  Commission’s  handling  of  the  complaint  against
Belgium,  for  the  following  reasons:

(1) the  failure  of  the  Commission  to  obtain  the  Belgian
authorities’  response  after  the  complaint  was  lodged
in  July  1994,

(2) the failure of the Commission to institute proceedings
under  Article  169  of  the  EC  Treaty  in  the  absence  of
any  response  whatsoever  from  the  Belgian  authorities
16  months  after  the  complaint  was  lodged  at  the
Commission.

The  inquiry

The  EC  Treaty  empowers  the  European  Ombudsman  to
enquire into possible instances of maladministration only
in  the  activities  of  Community  institutions  and  bodies.
The  Statute  of  the  European  Ombudsman  specifically
provides that no action by any other authority or person
may  be  the  subject  of  a  complaint  to  the  Ombudsman.
The  Ombudsman’s  inquiries  into  this  complaint  were
therefore  directed  towards  examining  whether  there  had

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/33

been  maladministration  in  the  activities  of  the  European
Commission.

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points  in
its  comments.

In  deciding  not  to  open  infringement  proceedings  as
regards  the  United  Kingdom  the  Commission  had
exercised its discretion as fully recognised by the Court of
Justice.  The  Court  has  consistently  held (1)  that:

‘. . .it is clear from the scheme of Article 169 of the EC
Treaty  that  the  Commission  has  no  obligation  to
commence  proceedings  under  that  Article; 
it  has
discretionary  power  precluding  the  right  of  individuals
to require it to adopt a particular position and to bring
an  action  for  annulment  against  its  refusal  to  take
action’ (2).

1. 

in
It  had  proceeded  towards  the  complainants 
conformity  with  principles  of  good  administrative
behaviour.

2.  The  complaints  were  registered,  replies  were  sent  to
the  complainants  and  letters  were  forwarded  to  the
Member  States  within  a  normal  time  for  dealing
with  complaints  or  alleged  infringements.

3.  The  Commission  had  written  to  the  Member  States
asking  for  information  or  clarification;  in  regard  to
the issue of timing and delays, it was in the hands of
the  Member  State  concerned.

4.  As  regards  the  case  of  the  United  Kingdom,  a  first
letter  was  issued  on  20  October  1994  and  after  a
reminder  was  sent  on  29  March  1995  a  reply  from
the  United  Kingdom  authorities  was  received  on  22
May  1995.

5.  As  soon  as  the  reply  was  examined  by  the
Commission 
complainants  were
informed  via  their  legal  representative  on  6  October
1995.

services, 

the 

6.  As regards the case of Belgium, an acknowledgement
was  received  from  the  Permanent  Representative  on
16  December  1994,  however  it  was  only  after
several  reminders  issued  on  28  February  1995  and
27  June  1995  that  the  Belgian  authorities  wrote  to
the  Commission  on  19  October  1995  confirming

(1)  Case  247/89  Star  Fruit  v.  Commission  [1989]  ECR  291  and
Case  87/89,  Sonito  and  Others  v.  Commission  [1990]  ECR
1981.

(2)  Sonito  and  others  v.  Commission,  p.  2008.

the 

that 
transmitted  to  the  appropriate  authorities.

for  clarification  had  been

request 

7.  There  was  as  yet  no  reaction  from  these  authorities
and  thus  the  complaint  against  Belgium  was  still
being  examined.

8.  At all times during this period of sixteen months and
in  respect  of  both  cases,  the  Commission  had  kept
the  complainants 
legal
representative.

informed  through  their 

9. 

In an Article 169 procedure the complainant did not
possess  any  specific  procedural  guarantees  as  could
be  in  other  sectors  such  as  competition  issues  or
anti-dumping cases;

10.  As  regards  the  time  taken  to  deal  with  both  these
matters,  it  was  relevant  to  recall  that  complex  legal
and  technical  considerations  were  involved.

The  complainant’s  observations

In  his  observations  Mr  L.  made,  in  summary,  the
following  points.

1.  Neither  the  Commission’s  discretion  over  whether  or
not  to  issue  formal  proceedings  under  Article  169,
nor  the  sending  of  the  initial  letter  to  the  Member
States  within  the  normal  time  was  disputed.

2.  The  Commission’s  comments  had  failed  to  address
the  core  of  the  complaint  on  maladministration  and
in  particular  the  following  issues.

On  20  October  1994,  the  Commission  expressed  the
in
view,  applying  the  Court  of  Justice  rulings 
Bouchereau  and  Adoui  and  Cornuaille (3), 
that
‘Belgium  and  the  United  Kingdom  are  bound  to  give
active  consideration  to  the  brothers’  request  to  be
removed  from  any  “blacklist”  on  which  they  might
appear’.  The  fact  that  the  Commission  accepted  that
such  action  from  the  Member  State  concerned  was
necessary  is  highly  pertinent  to  the  assessment  of  the
adequacy of the subsequent handling of the matter by
the  Commission.

Whether  the  Commission  had  complied  with  good
administrative  practice  by  proposing  to  close  the  file
in  relation  to  the  United  Kingdom  although  the  reply
from  the  United  Kingdom  did  not  deal  with  most  of
the  concerns  raised  in  the  complaint,  and  specifically
whether or not the names of the B. brothers had been
communicated  to  other  countries’  records  and  by
in
proposing  to  take  no  further  specific  action 

(3)  Case  30/77,  [1977]  ECR  1999  and  Cases  115/81  and

116/81,  [1982]  ECR  1665.

C  380/34

EN

Official  Journal  of  the  European  Communities

7.12.98

relation to Belgium although no reply whatsoever had
been  received  from  the  Member  State.

Whether  the  requirement  of  good  administration
requires  the  Commission  to  pursue  in  some  effective
way  the  undisputed  fact  that  the  B.  brothers’
fundamental  rights  under  EC  law  had  not  been
respected.

1.2. 

The  complainant  requested  that  the  Ombudsman  should
find that the response of the Commission was insufficient
and  that  good  administration  required  some  effective
follow-up  action  by  the  Commission.

Further  inquiries

from 

replies 
the
the  Member 
administrative  stage  of  the  infringement  procedure
under  Article  169.

States 

at 

facilitate 

the  Commission’s 

In  accordance  with  the  case-law  of  the  Court  of
the
Justice,  Member  States  must 
achievement  of 
tasks  as
‘Guardian  of  the  Treaty’,  under  Article  155  of  the
Treaty (1).  The  Member  States  are  required  to
cooperate  bona  fide  in  an  inquiry  undertaken  by
the  Commission  under  Article  169,  and  to  supply
the Commission with all the information requested
for  that  purpose (2). Refusal by a Member State to
investigations
assist 
constitutes  a  failure  to  fulfill  a  duty  incumbent  on
every Member State under Article 5 to facilitate the
achievement of the Commission’s tasks (3).  In  such
a  case  the  Commission  may  bring  the  matter
before  the  Court  of  Justice.

the  Commission 

its 

in 

It  appeared  that  the  Commission  had  not  informed  the
Ombudsman  of  the  situation  as  regards  complaint  No
94/4999.  The  Ombudsman 
the
Commission  to  inform  him  whether  there  had  been  a
reply  from  the  Belgian  authorities  to  complaint  No
94/4999.

therefore 

asked 

The  Commission’s  reply  stated  that  the  Commission  had
received  a  short  formal  response  dated  10  June  1996
from  the  Permanent  Representative  of  Belgium.  In
substance  the  Belgian  authorities  gave  assurances  about
the  respect  of  the  rights  of  the  complainants  to  free
movement  on  their  territory.

The  Commission  had  examined 
the  response  and
communicated  its  terms  to  the  complainants  via  their
legal  representative  by  letter  of  9  July  1996.  This  letter
also  indicated  that,  in  view  of  the  position  put  forward
by  the  Belgian  authorities,  the  Commission  services
would be proposing to the group which examined alleged
infringements  of  Community  law,  at  its  next  meeting,
that  case  No  94/4999  be  filed.

1.3. 

It appeared that the Commission finally obtained a
reply  from  the  Belgian  authorities  on  17  June
1996,  following  several  reminders  by  letter  and
further  contacts.  The  Ombudsman  therefore  found
that there was no evidence of maladministration in
relation  to  this  aspect  of  the  case.

2. 

Delay 
responding 
complaint  against  the  United  Kingdom

substantively 

in 

to 

the

2.1.  As  regards  the  alleged  delay  of  16  months  in
responding  substantively  to  the  complaint  against
the  United  Kingdom,  Liberty  stated  that  it  did  not
contest  the  sending  of  the  initial  letter  to  the
Member  States  within  the  normal  time.  Therefore,
the  complaint  concerned  the  period  after  20
October  1994.  After  that  date,  the  Commission
sent  a  reminder  and  received  a  reply  on  22  May
1995. By letter of 6 October 1995 the Commission
informed  the  complainant  that  the  complaint  had
been  filed.

The  meeting  at  which  the  services’  proposal  to  file  the
case  took  place  was  held  on  10  October  1996.  The
decision  was  confirmed  at  the  Commission’s  weekly
meeting  on  16  October  1996.

2.2. 

By  letter  of  4  December  1996,  the  confirmation  of  the
decision  to  file  the  case  was  communicated  to  Mr  L.  as
the  representative  of  the  complainants.

It  appeared  from  the  Ombudsman’s  inquiries  that
the  Commission  had  persisted  in  its  attempts  to
obtain  a  reply  from  the  United  Kingdom.  As  a
matter  of  good  administrative  practice, 
the
Commission 
communicate  a
should  always 
decision  to  close  the  file  to  the  complainant
reasonably  promptly.  The  Ombudsman  found  that
there  was  no  evidence  to  support  the  allegation
that  there  had  been  undue  delay  in  responding
substantively  to  the  complaint  against  the  United
Kingdom.

The  decision

1. 

Alleged  failure  to  obtain  a  reply  from  the  Belgian
authorities

1.1.  As  a  matter  of  good  administrative  practice,  the
Commission  should  persist  in  attempts  to  obtain

(1)  . . .  the  Commission  shall:

ensure  that  the  provisions  of  this  Treaty  and  the  measures
taken  by  the  institutions  pursuant  thereto  are  applied;  (. . ..)
(2)  Case  192/84  Commission  of  the  European  Communities  v.

Hellenic  Republic  [1985]  ECR  3967,  paragraph  19.

(3)  Case  240/86  Commission  of  the  European  Communities  v.

Hellenic  Republic  [1988]  ECR  1835,  paragraph  28.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/35

3. 

Failure  to  require  the  United  Kingdom  to  deal
with  each  of  the  issues  raised  in  the  complaint

3.1.  As  to  the  allegations  that  the  Commission  had
failed  to  require  the  United  Kingdom  to  deal  with
each of the issues raised in the complaint lodged in
July  1994,  the  United  Kingdom  authorities  had
indicated that no details concerning the B. brothers
remained  in  the  NCIS  records.  Therefore,  the
Commission  had  considered  that  there  was  no
infringement  of  Community  law  by  the  United
Kingdom.

3.2. 

infringement 

It  appeared  that  the  Commission  had  concluded
that  there  was  no  infringement  at  the  present  and
that  it  did  not  intend  to  pursue  the  issue  whether
in  the  past.
there  had  been  an 
According  to  the  Court  of  Justice,  the  purpose  of
the  prelitigation  procedure  provided  for  in  Article
169 is to give the Member State an opportunity to
remedy  the  position  before  the  matter  is  brought
before  the  Court (1).  The  Ombudsman’s  inquiries,
therefore,  had  not  revealed  any 
instance  of
maladministration  by  the  Commission  in  relation
to  the  alleged  failure  to  request  a  reply  on  each
issue  presented  in  the  complaint.

4. 

Failure  to  open  infringement  proceedings  under
Article  169  of  the  EC  Treaty

4.1.  As regards the allegation that the Commission had
failed  to  institute  formal  proceedings  against  the
United  Kingdom  and  Belgium,  Article  169  of  the
EC  Treaty  provides  for  the  Commission  to  issue  a
reasoned  opinion  if  it  considers  that  a  Member
State  has  failed  to  fulfil  an  obligation  under  this
Treaty.

reasoned  opinion 

4.2.  Article  169  of  the  Treaty  does  not  lay  down
procedures  or  criteria  to  be  followed  by  the
Commission  in  the  period  preceding  the  issuing  of
a 
to  a  Member  State.
Furthermore,  the  jurisprudence  of  the  Court  of
Justice  provides  only 
limited  guidance.  The
Commission  itself  must  therefore  decide  what
procedures  and  criteria  to  adopt  in  order  to
discharge  its  responsibilities  under  Article  169  in
the  process  that  may  lead  to  the  issuing  of  a
reasoned  opinion.

4.3.  According  to  the  case-law  of  the  Court  of  Justice,
given  its  role  as  Guardian  of  the  Treaty,  the
Commission  alone  is  competent  to  decide  whether

it  is  appropriate  to  bring  proceedings  against  a
Member State for failure to fulfil its obligations (2).
The  Ombudsman  found,  therefore,  that  there  was
no  instance  of  maladministration  in  the  way  the
Commission  had  concluded  the  inquiries  it  had
undertaken  in  this  matter.

In view of these findings and taking into account that the
the  United
Commission  had  obtained  both 
Kingdom  and  Belgium  assurances  that  the  rights  of  the
complainants to free movement would be respected, there
appeared 
the
Ombudsman  therefore  closed  the  case.

to  be  no  maladministration  and 

from 

Further  remarks

Inquiries into this complaint and several other complaints
against the Commission, led the Ombudsman to conclude
that  it  would  be  appropriate  for  there  to  be  a  more
general  examination  of  the  Commission’s  administrative
procedures  for  dealing  with  complaints  from  citizens
concerning  Member  States’ 
their
obligations  under  Community  law.  On  15  April  1997,
therefore,  the  Ombudsman  initiated  an  own-initiative
inquiry  into  the  possibilities  for  improving  the  quality  of
the 
the
Commission.

administrative 

procedures 

relevant 

failure 

fulfil 

to 

of 

RECRUITMENT  OF  A  TEMPORARY  AGENT

Decision  on  complaint  265/29.11.95/VKCG/PD/UK
against  the  European  Commission

The  complaint

Mrs  G.  had  responded  to  a  notice  inviting  applications
for  a  post  as  a  temporary  agent,  at  grade  A 4/A 5  in  the
Consumer  Policy  Service  of  the  Commission.  In  August
1995,  the  selection  board  informed  her  that  she  would
not  be  invited  for  an  interview.

In her complaint to the Ombudsman in November 1995,
Mrs  G.  alleged  that  the  successful  applicant  was  known
in  advance.  She  raised  a  number  of  questions.  In
particular,  she  asked  how  many  applicants  were
interviewed  and  the  reasons  for  not  inviting  her  for  an
interview.  Mrs  G.  alleged  that  the  advertisements  in  the
national  press  were  false  and  misleading  because  they
advertised  job  vacancies  which  did  not  in  fact  exist.  She
also  questioned  whether  the  procedure  used  complied
the
with  equal  opportunities  policy  and  whether 

(1)  Case  74/82  Commission  of  the  European  Communities  v.

Ireland  [1984]  ECR  317,  paragraph  13.

(2)  Case  431/92  Commission  of  the  European  Communities  v.
Federal Republic of Germany [1995] ECR I-2189, paragraph
22.

C  380/36

EN

Official  Journal  of  the  European  Communities

7.12.98

expenditure  incurred  in  the  process  was  justifiable  and
reasonable.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  The
Commission  comments  included  the  following  points.

In the Commission, temporary staff are recruited through
selection  procedures  which  are  announced  by  means  of
advertisements  in  the  national  press  of  the  Member
States. Accordingly, the temporary A post was advertised
in  the  national  press  of  the  Member  States.

Applications  received  in  response  to  advertisements  are
submitted  to  a  selection  board  consisting  of  senior
officials  who  are  specialists  in  the  fields  covered  by  the
procedure.

For  the  post  in  question,  a  selection  board  comprising
three  persons  was  established  in  order  to  examine  the
applications  and  select  those  judged  best  suited  for  the
post  for  an  interview.

The  selection  board  received  75  applications.  Eight
applicants  were  selected  for  an  interview  on  the  basis  of
criteria established by the selection board, i.e. the quality
and  duration  of  applicants’  professional  experience.  Of
those who were invited to an interview, four were placed
on  a  reserve  list.

The  Commission  rejected  the  allegation  that  the  person
appointed  to  the  post  was  determined  in  advance.  It
stated 
the
complainant’s  qualities  but  judged  that  other  applicants
were  better  qualified  for  the  post  in  question.

selection  board 

recognised 

that 

the 

As  for  equal  opportunities  policy,  the  Commission
pointed out that two of the four people on the reserve list
were  women.  It  added  that  the  selection  board  based  its
decisions  solely  on  the  relative  merits  of  the  applicants.

The  complainant’s  observations

In her observations, Mrs G. raised a number of questions
relating to the procedure and reasons behind the creation
of  a  temporary  A 4/A 5  post  in  the  Consumer  Policy
Service as well as to the selection procedure followed and
the identity of the successful applicant. Furthermore, Mrs
G. suggested that the Ombudsman should interview some
staff  members  at  the  Commission.

aspects of the complaint remained unanswered. On 5 July
1997,  the  complainant’s  observations  were  forwarded  to
the  Commission 
for  a  complementary  comment.
Furthermore,  the  European  Ombudsman  asked  the
Commission  to  forward  to  him  the  published  notice  of
vacancy, 
the  eight  shortlisted
applicants,  and  the  report  of  the  selection  board.

the  applications  of 

In  its  complementary  comments,  the  Commission  stated
that  the  report  of  the  selection  board  included  a  list  of
the  eight  applicants  invited  for  interview  as  well  as  a  list
of  the  four  applicants  judged  best  suited  for  the  post.
the  Directorate-General  of  Consumer
Subsequently, 
Policy  examined 
four  shortlisted
the 
files  of 
applicants  and  selected  the  person  considered  to  be  best
in  question.  Furthermore,  the
suited  for  the  post 
Commission  stated 
the
successful applicant would be offered the post in question
was  no  greater  than  that  of  any  other  person,  either
within  or  outside  the  Commission.

the  expectation 

that 

that 

the 

The  complainant’s  complementary  observations

The  Commission’s  complementary  comments  were
forwarded  to  Mrs  G.  In  her  further  observations,  she
maintained  her  original  complaint.

The  decision

According  to  Article  2  of  the  Conditions  of  Employment
the  European  Communities,
of  Other  Servants  of 
temporary  staff  are  engaged  to  fill  posts  which  the
budgetary  authority  has  classified  as  temporary.

The  engagement  of  a  temporary  agent  differs  from  the
recruitment of an official, in that the Staff Regulations do
not  contain  specific  provisions  governing  the  recruitment
procedure  for  temporary  agents.

On  the  basis  of  the  Ombudsman’s  inquiries,  there
appeared  to  be  no  evidence  that  the  Commission  had
failed to act in accordance with its normal procedures for
recruitment  of  temporary  agents  in  this  case.

On  the  basis  of  the 
information  available  to  the
Ombudsman there appeared to be no evidence to support
the allegation that the identity of the successful applicant
was  known  in  advance.  In  these  circumstances,  the
Ombudsman  considered  that  there  were 
insufficient
grounds  for  him  to  pursue  further  inquiries  into  this
aspect  of  the  complaint.

Further  inquiries

After  considering  the  Commission’s  comments  and  the
complainant’s observations, it appeared that a number of

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

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/37

TERMINATION  OF  A  CONTRACT

Decision  on  complaint  271/4.12.95/DEA-EF-en  against
the  European  Commission

The  complaint

In  his  complaint  to  the  European  Ombudsman 
in
November  1995,  Mr  A.  stated  that  he  was  employed
under  contract  by  a  company,  (BMB),  as  programme
rural  development
co-ordinator  of  an  EU-funded 
programme  in  Nigeria  (the  middle  belt  programme).
BMB  abruptly  terminated  Mr  A.’s  contract  in  November
1994  and  subsequently  agreed  to  pay  him,  GBP  45 000
in  settlement  of  his  claim  for  wrongful  dismissal.

Mr  A.’s  complaint  had  three  elements.

1.  He  alleged 

that 

the  Commission  was  directly
responsible  for  the  termination  of  his  contract,  either
though  its  Delegation  in  Nigeria  or  through  the
actions  of  an  official  based  in  Brussels.

2.  He  alleged 

that  he 

lost  an  opportunity 

for
employment  with  a  different  company,  (MM),  on
another  EU-funded  programme  in  Nigeria,  because
the  Commission  Delegation  in  Nigeria  informally
advised  that  his  nomination  would  not  be  approved.

approved, 

be 
its
the  Commission 
understanding  was  that  the  company  concerned  made  its
own  assessment  of  the  situation  and  came  to  the
conclusion  that  Mr  A.’s  candidature  should  not  be
retained.

stated 

that 

Finally, the Commission stated that no other appreciation
of  Mr  A.’s  services  existed  other  than  the  positive  one
established by the Delegation in Nigeria, of which he had
received  a  copy.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr
A.  stated  that  he  had  been  personally  informed  by  a
member of BMB’s management that the Commission had
requested  his  dismissal 
the  Middle  belt
programme.

from 

He  further  stated  that  he  had  been  directly  informed  by
MM  that  their  consortium  partner  had  been  informed
support  his
that 
candidature.

the  Commission  would  not 

Finally  he  stated  that  he  remained  unconvinced  by  the
Commission’s  denial  that  he  had  been  blacklisted.

3.  He expressed the view that if he had been blacklisted
for  work  on  EU-funded  projects  he  should  be
formally  advised  of  this  and  that  full  reasons  should
be  given  so  that  he  could  have  the  opportunity  to
contest  them.

The  decision

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  denied  that  the  termination
of  Mr  A.’s  contract  with  BMB  resulted  from  direct
intervention  by  any  of  its  officials.  It  claimed  that
contacts  between 
its  officials  and  the  Middle  belt
programme had focused on management, monitoring and
reporting  issues  which  had  been  highlighted  in  a  critical
independent  review  of  the  programme.  According  to  the
Commission,  BMB  had  decided  on  its  own  responsibility
to  replace  Mr  A.  as  programme  coordinator.

As  regards  the  allegation  that  he  lost  an  opportunity  for
employment  because  the  Commission  Delegation 
in
Nigeria informally advised that his nomination would not

1. 

The  termination  of  the  Middle  belt  programme
contract

1.1.  The  appraisal  of  programmes  supported  by
Community  funding  is  a  normal  and  appropriate
activity  for  the  Commission  to  undertake.

1.2. 

It  appeared  probable  that  a  critical  appraisal  by  a
Commission 
and
procurement  in  the  Middle  belt  programme  led  to
the  termination  of  the  complainant’s  contract.

of  management 

official 

1.3.  There  appeared  to  be  no  evidence  of  direct
intervention  by  Commission  officials  to  secure  the
termination  of  the  contract.  Nor  did  the  payment
made  by  the  complainant’s  former  employer  in
settlement  of  his  claim  for  wrongful  dismissal
imply  that  there  was  any  such  intervention.

1.4. 

It  was  therefore  unnecessary  to  examine  whether
and  in  what  circumstances  direct  intervention  by
Commission  officials  to  secure  the  termination  of
such 
constitute
maladministration.

contract 

would 

a 

C  380/38

EN

Official  Journal  of  the  European  Communities

7.12.98

2. 

The  alleged  loss  of  an  employment  opportunity

The  inquiry

2.1.  The  complainant  claimed 

that  an  offer  of
employment  was  withdrawn 
the
because 
informally
Commission  Delegation 
advised  that  it  would  not  support  his  candidature.
The  Commission’s  view  was  that  the  company
concerned  made 
the
situation.

its  own  assessment  of 

in  Nigeria 

2.2.  The  complainant’s  claim  was  based  on  what  his
potential  employer  told  him  about  what  the
Commission  Delegation  had  said  to  its  consortium
factual
partner.  This 
specificity and probative value necessary to support
an  allegation  of  maladministration.

information 

lacked 

the 

The  Commssion’s  comments

that 

the  Commission  stated 

The complaints were forwarded to the Commission. In its
comments, 
the  prime
responsibility  for  the  running  of  the  import  licences
regime lies with the authorities of the Member States and
information  available  to  the
that  according  to  the 
Commission, 
its
application  for  an  import  licence  outside  the  deadline,
which in the concrete case by virtue of Regulation (EEC)
No  1442/93 (1)  did  not  expire  until  7  September  1994.

the  company  X  had  presented 

2.3. 

It  was  therefore  unnecessary  to  examine  whether
and  in  what  circumstances  informal  advice  that  a
candidature  would  not  be  supported  would
amount  to  maladministration.

The  complainant’s  observations

3. 

The  allegation  of  blacklisting

3.1.  The  complainant  claimed  that,  if  he  had  been
blacklisted  by  the  Commission  for  employment  on
Community-funded projects, he should be formally
advised of this and full reasons should be given so
that  he  could  have  the  opportunity  to  contest
them.  The  Commission  did  not  dispute  this  claim.

3.2.  The  Commission  denied,  however,  that  it  had
blacklisted  the  complainant  and  there  appeared  to
be  no  evidence  to  support  the  allegation  of
blacklisting.

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

INTERPRETATION  OF  COMMISSION  REGULATION

Decision  on  complaint  308/96/PD  against  the  European
Commission

The  complaint

In  January  1996,  Mr  C.,  an  Italian  lawyer,  complained
on  behalf  of  the  company  X.  He  alleged  that,  with  the
knowledge of the Commission, the Italian authorities had
discriminated  against  X  in  autumn  1994.  The  alleged
discrimination  concerned  applications  for  an  import
licence  for  bananas.  According  to  Mr  C.,  both  X  and
another  company  Y  submittted  applications  outside  the
deadline of 4 September 1994. However, Y’s application,
submitted  on  7  September  1994,  was  approved,  but  the
application  lodged  by  X  was  refused.

In  his  observations,  the  complainant  stated  that  the
Commission  had  not  addressed  the  substance  of  his
complaint  which  was  that  the  company  Y  had  been
granted  an  import  licence  although  on  a  proper  reading
of  Regulation  (EEC)  No  1442/93,  its  application  lodged
on  7  September  1994  was  outside  the  deadline.

facts,  Regulation  1442/93  provided 

The  complainant  further  stated  that  it  became  obvious
that  the  company  was  outside  the  deadline  when  one
considered a subsequent change of the relevant provision
in  Regulation  (EEC)  No  1442/93.  At  the  time  of  the
disputed 
that
applications for import licences should be lodged ‘during
the  first  week  of  the  last  month  of  each  quarter’  while
later the Regulation was amended by Regulation (EC) No
2444/94 (2)  which  provided  that  the  application  should
be lodged ‘during the first seven days of the last month of
the quarter preceding that in respect of which the licenses
are issued’. Thus, according to the complainant, the ‘first
week’  of  September  1994  is  not  equal  to  the  ‘first  seven
days’  of  September  1994;  the  first  week  expired  on  4
September  1997  and  therefore,  the  application  lodged  by
Y  on  7  September  1994  was  out  of  time.

Further  inquiries

The  Ombudsman  decided  to  ask  the  Commission  for
comments  on 
the  complainant’s  observations.  The
Commission stated that Regulation (EC) No 2444/94 did
not  modify  the  time  limit  for  lodging  applications  but
merely  clarified 
the
Commission  observed  that  according  to  the  information
provided  by 
Italian
authorities,  X’s  application  was  lodged  13  days  out  of
Italian  authorities  had  never
time.  Thirdly, 

the  complainant  and  by 

legal  situation.  Secondly, 

the 

the 

the 

(1)  OJ  L  142,  12.6.1993,  p.  6.
(2)  OJ  L  261,  11.10.1994,  p.  3.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/39

communicated  to  the  Commission  that  there  had  been  a
case  similar  to  that  of  X  and  in  any  case,  an  application
lodged  on  7  September  1994  was  within  time.

In  his  observations  on  these  supplementary  comments,
Mr  C.  maintained  his  complaint  and  in  particular  that
the  Commission  was  wrong  in  claiming  that  Regulation
(EC)  No  2444/94  did  not  modify  the  time  limit  for  the
lodging  of  applications.

The  decision

Firstly,  the  European  Ombudsman  stated  that  he  was
solely  competent  for  instances  of  maladministration  in
the  activities  of  the  institutions  and  bodies  of  the
Community;  activities  of  national  authorities  did  not  fall
under  his  remit  of  jurisdiction.  Thus,  the  European
Ombudsman  was  not  competent  to  consider  allegations
against  the  Italian  authorities.

The issue in this complaint was whether the Commission
had correctly interpreted the provision that lays down the
time  limit  for  lodging  an  application.

The  regulatory  background  was  that,  in  order  to  ensure
the  free  movement  of  bananas  within  the  Community,
the  Council  adopted  a  common  organisation  of  the
market  in  bananas  in  Council  Regulation  (EEC)  No
404/93  of  13  February  1993 (1).  The  Regulation
establishes  a  basic  distinction  between  bananas  produced
(i)  within  the  Community,  (ii)  in  ACP  countries  and  (iii)
in  other  countries.  Concerning  the  last  two  categories  of
bananas, the Regulation creates a system of tariff quotas:
up  to  a  certain  threshold,  bananas  can  be  imported  free
of customs duties or on payment of a modest duty; above
the  threshold,  higher  duties  apply.

In  order  to  make  this  system  operational,  the  import  of
bananas  into  the  Community  has  to  be  monitored  by  a
regime  of  import  licenses.  Commission  Regulation  (EEC)
No  1442/93 
laid  down  the  detailed  rules  for  the
application  of  the  arrangements  for  importing  bananas
into  the  Community.

As for bananas originating in ACP States, to be imported
under  the  threshold,  Article  14(2)  of  Regulations  (EEC)
No  1442/93  provided,  at  the  moment  of  the  facts  of  the
complaint:

‘Import  licence  applications  shall  be  lodged  with  the
competent  authorities  of  any  Member  State  during  the
first  week  of  the  last  month  of  each  quarter.’

(1)  OJ  L  47,  25.2.1993,  p.  1.

According  to  the  complainant,  ‘first  week’  refers  to  a
calendar week. According to the Commission, ‘first week’
means the first seven days of the month. In support of his
view,  the  complainant  referred  to  the  subsequent  new
wording  of  the  provision  in  question,  introduced  by
Regulation  (EC)  No  2444/94,  after  which  Article  14(2)
has  the  following  wording:

‘Import  licence  applications  shall  be  lodged  with  the
competent  authorities  of  any  Member  State  during  the
first  seven  days  of  the  last  month  of  the  quarter
preceding  that  in  respect  of  which  the  licences  are
issued’.

According  to  Mr  C.,  this  new  wording  showed  that
previously, ‘first week’ must have meant a calendar week.
According  to  the  Commission,  this  new  wording  merely
clarified  that  ‘first  week’  always  had  the  meaning  of  the
first  seven  days  of  the  month.

In assessing this dispute between the complainant and the
Commission, 
the  European  Ombudsman  examined
whether  either  point  of  view  had  support  in  the  recitals
of  Regulation  (EC)  No  2444/94.  The  relevant  recital
reads:

‘Whereas,  as  regards  the  detailed  rules  concerning
import  licences  for  traditional  ACP  bananas,  for
reasons  connected  with  management,  the  period  for
lodging the license applications should be adjusted . . .’
.

The  use  of  the  word  ‘adjusted’  suggests  that  the  time
limit  was  actually  in  substance  modified.  Other  language
versions  point  in  the  same  direction;  for  instance  in  the
German,  French,  Italian,  Spanish  and  Danish  versions
‘adjusted’  has  been  translated  by  respectively  ‘angepat’,
‘adapter’,  ‘adattare’,  ‘adaptar’  and  ‘tilpasse’.  While  this
examination thus gave some support to the complainant’s
view  that  before  the  new  wording  of  Article  14(2),  the
time  limit  for  lodging  the  applications  in  question  was
actually  one  calendar  week,  such  an  interpretation  did
not  seem  obvious.  In  the  first  place,  Mr  C.’s  view  that
‘the  first  week’  was  the  calendar  week  could  lead  to  an
expiry  of  the  time  limit  on  the  first  or  the  second  day  of
the  month.  If  these  days  fell  on  a  Saturday  or  Sunday,  it
would  imply  that  companies  would  have  to  lodge  their
applications  even  earlier  instead  of  benefiting  from  the
first  seven  days  of  the  following  month.  No  reason  was
put  forward  for  such  a  shortening  of  the  time  limit,  and
no reason was put forward for adopting an interpretation
which  makes  the  actual  time  limit  vary  from  month  to
month.  Furthermore,  it  was  not  clear  that  such  an
interpretation  would 
application
throughout the Community. The Commission’s view that
the  ‘first  week’  meant  the  first  seven  days  of  the  month

ensure  uniform 

C  380/40

EN

Official  Journal  of  the  European  Communities

7.12.98

thus  seemed  well  founded.  It  must  be  recalled,  however,
that  the  Court  of  Justice  is  the  highest  authority  on
questions  of  Community  law.

4.  The  Commission  had  therefore  taken  all  appropriate
measures  to  ensure  the  free  movement  of  persons  in
receipt  of  pre-retirement  benefits.

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  there  appeared  to  have  been  no
maladministration  by  the  European  Commission.  The
Ombudsman  therefore  decided  to  close  the  case.

The  decision

RIGHTS  OF  FREE  MOVEMENT  FOR  PERSONS  ON
PRE-RETIREMENT PENSIONS

Decision  on  complaint  313/4.1.96/MB/ES/KH  against
the  European  Commission

The  complaint

to 

In  December  1995,  Mr  B.  complained 
the
Ombudsman  about  the  failure  by  the  Commission  to  act
against  the  alleged  infringement  by  the  Danish  efterløn
rules  (a  type  of  pre-retirement  benefit)  of  Community
law. He had brought the matter to the attention of DG V
of  the  Commission  in  October  1995  and  complained  to
the  Ombudsman  about  the  way  the  Commission  had
dealt  with  this  complaint.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary, 
the
following  points.

the  Commission’s  comments  made 

1.  It  had  not  intervened  with  the  Danish  authorities
regarding  the  allegation  of  discrimination  because,
irrespective  of  the  nationality  of  the  holder  of  the
benefit  the  legal  situation  was  the  same.

2.  The  only  Community  law  regulating  the  right  to
receive  social  benefits  for  persons  residing  in  another
Member  State 
is  Council  Regulation  (EEC)  No
1408/71.  This  is  not  applicable  to  pre-retirement
benefits,  such  as  the  Danish  efterløn,  as  has  been
made  clear  by  the  Court  of  Justice (1).

3.  A  proposal  was  submitted  by  the  Commission  to  the
Council  in  1980  to  extend  the  scope  of  Regulation
(EEC) No 1408/71, but this was never adopted (2). A
new proposal to bring pre-retirement benefits into the
scope of the Regulation was submitted to the Council
on  10  January  1996 (3).

(1)  Case  171/82  Valentini,  ECR  [1983]  2157.
(2)  Proposal  of  18  June  1980.
(3)  OJ  C  62,  1.3.1996,  p.  14.

The  EC  Treaty  empowers  the  European  Ombudsman  to
enquire into possible instances of maladministration only
in  the  activities  of  Community  institutions  and  bodies.
The  Statute  of  the  European  Ombudsman  specifically
provides that no action by any other authority or person
may  be  the  subject  of  a  complaint  to  the  Ombudsman.

The  Ombudsman’s  inquiries  into  the  matters  raised  by
the complaint were therefore directed towards examining
the
whether 
there  had  been  maladministration 
activities  of 
the
complaint.

in 
the  Commission’s  dealing  with 

1. 

Concerning  the  treatment  of  the  complaint

1.1.  The 

letters 

the  complainant  wrote 

the
Commission  in  1995  were  duly  answered,  about
two  months  after  reception.

to 

(Regulation 

1.2.  The Commission’s reply referred to the Regulation
on  Social  Security 
(EEC)  No
1408/71 (4)).  This  Regulation  ensures  that  the
categories of workers to which it applies, including
retired  people,  have  the  right  to  reside  within  any
of  the  Member  States  without  affecting  their
pension  rights.

1.3.  The  reply  explicitly  stated  that  the  Regulation  did
not  cover  pre-retirement  benefits  and  referred  to
the applicable case law of the Court of Justice. The
complainant  was  also  informed  of  the  most  recent
the
the  Commission  had  made 
proposal 
Council,  in  order  to  include  benefits  like  the
efterløn  within 
the
the  material 
Regulation.

scope  of 

to 

1.4.  Considering 

the  above, 

the
Commission  has  acted  in  full  conformity  with  the
procedural  requirements  which  could  be  expected
of  it  when  dealing  with  the  complaint.

it  appears 

that 

2. 

Substantive  issues  of  the  complaint

2.1.  The  complainant  disputed 

the  Commission’s
conclusion  on  two  grounds.  First,  that  the  Treaty
acknowledges  the  freedom  to  reside  within  the
Union  and  this  also  had  to  be  valid  for  people

security 

(4)  Council  Regulation  of  14  June  1971  on  the  application  of
social 
to
to 
self-employed  persons  and  to  members  of  their  families
moving  within  the  Community  (OJ  C  325,  10.12.1992,  p.
1).

employed  persons, 

schemes 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/41

benefitting  from  efterløn  without  affecting  their
right  to  that  benefit.  Second,  that  it  must  be
considered  discriminatory  that  a  group  of  persons,
— those benefitting from efterløn — was excluded
from  the  right  of  free  movement.

2.2.  Freedom of movement is assured by Article 48 and
following  of  the  Treaty.  Article  51  states  that  the
Council  shall  such  adopt  measures  in  the  field  of
social security as are necessary to provide for such
freedom  of  movement.  Such  measures  have,  in
part,  been  taken  by  the  adoption  of  Regulation
(EEC)  No  1408/71.  It  is  established  case  law,
that  persons  on  pre-retirement  are
however, 
excluded 
the
the  material 
from 
Regulation. Hence, measures guaranteeing the right
to  free  movement  for  persons  on  pre-retirement
benefits  without  it  affecting  their  social  benefits
remain  to  be  taken.  Therefore,  the  conclusion  of
the  Commission  that  freedom  of  movement  of
people  benefitting  from  the  efterløn  scheme  is  not
assured  by  the  Treaty  does  not  appear  incorrect.

scope  of 

2.3. 

2.4. 

It  is  not  disputed  that  the  Danish  State  does  not
differentiate  between  a  Danish  and  a  non-Danish
national as far as the circumstances under which a
right  to  efterløn  arises  are  concerned.  Therefore,
the  conclusion  drawn  by  the  Commission  that
there  was  no  discriminatory  element  in  the  Danish
Act,  did  not  appear  incorrect.

In conclusion, it seemed that the substantive issues
of  the  complaint  had  been  dealt  with  by  the
Commission  in  its  answer  in  a  thorough  manner
and  the  answer  given  by  the  Commission  did  not
appear  to  be  incorrect.  Moreover,  by  submitting  a
proposal  to  the  Council  to  enlarge  the  material
scope  of  the  Regulation,  the  Commission  clearly
showed  its  preoccupation  with  the  problems  the
complaint  had  brought  forward.

instance  of  maladministration 

In  view  of  the  above,  the  Ombudsman  did  not  establish
in  the  way  the
any 
Commission  had  dealt  with  the  complaint,  and  he
therefore  closed  the  case.

Further  remarks

Subject  to  the  above,  and  taking  into  account  the
complainant’s  explicit  request  to  be  informed  about
which  authorities  could  deal  with  his  claim, 
the
Ombudsman  made  the  following  further  remarks.  The
complaint  contained  elements  which  could  be  brought
before  a  national  court.  In  particular,  it  could  be  argued
that  the  direct  effect  of  the  Treaty  articles  on  free
the  exclusion  of  pre-retirement
movement  makes 
pensions 
scope  of  Regulation  1408/71
irrelevant.  Some  support  for  this  argument  could  be
found  in  a  recent  decision  by  the  Court  of  Justice (1).

from 

the 

If legal proceedings were brought before a national court
this  might  result  in  a  reference  under  Article  177  of  the
EC  Treaty  to  the  Court  of  Justice,  which  is  the  highest
authority  on  Community  law.

RECRUITMENT:  LEVEL  OF  QUALIFICATION
REQUIRED  TO  TAKE  PART  IN  A  COMPETITION

Decision  on  complaint  373/9.1.96/AM/L/PD  against  the
European  Commission

The  complaint

Mrs M. complained in January 1996 to the Ombudsman
about  a  notice  of  competition  for  recruitment  as  an
official  of  the  European  Communities.  The  notice
specified  that  graduates  of  Finnish  universities  must  have
completed  a  higher  university  degree  (fil.kand.).  The
complainant  stated  that  graduates  of  other  Member
States,  such  as  Sweden  or  the  UK,  need  only  possess  a
qualification at a level corresponding to the Finnish lower
level  degree  (hum.kand.).

The  complainant  assumed  that  the  notice  of  competition
contained  an  error  and  complained  that,  as  a  result,  a
large  number  of  Finns  had  missed  the  opportunity  of
applying  for  jobs.

According to Article 2(5) of the Statute, the Ombudsman
may  advise  the  person  lodging  a  complaint  to  address  it
to  another  authority.  The  initiation  of  legal  proceedings
involves  expenses  and  the  risk  that  the  proceedings  may
be unsuccessful. The Ombudsman does not therefore give
advice to initiate legal proceedings. This is a matter solely
for  the  judgement  of  a  complainant.

(1)  Case  C-443/93  Vougioukas  v.  Ika  ECR  [1995]  I-4033.  In
particular where it states at paragraph 36 that Article 4(4) of
Regulation  (EEC)  No  1408/71  (which  excludes  from  the
scope of the Regulation special schemes for civil servants and
persons  treated  as  such)  does  not  entail  that  a  request  for
aggregation is to be refused when it may be satisfied in direct
application  of  Articles  48  to  51  of  the  Treaty,  without
recourse  to  coordination  rules  adopted  by  the  Council.

C  380/42

EN

Official  Journal  of  the  European  Communities

7.12.98

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary, the Commission comments made the following
points.

There  is  no  agreed  harmonised  academic  equivalence  of
University  degrees  between  the  Member  States.

The  Commission  must  therefore  itself  determine  the
nature  of  the  diplomas  to  allow  eligibility  for  admission
to  competitions,  based  on  information  provided  by  the
national  authorities.

The  Commission  seeks  to  ensure  that  its  approach
treatment  between  University
provides 
graduates  whichever  Member  State  they  graduated  in.

for  similar 

In  summary  the  reply  of  the  Commission  was  as
follows:

In  evaluating  University  degrees  the  Commission  has
based  itself  on  specific  information  provided  by  national
ministries  of  education,  the  annually  updated  report  of
the  NEED  Working  Party  of  the  Council  of  Europe  and
information  compiled  by  the  Network  of  National
Academic  Recognition  Information  Centres  (NARIC).

In the case of Finland and Sweden, the Commission made
its  decisions  on  the  basis  of  information  provided  by  the
respective national ministries of education and confirmed
by  NEED  and  NARIC.  The  decision  on  eligibility  for
admission  of  University  degrees  obtained  in  the  United
Kingdom  was  made  at  the  time  of  its  accession.  In  all
three  cases  a  final  university  degree  is  required.

The  Commission  concluded  by  stating  that  ‘in  the
absence of an official intergovernmental agreement on the
recognition  of  academic  degrees 
the  Commission
envisages stipulating that candidates must be holders of a
final  University  degree  giving  eligibility  for  admission  to
doctoral  studies’.

The  Commission’s  approach  towards  Finnish  University
degrees  has  been  to  require  higher  university  degrees  for
admission  to  competitions.

The  decision

The  Commission  concluded  its  comments  by  stating  that
‘in  the  light  of  recent  developments  in  the  field  of  higher
education  the  Commission  intends  to  review  its  overall
approach  to  diplomas  giving  access  to  its  competitions
and 
the
to  ensure  a  common  approach  between 
institutions’.

The  complainant’s  observations

In her observations, Mrs M. stated that the Commission’s
comments  meant  that  a  higher  level  of  qualifications  is
required  of  Finns  than  of  other  applicants.  She  believed
this  to  be  wrong  and  requested  the  Ombudsman  to
continue  to  investigate  the  question.

Further  inquiries

After  considering  the  Commission’s  comments  and  the
complainant’s observations, it appeared that a number of
aspects  of  the  complaint  remained  unanswered.  The
Ombudsman  therefore  asked  the  Commission  for  further
information  about  the  criteria  it  used  in  establishing
eligibility  requirements  for  Finnish,  Swedish  and  British
candidates.  The  Ombudsman  also  asked  for  the  detailed
contents  of  the  Commission’s  review  of  its  overall
approach  to  diplomas  giving  access  to  its  competitions.

1. 

The  notice  of  competition

1.1.  The  original  complaint  raised  the  question  of
the  notice  of  competition  contained

whether 
incorrect  and  misleading  information.

1.2. 

It  is  clear  from  the  Commission’s  comments  that
the  notice  of  competition  accurately  stated  the
Commission’s  decision  to  require  higher  university
degrees 
in  the  case  of  graduates  of  Finnish
universities.

2. 

The  Commission’s  decision  to  require  higher
university  degrees  in  the  case  of  graduates  of
Finnish  universities

2.1.  Article 27 of the Staff Regulations of the European
Communities  provides  that  recruitment  shall  be
directed  to  securing  for  the  institution  the  services
of  officials  of  the  highest  standard  of  ability,
efficiency  and  integrity,  recruited  on  the  broadest
possible  geographical  basis  from  among  nationals
of  Member  States  of  the  Communities.

2.2. 

In  choosing  the  criteria  by  which  vacant  posts  are
to  be  filled,  the  appointing  authority  has  a
discretionary  power (1).

(1)  Case  280/80,  Bakke-d’Aloya  v.  Council  [1981]  ECR  2887.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/43

2.3. 

this  discretionary  power, 

In  exercising 
the
appointing  authority  must  respect  the  principle  of
equality (1).  It  must  not  discriminate  by  treating
candidates  in  similar  situations  differently,  if  there
are  no  justifiable  grounds  for  doing  so.

comparison  with  the  requirements  for  tendering  under
German  law.  In  particular,  he  complained  about  poor
communication and the fact that, when his projects were
not  accepted  by 
jury,  he  was  not  properly
the 
compensated  for  the  work  he  had  undertaken.

2.4.  Qualifications  in  higher  education  are  within  the
competence  of  each  Member  State.  Community
action  in  this  respect  is  based  on  the  principle  of
mutual  recognition (2).  Variation  in  the  period  of
university  study  necessary  for  graduates  from
different  Member  States  to  be  admitted  to  a
competition  is  not  therefore  sufficient  in  itself  to
demonstrate  failure  to  respect  the  principles  of
equality  and  non-discrimination.

2.5.  The  Commission  has  acknowledged  the  principles
of equality and non-discrimination in its comments
on  the  complaint  by  stating  that,  in  determining
the  nature  of  the  diplomas  to  allow  eligibility  for
admission  to  competitions,  it  seeks  to  ensure  that
its  approach  provides  for  similar  treatment  as
between  University  graduates  whichever  Member
State  they  graduated  in.

2.6.  There  appears,  therefore,  to  be  no  evidence  that
the  Commission  has  exercised 
its
discretionary power to choose the criteria by which
vacant  posts  are  to  be  filled.

improperly 

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

INVITATION  TO  TENDER:  PROCEDURE

Decision  on  complaint  444/20.2.96/TK/D/VK  against
the  Joint  Research  Centre  of  the  European  Commission

The  complaint

In  January  1995  Mr.  K,  a  German  national,  petitioned
the  European  Parliament  concerning  the  Joint  Research
Centre  of  the  European  Commission.  In  May  1995,  the
Committee  on  Petitions  transferred  his  petition  to  the
Ombudsman  to  be  dealt  with  as  a  complaint.

Mr  K.  had  participated  in  a  restricted  tender  procedure
organised  by  the  Joint  Research  Centre  in  Ispra.  He
alleged that the procedure was not properly conducted, in

(1)  Case  130/75,  Prais  v.  Council  1976  [ECR]  1589.
(2)  Case 130/75, Council Directive 89/48/EEC (OJ L 21.1.1989,

p.  16).

The  inquiry

The  Commission’s  comments

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

In  order  to  renovate  buildings  of  the  Research  Centre  in
Ispra, a call for interest, prior to a restricted invitation to
tender  was  published  in  the  supplement  to  theOfficial
Journal  of  the  European  Communities  of  25  May  1993.

15  out  of  42  companies  who  expressed  interest  were
selected  by  an  internal  committee.  Among  them  was  the
company  of  the  complainant.

relevant  documents  concerning 

All 
restricted
invitation  to  tender  were  sent  to  the  15  candidates.
Furthermore,  a  meeting  was  held  in  order  to  inform  the
candidates.  The  complainant  decided  not  to  take  part  in
this  meeting.  A  report  of  this  meeting  was  sent  to  all  15
candidates,  including  the  complainant.

the 

The  restricted  invitation  to  tender  was  carried  out  in
accordance  with  relevant  provisions  of  Community  law,
i. e. the Financial Regulation and the public procurement
directives.

All relevant documents distributed to the candidates were
correct  and  complete  and  every  participant  was
personally  informed  about  the  result  of  the  procedure.
The  Commission  also  annexed  documents 
its
comments,  which  provided  detailed  information  about
the  selection  procedure  and  the  identity  of  the  jury.

to 

The  Commission  has  no  general  obligation  to  reimburse
the costs of unsuccessful tenderers. In this particular case,
the  Research  Centre  had  undertaken  to  provide  a
maximum  compensation  payment  of  ECU  5 000  per
building project submitted but not selected, depending on
how  progressive  and  new  the  proposal  was.  On  that
basis, 
the  complainant  was  paid  ECU  2 500  as
compensation  for  one  third-finalist  project,  plus  ECU
10 000  for  his  five  projects  which  had  not  been  taken
into  consideration.

C  380/44

EN

Official  Journal  of  the  European  Communities

7.12.98

The  complainant’s  observations

TERMINATION  OF  A  PHARE  SUBCONTRACT:
RESPONSIBILITIES  OF  THE  COMMISSION

In  his  observations  on  the  Commission’s  comments,  Mr
K.  stated  that,  as  regards  the  transparency  of  the
procedure, he was satisfied with the information given by
the  Commission 
in  the  documents  annexed  to  the
comments.

In  relation  to  the  level  of  compensation,  Mr  K.  observed
that the volume of preparatory work for the projects had
been unusually high. This had led to a debate among the
participants,  as  a  result  of  which  the  compensation  was
subsequently 
increased.  The  terms  of  compensation
payments  were  unclear  and  also  unusual,  and  it  was  not
understandable why the terms of compensation payments
were  only  published  at  the  end  of  the  competition.

The  decision

On  the  basis  of  the  evidence  available  to  the  European
it  appeared  that  the  restricted  tender
Ombudsman, 
procedure  had  been  carried  out  properly  and 
in
accordance  with  the  relevant  provisions  of  Community
law.

As  regards  the  level  of  compensation  for  unsuccessful
projects,  the  principles  of  good  administration  require
that  all  participants  should  be  given  full  and  accurate
information  about  the  procedure  of  an  invitation  to
tender.  This 
includes  the  compensation  scheme  for
projects  submitted,  since  the  preparation  of  projects
involves  considerable  effort  and  costs.

On  the  basis  of  the  evidence  available  to  the  European
Ombudsman,  it  appeared  that  the  Research  Centre  had
clearly  explained  the  procedure  for  the  submission  of
projects and had also given precise information about the
conditions  of  compensation 
for  projects
submitted.  There  appeared  to  be  no  evidence  that  the
Research Centre had failed to apply the conditions it had
laid  down.

foreseen 

As  regards  communication,  the  complainant  did  not
participate  in  the  information  meeting  organised  by  the
Research Centre and did not request further information.
There  appeared  to  be  no  basis,  therefore,  for  any  claim
that the Centre should have provided him with additional
information.

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

Decision  on  complaint  475/7.3.96/SH/ROM/KT  against
the  European  Commission

The  complaint

in  Romania.  He  provided 

Mr  H.  had  been  the  local  coordinator  of  a  PHARE
project 
services  as  a
subcontractor,  to  a  company  called  ‘T.T.’  T.T  had  a
contract  with  the  European  Commission  under  the
PHARE  programme  (the  PHARE  contract).

In  February  1996,  T.T  terminated  its  contract  with  Mr
H.  on 
the  grounds  of  his  alleged  unsatisfactory
performance.

In  March  1996,  Mr  H.  complained  to  the  European
Ombudsman.  In  summary,  Mr  H.  complained  that:

1.  The  termination  of  his  contract  was  unjustified  since
the  project  was  on  schedule  and  within  budget.

2.  Changes  to  the  project  initiated  by  the  Commission
Delegation  in  Romania  and  T.T  broke  the  terms  of
the  PHARE  contract  and  decisions  on  the  project
taken  by  the  Commission  Delegation  and  T.T
required prior approval in writing by the Commission
services  responsible  for  PHARE,  which  was  not
obtained.

3.  He  was  denied  access  to  a  copy  of  the  PHARE

contract.

4.  His  request  for  a  meeting  of  the  project  Steering
Committee  to  discuss  the  above  matters  was  refused.

A  year  later,  in  March  1997,  Mr  H.  sent  to  the
Ombudsman  copies  of  material  that  he  had  also
addressed  to  the  Court  of  Auditors  and  the  European
Commission’s  anti-fraud  unit,  UCLAF.  This  material
concerned  alleged  irregularities  in  the  award  of  contracts
financed  by  the  European  Communities  in  Romania.  It
included  allegations  against  two  named 
individuals,
including  the  head  of  the  Commission  delegation  in
Romania.

In  dealing  with  allegations  of  maladministration  that
raise  questions  concerning  the  protection  of  the  financial
interests  of  the  Community,  the  Ombudsman  is  mindful
of the competence of the Court of Auditors under Article
188c of the Treaty establishing the European Community
and  of  the  role  of  the  Commission’s  anti-fraud  unit
UCLAF.  Mr  H.’s  allegations  appeared  to  raise  matters
that  could  be  more  appropriately  considered  for  inquiry

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/45

by  the  Court  of  Auditors  and  UCLAF,  to  whom  Mr  H.
had  already  addressed  the  allegations.  The  Ombudsman
did not, therefore, reopen his inquiry and his decision on
the  case  concerned  only  the  claims  made  in  Mr  H.’s
original complaint.

The  decision

1. 

The  legal  context

The  inquiry

The  Commission’s  comments

The complaint was forwarded to the Commission which,
in  summary,  made  the  following  comments:

1.  According 

to 

the 

information  available 

the
Commission,  important  deficiencies  occurred  in  the
preparation of a seminar and an important gala event
under  the  responsibility  of  Mr  H.

to 

2.  The  seminar  and  workshops  changed  several  times
with  the  agreement  of  the  Commission  delegation.
These changes were largely due to the lack of fruitful
cooperation  and  communication  by  Mr  H.  with  the
rest  of  the  team.  The  termination  of  the  sub-contract
between  T.T  and  Mr  H.  did  not  require  prior
approval  by  the  Commission.  Reallocation  of  funds
that  became  available  because  of  the  termination  of
the  contract  required  Commission  approval.  The
Commission gave its formal approval for amendments
to the contract in order to deal with the consequences
of  the  replacement  of  Mr  H.

3.  Mr  H.  received  a  copy  of  the  contract  between  the

Commission  and  T.T  in  September  1995.

4.  The  Steering  Committee  of  the  project  consisted  of
in
the  Commission  delegation 
the  contractor, 
Romania  and 
for  European
the  Department 
Integration  of  the  Government  of  Romania.  The
members of the Committee unanimously considered it
to  be  unnecessary  to  call  for  a  meeting  to  discuss  the
termination  of  the  cooperation  of  Mr  H.  in  the
contract.

1.1. 

that 

It  appeared  from  the  documents  available  to  the
Ombudsman 
there  was  no  contractual
relationship  between  the  complainant,  Mr  H.,  and
the  European  Commission.  The  Commission
entered into a PHARE contract with a consultancy
company  T.T.  T.T  then  subcontracted  Mr  H.  for
the supply of some of the services it had agreed to
provide  under  the  PHARE  contract.

1.2.  As regards Mr H., therefore, the Commission acted
as  a  public  authority  bound  by  Community  law,
including  the  requirement  to  observe  general
principles  of  good  administration.

2. 

The  termination  of  Mr  H.’s  contract

2.1.  Mr  H.’s  contract  was  with  T.T,  not 

the
Commission.  Since  T.T 
is  not  a  Community
institution  or  body,  the  European  Ombudsman
had  no  competence  to  decide  whether  T.T’s
termination  of  Mr  H.’s  contract  was  justified.

2.2. 

In  so  far  as  T.T’s  actions  with  regard  to  Mr  H.
were subject to provisions of the PHARE contract,
the  Ombudsman  was  competent  to  inquire  into
possible  maladministration  by  the  Commission  in
the  exercise  of  its  powers  in  relation  to  that
contract.

2.3.  The  Ombudsman 

carefully 

examined 

the
provisions  of  the  PHARE  contract  referred  to  by
Mr  H.  It  did  not  appear  that  the  facts  alleged  by
Mr  H.  constituted  a  breach  of  any  of  the
provisions.  It  was  therefore  unnecessary  for  the
Ombudsman  to  consider  whether  a  failure  by  the
Commission  to  enforce  the  terms  of  the  contract
against  T.T,  or  initiation  by  the  Commission  itself
of  changes  to  the  project  which  were  not  in
accordance  with  the  terms  of  the  contract,  would
constitute  maladministration  in  the  circumstances
of  the  case.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr
H.  referred  to  specific  provisions  of  the  PHARE  contract
which  he  claimed  had  been  breached  by  T.T.  The
observations  also 
repeated  his  claims  concerning
unjustified dismissal, delay in giving access to the PHARE
contract  and  the  absence  of  a  Steering  Committee
meeting  to  discuss  his  dismissal  and  the  reasons  for  it.

3. 

The  availability  of  the  PHARE  contract  to  Mr  H.

3.1. 

It appeared that the PHARE contract between T.T
and  the  Commission  was  concluded  on  25  July
1995 and that a copy was made available to Mr H.
at  a  meeting  of  the  Steering  Committee  on  29
September  1995.

3.2.  The  material  supplied  to  the  Ombudsman  did  not
include  any  document  requesting  a  copy  of  the
contract,  nor  did  the  complainant  specify  a  date
when such a request was made. There appeared to

C  380/46

EN

Official  Journal  of  the  European  Communities

7.12.98

be  no  evidence,  therefore,  that  the  gap  of  two
months  between  the  signing  of  the  PHARE
contract and its communication to a subcontractor
represented  maladministration.

a  request  to  be  informed  of  any  action  that  they  might
take  in  relation  to  Mr  H.’s  allegations.  The  Ombudsman
was  subsequently  informed  that  UCLAF  had  begun  an
investigation.

4. 

The  request 
Committee

for  a  meeting  of 

the  Steering

REFUSAL  OF  ACCESS  TO  A  DOCUMENT

4.1.  The  Commission  stated  that  the  members  of  the
Steering  Committee,  which 
the
Commission  delegation,  unanimously  considered  it
not  to  be  necessary  to  call  for  a  meeting  of  the
Steering  Committee  as  requested  by  Mr  H.

included 

4.2. 

4.3. 

It is a general principle of good administration that
a person whose interests are perceptibly affected by
a  decision  taken  by  a  public  authority  must  be
given  the  opportunity  to  make  his  point  of  view
known (1).  If  a  meeting  of  the  Steering  Committee
had  taken  place,  Mr  H.  would  have  had  the
to  present  his  point  of  view
opportunity 
concerning  his  alleged  unsatisfactory  performance.

In  the  circumstances  of  the  case,  however,  the
relevant  decision  (i. e.  to  terminate  Mr  H.’s
sub-contract)  was  made  not  by  the  Commission,
but  by  T.T.  The  question  that  arose,  therefore,  is
whether 
the
it  was  maladministration 
Commission  delegation  not  to  press  for  a  meeting
of  the  Steering  Committee  to  discuss  a  decision
that  was  within  the  competence  of  T.T  and  which
T.T  had  already  made.

for 

to 

to 

the 

before 

4.4.  From  its  comments  to  the  Ombudsman,  it  appears
subsequent
that 
agreeing 
modifications to the PHARE contract requested by
T.T,  the  Commission  satisfied  itself  that  there  was
some  evidence 
support  T.T’s  claims  of
unsatisfactory  performance  by  Mr  H.  The
Commission could therefore reasonably be satisfied
that  the  decision  by  T.T  to  terminate  Mr  H.’s
contract  was  not  manifestly  wrong.  There  appears
to  be  no  basis  for  a  claim  that  principles  of  good
administration  required  the  Commission  to  ensure
what  would  have  been,  in  effect,  an  ad  hoc
informal  hearing  on  a  contractual  dispute  between
T.T  and  Mr  H.

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

In  view  of  the  allegations  made  in  by  Mr  H.  in  March
1997,  the  Ombudsman  sent  a  copy  of  his  decision,  for
information,  to  the  Court  of  Auditors  and  UCLAF,  with

(1)  Case  17/74  Transocean  Marine  Paint  Association  v.

Commission  [1974]  ECR  1063  at  paragraph  1081.

Decision  on  complaint  532/28.3.96/UTEC/B/KT  against
the  European  Commission

The  complaint

Mr  F.  complained  to  the  Ombudsman  in  March  1996
concerning  the  Commission’s  refusal  to  give  him  a  copy
of  a  customs  document  T5.

is  an 

Mr  F.’s  Belgian  company  U. 
import-export
company  specialising  in  trade  with  African  states.  In  an
international  trade  operation,  company  U.  exported  milk
to  Togo  through  a  Dutch  company  C.  The  milk  was
refused  by  the  importer  in  Togo  as  it  was  not  in
conformity  with  the  contract.  Company  U.  immediately
brought  a  legal  action  against  company  C.  before  the
Dutch  courts.

Company  U.  alleged  that  the  Zutphen  Chamber  of
Commerce  had  delivered  a  false  certificate  of  origin  on
the  basis  of  which  company  C.  received  its  payment.
After  having  addressed  both  the  Belgian  and  Dutch
authorities  without  success,  company  U.  requested  the
customs  document  T5  from  the  Commission.  The
Commission  answered  that  only  the  national  authorities
could  provide  the  document.

Mr  F.  addressed  a  complaint  to  the  Ombudsman  asking
him  to  obtain  the  T5  customs  document  from  the
Commission.

The  inquiry

The  Commission’s  comments

the  Commission  stated 

The  complaint  was  forwarded  to  the  Commission.  In  its
comments, 
it  cannot
intervene  in  cases  such  as  the  one  in  question,  since  it
possesses no administrative or legal powers in relation to
disputes  between  private  persons.

that 

According to the Commission, these questions have to be
settled  by  national  law.  Therefore,  the  Commission
advised  company  U.  to  go  to  a  civil  court  in  the
Netherlands  in  order  to  try  to  settle  the  matter.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/47

Furthermore,  the  Commission  stated  that  the  document
in  question  was  not  a  Commission  document,  but  that
the  Commission  services  had  access  to  the  customs
documents  used  by  the  national  services  to  control  the
import  and  export  of  goods.

Such  access  is  specifically  provided  for  by  Regulation
(EEC) No 1468/81 of 19 May 1981 (1) in order to enable
the  Commission  services  to  carry  out  their  task  of
control,  coordination  and  monitoring.  The  Commission
stressed that according to Article 19 of the Regulation, it
was  not  possible,  for  reasons  of  professional  secrecy,  for
to  be
documents  obtained  under 
transmitted by the Commission to third parties for use in
a  civil  procedure.

these  powers 

The  complainant’s  observations

In  his  observations  Mr  F.  maintained  his  original
complaint  and  protested  against  the  attitude  of  the
Commission  of  refusing  him  access  to  the  T5  document
on  grounds  of  professional  secrecy.

Further  inquiries

After  considering  the  Commission’s  comments  and  the
complainant’s  observations,  it  appeared  that  aspects  of
the  complaint  remained  unanswered.  The  Ombudsman
therefore  asked  the  Commission  for  information  about
the  legal  basis  of  the  Commission’s  refusal  to  give  the
complainant  a  copy  of  the  document,  particularly,  in  the
light of the Commission Decision of 8 February 1994 on
public  access  to  Commission  documents.

In  reply,  the  Commission  stated  that  the  customs
document  T5  neither  originated  from  the  Commission
services,  nor  the  services  of  another  institution  or  organ
of the Community, but from company C with the visa of
the  Dutch  customs  authorities.  The  Commission  further
stated  that  it  did  not  hold  that  document  either  in  its
original  form,  or  as  a  copy.

The  decision

On  8  February  1994,  the  Commission  adopted  a
Decision  on  public  access  to  Commission  documents (2).
This  decision  establishes  the  principle  of  wide  access  of
the  public  to  Commission  documents.

The Commission had declared to the Ombudsman that it
was not the author of the customs document T5 and that

(1)  L  OJ  144,  2.6.1981,  p.  1.
(2)  L  OJ  46,  18.2.1994,  p.  58.

it  did  not  hold  that  document  either  in  its  original  form,
or  as  a  copy.

In  these  circumstances,  it  was  not  possible  for  the
Commission  to  give  access  to  the  document  in  question,
which  fell  outside  the  scope  of  the  Commission  Decision
on  public  access  to  Commission  documents.

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

ALLEGED  DELAY  IN  PAYMENT  OF  A  SUBVENTION

Decision  on  complaint  533/01.4.96/ETEN/ES  against
the  European  Commission

The  complaint

In  March  1996  Mr.  C.,  the  technical  secretary  of  the
European 
(ETEN),  a
tourism  education  network 
Europe-wide  non  profit  association,  complained  to  the
Ombudsman  that  the  Commission  had  failed  to  pay  the
outstanding  40 %  of  an  agreed  subvention  for  two
tourism  projects.  He  also 
the
Commission  had  failed  to  reply  to  all  the  letters  sent  by
ETEN asking the Commission to give an explanation for
the  delay  in  payment.

complained 

that 

In  December  1993,  the  Commission  (DG  XXIII)  agreed
to  finance  80 %  of  the  costs  of  two  projects  by  ETEN.
The two projects concerned were the establishment of the
International  Tourism  Students  Association 
(ITSA
project) and the publication of a thesaurus and dictionary
in 
(Thesaurus  project).  The
framework  for  these  subsidies  was  the  ‘Community
action  plan  to  assist  tourism’ (3).  The  subventions  were
the  subject  of  contracts  between  ETEN  and  DG  XXIII
dated  30  and  31  December  1993,  which 
included
‘declarations  by  the  recipient  of  a  financial  assistance’.

terminology 

tourism 

Payment  of  the  subvention  was  to  be  in  two  stages
amounting  to  60 %  and  40 %  of  the  total  amount  due.
The ITSA project was completed in December 1994. The
thesaurus  project  was  completed  in  June  1995,  after  a
six-month  extension  period  awarded  to  ETEN  by  the
Commission. According to the complainant, all necessary
documentation  including  the  final  report  and  statement
of accounts were delivered within time to DG XXIII. The
first  payment  of  60 %  (ECU  57 450  and  ECU  60 480
respectively  for  the  ITSA  and  thesaurus  project)  was

(3)  Council  Decision  92/421/EEC  of  13  July  1992  on  a
Community  action  plan  to  assist  tourism  (OJ  L  23,
13.8.1992,  p.  26);  Community  action  plan  to  assist  tourism,
timetable  of  priorities,  invitations  to  tender  and  calls  for
proposals  (OJ  C  128,  8.5.1993,  p.  7). 

C  380/48

EN

Official  Journal  of  the  European  Communities

7.12.98

made  in  August  1994.  The  Commission  subsequently
failed  to  pay  the  outstanding  40 %,  amounting  to  ECU
78 620  (ECU  38 300  and  ECU  40 320  respectively).

necessary  to  carry  out  an  on-the-spot  inspection  at
the  headquarters  of  ETEN  on  25  April  1996.

requesting  payment  of 

the  Commission  on
ETEN  consequently  contacted 
numerous  occasions 
the
outstanding  sum  and  an  explanation  for  the  delay.  They
received  no  reply  from  DG  XXIII  other  than  the  claim
that they had suffered an administrative delay. Five letters
and  a  fax  sent  to  the  Commission  by  ETEN  between
June  1995  and  April  1996  went  unanswered.  On  the
basis  of  these  facts,  ETEN  complained  to  the  European
Ombudsman  that  the  Commission  had  failed  to  meet  its
obligation  to  pay  the  outstanding  40 %  and  failed  to
provide  ETEN  with  an  explanation  for  this  delay.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points  in
its  comments.

1.  The  Commission  admitted  the  failure  to  reply  to  the
correspondence  of  ETEN  and  apologised  for  it.
Procedures  within  DG  XXIII  for  responding  to
inquiries  about  outstanding  payments  to  similar
bodies  were  being  reviewed  in  order  to  ensure  that
these  inquiries  were  acknowledged  without  delay  and
replies  issued  as  soon  as  possible.

signatures 

contract  with 

2.  The delay in payment was partly due to the fact that,
in the case of the ITSA project, two separate copies of
different
the 
representatives  of  ETEN  were  returned 
the
to 
Commission.  Furthermore  ETEN,  while  located  in
completed
Spain  during 
registration  formalities  in  Luxembourg  in  November
1993  and  changed  its  bank  account  from  Brussels  to
Luxembourg.

the  project  period, 

of 

3.  For  both  projects,  the  Commission  was  not  satisfied
with  the  final  statement  of  accounts  which  did  not
reflect the real costs  of  the projects.  Furthermore, the
supporting  documentation  for  the  claimed  amounts
was  insufficient  and  not  in  accordance  with  the
conditions  of  the  contract.

4.  The  ITSA  project  had  not  been  carried  out  in
conformity with the contract conditions, as one of its
primary  objectives  (offering  traineeships)  had  not
been  achieved.  As  the  Commission  was  not  satisfied
with  the  information  asked  from  ETEN  on  the  state
of  implementation  of  this  project,  it  thought  it

5.  The  Commission  was  not 

satisfied  by 

the
explanations  given  by  Mr.  C.  and  by  the  supporting
documents obtained from ETEN during and after the
on-the-spot  inspection.  A  further  examination  of  the
situation  was 
to
therefore  necessary 
determine  whether  a  final  payment  could  be  made  to
ETEN  or  whether,  on  the  contrary,  an  amount
needed to be recovered from ETEN. Its intention was
to  make  a  final  decision  before  the  end  of  July
1996.

in  order 

The  complainant’s  observations

In  summary,  Mr.  F.,  president  of  ETEN,  made  the
following observations.

1.  The 

the 

and 

registration 

other
formalities 
administrative  facts  which  the  Commission  invoked
did  not  fully  justify  the  delay  in  payment.  More
specifically,  the  administrative  setting-up  procedures
dating  from  1994  could  account  for  some  of  the
initial  delays,  but  not  for  the  later  delays  when  the
projects were completed. Moreover, the Commission’s
explanation  on  this  point  only  concerned  the  ITSA
project  and  did  not  justify  the  delay  in  payment  for
the  thesaurus  project.

2.  The  Commission’s 

services  noticed  during 

the
on-the-spot  inspection  that  the  ITSA  project  had
managed  to  offer  traineeships  to  students  and  that
they  continued  to  be  consolidated,  but  that  the
further  expansion  of  the  project  was  curbed  by  the
lack  of  financial  aid  from  the  Commission.

3.  All  the  material  requested  by  the  Commission  after
the  visit  had  been  sent  to  its  services  within  a  short
time.

4.  By  the  end  of  July  1996  there  had  still  been  no  final
decision  from  the  Commission  and  no  indication  of
an  approximate  date  for  a  final  decision.

letter 

the
In  an  additional 
complainant observed that, due to the delays in payment,
both 
thesaurus  projects  were  seriously
undermined  in  their  development.

the  Ombudsman, 

ITSA  and 

to 

Further  inquiries

The  Commission  informed  the  Ombudsman  that  it  had
communicated to ETEN by letter of 3 December 1996 its
final decision on the payment for the ITSA and thesaurus
projects.  The  Commission  concluded  that,  for  the

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/49

lack  of 

thesaurus  project,  the  final  unpaid  amount  of  ECU
40 320  had  to  be  reduced  to  ECU  25 519  due  to
ineligible  expenditure  and  a 
supporting
documents.  For  the  ITSA  project,  the  Commission
concluded that the full amount of the first 40 % payment
(ECU 57 450) had to be recovered, given the total failure
of the project and the clear indications that the efforts of
ETEN  were  not  such  as  to  provide  any  reasonable
prospect of success. The Commission had therefore sent a
net  result  recovery  order  of  ECU  31 931  to  ETEN.

The  complainant’s  additional  observations

The  complainant  did  not  agree  with  the  final  decision  of
the Commission resulting in a recovery order, given that,
according 
to  him,  both  projects  were  successfully
completed  in  time  according  to  the  terms  agreed.  With
regard  to  the  ITSA  project,  the  complainant  was  of  the
opinion  that  the  Commission  admitted  in  its  letter  of  3
December 1996 that the agreed terms of this project were
essentially  fulfilled  by  the  end  of  December  1994  and
that  the  Commission  was  responsible  for  the  later
financial  and  organisational  problems  of  both  projects.

Finally, 
Ombudsman  to  suspend  the  recovery  order.

complainant 

asked 

the 

the  European

The  decision

1. 

The  complainant’s  claim  to  suspend  the  recovery
order

The  Ombudsman  has  no  power  to  suspend  the
operation  of  a  recovery  order.

2. 

The  Commission’s 
correspondence

failure 

to 

reply 

to

The Commission admitted and regretted the failure
to reply to the letters sent by ETEN. Moreover, the
Commission  also  indicated  that  the  procedures
within  DG  XXIII  in  relation  to  responses  to
inquiries  about  outstanding  payments  were  being
reviewed  in  order  to  ensure  that  these  enquiries
were  acknowledged  without  delay  and  that  the
replies  were  issued  as  soon  as  possible.  No  further
remark  by  the  Ombudsman  therefore  seemed
necessary.

3. 

The  Commission’s  failure  to  pay  the  outstanding
40 %  of  the  subvention

3.1.  The conditions for the payment of the outstanding
40 % of the financial assistance were laid down in

to  and  acceptance  by 

identical terms in the ‘declarations by the recipient
of  a  financial  assistance’,  signed  by  ETEN  on  30
and 31 December 1993. The relevant provisions of
these  declarations  foresaw  that  the  outstanding
40 %  of  the  financial  assistance  would  be  paid
after  submission 
the
Commission  of  the  necessary  documents  (a  report
on  the  use  of  the  financial  assistance,  an  account
statement  or  a  financial  statement  together  with
duly  certified  supporting  documents  indicating  the
nature  and  amount  of  each  item  of  expenditure
and  the  corresponding  income).  These  declarations
also 
the  statement  of
expenditure  fail  to  justify  the  use  of  the  financial
assistance,  ETEN  agreed  to  reimburse,  at  the
Commission’s  request,  any  amount  unduly  paid.

that,  should 

foresaw 

3.2.  ETEN  was  therefore  entitled  to  receive  payment  if
it  fulfilled  the  conditions  in  the  two  declarations.
According  to  the  Commission’s  comments,  the
delay  in  payment  was  essentially  due  to  the  fact
that  ETEN  did  not  fully  comply  with  these
conditions.

3.3.  The  Ombudsman  could  not  determine 

the
substantive  dispute  between  the  Commission  and
ETEN  over  whether  the  latter  had  fulfilled  the
conditions  in  the  two  declarations.  This  question
could  only  be  determined  by  a  court  of  competent
jurisdiction,  which  would  have  the  possibility  to
hear  testimony  and  evaluate  conflicting  evidence.

accordance  with. 

3.4.  The  role  of  the  Ombudsman  in  relation  to  this
aspect  of  the  case  was  to  examine  whether  there
was evidence that the Commission had failed to act
in 
good
administration.  These  principles  require  that  it
should  not  have  delayed  payment  to  ETEN  of  the
outstanding 40 % of the financial assistance unless
concerning  ETEN’s
it  had  genuine  doubts 
fulfilment  of 
two
declarations.

conditions 

principles 

the 

the 

of 

in 

3.5. 

facts  which 

formalities  and 

the  registration 

the  other
If 
administrative 
the  Commission
invoked,  could  not,  as  the  complainant  rightly
observed,  fully  justify  the  delay  in  payment  of  the
outstanding  40 %,  the  other  arguments  which  the
Commission  put  forward  appeared  to  provide
evidence  that  the  Commission  had  genuine  doubts
concerning  ETEN’s  fulfilment  of  the  conditions  in
the  two  declarations.  In  particular,  it  appeared
from  its  comments  that  the  Commission  was  not
fully  satisfied  that  the  final  statement  of  accounts
was  a  true  reflection  of  the  real  costs  of  the

C  380/50

EN

Official  Journal  of  the  European  Communities

7.12.98

projects.  It  also  appeared  to  the  Commission  that
the  supporting  documentation  for  the  amounts
claimed  was  insufficient  and  not  in  accordance
with  the  contract  conditions.

The  inquiry

The  Commission’s  comments

3.6.  Moreover, 

the 

out 

that 

carry 

decided 

the  Commission,
fact 
dissatisfied  with  the 
information  provided  by
ETEN  on  the  state  of  implementation  of  the  ITSA
project, 
an
to 
on-the-spot-control  at  the  headquarters  of  ETEN,
and  later  considered  the  possibility  of  recovering
from  ETEN  a  certain  amount,  confirmed  that  it
had  genuine  doubts  about  ETEN’s  compliance
with  the  contract  conditions.  The  existence  of
genuine doubts on the part of the Commission was
further  confirmed  by  its  final  decision  to  issue  a
recovery  order,  because  of  ineligible  expenditure
and  a 
in  the
lack  of  supporting  documents 
thesaurus-project  and  given  the  total  failure  of  the
ITSA  project.

On  the  basis  of  the  inquiries  into  this  complaint,  there
appeared  to  have  been  no  maladministration  by  the
European  Commission.  In  view  of  these  findings,  the
Ombudsman  decided  to  close  the  case.

Further  remark

The  Ombudsman  noted  that  the  complainant  could
himself submit the dispute concerning the payment of the
outstanding 40 % of the financial assistance and the final
decision  of  the  Commission  to  a  competent  judicial
authority.

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

Mrs  A.  wrote  to  the  President  of  the  European
Commission in April 1996. The letter was referred to the
Commission’s  Representation  in  Copenhagen  for  further
action.

The  Commission’s  Copenhagen  help  desk,  ’Euro-Jus’,
was  entrusted  with  the  matter,  and,  according  to  the
Commission,  its  legal  consultant  spoke  to  Mrs  A.  on  the
telephone  several  times.  Mrs  A.  was  promised  technical
help  to  solve  her  problem  if  she  could  provide  further
information.  This  information  was  requested  by  a  letter
of  22  April  1996  and  a  reminder  of  9  May  1996.  In  the
reminder  letter  the  Copenhagen  Representation  repeated
its  willingness  to  help,  but  explained  that  further
information was needed in order to pursue the matter. A
final  reminder  was  sent  by  the  Legal  Adviser  on  29  May
1996,  explaining  that  without  the  information  requested
it  was  impossible  to  investigate  the  matter;

The  Commission  stated  that  it  remained  more  than
willing  to  assist  Mrs  A.  However,  in  order  to  investigate
the  matter  it  was  essential  that  the  Commission  had  of
the  information  to  which  it  had  already  referred  in  its
correspondence  with  Mrs  A.

HANDLING  OF  A  REQUEST  FOR  INFORMATION  BY  A
COMMISSION REPRESENTATION

Decision  on  complaint  539/3.4.96/MA/DK/PD  against
the  European  Commission

The  complainant’s  observations

The  complaint

In  March  1996,  Mrs  A.  complained  to  the  Ombudsman
alleging that the Commission Representation in Denmark
had  not  assisted  her  properly  as  it  did  not  give  her
information concerning her rights under Regulation (EEc)
No  1408/71 (1).

As  a  Swedish  pensioner  living  in  Denmark,  Mrs  A.  had
run  into  problems  related  to  social  security  in  Denmark.
She  had  written  both  to  the  Danish  Representation  and
to  the  President  of  the  Commission  for  advice.

(1)  OJ  L  149,  5.7.1971,  p.  2.

In  her  observations,  Mrs  A.  maintained  her  complaint.
She  confirmed  that  she  wrote  to  the  President  of  the
Commission  in  April  1996,  but  she  stated  that  she  had
not  received  an  answer  from  him.

Mrs  A.  denied  speaking  several  times  on  the  phone  with
the  legal  consultant  of  the  Representation.  According  to
Mrs A. there had been no telephone contacts between her
and the Office after April 1996. However, she confirmed
speaking  once  with  the  Euro-Jus  representative  on  21
February  1996.

Mrs  A.  stated  that  it  was  not  possible  for  her  to  present
all  relevant  material  before  she  knew  exactly  where
Community  Law  stands.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/51

Mrs A. stated that she had received the letter of 22 April
1996 only towards the end of May 1996. In fact she had
first received the reminder letter of 9 May 1996 to which
the  letter  of  22  April  was  annexed.  Mrs  A.  was
astonished  about  the  delays  in  receiving  these  letters.

1.5.  Therefore  the  Ombudsman  found  that  no  instance
of  maladministration  had  been  established  in  the
way the Commission Representation had replied to
the  abovementioned  letters.

In so far as the content of the letter of 22 April 1996 was
concerned,  Mrs  A.  stated  that  she  had  already  answered
the  first  question  in  her  previous  letter  of  17  February
1996.  Furthermore,  she  considered  the 
latter  three
questions  were  irrelevant  and  aimed  at  frustrating  her.
According  to  Mrs  A.,  also  these  questions  had  been
already answered.

2. 

Delays 
in  receiving  the 
Commission  Representation

letters  sent  by  the

2.1. 

In  her  observations,  Mrs  A.  mentioned  the  delays
in  receiving  the  letters  sent  by  the  Commission
Representation.  The  alleged  delays  appeared  to  be
owing  to  the  fact  that  Mrs  A.  had  used  two
different  addresses  in  her  correspondence  to  the
Commission  Representation  and  to  the  President
of  the  European  Commission.

The  decision

1. 

Correspondence  between  the  complainant  and  the
Commission  services

1.1.  On  17  February  1996,  Mrs  A.  wrote  to  the
Commission 
in  Copenhagen
representation 
requesting help in the matter. In this letter she gave
an  address  in  Fredriksberg.  On  22  February  1996,
Mrs  A.  spoke  on  the  phone  with  the  Euro-jus
representative,  Ms  F.,  who  promised  to  look  into
the  matter.  On  22  April  1996,  Ms  F.  replied  to
Mrs  A.’s  letter  of  17  February  1996  requesting
some  further  information.  This  letter  was  sent  to
the  address  mentioned  in  Mrs  A.’s  letter  of  17
February  1996.

1.2.  On  16  April  1996,  Mrs  A.  wrote  to  the  President
of  the  European  Commission.  In  this  letter  she
gave  an  address  in  Humlebæk.  On  18  April  1996,
the  President 
the
forwarded  her 
Commission  Representation  in  Copenhagen.  On  9
May 1996, Ms F. replied on behalf of the President
of  the  European  Commission  thanking  Mrs  A.  for
her  letter  and  informing  her  that  she  would  try  to
help  Mrs  A.,  but  that  she  would  need  Mrs  A.  ’s
answers to the questions already put forward. This
letter  was  sent  to  Humlebæk  and  Mrs  A.  received
it  towards  the  end  of  May  1996.

letter 

to 

1.3.  The  Commission  Representation  sent  a 

final
reminder letter on 29 May 1996 to both addresses
Mrs  A.  had  used  in  her  correspondence.  In  this
letter  the  request  for  further  information  was
repated.

2.2.  Each  reply  was  sent  to  the  address  Mrs  A.  had
given  in  her  corresponding  letters.  Furthermore,
Mrs  A.  appeared  not  to  have  indicated  her  change
of  address  to  the  Commission.  The  Ombudsman’s
inquiries, 
any
maladministration related to the delays in receiving
the  correspondence.

therefore, 

reveal 

not 

did 

3. 

Assistance 
Representation

provided 

by 

the  Commission

3.1. 

its 

correspondence, 

In 
the  Commission
Representation had indicated that it needed further
information  on  Mrs  A.’s  particular  situation  in
order to investigate the matter. The Representation
had  expressed  its  willingness  to  help,  but  Mrs  A.
had  considered  that  the  questions  put  forward
were irrelevant.

3.2.  The  Ombudsman  found  that  the  Commission
Representation  had  tried  to  assist  Mrs  A.  in  the
matter and that in order to be able to help her the
Representation  had  had 
further
information.

to  ask 

for 

In  view  of  these  findings,  there  appeared  to  be  no
maladministration  by  the  European  Commission.  The
Ombudsman  therefore  closed  the  case.

CONTRACT  FOR  TECHNICAL  ASSISTANCE  IN
ALGERIA

Decision  on  complaint  572/24.4.96/ST/IT/KT  against
the  European  Commission  and  the  European  Court  of
Auditors

The  complaint

1.4.  Based on the above findings, Mrs A.’s letters to the
Commission Representation in Copenhagen and to
the  President  of  the  European  Commission  were
answered  on  22  April  and  9  May  1996.

In  April  1996,  Mr  T.  lodged  a  complaint  with  the
Ombudsman  concerning  a  contract 
technical
assistance  in  Algeria  signed  with  the  Commission.  His
complaint  also  dealt  with  the  opinion  given  on  the
project  by  the  Court  of  Auditors.

for 

C  380/52

EN

Official  Journal  of  the  European  Communities

7.12.98

1.  Concerning  the  Commission

In  1994  Mr  T.  signed  a  contract  with  the  Commission
for  cooperation  in  Algeria,  in  the  context  of  the  PSAS
programme  financed  by  the  European  Community.
Following  a  call  for  tenders,  which  was  handled  by  the
Commission’s delegation in Algeria, the complainant was
awarded  the  project  ‘SEM/03/208/030/A’.

His  tasks  in  Algeria  began  in  March  1994.  Despite  some
difficulties,  the  complainant  managed  to  complete  his
tasks  before  the  deadline  set  in  the  contract  (March
1995). The Commission settled two acounts covering the
six  months  he  worked  in  1994,  but,  as  regards  other
acounts  sent  to  the  Commission  on  15  February  1995
and  18  May  1995,  no  payments  were  made.

Mr  T.  requested  payment  of  those  acounts,  the  payment
of interests for the delay, and also a compensation for the
discredit  to  his  professional  image.  In  March  1996,  the
Commission  agreed  to  settle  the  matter.

Mr  T.  complained  to  the  Ombudsman  about  alleged
maladministration  of  the  Commission 
in  failing  to
provide him with sufficient technical assistance, for abuse
of  power  through  oppressive  contractual  clauses,  for
administrative irregularities and for wrong and erroneous
information  forwarded  to  the  Court  of  Auditors.

2.  Concerning  the  Court  of  Auditors

Mr T. also complained about several remarks included in
the  1994  Annual  Report  of  the  Court  of  Auditors
concerning  the  PSAS  programme  for  Algeria.  In  point
11.69 of the Report, the Court of Auditors indicated that
it  had  limited  its  report  ‘to  the  examination  of  the
documents, and to some meetings with the Commission’s
officials’.  In  the  complainant’s  view,  the  Court  should
have  also  arranged  a  meeting  with  him  to  give  him  the
opportunity  to  justify  his  actions.

The  inquiry

The  complaint  was 
concerned.

forwarded 

to 

the 

institutions

The  Commission’s  comments

In  summary,  the  Commission  made  the  following
points.

Progressively, Mr T. had not complied with the technical
indications  of 
the  contract  and  his  reports  were
incomplete  and  too  vague.

In February 1995, Mr T. forwarded a short report on his
work  activities  for  the  period  from  15  May  1994  to  18

January  1995.  A  second  report  was  sent  on  10  May
1995,  once  the  contract  had  been  completed.  These
reports  were  insufficient  and  had  been  written  in  haste
and  hence  did  not  allow  for  a  clear  evaluation  of.
progress.

The Commission decided to postpone payment of the last
two acounts of the contract until its control procedure, in
which  several  Commission  services  were  involved,  had
been  finalised.

In  June  1996  an  agreement  was  reached  with  the
complainant  who  agreed  not  to  pursue  his  claims  in
exchange  for  the  payment  of  a  lump  sum.

The  Court  of  Auditors’  comments

In  summary,  the  Court  of  Auditors  made  the  following
points.

The  Court  of  Auditors  had  audited  the  development  of
the  PSAS  programme  during  the  period  from  April  1994
to  February  1995.  In  carrying  out  those  tasks,  the  Court
followed  the  criteria  laid  down  in  the  EC  Treaty,  in
particular  Article  188c(3)  which  indicated  that  the  audit
‘shall  be  based  on  the  records  and, 
if  necessary,
performed  on  the  spot  in  the  other  institutions  of  the
Community  and  in  the  Member  States’.  In  the  present
case,  the  Court  decided  not  to  make  checks  on  the  spot
because  of  the  difficult  political  situation  in  Algeria.

the  Commission, 

The  Court  referred  to  the  PSAS  programme  in  its  1994
Annual  Report.  Several  sections  of  the  Report  had  been
drafted  by  the  Court  on  the  basis  of  the  information
provided  by 
in  accordance  with
paragraph 4 of Article 188c. Mr T. was not called on to
give  evidence  since  the  Court  was  not  under  any
obligation to hear private individuals or other bodies. On
the  other  hand,  the  complainant  had  only  informed  the
Court of his wish to be heard once the 1994 Report had
been  published  in  the  Official  Journal.

The  Report  did  not  refer  to  any  aspects  related  to  the
complainant’s  performance  of  the  contract.  The  specific
word  used  in  point  11.75  of  the  Annual  Report  and  to
which  the  complainant  had  referred  (‘as  a  result’)
concerned  all 
in  previous
paragraphs,  and  not  only  the  questions  of  technical
assistance.

the  observations  made 

The  complainant’s  observations

The  complainant  confirmed  that  a  friendly  solution  had
been reached, although he insisted on the need to receive
a  public  apology  from  the  Commission,  and  he  also
requested  that  the  Court  of  Auditors  should  add  a

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/53

corrigendum in the Official Journal to the extent that the
word  ‘as  a  result’  in  point  11.75  of  its  1994  Annual
Report  did  not  concern  the  technical  assistance  he  had
performed.

The  complainant  demanded 
the  Commission
recognise its mistake in a letter in order to rehabilitate his
professional  image.  In  this  letter  it  should  be  declared
that  his  contractual  relationship  with  the  institution  was
settled.

that 

1991.  In  1992  he  moved  to  the  United  Kingdom  where
he was seeking to take up work as a clinical psychologist,
but  the  BPS  refused  to  recognise  his  qualifications  and
required  him, 
in  order  to  obtain  a  Statement  of
Equivalence, to pass the UK Diploma in Psychology. As a
result  of  this  lack  of  recognition,  he  was  ineligible  for
most  appointments  as  a  clinical  psychologist  in  the  UK
National  Health  Service.  He  considered  that  the  BPS
should  have  recognised  his  qualifications  under  Council
Directive  89/48/EEC (1)  and  Council  recommendation
89/49/EEC (2).

The  decision

the 

from 

inquiry  pursued  by 

It  appeared 
the
Ombudsman,  that  Mr  T.  and  the  Commission  both
stated that a friendly settlement had been reached on the
merits  of  the  complaint.  Since  this  settlement  apparently
met most of the complainant’s demands, he expressed his
satisfaction.  Since 
the  Commission  had  publicly
acknowledged  the  agreement  reached  with  Mr.  T,  his
claims  for  public  recognition  were  already  satisfied.

In  assessing  the  meaning  of  point  11.75  in  the  1994
Report  of  the  Court  of  Auditors,  it  could  be  concluded
that  the  tern  ‘as  a  result’  did  not  only  refer  to  the
technical  assistance  provided  by  the  complainant.  From
the context in which it  appeared  it  seemed to  refer to all
the  previous  sections  of  the  Report.  The  object  of  the
Court’s  report  was  the  Commission  and  not  the
complainant.

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
no
complaint, 
maladministration  by  the  Commission  or  the  Court  of
Auditors.  The  Ombudsman  therefore  closed  the  case.

appeared 

there 

have 

been 

to 

NON-RECOGNITION  OF  A  THIRD-COUNTRY
DIPLOMA

Decision  on  complaint  579/2.5.96/MAMG/UK/IJH
against  the  European  Commission

The  complaint

In  April  1996,  Mr  M.  complained  to  the  Ombudsman
concerning 
the  non-recognition  of  his  Argentinian
qualifications  as  a  clinical  psychologist.  His  complaint
was  against  the  British  Psychological  Society  (BPS)  and
the  Commission.  The  Ombudsman  informed  him  that  he
could only deal with the complaint in so far as it related
to  the  Commission,  because  BPS  is  not  a  Community
institution  or  body.

In  April  1993,  the  Citizen’s  Europe  Advisory  Service
(part  of  the  Commission’s  London  Office),  which  was
acting  on  behalf  of  Mr  M.  reported  his  situation  to  the
Commission  and  asked  for  clarification  on  whether  the
requirement  of  the  BPS  to  take  the  entire  UK  diploma  in
order  to  obtain  the  Statement  of  Equivalence  was  in
accordance  with  Directive  89/48/EEC.  In  June  1993,  the
Commission  (DG  XV  —  Internal  market  and  financial
services)  answered  by  saying  that  it  had  received  no
information 
the
complainant’s  Argentinian  diploma  by 
the  French
authorities, and that, therefore, it had serious doubts that
he  fulfilled  the  conditions  in  order  to  benefit  from
Directive  89/48/EEC.  The  Commission  more  particularly
observed  that  the  certificate  submited  to  the  British
authorities by Mr M., was issued by the Spanish Embassy
in Paris and was not a certified photocopy of the original
decision  taken  by  the  French  competent  authorities.

recognition  of 

relating 

the 

to 

According  to  the  complainant,  the  Commission’s  answer
made  unfair  allegations  against  him.  In  January  1995  a
Member of the European Parliament wrote a letter to DG
XV stating that the Commission’s answer to the Citizen’s
Europe  Advisory  Service  was  extremely  negative  and
unhelpful  to  the  complainant.  For  this  reason  he  asked
for  a  review  of  the  matter  and  a  more  carefully
considered  opinion.  The  MEP  pointed  out  that  the
French  Ministry  of  Education  had  recognised 
the
complainant  as  competent  to  practise  on  24  September
1991  and 
the
requirements of at least three years’ professional work in
France  before  he  came  to  the  UK.

the  complainant  had 

fulfilled 

that 

The  Commission  replied  in  February  1995  by  repeating
that,  in  order  to  benefit  from  Directive  89/48/EEC  on  a
general  system  of  recognition  of  higher  education
diplomas,  the  complainant  had  to  justify  three  years  of
professional  experience  certified  by  the  Member  State
which  recognised  his  third-country  diploma  (Article  1(a)
of  the  Directive).  The  Commission  observed  that,  in

According  to  the  complainant,  a  Spanish  citizen,  he
obtained  his  university  qualifications  as  a  clinical
psychologist  in  Argentina  and  later  practised  in  France,
where his qualifications had been recognised in December

(1)  OJ  24.1.1989,  p.  16.
(2)  OJ  24.1.1989,  p.  24.

C  380/54

EN

Official  Journal  of  the  European  Communities

7.12.98

order  to  be  able  to  intervene  with  the  British  authorities
and  ask  them  to  apply  the  Directive  in  this  case,  the
complainant had to send a copy of the formal decision of
the  French  authorities  recognising  his  Argentinian
diploma  to  the  Commission,  as  well  as  the  certificate  of
three  years’  professional  experience.

On  the  basis  of  these  facts,  Mr  M.  complained  to
Ombudsman  that  DG  XV:

1.  failed  to  assist  him  in  obtaining  recognition  of  his

qualifications

2.  made unfair allegations against him in correspondence

concerning  the  matter

not  designed 
complainant’s  good  faith.

to  cast  any  aspersions  on 

the

from 

that  a 

3.  As  regards  the  interpretation  of  Directive  89/48/EEC,
third-country
the  Commission  observed 
diploma  obtained  by  a  Community  national  can  only
benefit 
the
Directive  under  two  conditions  :  (a)  it  must  first  be
recognised by a Member State of the European Union
and  (b)  the  holder  needs  three  years’  professional
experience  certified  by  the  Member  State  which
recognised  the  diploma.

the  recognition  procedure  of 

4.  As regards the alleged failure to give effect to Council
recommendation 89/49/EEC, according to Article 189
of  the  EC  Treaty  a  recommendation  has  no  binding
force.

3.  adopted  an  obstructive  interpretation  of  Directive
three  years’  official

89/48/EEC  by  demanding 
employment  after  recognition

The  complainant’s  observations

4.  failed  to  give  effect  to  recommendation  89/49/EEC
concerning  nationals  of  Member  States  who  hold  a
diploma  conferred  by  a  non-member  State.

The  inquiry

The  complainant  repeated  his  prior  observations  and
added  that  the  documentation  of  his  recognition  had
been  sent  many  times,  including  by  the  Citizen’s  Europe
Advisory  Service  and  by  the  MEP,  but  that  DG  XV  had
removed  the  evidence  proving  this  recognition.  The
complainant  finally  asked  that  his  right  to  employment
was  restored.

The  Commission’s  comments

The  decision

1. 

1.1. 

1.2. 

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

in  obtaining 

1.  As  regards  the  allegation  that  it  failed  to  assist  the
complainant 
recognition  of  his
qualifications, the Commission confirmed the point it
made  to  its  London  office  by  observing  that  it  still
had  no  proof  that  the  French  authorities  had
recognised the Argentinian diploma. The Commission
added  that  it  had  asked  the  complainant  on  several
occasions to send a simple copy of the recognition but
that  he  had  consistently  failed  to  do  so.  The
Commission also observed that, as soon as it received
evidence  that  the  complainant  was  indeed  covered  by
Directive  89/48/EEC,  it  would  be  able  to  contact  the
UK  authorities  on  his  behalf.

2.  With  regard to the  allegation that it had  made unfair
allegations  against  the  complainant,  the  Commission
observed  that  it  was  its  normal  practice  in  dealing
with  complaints  against  Member  States  to  ask  the
complainant 
the  essential
to  supply  copies  of 
documents in order to clarify the facts and to evaluate
the  grounds  of  the  complaint  before  contacting  the
Member State’s authorities, and that this attitude was

The alleged failure of the Commission to assist the
complainant 
his
qualifications

recognition 

obtain 

of 

the  UK  authorities  had  acted 

In  order  to  assist  the  complainant  to  obtain
recognition  of  his  qualifications  and  to  verify
whether 
in
accordance with the Directive, it was necessary for
the  Commission  to  be 
in  possession  of  all
documents  which  could  help  it  to  evaluate  and
verify  the  validity  of  the  relevant  legal  facts  of  the
complainant’s 
The
recognition  by  the  French  authorities  of  the
Argentinian 
complainant
the 
constituted  one  of  these  documents.

professional 

situation. 

diploma 

of 

It appeared from the Commission’s comments that
it  made  several  requests  to  the  complainant  to
obtain a copy of the formal recognition decision by
the  French  authorities,  but  that  the  complainant
failed  to  send  it.  Instead  the  Commission  received
from  him  a  certificate  issued  by  the  Spanish
Embassy  in  Paris,  which  did  not  constitute  a
certified  copy  of  the  recognition  decision  by  the
French 
essential
document,  the  Commission  could  not  start  an
investigation.  The  Commission  observed  several
times  that,  once  it  received  the  requested  copy,  it

authorities.  Without 

this 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/55

would  be  able  to 
authorities.

intervene  with  the  British

RECOGNITION  OF  A  DIPLOMA:  HANDLING  OF  A
COMPLAINT  WITH  THE  COMMISSION

1.3. 

It appeared thus from the foregoing that there was
no  evidence  that  the  Commission  had  failed  to
assist  the  complainant  in  obtaining  recognition  of
his qualifications.

Decision  on  complaint  583/3.5.96/MFCL/IT/KT  against
the  European  Commission

The  complaint

2. 

The  alleged  unfair  allegations  against 
complainant

the

In  May  1996,  Mrs  C.  complained  to  the  Ombudsman
concerning the way her complaint against the Portuguese
authorities  had  been  dealt  with  by  the  Commission.

recognition  decision  by 

By asking the complainant to supply a copy of the
the  French
formal 
authorities and by refusing the certificate issued by
the  Spanish  Embassy  as  proof  of  this  recognition,
the  Commission  was  trying  to  obtain  the  relevant
legal  assessment  of  the
documentation  for  a 
professional  background  of  the  complainant.  By
doing so, the Commission could not be considered
as  having  made  unfair  allegations  against  the
complainant.

3. 

The  Commission’s 
89/48/EEC

interpretation  of  Directive

3.1.  Article  1(a)  of  the  Directive  provides  that  a
third-country  diploma  obtained  by  a  national  of  a
Member  State  can  only  benefit 
the
recognition  system  of  the  Directive  if  ‘the  holder
thereof  has  three  years’  professional  experience
certified  by  the  Member  State  which  recognised  a
third-country  diploma’.

from 

Mrs  C.  informed  the  Ombudsman  that  she  was  a  holder
of  a  French  doctorate  in  linguistics.  She  tried  to  obtain
the  recognition  of  her  French  diploma  in  Portugal
without  success.  The  Portuguese  authorities  considered
that  her  doctorate  did  not  fall  within  the  scope  of
Directive  89/48/EEC (1).

In  January  1994,  Mrs  C.  wrote  to  the  Commission  on
the  subject.  The  General  Secretariat  of  the  Commission
replied  in  May  1994  informing  her  that  her  complaint
was  registered  under  No  94/4382  and  that  it  would  be
examined.

In  her  complaint,  Mrs  C.  asked  the  Ombudsman  to
investigate  the  matter  since  the  Commission  had  neither
closed  her  file  No  94/4382  nor  opened  an  infringement
procedure  against  Portugal.

The  inquiry

The  Commission’s  comments

3.2.  Therefore,  by  requiring  three  years’  professional
experience  after  recognition  of  the  third-country
diploma,  the  Commission  did  not  seem  to  have
adopted  an  interpretation  which  was  contrary  to
the above conditions. It should be recalled however
that the Court of Justice is the highest authority in
the  interpretation  of  Community  law.

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

The subject-matter of the complaint involved the exercise
by  the  Commission  of  its  discretion  with  regard  to
proceedings  under  Article  169.

4. 

The  alleged  failure  of  the  Commission  to  give
effect  to  recommendation  89/49/EEC

As recommendations have no binding force (Article
189  of  the  EC  Treaty),  the  Commission  has  no
power to require a Member State to comply with a
recommendation.  Therefore, 
the  Commission
cannot be considered as having failed to give effect
to  recommendation  89/49/EEC.

On  the  basis  of  the  inquiries  into  this  complaint,  there
appeared  to  have  been  no  maladministration  by  the
Commission  and  the  Ombudsman  therefore  closed  the
case.

Council  Directive  89/48/EEC  of  21  December  1988
established  a  general  system  for  the  recognition  of
higher-education  diplomas  awarded  on  completion  of
professional  education  and  training  of  at  least  three
years’ duration.

On  the  basis  of  the  abovementioned  Directive  the
complainant had a right to obtain recognition in order to
exercise  the  same  professional  activities  in  Portugal  to
which  her  doctoral  degree  gave  her  access  in  France.

The  Commission  services  had  been  corresponding  with
the  Portuguese  and  the  French  authorities  and  the
complainant.  A  detailed  list  of  correspondence  was
provided  to  the  Ombudsman.

(1)  OJ  19,  24.1.1989,  p.  16.

C  380/56

EN

Official  Journal  of  the  European  Communities

7.12.98

Based  on  the  above  correspondence,  the  reply  of  the
French  authorities  and  several  letters  of  individuals  with
similar  problems 
the
Commission decided to discuss the question in a meeting
on  24  April  1996  with  national  coordinators  for  the
application  of  Directive  89/48/EEC.

in  other  Member  States, 

Mrs  C.  was  informed  by  telephone  of  the  meeting  of
coordinators  and  of  the  fact  that  owing  to  the  meeting
calendar  of  the  Commission  all  decisions  relating  to  the
possible  opening  of  an  infringement  proceeding  could  be
taken  at  the  earliest  in  October  1996.

Based  on  the  arguments  advanced  by  the  Portuguese
authorities  and  the  discussion  at  the  meeting  of  the
coordinators,  the  Commission  services  asked  Mrs  C.  to
forward a copy of all correspondence with the Portuguese
authorities  and  a  copy  of  her  diplomas.

The  Commission  indicated  that  Mrs  C.’s  case  concerned
complicated  questions  which  were  currently  being
discussed  between 
the
Commission.  Furthermore,  the  Commission  pointed  out
that  when  its  services  addressed  the  Member  States  for
information, the calendar for treating a file depended to a
large  extent  on  the  latter.

the  Member  States  and 

Finally,  the  Commission  stated  that  Mrs  C.  had  been
kept informed at all times about the evolution of her file
and  that  the  Commission  would  continue  to  keep  her
informed  of  all  actions  taken  by  it  in  the  exercise  of  its
discretionary  powers.

The  complainant’s  observations

In  her  observations,  Mrs  C.  maintained  her  complaint.
She  stated  that  she  had  experience  in  higher  education
and that her diploma was not an academic one as it gave
access to enseignant d’universite´ profession. Furthermore,
she  informed  the  Ombudsman  that  the  Commission  had
requested  further  information  from  her  only  on  12  June
1996 and that she had replied to this request on 19 June
1996.

Further  inquiries

The  Ombudsman  decided  to  request  further  information
from  the  Commission  on  whether  it  had  initiated  an
infringement  procedure  under  Article  169  of  the  EC
Treaty  against  Portugal  concerning  the  transposition  of
Directive  89/48/EEC  as  indicated  in  its  letter  to  the
complainant  in  January  1997.

The  Commission’s  reply

The Commission replied that it had decided to initiate an
infringement  procedure  against  Portugal  under  Article
169  of  the  EC  Treaty.  This  procedure  was  based  on  the
incomplete  transposition  of  Directive  89/48/EEC  into
Portuguese 
it
the  Commission, 
informed  Mrs  C.  by 
in  June  1997  of  the
letter 
developments  of  the  procedure.

law.  According 

to 

The  decision

1. 

The  administrative  stage  of  the  Article  169
procedure

1.1.  Article  169  of  the  EC  Treaty  does  not  lay  down
procedures  or  criteria  to  be  followed  by  the
Commission  in  the  period  preceding  the  issue  of  a
reasoned opinion to a Member State. Furthermore,
the  jurisprudence  of  the  Court  of  Justice  provides
itself
limited  guidance.  The  Commission 
only 
therefore must decide what procedures and criteria
to  adopt  in  order  to  discharge  its  responsibilities
under  Article  169  in  the  process  that  may  lead  to
the  issue  of  a  reasoned  opinion.

1.2.  As  a  matter  of  good  administrative  practice,  the
Commission  should  persist  in  its  attempts  to
obtain  replies  from  the  Member  States  at  the
administrative stage of the infringement procedure.
In  accordance  with  the  case-law  of  the  Court  of
Justice,  Article  5  of  the  Treaty  places  the  Member
States  under  an  obligation 
the
achievement  of  the  tasks  which  the  first  indent  of
Article  155  assigned  to  the  Commission.  The
Member States are required to cooperate bona fide
in an inquiry undertaken by the Commission under
Article 169, and to supply the Commission with all
the  information  requested  to  that  end (1).

facilitate 

to 

Mrs  C.  subsequently  informed  the  Ombudsman  that,  in
November  1996,  she  had  received  a  letter  from  the
Commission  stating  that 
it  would  send  a  formal
notification  to  the  Portuguese  authorities.  In  January
1997,  Mrs  C.  received  another  letter  in  which  she  was
informed that the letter of formal notification had not yet
been sent due to material questions. Mrs C. expressed her
dissatisfaction  with  the  delay  in  sending  the  formal
notification.

1.3.  Given  that  since  6  May  1994  when  Mrs  C.’s
complaint  was  registered  under  No  94/4382  the
Commission  has  continuously  kept  sending  letters
to  the  Member  State  concerned  and  had  kept  Mrs
the  developments  either  by
C. 

informed  of 

(1)  Case  192/84  Commission  v.  Hellenic  Republic  [1985]  ECR

3967,  paragraph  19.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/57

correspondence  or  by  telephone,  the  Ombudsman
found 
of
maladministration  in  relation  to  this  aspect  of  the
case.

there  was 

evidence 

that 

no 

complainant  argued 

The 
this  disagreement
endangered the project as a whole and complained to the
Ombudsman 
take
responsibility  for  resolving  the  disagreement.

the  Commission 

should 

that 

that 

2. 

Decision  to  open  infringement  proceedings  under
Article  169  of  the  EC  Treaty

The  inquiry

2.1.  Article  169  of  the  EC  Treaty  provides  for  the
Commission  to  issue  a  reasoned  opinion  if  it
considers  that  a  Member  State  has  failed  to  fulfil
an  obligation  under  the  Treaty.

2.2.  According  to  the  case-law  of  the  Court  of  Justice,
given  its  role  as  guardian  of  the  Treaty,  the
Commission  alone  is  competent  to  decide  whether
it  is  appropriate  to  bring  proceedings  against  a
its
Member 
obligations (1).

failure 

State 

fulfil 

for 

to 

2.3.  The  Commission  informed  the  complainant  by
letter  in  June  1997  that  it  had  sent  a  formal
notification  to  the  Portuguese  authorities  under
Article  169  of  the  EC  Treaty  concerning  the
incomplete  transposition  of  Directive  89/48/EEC.

2.4.  The  Ombudsman  found,  therefore,  that  there  was
no  instance  of  maladministration  in  the  way  the
Commission  had  conducted  the  inquiries  it  had
undertaken  in  this  matter.

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

FINANCING  OF  A  PROJECT  UNDER  THE  MED-URBS
PROGRAMME

Decision  on  complaint  605/21.5.96/CGW/B/PD/XD
against  the  European  Commission

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments, the Commission pointed out that the contract
providing  funds  for  the  project  was  concluded  between
the  Commission  and  the  Greek  city.  The  association  was
not  a  party  to  the  contract.  Secondly,  the  Commission
remarked  that  a  separate  agreement  on  the  location  of
the  cultural  centre  had  been  concluded  between  the  city
and the complainant and that the Commission was not a
party  to  this  agreement.  The  Commission  concluded  that
it could not be responsible for the city council’s acts and
that  it  had  therefore  no  obligation  to  start  an  inquiry.

The  complainant’s  observations

The  complainant  argued  that  the  Commission  was
responsible  for  the  project  because  it  provided  funds  and
therefore  made  possible  the  creation  of  the  cultural
centre.

According  to  the  complainant,  the  Commission  had  a
moral  obligation  to  support  the  project.  This  obligation
could  be  derived  from  some  provisions  of  the  contract
intended  to  ensure  continuity  of  the  project.  The
Commission  could  not,  on  the  one  hand,  finance  a
project  and,  on  the  other  hand,  allow  this  project  to  be
endangered  by  the  city  which  is  in  charge  of  the
coordination  of  the  project.

The  complaint

The  decision

In May 1996, Mrs S. complained to the Ombudsman on
behalf  of  an  association  about  a  project  funded  in  the
framework  of  the  MED-URBS  programme.

A  contract  was  signed  between  the  Commission  and  a
city  in  Greece  to  finance  a  MED-URBS  project.  The
association  benefited  from  the  project  and  had  made  an
agreement  with  the  Greek  city  about  the  location  of  a
cultural  centre.  Later,  a  problem  arose  between  the
association  and  the  city  about  the  location  of  the
centre.

(1)  Case  431/92  Commission  v.  Federal  Republic  of  Germany

[1995]  ECR  I-2189,  paragraph  22.

Firstly,  the  Ombudsman  noted  that  there  was  no
contractual 
link  between  the  complainant  and  the
Commission. On the one hand, the contract financing the
project  was  concluded  between  the  Commission  and  the
Greek city. On the other hand, the agreement concerning
the  location  of  the  cultural  centre  was  signed  by  the
complainant  and  the  city  only.

Secondly,  the  Ombudsman  considered  the  provisions  of
the  contract  which  was  concluded  between 
the
Commission  and  the  city.  The  Commission  had  to
finance  the  project  in  so  far  as  the  city  respected  the
conditions  laid  down  in  the  contract.  According  to  the
Commission,  the  project  was  financed  because  the
conditions of the contract were fulfilled. The contract did
not  provide  any  further  obligations  for  the  Commission.

C  380/58

EN

Official  Journal  of  the  European  Communities

7.12.98

Thirdly,  the  Ombudsman  considered  the  contract  in  the
global framework of the decentralised cooperation which
underpins  the  European  programme  MED-URBS.  The
Community finances projects which respect the spirit and
the  conditions  laid  down  in  the  programme.  It  cannot
answer  for  a  project  or  have  responsibility  for  every
practical problem which could occur in the framework of
a  project.

Against  this  background,  the  European  Ombudsman
found  no 
the
Commission’s  attitude  and  closed  the  case.

instance  of  maladministration 

in 

TREATMENT  BY  A  COMMISSION  REPRESENTATION

Decision  on  complaint  615/30.5.96/LK/FIN/KT/VK
against  the  European  Commission

The  complaint

In  May  1996,  Ms  K.  complained  to  the  Ombudsman
about the way the Commission Representation in Finland
had  treated  her.  In  April  1996,  Ms  K.  contacted  the
Commission  Representation  in  Finland  and  enquired
about  the  reimbursement  of  her  travel  expenses  from
Commission  competition  EUR/LA/74.  She  claimed  that
the reply given by the office was impolite as she was told
to  contact  the  Commission  in  Brussels.  Earlier  in  1996,
Ms  K.  had  contacted  the  Representation  in  Finland  to
request  information  on  recruitment  opportunities.  The
Representation  had  similarly  replied  that  Ms  K.  should
call Brussels.

The  complainant’s  observations

In  her  observations,  Ms  K.  maintained  her  complaint.  In
to
that 
addition, 
compensation as a result of the late payment of her travel
expenses.

she  was  entitled 

she  claimed 

The  decision

1.  As  regards  the  advice  given  by  the  Commission
Representation  in  Finland,  the  Commission  stated
that  the  Representation  regularly  provides  general
information about open competitions on request. It is
the practice of the Representation to refer members of
the  public  who  have  detailed  questions  concerning
specific  recruitment  matters  to  the  Recruitment  Unit,
DG  IX,  in  Brussels.

According  to  the  Commission,  Ms  K.  was  given  the
correct assistance throughout. The Commission stated
that  above  all,  her  personal  rights  were  at  all  times
respected.

In  her  observations  Ms  K.  neither  contested  nor
presented  evidence  to  the  contrary  in  relation  to  this
aspect  of  the  case.

The  Ombudsman  therefore  found  no  evidence  of
maladministration  in  relation  to  the  advice  given  by
the  Commission  Representation  in  Finland.

2.  On 5 June 1996, the payment of travel expenses, was
ordered by the Commission. On 10 July 1996, Ms K.
acknowledged  having  received  this  payment  some
weeks earlier.

The  Ombudsman  noted  that  if  the  complainant
intended  to  pursue  her  claim  for  compensation,  it
should  be  addressed  directly  to  the  Commission.

In  her  complaint  Ms  K.  expressed  dissatisfaction  about
the  way  the  Commission  Representation  in  Finland  had
responded  to  her  enquiries.

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

The  inquiry

RECRUITMENT  OF  TEMPORARY  AGENTS

Decision  on  complaint  631/10.6.96/AS/L/KT  against  the
European  Commission

The  Commission’s  comments

The  complaint

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  informed  the  Ombudsman
about  the  nature  of  advice  given  by  the  Commission
Representation in Finland. It stated that in this particular
case, Ms K. was advised to telephone Brussels. According
to  the  Commission,  one  week  later  she  had  approached
the  relevant  unit  by  letter.

In  June  1996,  Mr  S.  complained  to  the  Ombudsman
concerning  the  selection  of  temporary  agents  by  the
European  Commission  (AT/3/95,  reference  21T/SDT/95).
The  selection  board  had  notified  the  complainant  by
letter  of  23  April  1996  of  its  decision  to  exclude  him
from an interview. Mr S. contested this decision by letter
to  the  Commission,  who  answered  confirming  the  initial
decision.  Mr  S.  then  addressed  a  complaint  to  the

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/59

Ombudsman 
qualifications  in  competition  AT/3/95.

concerning 

the 

assessment  of  his

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that,  following  the
publication  of  a  notice  of  vacancy,  the  Commission  had
forwarded  213  applications  to  the  selection  board.  The
members  of  this  board  were  experts 
in  the  field
concerned  by  the  notice.  They  first  checked  that  the
general  conditions  were  respected  by  all  candidates  (see
Article  12  of  the  Staff  Regulations),  and  then  compared
the  special  competences  of  the  candidates  in  relation  to
the  requirements  of  the  duties  to  be  held.  Mr  S.  was  not
among  the  16  candidates  who  were  shortlisted  for  an
interview.

When  he  contested  his  exclusion  from  the  group  of
selected  candidates,  Mr  S.  was  told  in  writing  that  the
selection  board  had  reexamined  his  application.  As  the
board  had  concluded  that  other  candidates  were  better
qualified  than  the  complainant,  it  maintained  its  initial
decision,  justifying  it  by  the  need  for  the  candidate  to
have  an  in-depth  knowledge  of  computational  linguistics
as  described  in  the  notice  of  vacancy.

The  decision

In  contrast  to  the  Staff  Regulations  of  the  European
Communities  which  apply  to  the  recruitment  of  officials,
the  Regulations  Applicable  to  other  Servants  of  the
European  Communities,  which  apply  to  temporary
lay  down  any  specific  recruitment
agents,  do  not 
procedure.

to 

According 
the  Commission,  selection  procedure
21T/SDT/95  aimed  at  recruiting  Temporary  Agents  of
grade  LA 7/LA 6  responsible  for  the  development  of  the
automatic  translation  systems  of  the  Commission.

The Commission also stated that the selection board had
undertaken a comparative examination of the candidates’
particular qualifications in relation to the requirements of
the post. It concluded that the complainant’s professional
qualifications  were  limited  to  the  development  of  a
particular  system  of  computational  linguistics.

In  view  of  the  fact  that  the  selection  board  gave  the
complainant  a  reasoned  decision  and  that  the  inquiries
carried  out  by  the  Ombudsman  did  not  give  him  any
reason  to  doubt  the  correctness  of  the  reasoning,  there
was  no  evidence  of  maladministration.  The  Ombudsman
therefore  closed  the  case.

RADIONAVIGATION  SYSTEMS  IN  EUROPE:  LACK  OF
IMPLEMENTATION

Decision  on  complaint  638/13.6.96/CC/F/VK  against  the
European  Commission

The  complaint

In  June  1996,  Mr.  C.  complained  to  the  Ombudsman,
alleging  that  the  Commission  had  failed  to  implement  its
obligations  under  Council  Decision  92/143/EEC  of  25
the
February  1992  concerning 
radionavigation  systems  for  Europe,  in  particular  the
operation  of  the  Mediterranean  Loran-C  chain.

functioning  of 

the 

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

1.  The  Commission  shared  the  complainant’s  view  that
everything  should  be  done  to  operate  the  Loran-C
chain  and  to  ensure  full  coverage  of  the  Western
Mediterranean  with  the  Loran-C  signal.

2.  The  Commission  had  reached  an  agreement  in  1995
with  the  Spanish  authorities  for  the  reopening  of  the
relevant station (Estarit). However, Spain had not yet
this  agreement.  The  Commission
implemented 
therefore  planned  to  report  to  the  Council  on  the
non-implementation  and 
to  start  a  new  radio
navigation  policy  as  a  result  of  which  a  draft  report
on  Loran-C  chains  would  be  presented  to  the
Council.

the  Commission 

3.  Council Decision 92/143/EEC requires Member States
and 
to  set  up  a  worldwide
radionavigation  system,  including  European  regional
Loran-C  chains.  However,  the  Decision  leaves  the
responsibility  to  become  a  party  to  regional  Loran-C
agreements  solely  to  the  Member  States,  and  it  does
not  contain  a  binding  commitment  to  maintain  or  to
develop  the  system.

4.  The  Commission  made  considerable  efforts 

to
convince Member States to set up a regional Loran-C
agreement.

The  complainant’s  observations

The  complainant  pointed  out 
there  was  an
obligation  on  the  contracting  parties  to  an  international
agreement  to  establish  and  maintain  navigation  aids.

that 

C  380/60

EN

Official  Journal  of  the  European  Communities

7.12.98

The  decision

The  Commission  is  obliged  to  fulfil  its  obligations
regarding  the  functioning  of  the  radionavigation  systems
under  Council  Decision  92/143/EEC.

Article  2  of  the  Decision  provides  that  the  Commission
shall  ensure  cooperation  between  Member  States,
encourage  the  development  of  receivers  and  pursue  its
work  with  a  view  to  setting  up  a  radionavigation  plan
and  propose  the  necessary  measures  to  the  Council.

from 
that 

information  given 

the 
the  Commission 

the
to 
It  appeared 
Ombudsman, 
had  made
arrangements to come to an agreement with the Member
States.  It  reached  an  agreement  with  Spain  in  1995.
However,  since  then  the  Spanish  authorities  have  not  yet
implemented  the  relevant  provisions.  According  to  the
Commission  it  planned  to  report  to  the  Council  on  the
non-implementation  and  to  start  a  new  radionavigation
policy  as  a  result  of  which  a  draft  report  on  Loran-C
chains  would  be  presented  to  the  Council.

It  appeared  that  the  Commission  had  fulfilled 
obligation  as  regards  the  1992  Council  Decision.

its

The  complainant  stated  that  the  contracting  parties  were
obliged  to  arrange  for  the  establishments  and  the
maintenance  of  aids  for  navigation.

This  requirement  is  based  on  the  1974  International
Convention for the Safety of Life at Sea (SOLAS 1974). It
is  not  a  requirement  of  the  1992  Council  Decision.
Furthermore,  the  Commission  is  not  a  party  to  the
Convention.  The  Commission  therefore  is  not  obliged  to
arrange  for  the  establishment  and  the  maintenance  of
aids  to  navigation.

The inquiry of the European Ombudsman in this case did
not  reveal  any 
instance  of  maladministration.  The
Ombudsman  therefore  closed  the  case.

AGRICULTURE:  TENDER  FOR  THE  SUPPLY  OF  RYE
FLOUR

Decision  on  complaint  647/18.6.96/JEW/A/VK  against
the  European  Commission

The  complaint

In  June  1996,  JEW,  an  Austrian  flour  mill  enterprise,
complained to the Ombudsman concerning a contract for
the  supply  of  rye  flour  for  which  it  successfully  tendered
in  accordance  with  Commission  Regulation  (EC)  No
2389/95  of  11  October  1995 (1).

The  Commission  imposed  a  penalty  for  late  delivery  of
the  goods  on  the  complainant.  The  abovementioned
Regulation  states  that  the  goods  were  to  be  delivered
with  effect  from  4  December  1995.  According  to  the
complainant,  the  Commission  had  wrongly  interpreted
the  Regulation  by  requesting  that  the  goods  were  to  be
delivered  at  the  latest  on  4  December  1995.  Particularly
in view of the fact that the goods were taken over by the
relevant  freight  carrier  within  10  days,  as  foreseen  in  the
justified.
Regulation, 
Furthermore, 
the
Commission  discriminated  against  smaller  enterprises.

the  penalty  did  not 

complainant 

alleged 

seem 

that 

the 

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  the  period  of  10
days  was  not  meant  to  enable  the  deliverer  to  divide  the
flour supply into different delivery shifts. It is exclusively
meant  to  give  the  transporter  some  flexibility  in  his
planning.  The  deliverer  is  therefore  not  left  with  a  time
margin  and  the  entire  amount  of  flour  should  have  been
kept ready for transport on 4 December. The penalty was
therefore  justified.

As  regards  discrimination  against  smaller  enterprises,  the
Commission  stated  that 
it  especially  decreased  the
quantity  of  goods  in  order  to  enable  smaller  enterprises
to  participate  in  the  tender.

The  complainant  did  not  make  any  observations.

The  decision

Article  12  of  Commission  Regulation 
(EC)  No
2009/95 (2)  provides  that  the  supply  security  which
successful  tenderers  lodged  in  favour  of  the  Community
shall be forfeited when delays occur in delivery caused by
the  producer.

From  the  information  given  to  the  Ombudsman,  it
appeared  that  the  goods  were  not  delivered  within  the
time schedule foreseen and that therefore the penalty was
justified.  Furthermore  there  appeared  to  be  no  evidence
of  discrimination  against  smaller  enterprises.

The  inquiry  of  the  Ombudsman  into  this  case  did  not
instance  of  maladministration.  The
reveal 
Ombudsman  therefore  closed  the  case.

any 

(1)  OJ  L  244,  12.10.1994,  p.  53.

(2)  OJ  L  196,  19.8.1995.  p.  4.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/61

APPEAL  AGAINST  A  DECISION  NOT  TO  PROLONG  AN
INTER-UNIVERSITY  PROGRAMME

applicant  or  his  or  her  institution.  Examples  of  such
circumstances  are  sudden  death  or  illness.

Decision  on  complaint  661/25.6.96/DG/FK/KT  against
the  European  Commission

The  complaint

The  principle  of  equal  treatment  plays  an  important  role
in the outcome of the appeal. If the selection procedure is
changed,  on  the  basis  of  a  complaint,  other  applicants
should  have  the  opportunity  to  reapply  under  new
conditions.

Mr  G.  was  Vice-President  of 
the  Groupe  Écoles
Supe´rieure de Commerce de Rennes (GSC Rennes), which
received  funding  under  the  Erasmus  programme  for  an
(ICP).  GSC
inter-university  cooperation  programme 
Rennes  did  not  submit  a  reapplication 
for
form 
1996/1997 for its ICP. In the absence of the reapplication
form, the Erasmus Office decided not to prolong the GSC
Rennes  ICP  into  the  year  1996/1997.

By  letter  of  13  May  1996,  Mr  G.  complained  to  the
Head of TAO Socrates and Youth about the decision and
explained  that  GSC  Rennes  had  never  received  the
reapplication  form  for  1996/1997.

As  Mr  G.  had  not  received  any  reply  to  his  letter  by  21
June  1996,  he  complained  to  the  Ombudsman  in  June
1996.  In  his  complaint  he  expressed  concern  about  the
procedures of the Erasmus office. In particular, he alleged
that there exists no possibility to appeal against decisions
of  the  Office.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary  the  Commission’s  comments  were  as  follows.

There  is  no  institutionalised  system  of  appeal  against  the
decisions  of  the  Erasmus  office.  Complaints  both  on
qualitative  judgments  and  on  procedural  matters  are
examined  ad  hoc.

If  administrative  errors  occur  in  the  procedures  used  by
the Commission or its Technical Assistance Office (TAO)
in  dealing  with  a  proposal,  the  Commission  has  the
power  to  correct  those  errors  and  reconsider  the
proposal.

The  Commission  explained  that  it  had  decided  to  reject
Mr  G.’s  appeal  on  the  grounds  that  it  had  informed
in  the
universities  twice  of  the  necessity  to  send 
1996/1997 
the
to 
Commission, Mr G. seemed to have at least received one
of  the  relevant  letters  as  he  quoted  it  in  his  letter  of
appeal.

form.  According 

reapplication 

Furthermore, the Commission stated that in similar cases
where  a 
formal  procedural  requirement  has  been
neglected,  it  has  not  considered  there  to  be  sufficient
grounds 
the  selection  decision.  The
principle  of  equal  treatment  therefore  implied  that  this
case  could  not  be  reconsidered.

to  reconsider 

The  Commission’s  comments  were  forwarded  to  Mr  G.
with an invitation to submit observations if he so wished.
No  observations  appear  to  have  been  received.

The  decision

It  appeared  from  the 
information  provided  to  the
European  Ombudsman  that  the  Commission  uses  an  ad
hoc  procedure  for  dealing  with  appeals.  The  procedure
can be used to examine and correct administrative errors
both  on  the  part  of  the  Commission  or  its  Technical
Assistance  Office  and  on  the  part  of  the  applicant.

According to the Commission, it evaluated the arguments
put  forward  by  Mr  G.  to  the  effect  that  he  had  not
received 
them
unconvincing.

the  reapplication 

form  and 

found 

In refusing to accept a reapplication outside the deadline,
the  Commission’s  reasoning  refers  to  the  principle  of
equal  treatment.  It  states  that  similar  cases  in  which  ICP
coordinators  have  omitted  formal  requirements  have  not
been  accepted  by  the  Commission  as  providing  sufficient
grounds  to  reconsider  the  selection  decision.

The  Commission’s  practice  in  cases  where  the  applicant
makes a procedural error is to examine whether the error
is  due  to  circumstances  beyond  the  control  of  the

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

C  380/62

EN

Official  Journal  of  the  European  Communities

7.12.98

STAFF:  ADDITIONAL  SALARY  PAYMENTS

Decision  on  complaints  669/17.6.96/ND/L/VK;
670/27.6.96/KM/L/VK  and  679/1.7.96/CS/L/VK  against
the  European  Commission

The  complaint

In June 1996, Ms D, Ms S. and Mr M. complained to the
Ombudsman about the refusal of the Commission to pay
them  additional  salaries.

The  complainants  had  passed  an  open  competition
enabling  them  to  obtain  a  higher  grade.  The  officials
were  appointed  to  the  higher  grade  without  any
recognition  of  their  work  experience.

Following  a  judgment  by  the  Court  of  First  Instance  in
the
cases  brought  by  other  Commission  officials, 
complainants  benefited  from  a  regrading.  However,
additional  salary  payments  were  backdated  only  to  the
date  of  the  Court’s  judgment  in  1993.

The  officials  used  the  possibilities  for  internal  complaint
provided  by  Article  90  of  the  Staff  Regulations  but  their
complaints  were  rejected.  The  officials  then  complained
to  the  Ombudsman,  claiming  that  they  should  have
received  the  additional  salary  for  their  improved  step
with  effect  from  the  date  of  their  nomination  to  the
higher grade.

The  inquiry

The  Commission’s  comments

The complaints were forwarded to the Commission. In its
comments,  the  Commission  made,  in  summary,  the
following  points.

Following  the  judgment  of  the  Court  of  First  Instance  in
Baiwir  and  others  v.  Commission (1),  the  grading  in  the
step  of  officials  passing  an  open  competition  in  a  higher
category could be based on either Article 32 or Article 46
of  the  Staff  Regulations,  whichever  gave  a  more
favourable  result  for  the  official  concerned.  On  10
an
February  1994, 
administrative  notice  inviting  officials  to  apply  to  have
their  grading  reconsidered  in  the  light  of  the  judgment.
The notice stipulated that the effect of any changes could
not  be  backdated  to  before  the  date  of  the  judgment  (28
September  1993).

the  Commission  published 

(1)  Joined  cases  T-103/92,  T-104/92  and  T-105/92  [1993]  ECR

II-987.

Following the publication of the notice, the complainants
sought  to  have  their  original  grading  changed  and  a
decision was taken to this effect. The officials then made
a  complaint  according  to  Article  90(2)  of  the  Staff
Regulations.  They  objected  to  the  fact  that  the  improved
step  they  had  obtained  only  took  effect,  in  terms  of  its
salary equivalent, from the date of the judgment and not
retrospectively  from  the  date  of  their  appointment  in  the
new  category.

The  complaint  was  rejected  by  the  Commission  on  the
grounds  that  the  benefit  of  a  judgment  can  only  be
obtained by the parties to it and that an action based on
that  judgment  brought  by  other  persons  can  only  have
effect  for  the  future.

for 

the 

it  not 

terms  of 

Were 
the  Commission’s
administrative  notice,  the  complainants  would  have  been
barred  from  contesting  the  grading  decision  under
Articles  90(2)  and  91  of  the  Staff  Regulations.  These
Articles,  which  exemplify  the  application  of  the  principle
of  legal  certainty,  provide  that  a  decision  adversely
affecting  an  official  must  be  challenged  within  three
months  from  the  date  of  its  notification.

The  complainants’  observations

The  complainants  stated  that  the  Commission  had
breached  the  principle  of  equality.  One  complainant  did
not  find  it  comprehensible  that  the  Commission  on  one
hand  provided  for  retroactive  regrading  but  on  the  other
hand, it would not consider the complainant to be in the
same  situation  as  the  parties  of  the  Baiwir  judgment.

The  decision

1.  On  28  September  1993,  the  Court  of  First  Instance
gave  judgment  in  joined  cases  Baiwir  and  others  v.
Commission  and  thereby  annulled  decisions  of  the
Commission  applying  to  the  applicants  in  those
cases.

2.  The  Commission 

published 

subsequently 

an
administrative  notice  inviting  other  officials,  who
were  not  parties  to  the  Baiwir  case,  to  apply  to  have
their  grading  reconsidered 
the
judgment. The notice stipulated that the effect of any
changes could not be backdated to before the date of
the  judgment.  The  question  at  issue  in  this  complaint
was  whether  the  Commission  was  entitled  to  impose
this  restriction.

light  of 

the 

in 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/63

3.  The  Commission’s  original  decision  concerning  the
step  in  the  complainant’s  grading  was  made  in  June
1984. The time limits for appeal against this decision
under the Staff Regulations expired several years ago.
These  timelimits  are  mandatory  and  were  laid  down
with a view to ensuring clarity and legal certainty (1).
According  to  the  case-law  of  the  Court  of  Justice,
only  the  emergence  of  a  ‘new  fact’  is  capable  of
causing  time  to  start  running  again (2).

4.  In  this  regard,  the  Court  has  consistently  held  that  a
judgment  annulling  an  administrative  measure  can
constitute  a  new  fact  only  as  regards  the  persons
directly 
is
annulled (3).

the  measure  which 

affected  by 

therefore, 

5.  In  relation  to  officials  who  were  not  parties  in  the
Baiwir  case, 
the  Commission  could
properly  decide  that  any  change  in  grading  should
have  effect,  in  terms  of  salary,  only  from  the  date  of
the  judgment  in  that  case.  The  Commission  was,
therefore, also entitled to consider that a difference in
treatment in this respect between the applicants in the
Baiwir case and other officials was justifiable and did
not  violate  the  principle  of  equality (4).  It  should  be
recalled,  however,  that  the  Court  of  Justice  is  the
highest  authority  on  questions  of  Community  law.

WS  stated  that  the  relevant  Commission  officials  of  DG
VIII  had  not  provided  sufficient  information  so  that  it
could  not  present  its  project  in  time  and  in  the  correct
form.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  the  foundation
had  attempted  to  adapt  its  initial  project.  The  successive
versions  of  the  project  had  never  fully  complied  with  the
relevant  budget  heading.  The
objectives  of 
Commission  claimed  that  it  had  always  attempted  to
explain  carefully  its  successive  refusals  and  to  provide
documentation to help the complainant review the design
of  its  project  and  to  formulate  a  new  project  which
would  be  eligible  under  the  relevant  budget  heading.

the 

The  Commission  admitted  that  it  took  a  very  long  time
to assess the project which was partly due to long periods
of silence on the part of the complainant and its inability
to  design  an  acceptable  and  sustainable  development
project.

The  inquiry  of  the  European  Ombudsman  into  this  case
did  not  reveal  any  instance  of  maladministration.  He
therefore  closed  the  case.

The  complainant’s  observations

DEVELOPMENT:  APPLICATION  FOR  FUNDING  UNDER
THE  BUDGET  HEADING  FOR  TROPICAL  FORESTS 

Decision  on  complaint  677/1.7.96/AYMY/NL/VK
against  the  European  Commission

The  foundation  stated  that  a  delegation  of  its  Suriname
office had met with representatives of the Commission in
order to discuss the project. The complainant pointed out
that  this  discussion  had  been  very  positive.  The  final
decision  was  to  be  made  in  Brussels  at  a  later  date.

The  complaint

The  decision

In  June  1996,  WS,  a  foundation,  complained  to  the
Ombudsman concerning its participation in a tender for a
project  for  sustainable  development  of  the  tropical  rain
forest  in  Suriname.

(1)  Case  C-191/84  Barcella  and  others  v.  Commission  [1986]

ECR  1541.

(2)  Case  127/84  Esly  v.  Commission,  [1985]  ECR  1437.
(3)  Case  43/64  Mller  v.  Councils  of  the  EU,  EAEC  and  ECSC
[1965]  ECR  385);  Case  125/87  Leslie  Brown  v.  Court  of
Justice  [1988]  ECR  1619.

(4)  Case  T-93/94  Michael  Becker  v.  Court  of  Auditors  [1996]

ECR  II-145.

From  the  information  given  to  the  Ombudsman,  it
appeared  that  there  were  unfortunate  initial  delays.  The
Commission  however,  explained  the  successive  refusals
and  provided  documentation  to  help  the  complainant
review  the  design  of  the  project.  The  complainant  had
furthermore  the  chance  to  reapply  under  the  same
conditions.  There  was  therefore  no  evidence  that  these
delays  were  responsible  for  the  complainant’s  failure.  to
achieve  funding  for  its  project.

The  Ombudsman’s  inquiry  into  this  case  did  not  reveal
any  instance  of  maladministration.  The  Ombudsman
therefore  closed  the  case.

C  380/64

EN

Official  Journal  of  the  European  Communities

7.12.98

ALLEGED  FAILURE  TO  RESPOND  TO  A  COMPLAINT

Decision  on  complaint  701/3.7.96/JE/UK/KT  against  the
European  Commission

The  complaint

Mrs  E.  stated  that  she  had  submitted  a  complaint  to  the
in  September  1994  regarding  possible
Commission 
breaches  of  the  Habitats  Directive  92/43/EEC  by  the
Newbury  bypass  road  in  the  UK.  She  complained  to  the
European  Ombudsman  in  June  1996  that  she  had  not
received any correspondence from the Commission about
the  matter.

The  inquiry

The  Commission’s  comments

The complaint was forwarded to the Commission, which
commented  as  follows:

The  complaint  . . .  was  addressed  to  Mr  Ken  Collins
MEP  on  14  September  1994,  who  forwarded  it  to
Directorate-General  XI  on  20  September  1994  where
it  was  received  on  23  September  1994.  On  30
September  1994  Mrs  E.  spoke  by  telephone  with  the
official  in  DG  XI  responsible  for  the  complaint.  At
some point before 11 October 1994, Mrs E. instructed
Messrs  D.  as  solicitors  for  her  in  relation  to  this
complaint.

Correspondence  from  Messrs  D.  and  Mrs  E.  occurred
during  October  and  early  November  1994.  DG  XI
wrote  to  Messrs  D.  on  10  November  1994,  7  March
1995  and,  finally  on  6  December  1995  when  the
decision of the Commission of 20 October 1995 not to
open  infringement  proceedings  was  communicated  to
them.  Further  correspondence  with  Messrs  D.  has
taken  place  since  that  date.

this 

correspondence  with 

solicitors
Further 
to 
in  respect  of  this  matter,
instructed  by  Mrs  E. 
Commissioner  Bjerregaard  wrote 
the
Newbury  Transport  Forum  address  used  by  her  in
other  correspondence  on  12  and  19  July  1995
concerning  her  complaint.

to  her  at 

The  Commission  opinion  also  contained  a  detailed
schedule  of  the  abovementioned  correspondence.

The  comments  of  the  Commission  were  forwarded  to
Mrs E. with an invitation to make observations, if she so
wished.  No  observations  were  received.

The  decision

1.  The  complainant  stated  that  she  had  received  no
correspondence  from  the  Commission  concerning  her
complaint,  made  in  September  1994.

2.  It 

that 

appeared 

the  Commission 

addressed
correspondence  on  the  matter  to  the  complainant’s
solicitors,  from  whom  correspondence  about  the
complaint had been received. It also appears that two
letters  from  Commissioner  Bjerregaard  were  sent  to
(the  Newbury
the  complainant  at  an  address 
Transport 
other
correspondence  concerning  the  complaint.

Forum) 

used 

her 

by 

in 

3.  There  appeared  therefore  to  be  no  evidence  that  the
Commission  breached 
the  principles  of  good
administrative  behaviour  by  failing  to  respond  to  the
complaint. Furthermore, the Commission appeared to
have  acted  reasonably  in  sending  correspondence  to
the  complainant’s  solicitors  and  to  the  complainant
herself  at  the  address  of  the  Newbury  Transport
Forum.

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

STAFF:  REIMBURSEMENT  BY  THE  ADMINISTRATION

Decision  on  complaint  735/736/17.7.96/EE/L/VK
against  the  European  Commission

The  complaint

In  July  1996,  Mr.  E.,  a  Commission  official,  lodged  a
complaint with the Ombudsman concerning his claim for
reimbursement  for  a  pair  of  glasses  for  computer  work
and a medical machine for muscles and nerves. The claim
for  reimbursement  had  been  rejected.

The  inquiry

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  referred  to  the  Regulations
on  the  reimbursement  of  costs  of  spectacles  according  to
which,  under  certain  circumstances,  wearers  of  Varilux
lenses  of  around  55  years  of  age  may  be  able  to  claim
reimbursement.  In  the  present  case,  the  Medical  Service
decided 
the  necessary
requirements.  It  later  explained  that  the  reimbursement
was  not  possible  because  only  lenses  which  are  entirely
meant for computer work at a distance of around 70 cm
can  be  taken  into  account.

that  Mr  E.  did  not  meet 

The  medical  machine  was  considered  non-functional.

The  complainant  pointed  out  that  the  Commission  did
not  follow  its  own  protection  measures  for  its  staff  and
that  the  glasses  were  necessary  in  order  to  carry  out  the
work  properly.  The  medical  machine  would  save  the
complainant  visits  to  the  physiotherapist  as  he  could  use
it  at  home.  He  could 
therefore  work  without
interruption.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/65

The  decision

From  the  information  given  to  the  Ombudsman,  it
appeared  that  the  relevant  regulations  were  applied
properly,  and  that  the  evaluation  procedure  was  carried
out  accordingly  by  the  Medical  Service.  There  appeared
to  be  no  grounds  for  the  allegation  of 
incorrect
application  of  the  existing  rules.

inquiry  did  not 

The 
instance  of
maladministration. The Ombudsman therefore closed the
case.

reveal 

any 

(2) failure  to  provide  accurate 

information  because
whenever he called he was always directed to officials
who  had  no  knowledge  of  the  actual  matter;

(3) possible  discrimination  on  the  grounds  that  he  was

not  Italian;

(4) unfair treatment because a new competition had been
held  before  the  recruitment  reserve  list  had  been
exhausted;

(5) avoidable  delay  because  he  was  informed  only  in
April  1995  that  the  period  of  validity  of  the  relevant
reserve  list  was  being  extended  to  31  December
1995.

RECRUITMENT:  RIGHTS  OF  A  PERSON  ON  A  RESERVE
LIST

The  inquiry

Decision  on  complaint  746/96/KT  against  the  European
Commission

The  complaint

competition  COM/R/C/4/89950375. 

In  July  1996,  X  complained  to  the  Ombudsman
concerning 
In
accordance with Article 2(3) of the Statute the complaint
was  classified  as  confidential  at  the  request  of  the
complainant.

According  to  the  complaint,  X  applied  in  January  1989
for  a  post  in  the  security  service  of  the  Joint  Research
Centre  in  Ispra,  Italy.  On  23  November  1990,  the
complainant  was  informed  of  being  placed  on  a  reserve
list  for  a  temporary  post.  The  validity  of  the  reserve  list
was  originally  foreseen  to  end  on  30  June  1991.
However, the period of validity was later prolonged until
31  December  1994  and  again  until  31  December  1995.
At  the  date  of  the  complaint,  X  had  not  yet  been
recruited  by  the  Joint  Research  Centre  in  Ispra.

The  complainant  found  out  that  no  other  candidates
were  left  on  the  reserve  list.  In  the  complaint,  X
expressed  his  disappointment  at  learning  that  there  was
an  intention  to  hold  a  new  competition  to  fill  the  very
post  he  had  applied  for.  He  explained  that  he  had  been
informed  that  the  security  service  was  understaffed  and
that  there  was  still  need  for  a  firearms  instructor.  X  had
also  heard  rumours  that  the  reason  for  the  failure  to
recruit him was that there was disagreement between the
Head of Division at the Centre, and the Head of the local
security  service  as  the  latter,  himself  Italian,  was  said  to
be  willing  to  recruit  only  fellow  Italians.

X  stated  that  he  was  lodging  his  complaint  on  a  number
of  grounds:

The  Commission’s  comments

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

Being on a reserve list does not give a candidate any right
to  be  recruited  by  the  Commission.  X  had  been
personally  informed  of  this.

regards 

As 
the  allegation  of  discrimination,  X’s
information  was  false.  In  fact,  only  one  Italian  national
was  placed  on  the  reserve  list,  but  that  person  was  not
recruited  by  the  Centre.

The  Commission  had  organised  a  new  competition  for
temporary  agents  for  the  security  service  of  the  Joint
Research  Centre  for  category  D  and  not  for  agents  in
category  C  as 
in  which  X  had
participated.

the  competition 

The  Commission  considered  that  Mr  X’s  complaint  was
unfounded.

The  complainant  made  no  observations  on 
comments.

the

The  decision

1. 

Rights  of  a  person  on  a  reserve  list

1.1. 

It follows from the case law of the Court of Justice
that  the  fact  that  the  name  of  a  person  is  on  a
reserve  list  does  not  confer  on  this  person  an
entitlement 
the  Community
institutions.

to  a  post  with 

1.2.  As  regards  the  complainant’s  allegation  that  the
service  concerned  is  understaffed,  this  allegation
had  remained  unsubstantiated.

(1) maladministration  as 

the  service  seems 

to  be

understaffed;

1.3.  Having regard to the above and given the fact that
there were no elements at hand, indicating that the

C  380/66

EN

Official  Journal  of  the  European  Communities

7.12.98

Commission  had  used  incorrect  procedures,  the
Ombudsman’s inquiries did not reveal any instance
of  maladministration  in  relation  to  this  aspect  of
the  complaint.

2. 

Failure  to  provide  accurate  information

2.1.  The  complainant’s  allegation  of  failure  to  provide
information  seemed  to  refer  to  his

accurate 
telephone  calls  to  the  Commission.

2.2. 

to 

the  Ombudsman 

the
In  his  complaint 
complainant  indicated  that  he  had  regularly  had
telephone  and  written  contacts  with  the  official
responsible  for  the  Ispra  personnel  department.
The  official  responsible  had  made  a  note  of  the
complainant’s  interest  to  be  recruited  into  his  file.

2.3.  The  Ombudsman  did  not  find  any  evidence  of
maladministration  in  relation  to  the  allegation  of
failure  to  provide  accurate  information.

3. 

Discrimination  on  the  grounds  of  nationality

3.1.  As  regards  the  alleged  discrimination  based  on
nationality, the complainant claimed that there had
been  a  preference  to  recruit  only  Italian  nationals.
In  its  opinion,  the  Commission  stated  that  the
reserve  list  included  only  one  candidate  of  Italian
nationality,  who  was  not  recruited  by  the  Joint
Research  Centre.

3.2.  On  the  basis  of  the  Ombudsman’s  inquiries  it
appeared  therefore  that  there  was  no  evidence  of
maladministration  in  relation  to  this  aspect  of  the
complaint.

4.  Organising  a  new  competition  before  the  reserve

list  had  been  exhausted

4.1. 

In  his  previous  decisions,  the  Ombudsman  has
taken  the  view  that  when  staffing  requirements
arise,  the  Commission  is  not  obliged  to  wait  for  a
reserve list to be exhausted before launching a new
competition.

4.2.  The  Commission  stated  in  its  opinion  that  a  new
competition  had  been  organized  this  time  in  order
to  recruit  agents  in  category  D.  This  is  in  fact  a
lower  category  than  the  category  C  competition  in
which the complainant had participated in January
1989.

4.3.  The  Ombudsman’s  inquiries  did  not  therefore
reveal  an  instance  of  maladministration  in  relation
to  the  organising  of  a  new  competition  for
category  D  before  exhausting  the  reserve  list  for
category  C.

5. 

Avoidable  delay  in  possible  recruitment

5.1.  As 

in 

to 

informing 

the  alleged  delay 

the
complainant  in  April  1995  that  the  period  of
validity of the reserve list was being extended to 31
December  1995,  the  Ombudsman  accepts  that  the
Commission has the right to extend the validity of
a  specific  reserve  list.

5.2.  The  validity  of  the  reserve  list  for  competition
COM/R/C/4/89950375  was  originally  foreseen  six
months ahead, from November 1990 until 31 June
1991. In May 1993 the complainant was informed
that the validity was prolonged another six months
until  31  December  1994.  In  fact,  the  complainant
had already been informed on 15 March 1995 that
the  validity  had  been  extended  by  nine  months
until  31  December  1995.

5.3. 

In  view  of  the  above  findings,  and  the  fact  that  it
seemed  that  the  decision  to  prolong  the  validity  of
the  reserve  list  was  favourable  to  the  complainant,
the  Ombudsman  did  not  find  an  instance  of
maladministration  in  relation  to  this  aspect  of  the
complaint.

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

FAILURE  TO  PROMOTE  A  COMMISSION  OFFICIAL

Decision  on  complaint  754/23.7.96/LS/IT/DT  against
the  European  Commission

The  complaint

In  May  1996,  Mr  S.  complained  to  the  Ombudsman
about the failure of the Office for Official Publications of
the  European  Communities  (OPOCE)  to  include  him  in
the  promotions  list.

Not  being  selected  among  the  proposed  candidates  for
promotion  to  grade  B 1  in  1994,  Mr  S.  used  the  internal
complaints  procedure  of  Article  90(2)  of  the  Staff
Regulations.  In  the  reply  to  his  Article  90(2)  complaint,
the  Director  General  for  Personnel  informed  him  that  no
irregularities had taken place in the promotion procedure.
It was stated that OPOCE had proceeded on the basis of
the information reports of all B 2 officials included in the
promotion 
list,  and  that  the  other  five  candidates
included  in  the  list  were  more  qualified  than  him.

In  his  complaint  to  the  Ombudsman,  Mr  S.  alleged  that
he had been subject to administrative irregularities by his
superiors at OPOCE, and also by the Legal Service of the
Commission.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/67

He  also  claimed  that  this  discrimination  had  continued,
since  he  had  not  been  promoted  in  1995  or  1996.

used  by  the  Commission  to  reach  its  decision.  They
included  personnel  reports,  comparative  tables  and/or
related  material  employed  by  the  appointing  authority  in
assessing  the  merits  of  the  candidates.

The  inquiry

The  Commission’s  comments

The  Commission  sent  the  Ombudsman  confidential
information  used  by  the  appointing  authority  in  the
selection  procedure  for  the  1994  promotion.

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission’s  comments  were  as  follows:
(i)  other  applicants  were  better  qualified  than  the
complainant for a promotion in 1994; (ii) even if in 1995
Mr  S.  was  not  proposed  for  a  promotion  to  B 1  grade,
his  superiors  suggested  that  his  name  be  included  in  the
promotion list for 1996 or 1997, provided that he carried
out his tasks with similar standards; (iii) the complainant
was  included  in  the  1996  promotion  list  with  31  other
officials,  but  at  the  end  of  the  evaluation  procedure  only
three obtained a promotion and he was not among them;
(iv)  the  Promotions  Committee  for  B  grade  had  been
informed  about  the  ‘slow  career’  of  Mr  S.  Nevertheless,
that was a problem to be dealt with primarily by his own
service which had to submit a proposal for a promotion;
(v)  no  irregularities  had  been  committed  in  the  selection
procedure  for  promotions  and  the  main  criteria  for
promotions  had  been  based  on  the  candidate’s  merits.

The  complainant’s  observations

included 

In  his  observations  on  the  Commission’s  comments,  Mr
S.  stressed  that  his  slow  career  path  only  began  in  1994
and  that  although  he  was 
in  the  1996
promotion  list,  his  inclusion  had  to  overcome  a  series  of
irregularities  due  to  obstructionism  by  the  head  of
OPOCE  and  the  Legal  Service.  He  also  pointed  out  that,
because  of  the  modifications  made  in  the  procedure  to
evaluate  career  promotions 
in  1993,  some  of  his
colleagues  who  were  less  qualified  than  himself  enjoyed
an  advantage  as  a  consequence  of  his  exclusion.

Further  inquiries

Although  the  Commission  had  indicated  in  its  opinion
that  there  had  not  been  any  irregularities  in  the  selection
procedure  for  1994,  the  Ombudsman  considered  that
there were no objective elements in the institution’s letter
to  verify  this  assertion.

The  decision

With  respect  to  the  selection  procedure  for  promotion  in
1994, because of the nature of the promotions procedure,
and as set out in Article 45 of the Staff Regulations, and
recognised  by  the  Court  of  Justice,  the  appointing
authority enjoys a large margin of discretion. In using its
discretion,  the  appointing  authority  has  to  consider  the
merits  of  the  candidates  on  the  basis  of  objective
elements  susceptible  of  control  as  recognised  by  the
Court  of  Justice.

In  order  to  ensure  that  the  exercise  of  the  Commission’s
discretion in this process had followed principles of good
administration,  the  Ombudsman  inspected  a  series  of
confidential  documents  used  by  the  appointing  authority
in  assessing  the  merits  of  the  candidates.  From  the
inspection,  it  appeared  that  the  Commission  had  reached
its decision with due reference to a number of prima facie
objective  criteria.  There  was  no  evidence,  therefore,  that
the Commission had used its discretion for this particular
promotion  in  1994  in  an  arbitrary  or  discriminatory
way.

Mr S. had also complained about alleged unfair treatment
by  the  Commission  in  the  selection  proceedings  for  the
1995  and  1996  promotions.  He  did  not  contest  these
proceedings internally within the Commission. According
to  Article  2(8)  of  the  Statute  of  the  Ombudsman:  ‘No
complaint  may  be  made  to  the  Ombudsman  that
concerns  work  relationships  between  the  Community
institutions  and  bodies  and  their  officials  and  other
servants  unless  all  possibilities  for  submission  of  internal
administrative  requests  and  complaints,  in  particular  the
procedures  referred  to  in  Article  90  (1)  and  (2)  of  the
Staff  Regulations,  have  been  exhausted  by  the  person
concerned  (. . .)’.

In  order  to  ensure  that  the  exercise  of  the  Commission’s
discretion in this process had followed principles of good
administration, the Ombudsman requested by letter of 18
July 1997 to inspect a number of confidential documents

As  this  condition  had  not  been  met  in  relation  to  the
selection proceedings for the 1995 and 1996 promotions,
the  Ombudsman  did  not  pursue  his  inquiries  as  regards
this  part  of  the  complaint.

C  380/68

EN

Official  Journal  of  the  European  Communities

7.12.98

In view of these findings, there appeared to have been no
maladministration  by  the  Commission.  The  Ombudsman
therefore  closed  the  file.

STAFF:  FREEDOM  OF  EXPRESSION 

Decision  on  complaint  794/5.8.1996/EAW/SW/VK
against  the  European  Commission

The  complaint

Mr  W.,  a  Swedish  national,  complained 
the
Ombudsman  in  July  1996  about  a  letter  sent  by  Mr
Erkki  Liikanen, 
the  Commission
the  Member  of 
responsible  for  personnel  and  administration,  to  Mr
Carl-Magnus Lemmel, deputy Director-General of DG III
of  the  Commission.

to 

It  appeared  from  the  file  on  the  complaint  that  the
Swedish  newspaper  Dagens  Politik  published  remarks
attributed  to  Mr  Lemmel.  The  remarks  were  critical  of
the  working  methods  of  the  Commission.  The  complaint
concerned  that  fact  that  following  the  abovementioned
remarks  published  in  the  Dagens  Politik,  Mr  Liikanen
wrote  to  Mr  Lemmel.  Mr  Lemmel  himself  did  not
complain  to  the  Ombudsman.  He  was  informed  of  the
complaint  and  of  the  Ombudsman’s  inquiry  into  it.  He
information  to  the
did  not  submit  any  views  or 
Ombudsman.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  The
comments  of  the  Commission  contained  the  following
statements.

The  public  expression  of  opinion  by  officials 
is
governed by Article 12 of the Staff Regulations, which
provides  that  ‘an  official  shall  abstain  from  any  action
and,  in  particular,  any  public  expression  of  opinion
which  may  reflect  on  his  position’.  Furthermore,
Article  17  of  the  Staff  Regulations  provides  that  ‘an
official shall exercise the greatest discretion with regard
to  all  facts  and  information  coming  to  his  knowledge
in the course of or in connection with the performance
of  his  duties’.

In  spite  of  these  provisions  of  the  Staff  Regulations,
the  Commission  decided  in  the  case  in  question  not  to
itself  to
start  disciplinary  proceedings.  It 
sending  a  letter  reminding,  on  the  one  hand,  the
official,  who  had  just  been  recruited,  of  the  duty  of
reserve  to  which  all  officials  are  subject  and,  on  the
other  hand,  recalling  that  the  Commission  expects  all

limited 

its  officials,  and  particularly  officials  in  the  higher
grades,  to  be  creative  and  attentive  to  improvements
the  management  and
that  could  be  made 
in 
implementation  of 
the
initiatives  should  be
these 
institution.  However, 
examined  and  followed  by  appropriate  means  inside
the Commission, so that they can give rise to proposals
and  be  translated  into  concrete  measures.

tasks  entrusted 

the 

to 

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  the
complainant stated that in Sweden, freedom of expression
is  a  constitutional  right  which  is  also  enjoyed  by  civil
servants.  He  also  stated  that  he  considered  that  the
Commission  imposed  severe  restrictions  on  the  freedom
of  expression  and  that  this  was  inappropriate.

The  decision

1. 

The  facts  on  which  the  Ombudsman’s  decision
was  based

On  the  basis  of  the  inquiries  conducted  by  the
European Ombudsman, the relevant facts appeared
to  be  as  follows.

1.1.  Remarks  critical  of  the  Commission’s  working
procedures  appeared  in  a  Swedish  newspaper  and
were  attributed  to  Mr  Lemmel.

1.2.  No  disciplinary  proceedings  against  Mr  Lemmel

were  initiated.

1.3.  A 

letter  was  addressed 

to  Mr  Lemmel  by
Commissioner  Liikanen.  According 
the
Commission’s  opinion  on  the  complaint,  the  letter
reminded  Mr  Lemmel  of  the  duty  of  reserve  to
which  officials  are  subject.  In  this  context,  the
Commission  referred  to  Articles  12  and  17  of  the
Staff  Regulations.

to 

2. 

The  Staff  Regulations

2.1.  The  first  paragraph  of  Article  12  of  the  Staff

Regulations  provides  that:

‘An official shall abstain from any action and, in
particular,  any  public  expression  of  opinion
which  may  reflect  on  his  position’.

In  its  opinion,  the  Commission  also  quoted  from
the  first  paragraph  of  Article  17  of  the  Staff
Regulations:

‘An  official  shall  exercise  the  greatest  discretion
with  regard  to  all  facts  and  information  coming
to  his  knowledge 
in
connection  with  the  performance  of  his  duties;
. . .’.

in  the  course  of  or 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/69

2.2. 

In  considering  the  duty  of  allegiance  owed  to  the
Communities  by  officials,  the  Court  of  Justice
stated  in  its  decision  in  Oyowe  and  Traore  v.
Commission (1)  that:

‘the  Staff  Regulations  cannot  be  interpreted  in
such  a  way  as  to  conflict  with  freedom  of
expression, a fundamental right which the Court
must  ensure  is  respected  in  Community  law’.

2.3.  According  to  the  case  law  of  the  Court  of  Justice,
the  European  Convention  on  Human  Rights,
which  is  also  mentioned  in  Article  F(2)  of  the
Treaty  on  European  Union,  provides  a  basis  for
human  rights  as  general  principles  of  Community
law.

2.4.  Article 10 of the European Convention on Human
Rights  guarantees  the  freedom  of  expression,
which  includes  freedom  to  hold  opinions  and  to
receive  and  impart  information  and  ideas  without
interference  by  public  authority.  Article  10(2)  of
the Convention mentions that the exercise of these
freedoms  carries  with  it  duties  and  responsibilities
and envisages that, under certain conditions, limits
on  freedom  of  expression  may  be  prescribed  by
law.

2.5.  According  to  the  decision  of  the  European  Court
of Human Rights in Vogt v. Germany (2), although
it  is  legitimate  to  impose  on  civil  servants,  on
account  of  their  status,  a  duty  of  discretion,  civil
servants  are  individuals  and,  as  such,  qualify  for
the protection of Article 10 of the Convention. The
Court  mentioned  in  the  same  case  the  need  to
ensure that a fair balance has been struck between
the fundamental right of the individual to freedom
of  expression  and  the  legitimate  interest  of  a
democratic  State  in  ensuring  that  its  civil  service
properly  furthers  the  purposes  enumerated 
in
Article  10(2).  In  this  context,  the  Court  also
remarked  that,  whenever  civil  servants’  right  to
freedom  of  expression  is  in  issue,  the  ‘duties  and
responsibilities’  referred  to  in  Article  10(2)  assume
a special significance.

(1)  Case  C-100/88  [1989]  ECR  4285  at  paragraph  4309.
(2)  Judgment  of  26  September  1995,  Series  A  No  323.

2.6.  The  Commission  did  not 

take  disciplinary
proceedings  against  Mr  Lemmel,  but  confined  its
actions  to  sending  a  letter  reminding  him  of  his
duties  under  the  Staff  Regulations.  According  to
the Court of Justice of the European Communities,
these duties cannot be interpreted in such a way as
to  conflict  with  freedom  of  expression.

2.7.  On  the  basis  of  the  Ombudsman’s 

inquiries,
therefore,  there  appeared  to  be  no  evidence  of  an
interference with freedom of expression in this case
or,  more  generally,  of  any 
intention  by  the
Commission  not  to  strike  a  fair  balance  between
the fundamental right of the individual to freedom
of expression and the duties and responsibilities of
officials.

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

Further  remarks  by  the  European  Ombudsman

According  to  the  Court  of  Justice,  the  Staff  Regulations
cannot  be  interpreted  in  such  a  way  as  to  conflict  with
freedom of expression. The Commission’s opinion on the
complaint  in  this  case  focused  on  the  restrictions  which
the  Staff  Regulations  impose  on  the  public  expression  of
opinion  by  officials.  It  did  not  expressly  acknowledge,
however,  that  officials  have  a  fundamental  right  to
freedom  of  expression.

As  it  appears  in  Article  10  of  the  European  Convention
on  Human  Rights,  freedom  of  expression  includes  the
freedom  to  hold  opinions  and  to  receive  and  impart
information  and  ideas  without  interference  by  public
authority. Article 10(2) of the Convention envisages that,
under certain conditions, limits on freedom of expression
may  be  prescribed  by  law.

In  this  context,  it  is  also  worth  remarking  that  the
Commission’s  opinion  to  the  Ombudsman  in  this  case
quoted only the first part of the first paragraph of Article
17  of  the  Staff  Regulations.  The  paragraph  continues:

(an  official)  ‘shall  not  in  any  manner  whatsoever
disclose  to  any  unauthorised  person  any  document  or
information  not  already  made  public.  He  shall
continue  to  be  bound  by  this  obligation  after  leaving
the  service’.

If  read  literally,  without  regard  to  the  statement  by  the
Court  of  Justice  that  the  Staff  Regulations  cannot  be
interpreted  in  such  a  way  as  to  conflict  with  freedom  of
expression,.  this  part  of  Article  17  could  be  thought  to
forbid  officials  from  putting  any  information  whatsoever

C  380/70

EN

Official  Journal  of  the  European  Communities

7.12.98

into  the  public  domain,  thereby  preventing  them  from
engaging  in  any  public  discussion  of  their  work.  Such  an
interpretation  would  be  incorrect.

The  Commission  may  wish  to  consider  whether  it  could
provide  guidance  to  its  officials  on  what  it  considers  to
be  a  fair  balance  between  their  individual  right  to
freedom  of  expression,  which  includes  the  freedom  to
impart  information  and  ideas,  and  their  duties  and
responsibilities as officials, in particular under Articles 12
and  17  of  the  Staff  Regulations.

Community  law  by  the  Portuguese  authorities.  However,
the  Commission  services  then  decided  to  undertake  an
own-initiative  inquiry  into  the  matter.  The  case  was  still
under  examination  when  the  complainant  wrote  to  the
European  Ombudsman.

The  complainant  first  alleged  that  the  Commission  was
taking  too  long  to  deal  with  the  complaint  and  second,
that  the  Commission  did  not  take  any  positive  action  to
solve the alleged infringements of Community law by the
Portuguese  authorities.

The issuing of such guidance could help ensure fulfilment
of  the  requirement  under  Article  10(2)  of  the  European
Convention  on  Human  Rights  that  restrictions  on
freedom  of  expression  be  ‘prescribed  by  law’,  by  putting
officials  in  a  position  to  foresee  the  risks  that  particular
courses  of  action  may  involve.

The  inquiry

The  Commission’s  comments

Publication  of  such  guidance  including,  in  particular,
acknowledgment  of  the  fact  that  officials  have  a
fundamental  right  to  freedom  of  expression,  could  also
help  enhance  relations  between  the  Commission  and
European  citizens  by  avoiding  possible  confusion  and
misunderstandings  on  this  question.

The  complaint  was  forwarded  to  the  Commission.  In
summary 
the
following  points.

the  Commission’s  comments  made 

1.  The complaint was filed because detailed examination
showed that it did not provide sufficient evidence that
there  was  an  infringement  of  Community  law.

CAR  IMPORTS  INTO  ANOTHER  MEMBER  STATE:
HANDLING  OF  COMPLAINTS  LODGED  WITH  THE
COMMISSION

Decision  on  complaint  822/16.8.96/SJH/PO/VK/XD
against  the  European  Commission

The  complaint

In  August  1996,  Mr  H.  complained  to  the  Ombudsman
against  the  European  Commission.  He  sent  additional
material  in  September  and  November  1996.

In  October  1995,  Mr  H.  had  made  a  complaint  to  the
Commission  alleging  that  the  Portuguese  authorities  did
not  comply  with  Community  law  in  matters  related  to
the  importation  of  cars  into  Portugal.  Non-Portuguese
citizens  were  facing  difficulties  with  the  lengthy  and
expensive  registration  procedure  for  vehicles  which  had
previously  been  registered  in  other  Member  States.

In  October  1996,  the  Commission  decided  to  close  the
file  on  the  grounds  that  detailed  examination  did  not
provide  sufficient  evidence  regarding  an  infringement  of

2.  Subsequently,  an  own-initiative 

inquiry  by 

the
Commission  was  intended  to  ensure  a  thorough
examination  on  aspects  related  to  the  free  movement
of  goods  mentioned  in  the  complainant’s  further
correspondence.  A  meeting  between  the  services  of
the  Commission  and  the  Portuguese  authorities  was
held  to  discuss  the  case.

3.  The Commission contested the allegation that it failed
to deal with the complaint within a reasonable period
of  time  and  the  alleged  lack  of  positive  action  to
resolve  the  alleged  infringements  of  Community  law.
It  pointed  out  that  the  services  of  the  Commission
had made a thorough analysis of the alleged problems
and  that  they  had  written  very  detailed  explanatory
letters  to  the  complainant  concerning  all  the  aspects
successively raised in the various letters he had sent to
the  Commission.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  the
complainant  stated  that  he  found  it  difficult  to  believe
that  there  was  insufficient  evidence  to  start  infringement
proceedings.  He  mentioned  a  series  of  facts  which  he
claimed  demonstrated  that  there  was  a  clear  breach  of
Community  law.  He  also  alleged  that  the  Commission
had  met  the  wrong  department  of  the  Portuguese
administration  during  its  inquiry.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/71

The complainant also stated that the problem was urgent.
He  recognised  that  he  had  received  a  lot  of  information
in  his  view,  the
from  the  Commission.  However, 
situation  remained  unresolved  and 
the  Portuguese
authorities  were  still  infringing  Community  law.  He
could  not  understand  why  the  Commission  had  failed  to
act  over  two  years.

2.2. 

It  must  also  be  mentioned  that  the  Commission
needs a certain time to carry out a legal analysis of
the  alleged  problem  before  taking  a  decision  to
start  infringement  proceedings  against  a  Member
State.  In  dealing  with  this  case,  nothing  seems  to
indicate that the Commission failed to comply with
principles  of  good  administrative  behaviour.

The  decision

Conclusion

1.  With  regard  to  the  alleged  delay  taken  by  the

Commission  to  deal  with  the  complaint

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
complaint, 
no
maladministration  by  the  Commission.  The  Ombudsman
therefore  closed  the  case.

appeared 

there 

have 

been 

to 

it  appeared 

the  present  case, 

1.1.  Under  the  Commission’s  internal  rules,  a  decision
to close the file without taking any action must be
taken  within  a  maximum  period  of  one  year  from
the  date  of  its  registration,  except  in  special  cases.
In 
the
complainant  had  lodged  a  complaint  with  the
Commission 
the
Commission  decided  to  close  the  file  without
taking  any  action  in  October  1996.  Therefore  the
one year time limit was respected. It also appeared
from  the  copy  of  the  correspondence  sent  by  the
the
Commission 
complainant  had  been  kept  well  informed  about
the  processing  of  the  complaint.

in  October  1995  and 

the  Ombudsman 

that 

that 

that 

to 

1.2.  The Commission decided to start an own-initiative
inquiry  into  the  matter  in  November  1996.  It
appears  that  the  Commission  sent  a  letter  to  the
Portuguese  authorities  in  December  1996  and  that
it met the Portuguese authorities in February 1997.
The  fact  that  it  launched  an  own  initiative  inquiry
and 
authorities
demonstrates the willingness of the Commission to
deal  with  the  problem.  It  must  also  be  mentioned
that the Commission has to decide which inquiries
need to be undertaken as well as the form of these
inquiries.

Portuguese 

contacted 

the 

2.  With  regard  to  the  alleged  lack  of  positive  action

taken  by  the  Commission

RECRUITMENT:  EXCLUSION  FROM  AN  OPEN
COMPETITION

Decision  on  complaint  827/22.8.96/YS/FIN/IJH  against
the  European  Commission

The  complaint

On  19  August  1996,  Mr  S.  complained  to  the  European
Ombudsman  that  he  had  been  excluded  from  an  open
competition  (COM/A/972)  organised  by  the  Commission
to  create  a  reserve  list  of  medical  advisors  of  grade
A 5/A 4  of  Austrian,  Finnish  or  Swedish  nationality.  The
competition was based on qualifications and an oral test.
The  selection  board  had  decided  not  to  invite  Mr  S.  to
the  oral  examination.

Mr  S.  stated  that  he  had  participated  previously  in  an
open  competition  (COM/A/956  for  recruitment  of  the
Head  of  the  Commission’s  Delegation  to  international
organisations  in  Vienna),  the  selection  board  for  which
had asked him to send his curriculum vitae in addition to
an  application  form.  Mr  S.  alleged  that  the  curriculum
vitae he sent for competition COM/A/956 was knowingly
used  to  fix  the  eligibility  criteria  for  competition
COM/A/972.

2.1.  According  to  the  case-law  of  the  Court  of  Justice,
the  Commission  alone,  as  the  guardian  of  the
Treaty,  is  competent  to  decide  whether  it  is
appropriate to bring proceedings against a Member
State  for  failure  to  fulfil  its  obligations (1).

The  inquiry

The  Commission’s  comments

(1)  Case  431/92  Commission  v.  Federal  Republic  of  Germany

[1995]  ECR  I-2189,  paragraph  22.

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission’s  comments  were  as  follows.

C  380/72

EN

Official  Journal  of  the  European  Communities

7.12.98

The  selection  board  for  competition  COM/A/956  asked
all candidates to provide a curriculum vitae in addition to
an  application  form.  The  curriculum  vitae  served  no
other  purpose  than  to  facilitate  and  accelerate  the
proceedings  of  the  selection  board.

HANDLING  OF  A  COMPLAINT  LODGED  WITH  THE
COMMISSION

Decision  on  complaint  996/5.11.96/JC/IRL/BB  against
the  European  Commission

Candidates  for  open  competition  COM/A/972  were
required  to  be  holders  of  a  higher  university  degree  in
medicine  and  a  certificate  of  specialised  occupational
health studies. Furthermore, the candidates were required
to  have  professional  experience,  among  other  things,  of
tropical  medicine  and  radiation  safety.  The  former
requirement  was  due  to  the  fact  that  many  Commission
officials  have  to  work  in,  or  travel  to  tropical  regions,
and  the  latter  requirement  because  certain  staff  either
work  in  nuclear  installations  or  with  nuclear  materials.

Mr S. was not invited to the oral examination because he
did not hold the required qualifications and there was no
other  reason  for  his  exclusion  from  the  competition.

The  complainant’s  observations

In  his  observations,  the  complainant  maintained  his
original  complaint  to  the  Ombudsman.

The  decision

Annex III, Article 2 to the Staff Regulations provides that
candidates  shall  complete  a  form  prescribed  by  the
appointing  authority  and  that  they  may  be  required  to
furnish  additional  documents  or  information.  There  was
therefore  a  legal  basis  for  requiring  candidates  in  open
competition COM/A/956 to provide a curriculum vitae as
well  as  an  application  form.

According to the Commission, the curricula vitae in open
competition  COM/A/956  served  no  other  purpose  than
to  facilitate  and  accelerate  the  proceedings  of  the
selection  board  in  that  competition.  The  Ombudsman’s
the
inquiries 
Commission’s  statement.

revealed  no  evidence 

to  contradict 

According  to  the  Commission,  Mr  S.  was  excluded  from
open  competition  COM/A/972  because  he  did  not  hold
the  required  qualifications  and  for  no  other  reason.  The
Ombudsman’s 
to
contradict  the  Commission’s  statement.

revealed  no 

inquiries 

evidence 

The  complaint

In  October  1996,  Mr  C.  complained  to  the  Ombudsman
concerning  the  Commission’s  handling  of  a  complaint  he
had  made  to  it  against  the  University  of  East  London
(UEL)  in  the  UK.

Mr  C.  stated  that  he  had  participated  in  a  new  two-year
course programme at the UEL leading to an M.Sc degree
in  Architecture.  He  said  he  had  been  assured  that  the
second  year  would  be  the  final  year  unit  of  the  Diploma
course, on the basis of college documents stating that this
two-year  programme  had  exemption  from  Part  2  of  the
requirements  of  the  Royal  Institute  of  British  Architects
(RIBA).

Mr  C.  passed  the  first  part  of  the  M.Sc  degree  in
December  1991.  Later,  he  was  informed  that  he  had
failed  MS.c  Architecture:  RIBA  part  2,  but  that  he  could
repeat  the  year.

Mr  C.  sent  a  letter  to  an  MEP,  Mrs  McKenna,  who
transmitted  the  letter  to  Mrs  Cresson,  Member  of  the
European  Commission.  In  May  1996,  the  Commissioner
replied  that  the  complaint  concerned  the  non-award  of
the  Diploma  in  Architecture  and  concluded  that  it  was  a
matter of academic judgment of the University and not a
case 
the  European  Commission  could
intervene.

in  which 

In  October  1996,  Mr  C.  wrote  again  to  Commissioner
Cresson  and  the  Head  of  Unit  of  DG  XXII  to  explain
that  he  wanted  to  have  his  complaint  against  UEL
examined  in  terms  of  Directive  85/384/EEC (1).

In  his  complaint  to  the  Ombudsman,  Mr  C.  alleged
maladministration  in  the  form  of  lack  or  refusal  of
information 
the  Commission’s  handling  of  his
complaint  against  UEL.

in 

The  inquiry

The  Commission’s  comments

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

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

(1)  OJ  L  223,  21.8.1985,  p.  15.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/73

The  Commission  had  come  to  the  conclusion  that  Mr
C.’s  complaint  solely  concerned  the  fact  that  he  had
failed  to  obtain  his  degree  in  architecture.

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

In May 1996, Mr C. was informed that his problem was
a  matter  for  the  University  and  that  there  were  no
grounds  for  action  by  the  European  Commission.

In reply to Mr C.’s second letter, DG XXII informed him
in  December  1996  that,  in  the  light  of  his  new  request,
Mr  C.’s  complaint  had  been  formally  registered  as  No
96/4785.

In  January  1997,  DG  XV  wrote  a  reasoned  letter  to  Mr
C. explaining that the two-year programme he undertook
was  not  in  breach  of  Article  7  of  Directive  85/384/EEC.
Subsequently,  DG  XV  had  decided  to  propose  that  the
Commission  should  take  no  further  action  in  pursuit  of
Mr  C.’s  complaint.  In  April  1997,  DG  XV  informed  Mr
C.  that  the  Commission  had  decided  in  March  1997  to
file  his  complaint  No  96/4785  against  the  University  on
the  grounds  that  there  was  no  breach  of  Community
law.

VAT  EXEMPTION  ON  SERVICES  PROVIDED  TO  A
COMMISSION  CONTRACTOR 

Decision  on  complaint  1000/8.11.96/VILA/IT/PD
against  the  European  Commission

The  complaint

Mr  S.  complained  in  October  1996  to  the  Ombudsman
on  behalf  of  a  cooperative  concerning  the  Commission’s
actions  in  relation  to  a  VAT  problem  that  he  had
encountered  with  the  Italian  authorities.  He  put  forward
that  the  Commission  had  wrongly  assessed  the  rules  on
VAT  exemption  that  apply  to  the  Commission.

The  complainant’s  observations

The  background  to  this  grievance,  as  it  appeared  from
the  file,  was  in  substance  the  following.

In  his  observations,  Mr  C.  maintained  his  complaint.

The  decision

According  to  the  case-law  of  the  Court  of  Justice,  the
Commission  alone  is  competent  to  decide  whether  it  is
appropriate to bring proceedings against a Member State
for  failure  to  fulfil  its  obligations  in  its  role  as  guardian
of  the  Treaty (1).

It  appeared  from  the  Ombudsman’s  inquiries  into  this
complaint,  that  after  having  formally  registered  Mr  C.’s
complaint  the  Commission  had  examined  it  in  the  light
of Directive 85/384/EEC. In its decision to file complaint
No  96/4785,  the  Commission  appeared  to  have  given  a
legal  reasoning  in  support  of  its  conclusion  that  it  had
found  no  breach  of  Directive  85/384/EEC  in  the  case  at
hand.

By  decision  C(93)256/5  of  16  February  1993  the
Commission  awarded  the  cooperative  a  grant  from  the
regional  fund.  The  grant  was  intended  for  financial
contributions  to  projects  improving  access  of  small  and
medium  sized  enterprises  to  technological  innovations.  It
was  stipulated  that  Mr  S.  should  run  this  programme
including  necessary  publicity  campaigns  and  checks  with
the  enterprises  to  which  funds  were  channelled.  It  was
provided  that  the  Cooperative  was  entitled  to  keep  1 %
of  the  grant  as  remuneration  and  that  he  should
undertake  all  necessary  steps  with  regard 
tax
exemption  of  its  services  supplied  to  the  Commission.

to 

It  appeared  that  having  regard  to  the  provision  on  tax
exemption,  the  cooperative  requested  its  suppliers  to
invoice  it  without  charging  VAT,  and  as  legal  basis  for
his,  it  referred  to  the  relevant  Italian  VAT  Statute.
Subsequently,  the  competent  Italian  authorities  objected
to  this  way  of  proceeding  and  by  implication,  took  the
stand  that  the  cooperative  could  not  be  exempted  from
VAT.  Under  these  circumstances,  Mr  S.  asked  the
Commission  for  its  opinion  on  15  May  1996.

instance  of  maladministration  by 

The  Ombudsman’s  inquiries  into  this  complaint  did  not
reveal  any 
the
Commission  in  the  interpretation  of  Community  law,  or
in  the  application  of  Community  law  to  the  facts  and  to
the  national  legal  context  of  the  case.

(1)  Case  431,  p.  92  Commission  v.  Germany  [1995]  ECR

I-2189,  paragraph  22.

By  letter  of  9  July  1996,  the  Commission  replied  to  this
request. It stated, in the first place, that it was not vested
with  authority  to  interpret  national  legislation.  In  the
second  place,  it  wrote  that  the  financial  contributions
from  the  Community  were  exempt  from  VAT  as  well  as
the  part  of  the  grant  which  constituted  the  remuneration
for  the  entity  which  ran  the  Community  programme.  In
the third place, it stated that, in so far as the entity itself
acquired  services  and  goods  for  the  performance  of  its

C  380/74

EN

Official  Journal  of  the  European  Communities

7.12.98

tasks, these operations were covered by the relevant rules
in  the  sixth  VAT  Directive  to  VAT  taxation.  Finally,  the
Commission  observed  that  the  relevant  Italian  Statute
only referred to Community funded research projects and
thus  not  to  the  running  of  any  Community  programme.

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

Not  being  satisfied  with  this  reply,  Mr  S.  complained  to
the Ombudsman that the VAT exemption that applied to
the  Commission  should  apply  equally  to  the  cooperative
when  it  bought  goods  and  services.

RECRUITMENT:  EXPIRY  OF  RESERVE  LIST

Decision  on  complaint  1036/15.11.96/AM/IT/PD  against
the  European  Commission

The  complaint

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  as  a  result  of  the
complaint, it had re-examined the case and maintained its
position  communicated  in  its  letter  of  9  July  1996.  In
addition,  it  sketched  out  a  solution  to  the  problem  that
the  cooperative  had  encountered  with 
Italian
authorities.

the 

The  Commission’s  comments  were  forwarded  to  Mr  S.
with an invitation to submit observations if he so wished.
No  observations  were  received.

The  decision

The  Commission  has  no  authority  to  deliver  authentic
interpretations  on  provisions  of  national 
law.  The
question  at  issue  was  thus  whether  the  Commission’s
stand as concerns Community law was well founded. The
relevant  provisions  are  contained  in  Council  Directive
77/388/EEC (1)  of  17  May  1977,  the  Sixth  VAT
Directive.  Art  15.10  of  the  Directive  provides  for  VAT
exemption  for  international  organisations.  According  to
its  wording,  the  exemption  does  not  extend  to  the
services  delivered  to  a  subject  who  is  a  contractor  with
the  international  organisation.  This  understanding  of  the
provision is in conformity with the case law of the Court
of  Justice,  according  to  which  exemptions  shall  be
construed  narrowly  and  exemptions  in  favour  of  one
person  cannot  be  extended  to  those  with  whom  that
person  makes  contracts (2).

from 

Mr  M. 
the  European
Ombudsman  in  November  1996  about  the  failure  of  the
Commission  to  offer  him  a  job.

Italy  complained 

to 

The  background  was  that  in  1988,  he  succeeded  in  the
general  competition  COM/B/520,  organised  by 
the
Commission.  Thus,  his  name  figured  on  the  reserve  list
for possible future permanent jobs with the Commission.
The  validity  of  the  reserve  list,  originally  foreseen  to  end
in  December  1988,  was  prolonged  several  times.  In
September  1989,  Mr  M.  was  offered  an  auxiliary  post
reasons.
but  he  declined 
Subsequently,  in  1992,  he  addressed  the  Commission  on
two  occasions  in  order  to  seek  a  job  offer.  On  31
December 1992, the validity of the reserve list expired, as
it had not been further prolonged. Thereafter, there were
written  and  telephone  contacts  between  the  complainant
and  the  relevant  Commission  services,  in  which  he  asked
for  a  job  and  the  Commission  in  substance  referred  to
the fact that the reserve list had expired and thus, it was
not  able  to  offer  Mr  M.  a  permanent  post.

for  personal 

the  offer 

letters  addressed  to  the  Commission 

In his complaint to the Ombudsman, Mr M. claimed that
two 
in  1992
remained  unanswered;  that  the  Commission  should  have
offered  him  a  permanent  post  and  that 
it  never
communicated  to  him  that  he  would  not  be  offered  a
post.

The  inquiry

The  Commission’s  comments

Thus,  the  Commission’s  stand  as  communicated  to  the
cooperative  without  undue  delay  by  its  letter  of  9  July
1996 in reply to Mr S.’s letter of 15 May 1996 appeared
well  founded.  It  shall  be  recalled,  however,  that  the
Court  of  Justice  is  the  highest  authority  on  Community
law.

(1)  OJ  L  145,  13.6.1977,  p.  1.
(2)  Case  107,  p.  84,  Commission  v.  Germany,  [1985]  ECR

p. 2655.

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  it  had  no  record
of  having  received  Mr  M.’s  letters  in  1992.  As  to  not
offering  him  a  post,  the  Commission  stated  that  it  was
legal to put more names on a reserve list than the number
of  posts  available;  thus  it  was  under  no  legal  obligation
to proceed to the recruitment of all the persons listed. As
to  the  allegation  that  the  Commission  had  failed  to
communicate  its  decision  not  to  offer  Mr  M.  a  job,  the
it  followed  from  his  own
Commission  stated  that 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/75

correspondence  that  he  had  received  the  Commission’s
communications  prolonging  the  validity  of  the  reserve
list.  Thus,  having  received  a  communication  prolonging
the  validity  of  the  list  to  31  December  1992  and  not
receiving  any  further  communication  of  this  nature,  Mr
M.  was  implicitly  informed  that  the  list  expired  on  31
December  1992.  The  Commission  furthermore  referred
to  the  fact  that  in  subsequent  correspondence  with  Mr
M.,  it  made  it  clear  that  the  list  could  no  longer
constitute  a  base  for  recruitment.

The  decision

The  Commission  declared  that  it  has  not  received  the
complainant’s 
the
instance  of
Ombudsman  could  not  consider 
maladministration 
remained
these 
unanswered.

it  an 
letters 

from  1992; 

therefore 

letters 

that 

As for the lack of job offer, it followed from the case law
of  the  Court  of  Justice  that  the  fact  that  the  name  of  a
person was on a reserve list did not confer on that person
an entitlement to a post with the Community institutions.
Having regard to this and since there was no evidence of
any  procedural 
the
Commission,  the  Ombudsman  concluded  that  there
appeared  to  be  no  maladministration  in  relation  to  this
aspect  of  the  complaint.

irregularity  on 

the  part  of 

The  remaining  question  concerned  the  allegation  by  the
complainant  that  he  was  not  informed  of  the  expiry  of
the reserve list and  thus of  the fact  that  it  was  no longer
possible for him to be recruited on the basis of the list. It
appeared  from  the  file  that  the  validity  of  the  list  had
been  prolonged  several  times,  on  the  last  occasion  up  to
31  December  1992.  Mr  M.  was  informed  about  these
further
prolongations. 
prolongations,  it  was  clear  that  the  list  had  expired.

absence  of 

any 

the 

In 

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

TAXATION  OF  REMUNERATION  PAID  TO  EXPERTS

Decision  on  complaint  1060/28.11.96/BK/DK/PD
against  the  European  Commission

The  background  to  the  complaint  was  as  follows:  in
1988  and  1990  Mr  K.  worked  in  China  and  South
America  within  the  framework  of  the  Community’s
development 
The
assistance 
remuneration  he  received  was  subsequently  taxed  by  the
Danish  authorities.  He  considered  such  taxation  to  be
unjustified  and  approached 
the  Commission.  The
Commission  did  not  share  his  view.

programmes. 

and 

The  essence  of  the  complaint  was  that  the  Commission
did  not  ensure  that  the  Danish  authorities  complied  with
Community  law  which,  in  Mr  K.’s  opinion,  meant  that
he should not pay tax in Denmark. He also claimed that
the  Commission  did  not  answer  his  letters  after  1994,
including  a  complaint  he  lodged  against  the  Danish
authorities  in  February  1996,  and  that  the  Commission
office in Denmark did not duly forward his letters to the
Commission’s  central  departments.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments  the  Commission  stated  that  Mr  K.  was
engaged  by  it  as  an  independent  expert  and  that  he  was
not,  therefore,  covered  by  Article  13  of  the  Protocol  on
the  European
the  privileges  and 
Communities  under  which  only  officials  and  other
servants  of  the  Communities  are  exempt  from  national
taxes  on  remuneration  paid  by  the  Communities.

immunities  of 

According to the Commission Mr K. did not fall into the
category  ‘other  servant’.  In  support  of  its  opinion,  the
Commission  referred  to  Council  Regulation  (Euratom,
ECSC,  EEC)  No  549/69  of  25  March  1969  determining
the  categories  of  officials  and  other  servants  of  the
European  Communities  to  whom  the  provisions  of
Article 12, the second paragraph of Article 13 and Article
14  of  the  Protocol  on  the  privileges  and  immunities  of
the  Communities  apply.

The  Commission  also  stated  that  it  informed  Mr  K.  in
1992  of  its  opinion  that  he  was  not  exempt  from
national  taxes.  Lastly,  it  claimed  that  its  representation
office  had  always  forwarded  his  letters  to  the  central
departments  in  Brussels.

The  complaint

The  complainant’s  observations

Mr  K.  from  Denmark  complained  to  the  Ombudsman  in
November  1996  that  the  Commission  had  not  dealt
correctly  with  the  question  of  whether  he  was  liable  to
pay  Community  taxes  on  certain  earnings.

In  his  observations  on  the  Commission’s  comments,  Mr
K.  maintained  that  the  Commission’s  interpretation  of
Article  13  of  the  above  Protocol  was  wrong,  and  upheld
his complaint.

C  380/76

EN

Official  Journal  of  the  European  Communities

7.12.98

The  decision

The  question 
the
Commission  had  correctly  evaluated  Mr  K.’s  complaint
against  the  Danish  authorities.

this  complaint  was  whether 

in 

Article  13,  second  paragraph,  of  the  Protocol  on  the
privileges  and  immunities  of  the  European  Communities
provides  that  ‘they  [officials  and  other  servants]  shall  be
exempt  from  national  taxes  on  salaries,  wages  and
emoluments  paid  by  the  Communities.’  Under  Article  16
of 
the
categories  of  officials  and  other  servants  to  whom  the
provisions  of  the  second  paragraph  of  Article  13  apply.
The  Council  did  so  in  Regulation  (Euratom,  ECSC,  EEC
No  549/69,  Article  2  of  which  provides  that:

the  Council  must  determine 

the  Protocol, 

‘the  provisions  of  the  second  paragraph  of  Article  13
of the Protocol on the privileges and immunities of the
Communities  shall  apply  to  the  following  categories:

(a)  persons  coming  under  the  Staff  Regulations  of
Officials  or  the  Conditions  of  Employment  of
Other  Servants  of  the  Communities,  including
those who receive the compensation provided for in
the case of retirement in the interests of the service,
with  the  exception  of  local  staff;

(b) persons receiving disability, retirement or survivors’

pensions  paid  by  the  Communities;

(c)  persons receiving the compensation provided for in
Article 5 of Regulation (EEC, Euratom, ECSC) No
259/68  in  the  case  of  termination  of  service.’

It  was  clear  that  Mr  K.  was  covered  neither  by  (b)  nor
(c). Since it was also clear that he was not an official, the
question  was  whether  he  was  covered  by  the  phrase
‘persons 
the  Conditions  of
Employment  of  Other  Servants  of  the  Communities’  in
(a).

coming  under 

. . . 

consequently  could  not  be  deemed  covered  by  the  tax
exemption  under  Article  2(a).  The  Commission’s
evaluation  of  his  case.  thus  appeared  correct.

As regards Mr K.’s allegation that the Commission failed
to  answer  his  letters,  it  appeared  from  the  file  that  in
1994 he wrote to the Commission to obtain confirmation
of  the  services  he  performed  in  China.  The  Commission
provided  this  confirmation  in  its  letters  of  26  October
and  17  November  1994.  As  regards  the  complaint  he
lodged  in  February  1996  against  the  Danish  authorities,
the file showed that the Commission responded in letters
dated  3  September  and  6  December  1996.  The  file  did
not  show  that  the  Commission  representation  office  was
in any way negligent in forwarding Mr K.’s letters to the
relevant  central  department  in  Brussels.

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

SELECTION  OF  CONTRACTORS  IN  CALL  FOR
TENDERS

Decision  on  complaint  1138/31.12.96/JAON/UK/JMA
against  the  European  Commission

The  complaint

In  December  1996  Mr  O.  lodged  a  complaint  with  the
Ombudsman  on  behalf  of  a  firm  (TASIL),  alleging
maladministration  in  a  call  for  tenders  organised  by  the
European Commission for the selection of a consultant to
carry  out  a  TACIS  programme.

Following  the  invitation  to  submit  proposals  on  projects
related  to  development  of  the  tourist  industry  in  Russia,
TASIL, acting on behalf of a consortium of various firms
from several European countries, lodged an expression of
interest  with  the  Commission.

Even though its proposal was supported by some Russian
governmental  agencies,  TASIL  was  excluded  from  the
tender  list  prepared  by  the  Commission.  The  complaint
contested  this  exclusion.

This  phrase  does  not  apply  to  everyone  who  provides  a
service  to  the  Community.  In  fact,  it  appears  to  relate  to
a  specific  legal  document,  Regulation  (EEC,  Euratom,
ECSC)  No  259/68,  laying  down  the  Conditions  of
Employment  of  Other  Servants.  The  other  servants
covered  by 
these  conditions  of  employment  are
temporary staff, auxiliary staff, special advisers and local
staff.  It  is  clear  that  at  no  time  did  the  Commission
employ  Mr  K.  as  temporary  staff,  auxiliary  staff,  special
adviser  or  local  staff.  He  would  thus  not  be  covered  by
the  Conditions  of  Employment  of  Other  Servants  and

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  indicated  that  contracts  for
services of the kind in question must be awarded through

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/77

calls  for  tender.  Under  the  TACIS  programme,  the
Commission acts as contracting authority, and its services
(Directorate  C  of  DG  IA)  are  responsible  for  launching,
evaluating  and  deciding  on  the  tenders.

CONTESTED RECRUITMENT

Decision  on  complaint  14/97/PD  against  the  European
Commission

In  the  case  in  question,  as  a  result  of  the  Commission’s
evaluation of the tenders, TASIL was not included in the
shortlist of eight consortia. The exclusion of TASIL came
therefore  as  a  result  of  a  standard  selection  procedure.
The  Commission  included  a  series  of  annexes  concerning
general  information  on  the  programme,  the  complete  list
of  all  expressions  of  interests  which  had  been  received,
and  the  tables  for  comparative  assessment  of  relative
merits  of  all  participants.

The  complainant’s  observation’s

In  his  observations  on  the  Commission’s  comments,  Mr
O.  referred  to  the  unrivalled  experience  of  TASIL’s
consortium  and  renewed 
the  complaint  of  unfair
treatment.

The  decision

the  Ombudsman  stated 

In  his  decision, 
the
Commission  enjoys  a  large  degree  of  discretion  in
deciding  to  award  a  contract  following  an  invitation  to
tender (1).  That  discretion  cannot 
justify,  however,
manifest  errors  in  the  selection  procedure (2).  In  using  its
discretion,  the  institution  must  base  its  decision  on  some
objective  criteria  which  can  be  reviewed (3).

that 

In  this  case,  the  Commission  based  its  assessment  in  a
number  of  prima  facie  objective  criteria  which  were
reflected  in  the  tables  of  comparative  assessment  of  the
merits  of  participants.  Even  though  the  complainant’s
consortium showed expertise and competence in the field
of  this  particular  project,  there  was  no  evidence  that  the
Commission  used 
in  an  arbitrary  or
its  discretion 
discriminatory way.

On  the  basis  of  the  Ombudsman’s  inquiries  into  the
complaint, 
no
maladministration  by  the  Commission.  The  Ombudsman
therefore  decided  to  close  the  case.

appeared 

there 

have 

been 

to 

(1)  Case 19, p. 95, Adia Interim SA v. Commission, [1996] ECR

II-321,  pargraph  49.

(2)  Case  56,  p.  77,  Agence  Europe´enne  d’Interims  v.

Commission  [1978]  ECR  2215,  pargraph  20.

(3)  Case 166, p. 94, Koyo Seiko v. Council [1995] ECR II-2129.

paragraph  103.

The  complaint

In  January  1997,  Mr  V.  complained  to  the  Ombudsman
concerning  a  vacancy  published  in  June  1994  by  the
Commission,  COM  1898/94.  The  vacancy  established
that  the  career  bracket  was  LA  8—4  and  that  the
denomination  of  the  post  was 
‘traducteur  re´viseur
juriste’.  Under  the  heading  ‘particular  qualifications’  it
was  indicated  that  the  applicant  should  have

‘a  complete  legal  training,  certified  by  a  university
degree.  In-depth  knowledge  of.  the  Dutch  language,
fair  knowledge  of  two  other  Community  languages,
knowledge  of  legal  terminology  in  Dutch.  Experience
in  translation  and  revision’.

On  4  July  1994  Mr  V.  applied  for  the  post.  From  the
curriculum  vitae  annexed  to  the  application  it  appeared
that  many  years,  Mr  V.  had  been  working  at  the  Dutch
translation  division  at  the  Court  of  Justice,  as  a
lawyer-linguist  from  1982  to  1989  and  then  as  a
principal  lawyer-linguist.  As  from  1991  his  head  of
service regularly gave him language revisions to do and in
1994  he  was  appointed  language  reviser  (LA 5).  The
relevant service in the Commission interviewed Mr V. but
eventually  filled  the  post  with  another  applicant  who
happened  to  be  a  colleague  of  Mr  V.’s  at  the  Court  of
Justice.  The  person  appointed  was  a  principal
lawyer-linguist (LA 5)  at  the  Court  of  Justice.

In  his  complaint  Mr  V.  put 
arguments.

forward 

two  main

1.  The  nomination  of  his  colleague  was  contrary  to  the
drafting of the notice of the vacancy. In Mr V.’s view,
the  colleague  should  never  have  been  considered  for
the  job  because  as  a  principal  lawyer-linguist,  he  did
not  have  any  experience  of  revision  and  the  notice
requested experience in both translation and revision.
Mr V. found support for this point of view in the fact
that  subsequently,  in  1996,  the  Commission  had
changed  its  notices  of  vacancies  of  this  kind  to  the
effect  that  applicants  should  have  experience  in
translation  or  revision.  Furthermore,  he  stated  that
according  to  the  French  dictionary  ‘Le  Petit  Robert’,
the  word  ‘experience’  means  practice,  habitude  and
routine. Thus, even though a principal lawyer-linguist
may  occasionally  do  language  revision,  he  would  not
be  experienced.

2.  Even  if  his  colleague  could  have  been  taken  into
account as a candidate, a comparative examination of
the  merits  of  the  applicants  would  have  led  to  the

C  380/78

EN

Official  Journal  of  the  European  Communities

7.12.98

result  that  he  should  not  be  retained  for  the  job.  In
support of this allegation, Mr V. referred in particular
to the fact that his colleague had less experience than
he  as  a  lawyer-linguist  and  was  promoted  later  than
him  to  a  post  as  principal  lawyer-linguist.

terminology  and  documentation  work,  or  specialised
work  in  other  linguistic  fields;  participates  in  the
professional  training  of  translators’.

The  inquiry

The  Commission’s  comments

The  tasks  of  the  ‘traducteur  re´viseur  juriste’  at  the
Commission  were  stated  as  follows  in  the  notice  of
vacancy  in  question:

‘— checking that the Dutch version of statutory texts and
draft  statutory  texts  of  the  Commission  is  legally  in
agreement  with  the  other  versions  of  the  texts,

The  complaint  was  forwarded  to  the  Commission.  In
summary  the  Commission  made  the  following  points.

—  controlling that the presentation of the statutory texts

respects  the  general  rules  applied  in  this  field,

1.  In  substance  that  the  job  descriptions  in  force  at  the
Court  of  Justice  mentioned  the  task  of  revision,  both
for  the  post  of  principal  lawyer-linguist  and  for  the
post  of  reviser.  It  furthermore  stated  that  the
principal  lawyer-linguist  did  the  revision  himself,  as
that  he  should
job  description  mentioned 
the 
normally  translate  texts  without  revision.

2.  The  Appointing  Authority  had  wide  discretionary
powers  when  filling  a  post  and  it  had  respected  the
limits  of  these  discretionary  powers  when  it  filled  the
post  in  question.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr
V.  maintained  in  substance  his  complaint.

The  decision

In taking a stand on the issue of this complaint, it was in
the first place important to recall the job descriptions for
the posts in question, both at the Court of Justice and at
the  Commission,  as  they  appeared  from  the  documents
submitted.  The  tasks  of  a  principal  lawyer-linguist  at  the
Court  of  Justice  were  described  in  general  as  follows:

in  charge  of  carrying  out  the
‘Qualified  official 
translation  of  texts,  usually  without  revision,  and  in
certain  cases,  the  revision  of  the  translations,  of
controlling  the  terminology  and  documentation  work,
or 
fields;
participates  in  the  professional  training  of  translators’.

specialised  work 

in  other 

linguistic 

—  carry  out  research  in  formal  legistics  and  national

law’.

It  appeared  that  the  job  descriptions  at  the  Court  of
Justice  varied  considerably  from  the  ones  in  question  at
the  Commission.

take 

the  Commission  could 

Against  this  background,  the  Commission’s  handling  of
this  matter  could  be  assessed.  Concerning  the  question
whether 
into  account
applications  lodged  by  principal  lawyer-linguists  at  the
Court  of  Justice,  it  was  a  fact  that  the  notice  of  vacancy
established  that  applicants  ought  to  have  experience  in
both  translation  and  revision.  It  must  be  for  the
recruiting  service  to  assess  which  degree  and  kind  of
experience.  the  interest  of  the  service  requires;  there
appeared  to  be  no  reasons  for  considering  that  the
interest  of  the  service  required  the  recruiting  service  in
general  not  to  take  into  consideration  applicants,  whose
formal  job  description  did  not  mention  the  tasks  of
revision.

Furthermore,  it  appeared  from  the  documents  submitted
that in practice, principal lawyer-linguists at the Court of
Justice  could  be  given  revision  work  on  a  regular  basis
and that their formal job description did mention revision
tasks.  If  principal  lawyer-linguists  translated  without
revision  from  another  person,  it  appeared  to  be  justified
to  consider  that  the  implication  was  that  they  did  the
revision themselves.

Finally,  the  notice  clearly  indicated  the  career  bracket  of
the  post  to  be  filled  as  LA  8—4  and  therefore  even
lawyer-linguists  could  apply  for  the  job.

The  tasks  of  a  language  reviser  at  the  Court  of  Justice
were  described  as:

‘Qualified official in charge of carrying out the revision
of. translations, and in certain cases, the translation of
texts  with  or  without  revision,  and  of  controlling  the

Thus,  it  appeared  that  the  Commission  was  entitled  to
take  into  account  the  application  of  Mr  V.’s  colleague.
The  fact  that  the  Commission  subsequently  amended  the
standard notice of vacancy for the sake of clarity did not
appear  to  justify  another  conclusion.  It  must  be  recalled,

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/79

however, that the Court of Justice is the highest authority
on  questions  of  Community  law.

THE  COMMISSION’S  INQUIRY  INTO  THE  ANNUAL
TAX  ON  ITALIAN  PASSPORTS

As  for  the  question  whether  the  Commission  had  rightly
assessed the merits of the applicants, there appeared to be
no  elements  to  hand  that  indicated  that  the  Commission
transgress  the  limits  of  the  discretionary  powers  that  it
holds  in  this  field.  To  request  that  priority  should
automatically  be  given  to  the  applicant  with  most
seniority could deprive the Appointing Authority of these
powers  with  which  it  is  vested  according  to  the  case-law
of  the  Court  of  Justice.

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  there  appeared  to  have  been  no
maladministration  by  the  European  Commission.  The
Ombudsman  therefore  closed  the  case.

UNSUCCESSFUL  APPLICATION  UNDER  THE
COPERNICUS  PROGRAMME

Decision  on  complaint  98/97/PD  against  the  European
Commission

Decision  on  complaint  190/97/DT  against  the  European
Commission

The  complaint

In  1995,  Mr  I.  complained  to  the  Commission  about  the
fact  that  Italy  obliges  its  citizens  to  pay  a  special  tax
every  year  for  the  use  of  their  Italian  passports.

In February 1996, the Commission informed Mr I. that it
was  dealing  with  the  question  and  it  apologised  for  the
late answer to his letter. It also informed him that it had
received  many  letters  raising  the  same  issue  and  that  it
would like to examine these cases carefully before taking
a  decision  on  the  matter.

In  February  1997,  Mr  I.  complained  to  the  Ombudsman
that  the  Commission  had  not  yet  taken  any  decision,  a
year  after  its  first  answer  to  him.

The  complaint

The  inquiry

In  January  1997,  Mr  A.  complained  to  the  European
Ombudsman  that  the  Commission  had  wrongly  rejected
an  application  that  he  had  lodged  under  the  Copernicus
programme,  a  Commission  programme  for  cooperation
in  science  and  technology.

The  complaint  was  forwarded  to  the  Commission  on  5
February  1997.  In  its  opinion,  the  Commission  stated
that Mr A.’s application could not qualify under the rules
in  force  which  required  that  applications  should  concern
at least two participants, established in different Member
States. Mr A.’s application involved two participants, but
both  were  established 
the
in 
Commission  had  rejected  the  application.

Italy.  Consequently, 

In  his  observations  on  the  Commission’s  comments,  Mr
A.  maintained  his  original  complaint.

On  the  basis  of  the  Ombudsman’s  inquiries,  it  appeared
that  the  Commission’s  decision  on  Mr  A.’s  application
in  full  accordance  with  the  rules
had  been  made 
applicable.  There  were  no  elements  in  the  file  that
indicated  that  the  Commission  had  wrongly  decided  on
his application.

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

The  Ombudsman’s 
establishing  whether 
maladministration 
handled  Mr  I.’s  complaint.

inquiry  was  directed 

towards
instance  of
in  the  way  the  Commission  had

there  was  an 

The  complaint  was  forwarded  to  the  Commission  in
March  1997.  In  summary,  the  Commission’s  comments
were  as  follows.

On  the  basis  of  two  parliamentary  questions  and  several
citizens’  letters  it  was  decided  to  examine  the  problem
carefully  and  to  carry  out  a  general  survey  by  asking  all
Member  States  to  provide  information  concerning  their
conditions  and  charges 
issuing  passports.  The
for 
complainant  was  informed  of  this  action.

The Commission received the last answer from a Member
State  in  March  1997.  It  took  its  decision  on  the  matter
and  wrote  to  Mr  I.  on  2  May  1997.

In  its  letter  of  2  May  1997,  the  Commission  informed
Mr  I.  that  Community  law  requires  Member  States  to
issue  a  passport  or  an  identity  card  to  their  citizens.  The
fact  that  Italy  imposes  an  annual  tax  on  the  passport  is
compatible  with  Community  law,  because  ‘the  costs  of
the  passport  and  the  procedure  of  issuing  it  fall  within
the  competence  of  the  Member  States’.  The  Commission
did  not  consider  that  ‘the  system  of  issue  of  passports
impedes  the  free  movement  of  persons  in  the  light  of
Community  law’.

C  380/80

EN

Official  Journal  of  the  European  Communities

7.12.98

The  Commission’s  comments  were  forwarded  in  July  to
Mr 
following
observations.

summary,  made 

I.  who, 

the 

in 

Either  the  Commission  was  not  really  interested  in  the
question  of  free  movement  of  persons  or  it  had  not
examined  the  problem;  the  proof  of  this  point  was  the
two  years’  delay  before  it  took  its  decision.

The  Italian  passport  was  based  on  the  model  of  the
European  passport,  in  which  no  place  is  foreseen  for  the
stamps  which  demonstrate  the  payment  of  the  tax.  This
meant  that  ‘the  intention  of  Community  law  was  to
exclude  this  tax’.  This  interpretation  is  justified  by
international  law,  which  considers  the  passport  as  a
document  that  allows  the  passing  from  one  country  to
another.

In  view  of  the  fact  that  no  other  Member  State  imposed
this  kind  of  tax,  and  that  the  tendency  of  the  EC  Treaty
was  to  cancel  the  differences  between  Member  States,
Italy  should  not  be  not  allowed  to  impose  these  atypical
taxes.

The duty of the Commission is to be the Guardian of the
Treaty  and 
infringement
proceedings  against  Italy.

should  have  begun 

it 

The  decision

1. 

The  Commission’s  handling  of  the  complaint

1.1. 

It  appears  from  the  file  that,  following  the
complaints  and  questions  from  Members  of  the
European  Parliament,  the  Commission  conducted
an  inquiry  to  find  out  from  the  Member  States
their  procedures  and  charges  for  the  issue  of
passports.  It  also  appears  that  the  Commission
examined  the  annual  tax  on  the  passports  of
infringement  of
Italian  citizens  as  a  possible 
Community  law.

1.2.  The Commission reached the conclusion that there
was  no  infringement  of  Community  law  by  the
Italian  State,  because  costs  of  passports  and  the
procedures  for  issuing  them  do  not  fall  within  the
sphere  of 
the  Community  competences,  but
exclusively  in  that  of  the  Member  States.

1.3.  Article  169  of  the  EC  Treaty  empowers  the
Commission  to  begin  infringement  proceedings
only  if  it  considers  that  a  Member  State  has  failed
to  fulfil  an  obligation  under  the  Treaty.

1.4.  On the basis of the above findings, there appeared
to  be  no  evidence  of  maladministration  by  the
Commission  in  dealing  with  the  complaint.

2. 

Delay  in  responding  to  the  complainant

2.1.  The  Commission  wrote  a  first 

letter  to  the
complainant  on  13  February  1996,  five  months
after  he  asked  for  information.  It  justified  this
delay because the problem was ‘not easy to resolve’
and  that  it  would  like  to  examine  the  case
carefully.  On  16  October  1996,  the  Commission
sent  a  second  letter  to  the  complainant  to  inform
him  about  its  inquiry  in  the  Member  States.  The
last letter, with its decision on the matter, was sent
to  the  complainant  on  2  May  1997.

2.2. 

In view of the complexity of the matter, which was
also  the  subject  of  two  written  questions  by
Members  of  the  European  Parliament  who  could
not receive an answer without the survey involving
all  Member  States,  the  Ombudsman  reached  the
conclusion  that,  in  the  present  case,  the  delay  of
approximately  two  years  before  the  Commission
reached  its  final  decision  could  not  be  considered
as maladministration.

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

REJECTION  OF  A  CALL  FOR  TENDER

Decision  on  complaint  199/97/PD  against  the  European
Commission

The  complaint

In  March  1997,  Mr  T.  complained  to  the  Ombudsman
about 
the
Commission.

tendering  procedure 

followed  by 

a 

In  1996,  his  company  tendered  for  a  contract  with  the
Commission  to  provide  services 
in  relation  to  the
drinking-water Directive.

In  the  section  of  the  tender  documents  headed  ‘the
expertise  required  of  the  contractor’,  it  was  stated  that
contractors

‘need to demonstrate that they have a wide breadth of
knowledge and expertise, and a proven track record in
the  field  of  water  science,  including  microbiology,
toxicology,  water 
engineering.
Furthermore it is essential that the contractor possesses
an in-depth knowledge of the drinking-water Directive,
and  the  proposal  for  its  revision’.

sanitary 

and 

In  the  section  headed  ‘Selection  criteria’  it  was  indicated
that  the  tenders  would  be  evaluated  in  two  stages.Only
tenders  that  met  the  selection  criteria  at  the  first  stage
would  continue  to  the  second  stage  (the  award  stage).
One  of  the  criteria  in  the  first  stage  was:

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/81

‘Tenderers  must  demonstrate  that  they  have  the
necessary  experience  and  record  in  the  water  research
field as demonstrated by the qualifications, citations of
previous works and composition of the proposed team,
including  curriculum  vitae’.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

By  letter  of  7  January  1997,  the  Commission  informed
Mr  T.  that  his  tender  had  not  been  selected.  On  13
January  1997,  31  January  1997  and  15  February  1997
Mr  T.  asked  the  Commission  to  inform  him  of  the
reasons  for  the  refusal.  By  letter  of  13  March  1997,  the
Commission  informed  Mr  T.  that,  applying  the  selection
criteria,  it  had  found  that  the  company  lacked  the
necessary  experience 
field
understood  as  the  research,  development  and  design  of
water  treatment  works.

the  water 

research 

in 

1.  The  requirement  of  ‘necessary  experience’  had  to  be
understood in the light of the expertise required; that
is,  a  ‘wide  breadth  of  knowledge  and  expertise  and  a
proven  track  record  in  the  field  of  water  science
including  (. . .)  water  and  sanitary  engineering’.  The
tenderer  had 
the
and  water
necessary 
engineering 
the  drinking-water
Directive.  This  should  have  been  clear  to  a  potential
contractor  who  could,  in  any  event,  have  asked  the
Commission  for  clarification.

to  demonstrate 

in  particular 

experience 

sanitary 

relation 

to 

in 

in 

find 

Mr  T.  did  not 
the  Commission’s  response
satisfactory  and  therefore  addressed  the  Commission
again.  By  letter  of  10  April  1997  the  Commission
communicated  to  him  more  detailed  reasoning  for  the
decision  taken.  According  to  this  letter,  the  decisive
factor  in  not  selecting  Mr  T.’s  tender  continued  to  be
that,  in  the  Commission’s  view,  his  company  lacked  the
necessary  experience  in  water  and  sanitary  engineering,
i.e.  in  design  of  water  treatment  works.

2.  The  Commission  continued  to  maintain  that  Mr  T.’s
company  did  not  have  the  required  experience  in  the
area  of  water  and  sanitary  engineering  although  it
was  well  qualified  in  other  areas  of  water  research.

3.  The Commission had answered Mr T.’s letters in due

time  and  given  reasons  for  the  decision  taken.

The  complainant’s  observations

Mr T. remained dissatisfied with the Commission’s stand
and  complained  to  the  Ombudsman,  putting  forward
three allegations.

In  his  observations,  Mr  T.  maintained  his  complaint.
Furthermore  he  stated  that  the  Commission  should  offer
his  company  compensation 
lost
opportunities.

for  damage  and 

1.  The  words  ‘necessary  experience’  in  the  selection
criteria  quoted  above  must  be  interpreted  in  a  broad
way,  as  meaning  water  research  which  relates  to  the
drinking-water  Directive.  The  Commission  could  not
request  the  experience  needed  to  be  in  the  field  of
sanitary  and  water  engineering  as  this  was  not
specifically  stated  in  the  tendering  documents.  This
approach  was  supported  by  the  fact  that  the
drinking-water  Directive  primarily  dealt  with  aspects
of  drinking  water  quality  and  health  aspects  and  not
with engineering.

2.  In  any  case,  his  company  did  have  the  necessary
experience  in  water  and  sanitary  engineering  and
therefore  the  Commission’s  assessment  was  wrong.

3.  The Commission had acted in breach of Article 12 of
the  services  Directive  92/50/EEC  which  required  an
answer  to  be  given  within  15  days  of  receipt  of  a
written  request  for  the  reasons  for  rejection  of  an
application  or  tender.

The  decision

in 

the  water  research 

As  concerns  Mr  T.’s  first  allegation,  the  crucial  question
was whether, under the selection criteria, the Commission
was  entitled  to  take  into  account  experience  in  the  field
of water and sanitary engineering. It was true that under
the  heading  ‘selection  criteria’  it  was  merely  stated  in
general  terms  that  the  contractor  should  have  the
‘necessary  experience’ 
field.
However,  when  the  criterion  was  read  in  conjunction
with  the  previous  heading  concerning  ‘the  expertise
required  of 
it  did  not  appear
inappropriate  to  consider  that  the  ‘necessary  experience’
related  to  the  requirements  laid  down  concerning  the
expertise  of  the  contractor;  that  is  ‘wide  breadth  of
knowledge  and  expertise,  and  a  proven  track  record  in
including  microbiology,
the  field  of  water  science, 
toxicology,  water  and  sanitary  engineering’.  Therefore,  it
appeared  that  the  Commission  was  entitled  to  take  into
account  tenderers’  experience  in  water  and  sanitary
engineering  when  evaluating  the  tenders.

contractor’ 

the 

C  380/82

EN

Official  Journal  of  the  European  Communities

7.12.98

As  for  the  Commission’s  assessment  of  the  company’s
capabilities in the water and research field, there were no
elements  in  the  file  to  indicate  that  this  assessment  had
not  been  carried  out  properly.

Although the complainant had suggested that the package
of  the  project  which  had  been  awarded  be  divided
between  the  winner  and  his  own  firm,  the  Commission
rejected  such  a  possibility.

As for Mr T.’s allegation that the Commission had failed
to observe the time limit of 15 days established by Article
12 of the services Directive 92/50/EEC, the Directive only
applies  to  contracts  exceeding  the  relevant  threshold
value.  There  was  no  breach  of  the  general  principles  of
good  administration  since  the  Commission  had  given
reasoned  answers  to  Mr  T.’s  letters  in  due  time.

there 

appeared 

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
complaint, 
no
maladministration  by  the  Commission  and  no  basis  for
the  claim  that  compensation  should  be  awarded  to  Mr
T.’s  company.  The  Ombudsman  therefore  closed  the
case.

been 

have 

to 

PROCEDURES  FOR  THE  ADJUDICATION  OF  A  CALL
FOR  TENDERS  IN  PAKISTAN

Decision  on  complaint  160/97/JMA  against  the
European  Commission

The  complaint

to 
the
On  February  1997  Mr.  G.  complained 
Ombudsman 
alleging
the  Commission, 
maladministration  in  the  adjudication  of  a  call  for
tenders.

against 

financed  by 

The  complainant’s  firm  participated  in  a  call  for  tenders
published  by  the  government  of  Pakistan  for  the  project
No  ALA/85/18  entitled  ‘Second  rural  vocational  training
project’, 
firm’s
proposal  related  to  one  part  of  that  project,  namely
package  No  5  (‘demonstrators  and  trainers  in  electronics
and  electricity  refrigeration’).  It  was  not  chosen  by  the
evaluation  committee  because  it  was  not  in  accordance
with  the  technical  specifications.

the  Commission.  The 

The complainant asked the Commission to check whether
there had been any irregularities in the tender procedures
or  in  the  actions  undertaken  by  its  officials  in  Pakistan,
which  could  have  led  to  the  annulment  of  the  bid’s
results.  In  its  reply,  the  Commission  wrote  that  ‘package
No  5’  had  been  awarded  to  company  H.  Mr  G.  then
wrote  to  the  Commission  asking  it  to  assess  whether  the
decision  on  the  tender  procedure  had  been  vitiated  by
formal  or  substantive  irregularities.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  the  Government
of  Pakistan  was  the  authority  responsible  for  the
development  of  the  project,  assisted  by  a  technical  group
in the Pakistani Ministry of Labour and the International
Labour  Organisation  (ILO)  and  that  the  Commission
merely  monitored  the  whole  process.

As  regards  the  non-selection  of  the  complainant’s
proposal,  the  Commission  explained  that  his  offer  had
not  been  in  accordance  with  the  technical  specifications
for  different  reasons:  (i)  the  training  material  being
offered  was  designed  for  demonstration  purposes  rather
than  for  a  continuous  use  in  vocational  education
environment; (ii) the material was not in accordance with
the  technical  specifications;  (iii)  some  information  given
by 
the  complainant’s  company  was  unclear  and
incomplete;  (iv)  an  urgent  request  from  the  evaluation
committee  to  the  complainant’s  company  requesting
additional  information  received  no  reply.

With  respect  to  the  complainant’s  request  to  divide  the
content  of  ‘package  No  5’,  the  Commission  pointed  out
that  the  need  to  submit  proposals  for  the  complete
package  had  been  stated  beforehand  by  the  Government
of  Pakistan  and  the  Commission 
line  with  the
conditions of the call for tenders. Moreover, it underlined
that several firms had been able to put forward proposals
for  the  whole  contents  of  package  No  5.

in 

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr.
G.  stated  that  no  reply  was  sent  to  the  evalaution
committee’s  request  for  further  information  because,  in
his  view,  the  decision  had  already  been  taken.

The  decision

the 

from 

the  complaint, 

It  appeared 
supporting
documents  and  the  inquiries  that  had  been  conducted
that the final adjudication of the project was made by the
Government  of  Pakistan  in  its  capacity  as  contracting
authority.  The  decision,  however,  was  based  on  an
evaluation report of all offers prepared by the Evaluation
Committee,  National  Training  Bureau  of  the  Pakistani
Labour  Ministry  (NTB),  and  the  International  Training

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/83

the 

Centre  of 
International  Labour  Organisation
(ITC/ILO),  which  had  also  to  be  agreed  by  the
Commission.

The  legal  background  to  the  complaint  is  Article  32  of
the  Staff  Regulations  which  provides:

According to the Commission’s comments, the evaluation
report  considered  the  complainant’s  proposal  inadequate
on  a  number  of  grounds  and  although  it  had  tried  to
review  those  deficiencies  directly  with  the  complainant’s
firm,  there  was  no  reply.  The  complainant  did  not
contest  these  points.

The  Ombudsman  therefore  found  that  the  selection
process had been carried out in conformity with the rules
of the call for tenders, and that the Commission appeared
to  have  followed  good  administrative  principles  in  its
surveillance  of  the  process.

As  regards  the  indivisibility  of  the  ‘package  No  5’,  since
the  advice  given  by  the  Commission  on  this  point
complied  with  the  rules  of  the  call  for  tenders,  the
Ombudsman  concluded  that  the  Commission  had  not
breached  any  principles  of  good  administration.

The  Ombudsman  therefore  closed  the  case.

CONTESTED  GRADING  OF  AN  OFFICIAL

Decision  on  complaint  198/97/PD  against  the  European
Commission

The  complaint

In February 1997, Mr R. complained to the Ombudsman
about  his  grading  as  a  Commission  official.

According to the complaint, he graduated from university
in  1988  and  started  working  in  February  1989.  On  16
June  1994  he  became  a  Commission  official  (Grade  A 8,
step  2).  Following  successful  participation  in  the  general
competition  COM/A/764,  he  was  appointed  as  an
administrator  as  from  16  February  1995  in  grade  A 7,
step 1, and with seniority in the step as from 1 February
1994.  This  grading  decision  was  the  object  of  his
complaint.

Before  complaining  to  the  Ombudsman  Mr  R.  had
submitted  an  appeal  to  the  Commission  against  this
grading  decision  under  Article  90  of 
the  Staff
Regulations.  He  considered  that  the  Commission  had
wrongly  applied  its  own  Decision  of  October  1983
concerning  grading.  According  to  the  complainant,
correct  application  of  the  Decision  would  have  meant
that  the  Commission  recognised  that  he  had  professional
experience  as  from  December  1989.  However,  the
Commission  only  recognised  the  professional  experience
as  from  December  1990  and  rejected  the  arguments  set
out  in  the  complaint.

‘An  official  shall  be  recruited  at  the  first  step  in  his
grade.

the  appointing  authority  may, 

However, 
taking
account  of  the  training  and  special  experience  for  the
post  of 
the  person  concerned,  allow  additional
seniority  in  his  grade;  this  shall  not  exceed  72  months
in grades A 1 to A 4, LA 3 and LA 4 and 48 months in
other  grades’.

More  detailed  rules  for  grading  have  been  laid  down  by
the above-mentioned Decision of October 1983. Article 2
of  the  Decision  implies  that  A 7  officials  who  have  three
years  previous  professional  experience  at  the  moment  of
recruitment  shall  be  graded  in  step  1.  Article  3  in  the
Decision and Annex II to the Decision concern additional
seniority  and  imply  that  an  A 7  official  with  four  years
previous  professional  experience  shall  be  granted  12
months  additional  seniority  and  an  A 7  official  with  five
years previous professional experience shall be granted 24
months  additional  seniority  and  thus  would  be  graded
A 7, step 2. However, Annex I to the Decision establishes
an  exception  to  these  rules:

‘Since  the  duration  of  university  studies  varies  in  the
Member  States  between  three  and  eight  years,  which
can  lead  to  distortions  in  grading,  measures  have  been
taken  to  reduce  the  gap  in  practice  from  five  years  to
two  years.

university 

Where 
(degree
studies 
corresponding  to  studies  of  less  than  four  years
duration),  the  period  of  professional  experience  taken
into  account  begins  to  run  one  year  after  graduation.

short 

are 

Where  university  studies  are  long  (degree  requiring
studies  of  more  than  six  years  duration),  professional
experience is taken into account from the seventh year
of  post-secondary  studies’.

Mr  R.  graduated  in  December  1988  after  university
studies  of  two  years  duration.  In  view  of  that  fact  the
Commission  counted  his  professional  experience  as  from
December  1990.  Mr  R.  considered  that  his  professional
experience  should  at  least  have  been  counted  as  from
December  1989;  instead  of  being  graded  A 7,  step  1,  he
should  therefore  have  been  graded  A 7,  step  2.

In substance Mr R. put forward that the rule in Annex I
concerning  short  university  studies  is  discriminatory  to
nationals  of  Member  States  where  university  studies  are
short  and  that  the  Commission  had  not  abided  by  its

C  380/84

EN

Official  Journal  of  the  European  Communities

7.12.98

Decision  of  October  1983.  In  that  context  Mr  R.
particularly  stressed  the  fact  that  although  the  duration
of  his  university  studies  was  two  years,  they  were  in  fact
three  years  condensed  studies.

experience,  it  could  be  difficult  to  justify  that  the
experience  of  one  of  them  could  not  be  taken  into
account  simply  because  of  the  duration  of  the  university
studies  preceding  the  professional  experience.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  the  aim  of  the
Decision  of  October  1983  was  to  establish  a  number  of
criteria  to  ensure  an  even-handed  approach  to  grading.
Given  that  the  duration  of  university  studies  in  the
Member  States  varies  considerably,  the  Commission  felt
justified  in  adopting  measures  to  reduce  the  effects  of
these  discrepancies  on  the  careers  of  officials,  who  must
be  recruited  from  as  wide  a  geographical  spread  as
possible, thereby ensuring that all were treated equally in
practice. Thus, the Commission contested that Annex I to
the  Decision  is  discriminatory.

As  for  the  application  of  the  Decision,  the  Commission
stated that it had reviewed Mr R.’s. grading, maintaining
that the Decision was correctly applied. In particular, the
Commission  stressed  that  the  aim  of  Annex  I  was  to
reduce the gap in duration of university studies from five
to  two  years.  Reaching  this  aim  implied  that  in  Mr  R.’s
case,  professional  experience  could  not  be  recognised
before  December  1990.

The  complainant’s  observations

In  his  observations,  the  complainant  maintained 
substance  his  complaint.

in

The  decision

As  concerns  the  principle  of  equal  treatment,  it  implies,
according  to  the  case  law  of  the  Court  of  Justice,  that
identical  situations  cannot  be  treated  differently  and
different  situations  cannot  be  treated  identically.  The
crucial  question  in  applying  this  principle  is  to  establish
what  is  an  identical  or  different  situation.

On  the  other  hand,  one  has  to  concede  to  the
Commission  certain  discretion  in  the  way  it  decides  to
deal  with  the  discrepancies  in  the  length  of  university
studies. The Commission has considered that duration of
university  studies  is  a  relevant  element  to  take  into
account  when  taking  a  decision  on  the  grading  of  its
officials  which  evidently  will  be  reflected  in  their  further
careers.  If  one  did  not  take  into  account  the  length  of
university  studies,  the  implication  could  be  that  officials
from  Member  States  where  the  duration  of  university
studies  is  short  systematically  had  better  career  prospects
than  officials  from  Member  States,  where  university
studies  are  long.

Thus  the  Commission  appears  to  be  entitled  to  consider
that  differences  in  the  duration  of  university  studies
justify  a  different  treatment  between  officials  with  short
university  studies  and  officials  with 
long  university
studies.

It is therefore not evident that Annex I to the Decision of
October  1983  amounts  to  a  violation  of  the  principle  of
equal  treatment.  However,  it  must  be  recalled  that  the
Court  of  Justice  is  the  highest  authority  on  questions  of
Community  law.

As  for  the  application  of  Annex  I  to  this  concrete  case,
the  Annex  provides  that  in  case  of  short  university
studies,  that  is  degrees  corresponding  to  less  than  four
years studies, the professional experience to be taken into
account  begins  to  run  one  year  after  graduation.  As.  Mr
R. graduated in December 1988, it seemed that according
to  its  wording,  the  Annex  implied  that  the  professional
experience  in  his  case  should  have  been  counted  as  from
the  Annex
December  1989.  On 
presupposes  that  the  shortest  university  studies  are  of
three  years  duration  and  the  aim  is  to  reduce  the  gap
between  the  shortest  university  studies  and  the  longest
ones  to  two  years.  According  to  the  underlying  aim,.  Mr
R.’s  professional  experience  should  be  counted  as  from
December 1990 and the Commission has thus decided to
interpret  the  Annex  in  conformity  with  this  underlying
aim.  The  Commission  appears  to  be  entitled  to  opt  for
such  an  interpretation.  However,  it  must  be  recalled  that
the  Court  of  Justice  is  the  highest  authority  on  questions
of  Community  law.

the  other  hand, 

On  the  one  hand,  one  can  consider  that  professional
experience should be considered as such independently of
any  consideration  concerning  duration  of  university
studies.  Where  two  people  have  the  same  professional

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  there  appeared  to  have  been  no
maladministration  by  the  European  Commission.  The
Ombudsman  therefore  closed  the  case.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/85

ADMISSION  TO  COMPETITION  REFUSED

Decision  on  complaint  233/97/PD  against  the  European
Commission

The  complaint

In  March  1997,  Mr  F.  complained  to  the  Ombudsman
concerning  the  Commission’s  refusal  to  admit  him  to  a
competition.  On  6  February  1996,  the  Commission
published  an  open  competition  based  on  diplomas  and
oral examinations, COM/A/975, to establish a reserve list
for  a  post  in  the  career  bracket  A 5/A 4.

One  of  the  conditions  for  being  taken  into  consideration
concerned  work  experience:

termination  of 

the
‘The  applicants  must,  after 
education  that  entitles  them  to  participation  in  the
competition,  prove  12  years  work  experience  in  a
position  corresponding  to  the  education,  of  which  at
least six years shall be in a field related to the nature of
functions  described  in  the  competition’.

The  nature  of  functions  was  stated  as  follows  in  the
notice:

‘Leader of the Commission  Delegation  at  International
Organisations  in  Vienna,  Austria,  under  Directorate
General  I.A,  Foreign  relations:  Europe  and  new
independent  States,  the  Common  Foreign  and  Security
Policy, Foreign Service.

The  leader  of  the  Commission  delegation  has  the
following  tasks:

—  representing  the  Commission 
competence  and  in  all  activities,

in  all  fields  of

—  ensuring  a  uniform 

implementation  of  all

Commission  measures  in  foreign  affairs,

—  observing,  deepening  and  enlarging  contacts  with

the  international  organisations  in  place,

—  establishing  and  maintaining  regular  contacts
the  organisations  and  Commission

between 
services.

Moreover,  applicants  shall  have  profound  knowledge
of  Community  policies  and  the  functioning  of  the
European  Union  (economic,  commercial  and  political
aspects,  foreign  affairs)  and  be  able  to  lead  a  team’.

sciences and that for more than eight years he worked as
a  scientist  within  this  field  in  the  USA,  France  and
Germany.  Thereafter  he  had  been  working  for  10  years
with  the  Austrian  Ministry  of  Research  and  Technology
involve  coordination  and
and  his  current  activities 
supervision  of  research  in  the  fields  of  electronics,  data
processing and communication, microsystem technics and
laser  technics.  Within  that  period  he  had  undertaken  a
three  months  course  on  the  European  Communities.  It
appeared,  furthermore,  that  he  was  in  charge  of  the
Ministry’s  relations  to  an  international  organisation  in
questions 
and
communication.

information 

technics 

related 

to 

in 

to  participate 

to  allow  him 

In  May  1996  the  selection  board  informed  Mr  F.  of  its
decision  not 
the
competition.  On  a  form  attached  to  the  letter  it  was
indicated  that  the  board  considered  that  he  did  not
possess  six  years  work  experience  in  a  position  which
corresponded to the requirements laid down in the notice
of  the  competition.  Mr  F.  wrote  to  the  selection  board
asking  it  to  review  its  decision.  However,  the  selection
board  informed  him  that  it  maintained  its  decision
because  it  found  that  Mr  F.’s  work  experience  lacked,  in
particular,  a  relevant  diplomatic  experience  as  well  as  a
relation  to  the  different  policy  areas  of  the  European
Union.  Mr  F.  contested  this  decision,  but  the  selection
board informed him that its decision was final and that it
had  terminated  its  work.

In his complaint Mr F. claimed that the selection board’s
reasoning  for  not  admitting  him  to  the  competition  was
inappropriate and contrary to the conditions published in
the  notice  of  the  competition.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  maintained  the  selection
board’s  position  in  substance.  In  particular  it  stressed
that  the  selection  board’s  decision  in  Mr  F.’s  case  was
fully  covered  by  the  wording  of  the  notice  of  the
competition.  Furthermore  it  underlined  that  the  selection
board  had  tried  to  explain  to  Mr  F.  the  reasons  why  it
did  not  consider  his  work  experience  relevant  in  relation
to  the  post  to  be  filled.

The  complainant’s  observations

In  March  1996  Mr  F.  applied  for  the  post.  It  appeared
from his curriculum vitae that he holds a Ph.D. in natural

In  his  observations,  the  complainant  maintained  his
complaint.  Furthermore,  he  added  that  the  reasoning
given by the selection board for not admitting him to the
competition  was  drafted  in  a  non-transparent  way.

C  380/86

EN

Official  Journal  of  the  European  Communities

7.12.98

The  decision

Under  the  case-law  of  the  Court  of  Justice,  selection
boards have wide discretionary powers. In the exercise of
these  powers,  selection  boards  shall  respect  the  legal
framework for their activities, laid down by the notice of
the  competition.  Furthermore,  by  its  very  nature,  the
assessment  of  applicants  involves  a  comparative  element.

The  crucial  question  in  this  case  is  whether  the  selection
board  had  respected  the  wording  of  the  notice  of  the
competition.  It  appeared  from  the  conditions  related  to
working  experience  that,  in  order  to  be  admitted  to  the
competition,  the  applicant  needed  to  have  worked  in
relation  to  international  organisations  and  to  possess  a
profound  knowledge  of  Community  policies.  The
selection  board  interpreted  this  to  the  effect  that  the
applicant  should  have  diplomatic  experience  relevant  for
the  post  to  be  filled  which  involved  a  relation  to  the
policy  areas  of  the  European  Union.  In  doing  so,  it
appeared  that  the  selection  board  acted  in  accordance
with  the  notice.

As  for  the  allegation  that  the  selection  board’s  reasoning
lacked transparency, it must be recalled that according to
the  case-law  of  the  Court  of  Justice,  the  reasoning  of  a
decision  must  allow  the  addressee  and  a  judge,  where
proceedings  are  brought  against  the  decision,  to  identify
the  reasons  on  which  the  decision  is  based.  Furthermore,
the  Court  of  Justice  has  stated  that  when  assessing  the
adequacy  of  the  reasons  given,  one  should  bear  in  mind
the context in which the reasoning has been given. It was
true  that  the  selection  board’s  reasoning  in  its  letter  to
the  complainant  was  very  short.  However,  the  reasons
stated  appeared  to  allow  Mr  F.,  or  a  judge  where  Mr  F.
had  lodged  legal  proceedings  against  the  decision  as  well
as  the  European  Ombudsman,  to  identify  the  two
particular  points  on  which  the  board  found  Mr  F.’s
experience  insufficient.  Thus,  the  reasoning  appeared  to
be  adequate.

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
complaint, 
no
maladministration  by  the  Commission.  The  Ombudsman
therefore  closed  the  case.

appeared 

there 

have 

been 

to 

own  initiative  on  this  matter  on  7  November  1997,
including  the  question  whether  the  Commission  could
communicate  evaluation  criteria  to  applicants  who  so
request.

3.1.6.  THE  COURT  OF  JUSTICE  OF  THE  EUROPEAN

COMMUNITIES

RECRUITMENT:  CRITERIA  FOR  THE  SELECTION  OF
CANDIDATES  IN  AN  OPEN  COMPETITION

Decision  on  complaint  869/10.9.96/EP/IT/DT  against
the  Court  of  Justice

The  complaint

his 

from 

exclusion 

concerning 

In  September  1996,  Mr  P.  complained  to  the  European
a
Ombudsman 
competition  for  legal  administrators  organised  by  the
Court  of  Justice  (CJ/A/11).  Following  his  application  on
30 August 1995, the selection board informed him on 23
May  1996  that  he  had  been  excluded  because  he  had
failed  to  prove  his  good  knowledge  of  a  second
Community  language.  He  appealed  and  the  selection
board  reconsidered  its  decision  as  regards  the  foreign
language  requirement.  However,  it  informed  Mr  P.  that
he  still  could  not  take  the  written  test,  since  during  the
second  stage  of  the  selection,  the  selection  board  had
established  that  his  average  university  marks  were
inferior  to  the  criterion  established  for  the  competition
(99  out  of  110  points).

In  the  complainants  view,  this  criterion  for  the  selection
of  candidates  was  ‘new  and  unfounded’.  Following  a
second  appeal,  the  selection  board  confirmed  its  decision
not  to  admit  him  to  the  written  examinations.

On  the  basis  of  the  above,  Mr  P.  complained  about  the
long  delay  in  the  selection  procedure.  He  also  alleged
discrimination  in  the  decision  of  the  selection  board  to
establish  a  minimum  mark 
level  (99/110)  with  no
consideration  of  his  professional  experience  of  six  years
as  a  company  lawyer  and  of  one  and  a  half  years  as  an
attorney.

Further  remarks

The  inquiry

The  comments  of  the  Court  of  Justice

Given  the  considerable  number  of  complaints  that  the
Ombudsman received concerning the lack of transparency
in  the  procedures  for  the  competitions  organised  by  the
Community  institutions,  he  opened  an  inquiry  on  his

The  complaint  was  forwarded  to  the  Court  of  Justice.  In
its  comments,  the  Court  explained  that  the  selection  of
the  candidates  to  be  admitted  to  the  written  tests  in
competition  CJ/A/11  consisted  of  two  stages.  The  two

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/87

stages  were  explained  in  the  competition  guide.  In  the
first  stage,  the  selection  board  established  a  list  of
candidates  who  met  the  requirements  defined  in  the
announcement  of  competition  (acquired  title  and  degree,
professional  experience,  linguistic  experience  and  age
limit). 
the  selection  board,
established  and  then  applied  criteria  for  evaluation  of
degrees  in  order  to  decide  on  the  candidates  to  be
admitted  to  the  examination.

the  second  stage, 

In 

After  evaluation  of  the  candidates,  the  selection  board
decided not to admit the application of Mr P. since it did
not  contain  a  justification  of  the  language  skills  required
under  section  III.B.2  of  the  notice  of  competition.
However, 
the
selection  board  re-examined  the  matter  and  found  that  a
document  was 
in  fact  annexed  to  the  candidature
justifying  knowledge  of  the  required  language  skills.

the  complainants  request, 

following 

Having  taken  Mr  P.s  application  to  the  second  stage  of
the  selection  procedure,  the  selection  board  decided  to
exclude  him  since  his  degree  did  not  have  the  minimum
mark  established  as  the  criterion  by  the  selection  board.

The  Court  also  commented  that,  in  its  view,  the  case
should  not  fall  within  the  mandate  of  the  Ombudsman,
because  as  far  as  staff  matters  were  concerned  the
procedure  to  be  followed  was  that  foreseen  in  Article
90(1)  and  (2)  of  the  Staff  Regulations.  It  added  that  the
Ombudsman  might 
the  most
appropriate  action  would  be  an  appeal  to  the  Court  of
First  Instance.

inform  Mr  P. 

that 

The  complainant’s  observations

In  his  observations,  Mr  P  argued  that  the  written  guide
for  the  competition  should  have  clearly  indicated,  in
order  of  importance,  the  relevant  requirements  to  be
taken  into  account  by  the  selection  board  for  the
selection procedure for the competition. The complainant
also  insisted  on  his  dissatisfaction  at  the  length  of  time
taken  by  the  selection  procedure.

The  decision

1.  Admissibility  of  the  case

for 

the  submission  of 

Article 2(8) of the Statute provides that no complaint
can  be  made  to  the  Ombudsman  concerning  work
relationships between the Community institutions and
bodies and their officials and other servants unless ‘all
internal
the  possibilities 
administrative  requests  and  complaints,  in  particular
the  procedures  referred  to  in  Article  90(1)  and  (2)  of
the  Staff  Regulations,  have  been  exhausted  by  the
person  concerned’.  This  procedural  requirement
applies  only  to  officials  and  other  servants  of  the
Communities.  A  candidate  in  an  open  competition  is
not  an  official  or  other  servant  of  the  Communities.

A  candidate  in  an  open  competition  may  appeal  to
the Court of First Instance in accordance with Article
91  of 
the
the  European
candidate  may 
Ombudsman.

the  Staff  Regulations.  Alternatively, 

complain 

to 

Mr P. chose to complain to the Ombudsman. There is
no provision in the Statute of the Ombudsman which
imposes  on  the  complainant  the  obligation  to  wait
until  the  timelimit  for  possible  legal  proceedings  has
been  exhausted.  Only  if  the  complainant  actually
began  legal  proceedings,  should  the  Ombudsman
declare  the  complaint  inadmissible.

2.  Use  of  the  average  point  criterion

Section  VI  of  the  notice  of  competition  gave  the
selection  board  the  discretion  of  choosing  among
different  selection  criteria.  As  regards  the  marks
obtained  during  the  university  studies,  such  criterion
is explicitly referred to in the last paragraph. Thus, it
does  not  appear  unreasonable  to  make  a  choice  on
the  basis  of  a  pre-established  mark  average,  even  if
such  criterion  may  not  appear  as  a  perfect  one.

3.  Time  foreseen  for  the  first  stages  of  the  competition

The  timing  of  the  selection  procedure  in  Section  XII
of  the  notice  of  competition  was  presented  as  an
estimate  not  a  fixed  schedule.  The  large  number  of
candidates who participate in this type of competition
can  make  it  necessary  to  postpone  dates  initially
foreseen  for  the  first  tests.

Under  the  scheme  established  by  the  Treaty  and  the
Statute  of  the  Ombudsman,  the  admissibility  of
complaints  is  determined  by  the  Ombudsman  in
accordance  with  Community  law.

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

C  380/88

EN

Official  Journal  of  the  European  Communities

7.12.98

3.2.  CASES  DROPPED  BY  THE  COMPLAINANT

In  view  of  the  complainant’s  wish  not  to  pursue  the
matter  further,  the  Ombudsman  closed  the  case.

3.2.1.  THE  EUROPEAN  COMMISSION

DELAY  IN  REPLYING  TO  COMPLAINANTS

ANTI-DUMPING  DUTIES

Decision  on  complaint  732/17.7.96/BAWA/NL/VK
against  the  European  Commission

Decision  on  complaint  349/97/PD  against  the  European
Commission

In  July  1996,  a  Dutch  law  firm  complained  to  the
Ombudsman  on  behalf  of  two  Dutch  companies  about
the  Commission’s  alleged  failure  to  reply  to  complaints
relating 
of  Council  Directive
92/50/EEC (1)  by  the  Netherlands.

infringements 

to 

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that,  due  to  a
misunderstanding  in  the  Commission’s  services,  a  delay
arose and that it had taken measures to improve internal
the
procedures.  As 
Netherlands,  the  Commission  stated  that  there  was  no
legal  basis  for  bringing  formal  action  against  the
Netherlands.

infringement  by 

regards 

the 

The  Commission’s 
the
complainant,  who  replied  that  he  wished  to  drop  the
case.

comments  were 

sent 

to 

the 

to 
of 

concerning 

In  April  1997,  a  company  complained 
the
an
imposition 
Ombudsman 
anti-dumping  duty  on  zinc  without  prior  notice.  The
directors  had  made  several  inquiries  whether  a  duty  was
to  be  imposed  or  not  during  the  spring  of  1997.  They
were  always  informed  that  duty  would  be  imposed  but
that  this  was  not  imminent  and  that  six  to  eight  weeks
notice  would  normally  be  given.  The  company  directors
tried  to  contact  the  Commission  for  further  information
on  the  matter  without  any  success.

The  complaint  was  forwarded  to  the  President  of  the
Commission.  Even  before  the  Commission  replied,  the
the
Ombudsman 
complainant 
the
complaint  as  the  company  was  at  the  time  in  direct
contact  with  the  Commission.

further 
received  a 
indicating  his  wish 

from 
letter 
to  withdraw 

The  Ombudsman  therefore  closed  the  case.

The  Ombudsman  therefore  closed  the  case.

RECRUITMENT:  WRONG  INFORMATION

Decision  on  complaint  919/2.10.1996/LJ/B/PD  against
the  European  Commission

In October 1996, Mr J., a Belgian citizen, complained to
the Ombudsman about administrative irregularities in the
filling  of  a  post  for  the  Tri-national  Commission  for  a
development  project  in  Latin  America.  He  claimed  that
the  Commission  had  given  him  wrong 
information
concerning  the  qualifications  needed  to  fill  the  post.

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  all  the  candidates
for  the  post  had  received  the  same  information.  Any
possible  error  would  therefore  have  prejudiced  all  the
candidates.

The  complainant’s  observations  stated  that,  since  the
Commission  had  recognised  that  his  complaint  was
wellfounded,  he  did  not  wish  to  pursue  the  matter
further.

(1)  OJ  L  209,  24.7.1992,  p.  1.

RESEARCH:  REFUSAL  OF  INFORMATION

Decision  on  complaint  474/97/VK  against  the  European
Commission

Mrs B., a Greek student, complained to the Ombudsman
in June 1997 concerning a request for information which
she  had  addressed  to  the  Commission  representation  in
Athens. She claimed that the office staff and in particular,
the director of the documentation department, were rude
and  that  they  refused  to  provide  information  to  research
students.

During  the  course  of  the  inquiries,  the  complainant
informed  the  Ombudsman  that  she  no  longer  wished  to
pursue  her  complaint  because  a  new  director  at  the
Commission  representation  had  been  appointed  and  the
situation  had  now  improved.

In view of the fact that the complainant no longer wished
to  pursue  her  complaint,  the  Ombudsman  closed  the
case.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/89

3.3.  CASES  CLOSED  FOR  OTHER  REASONS

3.3.1.  THE  EUROPEAN  PARLIAMENT

DISMISSAL  BY  THE  PARLIAMENT

Decision  on  complaint  458/27.2.96/HS/B/KT  against  the
European Parliament

On  15  February  1996,  Mr  S.  made  a  complaint  to  the
European  Ombudsman  concerning  his  dismissal  by  the
European Parliament.

On 11 March 1996, the complaint was forwarded to the
President of the European Parliament. After receiving the
comments  of  the  Parliament  and  the  observations  of  the
the  Ombudsman
those  comments, 
complainant  on 
decided  to  continue  his  inquiries  into  the  case.

On  17  July  1997,  the  European  Parliament  informed  the
Ombudsman  that  the  complainant  had  initiated  legal
proceedings before the Court of First Instance in relation
to  the  subject  matter  of  his  complaint.  A  copy  of  the
pleadings 
the
case  was 
Ombudsman.

forwarded 

the 

to 

in 

Because  the  alleged  facts  had  become  the  subject  of  legal
proceedings, 
his
consideration  of  the  complaint  on  21  July  1997  in
accordance  with  Article  138e  of  the  Treaty  establishing
the  European  Community.

the  Ombudsman 

terminated 

In  accordance  with  Article  2(7)  of  the  Statute  of  the
Ombudsman, the outcome of the Ombudsman’s inquiries
carried  out  up  to  that  point  was  filed  without  further
action.

3.3.2.  THE  EUROPEAN  PARLIAMENT  AND  THE

EUROPEAN  COMMISSION

WITHHOLDING  OF  COMMUNITY  TAX  BY  THE
EUROPEAN  COMMISSION  AND  THE  EUROPEAN
PARLIAMENT  TO  FREELANCE  INTERPRETERS

Decision  on  complaints  463/28.2.96/RK/CH/PD,
770/29.7.96/MAC/CH/PD  and
1017/13.11.96/AVL/FR/JMA  against  the  European
Commission  and  the  European  Parliament

Mr  K.,  Ms  A-C.  and  Ms  L.  each  complained  separately
to the European Ombudsman concerning the withholding
of  Community  tax  by  the  European  Parliament  and  the
Commission 
freelance
interpreters.  The  complaints  were  lodged  in  February
1996,  in  July  1996  and  in  November  1996,  respectively.

remuneration  of 

from 

the 

The  complainants  had  worked  for  a  number  of  years  as
the
freelance 

the  Parliament  and 

interpreters 

for 

Commission.  Both  institutions  deducted  a  Community
tax from their remuneration. The Parliament adopted this
practice in 1983, on the basis of a decision by the Bureau
of  the  Parliament.  This  decision  modified  Article  78  of
the  Rules  Applicable  to  Other  Servants,  so  as  to
assimilate  freelance  interpreters  to  auxiliary  session  staff.
The  Commission  adopted  the  practice  by  means  of  an
agreement  concluded  in  1989  with  the  ‘Association
internationale  des  interpre`tes  des  confe´rence’  (AIIC).

i. e. 

they  paid  Swiss 

The  complainants,  who  live  in  Switzerland,  were  subject
to  double  taxation  on  their  remuneration  from  1989  to
the
1994, 
Community  tax.  In  1994,  the  AIIC  agreement  was
modified  to  allow  for  repayment  of  the  national  taxes.
However, 
detailed
documentation  of  the  national  taxes  already  paid.  The
complainants  argued  that  this  requirement  violated  their
right  to  privacy.

the  Commission 

demanded 

tax  and 

income 

During  the  course  of  the  Ombudsman’s  inquiry,  two  of
(770/29.7.96/
the  complainants,  namely  Ms  A-C. 
MAC/CH/PD)  and  Ms  L.  (1017/13.11.96/AVL/FR/JMA),
began  proceedings  against  the  Commission  in  the  Court
of  First  Instance  (Cases  T-202/96  and  T-204/96).  These
proceedings  appear  to  involve  the  same  alleged  facts  as
the  complaints  to  the  Ombudsman.

In  accordance  with  Article  2(7)  of  the  Statute  of  the
Ombudsman,  in  the  case  of  these  two  complaints,  the
outcome of the Ombudsman’s inquiries carried out up to
that  point  was  filed  without  further  action.

The  Ombudsman  considered  that  he  could  not  continue
his  inquiries  into  the  third  complaint,  submitted  by  Mr
K.  (463/28.2.96/RK/CH/PD)  without  taking  a  stand  on
the  issues  of  fact  and  law  which  are  currently  before  the
Court  of  First  Instance  in  cases  Cases  T-202/96  and
T-204/96.

The  Ombudsman 
further
therefore 
consideration  of  this  complaint,  pending  the  outcome  of
the  cases.

suspended 

3.3.3.  THE  EUROPEAN  COMMISSION

LACK  OF  RECOGNITION  OF  MEDICAL  DEGREES  IN
PUBLIC  HEALTH  BY  THE  SPANISH  AUTHORITIES

Decision  on  complaint  713/11.07.96/LMV/ES/PD
against  the  European  Commission

The  complaint

In  June  1996  Mr  M.  complained  to  the  Ombudsman
about  the  refusal  of  the  Spanish  authorities  to  recognise

C  380/90

EN

Official  Journal  of  the  European  Communities

7.12.98

his  qualifications,  awarded  in  France,  as  a  public  health
specialist  and  the  alleged  failure  by  the  Commission  to
ensure  the  correct  application  by  Spain  of  Council
Directive  93/16/EEC (1).

Having  completed  his  medical  degree  in  France,  Mr  M.
sought  to  have  it  recognised  by  the  Spanish  authorities.
As  with  other  applicants,  the  Spanish  authorities  refused
since,  at  the  time,  the  relevant  Community  legislation
(Directive  75/262/EEC)  had  not  been  transposed  the
Spanish 
law.  Although  Directive  75/262/EEC  was
subsequently  modified  by  Directive  93/16/EEC,  its  most
relevant  obligation  laid  down  in  Article  8  remained
unchanged.  Article  12  bis  of  the  Spanish  implementing
legislation  (RD  2072/95)  incorporated  the  provisions  of
Article  8  of  the  Directive,  although  only  partially.

The Commission started infringement proceedings against
Spain  on  this  matter  in  1990,  although  it  never  reached
the  stage  of  sending  of  a  reasoned  opinion.  The
infringement  procedure  was  begun  again  in  1996  since
Spain  modified  its  original  implementing  legislation  at
that time. A complementary letter of formal notice had to
be  forwarded  in  1996.  For  six  years  while  the  procedure
existed,  the  Commission  indicated  that  its  services  had
been  assessing  the  Spanish  legislation,  through  some
contacts  and  meetings  with  the  Spanish  authorities.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  its  intention  to  pursue
the 
its
infringement  proceedings  against  Spain  for 
incorrect  transposal  of  Directive  93/16/EEC  and  to  take
the  necessary  actions  to  bring  the  matter  before  the
European  Court  of  Justice.  The  complainant  was  invited
to  submit  observations  on  the  Commission’s  comments.

From  the  information  supplied  to  the  Ombudsman,  it
appeared  that  Mr  M.  had  also  sent  a  petition  on  the
same  subject  to  the  European  Parliament,  and  that  the
Committee  on  Petitions  of  the  Parliament  was  dealing
with  the  matter.

The  decision

In  view  of  the  fact  that  the  Committee  on  Petitions  was
dealing with Mr M.’s petition, there were no grounds for
the  Ombudsman  to  conduct  further  inquiries  into  the

(1)  OJ  L  165,  7.7.1993,  p.  1.

complaint.  The  European  Ombudsman  decided  therefore
to  close  the  case.

ALLEGED  DISCRIMINATION  IN  AN  INTERNAL
COMPETITION

Decision  on  complaint  944/15.10.96/JBW/B/BB  against
the  European  Commission

Mr W. had participated in an internal competition of the
European  Commission  (COM/T/A/96).  He  passed  the
written  examinations,  but  failed  the  oral  examination.

In his complaint to the Ombudsman on 3 October 1996,
he alleged that an unfair and discriminatory question was
asked  of  him  at  the  oral  examination.

The  complaint  was  forwarded  to  the  Commission.  By
letter dated 17 February 1997, the Commission informed
the  Ombudsman  that  Mr  W.  submitted  an  appeal  on  5
November  1996  against  the  decision  of  the  selection
board 
in  accordance  with  Article  90  of  the  Staff
Regulations  and  that  the  appeal  was  still  being  dealt
with.

According  to  Article  2(8)  of  the  Statute  of  the  European
Ombudsman:

‘No  complaint  may  be  made  to  the  Ombudsman  that
concerns  work  relationships  between  the  Community
institutions  and  bodies  and  their  officials  and  other
servants  unless  all  possibilities  for  submission  of
internal  administrative  requests  and  complaints,  in
particular  the  procedures  referred  to  in  Article  90(1)
and  (2)  of  the  Staff  Regulations,  have  been  exhausted
by the person concerned and the time limits for replies
by  the  authority  thus  petitioned  have  expired’.

As  it  appeared  that  the  procedures  referred  to  in  Article
90  of  the  Staff  Regulations  were  still  pending,  the
Ombudsman  closed  the  case  without  pursuing  his
inquiries  further.

STAFF:  PENSION  RIGHTS  OF  A  LOCAL  AGENT

Decision  on  complaint  970/24.10.96/DBR/B/BB  against
the  European  Commission

In October 1996, Mrs R. complained to the Ombudsman
about  problems  related  to  the  recognition  of  her  pension
rights  based  on  her  status  as  a  local  agent  of  the
Commission.

The complaint was forwarded to the Commission, which
informed the Ombudsman that Mrs R. had submitted an
internal  appeal  on  23  October  1996  under  Article  35  of
the  regime  applicable  to  local  agents  in  service  in  Benin.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/91

According  to  Article  2(8)  of  the  Statute  of  the  European
Ombudsman:

‘No  complaint  may  be  made  to  the  Ombudsman  that
concerns  work  relationships  between  the  Community
institutions  and  bodies  and  their  officials  and  other
servants  unless  all  possibilities  for  submission  of
internal  administrative  requests  and  complaints,  in
particular  the  procedures  referred  to  in  Article  90(1)
and  (2)  of  the  Staff  Regulations,  have  been  exhausted
by the person concerned and the time limits for replies
by  the  authority  thus  petitioned  have  expired’.

As  it  appeared  that  this  condition  was  not  met,  the
Ombudsman  closed  the  case  without  pursuing  his
inquiries  further.

3.3.4.  THE  COURT  OF  AUDITORS

ADMISSIBILITY:  TIME  LIMIT  EXCEEDED

Decision  on  complaint
525/25.3.96/HDC/FR/PD/IJH/XD  against  the  Court  of
Auditors

In  July  1995,  Mr  C.  complained  to  the  Ombudsman
against the Court of Auditors concerning events that took
place  in  the  1980s.  The  Ombudsman  declared  the
complaint  inadmissible  under  Article  2(4)  of  the  Statute
of  the  Ombudsman,  because  the  facts  on  which  the
complaint was based had been known to the complainant
for  more  than  two  years.

In March 1996, Mr C. made a further complaint against
facts.  After
the  Court  of  Auditors,  alleging  new 
considering  the  comments  of  the  Court  of  Auditors  and
the  complainant’s  observations  on  the  comments,  the
Ombudsman  determined  that  the  new  complaint  did  not
involve  new  facts 
in  comparison  with  the  earlier
complaint.  He  therefore  closed  the  case  as  inadmissible
under  Article  2(4)  of  the  Statute.

3.4.  CASES  SETTLED  BY  THE  INSTITUTION

3.4.1.  THE  EUROPEAN  PARLIAMENT

RECRUITMENT:  LANGUAGE  DISCRIMINATION

Decision  on  complaint  627/5.6.1996/PS/B/VK  against
the  European  Parliament

Mr.  S,  a  Belgian  national,  complained  to  the  European
Ombudsman  in  June  1996  about  a  call  for  applications,
in  the  Official  Journal  of  the  European
published 
Communities,  for  vacancies 
in  the  surveillance  and
security  services  of  the  European  Parliament  in  Brussels.
According  to  the  call  for  applications,  the  required
language qualification was French only. The complainant
stated  that  this  appeared  to  discriminate  against  the
Flemish language.

The  complaint  was 
the  European
Parliament for comments. Parliament replied that the call
for application concerning posts in the security services in
Brussels  had  been  withdrawn  as  of  21  January  1997.

forwarded 

to 

reply  of  Parliament  was 

The 
the
complainant  with  an  invitation  to  submit  observations  if
he  so  wished.  No  observations  were  received.

forwarded 

to 

On  the  basis  of  the  Ombudsman’s  inquiries,  it  appeared
that  Parliament  had  taken  measures  to  prevent  any
possible language discrimination in the particular call for
applications 
the  security  services  of
in 
Parliament  in  Brussels.

for  posts 

The  European  Parliament  appeared  to  have  settled  the
matter  in  a  satisfactory  way  for  the  complainant  and  the
Ombudsman  therefore  closed  the  case.

EXCLUSION  FROM  AN  INVITATION  TO  TENDER

Decision  on  complaint  7/97/BB  against  the  European
Parliament

The  complaint

On  3  January  1997,  Ms  de  V.,  a  Belgian  citizen,
complained to the Ombudsman about her exclusion from
an  invitation  to  tender  published  by  the  European
Parliament.  The  Parliament  published  an  international
invitation  to  tender  with  the  topic  ‘Accessibilite´ des
handicape´s  au  Parlement  Europe´en’.  The  complainant
sent  her  offer  in  due  time  and  went  on  holiday.
Meanwhile,  the  Parliament  sent  a  letter  to  all  the
tenderers  explaining  that,  owing  to  an  administrative
problem  in  the  reception  of  the  mail,  the  Parliament  was
unable  to  open  the  tender  offers.  Therefore,  Parliament
requested tenderers to send copies of their offers within a
new  deadline.  On  her  return  from  holiday,  Ms  de  V.
found  that  this  new  deadline  had  already  elapsed.  She
immediately  sent  a  fax  to  Parliament  explaining  the
situation  and  proposing  to  send  a  copy  of  her  offer  the
following Monday. Parliament replied stating that Ms de
V.  was  not  authorised  to  participate  in  the  invitation  to
tender.  The  complainant  requested  that  the  invitation  to
tender 
should  be  annulled  on  grounds  of  mal-
administration  relating  to  the  procedures  and  that  a  new
invitation  be  launched.

The  inquiry

On  6  February  1997, 
the  European  Ombudsman
forwarded  the  complaint  to  the  President  of  Parliament
with  a  request  for  comments.

C  380/92

EN

Official  Journal  of  the  European  Communities

7.12.98

Ms de V. wrote to the Ombudsman on 25 February 1997
stating  that  Parliament  had  informed  her  by  letter  dated
20  February  that  it  had  decided  to  annul  the  original
invitation  to  tender  and  that  it  would  launch  a  new
invitation  in  the  near  future.  Ms  de  V.  expressed  her
satisfaction  and 
for  his
investigation  into  the  matter.

the  Ombudsman 

thanked 

Parliament’s  comments

Parliament  informed  the  European  Ombudsman  on  9
April  1997  that  the  invitation  to  tender  had  been
annulled  by  notice 
in  the  Official  Journal  of  the
European  Communities  of  15  March  1997  and  that  a
new  invitation  would  be  launched  in  the  near  future.
Parliament  explained  that  the  reason  for  annuling  the
tender procedure was an unfortunate clerical error on 30
October  1996  while  opening  the  offers.  Parliament
mentioned  that  it  had  informed  both  Ms  de  V.  and  her
lawyers  of  this.

The  decision

The  European  Parliament  appeared  to  have  settled  the
matter  in  a  satisfactory  way  for  the  complainant  and  the
Ombudsman  therefore  closed  the  case.

As a result of these initiatives, Parliament reconsidered its
position  and  decided  to  pay  to  the  complainants  the
amount  originally  offered.  Ms  P.  therefore  informed  the
Ombudsman  that  the  complainants’  demands  had  been
satisfied  and  they  did  not  wish  to  pursue  the  complaint.

The  European  Parliament  appeared  to  have  settled  the
matter  in  a  satisfactory  way  for  the  complainant  and  the
Ombudsman  therefore  closed  the  case.

ACKNOWLEDGEMENT  OF  A  PETITION  TO  THE
EUROPEAN  PARLIAMENT

Decision  on  complaint  569/97/IJH  against  the  European
Parliament

The  complaint

On  21  June  1997,  Mr  P.  made  a  complaint  to  the
European  Ombudsman  alleging 
the  European
Parliament  had  failed  to  acknowledge  receipt  of  a
petition  that  he  had  addressed  to  the  President  of
Parliament  on  26  April  1997.  He  had  written  again  on
18  May  1997  and  5  June  1997  to  ask  for  an
acknowledgement.

that 

AMOUNTS  PAID  TO  TRAINEES

The  inquiry

Decision  on  complaint  37/97/JMA  against  the  European
Parliament

Parliament’s  opinion

in 

jointly  with 

several  other  complainants,
Ms  P., 
complained 
the  European
Ombudsman that the amount paid to them as trainees by
the European Parliament did not correspond to the figure
initially offered.

January  1997 

to 

When  the  traineeship  service  of  the  European  Parliament
informed  the  complainants  of  the  acceptance  of  their
applications  for  traineeships  it  stated  that  they  would
receive  a  payment  of  approximately  BEF  49 000  per
month.  Subsequently,  however,  the  complainants  were
informed  that  the  monthly  payment  would  be  only  BEF
35 054.

The  European  Parliament  justified  this  change  on  the
grounds  that,  between  the  two  communications,  a  new
Regulation  on  traineeships,  with  different  financial
conditions,  had  been  approved  by  the  Secretary-General
of Parliament.

The application of these new conditions was contested by
the  complainants  before  the  responsible  services  of  with
Parliament  and  also  by  complaint  to  the  Ombudsman.

On  2  July  1997,  the  complaint  was  forwarded  to  the
President  of  the  European  Parliament.  In  summary,
Parliament  made  the  following  points.

Since 1991, Mr P. had sent a steady flow of letters, often
drafted  with  identical  wording,  requesting  Parliament  to
encourage the use of Esperanto. Three of the letters were
registered as petitions (515/91, 364/93 and 270/95). Each
time 
its
consideration  of  the  petition  and  informed  him  of  the
main  decisions  taken  by  Parliament  on  the  use  of
languages.

the  Committee  on  Petitions 

concluded 

Mr  P.  wrote  several  times  to  complain  about  the
decisions  taken  and  to  insist  on  the  value  of  Esperanto.
More  recently,  he  asked  for  a  new  petition  to  be
registered.  Since  its  substance  and  wording  was  the  same
as  that  of  the  petitions  that  had  been  dealt  with,  his
correspondence  was  not  registered  by  Parliament  as  a
new petition. Instead, it was forwarded to the Committee
last
on  Petitions  as  correspondence  relating  to  his 
petition,  No  270/95.

The Chairman of the Committee on Petitions intended to
consult  the  Committee,  at  a  meeting  in  June  or  July

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/93

1997, on the follow up to be given to Mr P.’s letters. He
indicated to the Committee’s secretariat that, in the mean
time,  it  was  not  necessary,  or  even  appropriate,  to
acknowledge  correspondence  from  someone  who  had
sent  a  steady  stream  of  letters  to  Parliament  over  the
years,  which  on  several  occasions  had  been  registered  as
petitions, translated into all languages and examined and
replied  to  by  the  Committee  on  Petitions.

The  Committee  on  Petitions  did  not  have  time  to  deal
with the matter at its meetings in June and July 1997. On
11  July  1997,  the  Chairman  of  the  Committee  on
Petitions  wrote  to  inform  Mr.  P.  that  the  matter  would
be submitted to the Committee at a later date and that he
would  be  informed  of  the  outcome.

The  complainant’s  observations

Parliament’s  opinion  was  forwarded  to  Mr  P.  on  28
October  1997.  His  observations  referred  to  Parliament’s
opinion as giving a full explanation of his complaint and
indicated  that  he  was  satisfied  that  the  Committee  on
Petitions  would  be  dealing  with  the  matter.  He  stated
that  the  European  Ombudsman  could  now  close  the  file
on  the  complaint.

The  decision

and 

On  the  basis  of  the  opinion  from  the  European
Parliament 
observations,
Parliament  appeared  to  have  settled  the  matter  in  a
satisfactory  way  for  the  complainant.  The  Ombudsman
therefore  closed  the  case.

complainant’s 

the 

3.4.2.  THE  COUNCIL  OF  THE  EUROPEAN  UNION

The  issue  of  the  Ombudsman’s  competence  is  dealt  with
in  part  2  (see  p.  9).

This  summary  deals  with  the  Ombudsman’s  decision  on
the  merits  of  one  of  the  complaints.  At  the  end  of  1997,
the Ombudsman’s inquiries into the five other complaints
were  still  continuing.

The  complaint

The  complaint  stated  that  the  Council  appeared  to  be
destroying agendas of meetings held under the Council of
Justice  and  Home  Affairs  Ministers  after  one  year.

In  summary,  the  evidence  presented  by  Mr  B.  was  as
follows.

He  wrote  to  the  Council  in  1995  requesting  the  agendas
of  11  meetings  of  groups  coming  under  the  K4
Committee  and  the  agendas  of  the  meetings  of  the
steering groups and their working parties during 1994. In
both  cases,  the  reply  from  the  Council  stated  that  the
Agendas  existed  only  as  telexes  which  are  not  kept  for
more  than  one  year.

In  May  1996,  he  wrote  to  the  Council  with  a  similar
request  relating  to  meetings  held  under  the  Justice  and
Home Affairs Ministers from July 1994 to June 1996. In
its  reply,  the  Council  stated  that  the  relevant  documents
are not kept. He wrote again to the Council in July 1996
requesting  that  it  reconsider  its  policy  of  not  keeping  the
documents.  He  received  a  reply  from  the  Council  which
he  considered  failed  to  address  his  request.

CONSERVATION  OF  DRAFT  AGENDAS  OF  THE
COUNCIL  OF  JUSTICE  AND  HOME  AFFAIRS
MINISTERS

The  requests  were  made  under  Council  Decision  of
93/731/EC  of  20  December  1993  on  public  access  to
Council  documents (1).

Decision 
complaint 
on 
UK/IJH  against  the  Council

1054/25.11.96/Statewatch/

In  November  and  December  1996,  Mr  B.  made  six
complaints  to  the  European  Ombudsman  against  the
Council.

Following  the  Ombudsman’s  decision  to  begin  inquiries
into  the  six  complaints,  the  Council  questioned  the
competence  of  the  Ombudsman  to  deal  with  them.  On
15  April  1997,  the  Ombudsman  wrote  to  the  Council
explaining his decision that the complaints fell within his
mandate  and  on  20  June  1997  the  Council  sent  its
opinion  on  the  merits  of  the  complaints.

In  his  complaint  to  the  Ombudsman,  Mr  B  also  referred
to  Council  Regulation  No  354/83  (EEC,  Euratom) (2)
concerning  the  opening  to  the  public  of  historical
archives  which  foresees  the  transfer  to  historical  archives
of  all  documents  and  records  that  have  administrative  or
historical value. He claimed that the agendas of meetings
relating  to  Justice  and  Home  Affairs  matters  contain
essential  information  for  the  citizen  in  establishing  the
historical  record  of  the  Council’s  activity  and  that  these
documents  should  be  preserved.

(1)  OJ  L  340,  31.12.1993,  p.  43.
(2)  OJ  L  43,  15.2.1983,  p.  1.

C  380/94

EN

Official  Journal  of  the  European  Communities

7.12.98

The  inquiry

3.4.3.  THE  EUROPEAN  COMMISSION

The  Council’s  opinion

FAILURE  TO  REPLY  TO  CORRESPONDENCE

The  complaint  was  forwarded  to  the  Council  in  January
1997.  Following  the  Ombudsman’s  confirmation  of  his
competence  to  deal  with  the  matter,  the  Council  sent  its
opinion  on  the  merits  of  the  complaint.  The  opinion
stated:

Decision  on  complaint  604/21.5.96/SW/IRL/IJH  against
the  European  Commission

The  complaint

‘This  complaint  refers 
the  conservation  and
to 
incorporation  in  the  historical  archives  of  telexes  sent
to  delegations  concerning  the  convening  of  meetings.

On  16  May  1996,  Mrs  W.  made  a  complaint  to  the
European Ombudsman alleging that the Commission had
failed  to  reply  to  correspondence.

Such  telexes  are  retained  in  the  existing  computerised
system  for  despatching  telexes  for  approximately  one
year. After that period, systematic classification of such
documents  falls  within  the  internal  organisation  of
each  department  of  the  Council  General  Secretariat.

A record of each meeting convened is moreover drawn
up  solely  on  the  basis  of  the  agenda  for  the  meeting,
which is adopted at the beginning of the meeting itself
on  the  basis  of  the  draft  agenda  sent  by  telex  but
which  may  differ  from  that  draft.

However,  since  the  problem  arose  as  a  result  of  the
requests  made  by  Mr  B.,  draft  agendas  for  Justice  and
Home Affairs (JHA) meetings have been systematically
Secretariat  departments
kept  by 
concerned’.

the  General 

She  had  sent  a  letter  to  the  European  Commission  office
in  Dublin  concerning  the  refusal  of  the  Irish  authorities
to  recognise  teaching  qualifications  she  had  acquired  in
the  UK.  On  26  July  1995,  the  Commission  office  in
Dublin  replied  to  her,  stating  that  her  letter  would  be
forwarded  to  an  official  in  the  Secretariat-General  of  the
Commission  and  that  she  should  hear  from  him  in  the
near  future.

Mrs  W.  complained  that  she  had  received  no  further
communication  from  the  Commission  about  the  matter.

The  inquiry

The  complainant’s  observations

The  Commission’s  opinion

The  Council’s  comments  were  forwarded  to  Mr  B.  in
June  1997.  His  observations  stated  that  the  complaint
was  satisfied.

The  decision

According  to  the  comments  of  the  Council,  it  responded
to  the  complaint  by  altering  its  practices  so  that  draft
agendas  for  Justice  and  Home  Affairs  meetings  are
systematically 
the  General-Secretariat
departments  concerned.

kept 

by 

the 

The  complaint  was  forwarded  to  the  Commission.  In  its
opinion, 
the
Secretariat-General  had  forwarded  Mrs  W.’s  letter  of  12
July  1995  to  the  appropriate  Directorate-General  and
that:

Commission 

stated 

that 

‘an internal inquiry has revealed that the letter was not
dealt with because of a large volume of correspondence
in  the  department  concerned,  which  also  deals  with
other  matters  relating  to  citizens.  The  Commission
regrets any inconvenience which may have been caused
to  Ms  W.  It  would  also  point  out  that  a  clear  answer
to  the  particular  question  she  asked  could  be  found  in
the  user  guide  to  the  general  system  of  recognition  of
professional qualifications. . .’.

The complainant’s observations stated that the complaint
was  satisfied.

It therefore appeared that by systematically keeping draft
agendas  of  its  Justice  and  Home  Affairs  meetings,  the
Council  had  satisfied  the  complainant.  The  Ombudsman
therefore  closed  the  case.

As  regards  recognition  of  her  teaching  qualifications  in
Ireland,  the  Commission’s  opinion  stated  that  her  case
fell  within  the  scope  of  Council  Directive  89/48/EEC (1)
which  provides  that,  in  cases  where  there  are  substantial
differences  between  the  training  acquired  by  the  migrant

(1)  OJ  L  19,  24.1.1989,  p.  16.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/95

and that required by the host State, the latter may require
either an adaptation period or an aptitude test, whichever
the  person  concerned  prefers.

The  opinion  concluded  by  stating  that  the  Commission
would  contact 
the
application  of  Directive  89/48/EEC  to  obtain  further
information  on  Mrs  W.’s  case  and  that  it  would  inform
her  of  the  result.

the  national  coordinator 

for 

The  Commission’s  opinion  was  forwarded  to  Mrs  W.
with an invitation to submit observations if he so wished.
No  observations  were  received.

Further  inquiries

On  16  October  1997, 
the  Ombudsman’s  services
contacted  Mrs  W.  by  telephone.  She  stated  that  she  had
the
not  received 
Commission  which  it  had  promised  in  its  opinion.

further  communication 

from 

the 

2.  While 

an 

large 

volume 

unexpectedly 

of
correspondence  could  explain  delay  in  replying  to  a
letter,  it  does  not  constitute  an  acceptable  reason  for
failure  to  reply.  This  is  especially  so  when,  as  in  the
specifically
present  case, 
informed  the  person  concerned  that  a  reply  will  be
given.

the  Commission  has 

3.  The  Commission’s  opinion  also  pointed  out  that  an
answer  to  the  complainant’s  question  could  be  found
in  the  user  guide  to  the  general  system  of  recognition
of  professional  qualifications.  It  would,  therefore,
have  been  helpful  if  the  Commission  office  in  Dublin
had  referred  the  complainant  to  the  user  guide  in
response 
the
Ombudsman  noted  that,  since  August  1996,  the
Commission  (DG  X)  has  provided  a  service  called
‘Europe  Direct’  which  is  intended  to  give  quick
answers to general requests for information which are
addressed  to  the  Commission.

this  context, 

inquiry. 

to  her 

In 

4.  The  Commission’s  letter  to  the  complainant  of  18
November  1997  appeared  to  deal  with  the  questions
raised  in  her  letter  of  12  July  1995.

The  Ombudsman’s 
Commission  to  enquire  about  the  position.

services 

then 

contacted 

the

In  view  of  point  4  above,  the  Commission  had  acted  to
in  a  satisfactory  way.  The
settle 
Ombudsman  therefore  closed  the  case.

the  complaint 

On  14  November  1997,  the  Commission  sent  the
Ombudsman  copies  of  correspondence  about  Mrs  W.’s
case which DG XV had addressed to the Irish authorities
on  16  October  1997  and  12  November  1997,  together
with  a  reply  from  the  Irish  authorities  dated  13
November  1997.

On  19  November  1997,  the  Commission  sent  the
Ombudsman  a  copy  of  a  letter  that  it  had  addressed  to
its
Mrs  W.  on  18  November  1997, 
correspondence  with  the  Irish  authorities.  This  letter
advised her to contact the relevant national authorities to
indicate  her  choice  of  an  aptitude  test  or  adaptation
period.  The  letter  gave  her  the  name,  address,  telephone
and  fax  numbers  of  the  person  to  contact.

following 

The  letter  also  stated  that  the  Community  institutions
have no power to revoke an administrative decision taken
by  national  authorities  and  that  Article  8  of  Directive
89/48/EEC  gives  the  right  of  appeal  before  a  national
court  or  tribunal.

The  decision

FAILURE  TO  REPLY  TO  LETTERS

Decision  on  complaint  723/16.7.96/EJ/IRL/KH  against
the  European  Commission

In  July  1996,  Mr  J.  complained  to  the  Ombudsman
concerning  the  failure  of  the  Commission  to  reply  to  a
letter  and  a  reminder  from  him.  In  July  1995  he
addressed 
in
Ireland  on  a  question  concerning  insurance.  The  letter
was transmitted to the Commission in Brussels. As Mr J.
did  not  hear  from  Brussels,  he  sent  a  reminder.  Finally,
he  complained  to  the  Ombudsman.

the  Commission  representation  office 

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  apologised  for  not  having
answered  Mr  J.’s  letter  in  time.  It  stated  that  failure  was
due  to  a  malfunction  in  the  internal  mail  system  of  the
Commission and that measures had been taken to ensure
a  better  follow-up  of  incoming  mail.  Furthermore,  the
Commission  annexed  a  letter  of  18  October  1996  it  had
addressed  to  Mr  J.,  replying  to  the  issue  he  had  put
forward  in  his  initial  letter.

1.  In 

its  opinion,  the  Commission  stated  that  the
complainant’s  letter  of  12  July  1995  was  not  dealt
with  because  of  a  large  volume  of  correspondence  in
the department concerned. It expressed regret for any
inconvenience  which  may  have  been  caused.

The  complainant  did  not  make  any  observation  on  the
Commission’s  comments.

The  Commission  had  recognised  and  apologised  for  the
error  that  had  occurred  and  had  taken  steps  to  put  the

C  380/96

EN

Official  Journal  of  the  European  Communities

7.12.98

matter right and thereby settle the matter in a satisfactory
way  for  the  complainant.  The  Ombudsman  therefore
closed  the  case.

After receiving the complaint, it had contacted the Italian
authorities informally.

HANDLING  OF  A  COMPLAINT  ON  BARRIERS  TO
SOCIAL  SECURITY  PAYMENTS

Decision  on  complaint  785/2.8.96/PKP/IT  against  the
European  Commission

The  complaint

On  29  July  1996,  Ms  P.  complained  to  the  European
Ombudsman  that  the  Commission  had  taken  no  action
following  the  failure  by  the  Italian  authorities  to  comply
with  the  Regulation  on  the  application  of  social  security
schemes  to  employed  persons  and  their  families  moving
within  the  Community (1).

Ms  P.  arrived  in  Italy  on  8  October  1994,  after  being
unemployed  in  Finland  since  June  of  that  year.  She
registered with the labour office in Padua on 10 October
1994.  The  labour  office  demanded  that  she  obtain  a
‘work  card’  from  her  local  authority  in  order  to  receive
unemployment  benefits.  As  Ms  P.  was  not  resident  in
Padua, this document could not be issued to her until the
end  of  October  1994.  During  this  period  the  Italian
to  pay  her  any  unemployment
authorities  refused 
benefit.

that 

Ms  P.  complained  that  the  demand  by  the  Italian
authorities 
certain  administrative
fulfil 
requirements  in  order  to  receive  unemployment  benefits
was  contrary  to  Article  69  of  Regulation  (EEC)  No
1408/71.

she 

When  it  appeared  that  no  progress  was  being  made,  it
wrote to the Italian Ministry of Labour and Social Affairs
asking  that  the  relevant  authorities  apply  the  rules  laid
down  in  Article  69  of  Regulation  (EEC)  No  1408/71  to
the  case.  Subsequently, 
the  Commission’s  services
contacted  the  Italian  authorities  by  telephone,  and  were
assured 
resolved
immediately.

the  problem  would  be 

that 

The  Commission  had  taken  the  view  that,  in  the  light  of
other similar cases, the situation would be resolved in the
near  future  without  any  need  for  further  action.  This  is
why 
it  necessary  to  contact  the
complainant again.

it  did  not  feel 

Having  been  contacted  regarding  this  matter  by  the
Ombudsman,  the  Commission  realised  that  insufficient
progress  had  been  made  and  once  again  contacted  the
Italian  authorities,  who  confirmed  that  the  matter  would
be  resolved.

The  complainant’s  observations

The  Commission’s  comments  were  forwarded  to  Mrs  P.
She  subsequently  informed  the  Ombudsman  that  the
unemployment benefits she claimed had been paid to her
on  26  March  1997.

The  decision

Since  Mrs  P.  had  received  the  unemployment  benefits
which  she  claimed,  the  matter  appeared  to  have  been
settled  in  a  satisfactory  way  for  the  complainant.  The
Ombudsman  therefore  closed  the  case.

Ms  P.  initially  complained  to  the  EFTA  surveillance
Authority,  but  as  a  result  of  Finland’s  accession  to  the
European  Union  on  1  January  1995,  her  complaint  was
transferred  to  the  European  Commission  (DG  V)  on  28
March  1995.  She  also  wrote  to  the  Commission  on  30
May  1995  about  the  problem.

DISCLOSURE  OF  DOCUMENTS  CONCERNING
INFRINGEMENT  PROCEDURES

Decision  on  complaint  790/5.8.96/GM/IT/DT  against
the  European  Commission

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission’s  comments  were  as  follows.

The  complaint

Mr  M.  complained  in  July  1996  to  the  European
Ombudsman  that  the  Commission  had  failed  to  make
available  to  him  documents  concerning  an  infringement
procedure  against  Italy  under  Article  169  of  the  Treaty.
The  infringement  procedure  concerned  the  award  of  a
public  contract  for  building  a  bridge  over  the  Messina
Straits.

(1)  Council Regulation (EEC) No 1408/71, of 14 June 1971 (OJ

L  149,  5.7.1971,  p.  2). 

Mr  M.  had  a  professional  interest  in  the  development  of
a  road  link  over  the  Messina  Straits,  for  which  he  had
designed a special bridge. He informed then the President

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/97

of the Commission, Mr Delors, of his ideas and asked for
his support in implementing the scheme. The Commission
thanked  Mr  M.  for  his  interest  and  informed  him  that  it
could participate in projects of this type only if requested
to  do  so  by  the  Italian  Government.

originally selected to carry out the building work had not
been  approved,  and  hence  the  project  would  not  be
carried  out.  The  complainant  expressed  satisfaction  at
this result, which appeared to put an end to the problem,
thanking  the  Ombudsman  for  his  involvement  and  the
steps  he  had  taken.

The  Italian  authorities  awarded  the  contract  to  a
company  in  which  the  majority  shareholder  was  the
Italian  public  holding  company,  IRI.  Following  the
award, the Commission opened infringement proceedings
against Italy. Mr M. wrote to the Italian Foreign Ministry
on  9  February  1996,  requesting  a  copy  of  the  relevant
correspondence  with  the  Commission.  A  copy  of  the
letter  was  forwarded  to  the  Commission.

The  decision

Since  the  complainant’s  observations  indicated  that  the
matter had been resolved in a satisfactory way for him, it
appeared  unnecessary  to  carry  out  further  inquiries.  The
Ombudsman  therefore  closed  the  case.

The  Commission  replied  that  it  was  up  to  the  Italian
authorities  to  resolve  the  issue.  The  Italian  Foreign
Ministry  replied  that  various  consultations  with  the
Commission  had  revealed  that  the  documents  requested
could  not  be  made  public.

FAILURE  TO  REPLY  TO  LETTERS

Decision  on  complaint  835/22.8.96/GL/F/VK  against  the
European  Commission

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission’s  comments  were  as  follows.

Mr  M.  had  never  asked  the  Commission  directly  for  the
documents  in  question;  he  had  merely  sent  to  the
Commission  a  copy  of  the  request  he  had  addressed  to
the  Italian  Foreign  Ministry.

When consulted by the Italian Foreign Ministry about the
request,  the  Commission  replied  that,  as  far  as  the
Commission’s  services  were  concerned,  confidentiality
applied, but made it clear that the Italian authorities were
free  to  decide  their  own  policy  in  this  connection.

If  the  request  had  been  addressed  to  it  directly,  the
Commission  would  not  have  been  able  to  grant  it,  since
documents  concerning 
infringement  procedures  come
under  the  exceptions  provided  for  in  the  Commission
Decision  concerning  public  access  to  documents (1).

The  complaint

Mr  L.,  who  worked  at  the  French  national  statistics
institute  (INSEE),  complained  to  the  Ombudsman  in
August  1996  that  the  Commission  had  failed  to  reply  to
his 
letters  concerning  standards  established  by  the
International  Standards  Organisation  (ISO).

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  The
Commission’s  comments  stated  that  Mr  L.’s  first  letter
was addressed to the editorial office of the Bulletin of the
European  Union.  The  letter  took  the  form  of  a  note
drawing  attention  to  certain  facts  without  asking  for  a
response.  The  second  letter,  which  was  addressed  to  the
Secretariat-General,  did 
response.  The
Commission  expressed  regret  that,  owing  to  problems  of
internal  coordination,  the  complainant’s 
letters  had
remained  unanswered.  A  letter  of  reply,  dealing  with  the
matter  of  substance  concerning  the  ISO  standards,  had
been  sent  to  the  complainant.

require  a 

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr
M. stated that the request for funding from the company

(1)  Commission  Decision  94/90/ECSC,  EC,  Euratom  of  8
February  1994  on  public  access  to  Commission  documents
(OJ  L  46,  18.2.1994,  p.  58).

The  complainant’s  observations

The  Commission’s  comments  were  forwarded  to  the
complainant, with an invitation to submit observations if
he  so  wished.  As  a  reply,  the  complainant  sent
Ombudsman  a  copy  of  his  reply  to  the  Commission’s
letter.  In  this  reply,  the  complainant  expressed  his
satisfaction  with  some  issues  of  substance  dealt  with  in
the Commission’s letter. He expressed a different opinion
on  other  issues  of  substance.

C  380/98

EN

Official  Journal  of  the  European  Communities

7.12.98

The  decision

The  Commission  acknowledged  that  it  should  have
replied earlier to the complainant’s letters and apologised
for  its  failure  to  do  so.  No  further  remark  by  the
Ombudsman  was  therefore  necessary.

It  appeared  from  the  European  Commission’s  comments
and  the  complainant’s  observations  that  the  Commission
had  now  replied  to  the  letters  and  had  responded  to  the
points  of  substance  which  the  complainant  had  raised
concerning  ISO  standards.

future,  the  Ombudsman  informed  him  that  his  inquiries
into  several  other  complaints  had  led  him  to  conclude
that  it  would  be  appropriate  for  there  to  be  a  more
general  examination  of  the  Commission’s  administrative
procedures  for  dealing  with  complaints  from  citizens
concerning  Member  States’ 
their
obligations  under  Community  law.  On  15  April  1997,
therefore,  the  Ombudsman  initiated  an  own-initiative
inquiry  into  the  possibilities  for  improving  the  quality  of
the
the 
Commission.

administrative 

procedures 

relevant 

failure 

fulfil 

to 

of 

The  Commission  therefore  appeared  to  have  settled  the
matter  in  a  satisfactory  way  for  the  complainant  and  the
Ombudsman  closed  the  case.

REQUEST  FOR  INFORMATION

Decision  on  complaint  118/97/PD  against  the  European
Commission

FREE  MOVEMENT  OF  PERSONS:  HANDLING  OF
COMPLAINT  TO  COMMISSION

The  complaint

Decision  on  complaint  1100/16.12.96/FS/UK/KH  against
the  European  Commission

The  complaint

Mr S. complained to the Ombudsman in December 1996
that  the  Commission  had  not  properly  handled  a
complaint  he  had 
the  Commission
concerning  the  refusal  by  Denmark  to  issue  a  residence
permit  for  his  wife,  who  is  a  national  of  a  non-member
country.

lodged  with 

The  inquiry

During the course of the Ombudsman’s inquiries into the
complaint,  the  complainant  continued  to  correspond
directly  with  the  Commission  which  appeared  to  be
settling  matters  in  a  way  that  was  satisfactory  to  the
complainant. After receiving the Commission’s comments
the complainant wrote to the Ombudsman stating that he
no  longer  wished  to  pursue  his  complaint  and  he  limited
himself to putting forward remarks as to how he thought
the  Commission’s  complaint  procedures  could  be
improved  in  the  future.

The  decision

The  Commission  appeared  to  have  taken  steps  to  settle
the  matter  in  a  satisfactory  way  for  the  complainant  and
the  Ombudsman  therefore  closed  the  case.

Further  remarks  by  the  Ombudsman

In  February  1997,  Mr  E.  complained  to  the  European
Ombudsman  concerning  the  Commission’s  failure  to
answer  a  request  for  information.

Mr  E.  was  a  tour  guide  for  foreign  tourists  in  Austria.
According  to  him,  Austrian  legislation  implies  that  on
such  tours,  the  foreign  guide  is  not  allowed  to  give  any
explanations  or  background  information  but  only  to
point  out  objects  of  interest.  Mr  E.  wondered  whether
this was compatible with his freedom to provide services,
enshrined  in  Article  59  of  the  EC  Treaty.  By  letter  of  14
August  1996  he  addressed  the  Commission  with  a  view
to  clarify  the  question.

As  he  did  not  receive  any  reply,  he  lodged  the  complaint
with  the  Ombudsman.

The  inquiry

The  Commission’s  opinion

The  complaint  was  forwarded  to  the  Commission.  In  its
opinion,  the  Commission  stated  that  the  question  raised
was difficult and complex and had been under discussion
for  several  years.  The  discussions  finally  resulted  in  the
adoption  of  a  Commission  working  paper  on  13  May
1997.  Pending  the  adoption  of  this  document,  the
responsible  services  failed  to  reply  to  Mr  E.,  a  fact  for
which  the  Commission  apologised.  Furthermore,  the
Commission  stated  that  it  had  now  sent  the  complainant
the  quoted  working  paper  as  well  as  other  relevant
material.

As  regards  the  complainant’s  remarks  on  improving  the
administrative  procedures  within  the  Commission  in  the

The  complainant  did  not  submit  any  observations.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/99

The  decision

It  appeared  from  the  European  Commission’s  comments
that  the  Commission  had  taken  steps  to  settle  the  matter
and  thereby  satisfied  the  complainant.  The  Ombudsman
therefore  closed  the  case.

the 

given 

information 

From 
the  European
Ombudsman by the complainant, the EMEA appeared to
have  taken  action  to  settle  the  matter  in  a  satisfactory
way  for  the  complainant.  The  Ombudsman  therefore
closed  the  case.

to 

FAILURE  TO  REPLY  TO  A  LETTER

3.5.  FRIENDLY  SOLUTIONS  ACHIEVED  BY  THE

EUROPEAN  OMBUDSMAN

Decision  on  complaint  375/97/PD  against  the  Economic
and  Social  Committee

3.5.1.  THE  EUROPEAN  COMMISSION

In  May  1997,  Mrs  F.  complained  to  the  Ombudsman
that the Economic and Social Committee had not replied
to her letters of July 1996, concerning her problems with
social  security  payments  in  Greece.

The  Ombudsman  contacted  the  Economic  and  Social
Committee which replied that it had no trace of Mrs F.’s
letters.  The  official  in  charge  was  willing  to  answer  Mrs
F.,  although  the  object  of  her  letter  was  outside  the
competence  of  the  Economic  and  Social  Committee.
Consequently,  Mrs  F.  was  informed  about  the  Euro-jus
network  which  could  advise  her  about 
issues  of
in  relation  to  her  social  security
Community 
problems.

law 

The  complainant  was  satisfied  with  the  answer  received
and  the  Ombudsman  therefore  closed  the  case.

3.4.4.  THE  EUROPEAN  AGENCY  FOR  THE  EVALUATION

OF  MEDICINAL  PRODUCTS  (EMEA)

REGISTRATION  OF  VETERINARY  DRUGS  ON  THE  LIST
OF  THE  EMEA

Decision  on  complaint  345/97/VK  against  the  European
Agency  for  the  Evaluation  of  Medicinal  Products
(EMEA)

A  company  with  a  registered  office  in  Germany,  trading
in  biological  veterinary  medicine  complained  to  the
European  Ombudsman  in  April  1997.  The  EMEA  had
refused  to  evaluate  the  complainant’s  application  for
registration  of  veterinary  drugs  on  the  grounds  that  the
relevant  documents  had  arrived  after  the  deadline.  The
company  complained  that  it  was  not  given  sufficient
notice  of  the  deadline.

By  letter  of  20  May  1997,  the  complainant  informed  the
Ombudsman  that  a  meeting  had  been  arranged  in
London  with  representatives  of  the  EMEA  and  that
misunderstandings  among  the  parties  could  be  solved.
The  complainant  expressed  his  appreciation  of  the
Ombudsman’s  intervention  and  thanked  him  for  his
work.

RECRUITMENT:  PUBLICATION  OF  THE  NAMES  AND
MARKS  OF  SUCCESSFUL  CANDIDATES  IN  A
COMPETITION

Decision  on  complaint  16/17.1.95/GS/IT  against  the
European  Commission

The  complaint

Mr  S.  participated 
in  a  competition  (COM/A/770)
organised  by  the  Commission  for  the  recruitment  of
assistant  administrators  at  grade  A 8.  By  letter  dated  16
December  1994,  the  Commission  informed  him  that  he
had  not  been  successful.  The  letter  also  informed  him  of
the  marks  that  he  had  received  in  the  written  tests  and
the  subsequent  oral  tests  and  of  the  minimum  mark
required  to  be  a  successful  candidate.

On  22  December  1994  Mr  S.  wrote  to  the  Commission
stating that there existed a distinct disproportion between
the  marks  he  had  obtained  in  the  oral  tests  as  compared
to  the  written  tests.  He  requested  the  Commission  to
provide  him  with:

(1) a  list  of  the  successful  candidates  and  the  marks

obtained  by  them  in  each  test;

(2) a  list  of  the  members  of  the  selection  board  who  had
conducted the oral tests and of the votes cast by each
of  them  for  all  the  candidates  examined.

By  letter  dated  23  January  1995,  the  Commission
declined  to  provide  the  information  requested.

In his complaint to the Ombudsman in January 1995, Mr
S.  claimed  that,  since  the  competition  had  been  financed
by  public  money  to  recruit  officials  to  be  paid  from
public money, the Commission should have provided him
with  a  list  of  the  successful  candidates  and  of  the  marks
received  by  each  of  them.  He  also  requested  the
Ombudsman to check the regularity of the proceedings in
the  competition  and  in  particular:

(1) whether  for  the  oral  tests  the  candidates  had  been
examined  by  different  boards  and,  if  so,  whether  this
had  led  to  significant  differences  of  evaluation;

C  380/100

EN

Official  Journal  of  the  European  Communities

7.12.98

(2) if the marks which he were awarded for the oral tests
were  properly  reasoned,  in  the  light  of  his  marks  in
the  written  tests.

Further  inquiries

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary, 
the
following  points:

the  Commission’s  comments  made 

1.  1 800 candidates were admitted to the written tests of
whom  600  were  subsequently  admitted  to  the  oral
tests.  The  number  of  successful  candidates  had  been
limited  to  the  best  300  by  the  terms  of  the  notice  of
competition.  Mr  S.  had  been  informed  that  he  had
received  for  the  written  and  oral  tests  78,75  marks
out  of  120,  whereas  to  figure  in  the  best  300  he
would  have  required  a  total  of  88,58  points.

(2) Mr  S.’s  request  for  a  list  of  the  successful  candidates
and  the  marks  that  each  of  them  had  obtained  had
been  refused  on  the  grounds  that  the  work  of
selection  boards  is  confidential,  involving  assessments
of  character  of  a  personal  and  comparative  nature
which  cannot  be  communicated  to  the  candidate
concerned  except  in  the  form  of  an  overall  mark.

(3) It  was  not  possible  to  comply  with  the  request  to
know 
successful
results  obtained  by 
candidates,  except  that  they  had  all  received  total
marks  of  at  least  88.58.

the 

the 

(4) Mr S. had the opportunity to bring proceedings in the
Court  of  First  Instance,  but  he  had  not  done  so.

The  complainant’s  observations

Mr  S.’s  observations  on  the  Commission’s  comments
repeated  his  claim  that  the  disproportion  between  his
marks  in  the  written  and  oral  tests  raised  doubts  about
their  accuracy.  He  repeated  his  original  request  to  the
Ombudsman to check the regularity of the proceedings in
the  competition.

He also claimed that it is unacceptable that the results of
competitions  financed  with  public  money  to  recruit
officials  to  be  paid  from  public  money  should  remain
secret.

careful 

consideration  of 

the  complainant’s  observations, 

the  Commission’s
After 
comments  and 
it
appeared  that  not  all  the  points  made  in  the  complaint
had been answered. The Ombudsman therefore asked the
Commission to inform him of the reasons why the list of
names  of  successful  candidates  in  a  competition  cannot
be  made  public.  The  Commission’s  reply  included  the
following  points.

1.  Being  on  a  reserve  list  does  not  give  a  candidate  an
automatic  entitlement  to  obtain  a  job  with  the
Commission.  Most  successful  candidates  are  already
working in jobs outside the Commission and it could
therefore  be  harmful  to  their  current  career  prospects
to have such information made public. Therefore it is
not the Commission’s practice to make public reserve
lists  of  successful  candidates  in  open  competitions.

2.  In accordance with the Staff Regulations, the work of
the  selection  boards  is  secret.  It  is  not  therefore  the
practice  of  the  Commission  to  publish  the  names  of
selection  board  members,  nor  Board  reports.

The  Ombudsman’s  attempts  to  achieve  a  friendly
solution

In  accordance  with  Article  3(5)  of  the  Statute (1),  the
Ombudsman  wrote  to  the  Commission,  making,  in
summary,  the  following  points.

1.  The  European  Union’s  public  commitments 
to
transparency (2)  create  a  general  presumption 
in
favour  of  access  to  information  unless  there  are
important  interests  that  outweigh  the  principle  of
transparency.

2.  In its reply to the Ombudsman’s further inquiries, the
Commission  explained  its  refusal  to  disclose  the
names of successful candidates on the grounds that it
could  be  harmful  to  their  current  career  prospects  to
do  so.

3.  It  appears  that  the  Commission’s  practice  may  have
been 
the
commitments  to  transparency  referred  to  above  and

the  Union  made 

adopted  before 

(1)  ‘As  far  as  possible,  the  Ombudsman  shall  seek  a  solution
with  the  institution  or  body  concerned  to  eliminate  the
instance  of  maladministration  and  satisfy  the  complaint’.
(2)  For example, Declaration No 17 attached to the Final Act of
the Treaty on European Union; Interinstitutional Declaration
on  democracy,  transparency  and  subsidiarity  of  25  October
1993,  (OJ  C  329,  6.12.1993,  p.  133).

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/101

therefore 

seems  appropriate 

that  the  practices  of  the  Council  and  the  European
Parliament are different from that of the Commission.
It 
the
Commission’s practice to determine whether the harm
it  definitely  causes  in  terms  of  loss  of  transparency
outweighs 
in  protecting
successful  candidates’  current  career  prospects.

the  hypothetical  gains 

review 

to 

response, 

the  Commission  accepted 

In 
the
complainant  should  be  allowed  to  consult  the  list  of
competition  COM/A/770.
successful 
Furthermore,  the  Commission  stated  that 
in  future
notices  announcing  competitions,  it  will  specify  that  it
intends  to  publish  the  list  of  successful  candidates.

candidates 

that 

in 

The  complainant  was  informed  of  the  Commission’s
proposal  for  a  friendly  solution.  In  response,  he  stated
two  conditions  for  his  acceptance.  First,  the  Commission
should  provide  him  with  the  marks  obtained  by  each
successful candidate in competition COM/A/770. Second,
the  Commission  should  pay  him  the  sum  of  IL  500 000,
as  costs  for  pursuing  the  complaint.

As  regards  the  first  issue,  the  European  Ombudsman
asked the Commission to clarify its position. In its reply,
the  Commission  relied,  in  summary,  on  settled  case-law
to  the  effect  that,  in  view  of  the  power  of  selection
the
boards 
communication  to  a  candidate  of  the  marks  that  he  has
himself obtained satisfies the requirement that a selection
board  give  reasons  for  its  decisions.

the  merits  of  candidates, 

to  evaluate 

As regards the claim for costs, the European Ombudsman
informed  the  complainant  that  he  had  no  power  to
award costs and that if he wished to pursue the matter, it
would  be  necessary  for  him  to  address  the  Commission
directly.

1.2.  The  Commission  was  therefore  entitled  to  refuse
the complainant’s request for a list of the members
of the selection board who had conducted the oral
tests  and  of  the  votes  cast  by  each  of  them  for  all
the  candidates  examined.

1.3.  There  appeared, 

to  be  no  mal-
therefore, 
administration  by  the  Commission  in  relation  to
this  aspect  of  the  complaint.

2. 

Publication  of  the  names  of  successful  candidates

2.1. 

In  response  to  the  Ombudsman’s  suggestion  of  a
review  of  its  practice  in  order  to  promote  a
friendly  solution,  the  Commission  agreed  to  make
available  to  the  complainant  the  list  of  names  of
successful  candidates  in  competition  COM/A/770
and  to  publish  such  lists  for  future  competitions.

2.2.  The  Commission  therefore  appeared  to  have
concluded  that  the  definite  harm  caused  in  terms
of loss of transparency from refusing to publish the
names  of  successful  candidates  outweighs  the
hypothetical 
successful
gains 
candidates’  current  career  prospects.

in  protecting 

2.3.  By  agreeing  to  publish  the  names  of  successful
candidates  in  competitions,  the  Commission  had
taken an important step in improving transparency
and  appeared  to  have  settled  this  aspect  of  the
complaint  to  the  satisfaction  of  the  complainant.

3. 

Publication  of  the  marks  obtained  by  successful
candidates

3.1. 

The  decision

1. 

The  refusal  to  supply  the  names  members  of  the
selection  board  and  their  votes

3.2. 

1.1.  Article  6  of  Annex  III  to  the  Staff  Regulations
provides that the work of selection boards shall be
secret.  Secrecy  was  introduced  with  a  view  to
guaranteeing  the  independence  of  selection  boards
their  proceedings,  by
and 
protecting 
interference  and
pressures (1).

the  objectivity  of 
them 

from  all 

(1)  See  for  example  Case  C-254,  p.  95,  European  Parliament  v.

Angelo  Innamorati  [1996]  ECR  I-3423.

It  appeared  that  the  Commission 
maintain 
its  present  practice  of 
candidates  of 
minimum  mark  required 
candidate.

intends  to
informing
the
to  be  a  successful

their  own  marks  and  of 

In  justification  of  this  position,  the  Commission
relied, in summary, on settled case-law to the effect
that,  in  view  of  the  power  of  selection  boards  to
evaluate 
the
communication to a candidate of the marks that he
has  himself  obtained  satisfies  the  requirement  that
a  Selection  Board  give  reasons  for  its  decisions.

the  merits 

candidates, 

of 

3.3.  The  Commission  had  not  therefore  explained  the
reasons  why  it  considers  that  the  general  principle
of transparency should not apply in the case of the
marks  obtained  by  successful  candidates.

C  380/102

EN

Official  Journal  of  the  European  Communities

7.12.98

3.4. 

in  a 

It  was  appropriate  to  examine  the  question  of
publication  of  marks  alongside  other  issues  of
transparency, 
forthcoming  own-initiative
inquiry  by  the  European  Ombudsman  concerning
recruitment  to  the  Community  institutions  and
bodies.  In  these  circumstances,  there  appeared  to
be  no  grounds  to  pursue  further  inquiries  into  this
aspect  of  the  case.

4.  Given  the  nature  of  the  assessment  process,  the
disproportion  in  the  marks  which  the  complainant
received  in  the  written  and  oral  tests  did  not  appear
to  disclose  any  grounds  for  the  Ombudsman  to
in
the 
question 
competition  COM/A/770.

the  proceedings 

regularity  of 

5.  The  European  Ombudsman  has  no  power  to  award

costs  to  a  complainant.

4. 

The  regularity  of  the  proceedings  in  competition
COM/A/770

On  the  basis  of  the  above  conclusions,  the  Ombudsman
decided  to  close  the  case.

4.1. 

It appeared from the Commission’s comments that
1  800  candidates  were  admitted  to  the  written
tests,  of  whom  600  were  subsequently  admitted  to
the  oral  tests.  It  further  appeared  that  the  marks
test  were  an  expression  of  a
for 
comparative  value  judgment  of  the  candidates  by
the  selection  board.  This  is  in  accordance  with  the
case-law  of  the  Court  of  Justice (1).

the  oral 

4.2.  Given  the  nature  of  the  assessment  process,  the
disproportion  in  the  marks  which  the  complainant
received  in  the  written  and  oral  tests  did  not
appear 
the
to  disclose  any  grounds 
Ombudsman  to  question  the  regularity  of  the
proceedings  in  the  competition.

for 

5. 

The  complainant’s  claim  for  costs

The  European  Ombudsman  has  no  power  to
award  costs  to  a  complainant.

Conclusions

1.  The  Commission  was  entitled 

the
complainant’s request for a list of the members of the
selection board who had conducted the oral tests and
of  the  votes  cast  by  each  of  them  for  all  the
candidates examined.

refuse 

to 

2.  By  agreeing  to  publish  the  names  of  successful
candidates in competitions, the Commission has taken
an  important  step  towards  improved  transparency
and  appears  to  have  settled  this  aspect  of  the
complaint  to  the  satisfaction  of  the  complainant.

3.  The  question  of  publication  of  marks  of  successful
candidates  will  be  further  examined,  alongside  other
issues  of  transparency, 
in  a  forthcoming  own-
initiative 
inquiry  by  the  European  Ombudsman
concerning recruitment to the Community institutions
and  bodies.

(1)  Ibid.

DELAY  IN  PAYMENT  OF  SALARY  AND  SETTLING  OF
TRAVEL  COSTS

Decision  on  complaint  748/22.7.96/LB/NL/PD  against
the  European  Commission

The  complaint

In  July  1996  Mr  B.  complained  to  the  Ombudsman
about  a  services  contract  between  himself  and  the
Commission.  After  the  contract  had  been  terminated,  a
dispute  arose  concerning  pay  and  travel  costs.

The background to the complaint was that Mr B. started
working  for  the  Commission  during  May  1994.  It  was
undisputed  that  the  Commission  services  forwarded  a
written  contract  to  Mr  B.  for  signature  only  on  10  June
1994.  Mr  B.  signed  and  returned  the  contract  to  the
Commission.  The  contract  was  not  signed  by  the
Commission  official  responsible  until  28  June  1994.  The
contract  stipulated  that  it  ‘takes  effect  for  a  period  of
three  months  from  the  date  of  signature’  and  that  it
could  be  terminated  ‘by  either  party  on  one  month’s
notice’.

By  fax  of  30  June  1994  the  Commission  services
terminated the contract with effect from 6 July 1994. The
signed contract was not forwarded to Mr B. until 18 July
1994.

On  7  October  1994  Mr  B.  addressed  his  invoice  to  the
Commission.  The  invoice  stated  that  his  pay  including
travel  costs  was  ECU  19 059,22  minus  an  advance  of
ECU 7 128,00 received, so that the total amount due was
ECU  11 931,22.  This 
the
assumption  that  Mr  B.  had  performed  44  working  days
at  ECU  373,58  each.  Mr  B.  later  corrected  this  to  43
working  days,  performed  in  the  period  6  May  to  6  July
1994,  so  that  the  total  of  the  amount  due  was  ECU
11 557,64.

invoice  was  based  on 

The  contract  stipulated  that  in  ‘consideration  of  the
execution  by  the  contractor  of  the  tasks  specified  in  this
contract,  the  Community  shall  pay  the  latter  a  flat  rate

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/103

sum  of  ECU  23 760’.  This  amount  is  calculated  on  the
basis  of  63,6  working  days  at  ECU  373,58  per  day  of
work  =  ECU  23 760’.

The  complainant’s  observations

In  his  observations  the  complainant  maintained  his
complaint.

It  appeared  from  the  correspondence  annexed  to  the
complaint  that  the  Commission  had  taken  different
positions  on  Mr  B.’s  invoice,  but  finally  stated  that  it
could  only  accept  to  pay  for  working  days  performed
after  3  June  1994,  the  argument  being  that  the  Financial
Controller  of  the  Commission  had  agreed  on  considering
the  date  of  the  approval  of  the  commitment  proposal,
that is 3 June 1994, as the starting date of the work. This
point of view of the Commission would lead to payment
for  35  working  days.  Not  being  satisfied  with  the
Commission’s  position,  Mr  B.  then  took  the  point  of
view  that  the  contract  entitled  him  to  a  flat  rate  sum,
independent of the question how many working days had
been  performed,  that  is  ECU  23 760,00.

As  for  travel  costs,  it  appeared  that  the  individual
contract  made  no  specific  provision.  However,  in  the
general  conditions  which  were  annexed  to  the  contract
and  which  had  been  drafted  by  the  Commission,  it  was
stated  that  ‘reimbursement  of  travel  and  subsistence
expenses shall be paid, where appropriate, on production
of  supporting  documents,  including  receipts  and  used
tickets’.  It  appeared  from  the  correspondence  annexed  to
the  complaint  that  the  Commission  in  the  first  place  had
considered  that  travel  costs  were  not  covered  by  the
contract. Thereafter the Commission had accepted to pay
travel costs incurred after 3 June 1994, the argument for
choosing that date being the same as mentioned above in
relation  to  pay.

In  his  complaint  Mr  B.  claimed  that  the  Commission’s
refusal only to pay him for work and travel costs after 3
June  1994  was  ungrounded.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  the  contract  was  not
signed until 28 June 1994 because of administrative delay
in  the  Commission.

As  for  pay,  the  Commission  maintained  that  it  was
unable  to  pay  for  working  days  performed  before  the
commitment  proposal  was  approved  on  3  June  1994.

The  Ombudsman’s  attempt  to  achieve  a  friendly
solution

the  complainant’s  observations, 

After  considering  Mr  B.’s  complaint,  the  Commission’s
comments  and 
the
Ombudsman  addressed  the  Commission  in  accordance
with Article 3(5) of the Statute of the Ombudsman. In his
letter  to  the  Commission  he  made,  in  summary,  the
following  points.

—  As for pay, the Commission had not put forward any
reason  for  not  paying  all  the  43  days  originally
invoiced  other  than  the  argument  concerning  its  own
internal  Financial  Control’s  approval  of  the  relevant
commitment  proposal.  The  Ombudsman  noticed  in
particular  that  the  Commission  did  not  contest  that
Mr  B.  had  actually  performed  43  working  days,

—  as  for  travel  costs,  the  Commission  had  taken
different  stands  and  had  finally  not  detailed  the  legal
reasons which had lead to its opinion that travel costs
were  not  covered  under  the  contract.

Against this background, the Ombudsman found that the
examination  of  this  file  had  not  reassured  him  that  the
Commission’s  action  attained  the  high  standards  that
citizens  are  entitled  to  expect  from  the  Community
institutions.  He  therefore  suggested  the  Commission
review  its  position  with  a  view  to  a  friendly  solution.

In  response,  the  Commission  informed  the  Ombudsman
that  it  had  proposed  to  Mr  B.  to  settle  the  outstanding
amount  of  his  original  invoice,  which  offer  Mr  B.  had
accepted.

The  decision

Following the Ombudsman’s initiative, it appeared that a
friendly  solution  to  the  complaint  had  been  agreed
between  the  Commission  and  the  complainant.  The
Ombudsman  therefore  decided  to  close  the  case.

LATE  PAYMENT  FOR  TRANSLATION  SERVICES

Decision  on  complaint  1038/25.11.96/WS/UK/JMA
against  the  European  Commission

The  complaint

As for travel costs, the Commission stated that the claim
could  not  be  accepted  for  legal  reasons  by  the  relevant
services  in  the  Commission.

In  November  1996  Mr  S.  lodged  a  complaint  with  the
European  Ombudsman  concerning  the  delay  by  the

C  380/104

EN

Official  Journal  of  the  European  Communities

7.12.98

Commission in settling an invoice for translation services.
Mr  S.  undertook  the  translation  into  English  of  the
document,  ‘Guide  de  l’artisanat  et  de  la  petite  entreprise
dans 
the  work  was
completed at the end of June 1996, Mr S. sent the invoice
to  the  relevant  Commission  services.

l’Union  Europe´enne’.  When 

recognise  the  right  of  creditors  to  interest  on  arrears  at
national level (1). Furthermore, in a communication of 10
June 1997 on late payment and interest on arrears (2), the
Commission  had  stated  the  right  of  the  its  creditors  to
obtain  interest  for  late  payment.

In  accordance  with  the  complainant’s  contract,  payment
should  have  been  made  within  60  days  of  receipt  of  the
invoice.  Since  he  received  no  payment  within  this
deadline, Mr S. sent two reminders to the Commission in
August  and  October  1996.  The  Commission  made  the
payment only in November 1996, four and a half months
after  the  invoice  had  been  issued  by  the  complainant.

Mr  S.  asked  the  Ombudsman  to  ensure  that  the
Commission  put  an  end  to  the  uncertainty  surrounding
the rights of contractors and obligations of the institution
in  cases  of  late  payment,  and,  if  possible,  to  secure  the
payment  of  compensation  for  the  financial  loss  which  he
had  suffered.

The  inquiry

The  Commission’s  refusal  to  compensate  Mr  S.  therefore
appeared  inconsistent  and  the  Ombudsman  proposed  the
its  own
Commission  apply 
communication  of  10  June  1997  to  this  case,  and
accordingly  pay  interest  to  the  complainant.

the  policy  stated 

in 

In  its  reply,  the  Commission  stated  that  it  had  already
taken measures to ensure the payment of interest for late
payments;  accordingly  the  Commission  was  ready  to
offer  Mr  S.  an  ex-gratia  payment.  It  also  apologised  for
the  inconvenience  caused  by  the  delayed  payment.

The Ombudsman invited the complainant to consider the
solution  proposed  by  the  Commission.  In  his  reply,  the
complainant  accepted  the  Commission’s  offer  and  its
apologies.  Mr  S.  also  expressed  his  satisfaction  for  the
efforts  undertaken  by  the  European  Ombudsman  to  find
a  friendly  solution.

The  Commission’s  comments

The  decision

indicated  that  the 

in
The  Commission 
payment  was  because  the  responsible  services  had  to
carry out a detailed check of the quality of the translation
of  a  long  document  (more  than  200  pages),  during  the
vacation  period  and  in  the  midst  of  a  administrative
reorganisation.

long  delay 

the  high  quality  of 

The  Commission  noted 
the
translation, and apologised for the long delay in payment.
As  regards  compensation,  it  stated  that  there  were  no
provisions in the framework contract which provided for
compensation  in  case  of  late  payment,  and  therefore
compensation  could  not  be  paid.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr
S.  insisted  that  the  Commission  should  set  up  a  general
mechanism  for  cases  of  late  payments.  He  believed  that,
when  the  framework  contract  comes  up  for  review,
provisions  should  be  incorporated  in  order  to  require
payment  of  interest  in  the  event  of  a  delay  beyond  the
60-day  limit  for  the  settlement  of  invoices.

Following  the  Ombudsman’s  intervention,  a  friendly
solution  to  the  complaint  was  agreed  between  the
institution  and 
the  complainant.  The  Ombudsman
therefore  closed  the  case.

3.6.  CASES  CLOSED  WITH  A  CRITICAL  REMARK  BY

THE  OMBUDSMAN

3.6.1.  THE  EUROPEAN  COMMISSION

FAILURE  TO  CARRY  OUT  SUFFICIENT  CHECKS
BEFORE  APPOINTING  A  BRE  REPRESENTATIVE

Decision  on  complaint  171/09.10.95/HGF/UK  against
the  European  Commission

The  complaint

submitted 

The  complaint  was 
the  European
Ombudsman in October 1995 by Mr Tony Cunningham,
Member  of  European  Parliament,  on  behalf  of  a
constituent,  Mr  F.  In  summary,  the  relevant  facts  alleged
by  Mr  F.  were  as  follows:

to 

In  accordance  with  Article  3(5)  of  the  Statute,  the
Ombudsman wrote to the Commission to seek a friendly
solution.  The  Ombudsman  referred  to  the  fact  that  the
Commission  had  recommended  the  Member  States  to

(1)  Commission  recommendation  95/198/EC  of  12  May  1995
on  payment  periods  in  commercial  transactions  (OJ  L  127,
10.6.1995,  p.  19).

(2)  SEC(97)1205.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/105

Mr F. designed a system for soil stabilisation. In 1993, he
was  introduced  to  a  Mr  A.,  who  ran  a  company  called
Cumbria  International  Trade  Centre  (CITC).  Mr  A.
showed  to  Mr  F.  a  written  agreement  between  himself
and  the  European  Commission.  Mr  F.  understood  this
agreement  to  mean  that  Mr  A.  was  a  contracted
representative  of  the  Commission.

Mr A. offered to submit an application for funding under
the  European  Community  investment  partnership  (ECIP)
scheme  on  behalf  of  Mr  F.’s  company.  The  application
was  for  a  soil  stabilisation  system  involving  research  and
partnership work in Pakistan, India and Afghanistan. Mr
A.  later  told  Mr  F.  that  the  application  had  been
successful  and  that  he  had  obtained  ECIP  money  in
respect  of  it  which  he  would  pay  to  Mr  F.  Having
received  no  money,  Mr  F.  formed  the  view  that  Mr  A.
had  obtained  and  diverted  for  his  own  use  ECIP  funding
in  respect  of  his  project  for  a  soil  stabilisation  system.

He contacted the Commission by telephone and was told
by an official at the ECIP desk that funding for a similar
project  in  Malaya  had  been  drawn  and  that  questions
about  the  matter  should  be  addressed  to  Mr  A.

Mr  F.  was  subsequently  told  by  Mr  A.  that  he  had  a
partner  in  the  ECIP  office  who  assisted  him  to  obtain
ECIP  funding  and  divert  it  for  his  own  use.

Mr  F.  claimed  that  the  ECIP  authorities  should  have
checked Mr A. before appointing him as a representative
and  that  they  had  failed  to  do  so  properly.

from 

the  documents  annexed 

It  appeared 
the
complaint that the written agreement between Mr A. and
the  Commission  was  an  agreement  appointing  Mr  A.  on
behalf of CITC, as a BRE (Bureau de rapprochement des
entreprises)  correspondent.

to 

The  inquiry

disbursement  or  fraudulent  use  of  ECIP  funds  had  been
identified.

The  Commission  never  received  any  request  for  funding
under  the  ECIP  scheme  for  Mr  F.  or  the  companies  in
which  he  is  involved.  The  Commission  did  receive  in
1992  an  ECIP  application  which  involved  a  Mr  A.  The
application  was  for  the  identification  of  investment
projects  and  partners  in  Argentina  and  Chile  and  was
approved  for  financing.

Mr  F.  had  misunderstood  his  telephone  conversations
with  a  Commission  official.  He  had  not  been  told  that
funding for his project had been drawn, nor that he must
deal  with  or  via  Mr  A.

The  Commission  totally  rejected  the  allegations  that  Mr
A.  has  a  ‘partner  in  the  ECIP  office’.  UCLAF  had
undertaken  a  further  double  check  which  confirmed  the
Commission’s  rejection  of  the  statements  regarding  ECIP
disbursement  mechanisms.

The  application  of  Mr  A.  as  a  BRE  correspondent  was
accepted  in  view  of  his  registration  as  a  legitimate
company  and  of  the  factual  information  he  provided
regarding  his  capacity  to  disseminate  BRE  cooperation
opportunities  to  enterprises  in  this  area.  The  location  of
Cumbria International Trade Centre in northern England,
an  area  poorly  covered  by  BRE  correspondents,  was  an
additional  argument  in  favour  of  his  application.

If  Mr  A.  declared  to  Mr  F.  that  he  was  able  to  obtain
Commission funding through the BRE, he misrepresented
himself  and  the  BRE,  the  latter  being  exclusively  a
identification,  which  grants  no
scheme  for  partner 
funding  whatsoever.

The  Commission’s  comments  also  described  the  contents
of the BRE agreement between the Commission and BRE
correspondents.

The  Commission’s  comments  were  forwarded  to  Mr
Cunningham and to Mr F.’s solicitors. Observations were
received  from  Mr  F.  via  his  solicitors.  In  substance,  the
observations  maintained  the  original  complaint.

The complaint was forwarded to the Commission which,
in  summary,  made  the  following  comments.

The  decision

The  Commission  had  been  aware  of  Mr  F.’s  allegations
since  March  1994  and  had  taken  steps  to  investigate
them.  The  Commission’s  anti-fraud  unit  (UCLAF)  had
undertaken  a  thorough  investigation  and  they  were
satisfied  that  in  the  specific  case  raised  by  Mr  F.  no
Commission  funds  were  improperly  requested,  approved
or  disbursed.  The  Court  of  Auditors  had  also  made
inquiries  and  had  told  the  Commission  that  they  were
satisfied  that,  as  regards  Mr  F.  and  his  companies,  no

1. 

Introductory  remarks  on  the  role  of  the  European
Ombudsman

1.1.  The  Treaty  empowers  the  European  Ombudsman
to 
of
maladministration  in  the  activities  of  Community
institutions  and  bodies.  The  Ombudsman’s

instances 

possible 

inquire 

into 

C  380/106

EN

Official  Journal  of  the  European  Communities

7.12.98

inquiries into this complaint were directed towards
examining whether there was maladministration in
the  activities  of  the  European  Commission.

1.2. 

In  dealing  with  allegations  of  maladministration
that  raise  questions  concerning  the  protection  of
the  financial  interests  of  the  Community,  the
Ombudsman  is  mindful  of  the  role  both  of  the
Court  of  Auditors  and  of  the  Commission’s
anti-fraud  unit  UCLAF.

1.3.  The  Ombudsman  did  not,  therefore,  seek  to
duplicate  the  investigations  which  the  Court  of
Auditors and UCLAF carried out in relation to the
subject-matter  of 
the
Ombudsman’s 
towards  de-
inquiries  directed 
termining  the  truth  of  any  of  the  allegations  of
fraud  that  were  made  in  this  case.

this  case.  Nor  were 

2. 

Disbursement  procedures  for  ECIP  funding

2.1.  The complaint raised the question of whether there
had  been  a  prima  facie  case  of  maladministration,
in  that  ECIP  funding  intended  for  an  application
submitted  on  behalf  of  Mr  F.’s  company  had  been
disbursed  through  a  procedure  which  allowed  the
funding  to  be  misappropriated.

2.2. 

It appeared from the Commission’s comments that
the  Commission  itself,  UCLAF  and  the  Court  of
Auditors  had  satisfied  themselves  that  no  such
application  was  ever  made.

2.3.  More 

it 

from 

appeared 

generally, 

the
Commission’s comments that it had taken seriously
the allegations of fraud in relation to ECIP funding
and  disbursement  procedures  and  that  it  had
cooperated fully with investigations by UCLAF and
the  Court  of  Auditors.

2.4.  The  Ombudsman  therefore  found  no  evidence  of
maladministration  in  relation  to  this  aspect  of  the
complaint.

3. 

Information  supplied  by  telephone  to  Mr  F.  from
the  Commission  ECIP  desk

3.1.  Both  in  the  original  complaint  and  in  observations
on  the  Commission’s  comments,  Mr  F.  stated  that
he  was  told  on  the  telephone  by  a  Commission
official  that  questions  about  ECIP  funding  should
be addressed to Mr A. The original complaint also
stated  that  the  Commission  official  had  said  that
money  for  the  soil  stabilisation  project  had  been
drawn.

3.2.  Evidence  about  what  was  said  in  the  telephone
limited.  However,  a  mis-
likely

conversations 
understanding  appears  to  be  the  most 

is 

explanation of the differences in the accounts given
by  the  parties.  There  is  no  evidence  of  any
intention 
to  mislead  or  negligent  supply  of
incorrect  information.

3.3.  The  Ombudsman  therefore  found  no  evidence  of
maladministration  in  relation  to  this  aspect  of  the
complaint.

4. 

Did the Commission fail to make sufficient checks
on  the  bona  fides  of  a  BRE  correspondent  ?

4.1. 

It  is  clear  that  a  BRE  correspondent  has  no
authority, by virtue of the BRE agreement, to hold
himself  out  as  a  representative  of  the  Commission
in  relation  to  applications  for  ECIP  or  any  other
Community  funding.

4.2.  The  Agreement  between  the  BRE  correspondents
and  the  European  Commission  states  that:

‘The BRE is an instrument set up and operated by
the  Commission  . . . .  Operation  of  the  instrument
at  a 
relies  on  a  network  of
level 
local 
correspondents. . .’.

‘Correspondent’  is  defined  by  the  Agreement  to
mean  any  person  or  body  approved  by  the
Commission  to  act  locally,  without  any  exclusive
entitlement,  as  a  representative  of  the  network.

4.3.  BRE correspondents therefore appear to be persons
approved  by  the  Commission  to  represent  at  local
level  the  BRE  network  which  is  operated  by  the
Commission.  As  a  matter  of  good  administrative
practice,  therefore,  the  Commission  should  satisfy
itself that a proposed correspondent is a fit person
to  represent  it  for  the  purposes  of  the  BRE
network.

4.4.  The  Commission’s  comments  on  the  complaint
appeared  to  indicate  that  the  only  independent
inquiry  made  before  appointing  Mr  A.  as  a  BRE
correspondent  on  behalf  of  CITC  was  to  check
that  CITC  was  registered  as  a  company.  Normal
administrative practice in dealing with a previously
unknown  company  would  involve  further  checks,
for  example  by  seeking  references.  This  is  even
more  important  where  a  contract  between  the
Commission and a company or individual involves
the  latter  acting  in  a  representative  capacity,  albeit
for  limited  purposes.

4.5.  The fact that northern England was an area poorly
covered  by  BRE  correspondents  could  not  justify
inquiries
the  Commission 

to  make 

failing 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/107

concerning the bona fides of a person appointed to
represent  it  for  the  purposes  of  the  BRE  network.

4.6. 

It  appeared,  therefore,  that  the  Commission  failed
to  make  sufficient  enquiries  before  appointing  Mr
A.  as  a  BRE  representative.

as regards their scope and the limited amount of funding
involved. The complaint stated that the measures did not
cover  the  areas  where  most  Portuguese  custom  agents
carried  out  their  work;  i.e.  Porto  and  Lisbon,  which  are
part  of  the  Community’s  external  borders.  Furthermore,
compliance  with  the  specific  requirements  of  these
initiatives was not possible under the relevant Portuguese
legislation.

Conclusions

the  basis  of 

On 
Ombudsman, 
following  critical  remarks.

the 

it  appeared  necessary 

inquiries  conducted  by 
to  make 

the
the

Mr  F.  sent  a  petition  to  the  European  Parliament  on  the
same  subject  in  1991  (petition  No  688/91).  After  taking
into  consideration  the  amount  of  aid  that  the  European
Commission  had  foreseen  for  the  sector,  the  Committee
on  Petitions  decided  to  close  the  case.

BRE  correspondents  appear  to  be  persons  approved  by
the  Commission  to  represent  at  local  level  the  BRE
network  which  is  operated  by  the  Commission.  As  a
matter  of  good  administrative  practice,  therefore,  the
Commission  should  satisfy 
that  a  proposed
correspondent  is  a  fit  person  to  represent  it  for  the
purposes  of  the  BRE  network.

itself 

The  European  Commission  failed  to  make  sufficient
enquiries,  for  example  by  seeking  references,  before
approving  Mr  A.,  on  behalf  of  Cumbria  International
Trade  Centre,  as  a  BRE  correspondent  representing,  at
local 
the
level, 
Commission.

the  BRE  network  operated  by 

In  his  complaint  to  the  Ombudsman  in  1995,  Mr  F.
argued  that,  by  not  acting  as  required,  the  Community
might  have  incurred  an  extra-contractual  liability.

Mr  F.  also  complained  that  he  sent  a  report  on  the
matter  to  Commissioner  Pinheiro  on  19  July  1995,  to
which  he  received  no  reply.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

The  inquiry

The  Commission’s  comments

MEASURES  TAKEN  BY  THE  COMMISSION  TO  ASSIST
PORTUGUESE  CUSTOMS  AGENTS  AFTER  ENTRY  INTO
FORCE  OF  THE  INTERNAL  MARKET

Decision  on  complaint  262/27.11.95/APF/PO/EF-po
against  the  European  Commission

The  complaint

Mr F. complained to the Ombudsman in November 1995
about  allegedly  inefficient  action  by  the  Commission  in
protecting  the  interests  of  Portuguese  customs  agents.

According to the complainant, the entry into force of the
internal  market  on  31  December  1992  had  particularly
negative  effects  for  Portuguese  customs  agents.  That  was
due  to  specific  factors  relating  to  the  sector  in  Portugal,
since  despite  its  private  nature,  the  sector  had  been
heavily  regulated  by  the  government.

In  the  complainant’s  view,  the  measures  adopted  by  the
Community  to  tackle  the  problem  were  inadequate,  both

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission’s  comments  were  as  follows.
It  acknowledged  the  seriousness  of  the  problem  for
customs  agents  following  the  entry  into  force  of  the
internal  market.  Although  the  restructuring  of  this  sector
was  primarily  the  responsibility  of  the  Member  States,
the  importance  of  the  problem  led  the  Commission  to
support  national  efforts  by  accompanying  measures.
These  consisted  of  three  groups  of  actions:  (i)  individual
actions  through  the  European  Social  Fund;  (ii)  actions
from  the  Regional  Development  Funds,  in  particular  the
Interreg 
intended
initiatives,  and  (iii)  other  actions 
specifically  for  this  sector,  under  Council  Regulation
(EEC)  No  3904/92.  The  latter  initiative  had  a  budget  of
ECU  30  million  of  which  ECU  2,8  million  was  intended
for  Portugal.

The  responsible  Portuguese  authorities  chose  the  aid
system  for  implementation  of  the  Regulation,  among  the
several  possible  means  of  assistance.  This  system  could
allow  certain  geographical  areas  which  were  excluded
under  Interreg  (in  particular,  the  regions  of  Porto  and
Lisbon)  to  receive  funding.  The  Commission  stated  that
informed  of  these
the  complainant  had  been  fully 

C  380/108

EN

Official  Journal  of  the  European  Communities

7.12.98

initiatives,  which  were  published  in  the  Official  Journal
of the Portuguese Republic, and that the group concerned
had  given  their  support  to  the  type  of  funding  chosen.

1.2.  Although 

the  Commission 

that
assistance  for  the  customs  sector  was  primarily  a
responsibility  for  the  Member  States,  it  appears
also to have considered it appropriate to undertake
Community  supporting  measures.

considered 

for 

the 

funds  allocated 

As 
the
Commission  argued  that  the  amount  agreed  for  these
initiatives  is  the  responsibility  of  the  EC  budgetary
authorities  which  enjoy  complete  discretion 
in  the
matter.

initiative, 

the 

to 

Although  the  complainant  had  written  to  Commissioner
Pinheiro,  the  responsible  Commission  services  (DG  V)
were  not  informed  of  this,  and  therefore  were  unable  to
reply  to  the  letter.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  the
complainant  insisted  that  the  Commission  should  have
realised the lack of effectiveness of the type of aid chosen
by the Portuguese authorities under Regulation (EEC) No
3904/92, since only seven Portuguese Commission agents
benefited  from  the  assistance.  This  situation  was  in
contrast  to  that  in  countries  such  as  Belgium,  France  or
the  Netherlands.  On  the  other  hand,  the  Portuguese
Government  had  not  taken  any  initiative  to  improve  the
situation,  by  means  such  as  early  retirement  schemes.

Although  the  Portuguese  authorities  claimed  that  the
assistance was very successful, the responsible Portuguese
agency  itself  had  concluded  that  only  three  Portuguese
official  Commission  agents  had  benefited  from  the
Interreg  I  scheme,  and  only  13  received  assistance  under
Regulation  (EEC)  No  3904/92.

the  principle  of 
that 

In  conclusion,  Mr  F.  considered  that  the  Commission
subsidiarity 
used 
its
responsibility,  and 
the  European  Ombudsman
should  grant  them  compensation  for  the  damages  which
they  had  suffered.

to  elude 

The  decision

1. 

The  exercise  of  the  Commission’s  responsibilities
in  the  matter

1.1.  The  Commission’s  responsibilities  under  Article  7c

of  the  EC  Treaty,  were:

(i)  ‘take  into  account  the  extent  of  the  effort  that
certain  economies 
in
developments  will  have  to  sustain  during  the
period  of  establishment  of  the  internal  market’
and

showing  differences 

(ii) to  consider 
provisions’.

the  proposal  of 

‘appropriate

1.3. 

inquiring 

In 
instance  of
into  a  possible 
maladministration,  it  is  not  appropriate  for  the
to  determine
European  Ombudsman 
disputes  concerning  the  effectiveness  or  adequacy
of  Community  policies,  where  issues  of  political
judgment  are  necessarily  involved.

to  seek 

1.4.  Since  the  Commission  took  action  to  discharge  its
responsibilities,  there  appears  to  be  no  evidence  of
maladministration  in  relation  to  this  aspect  of  the
case.

1.5.  The  Ombudsman  notes,  however, 

the
European  Parliament  took  a  position  on  this
matter  when  it  adopted  several  critical  resolutions,
such  as  those  of  17  September  and  20  November
1992 as well as the Jackson Report of 4 November
1992.

that 

2. 

The  claim  for  compensation

2.1.  The  complainant  asked 

the  Ombudsman 

to
recognise  his  right  to  obtain  compensation  from
the Community for damage suffered by Portuguese
official  Commission  agents.  In  view  of  paragraph
1.3,  it  is  inappropriate  to  examine  this  claim.

2.2.  The  Ombudsman  notes  that,  under  Article  215  of
the EC Treaty, the Court of Justice has competence
to  award  damages  for  non-contractual  liability.
The  Court  of  First  Instance  will  have  to  consider
such  a  possibility  in  the  area  of  the  customs
agents (1).

3. 

The  failure  to  answer  the  complainant’s  letter

3.1.  The  complainant  sent  a  report  on  the  situation  to
never
Commissioner 
answered. 
the  Commission
In 
justifies  this  lack  of  answer  by  the  fact  that  the
competent  services  (DG  V)  never  received  the
report.

Pinheiro,  which  was 
its  comments, 

3.2.  Under  the  Treaties,  the  Commission  is  a  single
legal  entity.  The  different  departments  of  the
Commission  cannot  therefore  be  considered  to  be
independent  bodies,  but  rather  parts  of  a  single
administrative  structure.  While  the  Commission
has power to regulate its own internal organisation
as  it  thinks  best  to  fulfil  its  tasks,  this  internal

(1)  Case  T-113/96  (OJ  C  318,  26.10.1996,  p.  10).

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/109

organisation  cannot  justify  failure  to  reply  to
in
correspondence 
accordance 
good
administration.

from 
principles 

received 

citizens, 

with 

of 

3.3. 

the  present  case, 

In 
the  complainant  could
reasonably  have  expected  that  correspondence
addressed  to  the  Portuguese  Commissioner  would
be  directed  to  the  competent  service  for  reply.

3.4.  Given  that  this  aspect  of  the  case  concerned
procedures relating to specific events in the past, it
did  not  appear  appropriate  to  pursue  a  friendly
settlement  of  the  matter.

Conclusions

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared  necessary  to  make  the
following  critical  remarks.

It  appeared  from  the  file  that  in  December  1995  a
temporary  employment  agency  had  given  Mrs  S.  a
contract  according  to  which  she  should  work  for  the
Commission  for  five  days  as  a  B  grade  assistant  in
Directorate  General  X.  Mrs  S.  presented  herself  to  the
Commission  Staff  Department  on  6  December  1995  and
was asked to sign a curriculum vitae and to write on it, ‘I
the  undersigned  certify  on  my  honour  that  the  above
information  is  true  and  complete’.  The  curriculum  vitae
was  not  established  on  any  particular  form  for  that
purpose and according to the information in the file there
are  no  requirements  to  that  effect.  The  official  dealing
with the file disappeared for a while and then returned to
state  that  Mrs  S.’s  curriculum  vitae  was  not  correct,  the
reason  being  that  she  had  declared  having  a  three  year
university  translator’s  diploma,  while  it  appeared  from
the  Commission’s  files  that  she  also  had  a  five-year
Master’s Degree in applied languages. Given that fact, the
the
Commission’s  Staff  Department  decided 
complainant could not be taken on for the envisaged five
days.  Furthermore, 
temporary
employment agency in order to annul her contract and to
instruct it not to put her forward for any other jobs with
the  Commission  until  further  notice.

contacted 

that 

the 

it 

While  the  Commission  has  power  to  regulate  its  own
internal  organisation  as  it  thinks  best  to  fulfil  its  tasks,
this internal organisation cannot justify failure to reply to
correspondence received from citizens, in accordance with
principles  of  good  administration.

The  inquiry

In  the  present  case,  the  complainant  could  reasonably
have  expected  that  correspondence  addressed  to  the
Commissioner would be directed to the competent service
for  reply.

The  Commission’s  comments

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

RECRUITMENT:  UNREASONABLE  AND
DISPROPORTIONATE  MEASURES  AGAINST  A
CANDIDATE

Decision  on  complaint  448/2.2.1996/MS/B/PD-fr  against
the  European  Commission

The  complaint

Mrs S., of French and Portuguese nationality, complained
to  the  Ombudsman  in  January  1996  alleging  that  the
European  Commission  had  wrongly  withdrawn  a  job
offered  to  her  through  a  temporary  employment  agency
and  that  it  had  put  her  on  a  blacklist  so  that  the  agency
should  not  put  her  forward  for  any  future  temporary
employment  with  the  Commission.

The  complaint  was  forwarded  to  the  Commission.  In  its
comments, the Commission stated that while a three year
diploma  qualified  an  applicant  for  a  B  grade  job  such  as
the  one 
in  question,  a  five-year  diploma  did  not
disqualify  her.  However,  it  put  forward  that  Mrs  S.  had
manifestly  and  deliberately  concealed  the  fact  that  she
had  a  full  university  degree  (five-year  diploma)  and  that
this  meant  that  her  curriculum  vitae  was  ‘faulty  by
omission’.  Signing  a  document  that  was  ‘faulty  by
omission’  implied  a  breach  of  the  principle  of  loyalty
which 
in  any  relation  between  public
authorities  and  their  agents.

inherent 

is 

As  for  the  reason  for  this  deliberate  omission,  the
Commission  supposed,  partly  on  the  basis  of  the
complainant’s  own  statements,  that  it  was  due  to  her
exclusion  from  a  competition  the  Commission  had
jobs  of  C  category.  The
organised 
Commission  excluded  her  from  this  competition,  in
accordance with its practice, on the grounds that she had
a  full  five-year  university  diploma.  The  Commission
recognised that this practice was held to be illegal by the
Court  of  First  Instance  in  1993 (1).  Thus,  Mrs.  S’s

in  1994 

for 

(1)  Case  T-60/92,  Noonan  v.  Commission  [1993]  ECR-II  911.

C  380/110

EN

Official  Journal  of  the  European  Communities

7.12.98

exclusion  from  the  competition  on  those  grounds  was
illegal.  However,  this  did  not  change  the  Commission’s
view  that  she  had  infringed  the  principle  of  loyalty.

As  for  the  legal  basis  of  this  principle,  the  Commission
put  forward  that  the  principle,  although  not  expressly
stated  by  the  Staff  Regulations,  was  implied  in  the
relations  with  all  public  servants.  In  this  context,  it
referred  to  the  decision  of  the  Court  of  First  Instance  in
case  T-146/89,  Williams  v.  Court  of  Auditors (1)  and  to
Article  50(1)  of  the  Conditions  of  Employment  of  Other
Servants  as  underlining  the  importance  given  to  false
information  by  the  Community  legislator.

As  for  the  complainant’s  legal  rights  to  get  the  job  that
she  was  offered,  the  Commission  stated  that  there  was
only  a  legal  relation  between  her  and  the  agency  which
put  her  forward  for  temporary  jobs  with  any  public  or
private  body.  So  the  Commission  did  not  breach  a
contract  with  Mrs  S.  because  there  was  no  contract
between  her  and  the  Commission.

Finally,  in  its  last  observations,  the  Commission  stated
that  any  instruction  to  temporary  employment  agencies
not to put Mrs S. forward for a job with the Commission
no  longer  existed.

The  complainant’s  observations

not  mentioned  her  five-year  university  diploma  in  the
curriculum  vitae  submitted.  It  was  equally  uncontested
that  this  diploma  had  no  relevance  whatsoever  for  the
job  she  was  contracted  for.  It  was  established  that  the
Commission  services  qualified  her  failure  to  mention  the
five  year  diploma  as  ‘fault  by  omission’,  with  the  result
that she could not be taken on for the job envisaged and
that her agency was told not to put her forward again for
a  job  with  the  Commission.

The question that the complaint thus raised was whether
this  reaction  from  the  Commission  was  reasonable  and
proportionate.  It  was  not  material  for  assessing  this
question whether Mrs S.’s failure to mention the five-year
diploma  was  intentional  or  not.

As justification for the measures adopted the Commission
invoked  a  principle  of  loyalty  which  applies  in  the
relations  between  the  institutions  and  all  public  servants,
referring  to  the  case  of  Williams  v.  Court  of  Auditors.
Furthermore, it stated that the Community legislator had
given particular attention to false information supplied in
the  context  of  recruitment  and  it  referred  to  Article  50
(1)  of  the  Conditions  of  Employment  of  Other  Servants.

in 

that 

substance 

In  her  observations  on  the  Commission’s  comments,  the
complainant  maintained 
the
Commission  had  dealt  with  her  case  wrongly  and
unfairly.  She  insisted  on  the  fact  that  the  Commission
was not entitled to compare the information submitted in
an applicant’s curriculum vitae with documents submitted
by  that  person  on  previous  occasions.  Furthermore,  she
to
there  still  existed  an 
claimed 
temporary  employment  agencies  not  to  put  her  forward
for  jobs  with  the  Commission.  Mrs  S.  tried  to  obtain
written confirmation from the agencies to that effect, but
according to the complainant, the agencies were reluctant
to  give  her  anything  in  writing  out  of  fear  of  the
Commission.

instruction 

that 

The  decision

The  Ombudsman  firstly  noted  that  he  was  not  aware  of
any  rule  preventing  the  Commission  from  checking  the
correctness  of  information  supplied  in  a  curriculum
vitae.

As for the measures taken by the Commission in Mrs S.’s
case,  he  remarked  that  it  was  uncontested  that  she  had

(1)  [1991]  ECR-II  1293.

The Ombudsman commented that the case of Williams v.
Court  of  Auditors  concerned  an  official  who  by
spreading  slanderous  declarations  had  not  complied  with
his  obligations  under  Articles  12  and  21  of  the  Staff
Regulations  and  that  Article  50  (1)  of  the  Conditions  of
Employment  of  Other  Servants  concerned  temporary
staff.  It  was  clear  that  none  of  these  elements  of  law
could  apply  directly  to  Mrs  S.’s  case,  in  particular
because  she  was  engaged  by  an  agency  for  five  days
work.  Even  if  Article  50  could  apply  to  such  a  case,  it
should  first  be  noted  that  the  Article  concerns  false
information.  Mrs  S.’s  curriculum  vitae  did  not  contain
information  contrary  to  the  truth.  The  same
any 
professional  life  can  give  rise  to  very  many  different
curricula  vitae,  some  more  elaborate  or  extensive  than
others,  without  entailing  the  qualification  of  the  short
version  as  false.  The  curriculum  vitae  submitted  was,  at
the  most,  incomplete.  In  the  second  place,  if  any  false
information  should  entail  sanctions,  Article  50  provides
that  it  has  to  be  established  that  ‘the  false  information
furnished  was  a  determining  factor  in  his  (the  agent’s)
being  engaged’.  According  to  the  Commission  itself,  it
would  not  have  any  bearing  whatsoever  on  the  decision
to engage her that she had the five-year diploma. Thus, it
appears  that  the  mentioning  or  not  of  the  five-year
diploma  was  irrelevant.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/111

Conclusions

Against  this  background,  it  therefore  appeared  necessary
to  make  the  following  critical  remarks.

The  measures  which  the  Commission  applied  to  the
complainant  were  unreasonable  and  disproportionate.
The  Commission  should  not  have  withdrawn  the  job
offered  to  Mrs  S.  on  the  grounds  that  she  had  submitted
a 
three-year
university  diploma,  and  it  should  not  have  issued  the
instruction  to  her  employment  agency  not  to  put  her
forward  for  a  job  with  the  Commission.

false  curriculum  vitae,  mentioning  a 

Given  the  fact  that  the  Secretariat-General  of  the
Commission  had  given  an  assurance  that  the  instruction
had  been  withdrawn,  the  Ombudsman  found  that  there
were  no  grounds  for  further  investigations  and  he
therefore  closed  the  case.

the  Commission  planned 

In  1996, 
its
involvement  in  the  Systran  development  project  with  the
result  that  the  development  staff  faced  redundancy.

to  reduce 

On  the  basis  of  the  above  facts,  Mr  S.  complained  that
the European Commission was morally responsible, if not
legally  liable,  towards  the  development  team  who  came
to  Luxembourg  only  in  order  to  work  for  an  institution
they  trusted  and  who  were  now  faced  with  redundancy.
He  claimed  that  the  Commission  should  envisage  an
‘institutional’  framework  for  the  development  team
within  its  services,  or  within  the  Translation  Centre  for
Bodies  of  the  European  Union.

The  inquiry

FAILURE  TO  TAKE  ADEQUATE  STEPS  TO  INFORM
EXTERNAL  STAFF  OF  THEIR  POSITION

The  Commission’s  comments

Decision  on  complaint  503/20.3.96/AS/L/KT  against  the
European  Commission

The  complaint

Mr  S.,  who  worked  on  the  Systran  machine  translation
project,  complained  in  March  1996  to  the  Ombudsman
against  the  Commission.  The  following  is  a  summary  of
relevant  facts  as  they  appear  from  the  complaint.

In  1979  Mr  S.  was  offered  a  one-year  contract  as  a
linguistic  programmer,  by  a  company  which  had  a
contract  with 
the
development  of  the  Systran  machine  translation  system.
In  1996,  Mr.  S.  was  still  working  on  the  same  project.

the  European  Commission 

for 

From  1979  to  1996,  Systran  development  work  was
carried  out  in  Luxembourg  under  a  series  of  up  to  20
consecutive  contracts,  awarded  successively  to  three
separate companies.

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

The  Commission  (DG  XIII)  investigated  the  domain  of
machine  translation  as  early  as  1975.  This  activity  was
speculative  and  hence  was  carried  out  under  rules
normally  applied  for  development  projects  through  a
series  of  contracts  for  the  supply  of  services  financed
under  several  multilingual  actions  plans.

During  these  20  years,  highly  specialised  personnel  were
needed so that despite proceeding through calls for tender
and  changing  contractors,  some  of 
the  personnel
remained  unchanged  throughout  the  years.

The  availability  of  funds  depends  on  a  political  decision
by  the  Community  budgetary  authority.  The  award  of
funds  to  a  particular  contractor  is  subject  to  compliance
with  procedures  laid  down  by  the  Financial  Regulation
and  other  relevant  rules.  Contracts  are  concluded  for  a
limited  period,  not  exceeding  three  years.

to  do 

the  company  contracted 

During this period, the development team of which Mr.S
was  part,  worked  continuously  on  the  project,  as
the
employees  of 
development  work  by  the  Commission.  When  the
contract  was  awarded  to  a  different  company,  the  new
company  took  over  the  employment  of  the  development
team  as  a  body.  There  were  clauses  in  the  Commission
contracts  requiring  that  the  Systran  development  staff  be
left free to move from one contractor to another and the
Commission  decided  who  should  be  employed  and  fixed
the  vacations  and  salaries  of  staff.

In  view  of  these  factors,  those  involved  in  projects
depending  on  finance  from  the  Community  budget
cannot 
continue
indefinitely.

reasonably 

funding 

expect 

to 

The Systran project has spent an unusually long period in
the  development  phase.  The  project  is  also  unusual  in
that  the  Commission  also  plays  a  prominent  role  as  user
of  the  finished  product.

C  380/112

EN

Official  Journal  of  the  European  Communities

7.12.98

Those working on the project were warned by the change
in the wording of their employment contracts in 1984 to
include  the  following  clause: 
‘at  no  time  can  the
contractor  as  a  result  of  his  performance  of  his  tasks
under  this  contract,  pretend  to  have  obtained  a  right  or
whatever moral or other engagement to be appointed as a
staff  member  in  the  Commission’s  services’.

In  1993,  following  the  conclusions  of  an  expert  panel,  a
presentation  of  the  future  of  machine  translation  in  the
Commission  for  all  project  staff  took  place,  with  the
recommendation  that  they  should  diversify  within  the
field  of  language  engineering  and  not  rely  exclusively  on
Community  funding.

the  Commission  has  explained 

the
Since  1994, 
opportunities for diversification to the contractor and his
staff  on  a  number  of  occasions.

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  Mr
S.  restated  his  original  claim  in  detail.  The  observations
also  contained  a  number  of  additional  points,  including
in  summary,  the  following.

their 

regarding 

relations  with 

The  Commission  has  always  had  guidelines  and  rules  of
conduct 
external
contractors  and  suppliers  of  services  to  prevent  abuses
and  nepotism.  These  limit  the  length  of  contracts  to  no
more  than  three  years.  The  Commission  has  deliberately
used  the  various  temporary  Systran  contractors  to
circumvent  the  time  limits  as  regards  the  services  of
Systran  staff.

1.2.  Recruitment  of  the  staff  of  an  external  contractor
whose  services  are  no  longer  required  by  the
Commission  would  be  in  accordance  neither  with
the  procedures  nor  the  purposes  laid  down  in  the
Staff  Regulations.

1.3.  The  claim  that  the  Commission  has  an  obligation
to  provide  an  institutional  framework  for  the
Systran  development  team  within  its  services  or
within  the  Translation  Centre  for  bodies  of  the
European  Union  cannot  therefore  be  sustained.

2. 

The  unusually  long  development  period  of  the
Systran  project

2.1.  Rules  exist  restricting  the  length  of  time  for  which
staff  from  companies  providing  services  under
specific  programmes  (external  staff)  may  work  on
Commission  premises.  These  rules  appear  to  be
specifically  intended  to  prevent  the  establishment
of  de  facto  employment  relationships  outside  the
framework  of  the  Staff  Regulations.  A  breach  of
instance  of
these  rules  could  constitute  an 
maladministration.

2.2. 

system, 

translation 

It  appears  from  the  inquiries  that  have  been
conducted  that  the  European  Commission  has
worked  with  the  same  development  staff  for  the
Systran 
separate
companies,  for  many  years.  The  Commission  has
in
accepted 
question  is  unusually  long.  However,  on  the  basis
of  the  evidence  available  to  the  Ombudsman,  it
does not appear that there has been a breach of the
rules.

its  comments  that  the  period 

through 

in 

The  contractual  clause  quoted  in  the  Commission’s
comments  refers  to  the  contractor  and  not  to  the
development  staff.  The  development  staff  has  always
considered  the  Commission  as  its  de  facto  employer.  If
the  development  staff  is  deemed  the  actual  contractor
then  the  Commission  has  incurred  legal  obligations
towards  the  development  staff  under  Luxembourg  law.

The  decision

1. 

The  claim  that  the  Commission  should  envisage
an  ‘institutional  framework’  for  the  development
team

1.1.  Recruitment  as  an  official  or  other  servant  of  the
European Communities must be carried out only in
accordance  with  the  procedures  and  purposes  laid
down  in  the  Staff  Regulations.

2.3.  As  a  matter  of  good  administration, 

the
Commission  should  ensure  that  external  staff  are
made aware of their employment status and of the
rules  governing  the  use  of  external  staff.

2.4. 

In  the  case  of  external  staff  employed  for  an
unusually  long  period  and  who  are  developing  an
important product for the Commission as end user,
the  Commission  has  a  particular  responsibility  to
take  positive  steps  to  avoid  the  foreseeable  danger
that  the  external  staff  may  be  misled  concerning
their  future  prospects.

2.5.  From  the  material  available  to  the  Ombudsman,  it
appears  that  the  Commission  failed  to  take
adequate  steps  from  1979  to  1993  to  ensure  that
Systran  development  staff  were  made  aware  that
their  career  plans  should  not  rely  on  continuation
of  the  Systran  programme.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/113

2.6.  The  Ombudsman’s  inquiries  into  this  complaint
revealed no evidence that the careers of the Systran
development  staff  suffered  as  a  result  of  the
unusually  long  period  of  Systran  development.
Furthermore, the Ombudsman’s findings relate to a
specific  period  which  ended  in  1993.  It  is  not
therefore  appropriate  for  the  Ombudsman  to
pursue  a  friendly  settlement  of  this  aspect  of  the
case.

3. 

The claim that the Commission has obligations to
the  development  staff  under  Luxembourg  law

staff  suffered  as  a  result  of  the  unusually  long  period  of
Systran  development.  Furthermore,  the  Ombudsman’s
findings related to a specific period which ended in 1993.
It  was  not  therefore,  appropriate  for  the  Ombudsman  to
pursue  a  friendly  settlement  of  this  aspect  of  the  case.
The  Ombudsman  therefore  closed  the  case.

RESPONSIBILITY  FOR  COMMUNITY-FINANCED
PROJECTS:  THE  LIFE  PROGRAMME

Decision  on  complaint  555/17.4.96/ALDM/ES/PD
against  the  European  Commission

3.1.  The  claim  that  the  Commission  has  obligations  to
the  development  staff  under  Luxembourg  law
raises  questions  of  national  law  and  could  involve
disputes  over  facts  and  their  interpretation.

The  complaint

3.2.  These  matters  could  only  be  dealt  with  effectively
by  a  court  of  competent  jurisdiction,  which  would
have the possibility to hear testimony and evaluate
conflicting  evidence  on  issues  of  fact  and  the
relevant national law.

3.3. 

In  these  circumstances,  further  inquiries  into  this
claim by the European Ombudsman do not appear
to  be  justified.

Mr M. complained to the Ombudsman in April 1996 on
behalf  of  the  City  Council  of  Isaba  valley  in  Navarra,
Spain  against  DG  XI  of  the  Commission.

The  factual  situation  underlying  the  complaint  resulted
from  the  Commission’s  action  to  protect  brown  bears
living in the Pyreneean region, through financial aid from
the  LIFE  programme.

Conclusions

On the basis of the above findings, it appeared necessary
to  make  the  following  critical  remarks.

As  a  matter  of  good  administration,  the  Commission
should ensure that external staff are made aware of their
employment  status  and  of  the  rules  governing  the  use  of
external  staff.

In  the  case  of  external  staff  employed  for  an  unusually
long  period  and  who  are  developing  an  important
product for the Commission as end user, the Commission
has  a  particular  responsibility  to  take  positive  steps  to
avoid  the  foreseeable  danger  that  the  external  staff  may
be  misled  concerning  their  future  prospects.

From  the  material  available  to  the  Ombudsman,  it
appears  that  the  Commission  failed  to  take  adequate
steps  from  1979  to  1993  to  ensure  that  Systran
development  staff  were  made  aware  that  their  career
plans  should  not  rely  on  continuation  of  the  Systran
programme.

The  Ombudsman’s  inquiries  into  this  complaint  revealed
no  evidence  that  the  careers  of  the  Systran  development

the  Community  aid  discussed 

In  1995,  the  local  and  regional  organisations  who  were
recipients  of 
the
establishment  of  a  cooperation  agreement.  The  Council
of  the  Valley  of  Roncal  did  not  agree  with  the  measures
set  out  in  the  agreement,  since  their  effect  would  be  to
limit  the  Council’s  control  and  management  of  the
natural  resources  in  the  area.  As  a  result,  the  City
Council of Isaba Valley, which is part of the Valley of the
Roncal,  decided  not  to  take  part  in  actions  financed  by
the  LIFE  programme.

The  position  of  the  City  Council  was  criticised  by  Dr  P.
who published statements which were presumed to reflect
concerns  of  the  Commission’s  services.

The  complainant  wrote  on  several  occasions  to  DG  XI
requesting,  inter  alia,  that:

(i)  the  City  Council  of  the  Isaba  Valley  be  considered  a
part  in  any  Community  initiative  related  to  the
protection  of  the  brown  bear  and  that  the  council  be
given  the  management  of  any  such  initiative  to  take
place  within  its  boundaries;

(ii) DG  XI  forward  to  the  City  Council  the  decision  or
the  report  prepared  by  the  Commission’s  services  in
which,  following  the  information  published  by  Dr  P.,
they  made  critical  remarks  regarding  the  position  of
the  City  Council.

C  380/114

EN

Official  Journal  of  the  European  Communities

7.12.98

The  complainant  alleged  that  the  Commission  had  not
properly  responded  to  these  requests.

financial  role  and  also  indicate  to  them  the  appropriate
channels  at  national 
their
level 
observations.

for  dealing  with 

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  its  comments  were  as  follows.

The  Ombudsman  considered  that  the  reply  of  the
European Commission to the requests of the complainant
should  have  conveyed  more  clearly  and  thoroughly  the
powers  of  the  institution  as  regards  the  implementation
of  the  LIFE  programme,  as  well  as  the  appropriate
national  channels  to  which  the  complainant  could  have
addressed  himself  for  a  solution  of  the  problem.

The  Commission  had  already  replied  to  all  the  issues
raised  by  Mr  M.

2.  Third  parties’  public  statements  on  the  City

Council  of  Isaba  Valley

In its letters to Mr M. the Commission had informed him
that  some  of  the  issues  he  raised  concern  Member  States
exclusively.

In  its  comments,  the  Commission  stated  that  its  services
have  no  relationship  with  Dr  P.  The  Ombudsman’s
inquiries 
the
Commission’s  statement.

revealed  no  evidence 

to  contradict 

to 

implement 

In  order 
the  Community’s  nature
protection policy, the Commission should cooperate with
authorities  designated  by 
In
application  of  the  subsidiarity  principle,  these  authorities
are  the  responsible  national  bodies  for  those  issues.

the  Member  States. 

There  had  been  no  relationship  between  the  Commission
services  and  Dr  P.,  even  though  the  latter’s  scientific
reputation  was  held  in  high  esteem.

The  Commission’s  comments  were  forwarded  to  Mr  M.
with an invitation to submit observations if he so wished.
No  observations  were  received.

The  decision

On  the  basis  of  the  available  information,  the  European
Ombudsman  reached  the  following  conclusions.

1.  Potential  participation  of  the  City  Council  of  the
Isaba  Valley  in  the  selection  and  management  of
LIFE’s  projects

Regulation  (EEC)  No  1973/92  on  the  LIFE  programme
places Member States in an intermediary role between the
Community  and  any  third  parties.  Thus,  the  main
responsibility  for  the  establishment  of  priorities  among
potential  projects  as  well  as  their  follow-up  is  largely
entrusted  to  Member  States.  Because  of  this  special
position, Member States are best placed to coordinate the
role  of  different  national  authorities  affected  by  the
implementation  or  management  of  Community-financed
projects.

its  role 

Although 
limited  one,  the
is  therefore  a 
Commission  has  responsibilities  towards  entities  or
individuals  affected  by  Community-financed  projects.  It
should  properly  inform  them  about  the  nature  of  its

Conclusions

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared  necessary  to  make  the
following  critical  remarks.

The  Commission  has  responsibilities  towards  entities  or
individuals  affected  by  Community-financed  projects.  It
should  properly  inform  them  about  the  nature  of  its
financial  role  and  also  indicate  to  them  the  appropriate
channels  at  national 
their
level 
observations.

for  dealing  with 

The  Ombudsman  considered  that  the  reply  of  the
European Commission to the requests of the complainant
should  have  conveyed  more  clearly  and  thoroughly  the
powers  of  the  institution  as  regards  the  implementation
of  the  LIFE  programme,  as  well  as  the  appropriate
national  channels  to  which  the  complainant  could  have
addressed  himself  for  a  solution  of  the  problem.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

LATE  PAYMENT  OF  FEES  AND  EXPENSES  AND
FAILURE  TO  ANSWER  CORRESPONDENCE

Decision  on  complaint  606/22.5.96/AH/UK/IJH  against
the  European  Commission

The  complaint

In May 1996, Mrs H. complained to the Ombudsman of
excessive  delay  in  the  payment  of  fees  and  expenses  for

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/115

work  she  had  undertaken  for  the  Safety  and  Health
Committee  for  Mining  and  Other  Extractive  Industries.
In particular, at the date of the complaint, 15 May 1996,
Mrs H. had not received payment of an invoice submitted
on  13  December  1995,  although  the  contract  stipulated
final  payment  within  60  days.

Mrs  H.  also  complained  that  faxes  she  sent  about  the
matter  had  not  been  answered.

The  inquiry

The  Commission’s  comments

The Commission should have offered recompense for the
delay  in  paying  fees  and  expenses.

Further  inquiries

After  considering  the  Commission’s  comments  and  the
complainant’s observations, it appeared that a number of
aspects  of  the  complaint  remained  unanswered.  The
Ombudsman  therefore  wrote  again  to  the  Commission
enclosing the observations and asking, in particular, if the
financial
to 
Commission 
compensation.

proposed 

offer 

any 

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission’s  comments  were  as  follows.

(i)  apologised  for  the  delay  in  the  final  payment  of

expenses;

In  its  reply,  the  Commission:

The  first  invoice  issued  by  the  complainant  in  September
1995  did  not  comply  with  the  budgetary  rules.  The
complainant  submitted  a  revised  invoice  at  the  beginning
of  1996.  Since  the  financial  year  had  changed,  the
department  concerned  had  to  recommence  the  financial
procedure 
the
appropriations  required  lapse  at  the  end  of  each  year.

commitment 

stage  as 

from 

the 

(ii)  undertook  to  make  every  effort  to  ensure  that  such

delays  do  not  occur  in  the  future;

(iii)  stated that it had offered ECU 245 as compensation

for  this  delay.

Payment  under  the  contract  was  also  delayed  for
administrative  reasons  and  was  finally  made  during  the
second  half  of  1996.

The  Commission  also  stated:

‘With  regard  to  the  dialogue  between  officials  and  the
complainant,  because  no  information  was  supplied  by
the  departments  dealing  with  this  matter,  or  it  came
too  late,  it  was  not  possible  to  provide  a  detailed
explanation’.

Mrs  H.  confirmed  to  the  Ombudsman  that  she  had
accepted  and  was  satisfied  with  the  compensation
payment.  She  stated,  however,  that  the  Commission’s
offer  of  compensation  was  made  on  11  April  and
accepted  by  her  on  12  April,  that  she  was  assured  that
payment  would  be  made  within  a  maximum  of  30  days,
but  that  payment  was  in  fact  made  on  23  June.

Mrs H. also expressed the wish that her complaint might
lead  to  an 
in  the  efficiency  of  the
Commission  which  would  be  beneficial  not  only  to
herself  but  to  many  others  in  her  position.

improvement 

The  complainant’s  observations

The  decision

The Commission’s comments were forwarded to Mrs. H.
In  summary,  her  observations  made  the  following
points.

The  comments  dealt  only  with  the  question  of  the  fees
due under the contract and not with the delays in paying
expenses.

The  Commission  had  given  no  detailed  explanation  of
the  delays  in  paying  the  fee.  The  revised  invoice  was
submitted by post and fax on 13 December 1995 and not
at  the  beginning  of  1996.

1. 

Late  payment  of  expenses

acknowledged 

The  Commission 
and
had 
apologised  for  an  unjustified  delay  in  the  payment
of  expenses  to  the  complainant.  It  had  paid
compensation  for  the  delay.  This  aspect  of  the
complaint  therefore  appeared  to  have  been  settled
by  the  Commission,  to  the  satisfaction  of  the
complainant.

2. 

Late  payment  of  the  balance  of  the  fees

The  fee  was  finally  received  on  4  October  1996,  more
than  nine  months  after  submission  of  the  invoice.

2.1.  At  the  time  of  the  original  complaint,  the  balance
of  the  fees  due  under  the  contract  had  not  been

C  380/116

EN

Official  Journal  of  the  European  Communities

7.12.98

the  Commission 

paid.  On  the  basis  of  the  facts  as  presented  by  the
complainant,  which 
either
confirmed  or  did  not  contradict,  the  balance  was
finally  paid  over  nine  months  after  the  submission
of  the  relevant  invoice,  whereas  according  to  the
contract,  payment  should  have  been  made  within
60  days.  The  Commission  offered  no  satisfactory
explanation  for  this  delay,  nor  did  it  apologise  for
it.

2.2.  This aspect of the complaint was therefore upheld.
The  Commission  fell  below  standards  of  good
administration 
in  making  payment  more  than
seven  months  later  than  it  should  have  done
according  to  the  terms  of  its  contract  with  the
complainant.

3. 

Failure  to  answer  correspondence

3.1.  The  Commission  appears  to  have  acknowledged
that  there  was  a  failure  to  deal  satisfactorily  with
correspondence  from  the  complainant.  However,
the  Commission  offered  neither  a  satisfactory
explanation of why the failure occurred, nor did it
apologise  for  it.

3.2.  This aspect of the complaint was therefore upheld.
The  Commission  fell  below  standards  of  good
administration in failing to reply to correspondence
from  the  complainant.

delays  in  making  payments  and  proposes  to  pay  interest
when  delays  occur.

The  Ombudsman  will  keep  under  review  the  situation  as
regards  complaints  against  the  Commission  concerning
late  payment  of  fees  and  expenses,  in  order  to  consider
whether 
to  envisage  an
it  may  be  appropriate 
own-initiative  inquiry  into  the  subject.

ALLEGED  INFRINGEMENT  OF  DIRECTIVE:  HANDLING
OF  COMPLAINTS  LODGED  WITH  THE  COMMISSION

Decision  on  complaint  620/3.6.96/DH/DK/PD  against
the  European  Commission

The  complaint

that 

the  Danish  authorities  had 

Mr H. from Denmark complained to the Ombudsman in
June  1996  that  the  Commission  had  not  properly  dealt
with  a  complaint  he  had  lodged  with  it  against  the
Danish  authorities.  His  complaint  to  the  Commission
infringed
alleged 
Directive  83/515/EEC  and  failed  to  transpose  Article  23
of  Regulation  (EEC)  No  4028/86,  both  concerning  the
fisheries  sector.  In  its  answer  to  Mr  H.  the  Commission
stated that the examination of the complaint had not led
to  the  establishment  of  infringements  of  Community
law.

Conclusions

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared  necessary  to  make  the
following  critical  remarks.

The  inquiry

fell  below 

standards  of  good
The  Commission 
administration  in  making  payment  more  than  seven
months  later  than  it  should  have  done  according  to  the
terms  of  its  contract  with  the  complainant  and  in  failing
to  reply  to  her  correspondence.

Given that these aspects of the case concerned procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

Further  remarks  by  the  European  Ombudsman

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary  the  comments  of  the  Commission  were  as
follows.

The  object  of  the  complaint  involves  a  decision  by  the
Commission  under  Article  169  of  the  EC  Treaty.

It  is  established  case-law  that  the  Commission  has  a
discretion  in  this  respect,  precluding  the  possibility  for
private  persons  to  require  it  to  bring  a  case  before  the
Court of Justice. By deciding not to engage the procedure
in this case, the Commission had acted within its powers
in  conformity  with  the  case-law  of  the  Court.

The  European  Ombudsman  noted  the  Communication
from  Commissioners  Gradin  and  Liikanen,  in  agreement
with  the  President,  concerning  time  limits  for  payments
by  the  Commission  and  interest  on  delayed  payments
(SEC(97)  1205,  10  June  1997).  It  appeared  from  this
Communication that the Commission is seeking to reduce

The  objective  of  the  provisions  of  the  Directive,  which
the  complainant  alleged  that  Denmark  had  infringed,  is
to lay down the detailed conditions for granting financial
aid,  in  case  the  Member  State  decides  to  establish  a
scheme  of  financial  aid.  Since  Denmark  had  not
established  a  scheme  of  financial  aid,  there  was  no

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/117

infringement. As concerns Article 23 of Regulation (EEC)
No  4028/86  it  is  established  case-law  that  the  Member
States  are  not  entitled  to  transpose  the  provisions  of  a
Regulation  as  Regulations  are  directly  applicable  as  law
in  the  Member  States.

COMMISSION’S  RESPONSIBILITY  FOR  INTERMEDIARY
ORGANISATIONS

Decision  on  complaint  630/6.6.96/CJ/UK/IJH  against
the  European  Commission

The  complaint

The  complainant’s  observations

In  his  observations,  the  complainant  maintained  his
complaint  and  asked  the  Ombudsman  to  initiate  judicial
proceedings  against  Denmark.

The  decision

In  his  assessment  of  the  complaint,  the  Ombudsman
firstly  recalled  that  the  EC  Treaty  empowers  him  to
inquire  into  possible  instances  of  maladministration  only
in  the  activities  of  Community  institutions  and  bodies.
The  Ombudsman  is  not  entitled  to  inquire  into  the
activities  of  national  authorities,  nor  to  bring  judicial
proceedings  against  a  Member  State.

The  Commission’s  reference  in  its  comments  to  its
discretionary  powers  under  Article  169  of  the  EC  Treaty
was irrelevant. It followed clearly from the Commission’s
comments 
there  was  no
infringement  by  Denmark  in  this  case.  Consequently,  no
question  could  arise  of  discretion  to  bring  proceedings
under  Article  169.

it  considered 

that 

that 

As for the Commission’s assessment of the complaint, the
Ombudsman  recalled  that  the  highest  authority  on  the
interpretation  of  Community  law  is  the  Court  of  Justice.
No element at hand in this case made it apparent that the
Commission’s  assessment  was  wrong.

As  for  the  Commission’s  handling  of  the  complaint,  it
appeared  that  the  Commission  had  dealt  with  it  and
provided  Mr  H.  with  an  answer  to  his  allegations.
However, the Commission had not provided Mr H. with
the  reasoning  for  its  conclusion  that  Denmark  had  not
infringed  the  provisions  in  question,  until  he  complained
to  the  Ombudsman.  If  it  had  provided  the  reasoning
earlier,  the  need  for  a  complaint  to  the  Ombudsman
would  not  have  arisen.  The  Ombudsman  therefore  made
a  critical  remark  to  the  Commission  to  the  effect  that  it
should  have  made 
the
complainant  in  its  answer  to  the  complaint.

reasoning  known 

its 

to 

As 
the
the  Commission  had  eventually  provided 
complainant  with  its  reasoning,  no  further  investigations
were  justified.  The  Ombudsman  therefore  closed  the
case.

in 

the  Netherlands,  FIPA 

Mr C. was chairman of a committee which organised the
World  Disabled  Sailing  Championship  in  the  UK  in
August  1994.  In  November  1993,  he  applied  to  an
organisation  based 
(the
Foundation for International Cooperation of Projects and
other  Activities  for  Humanitarian  Affairs),  for  a  grant  to
support the event. In March 1994, FIPA offered financial
aid  from  the  European  Commission  equal  to  18 %  of
total  allowable  expenditure,  up  to  a  maximum  of  ECU
7 130.  The  offer  was  subject  to  conditions,  including
public  acknowledgement  of  Commission  support  and
submission  of  audited  accounts  by  30  November  1994.
Payment  was  to  be  made  only  after  the  Commission  had
received  and  approved  the  accounts.

Mr  C.  asked  FIPA  for  payment  in  advance,  in  order  to
avoid interest charges on a loan. The request was refused
and  he  therefore  arranged  a  loan.

In November 1994, Mr C. submitted audited accounts to
FIPA.  However,  in  spite  of  repeated  telephone  calls,  no
payment  was  made  until  May  1995.  The  payment  was
for  a  smaller  sum  than  the  maximum  originally  offered.
In  view  of  the  delay,  the  organising  committee  finally
decided  to  make  other  arrangements  to  settle  the
outstanding  loan  and  informed  FIPA  they  needed  no
more  grant  aid.

In May 1996, Mr C., and Dr Caroline Jackson, Member
of  the  European  Parliament,  on  his  behalf,  complained
that:

(1) retrospective  payment  of  grant  aid 

leads 

to

unnecessary  extra  costs;

(2) it  was  unfair  for  the  Commission  to  demand  public
acknowledgement  when  giving  no  definite  promise  to
provide  funding;

(3) payment  of  the  full  amount  due  had  been  wrongly

refused;

(4) there  had  been  unnecessary  delay 

in  making

payment.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  The
Commission  began  its  comments  by  pointing  out  that  it

C  380/118

EN

Official  Journal  of  the  European  Communities

7.12.98

frequently  uses  intermediary  organisations  such  as  FIPA
to  manage  particular  aid  programmes.

In  summary,  the  Commission  commented  as  follows  on
the  four  aspects  of  the  complaint.

included  on 

1.  Mr C. was informed by FIPA that interest on the loan
could  be 
the
organisation’s  accounts.  He  was  happy  to  sign  the
contract  and  to  go  ahead  and  apply  for  financial
assistance.

the  deficit  side  of 

2.  Clauses  requiring  public  recognition  of  Community
aid  are  standard  practice.  There  is  a  definite  promise
to  provide  funding  if  the  organisation  concerned
respects  the  terms  of  its  contract.

if 

the  statement  of 

3.  On  the  basis  of  the  accounts  submitted  to  FIPA,
payment  of  the  sum  initially  granted  to  Mr  C.  (ECU
7 130)  would  have  resulted  in  a  profit,  defined  as  a
surplus  of 
income  over  expenditure.  This  was
forbidden  by  Article  3(1)  of  FIPA’s  convention  with
the  Commission.  Furthermore,  clause  6  of  Mr  C.’s
contract  with  FIPA  reserved  the  right  ‘to  waive  any
financial  aid, 
income  and
expenditure  does  not 
justify  utilisation  of  any
financial aid’. The need to avoid making a profit had
also  previously  been  made  clear  orally  to  Mr  C.  by
FIPA.  In  May  1995,  FIPA  paid  Mr  C.  an  advance  of
40 %  of  the  sum  initially  granted  (ECU  2 852).
Thereafter Mr C. was offered a final payment of ECU
2 155,  i. e.  the  balance  of  the  amount  of  grant  aid
offered  minus  the  apparent  profit  shown  in  the
accounts  and  the  advance  already  received.  Mr  C.
refused  to  accept  the  final  payment  that  was  offered.

4.  According  to  the  contract  between  the  Commission
and FIPA, the latter’s financial statements should have
been submitted by 31 December 1994. In fact, it was
received  only  on  12  September  1995.  This  delay  may
have  had  knock-on  effects  for  organisations  awaiting
payment  from  FIPA.  Responsibility  for  the  delay  lay
primarily  with  FIPA.

for  payment  of 

In  late  1994,  the  Commission  decided  to  apply  the
existing  arrangements 
financial
assistance  more  strictly.  Until  then,  an  individual
its  financial  statement  to
organisation  submitted 
FIPA,  as  and  when  it  was  ready.  FIPA  then  passed  it
on  to  DG  X  of  the  Commission.  Once  satisfied  that
the accounts were correct, the Commission would pay
an  appropriate  sum  to  FIPA  which  would,  in  turn,

pay it to the organisation. This arrangement placed a
very 
the
heavy 
Commission’s  services.

administrative 

burden 

on 

The  financial  service  in  DG  X  therefore  decided  to
implement a new method for the 1994 financial year.
Cases would no longer be dealt with on an individual
basis. FIPA would receive an advance of 40 %  of  the
overall  contribution,  but  would  only  receive  the
balance  of  60 %  once  it  had  submitted  its  overall
accounts.

FIPA  forwarded  Mr  C.’s  financial  statement  to  the
Commission  as  if  the  old  arrangement  still  applied.
Because the new arrangement now applied, DG X did
not  scrutinise  the  financial  statement,  since  they  had
instructions  to  commence  the  scrutiny  exercise  only
once  FIPA’s  overall  activity  report  and  detailed
accounts  had  been  submitted.

Mr  C.’s  repeated  telephone  enquiries  were  made  to
FIPA  not  the  Commission.

The  Commission  expressed  regret  for  the  delay,  but
that  such  problem  cases  are  rare.  The
stated 
Commission  also  stated  that  both  FIPA  and  the
Commission  have  learnt  from  the  case  the  need  for
explicit  communication  where  potential  problems
arise.

The  complainant’s  observations

Mr C.’s observations included, in summary, the following
points.

It  is  the  duty  of  any  charitable  organisation  to  run  their
affairs  cost  effectively.  This  does  not  include  taking  on
increased  costs  merely  because  the  bill  will  be  paid  by
another  organisation.  As  a  taxpayer,  he  did  not  accept
the  Commission’s  attitude  on  this  point.

As  a  result  of  the  delays  by  FIPA  and  the  Commission,
the  final  payment  was  offered  some  months  after  the
organisation  had  already  closed  down  after  having
completed its work. There was therefore no possibility of
accepting it.

The  Commission  should  have  apologised  for  the  delay
which  had  occurred.

The  decision

1. 

Retrospective  payment

1.1.  The  contract  between  the  complainant  and  FIPA
provided  only  for  retrospective  payment  of  grant
aid. It appeared therefore that FIPA was entitled to
refuse to make an advance payment and, therefore,
that  there  was  no  maladministration  in  relation  to
this  aspect  of  the  complaint.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/119

1.2.  The  complainant’s  observations  raised  the  general
issue  that  retrospective  payment  could  result  in
increased  costs  to  the  Community  taxpayer.  In
specifying  the  financial  conditions  for  Community
grant  aid,  the  Commission  must  comply  with  the
Financial  Regulation,  including  the  requirement  of
sound  financial  management.  The  Commission’s
activities  are  subject  to  supervision  in  this  regard
by  the  Court  of  Auditors  and  the  European
Parliament.  There  appeared,  therefore,  to  be  no
grounds  for  the  Ombudsman  to  inquire  into  this
general issue.

2. 

The  requirement  to  acknowledge  Community
grant  aid

2.1. 

It  appeared  to  be  standard  practice  to  require
public  recognition  of  Community  grant  aid.

2.2.  Community  grant  aid  is  only  paid  in  accordance
with  the  terms  of  the  contract.  The  promise  of
than
is 
funding 
definite.  However, 
the
it 
Commission’s  comments  that  it  considers  that
fulfilment of the conditions is within the control of
the  recipient.

therefore  conditional  rather 
from 

appeared 

2.3. 

It does not appear to be unfair for the Commission
to  require  public  recognition  of  conditional
Community  grant  aid 
the
conditions  is  within  the  control  of  the  recipient.

fulfilment  of 

if 

2.4.  There  appeared, 

to  be  no  mal-
therefore, 
administration  in  relation  to  this  aspect  of  the
complaint.

3. 

The  amount  of  grant  paid

3.1.  By  letter  dated  4  June  1995,  Mr  C.  had  thanked
FIPA  for  payment  of  the  40 % advance and stated
that the organising committee had decided to close
the  accounts,  had  made  alternative  arrangements
to  settle  its  outstanding  loan,  and  no  longer
required the balance of the grant from FIPA. There
appeared,  therefore,  to  be  no  existing  contractual
dispute  between  Mr  C.  and  either  FIPA  or  the
Commission.

3.2. 

It was appropriate for the Ombudsman to examine
whether,  in  its  dealings  with  the  complainant
concerning  the  amount  of  grant  aid  payable,  the
Commission  acted  in  accordance  with  normal
standards  of  good  administrative  behaviour,
including  having  a  clear  legal  basis  for  its  actions.

grant  was  reduced  by  an  amount  equal  to  the
amount by which Mr C.’s accounts showed income
as  exceeding  expenditure  (profit).  In  justifying  the
reduction,  the  Commission  referred  to  Article  3(1)
of FIPA’s Convention with the Commission and to
clause  6  of  the  complainant’s  contract  with  FIPA.
It  also  stated  that  FIPA  had  made  clear  to  Mr  C.
orally  the  need  to  avoid  making  a  profit.

3.4.  A  provision  of  the  contract  between  FIPA  and  the
Commission  does  not  appear  to  provide  a  legal
basis for reducing a payment due under a contract
between  FIPA  and  Mr  C.

3.5.  Clause  6  of  Mr  C.’s  contract  with  FIPA  required
him ‘to waive any financial aid, if the statement of
income and expenditure does not justify utilisation
of any financial aid’. As noted in paragraph 2.2, it
appears  from  the  Commission’s  comments  that  it
considers  that  fulfilment  of  the  conditions  of  the
grant  aid  contract  is  within  the  control  of  the
recipient.  It  would  be 
inconsistent  with  this
approach  to  interpret  clause  6  of  the  contract  as
conferring  on  FIPA  power  to  reduce  the  grant  by
reference  to  conditions  which  have  not  been  made
clear  to  the  recipient  in  advance.

3.6.  The  Commission’s  claim  that  the  need  to  avoid
making a profit was made clear by FIPA orally was
not  contradicted  by  Mr  C.  However,  normal
principles of good administrative behaviour require
that  a  condition  imposed  on  an  offer  of  grant  aid
should  be  mentioned  in  writing,  so  that  the
authority  concerned  can  satisfy  itself  and  others
that  the  condition  has  been  communicated  to  the
recipient  of  the  grant.  It  appeared  that  the
Commission  fell  below  normal  standards  of  good
administrative  behaviour  in  this  case  by  relying
exclusively  on  oral  communication  of  such  a
condition.

3.7.  Furthermore, 

it 

is  not  obvious 

that  oral
communication  can  provide  a  legal  basis  for  the
contractual  validity  of  such  a  condition.  The
in
Commission  had  not,  therefore,  succeeded 
demonstrating  that  its  actions  in  relation  to  this
aspect  of  the  case  had  a  clear  legal  basis.

4. 

Administrative  delay  in  making  payment

3.3. 

In  its  comments,  the  Commission  explained  the
basis  on  which  the  final  payment  that  was  offered
had  been  calculated.  The  amount  of  the  original

4.1. 

In  its  comments,  the  Commission  acknowledged
that  organisations  awaiting  payment  may  have

C  380/120

EN

Official  Journal  of  the  European  Communities

7.12.98

should  have  been 

been  affected  by  the  fact  that  FIPA’s  accounts,
which 
submitted  on  31
December  1994,  were  not  submitted  until  12
September  1995.  According  to  the  Commission,
responsibility  for  the  delay  lay  primarily  with
FIPA.

4.2. 

It  appeared  from  the  Commission’s  reply  that,  in
the  specific  case  of  the  complainant,  the  delay
occurred  following  new  arrangements  introduced
by  the  Commission  for  the  approval  of  accounts.
According to the Commission, FIPA forwarded the
Mr  C.’s  financial  statement  to  the  Commission  as
if the old arrangements still applied. Because of the
new  arrangements,  DG  X  did  not  scrutinise  the
financial  statement  when  it  arrived  because  they
had  instructions  to  wait  until  FIPA  submitted  its
own  accounts.  According  to  the  Commission,  Mr
C.’s  repeated  telephone  enquiries  about  the  matter
were  made  to  FIPA,  not  the  Commission.

4.3. 

In  its  comments,  the  Commission  expressed  regret
for  the  delay  that  occurred.  No  further  remark  by
the  Ombudsman 
to  be
therefore 
necessary.

appears 

Conclusions

The  Commission  stated  in  its  comments  that  both  FIPA
and  the  Commission  have  learnt  from  this  case  the  need
for  explicit  communication  where  potential  problems
arise.  However,  on 
the  European
Ombudsman’s  inquiries  into  this  complaint,  it  appeared
necessary  to  make  the  following  critical  remarks.

the  basis  of 

Normal  principles  of  good  administrative  behaviour
require that a condition imposed on an offer of grant aid
should  be  mentioned  in  writing,  so  that  the  authority
concerned  can  satisfy  itself  and  others  that  the  condition
has  been  communicated  to  the  recipient  of  the  grant.  It
appears that the Commission fell below normal standards
of  good  administrative  behaviour  in  this  case  by  relying
exclusively  on  oral  communication  of  such  a  condition.
Furthermore,  it  is  not  obvious  that  oral  communication
can  provide  a  legal  basis  for  the  contractual  validity  of
such  a  condition.  The  Commission  has  not,  therefore,
succeeded  in  demonstrating  that  its  actions  in  relation  to
this  aspect  of  the  case  have  a  clear  legal  basis.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

Further  remarks

The Commission’s comments in this case pointed out that
it  frequently  uses  intermediary  organisations  to  manage
particular  aid  programmes.

At  a  number  of  points,  the  Commission’s  comments
could  be  interpreted  as  implying  that,  if  an  intermediary
organisation  fails  to  act  in  accordance  with  normal
standards  of  good  administrative  behaviour, 
the
Commission  is  not  responsible  for  the  failure.

In  cooperating  with  the  Ombudsman’s  inquiries  it  is
essential  for  the  Commission  to  specify  exactly  how  and
where  any  failure  to  comply  with  normal  standards  of
good  administrative  behaviour  has  occurred.  This  can
and  should  include  making  clear,  if  appropriate,  that  the
failure  has  occurred  within  an  intermediary  organisation
rather  than  in  the  Commission’s  own  services.

The  Commission  remains  responsible,  however,  for  the
quality of the administration which it carries out through
an  intermediary  organisation.

RECRUITMENT:  CRITERIA  OF  EVALUATION  AND
DISCLOSURE  OF  NAMES  OF  CORRECTORS

Decision  on  complaint  659/24.6.96/AEKA/FIN/IJH
against  the  European  Commission  and  the  European
Parliament

The  complaint

In  June  1996,  the  Central  Union  of  Special  Branches
within  AKAVA  (the  Central  Trade  Union  of  Academic
Professions  in  Finland)  complained  to  the  Ombudsman
about  a  recruitment  of  Finnish  translators  and  assistant
translators.

The  Central  Union  stated  that  altogether  17  translators
working  for  the  Commission  Representation  in  Helsinki
participated  in  an  open  competition  organised  jointly  by
the  European  Commission  and  the  European  Parliament
and  that  16  of  them  were  rejected.

The  Central  Union  complained  that:

1.  candidates  were  unable  to  obtain  information  about

the  criteria  of  evaluation;

2.  neither 

the 

requirements 

for 

the 

selection  of

correctors  nor  their  names  were  made  public;

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/121

3.  according  to  information  it  had  received,  translators
from  Finnish  into  French  were  treated  particularly
severely, as only two to three translators were selected
for  the  oral  examination;

2.  Communicating  the  results  obtained  is  a  sufficient
reasoning  to  a  rejected  candidate.  In  the  competition
in question, all necessary reasoning had been given to
the  candidates.

4.  it  was  necessary  to  increase  transparency  both  in
order  to  protect  the  candidates’  legal  rights  and  to
ensure  equal  treatment.

The Central Union noted that for purposes of economy it
would  seem  more  reasonable  to  re-examine  the  rejected
candidates’  scripts  than  to  organise  a  new  competition.

The  inquiry

The  complaints  were  forwarded  to  the  Commission  and
the Parliament.

The  Commission’s  comments

In  summary,  the  Commission  made  the  following
points.

1.  The  translators  for  the  Commission  representation  in
Helsinki  had  been  recruited  on  the  basis  of  a  written
translation  test  and  an  interview,  not  through  an
open  competition.

2.  The  basic  principle  underlying  open  competitions  is

that  of  equality  of  treatment  of  all  candidates.

3.  For  each  competition  a  selection  board  is  appointed
which  works  independently  and  confidentially.  The
selection  board  is  composed  of  representatives  of  the
administration  and  the  staff  committees.  In  order  to
protect  the  independence  of  the  selection  board  and
identity  of  the
to  avoid  external  pressure,  the 
members  of  the  selection  board  is  not  disclosed.

4.  The  selection  board  appoints  correctors  for  the
written  tests.  In  order  to  assure  a  high  quality  of
assessment  the  selection  board  appoints  competent
and  experienced 
linguists  as  correctors.  Each
examination  paper  is  assessed  independently  by  at
least  two  correctors.

5.  The anonymity of the candidates is assured during the

marking  of  the  written  tests.

Parliament’s  comments

Parliament  made,  in  summary,  the  following  points.

1.  The  selection  board  had  corrected  the  candidates’
scripts  impartially.  At  least  two  correctors  evaluated
each  script  on  the  basis  of  the  criteria  of  evaluation
established  by  the  selection  board.

3.  The complainant’s allegation concerning the degree of
difficulty  between  different 
languages  did  not
correspond  to  the  facts.  All  languages  had  been
allegation
treated 
concerning  the  number  of  successful  translators  from
Finnish  into  French  was  not  correct,  as  their  number
had  been  considerably  higher.

Furthermore, 

equally. 

the 

4.  Disclosure  of  the  identity  of  members  of  selection
boards  and  correctors  to  all  candidates  was  not
consistent  with  the  confidentiality  of  the  work  of
selection  boards,  for  which  the  Staff  Regulations  and
the  established  case-law  provide.  Confidentiality
enables  selection  boards  to  work  independently  and
impartially.  Parliament  had  followed  all  the  rules
concerning  the  selection  of  correctors.

5.  Parliament  could  not  accept  the  Central  Union’s
suggestion  to  upgrade  the  marks  awarded  in  the
competition.

6.  In any case the rejected candidates had a possibility to
participate  again  in  competitions  to  be  organised  at
the  end  of  1996.

The  complainant’s  observations

In  its  observations  the  Central  Union  maintained  its
complaint.  As  regards  Parliament’s  comments,  the  Union
stated  that  it  had  not  requested  the  upgrading  of  marks,
but  only  their  re-examination.

The  decision

1. 

The  criteria  of  evaluation  applied 
competition

in 

the

1.1. 

selection  boards,  in  accordance  with  the  case-law
of  the  Court  of  Justice  and  principles  of  good
administrative 
provide
applicants with the reasons and elements necessary
for  understanding  the  decisions  they  take.

behaviour, 

should 

1.2.  The  Ombudsman  considered  it  insufficient  that,
despite  the  Central  Union’s  requests,  neither  the
Commission nor Parliament gave out more detailed
information  on  the  criteria  of  evaluation  of  the
selection  boards.

1.3.  The  Ombudsman  had  received  a  number  of
complaints  within  the  field  of  recruitment  for  the
complaints
Community 

institutions. 

These 

C  380/122

EN

Official  Journal  of  the  European  Communities

7.12.98

the  procedures.  Among  other 

concerned,  in  particular,  the  lack  of  transparency
in 
the
complainants had complained about not being able
to  obtain 
the  criteria  of
information  about 
evaluation,  despite  their  requests.

things 

1.4.  According 

to  Article  138e  of 

the  European  Community, 

the  Treaty
Establishing 
the
European  Ombudsman  is  empowered  to  conduct
inquiries  on  his  own  initiative  in  relation  to
possible  instances  of  maladministration  in  the
activities  of 
institutions  and
bodies.  By  virtue  of  this  provision,  he  opened  an
inquiry  on  7  November  1997
own-initiative 
concerning 
the
the  procedures 
Commission  in  its  recruitment  of  personnel.

the  Community 

followed  by 

1.5. 

this 

inquiry, 

the  Ombudsman  draws 

In 
the
Commission’s  attention  to  the  fact  that,  by
communicating 
information  on  the  criteria  of
evaluation  to  the  applicants,  the  Commission
would  considerably  increase  the  transparency  in
the  recruitment  and  could  also  alleviate  the  work
of  selection  boards  in  dealing  with  queries  and
complaints  from  applicants.

behaviour,  should  provide  applicants  with  the  reasons
and  elements  necessary  for  understanding  the  decisions
they  take.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

Further  remarks

The  Ombudsman’s  inquiries  into  this  complaint  and
other  complaints  on 
the  recruitment  of  personnel
indicated  that  it  was  appropriate  to  initiate  a  more
general  investigation  on  the  matter.

On  7  November  1997  the  Ombudsman  opened  an
inquiry on his own initiative into the procedures followed
by  the  Commission  in  the  recruitment  of  personnel.

2. 

Disclosure  of  names  and  criteria  of  selection  of
correctors

RECRUITMENT:  PROCEDURES  IN  AN  OPEN
COMPETITION

2.1. 

for  considering 

In  the  present  state  of  Community  law  there  is  no
the
legal  basis 
Commission  or  Parliament  is  under  an  obligation
to  disclose  the  names  and  the  criteria  of  selection
of  correctors  to  a  candidate  who  so  requests.

that  either 

2.2.  As  part  of 

this  own-initiative 

inquiry, 
investigate  whether 

the
Ombudsman  will 
the
Commission  envisages  taking  measures  in  order  to
allow  the  disclosure  of  names  of  correctors  to  the
candidate  concerned.

3. 

Choice  of  language  and  equal  treatment  of  the
candidates

3.1.  The  Ombudsman’s 

inquiries  did  not 

reveal
sufficient  evidence  to 
instance  of
maladministration  either  by  the  Commission  or
Parliament in the treatment of candidates based on
their  choice  of  language.

indicate  an 

Conclusions

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
complaint,  it  appeared  necessary  to  make  the  following
critical remarks.

Selection  boards,  in  accordance  with  the  case-law  of  the
Court  of  Justice  and  principles  of  good  administrative

Decision  on  complaint  675/1.7.96/AL/FIN/KT  against
the  European  Commission

The  complaint

In  June  1996,  Ms  L.  complained  to  the  Ombudsman
concerning  the  procedures  followed  by  the  Commission
in  a  recruitment  competition.

She  participated  in  open  competition  COM/A/907  and
was  among  40  candidates  who  were  invited  to  the  oral
examination. However, she was not placed on the reserve
list. In July 1995, the Commission informed Ms L. of the
results  specifying  the  marks  she  had  obtained.  On  17
August  1995,  Ms  L.  wrote  to  the  chairman  of  the
selection board requesting that her marks be re-examined
and  asking  for  copies  of  her  corrected  examination
papers.

Ms  L.  complained  to  the  Ombudsman  that:

(1) she  had  received  no  reply  to  her  letter  of  17  August

1995;

(2) the  selection  board  had  refused  to  provide  her  with

copies  of  her  corrected  examination  papers;

(3) she  was  never  given  any  information  about  the
criteria  of  evaluation  or  grading  scale  applied  by  the
selection  board.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/123

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

1.  The  notice  of  competition  foresaw  that  a  maximum
of  20  applicants  would  be  placed  on  the  reserve  list.
Some  40  candidates  were 
the  oral
examination  following  success  in  the  written  tests.
The marks awarded by the selection board meant that
Ms  L.  was  not  among  the  20  best  candidates.

invited 

to 

2.  In  a  letter  dated  27  June  1996,  Ms  L.  stated  that  she
had  sent  a  letter  to  the  Commission  on  17  August
1995  asking  for  the  re-examination  of  her  file  and
requesting  that  her  examination  papers  would  be
returned.  The  Commission’s  Recruitment  Unit  then
examined  Ms  L.’s  file,  but  did  not  find  her  letter  of
17  August  1995.

3.  Ms  L.  wrote  to  the  chairman  of  the  selection  board
on  9  May  1996  enclosing  a  copy  of  her  letter  of  17
August 1995. The Commission replied to the letter of
9 May 1996 on 13 September 1996. In this letter, the
Commission  apologised  for  the  delay  in  replying  Ms
L.’s  letter  of  9  May  1996.

1.2.  The  Commission  had  stated  in  its  opinion  that  it
had  not  found  the  complainant’s  letter  of  17
August  1995.

1.3.  The  principles  of  good  administration  require  that
a  letter  which  has  arrived  at  the  Commission
should be answered. The fact that the Commission
had  lost  the  complainant’s  letter  of  17  August
1995 constituted an instance of maladministration.
The Ombudsman therefore drew the Commission’s
attention  to  the  fact  that  it  should  make  sure  that
such  instances  should  not  occur  in  the  future.

2. 

Copies  of  examination  papers

2.1.  The  Staff  Regulations  provide  that,  for  each
competition,  a  selection  board  is  appointed  which
works  independently  and  confidentially.  In  the
present  state  of  Community  law,  there  is  no  legal
basis for considering that the Commission is under
an  obligation  to  disclose  a  copy  of  corrected
examination  script  to  the  candidate.

2.2.  The European Ombudsman had received a number
of complaints within the field of recruitment to the
Community institutions. These complaints concern,
in  particular, 
the
procedures.  Among  other  things,  the  complainants
had  complained  about  not  being  able  to  obtain
copies  of  corrected  examination  scripts  upon
request.

transparency 

lack  of 

in 

The  complainant’s  observations

Ms  L.  maintained  her  complaint.  She  annexed  a  certified
copy  of  a  receipt  for  registered  mail  dated  22  August
1995.  This  letter  was  addressed  to  the  Chairman  of
Competition  COM/A/907  at  the  European  Commission
DG  IX.

2.3.  According  to  Article  138e  of  the  EC  Treaty,  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,  he  opened  an  own-initiative  inquiry
on  7  November  1997  concerning  the  procedures
followed  by  the  Commission  in  its  recruitment  of
personnel.

Furthermore,  Ms  L.  pointed  out  that  she  had  not  asked
for  her  examinaton  papers  to  be  returned,  as  mentioned
in  the  Commission’s  opinion,  but  only  copies  of  her
corrected  examination  papers  and  their  evaluation,  in
order  to  enable  her  to  familiarise  herself  with  them  and
to  analyse  them  for  the  future.

2.4.  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
candidate  concerned.

The  decision

3. 

The criteria of evaluation applied by the selection
board

1. 

Loss  of  a  candidate’s  letter

1.1.  The  complainant  had  provided  the  Ombudsman
with  a  certified  copy  of  receipt  for  registered  mail
of  her  letter  sent  on  22  August  1995.

3.1.  Selection  boards,  in  accordance  with  the  case-law
of  the  Court  of  Justice  and  principles  of  good
administrative  behaviour,  shall  provide  applicants
with  the  reasons  and  elements  necessary  for
understanding 
take.  The
Ombudsman  considered  it  insufficient  that  the

the  decisions 

they 

C  380/124

EN

Official  Journal  of  the  European  Communities

7.12.98

Commission  did  not,  despite  the  complainant’s
requests, provide more detailed information on the
criteria  of  evaluation  used  by  the  selection  board.

RECRUITMENT:  INFORMATION  OF  APPLICANT

Decision  on  complaint  686/3.7.96/GR/D/VK  against  the
European  Commission

3.2.  The Ombudsman drew the Commission’s attention
to the fact that, by communicating information on
the  criteria  of  evaluation  to  the  candidates,  the
Commission  would  increase  transparency  in  the
recruitment  procedure  considerably  and  could  also
alleviate  the  work  of  selection  boards  in  dealing
with  queries  and  complaints  from  candidates.

The  complaint

In  July  1996,  Mr.  R.  complained  to  the  Ombudsman
about  lack  of  information  and  considerable  delays  in  a
competition  procedure  of  the  Commission.

Conclusions

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared,  necessary  to  make  the
following  critical  remarks.

The principles of good administration require that a letter
which  has  arrived  at 
the  Commission  should  be
answered.  The  fact  that  the  Commission  had  lost  the
complainant’s  letter  of  17  August  1995  constituted  an
instance  of  maladministration.  The  Ombudsman
therefore  drew  the  Commission’s  attention  to  the  fact
that  it  should  make  sure  that  such  instances  should  not
occur  in  the  future.

Selection  boards,  in  accordance  with  the  case-law  of  the
court and principles of good administrative conduct, shall
provide  applicants  with 
the  reasons  and  elements
necessary  for  understanding  the  decisions  they  take.  The
the
Ombudsman 
Commission  did  not,  despite  the  complainant’s  requests,
provide  more  detailed  information  on  the  criteria  of
evaluation  used  by  the  selection  board.

insufficient 

considered 

that 

it 

Given that these aspects of the case concerned procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

the 

field  of  biotechnology.  He 

The  complainant  participated  in  a  competition  for  posts
in 
received  an
acknowledgement  of  receipt  four  months  after  he  had
sent  in  his  personal  documents.  Over  a  period  of  two
years  he  did  not  receive  any  other  information  from  the
Commission. His regular requests for further information
about  the  recruitment  procedure  resulted  only  in  the
sending  of  the  same  receipt  form.  The  complainant
stressed  that  the  selection  procedure  appeared  to  be  too
lengthy.  He  doubted  that  the  procedure  was  carried  out
correctly  and  that  his  file  was  being  properly  examined.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments  the  Commission  stated  that  the  selection
procedure  was  meant  to  establish  a  reserve  list  of
temporary  agents.  The  list  should  enable  the  different
services  of  the  Commission  to  choose  candidates.  The
candidates neither have a legal claim to be invited for an
interview  nor  do  successful  participants  have  a  claim  to
be employed. The delays were due to the large number of
participants  and  other  problems  originating 
in  the
composition  of  the  selection  board.  Mr.  R.’s  allegation
that  his  file  was  not  properly  examined  was  unfounded,
as  the  selection  board  inspected  every  application  file
separately.

Further  remarks

The  complainant’s  observations

The  Ombudsman’s  inquiries  into  this  complaint  and
other complaints concerning the recruitment of personnel
indicated  that  it  was  appropriate  to  initiate  a  more
general  investigation  into  the  matter.

the 

following  points: 

The  complainant  made 
the
Commission  seemed  not  to  have  acted  for  a  period  of
two  years;  the  research  sector  is  constantly  progressing
and  applicants  for  posts  in  this  field  therefore  need
up-to-date  qualifications;  the  considerable  delay  in  the
selection  procedure  was  incomprehensible.

On 7 November 1997 the European Ombudsman opened
an  inquiry  on  his  own  initiative  into  the  procedures
followed  by  the  Commission  in  the  recruitment  of
personnel.

Furthermore,  the  complainant  pointed  out  that,  in  view
the  general
of 

the  current  employment  situation, 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/125

job
notification  of  vacancies  with  a  rather  vague 
description  would 
flood  of
certainly 
applications.  The  Commission  could  have  expected  a
high  number  of  applications  and  should  have  taken
appropriate  measures  to  be  able  to  deal  with  them
accordingly.

initiate  a 

of  its  Community  law  obligations  towards  him.  As  a
result of his complaint, the Commission had an exchange
of  correspondence  with  the  Consumer  Affairs  Office  in
Ireland. On two occasions the complainant had asked the
Commission  for  copies  of  this  correspondence  but  was
denied  access.

The  decision

In  summary,  the  Commission  put  forward  the  following
reasons  for  refusing  access.

that 

from  February  1995  onwards, 

From  the  information  given  to  the  Ombudsman,  it
appears 
the
complainant  had  not  received  any  further  information
about  his  application.  As  a  participant,  he  was  naturally
interested  in  the  development  of  the  selection  procedure.
In  case  of  delays,  it  is  part  of  good  administrative
behaviour  to  inform  the  candidates  about  the  current
state  of  the  procedure  within  a  reasonable  amount  of
time,  particularly  when  the  candidate  himself  had
specifically  requested  such  information.  The  repeated
sending  of  the  same  acknowledgement  of  receipt  letter
did  not  appear  to  meet  the  need  for  information.

The  Commission  acknowledged 
that  a  delay  had
occurred.  It  stated  that  the  complainant  would  be
informed  personally  about  the  result  of  the  selection
committee.

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared  necessary  to  make  the
following  critical  remarks.

It is good administrative behaviour to reply to requests in
due  time.  In  the  present  case,  the  complainant  did  not
receive  any  information  for  the  period  of  at  least
one- -and -a -half -years.  The  complainant  should  have
been 
informed  by  the  Commission  on  the  current
situation  of  the  selection  procedure  when  he  inquired
about  it.  As  the  Commission  was  aware  of  the  fact  that
many  applicants  reply  to  notifications  for  vacancies,  it
should  have  dealt  with  the  matter  appropriately,  so  that
applicants would have been informed about the situation
in  reasonable  time.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

REFUSAL  OF  PUBLIC  ACCESS  TO  DOCUMENTS

Decision  on  complaint  709/9.7.96/TC/IRL/KT  against
the  European  Commission

The  complaint

Mr  C.  from  Ireland  complained  to  the  Ombudsman  in
July 1996 about the refusal of the European Commission
to grant him access to an exchange of letters between the
Commission  and  the  Office  of  Consumer  Affairs  in
Ireland.  Mr  C.  had  written  to  the  Commission  alleging
that the Consumer Affairs Office in Ireland was in breach

The  decision  on  public  access  to  Commission  documents
expressly  envisages  that  if  a  document  originates  from
outside  the  Commission  (e.g.  the  Consumer  Affairs
Office’s  letter  to  the  Commission),  the  application  must
be referred to its author; moreover, the Consumer Affairs
Office  had  requested  confidentiality.  Concerning  the
Commission’s  letter  to  the  Consumer  Affairs  Office,  the
Commission  maintained  that  disclosure  would  harm  the
Commission’s 
its
proceedings,  which  is  one  of  the  grounds  on  which  the
Commission  may  refuse  access  under  its  Decision  on
public  access  to  Commission  documents.

the  confidentiality  of 

interest 

in 

The  inquiry

The  Ombudsman  determined  that  the  issue  raised  was
within  his  mandate,  as  it  concerned  a  request  for  access
to  documents 
the  European
Commission.

the  possession  of 

in 

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments, the Commission maintained the reasons it had
originally  advanced  for  refusing  access  to  the  letter  from
the  Consumer  Affairs  Office 
the  Commission.
However,  concerning  the  Commission’s  letter  to  the
Consumer  Affairs  Office,  the  Commission  reviewed  its
original  decision  ‘in  the  light  of  two  years’  experience  in
applying 
to  documents’  and
considered  ‘that  it  could  accede’  to  Mr.  C.’s  request  for
access  to  the  letter,  which  was  consequently  enclosed
with  the  Commission’s  comments.

its  policy  on  access 

to 

The  complainant’s  observations

In  his  observations  on  the  Commission’s  comments,  the
complainant  indicated  that  he  had  asked  the  Consumer
Affairs  Office  for  a  copy  of  its  letter  to  the  Commission,
but  that  he  was  denied  access.  He  questioned  whether

C  380/126

EN

Official  Journal  of  the  European  Communities

7.12.98

policies on public access to documents should differ from
one  country  to  another.

The  decision

the ruling of the Court of First Instance in case T-194/94
Carvel  and  Guardian  Newspapers  v.  Council (2)  that  the
institutions,  when  invoking  the  confidentiality  of  their
proceedings,  have  to  balance  the  interests  of  citizens  in
gaining  access  to  their  documents  against  any  interest  of
their  own  in  maintaining  the  confidentiality  of  their
deliberations.

In his assessment of the complaint, the Ombudsman first
recalled  that  the  EC  Treaty  does  not  contain  a  provision
on transparency, nor is there any general rule, applicable
to  all  Community  institutions  and  bodies,  granting  a
general  right  of  public  access  to  documents,  He  also
recalled  that  he  only  has  jurisdiction  over  Community
institutions  and  bodies  and,  therefore,  national  policies
on  public  access  to  documents  are  outside  his  mandate.

It  did  not  appear  from  the  Commission’s  decision  to
refuse access to its own letter that it had undertaken such
balance.  In  the  course  of  the  Ombudsman’s  inquiries  the
Commission had itself taken steps to correct this error by
releasing  the  document  concerned.  The  Ombudsman
therefore  limited  himself  to  making  a  critical  remark  to
the  Commission  to  the  effect  that,  in  future,  it  should
comply  with  the  requirement  of  balance.

The  Commission  and  the  Council  agreed  a  code  of
conduct  on  public  access  to  documents  that  they  have
established  (hereinafter:  the  Code),  which,  as  far  as  the
implemented  by
concerned,  was 
Commission 
Commission  Decision  of  8  February  1994 (1).

is 

The  Ombudsman’s  inquiries  into  the  matters  raised  by
the  complainant  were  therefore  directed  towards  the
question  whether 
in
conformity  with  these  rules  when  refusing  access  to  the
correspondence  in  question.

the  Commission  had  acted 

The  relevant  provisions  of  the  Code  read  as  follows:

‘Where  the  document  held  by  an  institution  was
written  by  a  natural  or  legal  person,  a  Member  State,
another  Community  institution  or  body  or  any  other
national or international body, the application must be
sent  direct  to  the  author.

(The  institutions)  may  also  refuse  access  in  order  to
protect the institution’s interest in the confidentiality of
its  proceedings’.

Concerning  the  letter  from  the  Consumer  Affairs  Office
to the Commission, it appears from the quoted provisions
that  incoming  letters  to  the  Commission  are  outside  the
scope  of  application  of  the  Commission’s  Decision  on
public  access  to  documents.  The  Commission’s  decision
on  Mr.  C.’s  request  thus  appeared  to  be  in  conformity
with  the  applicable  rules.

As  for  the  Commission’s  letter  to  the  Consumers  Affairs
Office,  the  Ombudsman  remarked  that  it  follows  from

Against  this  background,  the  Ombudsman  closed  the
case.

RECRUITMENT:  APPEAL  AGAINST  DECISION  OF  A
SELECTION BOARD

Decision  on  complaint  773/29.7.96/SS/FIN/PD  against
the  European  Commission

The  complaint

In  July  1996,  Mr  S.  complained  to  the  Ombudsman  on
behalf  of  himself  and  three  other  experienced  translators
and  applicants.  The  complaint  concerned  a  general
competition,  organised  by 
for
Swedish-speaking translators (EUR/LA/76). Having failed
the  written  examination,  the  complainant  asked  the
selection  board  to  review  the  marking  and  to  forward
him  a  copy  of  the  corrected  examination  script.

the  Commission, 

In  his  complaint  to  the  Ombudsman,  Mr  S.  alleged  that
the  reply  sent  to  him  by  the  selection  board  on  14  May
1996  constituted  an  instance  of  maladministration.  In  its
letter, the selection board had stated that it had reviewed
the  marking  and  that  the  marking  had  been  done  in  a
correct and just way. As for the complainant’s request for
access  to  the  corrected  examination  script,  the  board
stated  that  unfortunately  it  could  not  grant  him  access,
taking  into  consideration  that  the  proceedings  of  the
board  were  confidential  and 
in  application  of  the
principle  of  equal  treatment  of  applicants.  In  his
complaint,  Mr  S.  also  requested  that  a  body  other  than
the  selection  board  should  review  the  marking  of  his
written  examination.

(1)  OJ  L  340,  31.12.1993,  p.  41  and  OJ  L  46,  18.2.1994,

p.  58.

(2)  [1995]  ECR-II  2765.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/127

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  in  general  that  the
marking  of  the  written  tests  in  a  competition  is  a
comparative  exercise  which  is  covered  by  the  statutory
obligation  of  secrecy  concerning  the  proceedings  of
selection  boards  and  that  the  Community  Courts  have
recognised  that  the  boards  have  a  significant  margin  for
appreciating  the  written  tests  of  the  applicants.

As  for  Mr  S.’s  case,  the  Commission  stated  that  the
selection  board  had  appointed  correctors  who  were
competent  and  experienced 
linguists  and  that  each
examination script had been assessed independently by at
least two correctors. The Board had subsequently decided
the  mark  awarded  to  each  candidate  and,  given  the
case-law  of  the  Community  Courts,  it  was,  ‘out  of  the
question  that  any  other  body  than  the  board  should
purport  to  determine  the  mark  of  the  applicants’.

The  decision

In  taking  a  stand  on  the  complainant’s  allegation
concerning  the  Commission’s  letter  dated  14  May  1996,
the  Ombudsman  firstly  remarked  that  the  Commission
referred  to  the  principle  of  equal  treatment  of  applicants
to 
justify  refusing  Mr  S.  access  to  his  corrected
examination  script.  This  principle  implies  that  identical
situations  shall  be  treated  equally  and  that  different
situations shall not be treated identically. The decision to
disclose or not a copy of the corrected examination script
to  applicants  is  a  decision  to  be  taken  within  the  legal
framework  laid  down  by  the  Staff  Regulations  and  the
case-law  of  the  Community  Courts,  and  the  principle
referred  to  does  not  appear  to  have  any  bearing  on  such
a  decision.  Furthermore,  the  Ombudsman  noted  that  the
Commission  had  not  reiterated  this  argument  in  its
comments  to  him.  Thus,  the  Ombudsman  found  the
Commission’s  reference  to  this  principle  in  its  answer  to
the complainant misleading and made a critical remark to
this  effect.

In  the  present  state  of  Community  law,  there  is  no  legal
basis  for  considering  that  the  Commission  is  under  an
obligation  to  disclose  a  copy  of  a  corrected  examination
script  to  an  applicant.  Having  regard  to  this  and  to  the
wide  discretion  of  selection  boards,  recognised  by  the
Community  Courts,  it  is  all  the  more  important  that  the
selection  boards  comply  with  the  legal  guarantees,  laid
down  by  the  Community  Courts,  and  with  principles  of
good  administrative  conduct.  In  its  reply  to  Mr  S.’s

request  for  a  review  of  its  decision,  the  selection  board
merely stated that it had ‘established that the marking of
his  examination  had  been  made  in  a  correct  and  just
way’.  It  did  not  provide  the  complainant  with  any
indication  as  to  which  elements  and  which  procedure
applied  had  led  to  this  result.  The  Ombudsman  found
this  unsatisfactory  and  he  therefore  made  a  critical
remark  to  the  Commission  to  the  effect  that  selection
boards,  with  due  consideration  to  the  Community
Courts’  case-law  and  principles  of  good  administrative
conduct,  should  provide  applicants  with  the  reasons  and
elements  necessary  for  understanding  the  decisions  they
take.

As  for  the  complainant’s  request  for  a  review  of  his
examination  script  by  a  body  other  than  the  selection
board,  the  Ombudsman  remarked  that  the  applicable
rules  in  force  do  not  provide  for  an  appeal  body  which,
within the framework of a competition, could review the
selection  board’s  marking  of  exams.

On  the  basis  of  the  above  findings,  the  Ombudsman
closed  the  case.

RECOGNITION  OF  DIPLOMA:  COMPLAINT  NOT
PROPERLY CONSIDERED

Decision  on  complaint  956/18.10.96/RM/B/PD  against
the  European  Commission

The  complaint

In  October  1996,  Mrs  B.  acting  through  a  Belgian
lawyer, made a complaint to the Ombudsman against the
Commission.

Mrs  B.,  a  Dutch  citizen  living  in  Belgium,  holds  a  Dutch
nursing  diploma  Diploma  Verpleegkundige  A  which  she
obtained  in  1965.  In  February  1994,  she  was  informed
by  the  Belgian  authorities  that  the  diploma  could  not  be
recognised  as  such.

In  April  1994,  Mrs  B.  lodged  a  complaint  with  the
Commission  about  this  refusal,  which  she  considered  to
be  contrary  to  Community  law.  She  considered  that
recognition  should  have  been  granted  under  Council
Directive  77/452/EEC  of  27  June  1977  concerning  the
mutual  recognition  of  diplomas,  certificates  and  other
evidence of the formal qualifications of nurses responsible
for  general  care,  including  measures  to  facilitate  the
effective  exercise  of  the  right  of  establishment  and
freedom  to  provide  services (1).

(1)  OJ  L  176,  15.7.1977,  p.  1.

C  380/128

EN

Official  Journal  of  the  European  Communities

7.12.98

Mrs  B.  complained  to  the  Ombudsman  because  she
found the Commission’s assessment and dealing with her
case  unsatisfactory.

assessment  set  out  above.  Finally,  the  Commission  stated
that it had informed Mrs B. about its legal assessment by
letter  of  25  November  1996.

The  inquiry

The  decision

The  Commission’s  comments

is  dependent  on 

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  Mrs  B.’s  diploma
was  delivered  before  Directive  77/452/EEC  became
applicable. Furthermore, mutual recognition of a diploma
under  77/452/EEC 
the  diploma’s
conformity with the requirements laid down by Directive
Council  77/453  of  27  June  1977  concerning  the
coordination  of  provisions  laid  down  by  law,  regulation
or  administrative  action  in  respect  of  activities  of  nurses
responsible  for  general  care (1).  Mrs  B.’s  diploma,
however,  concerned  an  education  which  was  not  in
conformity  with  the  minimum  criteria  laid  down  by
Directive  77/453.

The  Commission  further  stated  that  it  was  not  possible
for  Mrs  B.  to  benefit  from  the  provisions  of  Article  4  in
Directive 77/452/EEC concerning diplomas which do not
fulfil  all  requirements  laid  down  by  Council  Directive
77/453/EEC  as  she  was  not  able  to  provide  the  work
certificate  required  by  Article  4.

However,  on  the  basis  of  the  case-law  of  the  Court  of
Justice,  the  Commission  considered  that  the  Belgian
authorities  should  try  to  facilitate  Mrs  B.’s  access  to  her
profession  in  spite  of  the  inapplicability  of  the  Directive
to  her  case.  The  national  authorities  should  compare  the
diploma  in  question  with  the  requirements  set  out  in
Directive  77/453/EEC  and  indicate  to  the  citizen  which
qualifications  they  consider  missing.  By  supplying  this
information,  the  authorities  enable  the  citizen  to  decide
whether  to  acquire  the  qualifications  considered  missing.

requirements 

As  for  the  Commission’s  assessment  of  the  original
complaint  lodged  with  the  Commission,  it  appeared  that
the  Commission  shared  the  Belgian  authorities’  opinion
that  the  diploma  in  question  did  not  comply  with  the
minimum 
laid  down  by  Directive
77/453/EEC. In that case, it followed clearly from Article
4  of  Directive  77/452/EEC  that  the  diploma  could  only
be  recognised  if  it  was  accompanied  by  a  certificate.  The
certificate  should  have  been  to  the  effect  that  the  holder
had  been  ‘engaged  in  the  activities  of  nurse  responsible
for  general  care  for  at  least  three  years  during  the  five
years  prior  to  the  date  of  issue  of  the  certificate’.

Where  access  to  a  profession  and  mutual  recognition  of
diplomas  has  not  been  subject  to  regulation  by  the
Community  legislator,  the  right  to  freedom  of  movement
must  be  exercised  directly  on  the  basis  of  the  relevant
Treaty  provisions,  in  this  case  Articles  48  and  52  of  the
EC  Treaty.  These  provisions  have  direct  effect  and  can
thus  be  applied  by  national  courts.  The  Court  of  Justice
has  detailed  the  obligations  that  the  Treaty  provisions
impose  on  national  authorities  in  such  situations (2).  The
Court  has  held  that:

‘when  the  competent  authorities  of  a  Member  State
receive  a  request  to  admit  a  person  to  a  profession  to
which  access,  under  national  law,  depends  on  the
possession of a diploma or a professional qualification,
they  must  take 
into  consideration  the  diplomas,
certificates  and  other  evidence  of  qualifications  which
the person concerned has acquired in order to exercise
the  same  profession  in  another  Member  State  by
making  a 
specialised
knowledge and abilities certified by those diplomas and
the  knowledge  and  qualifications  required  by  national
rules’.  (Ruling  in  Aranitis,  paragraph  31).

comparison  between 

the 

As  for  its  dealing  with  the  case,  the  Commission  stated
that it had submitted the case as well as others similar to
the Committee of Senior Officials on Public Health which
had  been  set  up  by  the  Directives  in  order  to  examine
difficulties  in  the  application  thereof.  Furthermore  it
enumerated  its  numerous  contacts  with  the  Belgian  and
the Dutch authorities about these cases. The Commission
indicated  that  it  was  not  until  autumn  1996  that  the
Committee  of  Senior  Officials  reached  its  conclusions,
which  were  in  conformity  with  the  Commission’s  legal

(1)  OJ  L  176,  15.7.1977,  p.  8.

to  be
the  Commission’s  position  appeared 
Thus, 
grounded. It must be recalled, however, that the Court of
Justice 
the  highest  authority  on  questions  of
Community  law.

is 

The  Ombudsman’s  inquiries  into  this  complaint  did  not,
therefore, reveal any instance of maladministration by the
Commission  in  the  interpretation  of  the  two  Directives.

(2)  Case  C-164/94,  Aranitis,  [1996]  ECR-I  135,  case  C-104/91,
Aguirre  Borrel,  [1992]  ECR-I  3003  and  case  C-340/89,
Vlassopoulou,  [1991]  ECR-I  2357.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/129

As  for  the  Commission’s  dealing  with  the  complaint,  it
appeared  from  the  enumeration  in  the  Commission’s
opinion  of  its  contacts  with  national  authorities  about
this  case  and  similar  ones  that  the  Commission  actively
processed the complaint. However, it also appeared from
the complaint and the Commission’s opinion that at least
one  whole  year,  the  complainant  was  not  kept  informed
of  the  Commission’s  dealings.

The  inquiry

The  Commission’s  comments

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
aspect  of  the  complaint,  it  appeared  necessary  to  make
the  following  critical  remarks.

itself 

require 

to  which 

is  committed, 

the
Principles  of  good  administration, 
Commission 
that  a
complainant  is  regularly  informed  about  the  ongoing
processing  of  his  complaint.  The  Commission  should
therefore  have  kept  the  complainant  regularly  informed
about  its  dealing  with  the  complaint.  Thus,  to  leave  the
complainant  without  any  information  for  a  whole  year
does  not  appear  to  be  in  conformity  with  the  said
principles.

to 

in  statistics 

technical  assistance 

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  indicated  that  the  project  on
‘price statistics in construction’ was part of a programme
the  TACIS
of 
countries.  According  to  the  programme,  most  work  was
carried  out  by  the  national  statistics  institutes  of  the
Member  States  (MSNSIs).  Calls  for  interest  to  be  funded
through  the  programme  were  to  be  assessed  and
answered  by  an  advisory  steering  group  chaired  by  the
Commission,  with  the  participation  of  the  TACIS
countries  national  statistical  offices  as  well  as  MSNSIs.
Private  companies  were  invited  to  participate  only  if  no
MSNSI  was  willing  and  able  to  carry  out  the  work.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

SELECTION  OF  A  CONSULTANT  TO  CARRY  OUT  A
TACIS  PROJECT

Decision  on  complaint  999/7.11.96/SN/UK/JMA  against
the  European  Commission

The  complaint

In  November  1996,  Mr  Stan  Newens,  Member  of  the
European  Parliament,  transmitted  a  complaint  to  the
Ombudsman  on  behalf  of  Mr  M.  regarding  the  allegedly
inefficient and unethical practices of the representative of
the  Commission  in  charge  of  a  project  funded  through
the  TACIS  programme.

The  complainant  put  forward  three  claims.

1.  In  his  view  the  EU  institutions  failed  to  establish  and

keep  to  realistic  deadlines  for  the  project.

2.  The  project  conditions  were  unsatisfactory; 

in
particular,  time  allocations  for  certain  activities  were
inadequate  and  fees  payable  to  consultants  were  too
low.

3.  The methodology he had developed for the project in
his  preparatory  work  was  handed  on  to  others.

The project on ‘price statistics in construction’ came as a
result of a request from several central Asian countries in
October 1994. Since no MSNSIs were ready to carry out
the  work,  representatives  from  the  UK  Central  Statistical
Office  (CSO/UK)  took  the  initiative  of  approaching  Mr
M.’s consultancy firm (DLC) to explore its interest in the
project.  After  DLC  had  been  identified  as  a  potential
partner,  the  file  had  to  wait  until  sufficient  budgetary
resources became available.

As  soon  as  resources  became  available  in  March  1996,
DLC  was  asked  to  make  a  specific  proposal,  that  was
submitted  in  May  1996.  It  was  considered  too  expensive
and,  after  some  negotiations,  DLC  did  not  accept  the
financial  conditions  which  TACIS  offered.  These
conditions  were  in  line  with  the  Commission’s  efficiency
guidelines  for  the  TACIS  statistical  programme.

The  Commission  then  tried  again  to  involve  an  MSNSI
within the framework of the steering group. In September
1996,  the  German  Federal  Statistical  Office  accepted
responsibility  for  the  project.  DLC  was  immediately
informed  of  the  new  situation.

The proposal submitted by DLC was not handed over to
other  competitors.  However,  in  the  course  of  discussion
on  the  project,  the  text  had  naturally  come  to  the
attention  of  all  interested  parties.  The  implementation  of
the  project  was  not  based  on  this  text,  since  the  German

C  380/130

EN

Official  Journal  of  the  European  Communities

7.12.98

Federal  Statistical  Office  followed  its  own  approach  for
the  statistical  field  in  question.

No  observations  were  received  from  the  complainant.

primarily intended to finance work by national statistical
offices  of  the  Member  States  and  that  private  firms  were
only  invited  to  take  part  if  the  national  statistical  offices
were  unable  or  unwilling  to  carry  out  the  work.

The  decision

1.  Length  of  the  negotiations

It  similarly  appeared  that  the  national  statistical  offices
were  involved  in  the  steering  group  which  considered
funding  proposals  and  so  they  would  normally  receive
the  texts  of  proposals  made  by  private  companies.

On  the  basis  of  the  Ombudsman’s  inquiries,  it  appeared
that  DLC  was  first  contacted  about  the  project  on  price
statistics  in  construction  in  November  1994.  However,
for  budgetary  reasons,  the  Commission  made  no  final
commitment  to  fund  the  project  until  March  1996.  DLC
was then invited to submit a specific proposal which was
received in May 1996. The final decision that the project
should  be  carried  out  by  the  German  Federal  Statistical
Office  was  made  in  October  1996.

informed 

When  DLC  was  invited  to  submit  a  proposal,  the
Commission 
the
should  have  expressly 
consultancy  both,  that  its  proposal  would  be  transmitted
to  national  statistical  offices  and  that,  if  a  national
statistical  office  expressed  a  wish  to  carry  out  the  work,
it  would  be  given  preference.  This  would  have  avoided
any  possibility  of  the  consultancy  being  misled  into
thinking  that  its  dealings  with  the  Commission  in  this
matter were governed by normal principles of fair dealing
in  tendering  for  contracts.

It  therefore  appeared  that  the  main  reason  for  delay  was
that  sufficient  budgetary  resources  were  not  available  for
the  project.

As  a  result,  there  seemed  to  be  no  evidence  of
unnecessary  administrative  delay  by  the  Commission  or
its  agents.

2.  The  project  conditions

In  its  comments  the  Commission  stated  that  the  project
conditions  were  in  line  with  the  Commission’s  efficiency
guidelines  for  the  TACIS  statistical  programme.  No
evidence  had  been  presented  to  the  Ombudsman  to
contradict  this  statement.  The  contents  of  the  efficiency
guidelines  are  a  matter  for  the  Commission,  which  is
subject  to  supervision  by  the  Court  of  Auditors  and  the
European  Parliament  as  regards  issues  of  sound  financial
management.

However,  when  it  agreed  to  contacts  being  made  with
DLC  on  its  behalf,  the  Commission  should  have  ensured
that  the  consultancy  was  informed  about  the  conditions
of  a  possible  future  contract.  This  would  have  avoided
any possibility that DLC might be misled about the scope
for  negotiating  such  conditions,  because  it  was  not
dealing  directly  with  the  Commission.

3.  Handing  on  of  the  complainant’s  proposal  to  others

From  the  evidence  provided  by  the  Commission,  it
appeared  that  the  relevant  TACIS  programme  was

However,  the  Commission  stated  that  implementation  of
the  project  by  the  Federal  Statistical  Office  of  Germany
was  not  based  on  the  text  of  the  DLC  proposal.  No
evidence  was  provided  to  the  Ombudsman  to  contradict
this claim.

Conclusions

In view of the above findings the Ombudsman considered
it  necessary  to  make  the  following  critical  remarks.

1.  When  it  agreed  to  contacts  being  made  with  the
complainant’s  firm  on  its  behalf,  the  Commission
should  have  ensured  that  the  consultancy  was
informed  of  the  conditions  of  a  possible  future
contract. This would have avoided any possibility that
the  consultancy  might  be  misled,  because  it  was  not
dealing  directly  with  the  Commission,  about  the
scope  for  negotiating  such  conditions.

2.  When the complainant’s firm was invited to submit a
proposal,  the  Commission  should  have  expressly
informed  the  consultancy  both  that  its  proposal
would  be  transmitted  to  national  statistical  offices
and  that,  if  a  national  statistical  office  expressed  a
wish  to  carry  out  the  work,  it  would  be  given
preference.  This  would  have  avoided  any  possibility
that  the  consultancy  might  have  been  misled  into
thinking that its dealings with the Commission in this

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/131

matter  were  governed  by  normal  principles  of  fair
dealing  in  tendering  for  contracts.

Given that these aspects of the case concerned procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

STAFF:  INCORRECT  CLASSIFICATION  OF  AN  EXPERT

Decision  on  complaint  1034/19.11.96/MS/IT/PD  against
the  European  Commission

The  complaint

Mr  S.  from  Italy  complained  to  the  Ombudsman  in
November 1996 about the fact that the Commission had
not acted on a note that he addressed to the Commission
on  24  May  1995.

the  Commission’s  delegation 

The  background  against  which  Mr  S.  addressed  the  note
to  the  Commission  was,  in  summary,  as  follows.  On  3
October  1994  he  signed  a  contract  with  the  European
Association for Development. The contract was signed by
two  officials  of  the  Commission  on  behalf  of  the
Association.  The  contract  stipulated  that  Mr  S.  should
accomplish,  as  an  ‘expert  in  training’,  a  stay  of  one  year
in 
in  Buenos  Aires,
Argentina.  In  the  sole  recital  to  the  contract  it  was
provided that the stay should permit him to acquire work
experience  and  a  practical  knowledge  of  the  cooperation
between 
the  European  Community  and  developing
countries.  In  a  document,  established  the  same  day,
signed by Mr S. and the Commission, called ‘Mandat No
1625/EF’,  Mr  S.  undertook  to  participate  in  general  in
the  activities  of  the  Delegation  and  to  accomplish,  at  a
level  corresponding  to  his  training,  the  tasks  which  were
allocated  to  him  by  the  Head  of  Delegation.

After  having  been  with  the  Delegation  for  approximately
eight months Mr S. wrote the abovementioned note of 24
May 1995 to one of the Commission officials in Brussels
who  had  signed  the  contract.  In  the  letter  he  mainly  put
forward  that  the  work  he  had  been  assigned  was  below
the  level  that  he  had  expected  and  of  a  different  nature.
According  to  Mr  S.,  this  was  related  to  the  fact  that  the
Delegation  had  expected  an  economist  and  not  a  person
like him trained in agricultural matters. He concluded his
note  by  declaring  that  he  was  open  for  any  suggestion
which  would  allow  him  to  make  use  of  his  professional
capabilities  in  Buenos  Aires,  in  Brussels  or  in  another
Delegation.

Delegation.  This  was  done  on  7  June  1995  and  in  his
transmission  note,  the  Head  of  Delegation  in  substance
disagreed with the contents of Mr S.’s note. The Head of
Delegation  put  forward  that  although  the  work  carried
out  within  the  Delegation  did  not  relate  to  rural  or
agricultural  development, 
concern
development  and  that  the  work  assigned  to  Mr  S.,
although perhaps different from his expectations, was not
below  his  professional  capabilities.  The  Head  of
Delegation  finished  his  transmission  note  by  suggesting
that at the end of Mr S.’s contractual period, he could be
assigned  to  another  Delegation  where  the  work  was  of  a
more  rural  and  agricultural  character.  Mr  S.  received  a
copy  of  this  note.

it  did 

indeed 

Afterwards  there  were  contacts  between  Mr  S.  and  the
Commission  services  in  Brussels.  Apparently,  it  was
suggested to Mr S. to stay in Buenos Aires and await the
arrival  of  a  new  Head  of  Delegation.  In  October  1995
Mr S. signed a renewal of his contract for another period
of  one  year.  In  a  letter  dated  6  October  1995,  Mr  S.
stated  that  a  change  of  Delegation  would  be  an  error,
unless  he  was  given,  as  a  compensation  for  the  damage
he  had  suffered,  the  opportunity  to  have  a  new  two-year
period  in  another  Delegation.

In  his  complaint  to  the  Ombudsman,  Mr  S.  emphasised
that  he  was  offered  the  post  in  Buenos  Aires  because  the
Commission services had mistaken him for an economist,
although it was apparent from his papers that he was an
expert  in  agricultural  matters.  He  substantiated  this
allegation.

The  inquiry

The  Commission’s  comments

that 

firstly 

the  Commission  stated 

The  complaint  was  forwarded  to  the  Commission.  In  its
comments, 
the
objective  pursued  by 
training  contracts  did  not
necessarily  imply  that  the  person  in  question  received  a
supplementary  training  within  his  specialised  field.  The
contents  of  the  training  programme  were  oriented
towards 
the  administration  and  management  of
programmes  convened  with  the  country  of  assignment
concerned  under  a  bilateral  or  multilateral  agreement.
Accordingly, there was no formal classification in training
contracts  according  to  the  specialised  fields  of  discipline
of  the  person  in  question.

The note being of an internal staff character, it had to be
its  addressee  through  the  Head  of
transmitted  to 

Secondly,  the  Commission  stated  that  it  considered  the
transmission note of the Head of Delegation dated 7 June
1995,  of  which  Mr  S.  received  a  copy,  as  constitution  of

C  380/132

EN

Official  Journal  of  the  European  Communities

7.12.98

a  reply  to  his  note  of  24  May  1995.  The  Commission
further  stated  that,  in  general,  its  services  avoided
embarking  on  formal  direct  discussion  with  different
agencies 
ignore  or
in  the  Delegation  which  would 
overrule  the  mandate  of  the  Head  of  Delegation  as  the
Commission’s 
the
implementation  of  the  training  programme.

representative, 

responsible 

for 

systematically  about 

Thirdly,  the  Commission  stated  that  Mr  S.  was  kept
informed 
the  administration’s
position,  in  particular  by  a  note  of  16  November  1995
addressed  to  the  Head  of  Delegation,  of  which  Mr  S.
received  a  copy.  This  note  stated  that  he  should  be
assigned  tasks  according  to  the  interest  of  the  service.

agreement for another year in October 1995 and the note
of  16  November  1995  from  the  headquarters  in  Brussels
to  the  Head  of  Delegation,  of  which  Mr  S.  received  a
copy,  made  clear  that  the  Commission’s  stand  was  that
he  should  be  assigned  tasks  according  to  the  interest  of
the  service.  The  proposal  to  renew  his  contract  for
another year in Buenos Aires constituted an implicit reply
to  Mr  S.’s  possible  wishes  to  be  assigned  to  another
Delegation. The two notes both dealt with his grievances
about  the  assignment  of  tasks.  Against  this  background,
the  Ombudsman  found  that  the  Commission  had  acted
on Mr S.’s note of 24 May 1995 and that there were no
grounds  for  suggesting  to  the  Commission  that  it  should
have  awarded  him  another  two-year  training  period.

The  Commission  did  not  comment  on  the  question  of
whether  its  services  classified  Mr  S.  wrongly  as  an
economist.

Conclusions

The  complainant’s  observations

In  his  observations,  the  complainant  maintained  his
complaint  and  requested  that  the  Commission  should
grant  him  another  two-year  training  period  as  a
compensation  for  the  damage  he  had  suffered.

The  decision

In  assessing  the  complainant’s  substantiated  allegation
that  he  was  wrongly  classified  as  an  economist,  the
Ombudsman firstly remarked that the contracts signed by
Mr  S.,  the  Association  for  Development  and  the
Commission, did not specify any particular field of work
and  that  the  objective  of  the  training  programmes  was
not  necessarily  to  give  the  person 
in  question  a
supplementary  training  in  his  specialised  field.  However,
the  Commission  did  not  contradict  the  claim  that  a
correct  classification  of  Mr  S.  as  a  rural  expert  could
have been relevant to the decision about his duty station,
nor  did  it  contradict  the  claim  that  its  services  had
classified  Mr  S.  wrongly.  Against  this  background,  the
Ombudsman  addressed  a  critical 
the
Commission  to  the  effect  that  it  should  have  classified
Mr  S.  properly.

remark 

to 

Secondly,  it  appeared  that  Mr  S.  did  not  receive  an
official  and  explicit  written  reply  to  all  the  points  in  his
note of 24 May 1995. The transmission note of the Head
of Delegation, of which Mr S. received a copy, could not
be considered a full reply, as the Head of Delegation was
not  empowered  to  act  on  all  the  points  put  forward  in
Mr.  S.’s  note.  However,  the  contract  assigning  Mr  S.  to
the  Delegation  in  Buenos  Aires  was  renewed  by  mutual

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared  necessary  to  make  the
following  critical  remarks.

The  Commission  should  have  proceeded  to  a  proper
classification  of  Mr  S.  as  an  expert  in  agricultural
matters.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

FAILURE  TO  RESPECT  MEDICAL  SECRECY

Decision  on  complaint  1098/96/BB  against  the
European  Commission

The  complaint

In  December  1996,  X  complained  to  the  Ombudsman
concerning, (i) alleged violation of medical secrecy by the
Medical  Service  of  the  Commission  and  (ii)  unjustified
delay  in  sending  a  document.

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

X  worked  for  the  Commission  on  a  freelance  basis.  The
European  institutions  have  concluded  an  agreement  with
an  insurance  company  in  order  to  cover  the  relevant
category  of  freelance  workers  for  loss  of  income  if  they
fall  ill  during  a  contract.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/133

The  complainant  had 
to  undergo  urgent  medical
treatment  while  working  for  the  Commission.  All  the
required certificates were handed in to the administration
immediately  including  a  ‘medical  indicator’  from  the
responsible  doctor.  This  last  document  was  in  a  sealed
envelope  addressed  to  the  Head  of  the  Commission
Medical  Service  marked  ‘medical  secret’.

The  complainant  was  subsequently  informed  by  the
Commission that the claim had been accepted and the file
forwarded to the insurance company. X alleged that there
was  a  delay  of  several  weeks  before  the  insurance
company  actually  received  the  file.

As  to  the  confidential  nature  of  the  medical  information,
the  Commission  claimed  that 
in  no  way
responsible  for  the  actions  of  the  insurance  company.
However, 
insurance
its  obligation  regarding  confidentiality
company  of 
following  a  meeting  with  the  complainant.

the  Commission  reminded 

it  was 

the 

As  regards 
the  general  principles  concerning  con-
fidentiality of medical documents, the Commission stated
that  the  transmission  of  medical  documents  in  sealed
envelopes  for  the  exclusive  use  of  insurance  company
doctors,  Commission  doctors  and  the  insured  party,  was
an  option  under  the  terms  of  the  insurance  policy.
Documents to be treated in this way may be specified by
insured 
for
the 
compensation.

application 

parties 

form 

on 

In  December  1996,  X  realised  that  both  an  employee  at
the  insurance  company  and  the  Commission  service  to
which  X  was  under  contract  were  aware  of  the
confidential  medical  information.

Members  of  the  relevant  category  of  freelance  workers
the  sickness
who  have  requested  coverage  under 
insurance  policy  must  abide  by 
its  provisions  and
procedures.

The  complainant’s  observations

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In
summary,  the  Commission  made  the  following  points.

In  accordance  with  the  insurance  policy,  X  submitted
various medical documents to the Commission, including
a  certificate  specifying  the  treatment  X  had  undergone,
for  transmission  to  the  insurance  company.

Under  Article  7g  of  the  insurance  policy  and  the  form  in
use at the time, the document indicating the nature of the
insurance
operation  should  have  been  sent  to  the 
company  in  a  sealed  envelope.

As a result of X’s complaint, the officials concerned were
reminded  of  the  correct  procedure  to  be  followed  in
future  in  such  cases.  The  Commission  pointed  out  that
the officials who dealt with X’s complaint were bound to
secrecy  by  the  Staff  Regulations.

complainant  maintained 

The 
complaint  and
acknowledged  that  the  Commission  had  sent  a  note  on
31  October  1996.  However,  the  complainant  stressed
that  the 
insurance  company  had  not  received  this
document  by  24  November  1996.

the 

The  decision

1. 

Alleged  violation  of  medical  secrecy

1.1.  As  a  matter  of  good  administration, 

the
Commission  should  always  ensure  that  documents
covered  by  medical  secrecy  are  treated  with
appropriate care.

1.2. 

It  appeared  from  the  Ombudsman’s  inquiries  that
the
the  Commission  had  acknowledged 
document 
the
nature 
complainant’s  medical  treatment  should  have  been
sent  to  the 
in  a  sealed
insurance  company 
envelope.

indicating 

that 
of 

the 

The  Commission  received  X’s  application  on  16  October
1996  and  sent  it  to  the  insurance  company  on  31
October  1996  after  the  Commission’s  Medical  Service
had  examined 
for  an
insurance
acknowledgement  of 
company did not provide. The Commission therefore did
it  had  delayed  the
not  accept  the  allegation  that 
transmission  of 
insurance
these  documents 
company,  which  had  replied  to  X  on  4  December  1996.

it.  The  Commission  asked 
receipt,  which 

the 

the 

to 

1.3.  The  Ombudsman 

considered 

the
Commission’s  failure  to  treat  the  complainant’s
medical  documents  with  appropriate  care  was
regrettable  and 
instance  of
maladministration.

constituted  an 

that 

1.4.  The Ombudsman therefore drew the Commission’s
attention  to  the  fact  that  it  should  make  sure  that
the  criticism  in  the  decision  was  brought  to  the
attention  of  the  officials  dealing  with  documents

C  380/134

EN

Official  Journal  of  the  European  Communities

7.12.98

covered  by  medical  secrecy  in  order  to  guarantee
that  such  mistakes  in  comparable  cases  are  not
made  in  the  future.

LACK  OF  TRANSPARENCY  IN  THE  RUNNING  OF  A
COMPETITION

Decision  on  complaint  105/97/PD  against  the  European
Commission

2. 

Alleged  delay  in  forwarding  the  documents  to  the
insurance  company

The  complaint

received 

the  complainant’s
2.1.  The  Commission 
1996.  After
application 
examination 
the
Service 
Commission sent a letter to the insurance company
on  31  October  1996.

16  October 
its  Medical 

on 

by 

2.2.  The Commission provided the Ombudsman with a
copy of the abovementioned letter. In this letter the
Commission  asked  for  an  acknowledgement  of
receipt,  which  the  insurance  company  did  not
provide.  However,  in  assessing  whether  there  had
been  a  delay  by  the  Commission,  it  needed  to  be
taken  into  account  that  the  insurance  company
replied  to  the  complainant  on  4  December  1996,
about  one  month  after 
the
Commission  had  been  dated.

letter  of 

the 

In  January  1997,  Mr  D.  complained  to  the  Ombudsman
about  the  Commission’s  running  of  an  interinstiutional
recruitment  competition 
in  which  he
participted  in  1996.

(EUR/LA/97) 

By  letter  of  14  November  1996,  the  selection  board
informed  Mr  D.  that  the  marks  he  had  obtained  in  the
preselection  written  test  were  insufficient,  so  that  the
remainder of his written tests would not be corrected. Mr
D.  asked  the  selection  board  to  review  the  marks  it  had
given  him  for  the  test  in  question.  He  also  made  the
following  request:

2.3. 

It  appeared,  therefore,  from  the  Ombudsman’s
inquiries  that  there  was  not  sufficient  foundation
to  the  allegation  that  the  Commission  would  have
delayed  the  transmission  of  the  complainant’s
documents  to  the  insurance  company.

‘Without  prejudice  to  the  review  procedure,  I  should
be  grateful  in  addition  if  you  would  allow  me  to  see
the  corrected  test  to  enable  me  to  make  such
observations  as  I  might  think  fit  to  substantiate  my
case’.

Conclusions

In  view  of  the  above  findings,  it  appeared  necessary  to
make  the  following  critical  remarks.

The European Ombudsman found that principles of good
administration  require  that  the  Commission  should
always ensure that documents covered by medical secrecy
are  treated  with  appropriate  care.

It  appeared  from  the  Ombudsman’s  inquiries  that  the
Commission  had  acknowledged 
the  document
indicating  the  nature  of  the  complainant’s  medical
treatment  should  have  been  sent  to  the 
insurance
company  in  a  sealed  envelope.

that 

the 

The  Ombudsman  found  that  the  Commission’s  failure  to
treat 
complainant’s  medical  documents  with
appropriate  care  was  regrettable  and  constituted  an
instance  of  maladministration.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not  possible
to  pursue  a  friendly  settlement  of  the  matter.  The
Ombudsman  therefore  closed  the  case.

In  answer  to  Mr  D.’s  main  request,  the  selection  board
informed him in detail of the assessment criteria used for
the  test  in  question,  stating  that:

‘We  have  reconsidered  your  test  papers  and  wish  to
point  out  that  the  results  of  which  you  have  been
notified  correspond  to  the  marks  awarded  by  the
selection  board.

The purpose of the tests, as was indicated in the notice
to  attend,  was  to  compile  a  short  list  of  candidates
scoring  the  highest  marks  (144  in  the  case  of  the  A 7
competition  and  96 
the  A 8
in 
competition).  The  examiners,  experienced  translators
working  in  the  Union  institutions,  observed  the  same
rigorous  assessment  criteria  in  every  instance.

the  case  of 

Test  (a)  was  designed  to  assess  proficiency  in  the
source language, proficiency in Spanish, and the ability
to  solve  translation  problems.  For  your  information,
the  factors  taken  into  account  to  determine  the  total
mark  included  the  following:

—  as  regards  the  source  language:  gross,  serious,  or
minor  errors  of  comprehension,  and  inaccuracy,

—  as  regards  the  target  language,  the  assessment
related  to  spelling  (gross,  serious,  and  slight
mistakes),  morphology  and  syntax  (agreement,

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/135

incorrect 

prepositional  government, 
syntactical
constructions,  etc.),  and  vocabulary  (omission  of
one  or  more  words,  omission  of  a  sentence,
incorrect  terms,  barbarism);  stylistic  faults  and
incorrect  punctuation  were  likewise  taken  into
consideration.

As  concerned  transparency,  the  Commission  stated  that
transparency rules cannot override Article 6 of Annex III
to  the  Staff  Regulations,  according  to  which  the
proceedings  of  selection  boards  are  secret.  According  to
the  Commission,  this  secrecy  permits  selection  boards  to
perform 
independently  without  being
their  work 
submitted  to  any  kind  of  pressure.

On  the  other  hand,  good  style,  correct  translation  of  a
relatively  difficult  passage,  or  brilliant  translation  of  an
especially  difficult  passage  counted  in  the  candidate’s
favour.

Each  test  paper  was  marked  by  two  separate  examiners,
and the candidate’s anonymity was preserved throughout.
Some  papers  were  marked  by  a  third  examiner  when  the
selection  board  deemed  it  necessary.

The  papers  were  marked  with  particular  care,  and  I
regret  to  inform  you  that  the  decision  of  the  selection
board  regarding  your  test  is  final’.

As  for  Mr  D.’s  request  to  have  knowledge  of  the
corrected  test,  the  selection  board  stated  that:

‘Lastly, we would inform you that we cannot send you
a  copy  of  your  test  papers,  because,  as  a  matter  of
principle,  we  are  required  to  treat  all  candidates
equally and the proceedings of the selection board have
to  remain  confidential’.

In his complaint to the Ombudsman Mr D. stated that he
did  not  contest  the  selection  board’s  evaluation  of  his
test. As he had no knowledge of the corrected test, he did
not  know  whether  the  selection  board  had  applied  the
evaluation  criteria  properly  in  his  case.  He  claimed  that
the  selection  board’s  reasoning  for  not  permitting  him  to
have  knowledge  of  the  corrected  test  in  question  was
inadequate  and  lacked  transparency.

The  inquiry

The  Commission’s  comments

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  the  selection
board  had  acted  in  conformity  with  the  notice  of
competition  and  that  the  selection  board  was  very  open
towards  Mr  D.  by  communicating  to  him  the  evaluation
criteria  for  the  test  in  question.  As  for  the  reasons  that
the selection board gave for not permitting Mr D. to have
knowledge  of  the  corrected  test,  the  Commission  stated
in  substance  that  it  was  a  common  practice  within  the
Community 
the
corrected  tests  to  applicants  and  that  according  to  the
case-law  of  the  Court  of  Justice,  selection  boards  had
wide discretionary powers. According to the Commission,
the  only  obligation  imposed  on  selection  boards  in  this
field  was  to  communicate  the  marks  obtained  to  the
applicants.

to  communicate 

institutions  not 

The  complainant’s  observations

In  his  observations,  Mr  D.  maintained  his  complaint  in
substance.  In  particular  he  stressed  that  he  did  not  ask
for communication of the corrected test, but only to have
knowledge  of  the  corrected  test,  thus  leaving  it  to  the
selection  board  to  find  a  way  in  which  he  could  obtain
that  knowledge.  Mr  D.  stated  that  he  would  be  fully
willing  to  accept  that  signs  which  could  permit  the
identifying  of  the  corrector  were  deleted  from  the
corrected test, as long as Mr D. could have knowledge of
the  corrections  made.

As  for  transparency,  Mr  D.  stated  that  the  objective
pursued  by  the  provision  in  Article  6  in  Annex  III  to  the
Staff  Regulations,  i.e.  to  ensure  the  independent  work  of
selection boards, did not justify the refusal to inform him
about  the  corrected  test  in  a  version  that  did  not  permit
the  identifying  of  the  correctors.

The  decision

The  question  raised  by  Mr  D.’s  complaint  was  whether
the  selection  board  was  entitled  to  refuse  to  inform  him
about  the  corrected  test  in  question.  In  assessing  this
question,  it  was  first  noted  that  it  did  not  appear  to  be
unjustified  that  the  selection  board  interpreted  Mr  D.’s
demand for knowledge of the corrected test as a demand
for  communication  of  the  test  in  question.  The  selection
board  justified  its  refusal  of  this  demand  by  referring  to
the  principle  of  equal  treatment  of  applicants  and  the
confidentiality  of  the  proceedings  of  the  selection  board.

The  principle  of  equal  treatment  of  applicants  implies
that  identical  situations  cannot  be  treated  differently
while  different  situations  cannot  be  treated  identically.
The  decision  whether  to  communicate  a  corrected  test
has to be taken on the basis of the Staff Regulations and
the case-law of the Court of Justice and the said principle
did not appear to have any bearing on such a decision. It
should be noted that the Commission did not refer to this
principle  in  its  comments  on  Mr  D.’s  complaint  to  the
Ombudsman. The reference by the selection board to the
said  principle  was  thus  confusing.  Principles  of  good

C  380/136

EN

Official  Journal  of  the  European  Communities

7.12.98

administration require that adequate reasons are given to
applicants  for  the  decisions  taken  by  selection  boards.
The  reference  to  the  principle  of  equal  treatment  did  not
appear to be adequate, as the principle had no bearing on
the  decision  whether  access  should  be  granted  to
corrected  tests  or  not.  Against  this  background,  the
Ombudsman  addressed  a  critical 
the
Commission.

remark 

to 

to 

law 

the  selection  board’s  reference 

Concerning 
the
confidentiality  of  its  proceedings  as  a  reason  for  not
communicating  the  corrected  test,  in  the  present  state  of
Community 
the
Commission to communicate corrected tests to applicants
who  so  request.  Thus,  it  appeared  that  the  selection
board  was  entitled  to  refuse  the  communication  of  the
test  by  referring  to  the  principle  of  the  confidentiality  of
the  proceedings  of  selection  boards.

is  no  obligation  on 

there 

Conclusions

On  the  basis  of  the  Ombudsman’s  inquiries  into  this
complaint,  it  appeared  necessary  to  make  the  following
critical remarks.

The  Commission  should  not  have  justified  the  refusal  to
communicate  the  corrected  test  in  question  by  reference
to  the  principle  of  equal  treatment  of  applicants,  as  this
principle  did  not  appear  to  have  any  bearing  on  the
decision whether corrected tests should be communicated
or  not.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  decided  to  close  the  case.

Further  remarks  by  the  Ombudsman

Given  the  considerable  number  of  complaints  that  the
Ombudsman  received  concerning  lack  of  transparency  in
the  recruitment  procedures  organised  by  the  Community
institutions,  the  Ombudsman  opened  an  inquiry  on  his
own  initiative  on  this  matter  on  7  November  1997,
including the question whether the Commission envisages
allowing  applicants  to  take  with  them  the  examination
questions  from  the  examination  room  and  disclosing  the
corrected  copies  of  examinations 
the  applicant
concerned.  In  his  letter,  the  Ombudsman  has  stated  that

to 

the  discretionary  powers  of  selection  boards  and  the
confidentiality  of  their  proceedings  do  not  appear  to
hinder 
compliance  with  principles  of  good  ad-
ministration.

CRITICISM  OF  THE  RUNNING  OF  A  COMPETITION

Decision  on  complaint  142/97/PD  against  the  European
Commission

The  complaint

In February 1997, Mr V. complained to the Ombudsman
about  the  Commission’s  running  of  an  interinstiutional
recruitment  competition 
in  which  he
participted  in  1996.

(EUR/LA/97) 

By  letter  of  14  November  1996,  the  selection  board
informed Mr V. that the marks he had obtained in one of
the  preselection  tests,  test  (a),  were  insufficient  and
therefore,  the  remainder  of  his  tests  would  not  be
corrected.

By letters of 18 and 20 November 1996 Mr V. asked the
selection board to review the marks given for test (a) and
to communicate the corrected test to him. He stated that
he  did  not  in  any  way  doubt  the  correctness  and  the
impartiality  of  the  corrections  made  but  that  he  found  it
difficult  to  understand  the  very  low  mark  he  had
obtained.  Furthermore,  he  stated  that  in  the  test  (b)  the
applicants  had  been  asked  questions  which  did  not  have
any  basis  in  the  notice  of  competition  and  that  test  (d)
had  not  been  in  accordance  with  the  provisions  of  the
notice  either.

As  regards  the  two  tests  in  question,  the  notice  stated:

‘(b)  Test  comprising  a  paper  of  questions  on  the
principal  stages  of  European  unification  and  the
different  Community  policies.

(d)  Translation  into  Spanish,  using  dictionaries,  of  a
general text of about 45 lines on the activities of the
European  Union,  in  a  language  chosen  by  the
candidate  from  those  specified  in  section  V,  point
B(3),  but  excluding  the  languages  selected  for  tests
(a)  and  (c)’.

As  for  test  (b)  Mr  V.  considered  that  a  number  of  the
questions  asked  did  not  relate  to  the  the  principal  stages
of  European  unification  and  the  different  Community
policies.  According  to  Mr  V.,  that  was  the  case  with  the
following  questions:

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/137

—  a  question  concerning  the  General  Secretariat  of  the

European  Parliament

autonomous and independent and had large discretionary
powers  as  long  as  it  respected  the  provisions  of  the
notice.

—  a  question  concerning  the  competences  of  the  Court

of  First  Instance

—  a  question  concerning  the  Economic  and  Social

Committee

—  a  question  concerning 

the  organisation  of 

the

Members  of  the  European  Parliament

—  a  question  concerning  the  length  of  the  mandate  at

the  European  Commission

satisfied  with 

Not  being 
these  answers,  Mr  V.
complained  to  the  Ombudsman.  He  claimed  that  the
answers  from  the  selection  board  lacked  transparency.
According to him, it was normal for an applicant to have
the  opportunity  to  see  the  corrected  test  or  in  another
way have knowledge of the corrections made. In his view,
the 
the
confidentiality  of  its  proceedings  a  scope  which  was
unjustified. Furthermore, he maintained that the contents
of  tests  (b)  and  (d)  were  not  justified.

selection  board  gave 

the  principle  of 

—  a  question  concerning 

the  exact  number  of

Commissioners  from  certain  Member  States

The  inquiry

—  a  question  concerning  the  Community  legislation,
including  the  application  of  Community  regulations.

The  Commission’s  comments

In the complainant’s view, it was even more obvious that
these  questions  were  not  covered  by  the  drafting  of  the
notice, when one took into consideration that the notice,
as  concerned  the  oral  test,  provided:

‘Interview  with  the  selection  board  to  enable  it  to
complete  its  assessment  of  the  candidate’s  suitability  to
perform  the  duties  described  in  section  I.  Proficiency  in
other languages and knowledge of Union institutions and
policies  will  also  be  tested  in  the  interview’.

Mr  V.  claimed  that  by  reading  this,  an  applicant  would
consider  that  questions  concerning  the  institutions  could
not  be  asked  in  written  test  (b).

As  for  test  (d)  Mr  V.  claimed  that  the  set  text  did  not
consist  of  around  45  lines  as  provided  by  the  notice,  but
of  61  lines.

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  the  selection
board  had  acted  in  accordance  with  the  notice  of  the
competition.  As  for  the  reasons  that  the  selection  board
gave  for  not  permitting  Mr  V.  to  have  knowledge  of  the
corrected test, the Commission stated in substance that it
was  a  common  practice  within 
the  Community
institutions  not  to  communicate  the  corrected  tests  to
applicants  and  that  according  to  the  case  law  of  the
Court  of  Justice,  selection  boards  had  wide  discretionary
the  only
powers.  According 
obligation  imposed  on  selection  boards  in  this  field  was
to  communicate  the  marks  obtained  to  the  applicants.

the  Commission, 

to 

Concerning  Mr  V.’s  allegation  in  relation  to  test  (b),  the
Commission  stated  that  given  the  good  marks  he  had
obtained  in  this  test,  his  allegation  was  unfounded  and
not  in  his  interest.  As  far  as  test  (d)  was  concerned,  the
Commission  stated  that  the  selection  board’s  decision  to
give  the  applicants  a  text  of  61  lines  fell  within  the
discretionary  powers  with  which  selection  boards  were
vested.

No  observations  on  the  Commission’s  comments  were
received  from  the  complainant.

By  letters  of  18  December  1996  and  16  January  1997,
the  selection  board  replied  to  the  complainant’s  letters.
As  for  his  request  for  review,  the  board  informed  him
that  his  test  had  been  reviewed  and  that  the  mark  given
was  correct.  Furthermore,  the  Board  regretted  to  inform
Mr V. that it could not disclose the corrected test to him
given  the  principle  of  equal  treatment  of  applicants  and
the  principle  of  the  confidentiality  of  its  proceedings.

The  decision

Concerning  the  selection  board’s  refusal  to  disclose  the
corrected  test  to  Mr  V.,  the  board  justified  this  decision
by  referring  to  the  principle  of  equal  treatment  of
applicants  and  the  confidentiality  of  its  proceedings.

As  for  the  allegation  in  relation  to  test  (b)  the  board
stated  that  all  the  questions  asked  were  related,  directly
or  indirectly,  to  the  provision  in  the  notice.  As  regards
both test (b) and test (d) the board added that, according
to the case-law of the Court of Justice, it was completely

The  principle  of  equal  treatment  of  applicants  implies
that  identical  situations  cannot  be  treated  differently
while  different  situations  cannot  be  treated  identically.
The  decision  whether  to  communicate  a  corrected  test
has to be taken on the basis of the Staff Regulations and
the case-law of the Court of Justice and the said principle

C  380/138

EN

Official  Journal  of  the  European  Communities

7.12.98

did not appear to have any bearing on such a decision. It
should be noted that the Commission did not refer to this
principle  in  its  comments  on  Mr  V.’s  complaint  to  the
Ombudsman. The reference by the selection board to the
said  principle  was  thus  confusing.  Principles  of  good
administration require that adequate reasons are given to
applicants  for  the  decisions  taken  by  selection  boards.
The  reference  to  the  principle  of  equal  treatment  did  not
appear to be adequate, as the principle had no bearing on
the  decision  whether  access  should  be  granted  to
corrected  tests  or  not.  Against  this  background,  the
Ombudsman  addressed  a  critical 
the
Commission.

remark 

to 

to 

law 

the  selection  board’s  reference 

Concerning 
the
confidentiality  of  its  proceedings  as  a  reason  for  not
communicating  the  corrected  test,  in  the  present  state  of
the
Community 
Commission to communicate corrected tests to applicants
who  so  request.  Thus,  it  appeared  that  the  selection
board  was  entitled  to  refuse  the  communication  of  the
test  by  referring  to  the  principle  of  the  confidentiality  of
the  proceedings  of  selection  boards.

is  no  obligation  on 

there 

As  concerns  Mr  V.’s  allegation  in  relation  to  test  (b),
according  to  the  notice,  this  test  was  to  focus  on  the
different  stages  of  European  union  and  the  different
Community  policies,  while  the  notice  indicated  that,  for
the  oral  test,  the  subject  would  also 
include  the
institutions  of  the  European  Union.  The  notice  appeared
to  leave  the  impression  that  questions  clearly  limited  to
the Institutions would not be asked in test (b). However,
it  appeared  that  in  test  (b)  questions  were  in  fact  asked
which  concerned  the  institutions  without  any  apparent
relation  to  the  different  stages  of  European  union.

The  Commission  put  forward  two  arguments  in  this
context:  in  the  first  place,  that  Mr  V.  lacked  interest  in
contesting the appropriateness of the questions, as in any
case  he  had  passed  the  test  with  good  results.  In  the
second  place,  that  the  questions  did  have  a  relation,
either  direct  or  indirect,  with  the  topic  indicated  in  the
notice. As for the first argument, it has to be recalled that
Article  138e  of  the  EC  Treaty  concerning  the  citizens’
right  to  apply  to  the  European  Ombudsman  does  not
submit the exercise of this right to any conditions relating
to  the  personal  interest  the  citizen  might  have  in  the

problem  submitted  to  the  European  Ombudsman.  As  for
the  Commission’s  second  argument,  principles  of  good
administration  require  that  the  citizens  can  rely  on  the
accuracy  of  the  public  statements  that  the  Commission
makes.  It  therefore  appeared  unjustified  to  make  use  of
specific wording which led the citizens to believe that the
topic  of  the  test  would  be  more  narrowly  defined  than
was  in  fact  the  case.  Against  this  background,  the
Ombudsman  addressed  a  critical 
the
Commission.

remark 

to 

As for Mr V.’s allegation in relation to test (d), according
to  the  case-law  of  the  Court  of  Justice,  selection  boards
are  vested  with  wide  discretionary  powers  provided  they
respect 
the  notice  of  competition.  The  notice  of
competition indicated that the text to be translated under
test  (d)  would  be  of  approximately  45  lines  whereas  the
actual  text  set  of  61  lines  was  around  33 % longer. This
excess cannot be considered to respect the wording of the
notice  of  the  competition.  Therefore  the  European
Ombudsman  addressed  a  critical 
the
Commission.

remark 

to 

Conclusions

On  the  basis  of  the  European  Ombudsman’s  inquiries
into  this  complaint,  it  appeared  to  be  necessary  to  make
the  following  critical  remarks.

The  Commission  should  not  have  justified  the  refusal  to
communicate  the  corrected  test  in  question  by  referring
to  the  principle  of  equal  treatment  of  applicants  as  this
principle  did  not  appear  to  have  any  bearing  on  the
decision whether corrected tests should be communicated
or  not.

The  Commission  should  have  drafted  the  notice  of  the
competition  so  that  it  did  not  mislead  the  citizens  as  to
the  content  of  the  tests  and  should  have  respected  the
wording  of  the  notice  of  the  competition.

Given that these aspects of the case concerned procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate to pursue a friendly settlement of the matter.
The  Ombudsman  therefore  closed  the  case.

Further  remarks  by  the  Ombudsman

Given  the  considerable  number  of  complaints  that  the
Ombudsman  received  concerning  lack  of  transparency  in
the  recruitment  procedures  organised  by  the  Community
institutions,  the  Ombudsman  opened  an  inquiry  on  his
own  initiative  on  this  matter  on  7  November  1997,

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/139

including the question whether the Commission envisages
allowing  applicants  to  take  with  them  the  examination
questions  from  the  examination  room  and  disclosing  the
corrected  copies  of  examinations 
the  applicant
concerned.  In  his  letter,  the  Ombudsman  has  stated  that
the  discretionary  powers  of  selection  boards  and  the
confidentiality  of  their  proceedings  do  not  appear  to
hinder 
compliance  with  principles  of  good  ad-
ministration.

to 

REIMBURSEMENT  OF  MEDICAL  COSTS

Decision  on  complaint  319/97/PD  against  the  European
Commission

The  complaint

had in the mean time made the payment that was due. It
regretted  the  ‘inexplicable’  delay  in  paying  the  costs.
Furthermore, 
its
procedures  for  settling  such  claims  so  that  undue  delays
should  not  occur  in  the  future.

it  explained  that 

it  had  changed 

The Commission did not comment on Mr K.’s allegation
about  its  failure  to  reply  his  letters.

The  complainant’s  observations

In his observations, Mr K. expressed satisfaction with the
fact  that  his  application  to  the  Ombudsman  had
prompted  the  Commission  to  reimburse  him  the  medical
costs in question. However, he was dissatisfied both with
the fact that it was necessary to apply to the Ombudsman
in  order  to  make  the  Commission  comply  with  its
reimbursement commitment and because the Commission
had  not  commented  on  its  failure  to  reply  to  his  letters.

In  April  1997,  Mr  K.  complained  to  the  Ombudsman
about the failure of the Commission to reimburse him for
medical  costs  that  he  had  incurred  at  the  Commission’s
request.

The  decision

The  complainant  had  successfully  passed  competition
COM/A/764,  organised  by  the  Commission.  In  view  of
recruitment,  the  Commission  asked  him  to  undergo  a
medical examination in November 1994. In the course of
this  examination,  he  was  asked  to  undergo  a  further
special  examination  by  a  doctor  of  his  own  choice;  the
expenses  related  to  this  would  be  reimbursed  by  the
Commission.  In  January  1995  he  forwarded  the  doctor’s
bill  to  the  Commission.  In  June  1995  the  Commission
offered  Mr  K.  a  job,  but  the  delay  in  reimbursing  the
medical  expenses  as  well  as  other  negative  experiences
with the Commission during the competition made Mr K.
decline  the  offer.  In  October  1995  he  wrote  to  the
Commission  reminding  it  of  the  reimbursement  that  he
had not yet received. In April 1996 he wrote again to the
Commission  in  order  to  claim  the  reimbursement.

In  his  complaint  Mr  K.  claimed  that  it  was  unacceptable
that  the  Commission  had  neither  reimbursed  him  the
medical  costs  nor  answered  his  two  reminders.

The  inquiry

The  Commission’s  comments

It appeared from the Commission’s opinion and from the
complainant’s  observations  that  the  Commission  had
settled  the  claim  for  reimbursement.  Furthermore,  it
appeared  that  the  Commission  had  in  the  mean  time
changed  its  procedures  for  paying  such  claims  so  that  in
the future, they would be paid without undue delay. The
Ombudsman  therefore  did  not  pursue  this  aspect  of  the
complaint  any  further.

As  for  the  two  reminders  to  the  Commission,  it  did  not
deny that it had failed to reply to them. The Ombudsman
therefore  addressed  a  critical  remark  to  the  Commission
to the effect that it should have replied to Mr K.’s letters
promptly.

Given  that  this  aspect  of  the  case  concerned  procedures
relating  to  specific  events  in  the  past,  it  was  not
appropriate  to  pursue  a  friendly  settlement  of  this  aspect
of  the  case.  The  Ombudsman  therefore  closed  the  case.

3.7.  OWN  INITIATIVE  INQUIRIES  BY  THE

OMBUDSMAN

RUNNING  OF  A  COMPETITION

Decision  in  own  initiative  inquiry  674/COM/LA/F/PD

The  complaint  was  forwarded  to  the  Commission.  In  its
comments,  the  Commission  stated  that  Mr  K.’s  medical
costs  had  not  been  paid  on  time  because  the  originals  of
the  invoice  and  other  evidence  had  been  lost  and  that  it

In  July  1996,  the  Ombudsman  began  an  own-initiative
inquiry  prompted  by  a  complaint  about  the  running  of
competition  EUR/LA/76,  organised  by  the  European
Commission.

C  380/140

EN

Official  Journal  of  the  European  Communities

7.12.98

The  inquiry

The  Ombudsman  asked  the  Commission  to  provide  him
with  information  about  the  following  two  points  in
relation  to  the  competition.

1.  The qualifications in German of the persons in charge
of  correcting  the  candidates’  examination  scripts  in
the  written  German-Swedish  translation  test.

number  of  complaints  concerning  lack  of  access  to
corrected  examination  scripts  or  some  other  apparent
lack  of  transparency  in  the  recruitment  procedures,
organised  by 
institutions.  The
Ombudsman  therefore  decided  to  open  an  own-initiative
inquiry 
the  recruitment
procedures and within that inquiry, the question of access
to  corrected  examination  scripts  would  be  addressed.

the  Community 

transparency  of 

into 

the 

2.  Whether  the  candidates  were  entitled  to  see  the
corrections made of their tests and if not, the reasons
for  this?

Against  this  background,  the  Ombudsman  found  that
there  were  no  grounds  for  further  inquiries  and  he
therefore  closed  the  case.

The  Commission’s  comments

The  Commission  replied  to  the  Ombudsman  by  letter  of
18  October  1996.

In  its  opinion,  the  Commission  made  the  following
points.

1.  The  correctors  used  in  the  competition  EUR/LA/76
were  all  experienced  translators,  whose  first  foreign
language  was  German.  Furthermore,  the  Commission
stated 
corrected
independently  by  two  correctors  and  where  the
selection  board  had  considered  it  necessary,  a  third
correction  had  been  made  by  a  third  professional
translator.

scripts  had  been 

that 

all 

to 

to 

practice 

institutions’) 
scripts 

2.  ‘It  has  never  been  the  Commission’s  (or  other
return
Community 
examination 
candidates.  The  Staff
Regulations  stipulate  that  the  work  of  the  selection
boards  is  secret.  Selection  boards  must  operate  in  an
independent  manner  and  they  have  sole  competence
to judge the performance of candidates. Furthermore,
it  would  be  administratively  burdensome: 
for
example,  two  competitions  COM/A/770  and  764
alone  had  a  total  of  around  56 000  candidates.  It
treatment  of
could  also  result 
candidates if papers were returned only to those who
requested  them’.

in  an  unequal 

The  decision

As concerns the question of the qualifications in German
of  the  persons  in  charge  of  correcting  the  candidates’
examination  scripts 
in  competition  EUR/LA/76,  the
Ombudsman found that this inquiry had not revealed any
instance  of  maladministration.

for 

the  applicants’  access 

As 
their  corrected
examination scripts, the Ombudsman remarked that since
the  start  of  this  inquiry  he  had  received  a  considerable

to 

THE  COMMISSION’S  ADMINISTRATIVE  PROCEDURES
FOR  DEALING  WITH  COMPLAINTS  CONCERNING
MEMBER  STATES’  INFRINGEMENT  OF  COMMUNITY
LAW

Decision  in  the  own-initiative  inquiry  303/97/PD

In  April  1997  the  Ombudsman  began  an  own  initiative
inquiry  under  Article  138e  of  the  Treaty  establishing  the
the
European  Community.  The 
possibilities 
the
improving 
for 
Commission’s  administrative  procedures  for  dealing  with
complaints  concerning  Member  States’  infringement  of
Community law in the period before judicial proceedings
may begin.

inquiry  concerned 
the  quality  of 

The  background  to  the  inquiry

The  general  background  to  this  inquiry  was  in  substance
that  an  essential  part  of  the  Ombudsman’s  mission
consists  in  enhancing  relations  between  the  Community
institutions and bodies and European citizens. One of the
important  relations  concerns  one  of  the  Commission’s
prime tasks, that is to act as the guardian of the Treaty in
accordance  with  Article  155  of  the  Treaty  of  Rome.  The
Commission has consistently recognised that it relies to a
considerable extent on private citizens and firms to detect
Member  States’  infringements  of  Community  law.  The
citizens’  confidence  in  the  Commission’s  dealings  with
alleged  infringements  is  thus  crucial.

complaints 

received  many 

The  more  specific  background  was  that  the  Ombudsman
had 
the
administrative  procedures  used  by  the  Commission  in
lodged  by  private  citizens
dealing  with  complaints 
their
concerning  Member  States’ 
to 
Community 
these
complaints  was  not  the  discretionary  powers  of  the
Commission to bring legal proceedings against a Member

fulfil 
law  obligations.  The  object  of 

concerning 

failure 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/141

State  under  Article  169  of  the  Treaty,  but  rather  the
administrative  process  which  takes  place  before  judicial
proceedings may begin. The allegations in the complaints
submitted  to  the  Ombudsman  concerned,  in  particular,
excessive  time  taken  to  process  complaints,  lack  of
information  about 
the
the  on-going 
complaint and not receiving any reasoning as to how the
Commission  had  reached  a  conclusion  that  there  was  no
infringement  by  a  Member  State.

treatment  of 

The  inquiry

the 

about 

this  background, 
concerned 

the  Ombudsman  was
Against 
particularly 
administrative
procedures  used  by  the  Commission  to  deal  with
complaints.  Without  prejudice  to  the  question  whether
principles  of  Community 
law  might  require  more
developed  procedural  rights  for  citizens  who  lodge  a
complaint  with  the  Commission,  it  appeared  to  the
Ombudsman  that  the  Commission  could  itself  decide  to
create more developed procedural rights for these citizens
as  a  matter  of  good  administrative  behaviour,  consistent
with the case-law of the Court of Justice that individuals
cannot  challenge  before 
the
Commission’s  decision  not  to  bring  proceedings  under
Article  169.

the  Court  of  Justice 

therefore 

communicate 

suggested 
to 

that 
the
The  Ombudsman 
Commission  might 
registered
complainants  a  provisional  conclusion  that  there  was  no
breach  of  Community  law  and  its  findings  in  support  of
that conclusion, with an invitation to submit observations
within  a  defined  period,  before  making  its  final  decision.
He  pointed  out  the  two  advantages  of  such  a  procedure.
Firstly, it would most likely contribute to a more effective
administration,  by  giving  complainants  the  opportunity
to criticise the Commission’s views and therefore give the
Commission  the  opportunity  to  respond  to  this  criticism.
Secondly,  it  would  enhance  the  citizens’  trust  in  the
Commission  by  allowing  them  to  participate  more  fully
in  the  Article  169  procedure  and  thereby  making  these
activities  more  transparent.

procedural  safeguards  which 
the  Commission  has
constantly  developed  and  improved.  The  Commission
declared  itself  ready  to  continue  along  those  lines.

the 

infringement  proceedings.  Once 

The  Commission  furthermore  stated  that  all  complaints
which  reach  the  Commission  are  registered  and  that  no
exceptions  are  made  to  this  rule.  Once  the  Commission
receives  a  complaint,  it  acknowledges  receipt  by  letter  to
the  complainant  with  an  annex  attached,  explaining  the
the
details  of 
complaint  has  been  registered,  the  complainant 
is
in  response  to  the
informed  of  the  action  taken 
complaint, including representations made to the national
authorities  concerned.  The  complainant  is  also  informed
about  the  outcome  of  the  investigation  of  his  complaint,
whether  no  action  has  been  taken  on  it  or  infringement
proceedings have been instituted. The complainant is also
notified  if  other  proceedings  on  the  same  issue  are
already  under  way.

for  deadlines 

for  processing  complaints, 

As 
the
Commission  stated  that  under  its  internal  rules  of
procedure,  a  decision  to  close  a  file  without  taking  any
action  or  a  decision  to  initiate  official  infringement
proceedings  must  be  taken  on  every  complaint  within  a
maximum  period  of  one  year  from  the  date  on  which  it
was  registered,  except  in  special  cases,  the  reasons  for
which  must  be  stated.  The  Commission  further  pointed
out that delays in processing complaints are often related
to  the  fact  that  discussions  and  exchanges  with  national
authorities  take  considerable  time.  The  Commission
considers  it  to  be  one  of  its  priority  objectives  to  reduce
such delays.

As  for  informing  the  complainant  of  the  draft  decision
rejecting  the  complaint,  the  Commission  stated  that  in
several  cases,  the  complainant  was  informed  beforehand
that  the  complaint  would  be  rejected,  often  with  a
statement  of  the  reasons  for  the  proposed  rejection.  The
itself  prepared  to  extend  this
Commission  declared 
practice,  leaving  aside  cases  where  the  complaint  is
obviously  without  foundation  and  cases  where  nothing
further  has  been  heard  from  the  complainant.

The  Commission’s  comments

The  decision

In  its  comments,  the  Commission  stated  that  complaints
from  individuals  remain  the  most  important  source  on
which  the  Commission  bases  its  task  of  monitoring  the
application  of  Community  law.  For  that  reason,  the
Commission  acknowledged  that  complainants  have  a
place  in  infringement  proceedings  and  that,  in  the  period
judicial  proceedings  may  begin,  they  enjoy
before 

The  Commission  was  constructive  and  service-minded  in
its  approach  to  this  inquiry.  The  Ombudsman  was
pleased  to  see  that  the  Commission  appeared  to  be
committed  to  constant  development  and  improvement  of
the  position  of  citizens  in  the  Article  169  procedure,  in
the  period  before  judicial  proceedings  may  begin.

C  380/142

EN

Official  Journal  of  the  European  Communities

7.12.98

As  for  the  processing  of  the  complaints  and  the  time
involved,  it  appeared  from  the  Commission’s  comments
that:

unfounded or where the complainant appears to have lost
interest  in  the  complaint.

(1) the  receipt  of  complaints  is  acknowledged;

(2) the  complainant  is  kept  informed  about  the  action

taken  by  the  Commission;

(3) under  the  Commission’s  internal  rules,  a  decision  to
close  the  file  without  taking  any  action  or  a  decision
to  initiate  official  infringement  proceedings  must  be
taken within a maximum period of one year from the
date  when  the  complaint  was  registered,  except  in
special  cases,  the  reasons  for  which  must  be  stated.
These  reasons  may  relate  to  the  time  taken  by
necessary  discussions  with  national  authorities
concerned  and  awaiting  reply  to  the  Commission’s
requests  for  information  from  the  same  authorities.

The  observance  of  these  rules  appears  to  be  an  adequate
means for ensuring both that the citizen is kept informed
about  the  processing  of  his  complaint  and  that  the
complaint  will  be  processed  without  undue  delay  and
within  a  maximum  period  of  one  year,  unless  there  are
special  reasons.  The  Ombudsman  therefore  found  that
instance  of
inquiry  had  not 
the 
maladministration  in  this  respect.

revealed  any 

The Commission has taken note of suggestions made to it
with  regard  to  improving  citizens’  procedural  rights  in
the  Article  169  procedure  in  the  period  before  judicial
proceedings  may  begin.  It  appeared  that  in  future,  the
Commission  would,  in  all  cases,  inform  the  complainant
of its intention to close the file with the reasons why the
Commission  finds  that  there  is  no  infringement  of
Community  law,  except  where  a  complaint  is  manifestly

committed 

itself,  of 

This  is  a  valuable  step  in  the  process  to  which  the
Commission  has 
constant
development and improvement in the procedural position
of  the  complainant  in  the  Article  169  procedure  in  the
period before judicial proceedings may begin. The citizens
will  thereby  have  the  opportuniy  to  put  forward  views
and criticisms concerning the Commission’s point of view
before it commits itself to a final conclusion that there is
no  infringement  of  Community  law.

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

Further  remarks  by  the  European  Ombudsman

infringement  proceedings. 

The  Commission  has  stated  that  when  acknowledging
receipt  of  a  complaint,  it  forwards  an  annex  to  the
complainant setting out the purpose and giving details of
the 
the
Commission  also  provides  information  about  the  role
played  by  national  courts 
in  ensuring  the  proper
application  of  Community  law.  In  other  contexts,  the
Commission  equally  stresses  the  crucial  role  of  national
courts  in  this  respect.

this  annex 

In 

there  also  exist 

the  Member  States 

In 
important
extra-judicial  mechanisms,  such  as  national  ombudsmen
and  similar  bodies,  created  with  a  view  to  providing  a
remedy  and  redress  to  citizens  exposed  to  an  improper
law.  The  Ombudsman  therefore
application  of  the 
suggested  to  the  Commission  that 
it  consider  the
possibility  of  also  providing  information  about  these
bodies  when  appropriate.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/143

4.  RELATIONS  WITH  THE  EUROPEAN  PARLIAMENT,  THE  EUROPEAN
COMMISSION  AND  THE  COUNCIL  OF  THE  EUROPEAN  UNION

The  mission  of  the  European  Ombudsman  is  to  protect
and promote, within the limits of his mandate, the rights
of  European  citizens  under  Community  law.  However,
the Ombudsman shares this mission with other organs of
the  Community.  Effective  action  to  secure  the  rights  of
citizens  requires  cooperation,  good  working  relations,
the
mutual 
regular 
Ombudsman  and  the  other  Community  organs, 
in
particular  the  European  Parliament  and  the  European
Commission  which  also  deal  with  citizens’  complaints.

contacts  between 

trust  and 

4.1.  THE  EUROPEAN  PARLIAMENT  AND  THE

COMMITTEE  ON  PETITIONS

Citizens of the European Union have the right to petition
the  European  Parliament  and  to  complain  to  the
European  Ombudsman 
the  Treaty
establishing the European Community). The Ombudsman
and  the  Committee  on  Petitions  of  the  Parliament  are
thus 
institutions.
Cooperation  between  the  two  bodies  is  therefore  of
special importance.

(Article  8d  of 

complementary 

intended 

to  be 

From  the  beginning  of  the  office  of  the  European
Ombudsman, close cooperation has been established with
the  Committee  on  Petitions  and  there  is  regular  contact
between  the  two  secretariats.  The  respective  functions
and  working  methods  of  the  two  bodies  have  been
clarified  and  there 
is  an  agreement  between  them
concerning  the  mutual  transfer  of  complaints  and
petitions,  in  appropriate  cases  and  with  the  consent  of
the  complainant  or  petitioner.

form  on  which  a  complaint 

A  standard 
the
Ombudsman  may  be  made  has  been  widely  distributed.
The  form  gives  complainants  the  opportunity  to  state
whether they consent to their complaint being transferred
to  another  competent  body  when  case  the  Ombudsman
cannot  deal  with  it.

to 

In  the  case  of  complaints  which  are  outside  the  mandate
of  the  Ombudsman  but  which  could  be  dealt  with  as
petitions  by  the  European  Parliament,  the  Ombudsman
transfers  the  complaint  directly  to  Parliament  to  be  dealt
with  as  a  petition,  provided  that  consent  has  been  given.
In cases where the complaint form has not been used, the
Ombudsman  writes  to  the  complainant  proposing  to
transfer  the  complaint  to  the  European  Parliament  to  be
dealt  with  as  a  petition.

are not clearly formulated or sufficiently documented, the
Ombudsman  informs  the  complainant  of  the  possibility
to  submit  a  petition  to  the  European  Parliament,
enclosing  a  copy  of  the  leaflet  about  the  right  of
petition.

two  petitions  were 

In  1997, 
the
to  be  dealt  with  as  complaints.  13
Ombudsman 
complaints  were  transferred  to  the  European  Parliament
to  be  dealt  with  as  petitions  and  86  complainants  were
advised  to  petition  the  European  Parliament.

transferred 

to 

The Committee on Petitions examines the Annual Report
of the Ombudsman and makes its own report about it to
Parliament.  The  Ombudsman  presented  his  Annual
Report  for  the  year  1996  to  the  Committee  on  Petitions
in  Brussels  on  21  April.

On  14  July  1997,  Mr  Söderman  presented  the  Annual
Report  for  1996  to  the  plenary  session  of  the  European
Parliament 
followed  by
in  Strasbourg.  This  was 
discussion in the Parliament of the Annual Report and of
the  Committee  on  Petitions’  report.  The  Ombudsman
accepted  an  invitation  to  attend  a  press  conference
arranged  by  the  Committee  on  Petitions  on  15  July,
together  with  Mr  Alessandro  Fontana,  Chairman  of  the
Committee  on  Petitions,  and  Mr  Nicolaos  Papakyriazis,
Rapporteur  for  the  Committee’s  report.

In  accordance  with  Article  3(7)  of  the  Statute,  the
European  Ombudsman  has  the  opportunity  to  present  a
special  report  to  the  European  Parliament  in  cases  where
Parliament  can  take  action  to  assist  the  Ombudsman  in
accordance  with  the  Statute.

to 

the  President  of 

On  15  December,  the  Ombudsman  presented  his  first
Special  Report 
the  European
Parliament,  Mr  Jose´ María  Gil-Robles.  The  Special
Report  followed  an  own-initiative  inquiry  into  public
access  to  documents  held  by  15  Community  institutions
and  bodies.  The  inquiry  was  launched  in  June  1996  and
was  concluded  by  a  decision  of  the  Ombudsman  dated
20 December 1996 in which draft recommendations were
addressed  to  14  Community  institutions  and  bodies (1).

All  the  institutions  and  bodies  sent  detailed  opinions  to
the  Ombudsman,  as  required  by  Article  3(6)  of  the

In  the  case  of  complaints  which  deal  with  matters  that
could  potentially  be  the  subject  of  a  petition,  but  which

(1)  Annual  Report  1996,  (OJ  C  272,  8.9.1997),  pp.  40-43.

C  380/144

EN

Official  Journal  of  the  European  Communities

7.12.98

Statute.  The  Special  Report  analysed 
the  detailed
opinions  and  drew  attention  to  matters  which  the
European  Parliament  might  wish  to  pursue  further.
However,  it  contained  no  formal  recommendations.

State.  To  facilitate  such  complaints  the  Commission  has
published  a  standard  complaint  form  in  the  Official
Journal  fo  the  European  Communities (1).

In  addition  to  the  contacts  with  the  Committee  on
Petitions,  Mr  Söderman  also  attended  a  meeting  of  the
Committee on the Rules of Procedure on 24 September in
Brussels  at  which  proposed  amendments  to  Parliament’s
Rules 
Proposed
amendments to Rule 161 were presented in a draft report
by  the  Rapporteur,  Mr  Brian  Crowley.  The  Committee
on  Petitions  gave  its  opinion  on  10  November  1997.

Procedure  were 

discussed. 

of 

During his visit to Belgium on 25 and 27 November, the
European  Ombudsman  attended  a  meeting  of  the
Committee  on  Legal  Affairs  and  Citizens’  Rights  of  the
European  Parliament  for  an  exchange  of  views  in  the
context  of  the  Committee’s  report  on  the  Fourteenth
Annual  Report  of  the  Commission  on  the  monitoring  of
the  application  of  Community  law  (rapporteur  Astrid
Thors).

into 

inquiry 

Mr  Söderman  addressed  the  Committee  to  inform  it  of
his  own-initiative 
the  Commission’s
administrative  procedures  for  dealing  with  complaints
concerning  infringements  of  Community  law  by  Member
State.  (Note:  on  29  January  1998,  the  European
Parliament  adopted  the  Committee’s  report  and  a
resolution  welcoming  the  Ombudsman’s  initiative).

4.2.  THE  EUROPEAN  COMMISSION

institution  with  which 
regular  dialogue 

the
The  other  European 
Ombudsman  maintains 
and
a 
cooperation  is  the  European  Commission.  Most  of  the
complaints  that  lead  to  an  inquiry  by  the  Ombudsman
concern  alleged  instances  of  maladministration  in  the
activities  of  the  Commission.  This  is  normal,  since  the
Commission  is  the  main  Community  organ  that  makes
administrative  decisions  which  have  a  direct  impact  on
citizens.

Under  Article  155  of  the  Treaty  establishing  the
European Community, the Commission has responsibility
to  ensure  that  Community  law  is  observed,  in  particular
by  Member  States.  It  can  bring  proceedings  in  the  Court
of  Justice  for  this  purpose  under  Article  169  of  the
Treaty.  As  Guardian  of  the  Treaty,  the  Commission  has
an  important  responsibility  for  ensuring  that  the  legal
rights  of  citizens  of  the  European  Union  are  respected.
Citizens  can  complain  to  the  Commission  if  they  feel
their rights are being infringed, particularly by a Member

the  Ombudsman 
inquiry 

launched  and
During 
the  year, 
concluded  an  own-initiative 
into  the  Com-
mission’s  administrative  procedures  for  dealing  with
complaints  concerning  infringements  of  Community  law
by Member State. The Ombudsman’s decision concluding
the  inquiry  is  summarised  in  chapter  3.

The  European  Ombudsman  had  a  meeting  with  the
Commissioners,  chaired  by  President  Santer,  on  23  April
and  presented  his  Annual  Report 
for  1996.  The
Commissioners  and  Mr  Söderman  exchanged  views  on
matters  of  common  interest.

On  4  July,  Mr  Söderman,  accompanied  by  his  Principal
Officer  Ian  Harden,  had  a  meeting  with  the  Directors-
General  of  the  Commission.

On  10  October,  Mr  Jose´ Martinez  Aragon,  Senior  Legal
Officer,  and  Mrs  Ursula  Garderet,  Administrative
Assistant  of  the  Ombudsman,  met  with  officials  from
Directorate  of  Employment,  Industrial  Relations  and
Social  Affairs  (DG  V)  to  carry  out  an  inspection  of
documents  in  relation  to  a  complaint.

Mr  Söderman  and  his  Principal  Officer  Ian  Harden  met
the  Secretary-General  of  the  Commission,  Mr  Carlo
Trojan,  and  Mr  Jean-Claude  Eeckhout,  Director  of
Directorate E of the General Secretariat in Strasbourg on
21  October.  The  Ombudsman  and  the  Secretary-General
agreed  that,  in  some  cases,  an  informal  meeting  could
provide an appropriate way to pursue a friendly solution
in  accordance  with  Article  3(5)  of  the  Statute  and
discussed  the  possibility  of  the  Commission  adopting  a
Code  of  good  administrative  behaviour  for  its  officials.
They  also  agreed  to  cooperate  in  organising  a  further
seminar  for  liaison  officers  of  national  ombudsmen  and
similar  bodies.  Finally,  the  Ombudsman  informed  the
Secretary-General  that  he  considered  the  work  done  by
the  Euro-jus  network  of  part-time  legal  advisers  working
at  the  Commission  representations  of  the  Member  States
to  be  of  great  value  in  providing  effective  advice  to
European 
rights  under
concerning 
Community  law.

citizens 

their 

(1)  OJ  C  26,  1.2.1989,  p.  6.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/145

4.3.  THE  COUNCIL  OF  THE  EUROPEAN  UNION

Mr  Söderman  met  Mr  Piris,  Director-General  of  the
Legal  Service  of  the  Council  on  22  April  in  Brussels.  He
also  met  Mr  Boixareu,  Director-General  in  the  Council
Secretariat for Budget, Administration and Relations with
the  Community  institutions.

complaints  concerning  alleged  maladministration  by  the
General  Secretariat  of  the  Council  acting  as  appointing
authority  under  the  Staff  Regulations.  Henceforth  the
General  Secretariat  of  the  Council  is  competent  to  deal
with such complaints and to provide relevant information
directly  to  the  European  Ombudsman.

The Secretary-General of the Council, Mr Jürgen Trumpf,
informed  the  Ombudsman  that  on  9  June,  the  Council
had  adopted  a  new  procedure  for  the  treatment  of

Mr  Söderman  was  invited  to  lunch  with  Coreper  in
Brussels on 25 July. He gave an overview of his work as
European  Ombudsman  and  answered  questions.

C  380/146

EN

Official  Journal  of  the  European  Communities

7.12.98

5.  RELATIONS  WITH  NATIONAL  OMBUDSMEN  AND  SIMILAR  BODIES

To  safeguard  the  rights  of  European  citizens,  a  flexible
system  of  cooperation  is  being  developed  between  the
European  Ombudsman  and  ombudsmen  and  similar
bodies  in  the  Member  States.

The  implementation  of  many  aspects  of  Community  law
is  the  responsibility  of  national,  regional  or 
local
administrations  in  the  Member  States.  Complaints  from
citizens who consider that such authorities have infringed
their  rights  under  Community  law  are  outside  the
mandate  of  the  European  Ombudsman,  even  when  a
right  of  Union  citizenship  is  involved,  such  as  the
freedom of movement guaranteed by Article 8a of the EC
Treaty.  In  many  cases,  such  complaints  could  be  dealt
with  effectively  by  national  Ombudsmen  or  similar
bodies  (such  as  petitions  committees),  who  are  in-
that  concern 
creasingly 
the
law  by  national
implementation  of  Community 
administrations.

involved  with  matters 

formulated  proposals 

the  practical
participants 
possibilities  of 
the
production  of  a  regular  liaison  letter  by  the  European
Ombudsman  and  the  organisation  of  further  seminars.

cooperation, 

including 

future 

for 

The  first  liaison  letter  was  distributed  at  the  end  of
October 1997. It is intended that the liaison letter should
eventually  be  published  in  electronic  form.  To  facilitate
this  development  and  the  possibility  of  an  Internet  user
group  for  the  network,  the  European  Ombudsman’s
office undertook a survey of e-mail and Internet usage by
the  national  Ombudsmen  and  similar  bodies.

the  offices  of 

Mr  Claude  Desjean,  Secretary-General  of  the  French
Ombudsman  visited 
the  European
Ombudsman  on  5  June  1997  and  was  informed  by  Ian
Harden  about  management  and  budgetary  questions
relating  to  the  provision  of  administrative  services  to  the
European  Ombudsman.

5.1.  THE  LIAISON  NETWORK

5.2.  COOPERATION  IN  DEALING  WITH  COMPLAINTS

At  a  seminar  held  in  Strasbourg  in  September  1996,  the
national  Ombudsmen  and  similar  bodies  and 
the
European  Ombudsman  agreed  to  establish  a  network  of
liaison  officers.  The  network  is  intended  to  promote  a
free  flow  of  information  about  Community  law  and  its
implementation  and  to  make  possible  the  transfer  of
complaints  to  the  body  best  able  to  deal  with  them.

The  1996  Strasbourg  seminar  agreed  that  the  European
Ombudsman  would  be  willing  to  receive  queries  from
national  Ombudsmen  about  Community  law  and  either
provide  replies  directly,  or  channel  the  query  to  an
appropriate  Union  institution  or  body  for  a  response.

the  Committee  on  Petitions  of 

The  European  Ombudsman  organised  a  seminar  for  the
liaison  officers  in  Brussels,  on  23  and  24  June  1997,
dealing  with  the  supervision  of  the  application  of
Community  law  on  a  national  level.  Speakers  included
Mr  Jacob  Söderman,  Mr  Alessandro  Fontana,  Chairman
of 
the  European
Parliament,  Mr  Lars  Clevesköld  from  the  Swedish
Ombudsman’s  office,  Mr  Axel  Voss,  the  Euro-jus
representative from the Commission information office in
Germany,  Mr  Peter  Dyrberg 
the  European
Ombudsman’s office, Mr Van Nuffel of the Legal Service
of  the  European  Commission  and  Mr  Saverio  Baviera
from  the  Committee  on  Petitions  of  the  European
Parliament. Participants in the seminar also attended part
of  a  meeting  of  the  Committee  on  Petitions.

from 

to 

two  such  queries 

During  1997, 
the  European
Ombudsman were dealt with. They were sent by the Irish
Ombudsman  and  concerned  complaints  with  which  he
was  dealing.  The  first  query,  sent  on  14  March  1997,
concerned 
law
provisions  concerning  the  payment  of  extensification
premiums.  The  second,  sent  on  20  June  1997,  concerned
compensation  following  repayment  of  milk  super  levy
under  Council  Regulation  (EEC)  No  2055/93.

interpretation  of  Community 

the 

The  queries  were  forwarded  to  the  Commission,  with  a
request  for  a  reply  within  three  months.  The  replies
received  were  transmitted  to  the  Irish  Ombudsman.

During  the  final  session  of  the  seminar,  chaired  by
Michael  Brophy  of  the  Irish  Ombudsman’s  office,  the

The  European  Ombudsman  transferred  three  complaints
which  were  against  national  authorities  and  therefore
outside  his  mandate  to  be  dealt  with  by  the  relevant
national  ombudsman:  17/97/BB  (a  confidential  case)  and

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/147

1006/97/BB were transferred to the Finnish Parliamentary
Ombudsman  and  650/97/PD  was  transferred  to  the
national  Ombudsman  of  the  Netherlands.  Complaint
705/97/VK  was  similarly  transferred  to  the  Luxembourg
Parliament  to  be  dealt  with  as  a  petition.

In another case (257/97/IJH), a Member of the European
Parliament  complained  about  the  way  in  which  the
secretariat  of  the  Committee  on  Petitions  had  dealt  with
a  petition  from  one  of  his  constituents.  The  European
Ombudsman decided that there were no grounds for him
to  open  an  inquiry.  However,  he  requested  information
from  the  Portuguese  Ombudsman  (Provedor  de  justiça),
Mr  Jose´ Mene´res  Pimentel  about  the  underlying  issue,
involved  the  confiscation  by  the  Portuguese
which 
to 
authorities  of  a  vehicle  belonging 
the  MEP’s
the  European
informed 
constituent.  Mr  Pimentel 
Ombudsman  that  the  matter  had  been  the  subject  of  a
decision  by  a  Portuguese  court  and  forwarded  a  copy  of
the  relevant  court  order.  The  European  Ombudsman
transmitted  this  information  to  the  MEP.

5.3.  COOPERATION  WITH  REGIONAL  OMBUDSMEN

AND  SIMILAR  BODIES

In  order  to  promote  effective  cooperation  between  the
European  Ombudsman  and  his  colleagues  at  regional
level, the Ombudsman of Catalonia, El Síndic de Greuges
de  Catalunya,  Mr  Anton  Cañellas,  organised  a  two-day
seminar on 28 to 30 October in Barcelona. The European
Ombudsman  attended  the  meeting,  accompanied  by  Mr
Peter  Dyrberg  and  Mr  Jose´ Martinez  Aragon  from  his
secretariat.  Other  participants  in  the  meeting  were  the
representatives  of  regional  ombudsmen  and  regional
committees on petitions of Member States, the Chairman
of 
the  European
Parliament, Mr Alessandro Fontana, and the Head of the
Committee’s  secretariat,  Mr  Saverio  Baviera.

the  Committee  on  Petitions  of 

Mr  Söderman  gave  a  speech  dealing  with  the  objectives
of  cooperation  between  the  European  institutions  and
regional  ombudsmen  and 
the
supervision of the implementation of Community law (El
papel  del  Defensor  del  pueblo).

similar  bodies 

in 

Mr  Dyrberg  gave  a  speech  analysing  the  recent  case-law
of  the  Court  of  Justice  in  a  number  of  areas  including
free  movement  and  the  principle  of  non-discrimination.
Mr  Martinez  Aragon  made  a  speech  on  the  role  of  local
entities  and  regions  in  the  European  Union’s  work,
particularly  as  regards  their  responsibility  for  the  correct
application  of  Community  law.

It  was  agreed 

The final declaration of the seminar stressed the need for
closer  cooperation. 
regional
ombudsmen  and  similar  bodies  would  also  appoint
liaison  officers  to  coordinate  their  cooperation  with  the
European Ombudsman in the field of Community law. A
follow-up  seminar  was  foreseen  to  take  place  during
1998, to be organised by the Ombudsman of the Flemish
Region  of  Belgium,  Mr  Jan  Goorden.

that 

5.4.  MEETING  OF  THE  EUROPEAN  NATIONAL

OMBUDSMEN

On  9  to  11  September,  Mr  Söderman  attended  the  sixth
annual  meeting  of  the  European  national  ombudsmen
held  in  Jerusalem,  Israel.  He  was  accompanied  by  his
Principal  Officer,  Ian  Harden,  and  his  Press  Officer,  Ms
Ilta Helkama.

The meeting was hosted by Judge Mrs Miriam Ben-Porat,
Public  Complaints  Commissioner  and  State  Comptroller.
The  participants  came  from  over  20  countries.

Mrs Ben-Porat gave the opening speech on the topic ‘The
Ombudsman  as  a  defender  of  democracy  and  human
rights’. During the speech, she announced that in her role
as  Public  Complaints  Commissioner 
she  would
henceforth be known as ‘the Ombudsman’. She also cited
with 
term
‘maladministration’  given  in  the  Annual  Report  of  the
European  Ombudsman  for  1995.

explanation 

approval 

the 

the 

of 

Mr Söderman gave a speech on ‘The role of the European
Ombudsman’  at  the  first  session,  chaired  by  Mr  Claes
Eklundh,  Chief  Parliamentary  Ombudsman  of  Sweden
(Chefjustitieombudsman).  Speeches  dealing  with 
the
contents  and  impact  of  an  Ombudsman’s  Annual  report
were  made  by  Mr  Marten  Oosting,  Parliamentary
Ombudsman  of 
(de  nationale
ombudsman),  and  Mr 
Jacques  Pelletier,  French
Ombudsman (Me´diateur de la Re´publique) and chairman
of  the  session.

the  Netherlands 

At  the  final  session,  chaired  by  Sir  William  Reid,  the
former United Kingdom Parliamentary Commissioner for
Administration,  Katalin  Gönczöl  from  Hungary  dealt
with  the  issues  of  asylum,  refugees  and  immigration.
During  the  debate  that  followed,  it  was  agreed  that  the
provisions  of  the  Treaty  of  Amsterdam  concerning
asylum  and  immigration  made  it  necessary  to  envisage
closer  cooperation  on  these  issues  between  the  European
national  ombudsmen.  The  European  Ombudsman  was
invited  to  organise  such  cooperation.

C  380/148

EN

Official  Journal  of  the  European  Communities

7.12.98

6.  PUBLIC  RELATIONS

The  information  strategy  of  the  European  Ombudsman
has  two  objectives.  The  first  is  to  inform  people  who
might  have  a 
complain  about
reason 
maladministration  in  the  activities  of  a  Community
institution  or  body  of  their  right  to  complain  to  the
European  Ombudsman  and  how  to  do  so.

real 

to 

The  second  objective  is  to  improve  relations  between  the
Union and its citizens by informing the broader public of
the  Ombudsman’s  role  in  helping  to  realise  the  Union’s
commitment  to  open,  democratic  and  accountable  forms
of  administration.  At  the  same  time,  it  is  essential  not  to
create  false  expectations  that  might  simply  result  in  an
increase 
in  the  number  of  complaints  outside  the
European  Ombudsman’s  mandate.

The information strategy has therefore mainly focused on
targeting  accurate  information  to  groups  of  potential
complainants.  At  the  same  time,  both  conventional
publications  and  the  Ombudsman’s  website  are  intended
to be interesting and lively to allow them to be used also
for  educational  purposes,  particularly  for  young  people
learning  about  Europe.

During  1997,  progress  was  made  in  achieving  both
objectives.  Both  the  total  number  of  complaints  and  the
number  of  admissible  complaints  increased.  However,  it
is clear that much more needs to be done, particularly in
relation to Member States such as Italy and Germany, to
ensure  that  all  those  who  may  have  a  real  reason  to
complain  to  the  Ombudsman  know  of  their  right  to  do
so.

THE  CHADWYCK-HEALEY  AWARD

The European Information Association presented the first
EIA  Chadwyck-Healey  award  to  Mr  Jacob  Söderman  on
29 April for his achievements in European information in
1997.  The  Chadwyck-Healey  award  is  given  annually  to
the  person  who  has  achieved  most  in  promoting  and
advancing  access  to  information  about  the  European
Union  and  the  wider  Europe.

The  award  was  given  to  Mr  Söderman  in  recognition  of
his contribution to promoting European citizens’ right of
to  official  documents  held  by  Community
access 
institutions,  including  his  call  for  access  to  documents  to
be  guaranteed  in  the  revised  Treaty  on  European  Union.
The  amount  of  the  award  was  donated  to  Amnesty
International.

THE  OECD  SEMINAR  ON  ETHICS  IN  THE  PUBLIC
SECTOR

Mr  Söderman  attended  a  symposium  on  ‘Ethics  in  the
public sector: challenges and opportunities for the OECD
countries’  held  on  3  and  4  November  in  Paris.  The
symposium  was  attended  by  government  officials  and
academic experts and dealt with topics such as ethics and
greater transparency in government, ethics and values for
‘the  new  public  management’  and  the  interpenetration
between public and private sectors. Mr Söderman chaired
the  first  working  session  on  ‘Ethical  challenges  in  a  time
of  change’.

PRESENTATION  OF  THE  ANNUAL  REPORT  FOR  1996  TO
THE  EUROPEAN  PARLIAMENT

6.1.  HIGHLIGHTS  OF  THE  YEAR  1997

THE  OFFICIAL  INAUGURATION  OF  THE  OFFICES  IN
STRASBOURG

The Annual Report of the European Ombudsman for the
year  1996  was  presented  to  the  European  Parliament  at
its  plenary  session  in  Strasbourg  on  14  July  1997.

The  official  inauguration  of  the  European  Ombudsman’s
offices  in  Strasbourg  took  place  on  8  April  in  the
presence of the President of the European Parliament, Mr
Jose´ María Gil-Robles, the French Minister for European
affairs  (De´le´gue´ aux  affaires  europe´ennes),  Mr  Michel
Barnier and the French National Ombudsman (Me´diateur
de  la  Re´publique),  Mr  Jacques  Pelletier.

A  joint  press  conference  to  mark  the  occasion  was  given
by  Mr  Barnier,  Mr  Pelletier  and  Mr  Söderman.

PRESENTATION OF THE FIRST SPECIAL REPORT OF THE
OMBUDSMAN

The Ombudsman presented his first Special Report to the
President  of  the  European  Parliament,  Mr  Jose´ María
Gil-Robles,  on  15  December.  The  report  was  made  in
accordance with Article 3(7) of the Statute and deals with
the  outcome  of  the  own  Ombudsman’s  own-initiative
inquiry 
to  documents  held  by
Community  institutions  and  bodies.

into  public  access 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/149

6.2.  CONFERENCES  AND  MEETINGS

An  information  campaign  to  raise  the  level  of  awareness
the
the  existence  of 
among  European  citizens  of 
in  1995.  Significant
European  Ombudsman  began 
the
contributions 
to 
Ombudsman’s  programme  of  official  visits 
the
Member  States,  which  began  in  1996,  as  well  as  by
public  lectures  and  participation  in  conferences  and
meetings.

this  campaign  are  made  by 
to 

During 1997, Mr Söderman continued the programme of
bringing  the  European  Ombudsman  to  the  European
citizens  and  the  media  in  the  Member  States.

The  Ombudsman  and  his  staff  also  continued  giving
lectures and making speeches on the role and functions of
the European Ombudsman in European and international
congresses,  seminars  and  meetings.  In  addition,  Mr
Söderman  had  meetings  with  numerous  researchers  and
groups  of  visitors.  As  well  as  the  specific  visits  detailed
below,  regular  visits  were  made 
to  Brussels  and
Luxembourg 
for  meetings  with  other  Community
institutions  (see  also  part  4).

BELGIUM

On  18  March,  the  European  Ombudsman  met  with  the
newly 
elected  Belgian  Federal  Ombudsmen  Mr
Pierre-Yves  Monette  and  Mr  Herman  Wuyts  in  Brussels
them.  Mr
and  exchanged  work  experiences  with 
Söderman  was  accompanied  by  Peter  Dyrberg.

On  6  May,  Peter  Dyrberg  participated  in  the  conference
‘EU  citizenship  —  current  state  and  future  perspectives’
in  Brussels  arranged  by  the  European  Citizens  Action
Service.

Mr  Söderman  made  an  official  visit  to  Belgium  on  25  to
27  November.  During  his  stay,  he  visited  the  Belgian
Federal  Ombudsman’s  Office  and  met  the  Federal
Ombudsmen, Mr Wuyts and Mr Monette. He also gave a
talk to the legal staff of the Office, about his experiences
as  a  European  Ombudsman  and  a  former  Finnish
Ombudsman.

Mr  Söderman  also  visited  the  Belgian  Chamber  of
Representatives  where  he  was  welcomed  by  the  Vice-
President  of  the  Parliament,  Mr  Van  der  Mael  and  other
Members of the Belgian Parliament. He made a speech to
the Committee on Petitions of the Belgian Parliament and
to the Parliamentary Committee responsible for European
issues.

The  last  day  of  the  visit  was  devoted  to  a  meeting  with
representatives  from  Belgian  civil  society,  held  in  the
European  Parliament  building.  There  was  widespread
participation  in  the  meeting  and  numerous  questions
were  addressed  to  the  European  Ombudsman.  The  press
conference  afterwards  was  attended  by  journalists  from
the  most  important  Belgian  newspapers,  such  as  De
Morgen,  Le  Soir,  La  Libre  Belgique,  Het  Laatste  Nieuws
and  De  Financieel  Economische  Tijd,  which  gave  good
coverage  of 
to
Belgium.

the  European  Ombudsman’s  visit 

During  his  visit  to  Belgium,  Mr  Söderman  visited  the
Commission Representation in Belgium. He met with Mr
Vandebon,  Director  of  the  Representation,  with  Mr
Moës,  Deputy  Director,  as  well  as  with  Mr  P.  Vande
Casteele from the Euro-jus network who talked about his
experience  as  a  Euro-jus  adviser.

DENMARK

On  19  to  21  March,  the  European  Ombudsman  visited
Denmark  accompanied  by  Peter  Dyrberg.  He  met  and
exchanged  views  with  Mr  Ove  Fich,  Chairman  of  the
Danish Parliament’s Committee on EU matters, Mr Bjørn
Elmquist,  Chairman  of  the  Committee  on  Legal  Affairs,
and the members of the two committees. The Committee
on EU matters subsequently made a report on the Annual
Report  of  the  European  Ombudsman  for  1996,  which  it
published  on  8  October  1997.

Mr  Söderman  also  had  a  meeting  with  the  Danish
Ombudsman  (Folketingets  Ombudsmand),  Mr  Hans
Gammeltoft  Hansen  and  his  staff.

At the information office of the European Parliament, Mr
Söderman was welcomed by Mr Thomas, Director of the
Office, and Mr Boumans, Deputy Director. The exchange
of views dealt with the work of the Ombudsman and the
mission  of  the 
information  office  as  well  as  the
possibilities of promoting citizens’ awareness of European
Ombudsman  on  Europe  Day  which  will  be  held  on  9
May  1998.

Mr  Söderman  had  a  meeting  with  Mr  Thomas  A.
Christensen,  Director  of  the  Commission  representation
in  Copenhagen,  and  his  staff,  organisers  of  the  visit,  and
gave  a  press  conference.  He  also  had  a  meeting  with  Mr
Mikael  Bramsen,  Head  of  Parliament’s 
information
office.  At  the  Parliament  information  office,  he  met  at
lunch,  inter  alia,  with  Mr  Ole  Due,  former  President  of
the  European  Court  of  Justice.

C  380/150

EN

Official  Journal  of  the  European  Communities

7.12.98

GERMANY

Mr  Söderman  paid  a  visit  to  Germany  from  3  to  5
March,  accompanied  by  Ms  Vicky  Kloppenburg.  In
Mainz,  he  met  with  the  Ombudsman  of  Rheinland-Pfalz,
Mr  Ullrich  Galle.  They  compared 
their  different
mandates  and  functions  as  well  as  discussing  concrete
cases concerning Community law. Mr Söderman also met
the  Vice-President  of  the  Rheinland  Pfalz  Parliament,  Mr
Hans-Günter  Heinz  and  the  chairman  of  its  Committee
on  Petitions,  Mr  Klaus  Hammer.  In  a  press  conference,
Mr  Söderman  gave  an  overview  of  his  work  and
discussed  cases  he  had  dealt  with.

European  Ombudsman  and  national  and  regional
ombudsmen  of  the  Member  States  and  discussed  the
possibility  of  a  meeting  with  the  ombudsmen  at  the
Länder  level  in  Germany.

Mr  Galle  also  had  the  opportunity  to  meet  the  chairman
of  the  Committee  on  Petitions,  Mr  Sandro  Fontana,  the
Vice-Chairman  Mr  Ullmann  and  Mrs  Schmidbauer,  a
member  of  the  Committee  on  Petitions.  He  also  met  Mr
Willi  Rothley,  Vice-Chairman  of  the  Legal  Affairs
Committee.

SPAIN

system 

the  German  Parliament 

In  Bonn,  Mr  Söderman  attended  a  conference  on  ‘The
right  to  petition  put  on  two  feet’  organised  by  Mrs
Christa  Nickels,  the  President  of  the  Committee  on
Petitions  of 
(Deutsche
Bundestag),  in  connection  with  an  initiative  to  introduce
a  national  ombudsman 
in  Germany.  Mr
Söderman also took the opportunity to have an exchange
of  views  with  officials  of  the  administration  of  the
Committee  on  Petitions  of  the  German  Parliament,
including.  Dr  Friederike  Freifrau  von  Welck,  Mr  Franz
Kremser  and  the  liaison  officer,  Mrs  Inge  Gerstberger.
Mr  Söderman  also  met  the  Minister  of  State  at  the
Foreign  Office  and  German  representative  at 
the
Intergovernmental  Conference,  Dr  Werner  Hoyer  for  an
exchange  of  views  and  information.

Mr  Söderman  was  invited  to  give  a  speech  on  his  work
and  mandate  at  a  dinner  organised  by  the  Office  of  the
European  Parliament 
in  Bonn  to  representatives  of
EU-related  associations  and  organisations,  high  civil
servants  and  journalists  from  Bonn.  In  addition,  a  round
the  Office  with
table  discussion  was  held  at 
representatives  of  associations  dealing  with  consumer
interests,  environmental  matters,  agriculture,  and  trade
and  industry.  Mr  Söderman  also  met  with  the  Head  of
the  European  Commission  Office  in  Bonn,  Mr  Axel
Bunz,  and  the  citizens’s  adviser,  Mr  Axel  Voss  for  an
exchange  of  views.  At  the  Press  Club  in  Bonn,  he  had  a
meeting  with  journalists.

Peter  Dyrberg  gave  a  speech  on 
‘The  European
Ombudsman as a component of the union’s commitment
to  transparency  and  democracy’  at  a  conference  entitled
‘Civil  society  Europe’,  held  on  4  April  in  Lochum,
Germany  and  organised  by  the  German  foundation
Mitarbeit.

Mr  Galle,  Ombudsman  of  Rheinland-Pfalz,  paid  an
official  visit  to  the  European  Ombudsman  on  21
October.  In  the  discussions,  Mr  Galle  and  Mr  Söderman
stressed the importance of good cooperation between the

the  meeting 

the  European  Movement 

Mr  Söderman  attended 
‘VI  Jornadas
Europeas en el Parlament de Catalunya’ organised by the
in
Catalan  Council  of 
Barcelona,  Spain.  The  Ombudsman  gave  a  speech  ‘El
papel  del  Defensor  del  pueblo  europeo  y  la  ciudadanía
europea’  on  27  January.  Among  the  speakers  were  the
President  of  the  Catalan  Parliament,  Mr  Joan  Reventós,
the  President  of  the  Catalan  Council  of  European
Movement,  Mr  Eduard  Sagarra  and  the  President  of  the
Federal Council of the European Movement in Spain, Mr
Carlos  Ma  Bru.  The  meeting  had  a  good  press  coverage
and  Mr  Söderman  gave  several  radio  interviews.

On  27  to  29  January,  Mr  Jose´ Martinez  Aragon
represented  the  Ombudsman  at  a  conference  ‘The  ICG:
information  and  role  for  the  citizens’  arranged  by
Universidad Alcalá de Henares in Madrid, Spain. Among
the  speakers  were  the  Spanish  Secretary  of  State  for
European  Affairs,  Mr  De  Miguel,  Mr  Moran  (Chairman
of  the  Institutional  Affairs  Committee),  Mr  Medina,  Mr
Verde  i  Aldea  and  Mr  Robles  Piquer  (Vice-Presidents  of
the  European  Parliament),  the  Spanish  Ombudsman,  Mr
Fernando  Ávarez  de  Miranda  y  Torres,  as  well  as
academics  and  journalists.  Mr  Martinez  Aragon  gave  a
speech  on  the  work  of  the  Ombudsman  in  relation  to
transparency.  The  event  received  good  press  coverage.

invitation  by 

The  Second  Annual  Congress  of  Latin  American
Ombudsman  took  place  in  Toledo,  Spain  on  14  to  16
April.  Following  an 
the  Spanish
Ombudsman 
(Defensor  del  Pueblo),  Mr  Fernando
Álvarez de Miranda y Torres, Mr Söderman delivered the
opening  address  on  ‘Citizens’s  rights  and  processes  of
economic  integration’  (Derechos  ciudadanos  y  procesos
de  integración  económica:  Reflexiones  críticas  desde  la
perspectiva  de  la  Unión  Europea).  Participants  in  the
Congress  included  all  the  national  ombudsmen  of  Latin
America, 
the  Human  Rights
Commissions  of  the  region,  the  ombudsmen  from  Spain
and  Portugal,  and  all  the  Spanish  regional  ombudsmen.
The  work  of  the  Congress  focused  on  the  human  rights

the  presidents  of 

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/151

of  indigenous  peoples  and  the  role  of  the  ombudsman  in
supervising  the  judiciary.

Following  an  invitation  by  Professor  Carlos  Moreiro  of
the Centre of European Legal Studies, Mr Söderman gave
a  lecture  on  the  role  of  the  European  Ombudsman  (El
papel del Defensor del pueblo europeo) on 16 April 1997
at  the  University  Carlos  III  in  Madrid.  He  described  to
the  students  the  means  available  to  European  citizens  to
protect their rights, and his own experiences as European
Ombudsman.

On  27  October,  following  an  invitation  by  Mr  Lizón,
Ombudsman of the Valencia region, Mr Söderman visited
Valencia  to 
lecture  on  the  role  of  the  European
Ombudsman  (El  papel  del  Defensor  del  pueblo  europeo)
in  a  conference  organised  by  the  Club  de  Encuentro
Manuel  Broseta  to  members  of  the  administration,
businessmen, professors and students. A press conference
was  arranged  by  the  Club  and  Mr  Söderman  gave
interviews  to  a  number  of  newspapers  including  El  País,
EFE,  El  Periodico  and  Avui.

The  First  European  Congress  of  the  Gipsy  Youth  was
held  on  6  to  9  November  in  Barcelona.  The  event  was
one  of  the  initiatives  of  the  European  year  against
Racism.  It  gathered  around  300  young  gypsies  from  all
over  Europe  with  a  view  to  seeking  ways  to  defend  and
promote  Romany  culture.  The  opening  ceremony  was
chaired  by  HM  Felipe  de  Borbón.

Maastricht’  (The  office  of  the  European  Ombudsman
since  its  creation  in  the  Treaty  of  Maastricht).  Other
papers  were  given  by  Mr  Pierre  Chaubon  and  Mr
Philippe Bardiaux, from the office of the French national
Ombudsman,  Dr  Alberto  Olivo,  Difensore  civico  di
Trento  and  Mr  Yves  Salesse,  Conseiller  d’Etat.

Mr  Harden  represented  the  European  Ombudsman  as  a
member  of  the  panel  at  the  Regional  Forum  ‘l’Europe  et
la  vie  quotidienne’,  held  at  Versailles  on  27  March.  The
Forum  was  organised  in  the  framework  of  the  French
Government’s  ‘National  dialogue  for  Europe’  and  had
three  themes:  training  in  Europe;  working  in  Europe  and
being  a  European  citizen.  The  French  Minister  for
European  Affairs,  Mr  Michel  Barnier  presided  over  the
Forum.  Other  panel  guests  included  the  French  Secretary
of  State  for  Health,  Mr  Gaymard,  Vice-President  of  the
European  Parliament  Mrs  Nicole  Fontaine  and  the
French  member  of  the  European  Court  of  Auditors,  Mr
Bernicot.

Mr  Jacob  Söderman  was  invited  by  the  French  National
Ombudsman,  Mr  Jacques  Pelletier,  for  a  visit  to  his
offices  in  Paris  on  7  to  9  October.  During  the  visit,  the
Ombudsman  was  assisted  by  Mr  Olivier  Verheecke  and
Mrs Daniela Tirelli.

Mr  Söderman  was  invited  to  participate  in  the  Congress
and to chair the closing session, at which the President of
the Catalonian Regional Government, Mr Pujol, was also
present. Mr Söderman emphasised the importance for the
development of a free society of fighting against all forms
of discrimination. The Congress was widely reviewed the
press, 
including  La  Vanguardia,  El  País,  ABC,  El
Periodico,  Avui  and  El  Punt.

The  main  topics  of  discussion  with  Mr  Pelletier  and  his
the
external  relations  adviser,  Mr  Bardiaux  were 
experiences  of  the  French  Ombudsman  in  negotiating
friendly  solutions  and  with  the  application  of  the
principle  of  equity.  An  overview  of  the  working  and  the
structure of the French Ombudsman system was given by
the  heads  of  the  different  units.  At  lunch  Mr  Söderman
had  the  opportunity  of  meeting  also  Mr  Denoix  de  Saint
Marc,  Vice-President  of  the  Conseil  d’Etat.

FRANCE

Mr Ian Harden represented the European Ombudsman in
a colloquium on the theme ‘European citizenship’ held on
20  and  21  February  in  Corsica  at  the  invitation  of  the
Regional  Institute  of  Administration  of  Bastia.  The
colloquium  was  organised  in  the  framework  of  the
French  Government’s  ‘National  dialogue  for  Europe’.

The  colloquium  was  opened  by  Mr  Claude  Erignac,  the
Prefect  of  Corsica  and  Mr  Jean  Baggioni,  MEP  and
President  of  the  Executive  Council  of  Corsica.  Mr
Harden  delivered  a  paper  entitled  ‘La  fonction  du
Me´diateur  europe´en  depuis  sa  cre´ation  dans  le  Traite´ de

to 

and 

In  Lille  on  8  October,  Mr  Söderman  paid  a  visit  to  the
De´le´gation  de´partementale  du  Me´diateur  of 
the
the  Centre
Nord-Pas-de-Calais  Region 
interministe´riel des renseignements administratifs (CIRA).
He  met  with  Mr  Fiems,  De´le´gue´ de´partemental  and
Director  of  CIRA,  who  explained  the  role  of  a  De´le´gue´
de´partemental  in  the  French  ombudsman  system.  After  a
meeting  with  the  Prefect  Mr  Alain  Ohrel,  Mr  Söderman
gave  a  press  conference  for  local  journalists.  He  also
accepted  an  invitation  from  Mrs  Rougerie,  De´le´gue´ à  la
citoyennete´ et  à  la  me´diation,  to  visit  the  town  hall  of
initiative  of  the
Lille.  Mrs  Rougerie  explained  the 
Municipality of Lille to set up a mediation service on the
municipal  level.  The  press  conference  given  by  Mr
Pelletier  and  Mr  Söderman  in  Lille  was  reported  in
L’Union,  Nord  Éclair  and  La  Voix  du  Jeudi.

C  380/152

EN

Official  Journal  of  the  European  Communities

7.12.98

In  Paris  on  9  October,  Mr  Söderman  met  the  Presidents
of  the  Bar  Council  of  Paris  and  of  the  Conference  of  the
Barristers  of  France,  with  whom  he  visited  the  law
courts.  At  the 
information  office  of  the  European
Parliament  and  the  Representation  of  the  European
Commission in Paris, he met with Mr Bernard Chevallier
and  Mr  Jean-Louis  Giraudy,  Directors  of  the  two  offices
and  gave  a  joint  press  conference  with  Mr  Pelletier.

Mr Söderman also visited the Conseil constitutionnel and
was  received  by  its  President,  Mr  Roland  Dumas.

Before  concluding  his  visit,  Mr  Söderman  delivered  a
speech on his role as European ombudsman to a meeting
of  the  national  ombudsmen  involved  in  the  creation  of
the  Association  for  French-speaking  Ombudsmen.

Ian  Harden  delivered  a  speech  on  the  topic  of  ‘L’acce`s
aux documents des Institutions et des organes de l’Union
europe´enne’ at an information day on ‘L’Europe: sources
d’information’, organised by the Centre d’information sur
les 
in  Strasbourg  on  20
October.

institutions  europe´ennes 

ITALY

Peter  Dyrberg  attended  a  conference  organised  by  the
European University Institute on 28 February to 1 March
in  Florence,  concerning  the  decentralised  agencies  in  the
Community.  Mr  Dyrberg  gave  an  outline  of  the  work  of
the  European  Ombudsman  and  in  particular  of  the
Ombudsman’s own-initiative inquiry into public access to
documents.

Commissioner  Oreja  and  Mr  Peter  Doyle  on  behalf  of
DG  X  of  the  Commission.

LUXEMBOURG

On  15  and  16  May,  Mr  Söderman  participated  in  the
Euro-jus  meeting  in  Luxembourg  accompanied  by  Peter
Dyrberg.  He  gave  a  speech  about  his  role  as  European
Ombudsman  and  described  his  work.

THE  NETHERLANDS

Mr  Peter  Dyrberg  gave  a  speech  on  the  European
Ombudsman  and  transparency  at  a  conference  on  the
oncoming  Amsterdam  Treaty,  organised  on  31  May  in
Amsterdam by the Dutch Members of the Socialist Group
in  the  European  Parliament.

On  18  and  19  September,  Mr  Söderman,  attended  the
seminar  ‘Transparency  and  openness’  organised  by  the
European  Institute  of  Public  Administration  (EIPA)  in
Maastricht. He gave a speech ‘The role and impact of the
European  Ombudsman  in  access  to  documentation  and
the  transparency  of  decision-making’.

Ian  Harden  attended  the  the  colloquium  on  ‘Managing
the  new  Treaty  on  European  Union:  coping  with
flexibility  and  legitimacy’  held  at  the  European  Institute
of Public Administration, Maastricht 26 to 28 November
1997,  to  discuss  the  impact  of  the  Treaty  of  Amsterdam
on  the  competences  of  the  European  Ombudsman.

AUSTRIA

Ms Vicky Kloppenburg attended a seminar on the ‘Rights
of  the  citizens  of  the  European  Union’,  organised  by  the
division  for  European  Affairs  of  the  Government  of  the
Autonomous  Province  of  Südtirol  on  7  November  1997
in  Bolzano,  Italy.  She  gave  a  speech  about  the  mandate
and  the  role  of  the  European  Ombudsman  as  compared
with  those  of  the  Committee  on  Petitions  of  the
European  Parliament.  Other  speakers  were  Professor
Fausto  Capelli,  Director  of  the  European  College  in
Parma  and  Dr  Walter  Oberwexer  of  the  University  of
Innsbruck.

information’  organised  by 

Ian  Harden  participated  in  a  Forum  on  ‘New  ways  for
European 
the  European
Information  Service,  on  8  to  10  November  in  Florence,
Italy.  He  gave  a  speech  on  the  subject  of  ‘The  European
Ombudsman  and  public  access  to  documents  held  by
Community  institutions  and  bodies’.  Other  speakers
the  cabinet  of
included  Mr  Andrea  Pierucci  of 

Mr  Söderman  paid  a  visit  to  Austria  on  3  to  6  June.  He
had  a  meeting  with  Mrs  Benita  Ferrero-Waldner,
Secretary  of  State  in  the  Ministry  of  Foreign  Affairs,  and
with Ambassador Gregor Woschnagg, Head of European
Affairs  Department,  and  other  representatives  of  the
Ministry. He also met with Mr Peter Wittmann, Secretary
of  State  in  the  Federal  Chancellery.  After  a  visit  to  the
Austrian  Parliament  (Nationalrat)  he  attended  a  dinner
with  Mr  Heinrich  Neisser,  Second  President  of  the
Austrian  Parliament,  and  Austrian  journalists.

On  the  occasion  of  the  20th  anniversary  of  the
establishment  of  the  Austrian  national  ombudsman
institution 
(Österreichische  Volksanwaltschaft)  Mr
Söderman  gave  a  speech  on  the  topic  ‘Is  there  a  classic
parliamentary ombudsman?’.

Mr Söderman also visited the Federal Academy of Public
Administration  and  gave  a  lecture  on  the  role  and  tasks

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/153

of  the  European  Ombudsman.  During  his  visit,  he  met
the  Head  of  the  Academy,  Mr  Walter  Dohr,  and  held
discussions with graduates of the Academy specialising in
EU  affairs.

to  visit 

During  his  stay  in  Vienna,  Mr  Söderman  also  had  the
opportunity 
the  Austrian  Trade  Union
Headquarters  ÖGB  and  meet  with  Mr  Karl  Heinz
Nachnebel,  Head  of  the  International  ÖGB  Secretariat.
He  also  visited  the  Federal  Chamber  of  Agriculture,
meeting  with  President  Rudolf  Schwarzböck  and  other
representatives, 
the  Austrian  Chamber  of  Labour,
meeting with President Herbert Tumpel, and the Austrian
Chamber of Commerce. At a working lunch, he also met
with  Mr  Wolfgang  Streitenberger,  Head  of  the  European
Commission  representation  in  Vienna,  and  Mr  Michael
Reinprecht,  Head  of  the  European  Parliament  Infor-
mation  office.

FINLAND

Mr  Söderman  gave  a  speech  at  the  meeting  of  Nordiska
Administrativa  Förbundet  held  on  21  and  22  August
1997  in  Helsinki.  The  meeting  was  attended  by  about
200  members  of  the  association,  lawyers  working  at  the
judiciary,  public  administration  or  universities  in  Nordic
countries.

SWEDEN

On  29  to  31  January,  Mr  Söderman  attended  a  seminar
at  the  University  of  Gothenburg  and  gave  a  speech
entitled  ‘European  Ombudsman  —  a  real  power  or
democratic  cosmetics  ?’  A  press  conference  followed,
organised  by 
the  European
the  Representation  of 
Commission.

Mr  Söderman  also  participated  in  a  seminar  ‘Nya
dimensioner  till  välfärden’  together  with  Mr  Pádraig
Flynn,  Member  of  the  European  Commission,  and  Mrs
Pauline Green, Member of the European Parliament, and
attended a Pressträff or open house for citizens to discuss
European  questions 
Station  of
Gothenburg.

the  Central 

at 

UNITED  KINGDOM

During  his  visit  to  the  UK  on  13  to  14  March,  Mr
Söderman gave the annual guest lecture at the Institute of
European  Public  Law  of  the  University  of  Hull.  The
lecture  ‘One  thousand  and  one  complaints  —  The
European  Ombudsman  en  route’  was  later  published  in
the  journal  European  Public  Law  which  is  edited  by  the
Director  of  the  Institute,  Professor  Patrick  Birkinshaw.

During  his  stay  in  London  on  29  April,  Mr  Söderman
had  a  meeting  with  Mr  Geoffrey  Martin,  Head  of  the
Representation  of  the  European  Commission,  and  Mr
Martyn  Bond,  Chief  of  the  Information  Office  of  the
European  Parliament  in  London.

Mr  Söderman,  accompanied  by  Legal  Officer  Benita
Broms,  visited  London  on  8  to  10  July.  On  8  July,  Mr
Söderman  gave  oral  evidence  to  the  House  of  Lords
Select  Committee  on  the  European  Community,  chaired
by  Lord  Tordoff.  The  meeting  was  recorded  for  future
transmission  and  a  report  was  later  published  by  the
Select  Committee  (4th  Report,  Session  1997-1998,  HL
18).  Mr  Söderman  also  had  a  meeting  with  Mr  Michael
Buckley, 
for  Ad-
the  Parliamentary  Commissioner 
ministration.

studio 

Mr  Söderman  was  interviewed  by  Mr  Norman  Smith  at
the  BBC’s  Westminster 
the  Radio  4
programme  ‘Europe  now’  on  8  July  1997.  On  9  July
1997, the Ombudsman gave an interview in London both
in  English  and  Spanish  for  Bloomberg  Television  by  Mrs
Geraldine  Rijs  for  the  programme  ‘financial  markets
commodities  news’.

for 

On  10  July,  the  Ombudsman  met  Mr  Geoffrey  Martin,
Head of the Representation of the European Commission
in  London  and  had  a  working  lunch  hosted  by  Mr
Martyn  Bond,  Chief  of  the  Information  Office  of  the
European  Parliament  in  London,  with  the  British  section
of  European  Association  of  Journalists.

At the evening meeting of the Solicitors’ European Group
Mr  Söderman  gave  a  lecture  ‘The  role  of  the  European
Ombudsman’  and  attended  a  dinner  with  the  Group’s
Vice-Chairman  Mr  Simon  Holmes,  and  members  of  the
Group.

On  4  December,  Mr  Söderman  gave  a  lecture  on  ‘The
functioning of the European Ombudsman’ at an occasion
arranged  by  EL§A,  an  organisation  of  students  of
law  at  the  University  of  Gothenburg,
Community 
Sweden,  with  the  assistance  of  the  Information  Office  of
the  European  Parliament.  The  lecture  was  attended  by
more  than  100  people  including  invited  solicitors  and
senior  lawyers  from  the  region.

Ian  Harden  represented  the  Ombudsman  at  a  workshop
on  transparency  and  access  to  documents  of  the
European  Agency  for  the  Evaluation  of  Medicinal
Products (EMEA) organised by the EMEA on 30 October
in  London.  Other  participants  included  Mr  Jose´-Luis
Valverde  López,  MEP,  and  representatives  of 
the
industry,

C  380/154

EN

Official  Journal  of  the  European  Communities

7.12.98

consumers,  the  press  and  the  US  Food  and  Drugs
Administration.  Mr  Harden  addressed  the  workshop
about  the  Ombudsman’s  own-initiative 
into
public  access  to  documents.

inquiry 

A  group  of  students  from  the  Danish  Business  School,
Niels Brock, were received on 29 April in Brussels by Mr
Peter  Dyrberg  who  gave  a  talk  on  the  work  of  the
European  Ombudsman.

6.3.  OTHER  EVENTS

The  press  officers  of  all  the  Finnish  Embassies  to  the
Member  States  of  the  European  Union  met  with  the
European  Ombudsman  on  15  January  in  Strasbourg.

Representatives  of  Nordic  trade  unions  in  Brussels,  Mr
Sven  Svensson,  Mr  John  Svenningsen,  Mr  Knut-Arne
Sanden  and  Mr  Heikki  Pohja  held  a  meeting  with  the
European  Ombudsman  on  15  January  in  Strasbourg.

Ms  Benita  Broms  and  Ms  Ilta  Helkama  attended  the
ninth  ‘Stammtisch  Pierre  PFLIMLIN’  on  the  theme  ‘Des
finlandais à Strasbourg’ on 29 January in Strasbourg, and
gave  an  overview  of  the  role  and  functions  of  the
European  Ombudsman.

On  14  February,  Mr  Söderman  received  a  group  of
students  from  the  University  of  Lie`ge  and  gave  a
presentation  on  the  role  and  responsibilities  of  the
European  Ombudsman.

A  group  of  25  International  and  European  Law  students
from  the  Faculty  of  Law  of  the  Erasmus  University  in
Rotterdam  visited  the  European  Ombudsman  on  19
February.

The  Minister  of  Justice  of  Finland,  Mr  Kari  Häkämies,
accompanied  by  Mr 
Jan  Törnqvist,  Director  of
Legislation, and Mrs Raija Toiviainen, Senior Ministerial
Secretary  at  the  Ministry  of  Justice,  visited  the  European
Ombudsman  on  8  April.

Professor  Roy  Gregory  of  the  Centre  for  Ombudsman
Studies,  University  of  Reading,  had  discussions  with  Mr
Söderman  in  Strasbourg  on  18  April  in  relation  to  his
research project, funded by the Leverhulme Trust, on the
European  Ombudsman.

Mr  Söderman  gave  a  speech  about  the  Ombudsman’s
role  and  work  at  the  dinner  of  the  Nordic  women’s
network  on  21  April  in  Brussels.

On  12  May  Mr  Söderman  met  a  group  of  Finnish  civil
servants  attending  the  course  ‘La  France  et  l’Union
europe´enne’  organised  by  Centre  des  e´tudes  europe´ennes
de  Strasbourg.

A group of 17 students at the Tornio Polytechnic Unit of
the  European
Business  and  Data-Processing  visited 
Ombudsman  and  a  group  of  40  Swedish  pensioners  and
entrepreneurs,  Aktiva  Seniorer,  visited  the  European
Ombudsman  on  13  May  in  Strasbourg.

Mr  Söderman  met  with  the  Prime  Minister  of  Sahravoui
Republic,  Mr  Mahfoud  Ali  Beiba  on  14  May 
in
Strasbourg.

Ms  Benita  Broms,  Legal  Officer,  participated 
in  a
colloquium  entitled  ‘The  social  charter  of  the  21st
century’,  organised  by  the  General  Secretariat  of  the
Council  of  Europe  in  Strasbourg,  14  to  16  May.

On  15  May  and  on  9  September  1997,  Ms  Vicky
Kloppenburg  gave  an  outline  of  the  work  of  the
European  Ombudsman  to  groups  of  visitors  from  Lower
Saxony,  Germany,  at  the  invitation  of  Ms  Brigitte
Langenhagen, Mep.

The European Parliament organised an open house on 18
May  in  Strasbourg  in  the  context  of  a  European  Day.
The  event  was  a  success  with  a  high  number  of  visitors.
At  the  Ombudsman’s  stand  visitors  were  invited  to
participate in a quiz concerning the role and functions of
the  European  Ombudsman.  Successful  participants
received small prizes.

Mr  Söderman  visited  Oslo,  Norway,  on  31  May.  He
attended the European Regional Meeting of Lex mundi, a
global  association  of  134  independent  law  firms,  and
gave a speech on the work of the European Ombudsman
in  relation  to  transparency,  ‘An  open  and  transparent
European  administration’.

Mrs  Paulina  Oros,  Deputy  Director  at  the  Hungarian
Ministry  of  Justice,  and  two  of  her  staff  visited  the
Brussels  office  of  the  Ombudsman  on  3  June.  Mr  Peter
Dyrberg  gave  an  overview  of  the  role  of  the  European
Ombudsman.

Members of the Petitions Committee of the Parliament of
the  German  Land  Rheinland-Pfalz  were  received  on  22
April  in  Brussels  by  Mr  Peter  Dyrberg  who  gave  a
presentation  on  the  work  of  the  European  Ombudsman.

On 4 June, Mr Peter Dyrberg gave a presentation on the
work  of  the  European  Ombudsman  to  a  group  of
doctoral  students  from  the  Institute  of  International

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/155

Economic Law of the University of Helsinki, during their
visit  to  Brussels.

the  offices  of 

Mr  Claude  Desjean,  Secretary-General  of  the  French
Ombudsman  visited 
the  European
Ombudsman  on  5  June  1997  and  was  informed  by  Ian
Harden  about  management  and  budgetary  questions
relating  to  the  provision  of  administrative  services  to  the
European  Ombudsman.

Ms  Jennifer  Long,  Assistant  Clerk  to  the  Treasury
Committee  of  the  UK  House  of  Commons,  visited  the
offices of the European Ombudsman on 12 June and was
informed  about  the  work  of  the  Ombudsman  by  Mr
Harden.

On  18  June,  Mr  Peter  Dyrberg  received  a  group  of
teachers  from  the  German  Land  of  Saxony-Anhalt  in
Brussels  and  gave  a  presentation  on  the  work  of  the
European  Ombudsman.

On  22  October  1997  and  on  17  December  1997,  Ms
Vicky  Kloppenburg  was  invited  by  Mr  Gerhard  Schmid,
Mep,  to  speak  to  representatives  from  local  and  regional
administration  in  Bavaria  about  the  relevance  of  the
work  of  the  European  Ombudsman  to  German  citizens.

On 18 November, in Strasbourg Mr Söderman received a
group  of  18  students  following  the  programme  on
international  legal  cooperation  at  the  Faculty  of  Law  of
the  Vrije  Universiteit  Brussel  and  gave  them  an  overview
of  his  role  as  European  Ombudsman.

Mr Söderman had lunch with Mr Olof Salmen, President
of  the  Nordic  Council,  on  the  occasion  of  his  visit  to
Strasbourg  on  19  November.  Mr  Salmen  was
accompanied  by  Mrs  Berglind  Ausgeirsdottir,  Director-
General  of  the  Secretariat  of  the  Nordic  Council,  Mrs
Susanne  Eriksson,  Senior  Adviser  from  Ålands  Landsting
and Mr Guy Lindström, Secretary-General of the Finnish
Delegation  of  the  Nordic  Council.

Mr Giuseppe Guarneri former head of the Human Rights
Division  of  Council  of  Europe  addressed  the  staff  of  the
Ombudsman  about  the  his  work  on  11  July  at  an
informal  lunch.

Mr  Söderman  received  a  group  of  24  teachers  from
Handelsskolen i Ballerup, Denmark on 21 November and
gave  an  overview  of  the  work  of  the  European
Ombudsman.

On  behalf  of  the  German  Government  on  14  and  15
July,  a  German  production  office,  l’image,  made  a  video
portrait  of  the  European  Ombudsman  targeted  at  young
people.

A  group  of  28  judges  and  lawyers  from  Finland  met  the
European  Ombudsman  during  their  study  visit  to
Strasbourg  on  22  September.

The  Deputy  Parliamentary  Ombudsman  of  Finland,  Mrs
Riitta-Leena  Paunio  and  a  delegation  from  her  office  in
Helsinki paid a visit to the European Ombudsman on 26
September.

On  3  October,  the  Ombudsman  had  a  meeting  with  Mr
Ulf  Öberg,  Referendaire  at  the  Court  of  Justice  of  the
European  Communities,  who  is  preparing  a  doctoral
thesis  on  transparency.

A  group  of  students  from  the  municipality  of  Vihti,
Finland,  visited  the  European  Ombudsman  on  14
October.  Another  group  of  visitors  from  Finland  was
received  on  20  October.

Ms  Linda  Reif,  Professor  at  the  University  of  Alberta,
Edmonton,  Canada,  and  editor  at  the  International
Ombudsman  Institute  paid  a  visit  to  the  Ombudsman’s
office  in  Strasbourg  on  20  to  24  October  to  conduct
research  on  the  work  of  the  European  Ombudsman.

Mr  Peter  Gjerloeff  Bonnor,  a  doctoral  researcher  from
the Law Department of the European University Institute
visited  the  European  Ombudsman’s  offices  on  24  to  25
November  and  conducted  interviews  with  Mr  Söderman
and  Mr  Harden.

Mr  Leif  Se´von,  Judge  at  the  Court  of  Justice  of  the
European Communities, and Mrs Virpi Tiili, Judge at the
the  European
Court  of  First 
Ombudsman’s  office  in  Strasbourg  on  1  December.  Mr
Söderman  gave  an  overview  of  his  work.  Mr  Se´von  and
Mrs  Tiili  gave  lectures  on  the  jurispudence  of  the  Courts
to  the  legal  officers  of  the  Ombudsman’s  office.

Instance, 

visited 

Mr Pallicer, Local Ombudsman for residents and tourists
in  the  city  of  Calvià  in  Majorca  visited  the  offices  of  the
Ombudsman  on  2  December.  Mr  Pallicer  and  Mr
Söderman  informed  each  other  about  their  respective
roles  and  functions  and  had  an  exchange  of  views.

Professor  Moreiro  from  the  Centre  for  European  Legal
Studies  at 
in  Madrid,
accompanied by his students, paid a visit to the European
Ombudsman  on  12  December.

the  University  Carlos 

III 

On  16  December,  the  Ombudsman  was  the  invited
speaker at a lunch of the Kangaroo Group. The occasion

C  380/156

EN

Official  Journal  of  the  European  Communities

7.12.98

was  attended  by  some  50  Members  of  the  European
Parliament,  supporters  of  the  Kangaroo  Group  and
guests.  Mr  Söderman  gave  a  speech  explaining  the  kinds
of problems which are submitted by European citizens to
the  European  Ombudsman.

6.4.  PUBLICATIONS

‘The European Ombudsman — Questions and answers’ is
a  brochure  intended both for  potential complainants and
to  inform  the  broader  public  about  the  work  of  the
Ombudsman. The brochure is widely distributed through
the  information  offices  of  the  European  Parliament  and
the  European  Commission  in  the  Member  States,  the
offices  of  the  national  ombudsmen  and  similar  bodies,
and  the  relays  and  networks,  such  as  Info-centres  in
Europe,  Euro 
Info-points,  European  documentation
centres,  Euro-libraries  and  a  number  of  specific  targets,
such  as  consumer  organisations,  chambers  of  commerce
and professional organisations. During 1997, demand for
the  brochure  was  high  so  that  the  original  print  run  of
100 000  copies  was  exhausted  and  reprinting  was
necessary.

The  European  Ombudsman  also  figures  in  general  EU
information  programmes  such  as
publications  and 
Citizens 
the  European
joint 
first,  a 
Parliament  and  European  Commission,  part  of  the
Information  programme  for  European  citizens.

initiative  of 

The  Ombudsman  intends  to  make  full  use  of  the  new
opportunities  for  information  and  interaction  provided
the  Ombudsman
Internet.  During  1997, 
by 
the 
for  his  website
separate  address 
established  a 
(http://www.euro-ombudsman.eu.int)  where  basic 
in-
formation  about  the  Ombudsman,  such  as  the  annual
reports, the most important speeches and decisions of the
Ombudsman  as  well  as  the  brochure  and  the  complaint
forms are available. This site can be easily accessed from
the  European  Parliament’s  website  and  vice  versa.  There
is  also  a  link  to  and  from  the  Europa  server.  From  the
beginning of 1998, a much wider range of material, such
as  press  releases  and  summaries  of  the  Ombudsman’s
decisions  will  be  included  and  updated  on  a  regular
basis.

The  information  on  Internet,  however,  is  an  addition  to
and  not  a  substitute 
forms  of
publication,  which  continue  to  be  accessible  to  a  much
greater  proportion  of  the  population  than  has  access  to
the  Internet.

for  conventional 

The  Annual  Report  of  the  Ombudsman  for  1996  was
presented  to  the  European  Parliament  on  14  July  1997
and  distributed  to  European  institutions,  international
ombudsman  institutions,  ombudsmen  in  the  Member
States,  university 
libraries,  European  documentation
centres  and  to  the  media.  It  was  also  printed  in  the
Official Journal of the European Communities and made
available  on  the  Ombudsman’s  website.

6.5.  MEDIA  RELATIONS

Effective  use  of  the  mass  media  is  important  for  both
objectives  of  the  information  strategy.  The  mass  media
reach  people  who  might  have  a  real  reason  to  complain
about maladministration in the activities of a Community
institution  or  body,  as  well  as  informing  European
citizens  generally  of  the  existence  and  functions  of  the
Ombudsman.

Press  conferences  (nine  in  all)  were  arranged  regularly  in
Member  States  during  Mr  Söderman’s  visits,  as  well  as
on  other  special  occasions,  such  as  the  inauguration  of
the  European  Ombudsman’s  offices  in  Strasbourg  on  8
April.  The  inauguration  was  covered  by  around  20
journalists.

On the occasion of the presentation of the Ombudsman’s
1996  Annual  Report  to  the  European  Parliament  in
Strasbourg  on  14  July,  Mr  Söderman  had  dinner  with  a
group  of  journalists  from  different  Member  States.  He
also  attended  a  press  conference  arranged  by  the
Committee  on  Petitions  on  15  July  together  with  Mr
Nikolaos  Papakyriazis,  Chairman  of  the  Committee  on
Petitions.

On  20  February,  Mr  Söderman  was  invited  to  the
traditional  Thursday  lunch  of  the  Strasbourg  Press  Club.
He gave a speech on his role and duties as the European
Ombudsman  to  the  members  of  the  club.

In  addition,  Mr  Söderman  met  with  several  groups  of
journalists  during  his  visits  to  the  Member  States,  during
his  visits  to  Brussels  and  in  Strasbourg,  including  the  the
British section of the European Association of Journalists
in  London  on  10  July,  a  group  of  17  Nordic  journalists,
members  of  the  Nordisk  Journalistcenter  on  10  April  in
Brussels  and  a  group  of  12  radio  journalists  from  Daily
News  of  Denmark’s  Radio  on  17  September 
in
Strasbourg.  He  also  attended  the  meeting  in  Brussels  of
the  National  Union  of  Journalists  in  September  and
received  several  groups  of 
journalists  from  various
Member  States  in  Strasbourg.

Mr  Söderman  gave  an  interview  to  Roman  school
children  on  17  April  for  an  Italian  television  programme
dealing with children’s ideas on the European Union. The
programme  was  produced  in  cooperation  with  DG  X  of
the  Commission.

Mr  Bordry  interviewed  the  European  Ombudsman  for
Lettres  des  europe´ens  on  6  November  in  Strasbourg.

In  addition  to  the  interviews  given  to  the  media  during
his  visits  to  the  Member  States  (mentioned  above),  Mr

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/157

Söderman  gave  around  50  interviews  to  journalists  from
newspapers,  magazines,  radios  and  televisions  of  the
Member  States,  inter  alia,  the  European  Voice,  The
European, The Insider, the Dutch Algemene Dagblad and
NRC  Handelsblad,  the  Belgian  De  Morgen,  the  German
Badische  Zeitung,  the  Swedisn  Dagens  Nyheter  and
Finanstidningen, 
Sanomat,
Keskisuomalainen,  Ilkka  and  Nykypäivä,  The  Times,  the
German  Wirtschaftswoche  and  EU  Magazin,  the  Dutch
Inter,  Radio  France
Plus,  BBC  Radio,  France 
internationale,  Deutsche  Welle,  Radio  Nederland,  Radio

Finnish 

Turun 

the 

Portuguesa,  the  Italian  RAI,  the  Swedish  Sveriges  radio
and  Sveriges  radio/Gotland,  the  Finnish  radio  YLE,
Television  Española,  Danmarks  television,  the  Swedish
STV  and  the  Finnish  televisions  YLE  and  MTV.

Mr  Söderman  also  gave  interviews  to  media  outside  the
European  Union,  for  example  the  Chilean  newspaper  El
Mercurio,  the  Hungarian  newspaper  Magyar  Hirlap  and
Japan  Broadcasting
a 
Company.

television 

Japanese 

station 

C  380/158

EN

Official  Journal  of  the  European  Communities

7.12.98

ANNEX

ANNEX  A

STATISTICS  CONCERNING  THE  WORK  OF  THE  EUROPEAN  OMBUDSMAN  IN  1997

A.  CASES  DEALT  WITH  DURING  1997

1.  Total  caseload  from  1  January  1997  to  31  December  1997

—  Complaints  and  inquiries  not  closed  on  31  December  1996

—  Complaints  received  in  1997

—  New  own  initiatives  of  the  European  Ombudsman

2.  Examination  of  admissibility/inadmissibility  completed

3.  Classification  of  the  complaints

(a)  According  to  the  mandate  of  the  Ombudsman

—  within  the  mandate:

—  outside  the  mandate:

(b) Reasons  for  being  outside  the  mandate

—  not  an  authorised  complainant

—  not  against  a  Community  institution  or  body

—  does  not  concern  maladministration

(c)  Analysis  of  complaints  within  the  mandate

A d m i s s i b l e   c o m p l a i n t s :

—  inquiries initiated:

—  no  grounds  for  inquiry:

—  dealt  with  or  being  considered  by  Committee  on  Petitions

—  others:

I n a d m i s s i b l e   c o m p l a i n t s :

Inadmissible because:

—  author/object  not  identified

—  time  limit  exceeded

—  prior  administrative  approaches  not  made

—  being  dealt  with  or  settled  by  a  Court

—  internal  remedies  not  exhausted  in  staff  cases

B.  INQUIRIES  INITIATED

(196  admissible  complaints  and  four  own  initiatives  of  the  EO)

1.  Institutions  and  bodies  subject  to  inquiries (2)

1 412

227 (1)

1 181

4

97 %

368  (27 %)

998  (73 %)

10

946

42

230

196

34

17

17

138

48

4

64

17

5

200

—  European  Commission

—  European Parliament

163  (80 %)

18  (9 %)

(1)  Of  which  two  own  initiatives  of  the  European  Ombudsman  and  106  admissible  complaints.
(2)  Some  cases  concern  two  or  more  institutions  or  bodies

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/159

—  Council  of  the  European  Union

—  Others

—  Economic  and  Social  Committee:

—  European  Environment  Agency:

—  European  Agency  for  Evaluation  of  Medicinical  Products:

—  Court  of  Justice:

—  Office  for  Official  Publications  of  the  European  Community:

—  Office  for  Harmonisation  in  the  Internal  Market:

2.  Type of maladministration alleged (in some cases, two types of maladministration are

alleged)

—  lack  or  refusal  for  information,  transparency

—  discrimination

—  procedures,  rights  of  defence

—  unfairness  abuse  of  power

—  avoidable delay

—  negligence

—  failure  to  ensure  fulfilment  of  obligations  (Article  169)

—  legal error

—  other  maladministration

C.  TOTAL  NUMBER  OF  DECISIONS  CLOSING  THE  FILE  ON  A  COMPLAINT  OR

CONCLUDING  AN  INQUIRY:

1.  Complaints  outside  the  mandate:

13  complaints  have  been  transferred  as  petition  to  the  European  Parliament,  three  to
national ombudsmen, one as a petition to a national parliament and 490 complainants
have  been  advised  to  contact  another  agency  :

—  national/regional  ombudsmen  or  petition  to  Parliament

—  to  petition  the  European  Parliament

—  European  Commission

—  Court  of  Justice 

—  others

2.  Complaints  within  the  mandate,  but  inadmissible

3.  Complaints  within  the  mandate,  admissible  but 

no  grounds  for  inquiry:

4.  Inquiries  closed  with  reasoned  decision:

(An  inquiry  can  be  closed  for  one  or  more  of  the  following  reasons)

—  no  maladministration  found

—  with  a  critical  remark  addressed  to  the  institution

—  settled  by  the  institution

(1)  Of  which  two  own  initiatives

14  (7 %)

8  (4 %)

3

1

1

1

1

1

60  (25 %)

42  (17 %)

32  (13 %)

23  (9 %)

22  (9 %)

22  (9 %)

20  (8 %)

14  (6 %)

9  (4 %)

1 271

998

254

86

76

1

73

138

34

101

59 (1)

21

16

C  380/160

EN

Official  Journal  of  the  European  Communities

7.12.98

—  friendly  solution

—  dropped  by  the  complainant

—  other

D.  INFORMATION  CONCERNING  THE  COMPLAINTS  REGISTERED  IN  1997

(1 181  COMPLAINTS)

1.  Source  of  complaints

—  Sent  directly  to  the  European  Ombudsman

—  by individual citizens:

—  by companies:

—  by  associations:

—  Transmitted  by  a  Member  of  the  European  Parliament:

—  Petitions  transferred  to  the  European  Ombudsman:

2.  Geographical  origin  of  the  complaints

Comparison of percentage of EC population and complaints received (September 1995
to  December  1997)

3

2

6 (1)

1 162

1 067

38

57

17

2

25

20

15

10

5

0

DE UK FR

IT

ES NL GR

B

PT SV AU DA FIN IRL LX others

% Population

% Complaints

(1)  Three  terminated  because  of  the  commencement  of  legal  proceedings,  three  closed  because  after  an  inquiry  had  begun

the  Ombudsman  was  informed  of  facts  which  showed  that  the  complaint  was  inadmissible.

7.12.98

EN

Official  Journal  of  the  European  Communities

C  380/161

ANNEX  B

THE  OMBUDSMAN’S  BUDGET

Article  12  of  the  Financial  Regulation  of  the  European  Communities  provides  for  the  Ombudsman  to
transmit to the European Parliament before 1 May each year an estimate of his revenue and expenditure for
the  following  year.

The Statute of the European Ombudsman provides for the Ombudsman’s budget to be annexed to section 1
(European  Parliament)  of  the  general  budget  of  the  European  Communities,  which  is  published  in  the
Official  Journal  of  the  European  Communities.

Salaries, allowances and other costs related to employment are contained in Title 1 of the Budget. This Title
also  includes  the  cost  of  missions.  Title  2  of  the  budget  covers  buildings,  equipment  and  miscellaneous
operating  expenditure.

To  avoid  unnecessary  duplication  of  administrative  and  technical  staff,  many  of  the  services  needed  by  the
Ombudsman  are  provided  by,  or  through,  the  European  Parliament.  Where  these  services  involved
additional  direct  expenditure  by  the  Parliament  a  charge  was  normally  made  during  1997,  with  payment
being effected through the liaison account. Rental of offices and translation services are the largest items of
expenditure  dealt  with  in  this  way.

From  the  beginning  of  1997,  the  establishment  plan  of  the  Ombudsman  consisted  of  16  posts,  three  more
than  at  the  end  of  1996.  All  the  posts  are  temporary.

The  total  amount  of  appropriations  available  in  the  Ombudsman’s  budget  for  1997  was  ECU  2 581 819.
Title  1  (Salaries,  allowances  and  other  costs  related  to  employment)  amounted  to  ECU  1 815 819.  Title  2
(Buildings,  equipment  and  miscellaneous  operating  expenditure)  amounted  to  ECU  764 000.

The  following  table  indicates  actual  expenditure  in  1997  in  terms  of  available  appropriations  committed.

Title  1

Title  2

Total

(ECU)

1 519 865

599 120

2 119 852

Revenue  consists  of  deductions  from  the  remuneration  of  the  Ombudsman  and  his  staff.  In  terms  of
payments  received,  total  revenue  in  1997  was  ECU  209 413.

The 1998 budget, prepared during 1997, provides for an establishment plan of 17, representing an increase
of  one  from  the  establishment  plan  for  1997.

Total  appropriations  for  1998  are  ECU  2 782 178.  Title  1  (Salaries,  allowances  and  other  costs  related  to
employment)  amounts  to  ECU  2 003 178.  Title  2  (Buildings,  equipment  and  miscellaneous  operating
expenditure)  contains  ECU  772 000.

The 1998 budget provides for total revenue (deductions from the remuneration of the Ombudsman and his
staff)  of  ECU  264 421.

C  380/162

EN

Official  Journal  of  the  European  Communities

7.12.98

ANNEX  C

THE  PERSONNEL  OF  THE  OMBUDSMAN

EUROPEAN  OMBUDSMAN

Jacob  Söderman

SECRETARIAT  OF  THE  EUROPEAN  OMBUDSMAN

Main  office

1,  av.  du  Pre´sident  Robert  Schuman
B.P.  403
F-67000  Strasbourg  Cedex
Tel.  (33-3)  88  17  23  13
(33-3)  88  17  23  83
Fax  (33-3)  88  17  90  62

Ian  Harden
Principal  officer
Tel.  (33-3)  88  17  2384

Jose´ Martinez  Aragon
Senior  legal  officer
Tel.  (33-3)  88  17  24  01

Olivier Verheecke
Legal  officer  (from  1.9.1997)
Tel.  (33-3)  88  17  53  46

Vicky  Kloppenburg
Legal officer
Tel.  (33-3)  88  17  23  83

Benita  Broms
Legal officer
Tel.  (33-3)  88  17  24  23

Ms  Katja  Heede
Legal officer
(until  14.2.1997)

Ilta Helkama
Press  officer
Tel.  (33-3)  88  17  23  98

Francesca Mancini
Assistant  (until  30.9.1997)
Tel.  (33-3)  88  17  23  85

Daniela Tirelli
Assistant
Tel.  (33-3)  88  17  24  02

Panayotis  Thanou
Assistant
Tel.  (33-3)  88  17  24  03

Nathalie Christmann
Secretary  of  the  European  Ombudsman  (until  13.7.1997)
Administrative  officer  (from  14.7.1997)
Tel.  (33-3)  88  17  23  83

Murielle  Richardson
Secretary (until  13.7.1997)
Secretary  of  the  European  Ombudsman  (from  14.7.1997)
Tel.  (33-3)  88  17  23  88

Isabelle  Foucaud
Secretary
Tel.  (33-3)  88  17  23  91

Stephanie  Kunze
Secretary (from  1.9.1997)
Tel.  (33-3)  88  17  23  93

Patrick  Schmitt
Usher  (from  1.2.1997)
Tel.  (33-3)  88  17  70  93

Trainees

Xavier Denoël
(from  1.7.1997)

Ida  Palumbo
(from  1.10.1997)

The  Brussels  antenna

rue  Wiertz
B-1047  Brussels
Tel.  (32-2)  284  21  80
Fax  (32-2)  284  49  14

Peter  Dyrberg
Senior  legal  officer  (from  16.2.1997)
Tel.  (32-2)  284  20  03

Ursula  Garderet
Secretary (from  1.2.1997)
Tel.  (32-2)  284  23  00

Anna  Ruscitti
Secretary (until  30.6.1997  in  Strasbourg)
Tel.  (32-2)  284  63  93

Trainee  (from  1.7.1997)
Hanna  Mari  Anttilainen