European Ombudsman
Decisione nel caso 2227/2004/MF - Mancata risposta ad un reclamo ai sensi dell'articolo 90, paragrafo 2, dello statuto
Decisione
Caso 2227/2004/MF - Aperto(a) il 20/09/2004 - Raccomandazione su 22/07/2005 - Decisione del 06/03/2006
Il 14 marzo 2003, il denunciante presentava reclamo ai sensi dell'articolo 90, paragrafo 2, dello statuto contro la decisione della Commissione riguardante le sue spese di viaggio per una missione. Dal momento che il primo reclamo non era mai stato trasmesso ai servizi responsabili, egli presentava nuovamente reclamo alla Commissione in data 19 agosto 2003.
Rivolgendosi al Mediatore, il denunciante accusava la Commissione di aver omesso di fornire una risposta debitamente motivata al suo reclamo ai sensi dell'articolo 90, paragrafo 2, dello statuto.
La Commissione obiettava che la mancata risposta ad un reclamo ai sensi dell'articolo 90, paragrafo 2, dello statuto è equiparabile ad un rigetto tacito.
Alla luce dell'impostazione assunta in precedenza, secondo cui è buona prassi
amministrativa che l'autorità che ha il potere di nomina risponda espressamente a tutti i reclami ai sensi dell'articolo 90, paragrafo 2, il Mediatore ha ritenuto che il non aver fornito una risposta debitamente motivata al reclamo del denunciante costituisse un caso di cattiva amministrazione da parte della Commissione.
Il Mediatore, dunque, ha trasmesso un progetto di raccomandazione alla Commissione secondo cui quest'ultima avrebbe dovuto fornire una risposta debitamente motivata al reclamo ai sensi dell'articolo 90, paragrafo 2.
Con parere circostanziato, la Commissione rammentava le limitate risorse a sua disposizione e obiettava che la possibilità di rigettare tacitamente un reclamo sarebbe intesa a garantire una certa flessibilità fra le diverse priorità, ancorché nel rispetto di una corretta
amministrazione. La Commissione argomentava inoltre che, dal momento che sia lo statuto che gli ordinamenti di alcuni Stati membri contemplano il rigetto tacito di un reclamo, l'esercizio di tale facoltà non costituirebbe un caso di cattiva amministrazione, aggiungendo che, negli ultimi due anni, i rigetti taciti registrati erano stati cinque su un totale di 1 211 reclami ai sensi dell'articolo 90, paragrafo 2, dello statuto. La Commissione aggiungeva inoltre che la stessa decisione sulle spese della missione conteneva le motivazioni a suo fondamento.
In seguito alla mancata accettazione da parte della Commissione del progetto di
raccomandazione del Mediatore, questi ha ritenuto necessario sottolineare quanto segue.
È buona prassi amministrativa che l'autorità che ha il potere di nomina risponda espressamente ai reclami ai sensi dell'articolo 90, paragrafo 2, dello statuto. Nel parere circostanziato, la Commissione non ha tenuto conto delle osservazioni sollevate nel progetto di raccomandazione. Per altro verso, il ristretto numero di rigetti taciti parrebbe confermare che le risorse, seppur limitate, della Commissione non le impediscano di rispondere
espressamente ai reclami in questione. Pur essendo pertanto condivisibile che la Commissione debba poter attribuire priorità diverse a detti reclami, non è dato per ciò stesso ritenere che l'omessa risposta ad uno di essi sia compatibile con i principi di corretta amministrazione. Ciò in quanto la definizione di cattiva amministrazione, come sostenuto dalla giurisprudenza comunitaria, ha una portata più ampia della definizione di illegalità. Per quanto riguarda il fatto che la decisione della Commissione concernente le spese di viaggio per la missione del denunciante riportasse le motivazioni sulle quali essa si fondava, questo dato risulta chiaramente insufficiente. Del resto, se la Commissione avesse ritenuto la decisione in questione corretta e debitamente motivata, ben avrebbe potuto adottare una decisione altrettanto motivata in merito al reclamo ai sensi dell'articolo 90, paragrafo 2, dello statuto. Infine, considerando che la Commissione non aveva trattato in maniera adeguata il primo reclamo ai sensi dell'articolo 90, paragrafo 2, dello statuto, una risposta al secondo reclamo del 19 agosto 2003 sarebbe stata tanto più opportuna.
Il Mediatore ha dunque ribadito la propria posizione secondo cui i principi di una corretta amministrazione impongono all'amministrazione di rispondere per iscritto ai reclami ai sensi dell'articolo 90, paragrafo 2, dello statuto, entro il termine di quattro mesi previsto dalla succitata disposizione. Nella fattispecie, pertanto, l'omessa risposta da parte della Commissione ha costituito un caso di cattiva amministrazione.
Dal momento che il denunciante, nelle proprie osservazioni sul parere della Commissione, ha dichiarato di non intendere proseguire l'indagine in questione, il Mediatore non ha ritenuto opportuno presentare una relazione speciale al Parlamento europeo ed ha pertanto dichiarato il caso archiviato con un'osservazione critica.
Strasbourg, 6 March 2006 Dear Mr X.,
On 15 July 2004, you made a complaint to me against the European Commission concerning its failure to provide a reasoned answer to your complaint made under Article 90(2) of the Staff Regulations.
On 20 September 2004, I forwarded the complaint to the President of the Commission. On 19 October 2004, you sent me a further letter related to your complaint. In this letter, you asked me to reformulate the first allegation of your complaint as set out in my letter of 20 September 2004. On 26 October 2004, the Commission sent its opinion on your complaint.
On 9 November 2004, I wrote a further letter to the President of the Commission in which I
informed him of the reformulation of the first allegation of your complaint, asking him to submit an opinion on it before 31 December 2004. The Commission sent its further opinion on 6 January 2005.
On 12 January 2005, I forwarded to you the Commission's two opinions with an invitation to make observations before 28 February 2005. No observations were received from you by that date.
On 22 July 2005, I addressed a draft recommendation to the Commission. You were informed accordingly in a letter sent the same day.
On 16 September 2005, you sent me a further letter in which you pointed out that, in an e-mail of 6 February 2004 (which you enclosed), the Commission official in charge of your file had confirmed that he would write a draft reply to your complaint. You asked me to take into account this element in the "final version" of the draft recommendation.
In my reply of 10 October 2005, I informed you that, despite its title, a draft recommendation is a final text in which the Ombudsman sets out his views as to whether there is an instance of maladministration on the part of the institution concerned. I further informed you that, should you wish to maintain your allegation that the Commission had failed to reply to your complaint despite its commitment and its apparent intention to do so, you would need to lodge a new complaint with the Ombudsman. I finally informed you that a copy of your further letter would be sent to the Commission for its information, which my services did on the same day.
On 15 November 2005, you sent me a further letter in which you informed me that you did not wish to lodge a new complaint with the Ombudsman as regards this aspect of the case and that you considered that the principal aim of your approaches had been reached, that is, that the institution had become aware of the instance of maladministration.
On 21 November 2005, the Commission sent me its detailed opinion regarding my draft recommendation. I forwarded it to you on 5 December 2005 with an invitation to make observations before 31 December 2005. On 14 December 2005, you sent me your observations.
I am writing now to let you know the results of the inquiries that have been made.
THE COMPLAINT
According to the complainant, the relevant facts are as follows:
The complainant is a Commission official. In June 2002, he went on a mission. In the complainant's view, the financial statement relating to his mission did not comply with the Guide on Missions and the amount of the reimbursement for expenses related to this mission did not correspond to the expenses that he had incurred.
On 14 March 2003, the complainant lodged a complaint under Article 90(2) of the Staff Regulations. In the complainant's view, his complaint was never forwarded to the responsible
services. On 19 August 2003, the complainant again lodged a complaint under Article 90(2) to the Commission. His complaint was registered by Directorate-General Personnel and
Administration of the European Commission ("DG Personnel and Administration") on 28 August 2003.
Between December 2003 and February 2004, the complainant was contacted on several occasions by the person responsible for his file in order to complete it. During these discussions, the complainant was informed that he would receive a reasoned answer to his complaint.
In May 2004, the complainant contacted the person in charge of his file. He was again informed that he would receive a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations.
In June 2004, the complainant wrote an e-mail to the responsible service of the Commission and requested to be given information on the progress of the treatment of his complaint. He further telephoned the relevant Head of Unit of DG Personnel and Administration. He was informed that the " [h]ighest authorities had decided that no reasoned answer would be given ".
On 15 July 2004, the complainant lodged a complaint with the Ombudsman. He alleged that the Commission had failed to give him a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations. He further alleged that the Commission's behaviour had deprived him of his right to lodge an appeal before the Court of First Instance.
The complainant claimed that he should receive a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations.
THE INQUIRY The Commission's opinion
The Commission's opinion on the complaint was, in summary, as follows:
In order to attend the meeting of the Heads of Representations in the place of his mission, the complainant chose to purchase an airplane ticket with the APEX fare amounting to EUR 396.21, an amount which was lower than the standard reduced fare. This ticket, however, necessitated spending the weekend in the place of his mission. The complainant had followed the procedure in force for the establishment of his mission order.
On 14 March 2003, after receiving the financial statement relating to his mission on 18 January 2003, the complainant, through his immediate supervisor, lodged a complaint under Article 90(2) of the Staff Regulations. In this complaint, the complainant challenged the Commission's decision not to reimburse him the daily subsistence allowances for Friday 14 June, Saturday 15 June and Sunday 16 June 2002, pursuant to provisions set out in Article VIII.1 of the Guide on Missions. The complainant further requested that his complaint be forwarded to the Appointing Authority.
Four months later, after having noted that his complaint had never been received by the Appeals Unit of the Commission, which is responsible for dealing with complaints made under Article 90(2) of the Staff Regulations, the complainant asked the Commission's
mediator to intercede with the Head of the Appeals Unit.
On 19 August 2003, the complainant directly lodged a second complaint with the relevant Unit concerning the same facts as those made in the first complaint. This second complaint was registered on 28 August 2003 under reference R/517/03. An acknowledgment of receipt was sent to the complainant on 1 October 2003.
According to the complainant, there were frequent telephone calls between him and the official in charge of his file from December 2003 to February 2004, during which the complainant was informed that he would receive a reasoned answer to his complaint.
In June 2004, that is, four months after the last communication that the complainant had had with the Commission, he contacted the relevant service by e-mail and then by telephone in order to obtain information on the progress of the handling of his complaint. The
complainant was informed that, pursuant to the acknowledgment of receipt of 1 October 2003, a lack of reply by the Appointing Authority within a four-month deadline from the date on which the complaint was made was deemed to constitute an implied decision rejecting it.
It was regrettable that the complainant's first complaint sent to his immediate superior had never been forwarded to the Appeals Unit that was responsible for dealing with complaints made under Article 90(2) of the Staff Regulations. Once this Unit was informed of this fact, it decided to deal with the complainant's second complaint, in the latter's interest and in order to ensure a fair treatment of complaints, four months after the statutory deadline had expired. Appropriate measures had therefore been taken to correct the mistake resulting from an inadequate transfer of the complainant's first complaint between the Commission's relevant services.
The complainant was then sent an acknowledgment of receipt, informing him that i) the Appointing Authority had a four-month deadline, from the date on which the complaint was made, to notify him of its reasoned decision; ii) if, at the end of that period, no reply to the complaint had been received, this was to be deemed to constitute an implied decision rejecting it; iii) the official could lodge an appeal before the Court of First Instance against an implied or express decision, under the conditions set out in Article 91 of the Staff Regulations (that is, within a three-month deadline from the date of the notification of the decision or the date of the implied decision). In these circumstances, the complainant, who was supposed to know these rules, could not be unaware of the fact that a lack of a reasoned decision from the Commission by 28 December 2003 was deemed to constitute an implied decision rejecting his complaint and opened the statutory deadline to lodge an appeal before the Court of First Instance. The complainant's second complaint had therefore been dealt with in accordance with the rules in force. The complainant had not been deprived of his right to lodge an appeal before the Court of First Instance.
Without questioning the complainant's sincerity, it had to be pointed out that the latter did not submit any evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his complaint. There was no evidence of such an undertaking in the relevant file in the Commission's possession.
It had to be recalled that, although the Staff Regulations did not compel it to do so, the Commission endeavoured to give a reasoned decision in all appeals lodged with it.
Nevertheless, in view of its limited resources and of the huge number of appeals, it
happened that this practice, exceptionally, could not be followed, for which the Commission apologised.
Further inquiries The Ombudsman's request for information from the Commission
On 19 October 2004, the complainant sent a further letter related to his complaint. In this letter, he asked the Ombudsman to reformulate the first allegation of his complaint. It therefore appeared that further inquiries were necessary. On 9 November 2004, the
Ombudsman therefore wrote a further letter to the President of the Commission in which he reformulated the first allegation of the complainant's complaint in the following terms:
"The Commission failed to give the complainant a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations, despite its commitment and its apparent intention to do so ".
The Commission's reply
In its reply, the Commission made in summary the following statements:
As stated in the first opinion, dated 26 October 2004, it could only be noted that the complainant did not submit any evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his complaint. There was no evidence as regards this, in the relevant file in the Commission's possession or in the file of the complaint lodged with the Ombudsman.
The Commission wished to express again its willingness to give a reasoned decision in all appeals lodged with it and apologised both to the Ombudsman and to the complainant for the fact that this practice, exceptionally, could not be followed, for the reasons set out in its first opinion.
The complainant's observations
No observations were received from the complainant by the date set for this purpose.
THE OMBUDSMAN'S DRAFT RECOMMENDATION The draft recommendation
On 22 July 2005, the Ombudsman addressed the following draft recommendation to the Commission:
The Commission should give a reasoned reply to the complainant's complaint made under Article 90(2) of the Staff Regulations of 19 August 2003.
This draft recommendation was based on the following considerations:
1 The alleged failure of the Commission to give a reasoned answer to the complainant's complaint made under Article 90(2) of the Staff Regulations
1.1 The complainant is a Commission official. In June 2002, he went on a mission. In the complainant's view, the financial statement corresponding to his mission order did not comply with the Guide on Missions and the amount of the reimbursement for expenses related to this mission did not correspond to what he had spent. On 14 March 2003, the complainant lodged a complaint under Article 90(2) of the Staff Regulations. His complaint
was never forwarded to the responsible services. On 19 August 2003, the complainant again lodged a complaint under Article 90(2) to the Commission. His complaint was registered by the Commission on 28 August 2003.
In his complaint to the Ombudsman, the complainant alleged that the Commission had failed to give him a reasoned answer to his complaint made under Article 90(2) of the Staff
Regulations. On 19 October 2004, the complainant sent a further letter related to his
complaint. In this letter, he asked the Ombudsman to add the following point (underlined) to his first allegation: "The Commission failed to give the complainant a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations, despite its commitment and its apparent intention to do so ".
1.2 In its opinion, the Commission stated that it was regrettable that the complainant's first complaint sent to his immediate superior had never been forwarded to the Appeals Unit that was responsible for dealing with complaints made under Article 90(2) of the Staff
Regulations. Once this Unit was informed of this fact, it decided to deal with the complainant's second complaint, in the latter's interest and in order to ensure a fair
treatment of complaints, four months after the statutory deadline had expired. Appropriate measures had therefore been taken to correct the mistake resulting from an inadequate transfer of the complainant's first complaint between the Commission's relevant services.
The Commission explained that the complainant had been sent an acknowledgment of receipt, informing him i) that the Appointing Authority had a four-month deadline from the date on which the appeal was made to communicate its reasoned decision; ii) that if, at the end of that period, no reply to the complaint had been received, this was deemed to constitute an implied decision rejecting it; and iii) that he could lodge an appeal before the Court of First Instance against an implied or express decision, under the conditions set out in Article 91 of the Staff Regulations. In these circumstances, the complainant could not be unaware of the fact that the lack of a reasoned decision from the Commission by 28 December 2003 was deemed to constitute an implied decision rejecting his appeal and opened the statutory deadline to lodge an appeal before the Court of First Instance.
1.3 On 19 October 2004, the complainant sent the Ombudsman a further letter related to his complaint. In this letter, he pointed out that the first allegation of his complaint should be worded as follows:
"The Commission failed to give the complainant a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations, despite its commitment and its apparent intention to do so ".
1.4 On 9 November 2004, the Ombudsman therefore wrote to Commission in order to ask it to comment on the complainant's allegation as reworded by the complainant.
1.5 In its further opinion, the Commission stated that, as indicated in the first opinion dated 26 October 2004, it could only be noted that the complainant did not submit any evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his complaint. There was no evidence as regards this, in the relevant
file in the Commission's possession or in the file on the complaint lodged with the Ombudsman.
1.6 The Ombudsman notes that, according to Article 90(2) of the Staff Regulations, "(…) the authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complainant has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91 ".
1.7 In his decisions on complaints 1479/99/(OV)MM (1) and 729/2000/OV (2) , the Ombudsman took the view that it was good administrative practice for the Appointing Authority to give an explicit reply to the complaints made by Community staff under Article 90 of the Staff Regulations. He further noted that when the Appointing Authority fails to do so, the person concerned is protected from further delay by the rule that the lack of reply constitutes a negative decision. In the Ombudsman's view, this rule aims to provide a legal remedy for an official where the Appointing Authority does not give an explicit reply, but does not authorise the Appointing Authority to depart from its obligation to comply with principles of good administration.
1.8 In the present case, the Commission should have replied to the complainant by 28 December 2003. The Ombudsman notes that the Commission, in its opinion, stated that, although the Staff Regulations do not compel it to do so, it endeavoured to give a reasoned decision in all appeals lodged with it. Nevertheless, in view of its limited resources and of the large number of appeals, it might occur that, in exceptional circumstances, this practice is not followed. The Commission apologised for this situation. The Ombudsman takes the view that the Commission's limited resources and a possibly large number of appeals to be dealt with are not adequate reasons to justify the Commission's failure to give a reasoned decision on the complainant's complaint. The Ombudsman notes that the Commission, in its two opinions, apologised both to the complainant and to the Ombudsman for its failure to give a reasoned decision on the complainant's complaint. However, the Ombudsman further notes that, in these opinions, the Commission did not discuss the reasons for its decision to reject the complainant's complaint. In the Ombudsman's view, the complainant has therefore still not been informed of these reasons. In view of this fact, the Ombudsman considers that the Commission's failure to give a reasoned answer to the complainant's complaint made under Article 90(2) of the Staff Regulations on 19 August 2003 constitutes an instance of
maladministration.
1.9 As regards the allegation of the complainant pursuant to which the Commission "failed to give the complainant a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations, despite its commitment and its apparent intention to do so ", the Ombudsman notes that the Commission stated that the complainant had not submitted evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his complaint. The Ombudsman takes the view that it is not obvious from the documents submitted to him that the official in charge of the
complainant's file had expressly informed him that there would be a reasoned decision on his complaint. However, in view of his conclusion in paragraph 1(8) mentioned above, the
Ombudsman considers that that there are no grounds for further inquiries into this aspect of the complainant's allegation.
2 The allegation that the Commission's behaviour had deprived the complainant of his right to lodge an appeal before the Court of First Instance
2.1 The complainant alleged that the Commission's behaviour had deprived him of his right to lodge an appeal before the Court of First Instance.
2.2 The Commission stated that, on 1 October 2003, an acknowledgment of receipt had been sent to the complainant, informing him i) that the Appointing Authority had a four-month deadline from the date on which the appeal was made to communicate its reasoned
decision; ii) that if, at the end of that period, no reply to the complaint had been received, this was deemed to constitute an implied decision rejecting it; and iii) that the official could lodge an appeal before the Court of First Instance against an implied or express decision, under the conditions set out in Article 91 of the Staff Regulations.
2.3 The Ombudsman considers that the complainant was given sufficient information in the acknowledgment of receipt as regards his right to lodge an appeal with the Court of First Instance. He therefore takes the view that the complainant could have lodged an appeal with the Court of First Instance after 28 December 2003, if he had wished to do so. The
Ombudsman notes that the complainant argued that, between December 2003 and February 2004, he had had several contacts with the person responsible for his file at the Commission and that he had been informed, on these occasions, that he would receive a reasoned answer to his appeal. However, the only relevant evidence that has been put at the Ombudsman's disposal is a copy of the complainant's e-mail of 9 June 2004 in which the complainant referred to a conversation with the official in charge of his file that had taken place some three weeks earlier. During this conversation, the complainant was informed, according to his e-mail of 9 June 2004, that the reasoned decision on his appeal was ready for signature. Even on the assumption that this e-mail could be considered as evidence proving that the Commission had indicated that it would provide a written reply to the complainant's appeal made under Article 90 of the Staff Regulations, it should be noted that this information was given to the complainant in May 2004, that is, after the expiry of the three-month deadline for lodging an appeal with the Court of First Instance. In these
circumstances, the Ombudsman considers that the complainant has not submitted sufficient evidence to show that the Commission's behaviour deprived him of his right to lodge an appeal before the Court of First Instance. The Ombudsman therefore concludes that there appears to have been no maladministration by the Commission as regards this allegation.
The Commission's detailed opinion
In its detailed opinion on the draft recommendation, the Commission stated that it was responsible for its own management of its limited resources and that the considerable number of appeals and the possibility to implicitly reject them aims to ensure a margin for manoeuvre in order to establish priorities in respect of good administration. The
Commission wished to inform the Ombudsman that, over the previous two years, there had been five implied decisions rejecting complaints out of a total of 1211 complaints lodged under Article 90(2) of the Staff Regulations (compared to one implied decision rejecting a complaint in 2003 and four implied decisions rejecting complaints in 2004). This clearly showed a very limited use by the Commission of the possibility to take implied decisions
rejecting complaints.
The possibility of implied decisions rejecting complaints is foreseen both by Staff Regulations and by national legal systems of some Member States. This possibility could therefore not be considered to constitute maladministration. This also follows a contrario from the case-law of the Court as regards the obligation to reason decisions, such an obligation not being foreseen by Article 90(2) of the Staff Regulations. In the Commission's view, the complainant, through his complaint, circumvented the deadlines for appeals foreseen in Article 91 of the Staff Regulations. Nevertheless, in view of the principle of the necessity of the binding statutory deadlines, the decision of the administration to reject the complainant's complaint made under Article 90(2) of the Staff Regulations cannot be appealed any further.
However, the Commission shared the Ombudsman's concern on the issue of giving reasoned decisions and referred to Article 25 of the Staff Regulations. In the present case, the decision stated the grounds on which it was based at the very beginning, since, as the complainant stated, the reason for which the Commission had decided not to reimburse him three further daily allowances was based on the fact that he had chosen himself to book an airplane ticket with the APEX fare - which forced him to stay until Sunday- rather than a standard ticked.
The complainant's observations
In his observations of 14 December 2005, the complainant stated that, as mentioned in his letter of 15 November 2005, he did not consider it useful for the inquiry into his complaint to be pursued. The complainant further pointed out that the detailed opinion of the
Commission did not deal with his allegation pursuant to which the Commission had failed to give him a reasoned answer to his complaint made under Article 90(2) of the Staff
Regulations, despite its commitment and its apparent intention to do so. In the
complainant's view, the Commission only explained in general terms its policy as regards complaints lodged under Article 90(2) of the Staff Regulations, without taking into account the specific aspects of the case.
THE DECISION
1.1 The complainant is a Commission official. In June 2002, he went on a mission. In the complainant's view, the financial statement corresponding to his mission order did not comply with the Guide on Missions and the amount of the reimbursement for expenses related to this mission did not correspond to what he had spent. On 14 March 2003, the complainant lodged a complaint under Article 90(2) of the Staff Regulations. His complaint was never forwarded to the responsible services. On 19 August 2003, the complainant again lodged a complaint under Article 90(2) to the Commission. This complaint was registered by the Commission on 28 August 2003. On 15 July 2004, the complainant made a complaint to the European Ombudsman against the European Commission concerning the lack of a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations on 19 August 2003. The complainant claimed that he should receive a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations.
1.2 In its opinion, the Commission stated that the failure to reply to a complaint made under Article 90(2) of the Staff Regulations was deemed to constitute an implied decision rejecting it. The Commission further stated that it had to be recalled that, although the Staff
Regulations did not compel it to do so, the Commission endeavoured to give a reasoned
decision in all appeals lodged with it. Nevertheless, in view of its limited resources and of the huge number of appeals, it happened that in this instance this practice could, exceptionally, not be followed. The Commission apologised for this.
1.3 On 22 July 2005, after having considered the Commission's opinion and the complainant's observations, the Ombudsman addressed a draft recommendation to the Commission according to which the latter should give a reasoned reply to the complainant's complaint made under Article 90(2) of the Staff Regulations.
1.4 In its detailed opinion, the Commission informed the Ombudsman that it was responsible for the management of its limited resources. It added that the possibility implicitly to reject appeals aimed to ensure a margin for manoeuvre in order to establish priorities in respect of good administration. The possibility of implied decisions rejecting appeals is foreseen both by Staff Regulations and by national legal systems of some Member States. This possibility could therefore not be considered to constitute maladministration. Over the previous two years, there had been five implied decisions rejecting complaints out of a total of 1211 complaints lodged under Article 90(2) of the Staff Regulations (compared to one implied decision rejecting a complaint in 2003 and four implied decisions rejecting complaints in 2004).
However, the Commission noted that it shared the Ombudsman's concern on the issue of giving reasoned decisions. It submitted that, in the present case, the decision which was the subject of the dispute had stated the grounds on which it was based.
1.5 In his observations, the complainant stated that he did not consider it useful for the inquiry into his complaint to be pursued. The complainant noted, however, that the Commission's detailed opinion did not deal with his allegation, pursuant to which the Commission had failed to give him a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations.
1.6 T he Ombudsman notes that the Commission, in its detailed opinion on his draft recommendation, maintains its position, according to which an absence of reply to a complaint made under Article 90(2) of the Staff Regulations could not be considered to constitute an instance of as maladministration. With regard to this view, the Ombudsman considers it necessary to point out the following:
1.7 The Ombudsman recalls that he based his draft recommendation to the Commission on the following reasons: in his decisions on complaints 1479/99/(OV)MM and 729/2000/OV, the Ombudsman took the view that it was good administrative practice for the Appointing Authority to give an explicit reply to the complaints made by Community staff under Article 90 of the Staff Regulations. He further noted that when the Appointing Authority fails to do so, the person concerned is protected from further delay by the rule that the lack of reply constitutes a negative decision. In the Ombudsman's view, this rule aims to provide a legal remedy for an official where the Appointing Authority does not give an explicit reply, but does not authorise the Appointing Authority to depart from its obligation to comply with principles of good administration. The Ombudsman therefore considered that the
Commission's failure to give a reasoned answer to the complainant's complaint made under Article 90(2) of the Staff Regulations on 19 August 2003 constituted an instance of
maladministration. The Ombudsman notes that the Commission, in its detailed opinion on the draft recommendation, failed to address the reasons he had set out in his draft
recommendation.
1.8 The Ombudsman further notes that the Commission appeared to argue that the possibility implicitly to reject complaints under Article 90(2) of the Staff Regulations was required by its limited resources as well as by the need to ensure a margin of manoeuvre and to establish priorities in respect of good administration. However, the extremely limited number of implied rejection decisions, compared to the total amount of complaints made, would appear to confirm that the limited resources of the Commission do not oblige the latter to refrain from providing express replies to such complaints. It should furthermore be recalled that the Commission disposes of a full four months to provide such a reply. The Ombudsman further considers that whilst it can be accepted that the Commission should be able to establish priorities as regards the Article 90(2) complaints that are submitted to it, this does not make the Commission's decision to provide no answer whatsoever to a particular complaint compatible with principles of good administration.
1.9 Third, by stating that there can be no instance of maladministration because the
possibility of implied rejection decisions is foreseen in the Staff Regulations (and in the legal systems of some Member States), the Commission seems to argue that maladministration can only exist in cases where legal provisions are infringed. However, the Ombudsman would like to point out in this regard that, as has been clarified by the Court of First Instance, the concept of maladministration is broader than merely illegality (3) . Whereas
maladministration certainly exists where an administration violates the legal rules binding on it, the fact that a decision is in conformity with the law does not exclude a finding of
maladministration.
1.10 In its opinion on the draft recommendation, the Commission also argued that the decision against which the Article 90(2) complaint was directed had stated the grounds on which it was based. However, as the purpose of the Article 90(2) procedure is to give the administration the possibility to review the decision that is the subject of the complaint, it is clearly not sufficient that the decision itself indicated the reasons on which it was based.
Furthermore, if the Commission considered that this decision was correct and contained all the necessary explanations, it should have been all the easier for it to decide on the Article 90(2) complaint and provide the complainant with a written reply to this complaint.
1.11 Finally, the Ombudsman takes the view that, given that the Commission had been unable to deal properly with the complainant's first Article 90(2) complaint of 14 March 2003, a reply to his second Article 90(2) complaint of 19 August 2003 would have been all the more necessary.
1.12 In view of the above considerations, the Ombudsman reiterates his view that principles of good administration require the administration to provide a written reply to complaints submitted to it under Article 90(2) of the Staff Regulations and that this reply has to be
provided within the period of four months laid down in this provision. In the present case, therefore, the Commission's failure to reply to the complainant's appeal of 19 August 2003 within the four-month deadline constitutes an instance of maladministration and the Ombudsman makes a critical remark below.
2 Conclusion
2.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:
According to Article 90(2) of the Staff Regulations, the Appointing Authority shall notify the person who has lodged an internal complaint of its reasoned decision within four months.
This is in line with the principles of good administration. It is true that Article 90(2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. This rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not in any way give the administration the right to depart from the obligations resulting from the principles of good administration. The Commission's failure to reply to the complainant's Article 90(2) complaint of 19 August 2003 therefore constitutes an instance of maladministration.
2.2 Article 3(7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned.
2.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament was of inestimable value for his work.
He added that special reports should therefore not be presented too frequently, but only in relation to important matters where the Parliament was able to take action in order to assist the Ombudsman (4) . The Annual Report for 1998 was submitted to and approved by the European Parliament.
2.4 The Ombudsman however notes that, in his observations on the Commission's opinion, the complainant stated that he did not consider it useful for the inquiry into his complaint to be pursued. Given these circumstances, the Ombudsman concludes that it is not appropriate to submit a special report to the European Parliament.
2.5 The Ombudsman will therefore send a copy of this decision to the Commission and include a short summary in the annual report for 2006 that will be submitted to the European Parliament. The Ombudsman thus closes the case.
2.6 The President of the European Commission will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) Decision available on the European Ombudsman's website at the following address:
http://www.ombudsman.europa.eu/decision/en/991479.htm .
(2) Decision available on the European Ombudsman's website at the following address:
http://www.ombudsman.europa.eu/decision/en/000729.htm .
(3) See joined cases T-219/02 and T-337/02, Olga Lutz Herrera v Commission [2004] ECR- II paragraph 101. See also case T-294/03, Jean-Louis Gibault v Commission , judgement of 31 May 2005 (not yet reported) paragraph 45.
(4) Annual Report for 1998, pages 27-28.
