European University Institute is not an EU body to which Ombudsman's powers extend, and powers could not be created by agreement (link)

January 17, 2005

Strasbourg, 14 January 2005

Decision of the European Ombudsman on complaint 2225/2003/(ADB)PB against the European University Institute. Strasbourg, 15 December 2004
Full text

Complaint concerning the use of age limits in a recruitment procedure organised by the European University Institute.

THE DECISION

1 The status of the EUI

1.1 An application for a post submitted by the complainant to the European University Institute (EUI) had been rejected at the stage of admissibility because the complainant did not meet the age limit which foresaw that candidates should be born after 1 January 1955. In her complaint to the Ombudsman, she alleged that she had been discriminated against by the EUI on the grounds of age. She claimed that age discrimination in the recruitment procedures should be abolished.

1.2 In examining the admissibility of the present complaint, the Ombudsman noted that the question whether the EUI is a Community body had already arisen in the framework of a previous complaint lodged with the European Ombudsman against the EUI (inquiry into complaint 659/2000/GG). In that case, the Ombudsman considered that it was not excluded that the EUI could be considered to be a Community body for the purposes of the European Ombudsman's mandate. This finding was made on the basis of the following considerations.

1.3 The EUI was established by a Convention adopted by the Members of the European Community and was on the list of organisations devoted to furthering the Community's interests drawn up in accordance with Article 37(1)(b) of the Staff Regulations (regarding secondment). All the other bodies on that list appeared to be within the Ombudsman's mandate. Furthermore, according to the Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, the EUI falls within that Convention's definition of "bodies set up in accordance with the Treaties." Subsequent to the EUI Convention, the Community has acquired competence in the fields of education, culture and research (Treaty establishing the European Community, Article 3 points (n) and (q); Article 149; Article 151, and Article 163).

1.4 In case 659/2002/GG, the then President of the EUI decided not to propose a view on the issue in the absence of an opinion of the EUI's High Council.

1.5 In its opinion on the present complaint, the EUI informed the Ombudsman that its High Council had not yet been asked to adopt an opinion on the issue. However, the EUI had arrived at the conclusion that it did not fall within the competence of the Ombudsman. In its view, such competence would have to be established by its High Council in agreement with the Ombudsman. It referred to a legal statement that its services had made for the purpose of the opinion in the present case, and which may be summarised as follows:

(i) The EUI was established by a "classical" international convention, and does not form part of the "acquis communautaire".

(ii) The list drawn up on the basis of Article 37 (1) (b) of the Staff Regulations refers to organisations "devoted to furthering the Community's interests", and not to "Community institutions or bodies". It could be presumed that the Community legislator deliberately used the wider concept of organisations devoted to furthering the Community's interests to enable inclusion of bodies that did not strictly form part of the bodies created on the basis of the Community Treaties.

(iii) As regards the fact that the EUI is referred to in the list of "bodies set up in accordance with the Treaties" in the Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union(8), the EUI noted that the Report had simply copied the list created on the basis of Article 37(1)(b) of the Staff Regulations (cf. above). Contrary to all the other institutions or bodies on that list, the EUI was in fact not created on the basis of the Community Treaties.

(iv) As regards the fact that the Community had acquired competence in the fields of education, culture and research subsequent to the EUI Convention (cf. Treaty establishing the European Community, Article 3 points (n) and (q); Article 149; Article 151, and Article 163), the EUI was merely in a situation comparable to other European universities that participate in Community programmes.

[...]

3 Conclusion

On the basis of the findings related to the status of the European University Institute, the Ombudsman closes the case.

The President of the European University Institute will also be informed of this decision.

FURTHER REMARKS

In its opinion, the EUI suggested that it could be brought within the European Ombudsman's competence through an agreement between itself and the Ombudsman. It also stated that the EUI intended to look into the possibilities of bringing the EUI within the competence of the European Court of Justice.

The Ombudsman strongly welcomes the EUI's decision to explore possibilities of enhancing independent control over its activities. It is necessary, however, to point out that Article 195 of the Treaty establishing the European Community provides that the European Ombudsman is empowered to receive complaints concerning "activities of the Community institutions or bodies" and that Article 2(1) of his Statute provides that "No action by any other authority or person [ than a Community institution or body ] may be the subject of a complaint to the Ombudsman."

In the case that an entity is found not to be a Community institution or body, the Ombudsman does not, therefore, have the power to include that entity, by individual agreement or otherwise, into the scope of his competence.

However, given that the term "Community bodies", as referred to in the above Treaty provision, is not precisely defined in Community law, the Ombudsman considers that future legal developments could make it relevant to revisit the issue of whether the EUI could be considered a "Community body" within the European Ombudsman's competence.

linkname:European Ombudsman http:///www.euro-ombudsman.eu.int

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