N° 110-2004 / 10.09.2004

UPDATE OF THE ARRANGEMENTS FOR MAKING

  • REQUESTS (ARTICLE 90(1) OF THE STAFF REGULATIONS)
  • COMPLAINTS (ARTICLE 90(2) OF THE STAFF REGULATIONS)
  • REQUESTS FOR ASSISTANCE (ARTICLE 24 OF THE STAFF REGULATIONS)

Full and updated information about requests and complaints, including the arrangements for submission to the Complaints Unit of DG ADMIN (ADMIN.B.2), may be found below(1).

A copy of the form to be filled in by persons submitting a request or complaint, which serves as a cover page and accompanying sheet for each copy of the request or complaint, is attached and may also be obtained from the Complaints Unit.

REQUESTS

  1. DEFINITION
  2. THE PERSON CONCERNED
  3. THE ADMINISTRATION

COMPLAINTS

  1. DEFINITION
  2. THE PERSON CONCERNED
  3. THE ADMINISTRATION

REQUESTS FOR ASSISTANCE

COMPLIANCE WITH REGULATION (EC) No 45/2001 ON THE PROTECTION OF PERSONAL DATA

REQUESTS AND COMPLAINTS UNDER ARTICLE 90(1) AND (2) OF THE STAFF REGULATIONS

Any person subject to the Staff Regulations or the Conditions of employment of other servants may send the appointing authority (or ‘appropriate authority’)

  • a request for that authority to take a decision;
     
  • a complaint seeking the annulment or amendment of a decision taken by the appropriate authority, including rejection of a request, constituting an act prejudicial to him or her.

REQUESTS

  1. DEFINITION

    By a request under Article 90(1) of the Staff Regulations, an official (or a person subject to the Staff Regulations) asks the appropriate authority to take a decision concerning him or her.

    Examples:
     
    • request for the installation allowance;
       
    • request to draw up a staff report.

    The purpose is therefore to secure a decision from the appropriate authority, which may either grant the request or, by rejecting it, open the way to a complaint.

    Requests should not seek revision of a decision already taken, unless new evidence comes to light and a request can be submitted to have a decision reviewed.
     

  2. THE PERSON CONCERNED

    2.1. Who may make a request?

    Any person subject to the Staff Regulations of officials of the European Communities, and, by analogy, temporary staff, auxiliary staff, contract staff and special advisers covered by the Conditions of employment of other servants, may make a request under Article 90(1) of the Staff Regulations to the appointing authority or authority empowered to conclude contracts of employment, as appropriate.

    The persons referred to in the Staff Regulations are not only the serving staff listed above but also other categories such as probationers awaiting establishment, former staff, those entitled under them in the event of death and candidates in a competition(2).

    2.2. Addressee

    Whether explicitly or implicitly, the addressee of a request is the appointing authority(3). Accordingly, the letter making the request should be addressed to the appointing authority and headed ‘Request under Article 90(1) of the Staff Regulations’. The power delegated to the appointing authority by Article 90(1) of the Staff Regulations is exercised by the persons listed in the Commission decision of 28 April 2004 (Administrative Notice No 31 of 5 May 2004), as last amended by Commission decision of 7 July 2004 (C(2004) 2286/3).

    2.3. Address and method of submission
    The request should be sent to the Complaints Unit (ADMIN.B.2) by e-mail, preferably in .pdf format, to the operational mailbox ADMIN MAIL B2, or handed in at the address SC11 4/57 (between 09.00 and 12.00 and between 14.00 and 17.00).
    The registration stamp of the Complaints Unit will be taken as proof of the date the request was submitted. In the case of requests submitted by e-mail, the date of registration will be the date on which it is sent or the first working day following that date if it is a holiday(4).

    2.4. Time allowed for submission

    A request may be made at any time. However, a request concerning the same matter as an earlier request or complaint which has received no reply or a negative reply may not reopen the period for the submission of a complaint allowed by Article 90(2) of the Staff Regulations (see 3.2 below).

    2.5. Form and content

    The form, which is not subject to any particular conditions, is not the factor which determines whether a request is to be regarded as such. Only the contents does so. Accordingly, the administration may regard a submission inviting it to review an earlier decision as a complaint even if it is entitled ‘request’.

    A request must normally indicate that it is a request under Article 90(1) of the Staff Regulations and state the identity of the person concerned, its purpose and the reasons why it is being made and include the place, date and signature. Any document providing a better understanding of the problem should be attached.
    To facilitate the procedure, the person concerned should enclose a form (see below) with the request.
     

  3. THE ADMINISTRATION

    3.1. Treatment of the request

    The Complaints Unit sends the person making the request an acknowledgement, if possible by e-mail. The acknowledgement of receipt contains information such as the number of the request, the date of registration and the name of the member of the unit responsible for examining the file.
    There is no particular procedure for dealing with a request. It includes consideration of the purpose of the request by the department responsible for taking a decision and any checks needed to adopt that decision.

    3.2. Decision and time allowed

    The decision adopted by the appropriate authority must be reasoned and sent to the person concerned, with no particular formality, within four months of the date on which the request is made.

    Time periods will be calculated from the date of registration by the Complaints Unit.

    If the request is rejected, the person concerned may make a complaint within three months from the date of notification of the decision.

    Failure to reply to a request within the period of four months given to the appointing authority to adopt its decision means that the request has been implicitly rejected. A complaint against such a decision may also be made within three months of the implicit rejection. A late reply by the appointing authority (after the four-month period) does not reopen the three-month period available for making a complaint.

    COMPLAINTS

  4. DEFINITION  
    By making a complaint under Article 90(2) of the Staff Regulations(5), an official contests a decision by the appropriate authority which he or she considers prejudicial; the authority has either taken an explicit or implicit rejection decision or it has failed to take a measure required by the Staff Regulations:

    Examples:
     
    • complaint against a refusal to reimburse medical expenses;
       
    • complaint against a career development report (CDR) or a decision under the promotion exercise;
       
    • complaint against a decision not to pay daily allowances on recruitment.

    Unlike a request, a complaint presupposes the prior existence of an administrative act taken by the appropriate authority. This act may be challenged if it is final (preparatory acts may not be challenged) and personally and individually prejudicial (the person concerned must have a personal, legitimate, direct, substantive and current interest in having the decision cancelled or amended).

    It should be noted that a complaint is the only means provided by the Staff Regulations for a member of staff to contest a decision by the appropriate authority which, in his or her view, affects statutory rights and is prejudicial. Any request for the review or reconsideration of such a decision is therefore to regarded as a complaint for the purposes of compliance with the deadlines listed below (6).
     

  5. THE PERSON CONCERNED

    5.1. Who may make a complaint?

    Any person subject to the Staff Regulations of officials of the European Communities, and, by analogy, temporary staff, auxiliary staff, contract staff and special advisers covered by the Conditions of employment of other servants, may make a complaint under Article 90(2) of the Staff Regulations to the appointing authority or authority empowered to conclude contracts of employment, as appropriate.

    The persons referred to in the Staff Regulations are not only the serving staff listed above but also other categories such as probationers awaiting establishment, former staff, those entitled under them in the event of death and candidates in a competition(7).

    5.2. Addressee

    Whether explicitly or implicitly, the addressee of a complaint is the appointing authority . Accordingly, the letter making the complaint will be deemed to be addressed to the appointing authority(8). The power delegated to the appointing authority by Article 90(2) of the Staff Regulations is exercised by the persons listed in the Commission decision of 28 April 2004 (Administrative Notice No 31 of 5 May 2004), as last amended by Commission decision of 7 July 2004 (C(2004) 2286/3).

    5.3. Address and method of submission

    The complaint should be sent to the Complaints Unit (ADMIN.B.2) by e-mail, preferably in .pdf format, to the operational mailbox ADMIN MAIL B2, or handed in at the address SC11 4/57 (between 09.00 and 12.00 and between 14.00 and 17.00).

    5.4. Time allowed for submission

    A complaint must be made within three months. This period starts:
     
    • on the date of publication of the act if it is a measure of a general nature;
       
    • on the date of notification of the decision to the person concerned and in any event no later than the day when they become aware of it if it is a measure of an individual nature; however, if an act of an individual nature is such as to be prejudicial to a person other than the person directly concerned, that period shall begin to run with regard to that person from the day when he or she becomes aware of it and in any event no later than the date of publication;
       
    • on the date of expiry of the period prescribed for the reply where the complaint is against an implied decision rejecting a request.

    These periods are matters of public policy and may not be negotiated by the parties. The fact that in a reply the appropriate authority deals with the substance of a complaint which is out of time, and so inadmissible, does not derogate from the deadlines and reopen a right of appeal which had otherwise expired.

    The date of submission of a complaint for the purposes of deadlines will be taken as that of the registration stamp of the Complaints Unit. No account will be taken of the time taken for transmission by either the public or internal post. In the case of complaints submitted by e-mail, the date of registration will be the date on which it is sent or the first working day following that date if it is a holiday(9).

    Acts which contain no points not already made in a previous decision are purely confirmatory and do not have the effect of providing the member of staff with further time.

    5.5. Form and content

    Like a request, a complaint is defined by its nature and content, not by its form.

    A complaint should normally state the identity of the complainant, the disputed act and its purpose and the grounds and arguments on which it is based and include the place, date and signature. Documents which assist a correct assessment of the problems raised should be attached.
    To facilitate the procedure, the person concerned should enclose a form (see below) with the request.
     

  6. THE ADMINISTRATION
     
    6.1. Treatment of the complaint

    Duly registered complaints are the responsibility of the Complaints Unit and processed by it so that the appointing authority may adopt a reply.

    The Complaints Unit sends the person making the complaint an acknowledgement, if possible by e-mail. The acknowledgement of receipt contains information such as the number of the complaint, the date of registration and the name of the member of the unit responsible for handling the file.

    At the same time, the Complaints Unit will collect any information relevant to treating the matter from the departments which took or are affected by the decision being challenged.

    Complaints about the Joint Sickness Insurance Scheme are also sent to the Sickness Insurance Management Committee for its opinion.

    If it considers it useful, the Complaints Unit may organise an interdepartmental meeting to which the complainant, the departments responsible for the decision being challenged, the mediator and staff representatives appointed by the Central Staff Committee are invited and where the complainant may present his or her version of the facts and the arguments set out in the complaint. The complainant may be accompanied by a person of his or her choice or an adviser. The meeting is not an arbitration or decision-making body; it simply enables all the parties concerned to express their views.

    After this meeting or when the dossier has been sufficiently considered, a draft reply is prepared. After the Legal Service has given its opinion, the draft is sent to the appropriate authority for a decision. The staff representatives designated to attend interdepartmental meetings will be informed of the action (positive or negative) taken on complaints.

    6.2. Decision and time

    The appointing authority has a period of four months from submission of a complaint to reply to it. After that period, the lack of a reply is an implied decision of rejection. If the complaint is rejected, whether expressly or implicitly, the complainant has three months from the date of notification of the reply to the complaint or the implied rejection to appeal to the Court of First Instance.

    When an express decision rejecting a complaint is taken after an implied rejection but within the period of three months allowed for lodging an appeal (but no appeal has been lodged), it reopens the three-month period for making an appeal to the Court of First Instance.

    The reply to the complaint is sent to the complainant or to the assistant or Head of the Human Resources Unit of his or her Directorate-General or department or, in the case of staff employed outside the Union, to the Head of Delegation, against signature of an acknowledgement of receipt. In addition, the complainant or his or her adviser may be informed by electronic mail that the reply to the complaint has been sent through the hierarchical channels.

    REQUESTS FOR ASSISTANCE

The Complaints Unit is also responsible for examining requests for assistance under Article 24(10) of the Staff Regulations. The rules for making such requests are the same as for requests under Article 90 or complaints.

For the special case of psychological harassment, in addition to the formal procedures already in place, the Commission has introduced informal procedures to prevent any deterioration in the working environment and seek to achieve amicable solutions to conflict situations as soon as they arise (see the communication on European Commission policy on psychological harassment at work(11) and Administrative Notice No 23-2004 of 6 April 2004).

COMPLIANCE WITH REGULATION (EC) No 45/2001 ON THE PROTECTION OF PERSONAL DATA(12)

In accordance with Articles 11 and 12 (“INFORMATION TO BE GIVEN TO THE DATA SUBJECT”) of Regulation (EC) No 45/2001, the Complaints Unit provides the data subject with information on treatment of the data, and in particular the identity of the controller. Under Articles 13 to 19 (“RIGHTS OF THE DATA SUBJECT”), the data subject may obtain access to data relating to him or her on request to the controller.

________________________
Footnotes

(1) This information replaces the information published in Administrative Notice No 83-2001 of 20 September 2001.

(2)  Where the rules governing their conditions of employment so provide, local staff may make requests to the appropriate authority in the same way as officials. However, disputes between local staff and an institution cannot be brought before the Court of First Instance or the Court of Justice of the European Communities: they must be referred to the competent court in accordance with the laws in the place where the servant performs his duties. (Article 122 of the Conditions of employment).

(3) Or, for staff working under the Conditions of employment of other servants, the authority empowered to conclude contracts of employment.

(4) Article 3(4) of Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ L 124, 8.6.1971, p. 1).

(5)  In the case of temporary, auxiliary and contract staff and special advisers, Articles 46, 73, 117 and 124 of the Conditions of employment of other servants.

(6) Decisions taken by a selection board for a competition and decisions relating to the Career Development Review (CDR) may be challenged directly before the Court of First Instance.

(7) Where the rules governing their conditions of employment so provide, local staff may make requests to the appropriate authority in the same way as officials. However, disputes between local staff and an institution cannot be brought before the Court of First Instance or the Court of Justice of the European Communities: they must be referred to the competent court in accordance with the laws in the place where the servant performs his duties. (Article 122 of the Conditions of employment)

(8) See footnote 3.

(9)  See footnote 4.

(10) The Commission's obligation to assist its staff.

(11)  Written procedure E/1820/2003 – C(2003) 3644 – adopted on 22 October 2003.

(12)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).

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   Author: ADMIN B2