Provedor de Justiça Europeu
A queixa foi classificada confidencial. O presente documento foi, por conseguinte, tornado anónimo.
Documentos conexos
1. The complaint, which is directed against the European Commission, concerns the right of the complainant, who started working for an EU agency in June 2007, to receive a double dependent child allowance for his severely disabled child. After having formally applied for a double dependent child allowance on 25 March 2009, providing the required supporting documents (a medical certificate confirming that the child is 100% handicapped and that the child has suffered from the condition since birth), the European Commission's Office for Administration and Payment of Individual Entitlements (the 'PMO')[1] decided, on 22 April 2009, to grant the complainant a double dependant child allowance as from 1 March 2009.
2. In his complaint to the Ombudsman, the complainant alleged that the PMO was wrong to deny him a double dependant child allowance for his severely disabled child from the date on which he took up his duties.
3. The complainant claimed that the PMO should grant him the double dependant child allowance for his severely disabled child from the date on which he took up his duties.
4. The Ombudsman opened the inquiry on 30 May 2011 and asked the Commission to submit an opinion on the complaint by 30 September 2011. The opinion was forwarded to the complainant, who submitted his observations on 11 and 18 October 2011.
5. In his complaint to the Ombudsman, the complainant stated that, at the time of taking up his duties with the EU agency, he provided documents proving that his child suffers from a severe, congenital disability for which there is no cure. The complainant argued that due to a misunderstanding between the EU agency and the Commission's PMO Office, a considerable amount of time elapsed before he was informed of the possibility to apply for a double dependent child allowance on the basis of Article 67(3) of the Staff Regulations[2] and Article 2(5) of Annex VII to the Staff Regulations[3].
6. The complainant argued that the PMO was wrong to deny him the double dependant child allowance retroactively because:
(a) he was not fully informed of his right when he first took up his duties at the EU agency, and he could not, therefore, be held accountable for the late application;
(b) his child has a congenital disability;
(c) other staff entitlements are granted with retroactive effect; and
(d) the PMO has not provided any legal basis for refusing to grant the allowance with retroactive effect.
7. In his letter to the Commission opening an inquiry into the present complaint, the Ombudsman recognised that it is incumbent on EU civil servants to know the provisions of the Staff Regulations. The Ombudsman noted that it is also consistent with the Staff Regulations to give staff family allowances only upon application. However, while the Staff Regulations imply that an allowance is only granted upon application, the Ombudsman is not convinced that the Staff Regulations set out that the right to family allowances must take effect as of the date of application. The Ombudsman noted that there are certain family allowances that are backdated, such as the normal dependant child allowance. The latter is backdated to the date of birth of the child.
8. The Ombudsman acknowledged that, among the family allowances provided for under the Staff Regulations, there is a right to the double dependant child allowance for a child suffering from a mental or physical handicap which causes the staff member to incur heavy expenditure (Article 67(3) of the Staff Regulations and Article 2(5) of Annex VII to the Staff Regulations). The Ombudsman further noted that, according to Conclusion 177/87 of 3 December 1987 (revised by the heads of administration of the institutions on 10 December 2007), if the child's physical and/or mental handicap is greater than or equal to 50%, the dependant child allowance provided for in Article 2 of Annex VII to the Staff Regulations will be doubled automatically, without the staff member having to prove that any heavy expenditure was incurred.
9. The Ombudsman found that it is possible, in some cases, to establish a precise date from which the child has suffered from a particular handicap. This could be, for instance, the date of an accident or, where the child has a congenital handicap, as per the present case, since birth. As of that date, the parent/official will be seen as having incurred heavy expenditure if the handicap is greater than or equal to 50%. The Ombudsman was, therefore, not convinced that it was a fair or consistent practice to base the right to double dependant child allowance on the date of application, which can be delayed by a number of factors.
10. The Ombudsman found that, if the right to the double dependant child allowance is based on the date on which the application is made, it would be almost impossible for parents with a handicapped child to obtain this right as of the date they enter into service. This is because they would have to submit the correct form, with all the correct supporting documents, on that very same day.
11. On the basis of the above, the Ombudsman asked the Commission to:
(i) comment on the fact that the institutions appear to grant certain allowances set out in Article 67 of the Staff Regulations as from the date when the event or circumstances giving rise to the allowance occurred (for example, a standard dependent child allowance is backdated to the date on which the child was born);
(ii) comment on the fact that the medical certificate provided by the complainant when requesting double dependant child allowance certifies that his child has suffered from a full disability since birth;
(iii) state whether, in light of the medical certificate, the Commission considers that there is sufficient proof that the complainant's child was suffering from a severe handicap on the date the complainant entered into service with the EU agency; and
(iv) explain whether, and, if the response is affirmative, why, the Commission considers that it would constitute an error in law to grant the double dependant child allowance as of the date when the complainant entered into service.
12. In his communication with the Commission, the Ombudsman placed particular emphasis on Article 26 of the Charter of Fundamental Rights of the European Union. Article 26 stipulates that "[t]he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community." It is the Ombudsman's understanding that this is the precise purpose of the double dependant child allowance. The Ombudsman therefore invited the Commission and the PMO to consider, in light of Article 26 of the Charter, whether a more favourable decision would be possible, given all the circumstances of the case.
13. In its opinion on the complaint, the Commission noted that, according to the Staff Regulations, family allowances for children over the age of 18 are only payable to an EU official if the child is receiving educational or vocational training. Entitlement to family allowances for a child normally ends when the child reaches the age of 26. However, an exception to these general rules is provided for children prevented from studying or earning a livelihood due to serious illness or invalidity. The payment of the dependent child allowance can then be extended throughout the period of that illness or invalidity, irrespective of age, even if the child is not receiving educational or vocational training. According to the Commission, the general condition of the child being financially dependent on the EU official continues to apply. The extension is therefore subject to periodic checks, of both (a) the health of the child and of (b) the continued maintenance of the child by the official and/or the absence of sufficient income for the child.
14. The Commission recognised that the Staff Regulations provide for the possibility of granting extra financial compensation for children suffering from a mental or physical disability where the official incurs heavy expenditure. This extra financial compensation is granted through the doubling of the dependant child allowance. The double dependant child allowance can be granted as long as the child is entitled to the "normal" dependant child allowance, and, where appropriate under Article 2(5) of Annex VII of the Staff Regulations, it may be granted when the child is over the age of 26. The Commission argued, however, that this is not an automatic entitlement. According to Article 67(3) of the Staff Regulations it is granted "by special reasoned decision based on medical documents establishing that the child is suffering from a mental or physical handicap which involves the official in heavy expenditure".
15. According to the Commission, the conditions for applying Article 67(3) of the Staff Regulations are laid down in Conclusion 177/87. Until the modification of the Conclusion in December 2007, the application of this Conclusion required a check of the costs with which the official was faced, as well as a confirmation of the income of both the official and the child. This implied that even if the child had a severe disability, some officials did not qualify for the doubling of the dependant child allowance if the financial conditions were not fulfilled. In such a context, the practice of only granting the double dependant child allowance as of the date of the request was fully justified.
16. The Commission acknowledged, however, that, as of its modification in December 2007, Conclusion 177/87 provides for the automatic granting of the double dependant child allowance, regardless of the financial situation of the official and/or the child, if the disability is greater than or equal to 50%.
17. The Commission further explained that it is indeed the PMO which formally grants the double dependant child allowance. However, its decision is based on the Medical Service's prior opinion concerning the degree of disability. The Medical Service also determines the date as of which the double dependant child allowance can be granted. According to the Commission, the relevant date in the complainant's case is the date when the request for the double dependant child allowance was made. The Commission acknowledged, however, that this practice may seem less justified in the context of the automatic granting of the double allowance as regards a certain degree of disability in cases where such a disability is congenital and there is no doubt that it existed before the allowance request was made by the official. The Commission therefore recognised that there would be grounds to change this practice in light of the modification of Conclusion 177/87 in December 2007.
18. The Commission concluded that, in view of the adaptation of the rules laid down in Conclusion 177/87, its services should have paid the complainant the double dependant child allowance retroactively. The Commission assured the Ombudsman that it would take the necessary steps to pay the allowance as of December 2007 and to re-examine the complainant's file as regards the period prior to December 2007.
19. In his observations on the Commission's opinion, the complainant thanked the Ombudsman for his efforts, which he believes produced a very satisfying result and asked him to close the case.
20. On the basis of the above, the Ombudsman finds that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. He therefore closes the case.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
The Commission has taken steps to settle the matter and has thereby satisfied the complainant.
The complainant, the Commission and the EU agency concerned will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 13 December 2011
[1] The Office for Administration and Payment of Individual Entitlements (the 'PMO') administers, calculates and pays the financial entitlements of the staff of the European Commission and certain other EU institutions and bodies.
[2] "The dependent child allowance may be doubled by special reasoned decision of the appointing authority based on medical documents establishing that the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure."
[3] "Payment of the allowance in respect of a child prevented by serious illness or invalidity from earning a livelihood shall continue throughout the period of that illness or invalidity, irrespective of age."
