Europeiska ombudsmannen

Summary of decision on own-initiative inquiry OI/4/2009/PB concerning the European Commission

This inquiry concerned officials' right to be heard when the Commission decides to recover 'undue payments'. The right to be heard is laid down in Article 41 of the European Charter of Fundamental Rights.

During his handling of a complaint, the Ombudsman became aware of possible shortcomings in the Commission's practices when implementing recovery measures under Article 85 of the Staff Regulations. This Article provides as follows:

"Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.

The request for recovery must be made no later than five years from the date on which the sum was paid. Where the Appointing Authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed."

In a draft recommendation, the Ombudsman asked the Commission to ensure that it respects the fundamental right to be heard in relation to recovery orders that it issues to its officials.

The Commission replied that it fully agreed with the Ombudsman's finding that the right to be heard must be respected in this context. It referred to measures it was taking in order to respect this right.

In his decision, the Ombudsman welcomed the Commission's clear commitment to respect its officials' fundamental right to be heard. He noted that the procedural changes implemented by the Commission contained a slight compromise. He concluded, however, that the compromise was acceptable in light of the specific context and relevant procedural safeguards.