The background to the complaint

1. Article 77 of the Staff Regulations provides that "[a]n official who has completed at least 10 years' service shall be entitled to a retirement pension ... The maximum retirement pension shall be 70% of the final basic salary carried by the last grade in which the official was classified for at least one year ..."

2. Article 64 of the Staff Regulations provides that "[a]n official's remuneration expressed in Euro shall ... be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment ..."

3. According to the relevant case-law of the Union courts, these "weightings do not constitute an additional element of remuneration but are means of calculating the amounts of the various elements making up that remuneration"[1]. They are designed to "ensure that the remuneration of all officials has the same purchasing power, whatever their place of employment."[2]

4. The complainant is a former EU official who, on 31 October 2003, left the European Commission on early retirement. Upon his departure, he informed the Commission that he would establish his principal residence in the UK. After receiving all the supporting evidence attesting his residence in the UK, the Commission applied the corresponding weighting factor to the complainant's pension[3].

5. In 2005, the Commission received an anonymous letter stating that the complainant was still living in Belgium and not in the UK. The complainant had a property in Belgium and his wife, who worked in Brussels, lived there. As a result, the Commission had doubts regarding his principal residence. It, therefore, asked the European Anti-Fraud Office (OLAF) to conduct an investigation into the matter.

6. On 15 December 2005, the Commission's Pensions Sector met the complainant in Brussels. On 22 December 2005, it informed the complainant that, following a routine control of his early retirement allowance, "doubts have arisen as to the justification of the weighting factor relative to [his] principal residence." On the basis of a recommendation made by OLAF, the Commission decided to suspend the complainant's UK weighting factor, as from 1 January 2006, and replace it by "a weighting of 100%" ('the Decision') pending the results of OLAF's investigation. As a result, the complainant's pension was decreased accordingly.

7. On 26 April 2006, after the complainant had provided evidence to OLAF concerning his principal residence in the UK, OLAF informed him that it would advise the Commission to reinstate his UK weighting factor.

8. On 24 May 2006, the Commission informed the complainant that it had decided to: (i) reinstate the weighting factor applicable to the UK with immediate effect; (ii) issue a manual pay slip in the form of a partial advance of the suspended weighting factor; and (iii) proceed to an automatic regularisation, "which permits a correct calculation including the granted interest." The Commission's letter included an annex entitled "Notice of amendment No 3", which explained that "[t]he weighting factor for U.K. [would] be reinstated to [the complainant's] pension."

9. In the meantime, on 14 March 2006, the complainant lodged a complaint with the Commission under Article 90(2) of the Staff Regulations, in which he took the view that the Decision was unreasoned. The Commission had not conducted its routine control of pensioners, pursuant to which he would have informed it about his principal residence. It had also not given him any opportunity to defend himself. The complainant claimed that the Commission should pay him his full pension entitlement and cover the expenses suffered as a result of the Decision, plus compensation for damages. On 1 June 2006, the complainant submitted a list of the aforementioned damages in relation to his complaint of 14 May 2006.

10. On 27 June 2006, the Commission replied to his complaint ('the Commission's decision of 27 June 2006') stating that, in light of OLAF's investigations and without prejudice to the Appointing Authority's right to control and/or revise its decision[4], it decided to reinstate the complainant's UK weighting factor with immediate effect. Pursuant to this, the Commission repaid part of the suspended amounts straight away and stated that it would, during the forthcoming months, pay the rest of the monies owed plus interest. Consequently, the Commission felt that the complainant's request had been fulfilled and, therefore, closed the case.

11. On 5 December 2006, the complainant lodged the present complaint with the European Ombudsman.

The subject matter of the inquiry

12. The complainant alleged that the Commission acted disproportionately. He argued, in particular, that:

(1) the Commission did not, before it decided to impose sanctions on him, give him any opportunity to respond to it as regards his pension entitlements.

(2) the Commission's decision of 22 December 2005 was not sufficiently reasoned and reached him after it had entered into force;

(3) the Commission failed to comply with its own rules concerning routine controls of the situation of pensioners; and

(4) the Commission's decision of 27 June 2006 ignored the complainant's claim for compensation.

13. The complainant originally claimed that the Commission should pay him compensation of GBP 21 686.40 for the damages and expenses incurred. In his observations, the complainant raised this amount to GBP 41 686.40. He subsequently informed the Ombudsman that he had filed a request for assistance with the European Commission, made under Article 24 of the Staff Regulations[5]. This request, whereby the complainant claimed GBP 40 000 for "moral damage and defamation of character for libel and slander", was refused by the Commission.

14. The Ombudsman thus understood that the complainant wished to receive compensation amounting to GBP 40 000 for moral damages, plus GBP 1 686.40 for the expenses incurred as a result of the Commission's actions. The Ombudsman also understood that the Commission was informed of the above amount of compensation claimed by the complainant.

15. In his observations on the Commission's reply to the Ombudsman's proposal for a friendly solution, the complainant made a new allegation relating to his right of access to the documents contained in his file. Given that this allegation was not part of the subject-matter of the present inquiry, the Ombudsman could not deal with this issue. Nevertheless, the Ombudsman informed the complainant that if he wished to take this matter further, he could consider submitting a new, separate, complaint to the Ombudsman, making sure to comply with the requirements set out in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents[6].

The inquiry

16. On 14 February 2007, the Ombudsman forwarded the complaint to the President of the European Commission. After exchanging correspondence with the Commission relating to delays in the submission of its reply, the Ombudsman received the Commission's opinion in French on 6 November 2007 and its translation into English on 20 November 2007. The Ombudsman forwarded the Commission's opinion to the complainant for his observations, which he submitted on 26 February 2008.

17. After a careful consideration of the opinion and the observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complaint. He, therefore, made a provisional finding of maladministration and, in accordance with Article 3(5) of his Statute, proposed a friendly solution to the Commission.

18. After exchanging correspondence with the Commission concerning delays in the submission of its response, on 17 June 2009, the Ombudsman received the Commission's reply to his proposal for a friendly solution. The reply was forwarded to the complainant for his observations, which he submitted on 27 July 2009.

19. The complainant's previous communications, dated 6 February and 4 June 2009, were taken into consideration by the Ombudsman in the context of the complainant's observations on the Commission's above reply.

20. The Ombudsman was not satisfied with the Commission's reply to his friendly solution proposal. On 14 October 2009, he therefore made a draft recommendation to the Commission, in accordance with Article 3(6) of his Statute.

21. After exchanging correspondence with the Commission concerning delays in the submission of its response, the Ombudsman received a first reply from the Commission on 4 May 2010. Later, after meeting the Commissioner for Inter-Institutional Relations and Administration, the Ombudsman received a second and final reply, dated 21 January 2011. Both replies were forwarded to the complainant for his observations.

22. The complainant submitted his observations on the Commission's above replies on 4 June, 21 and 28 September and 30 November 2010, and 22 February 2011.

The Ombudsman's analysis and conclusions

A. Allegation of disproportionate action and the related claim

Arguments presented to the Ombudsman

23. The complainant alleged that the Commission acted disproportionately when, on 22 December 2005, it decided to suspend his UK weighting factor.

24. He claimed that the Commission should pay him financial compensation amounting to GBP 41 686.40 for the moral damage suffered and expenses incurred.

25. In support of his allegation and claim, the complainant stressed that, subsequent to his retirement from the Commission, his principal residence had always remained in the UK. He pointed out that, as far back as March 2004, he had signed a personal declaration in which he undertook to inform the Commission of any change that occurred to his personal situation, or of any other event which could affect his right to the pension allowance. Since his situation never changed, the complainant never provided the Commission with any further information in this regard, and the latter never asked him for any such information.

26. In addition, the complainant pointed out that the Commission informed OLAF about its doubts concerning his residence as early as September 2005. However, on 15 December 2005, when the complainant met the Commission's Pensions Sector, no mention was made of the Commission's possible doubts in this regard. Despite the fact that the Commission had ample opportunities to make its specific concerns known to the complainant, it never asked him to provide any documentary evidence, nor did it ask him for any written or oral explanations before issuing its Decision.

27. The Commission is obliged to carry out checks on all pensioners to ensure that they fulfil the conditions relating to their pension entitlements. Following the complainant's retirement, no such checks were made by the Commission. The Commission should make such checks every two years. In doing so, it should send forms to each pensioner during the month of his/her birthday that would allow it to confirm his/her residence. The complainant never received such forms.

28. The Decision was thus based solely on doubts and taken without allowing the complainant to first defend himself. Moreover, despite the fact that it was dated 22 December 2005, it only reached the complainant on 17 January 2006, that is, after the suspension contained therein was already in force (which started on 1 January 2006).

29. Finally, the Commission's decision of 27 June 2006 on his complaint of 14 May 2006 completely ignored his claim for compensation.

30. The Commission's actions caused the complainant unnecessary physical and moral damage, emotional distress and additional financial expenses. The complainant first calculated the moral and physical damage and emotional stress suffered at GBP 20 000. Later, when he learned that the Commission's doubts were based on an anonymous letter, he raised this amount by an additional GBP 20 000. The complainant enclosed medical certificates with his complaint, attesting that he had suffered from stress and agitation due to, among other things, "an unjustified reduction of his income". He claimed a further GBP 1 686.40 for the expenses incurred as a result of the Commission's actions. In this regard, he referred, among other things, to trips he had to make between the UK and Brussels. The overall amount claimed from the Commission was, therefore, equivalent to GBP 41 686.40.

31. In its opinion, the Commission took the view that the complaint was unfounded and that the complainant's claim for financial compensation could not, therefore, be sustained.

32. The Commission also stated that the suspension, provided for in its Decision, was only a precautionary measure. On the basis of a recommendation by OLAF, it was applied to the weighting factor alone, that is, to part of the monthly amount paid to the complainant.

33. Thus, considering the suspension as a "sanction", as the complainant did, was totally misplaced. The case-law of the Union courts confirmed that payment of the weighting factor represented a sizeable benefit, which required the person concerned to provide all the information to justify granting the benefit, failing which it could not be paid. The burden of proof regarding his/her residence was incumbent on the official. The competent institution must assess the proof furnished and conduct checks where appropriate, in order to see whether the conditions for granting this benefit are met[7]. The Commission felt that these checks could not, under any circumstances, be classified as 'sanctions', since such a word implied the use of a disciplinary measure, which never occurred in the complainant's case.

34. Routine file checks are worthwhile. However, there is no official obligation on the Commission regarding the practical arrangements for this control. On the contrary, in accordance with the Staff Regulations, former officials must furnish written proof as required and inform the Commission of any facts likely to affect their entitlement[8].

35. As regards officials under the early retirement scheme, checks are carried out at the time of retirement and, as in the case of the complainant, if there are any subsequent doubts. It is clear from the principles outlined by the Court that any doubts about the principal residence can, as in the case at hand, legitimately lead to the suspension of the benefits based on the declared residence.

36. When verifying a former official's principal residence, the Commission can and should, if it has serious doubts, suspend payment of the weighting factor. The fact that these doubts were subsequently allayed in no way undermined the Decision, which was taken solely on the basis of the facts known at the time[9].

37. The meeting of 15 December 2005 was held at the complainant's request. The purpose of that meeting was not related to the suspension and, in any case, the Decision had not been taken at that time.

38. The Decision was sufficiently reasoned and complied with the Commission's Code of Good Conduct, bearing in mind the specific context of the investigation conducted by OLAF. Moreover, in light of the fact that it provided for a suspension on a precautionary basis, the Decision had to take effect as soon as possible. In reply to the complainant's statement concerning the date he received the Decision, the Commission took the view that it could not be held responsible for delays in the postal service.

39. The Commission's current practice is to give a person whose weighting factor has been suspended due to a suspected case of fraud an opportunity to respond to the doubts about his/her principal residence. The Commission regretted that the complainant was not given this opportunity. Nevertheless, as a result of the experience gained, it emphasised that this oversight would not be repeated in the future[10].

40. On 1 June 2006, when the complainant submitted his list of damages, he was already aware that the Commission had corrected his situation. Moreover, the alleged damages submitted by the complainant on that date were neither quantified nor backed up by any evidence, such as "medical bills or other supporting documents demonstrating actual damage" and were, therefore, inadmissible. The Commission also regretted that its decision of 27 June 2006 did not include any reference to the explanations regarding the inadmissibility of the complainant's claim for damages.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

41. At the outset, the Ombudsman noted that Article 43 of Annex VIII of the Staff Regulations referred to the obligation on pensioners to provide information on "any facts liable to affect their entitlement" (emphasis added). Although it is for the Union courts to interpret the scope of the above provision, it appeared clear in the present case that, after the amount of the complainant's pension had been established on the basis of his principal residence in the UK, there were no more "facts liable to affect [his] entitlement". This was because the complainant had not changed his place of residence since retiring. In this regard, the Ombudsman pointed out that the case-law referred to by the Commission concerned a former official who declared to have fixed his residence first in one Member State and then in another[11]. Moreover, in the said case, the Commission expressly requested the pensioner in question to provide it with appropriate evidence to justify his entitlement[12]. Neither of these circumstances occurred in the complainant's case.

42. In the present case, the Commission did not request the complainant to provide it with any evidence that he had remained in the UK. This was despite the fact that, as correctly argued by the complainant, it had many occasions to do so. Moreover, the Commission did not comment on the complainant's submission that it should send forms to pensioners every two years, in order to verify that they fulfil the conditions relating to their pension entitlements, but did not do so in his case.

43. In light of the above, the Ombudsman did not see why the complainant should have taken the initiative to inform the Commission that nothing had changed regarding his situation. His residence had always remained in the UK.

44. The Ombudsman understood that the Commission may have felt doubts concerning the complainant's principal residence. The question remained, however, whether these doubts could have justified a suspension such as in the present case.

45. The Ombudsman was not, and, as a matter of principle, is not, convinced that the suspension of part of a pension which, by definition, provides the necessary means of livelihood for persons who have worked for the Communities for many years, may be justified solely on the basis of doubts raised by an anonymous letter, and without any additional evidence that could support the allegations made in such a letter. Prior to this incident, the Commission knew that the complainant's spouse lived and worked in Brussels. It was, therefore, not unusual for the complainant to be occasionally found in that city. His mere being there could not necessarily cast doubt on whether his residence remained in the UK or not[13].

46. Consequently, a suspension made in circumstances such as those mentioned above, although intended to ensure that Community funds were properly spent, cannot not be perceived as proportional. The Ombudsman was therefore not at all surprised that such a suspension was perceived by the complainant as a true "sanction" rather than a "precautionary measure".

47. Before introducing any such suspension, the person concerned should be confronted with the anonymous accusations. Doing otherwise would undermine that person's rights of defence. These rights derive from the right to a fair hearing, guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Under Article 6 of the Treaty of the European Union, they also constitute fundamental rights and form part of the general principles of law on which the Union is founded.

48. Moreover, apart from being courteous, it is only reasonable to first ask the person concerned about his or her situation and only afterwards to rely on information provided by third parties. The Commission's interpretation of the relevant case-law does not relieve it from the obligation to request explanations, should doubts arise regarding the situation of a given pensioner. In this regard, the Ombudsman noted that OLAF confirmed this obligation when it recommended that the Commission ask the complainant to submit more regularly evidence pertaining to his residence.

49. The Ombudsman further noted that the suspension followed a recommendation made by OLAF. In this regard, he pointed out that the complainant presented all the necessary evidence to OLAF following its request. If the Commission had asked him for such evidence before forwarding his file to OLAF, the complainant would have been equally able to provide such evidence to it. Had this occurred, the entirely unnecessary suspension would never have taken place. In addition, the complainant, who is a pensioner, would not have incurred unnecessary travel expenses to Brussels and/or suffered stress and discomfort, which resulted in the deterioration of his health. In this regard, the Ombudsman pointed to the medical certificates submitted by the complainant, as well as his complaint and observations. These were attached to the proposal for a friendly solution.

50. The Ombudsman noted the Commission's expressions of regret for not having heard the complainant. He also welcomed the Commission's commitment to ensure that persons affected by the possibility of having their weighting factor suspended be given an opportunity to provide explanations. However, in the present case, the Commission did not comply with its own practice and did not give the complainant any such opportunity.

51. In light of the above observations, the Ombudsman took the provisional view that the suspension applied by the Commission on the basis of an anonymous letter, without any support or additional evidence, represented a disproportionate measure which could constitute an instance of maladministration[14]. He therefore proposed the following friendly solution to the Commission:

"Taking into account the Ombudsman's above findings, the Commission could offer to the complainant (i) its apologies; and (ii) EUR 5 000 as compensation, which, in the Ombudsman's view, represents a fair and reasonable amount for the moral damages and expenses resulting from the Commission's actions."

The arguments presented to the Ombudsman after his friendly solution proposal

52. The Commission apologised to the complainant for not giving him the opportunity to present the necessary evidence before suspending the weighting factor.

53. However, it disagreed that it should pay him compensation because: (i) it had already fully compensated the complainant's expenses "in relation to the proceedings" through late payment interest; and (ii) it did not give any publicity to the complainant's case. Consequently, the complainant was not in a situation comparable to those officials or former officials who were, in accordance with the Union courts' case-law, entitled to certain sums as compensation for moral damages[15]. Nevertheless, it offered to the complainant a symbolic compensation of EUR 1.

54. In his observations, the complainant took the view that the Commission was wrong to state that it had duly compensated him. The Commission only paid the interest for deferred payment relating to the UK weighting of his pension. It did not compensate him for the expenses he incurred as a result of the suspension in question, such as his travel costs between the UK and Belgium.

55. Similarly, it was also incorrect to state that no publicity was given to the complainant's case. Based on the slanderous anonymous letter, OLAF communicated the complainant's name and personal details to the police services in Belgium. They then questioned persons living adjacent to his property in Belgium, his postman and other third parties, casting doubt on his excellent reputation, good character and honesty. The Commission's actions were, therefore, not at all confidential. Furthermore, the complainant endured suffering which was different from that referred to in the case-law mentioned by the Commission.

56. In addition, the complainant noted that the Commission again failed to comment on his arguments concerning the routine checks on pensioners, which it is obliged to carry out every two years.

57. Finally, he informed the Ombudsman that he had asked the Commission for access to the anonymous letter, the identity of its author, and the letter from the Director of its Pensions Sector to that person. The Commission refused to grant him access to these documents, thus preventing him from taking legal action against the author of the slanderous anonymous letter.

The Ombudsman's assessment leading to a draft recommendation

58. The Ombudsman welcomed the Commission's decision to apologise to the complainant and considered the corresponding first part of his proposal for a friendly solution to have been satisfied.

59. He noted, however, that the Commission was not ready to grant the EUR 5 000 compensation to the complainant, thus refusing to satisfy the second part of his proposal for a friendly solution.

60. In this respect, the Ombudsman made the following observations. First, it was astonishing that the Commission considered that it could possibly compensate the complainant's travel and medical expenses – originating from its decision to suspend the correctly calculated weighting factor of the complainant's retirement pension – with interest for deferred payment of that factor, which it should have never suspended in the first place.

61. 'Interest' is "the return or compensation for the use or retention by one person of a sum of money belonging to, or owed to, another."[16] In the present case, this interest was due by the mere fact that the Commission reinstated the UK weighting factor it had previously suspended concerning the complainant's pension. It did not, in any way, compensate the complainant's travel or medical expenses incurred as a result of the above suspension.

62. Second, the Ombudsman did not agree with the Commission's position that, since it did not publicise the matter, it could not possibly have harmed the complainant's honour or reputation.

63. It is true that the Commission may not have publicised the matter itself. However, the Ombudsman pointed to the complainant's account, contained in his observations on the Commission's reply to the proposal for a friendly solution, concerning the inquiry carried out by OLAF in the neighbourhood of the complainant's property in Belgium.

64. While he considered actions such as questioning persons, notably neighbours or postmen, as reasonably appropriate to efficiently investigate and eventually confirm one's residence, the Ombudsman found that such actions were indeed likely to create doubts in those persons' minds as to the honour and reputation of the individual(s) concerned.

65. The Commission should have been aware that OLAF could indeed carry out such actions in the present case. Therefore, before actually transferring the file to OLAF, it should have balanced its doubts regarding the complainant's residence against the means which OLAF could reasonably use to confirm them. It is again worth emphasising, in this respect, that such doubts were only supported by an anonymous letter and the complainant did not have any opportunity to explain himself before his file was forwarded to OLAF.

66. It followed that, even if the complainant was not in the same situation as the applicants of the case-law referred to by the Commission[17], this did not necessarily mean that he could not have suffered any non-material damage in the given circumstances.

67. In this regard, the Ombudsman noted the general principle established by the Union courts' case-law that any alleged non-material damage must be actual and certain. In the present case, the complainant had already demonstrated such damage by enclosing medical certificates with his complaint attesting that he had suffered from stress and agitation. This was due to, among other things, the "unjustified reduction of his income" caused by the unfounded suspension of the weighting factor of his pension, based on doubts originating from an anonymous letter, and applied before giving him any possibility to offer explanations[18].

68. Relatedly, the complainant suffered harm to his honour and reputation when the persons living nearby his property in Belgium experienced doubts as to his honesty and character in the context of OLAF's inquiry.

69. In conclusion, the Commission: (i) relied exclusively on an anonymous letter to justify its doubts about the complainant's residence; (ii) contrary to its own practice, did not allow the complainant any possibility to defend himself; (iii) despite the foregoing circumstances, still transmitted the complainant's file to OLAF; and (iv) as a result, unnecessarily suspended his UK weighting factor and, even if indirectly, (v) created misunderstandings concerning his character among those living and working adjacent to his Belgian property.

70. As a result of the above, the Commission's actions entailed maladministration, which damaged the complainant's honour and professional reputation. It also caused expenses which he would not normally have had, if it were not for the Commission's actions. Thus, the complainant's claim for compensation was fully justified[19] and the Ombudsman made the following draft recommendation to the Commission:

"The Commission should offer to the complainant EUR 5 000 compensation, which, in the Ombudsman's view, represents a fair and reasonable amount for the moral damages and expenses the complainant incurred as a result of the institution's actions."

The arguments presented to the Ombudsman after his draft recommendation

71. In its first reply to the above draft recommendation, the Commission reiterated that it was ready to present its apologies to the complainant, and offered him a "token amount" of EUR 500. In its subsequent letter, the Commission informed the Ombudsman that it could offer the complainant EUR 1 000, which it believed to be a fair and appropriate compensation, instead of the EUR 5 000 proposed in the draft recommendation, which was "disproportionate as neither the honour nor the professional reputation of the complainant were impaired." In addition, the Commission stated that the Commissioner for Inter-Institutional Relations and Administration himself was ready to address a letter of apology to the complainant regarding the errors made in the procedure. Finally, the Commission trusted that the complainant understood the necessity of carrying out controls in cases where the financial interests of the European Union are at stake.

72. The complainant accepted the proposal contained in the Commission's above second reply. However, he disagreed that his honour and professional reputation had not been impaired. He further pointed out that, in 2010, the Commission did not make any checks on his residential status, and noted the Commission's delays in replying to his complaint and the Ombudsman's friendly solution proposal and draft recommendation. Finally, he thanked the Ombudsman for resolving the complaint and asked him to forward his decision on the complaint giving rise to the present decision to the Committee on Petitions of the European Parliament (PETI).

The Ombudsman's assessment after his draft recommendation

73. At the outset, the Ombudsman notes that the Commission did not advance any arguments that could put into question his conclusions reached in paragraphs 62 to 70 of the present decision. The fact that the complainant has suffered damage to his honour and reputation is therefore clear.

74. Notwithstanding this fact, the Ombudsman warmly welcomes the Commission's and, in particular, the competent Commissioner's, willingness to bring the complaint to a satisfactory end. Acknowledging mistakes and offering apologies where appropriate brings the EU civil service back into line with the culture of service citizens expect it to be guided by. An apology is a very powerful tool with which to restore confidence in a responsible administration and to satisfy a harmed citizen. The Ombudsman appreciates that the Commissioner for Inter-Institutional Relations and Administration decided to present the Commission's apologies to the complainant.

75. Similarly, the Ombudsman appreciates the complainant's good will in accepting the Commission's proposal. Accordingly, he closes the case. As requested, the present decision will be forwarded to PETI for information.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

The Ombudsman warmly welcomes the Commission's and, in particular, the competent Commissioner's willingness to bring the complaint to a satisfactory end. Acknowledging mistakes and offering apologies where appropriate brings the EU civil service back into line with the culture of service citizens expect it to be guided by. An apology is a very powerful tool with which to restore confidence in a responsible administration and to satisfy a harmed citizen. The Ombudsman appreciates that the Commissioner for Inter-Institutional Relations and Administration decided to present the Commission's apologies to the complainant.

Similarly, the Ombudsman appreciates the complainant's good will in accepting the Commission's proposal, and closes the case accordingly.

The complainant, the President of the Commission and the Chair of PETI will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 5 April 2011

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[1] See Case 114/77 Claude Jacquemart v Commission of the European Communities [1978] ECR 1697, paragraph 14.

[2] See Case 194/80 Paolo Benassi v Commission of the European Communities [1981] ECR 2815, paragraph 5.

[3] In this regard, the Ombudsman notes that the Staff Regulations, as altered by the 2004 reform, provide in Article 82 that "... [n]o correction coefficient shall be applicable to pensions."

[4] On the basis of Article 41 of Annex VIII of the Staff Regulations, according to which: "The amount of pension may at any time be calculated afresh if there has been error or omission of any kind. Pensions shall be liable to modification or withdrawal if the award was contrary to the provisions of the Staff Regulations or of this Annex."

[5] "The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reasons of his position or duties. They shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause the damage and has been unable to obtain compensation from the person who did cause it."

[6] OJ 2001 L 145, p. 43. According to Article 2 'Beneficiaries and scope' of Regulation No 1049/2001, Paragraph 1: "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation." According to Article 7 'Processing of initial applications' of the Regulation, "2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position..." Article 8 'Processing of confirmatory applications' explains further that "1... In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely ... making a complaint to the Ombudsman..."

[7] The Commission referred in this regard to Joined Cases T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767, paragraphs 75 and 80, according to which (in the original French): "... la charge de la preuve, quant à la résidence, incombe au fonctionnaire. En outre, l'institution compétente, en appréciant les preuves apportées à cet égard et en procédant, le cas échéant, à des contrôles, doit éviter les abus de ladite disposition ... [C]omme il ressort de plusieurs dispositions du statut, le fonctionnaire doit souvent divulguer des informations sur sa vie privée afin d'obtenir le bénéfice d'un droit déterminé."

[8] Article 43 of Annex VIII of the Staff Regulations provides that "[a] former official ... shall furnish such written proof as may be required and inform the institution ... of any facts liable to affect their entitlement."

[9] The Ombudsman notes, in this regard, the Commission's references to Case F-23/05 Giraudy v Commission of the European Communities, not yet published in the ECR, paragraph 145, according to which: "... the legality of a particular measure is to be assessed in relation to the elements of fact and law existing at the date when the measure was adopted (Joined Cases T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767, paragraph 77). Accordingly, information which was revealed by the investigation after adoption of the reassignment decision and which exonerated the applicant cannot affect the legality of that decision, given that the very purpose of the investigation and of the measures taken to ensure its proper and serene conduct was to determine whether the initial suspicions were warranted."

[10] As stated in the English version of the Commission's opinion. In the original, French, version of the opinion, the equivalent sentence is presented as "... la Commission est néanmoins confiante qu'une telle omission devrait être évitée à l'avenir."

[11] According to paragraph 6 of Joined Cases T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767 (in the original French): "... le requérant avait informé la Commission qu'il avait fixé sa résidence en France, tout en mentionnant son intention de s'installer au Royaume-Uni ..."

[12] See paragraph 11 of Joined Cases T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767 (in the original French): "... La lettre du chef de l'unité «Pensions et relations avec les anciens» de la direction «Droits et obligations; dialogue social et politique sociale» de la direction générale «Personnel et administration» accompagnant l'avis précise qu'une facture de téléphone mobile ainsi qu'un certificat permettant la délivrance d'un nouveau passeport ne sauraient justifier l'octroi du coefficient correcteur pour le Royaume-Uni et ajoute que le coefficient correcteur pour la France sera appliqué sur la pension, en attendant que le requérant fournisse une facture de gaz, de téléphone ou d'électricité récente et une copie du contrat de bail."

[13] See paragraph 71 of Joined Cases T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767 (in the original French): "[l]a notion de résidence vise, selon une jurisprudence constante, le lieu où l'intéressé a fixé, avec la volonté de lui conférer un caractère stable, le centre permanent ou habituel de ses intérêts. En outre, la notion de résidence implique, indépendamment de la donnée purement quantitative du temps passé par la personne sur le territoire de l'un ou de l'autre pays, outre le fait physique de demeurer en un certain lieu, l'intention de conférer à ce fait la continuité résultant d'une habitude de vie et de déroulement de rapports sociaux normaux ..."

[14] Article 6 of the European Code of Good Administrative Behaviour provides that: "1. When taking decisions, the official shall ensure that measures taken are proportional to the aim pursued. The official shall in particular avoid restricting the rights of the citizens or imposing charges on them, when those restrictions or charges are not in a reasonable relation with the purpose of the action pursued. 2. When taking decisions, the official shall respect the fair balance between the interests of private persons and the general public interest." Article 16 of the same Code provides that: "1. In cases where the rights or interests of individuals are involved, the official shall ensure that, at every stage in the decision making procedure, the rights of defence are respected. 2. Every member of the public shall have the right, in cases where a decision affecting his rights or interests has to be taken, to submit written comments and, when needed, to present oral observations before the decision is taken."

[15] Cases T-309/03, Manel Camós Grau v Commission of the European Communities [2006] ECR II-1173; and F-23/05 Jean-Louis Giraudy v Commission of the European Communities, judgment of 2 May 2007, not yet published in the ECR.

[16] See Oxford Dictionary of Law, Oxford University Press, sixth edition, page 281.

[17] See footnote 15 above. In (i) Camós Grau, the Court of First Instance upheld that the applicant had suffered damage to his honour and reputation, and experienced difficulties in his living conditions, due to threat of disciplinary and criminal proceedings resulting from recommendations made in an OLAF report mentioned in national press; and (ii) Giraudi, where the Civil Service Tribunal upheld that the applicant had suffered damage to his honour and reputation after an article in the national press reported that the Commission suspected him of misappropriating funds.

[18] See, in the opposite sense, Case T-230/94 Frederick Farrugia v Commission of the European Communities ECR [2006] II-195, paragraph 46: "The claim for compensation for alleged non-material damage must, therefore, be rejected, since the applicant has failed to prove actual and certain damage by showing that, had the Commission not rejected his application for a fellowship on erroneous grounds concerning his nationality, that application fulfilled the prescribed conditions for it to be taken into consideration and accepted ..."

[19] See Case 111/86 Évelyne Delauche v Commission of the European Communities ECR [1987] 5345, paragraph 30: "... the Community can only be held liable for damages if a number of conditions is satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered."