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Decision in case 63/2017/BKB on the application by the European Committee of the Regions of the rules on payment of household allowance to staff members and their spouses

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  • Case: 63/2017/BKB
    Opened on 14 Mar 2017 - Decision on 14 Mar 2017
  • Institution(s) concerned: Committee of the Regions

The complainant is married to a former staff member of the European Committee of the Regions but the couple separated in 2008. The complainant therefore asked the European Committee of the Regions to pay him half of the household allowance for a period between 2008 and 2011 because, according to the complainant, the care of the common children had been shared on 50/50 basis. The European Committee of the Regions refused the complainant’s request, arguing that in order to pay some of the household allowance to the complainant, there needed to be an official agreement on the matter, endorsed by the competent national authority. The complainant argued that the relevant rules in the EU Staff Regulations did not require an official agreement endorsed by a national authority.

The Ombudsman inquired into the issue and found that the European Committee of the Regions had applied the relevant rules correctly. The Ombudsman therefore closed the case with a finding of no maladministration.

The background to the complaint

1. The complainant is the spouse of a former member of staff of the European Committee of the Regions (‘the Committee of the Regions’). The couple, who has two minor children, separated in 2008.  The allocation of the family allowances between them was agreed upon in April 2011 and the agreement was endorsed by the Brussels’s youth court.

2. In January 2016, the complainant asked the Committee of the Regions[1]  to pay him 50% of the household allowance that his wife was entitled to for the period December 2008 to March 2011. The complainant argued that, following the couple’s separation in 2008, the Committee of the Regions should have paid him 50% of the household allowance because the care of the children was alternating on a 50/50 basis. However, the Committee of the Regions had paid the full allowance to his wife.

3. The Committee of the Regions refused the complainant’s request. The complaint turned to the Committee of the Regions again in August 2016, disagreeing with its position. He sent a reminder in October 2016, but received no answer.

4. In December 2016, the complainant turned to the Ombudsman regarding the matter.

The inquiry

5. The European Ombudsman opened an inquiry into the complaint’s concern that the Committee of the Regions failed to apply correctly the rules governing the payments of family allowance and that it failed to reply to his correspondence on the matter.

6. In the course of the inquiry, the Ombudsman’s inquiry team duly considered the information provided in the complaint. In particular, the inquiry team carried out a thorough analysis of the correspondence that had taken place between the Committee of the Regions and the complainant before the complainant turned to the Ombudsman.

Arguments made by the institution and the complainant

7. The Committee of the Regions informed the complainant that for the period December 2008 to March 2011, there seemed to have been no official agreement, endorsed by the competent national authority, about the custody of the children. It was only in April 2011 that the youth court endorsed the agreement reached by the parents. The Committee of the Regions argued that an agreement endorsed by the competent national authority was a precondition for it to pay part of the household allowance directly to the complainant.

8. The Committee of the Regions based its position on the relevant provisions of the Staff Regulations[2], which reads as follows:

“if the official is entitled to the household allowance [...] and a person other than the official has by law or by an order of court or of the competent administrative authority[3] been given custody of all his dependent children [...], the household allowance shall be paid to that other person in the name and on behalf of the official [...].

If, however, the official's children are in the care of several different persons, the household allowance shall be divided among them according to the number of children in their care [...]”.

9. The complainant disagreed with the interpretation of the Staff Regulations made by the Committee of the Regions. He argued that the first paragraph of the relevant provision, which refers to the custody of children having been established by a court or competent administrative authority, is not applicable to his situation, since no “person other than the official” had been given custody. In the complainant’s case, the custody of the children had always been exercised jointly by both parents and had never changed. The complainant argued that there was no need for an official agreement endorsed by a national authority in his case because the modality of the shared care was not affected by the parent’s separation.

10.  The complainant further argued, that the subsequent part of this Article, which reads “If, however, the official's children are in the care of several different persons, the household allowance shall be divided among them according to the number of children in their care”, is applicable to his situation. According to the complainant, this part of the relevant provision does not require the care of the children to have been established by a court or competent administrative authority.

11.  The complainant also argued that the relevant provision in the Staff Regulations should be read together with the General Implementing Provisions concerning family allowances, which he had been provided with by the European Parliament as his wife’s current employer. He argued that the Committee of the Regions had not taken into account these General Implementing Provisions, which read as follows:

“If custody of one and the same children alternates, payment of the household allowance shall be divided in proportion to the lengths of the period of custody”.

The European Ombudsman's assessment

12.  The Committee of the Regions has given the complainant a detailed explanation of why it decided to refuse his request to be paid half of the household allowance for the period December 2008 to March 2011.

13.  The Committee of the Regions correctly applied the relevant rules when concluding that, in order to pay part of the household allowance directly to the complainant, there had to be an agreement on the matter, endorsed by the court or a competent authority.

14.  The relevant EU institution, in this case the Committee of the Regions, must have a substantiated reason for changing its standard paying practice, which is to pay the full household allowance to its staff member (in this case the complainant’s wife). The relevant provision of the Staff Regulations establishes that such a substantiated reason would be an order of a court or of the competent administrative authority (such as the competent authority or court endorsing an agreement between the relevant parties).

15.  The two parts of the relevant provision in the Staff Regulations must be read together, meaning that regardless of whether the custody of a child is given to a person other than the official, or whether the official’s children are in the care of several different persons, the distribution of the household allowance must be done on the basis of an order of a court or of a competent authority. If there is no such order, the relevant EU institution has no substantiated reason to pay the household allowance to someone else than its staff member.

16.  This conclusion is not changed by the General Implementing Provisions referred to by the complainant, which in any case seem to be the General Implementing Provisions of the European Parliament and not of the Committee of the Regions. The provision of the General Implementing Provisions referred to by the complainant is merely a refinement of the relevant provision in the Staff Regulations by taking into account not only the number of persons among which an allowance should be shared, but also the length of the periods of custody of the children. However, this provision does not change the underlying requirement that an order of a court or of a competent authority is needed to substantiate also the length of the periods of custody.  

17.  Finally, in the correspondence to which the complainant argues that he has had no response the complainant merely reiterates his disagreement with the position of the Committee of the Regions on the matter. However, the Committee of the Regions has, on several occasions, provided the complainant with a detailed explanation of its position. This position is, in addition, correct on the substance. It would thus serve no useful purpose to ask the Committee of the Regions to provide additional comments in response to the complainant’s correspondence.

Conclusion

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

There was no maladministration by the European Committee of the Regions.

The complainant and the European Committee of the Regions will be informed of this decision.

Strasbourg, 14/03/2017,

Tina Nilsson

Head of Inquiries - Unit 4

 

 

[1] Former employer of his wife in the period December 2008 - March 2011

[2] Article 1(5) of Annex VII of Staff Regulations

[3] Emphasis added