The background to the complaint

1.  The complainant is an EU official covered by the joint sickness insurance scheme (JSIS) operated by the European Commission.

2.  Following the diagnosis of a dental and gum condition, on 16 November 2012, the complainant requested from the Commission's Paymaster's Office (PMO) prior authorisation for an orthodontic treatment.

3.  On 22 July 2013, the PMO refused the complainant's request stating that an orthodontic treatment was not reimbursed for adults unless it was in addition to maxillofacial surgery. 

4.  On 4 October 2013, the complainant submitted a complaint under Article 90(2) of the Staff Regulations against the PMO. In his complaint, the complainant argued that the implementing provisions were discriminatory on the grounds of age, and that this type of treatment should be reimbursed on the basis of need and efficacy of the treatment.

5.  In its decision of 28 January 2014, the Commission rejected the complainant's Article 90(2) complaint. It argued that the situation of a minor is not comparable to the situation of an adult from the point of view of teeth development and, therefore, there was no age discrimination.

6.  On 16 March 2014, the complainant lodged this complaint with the European Ombudsman.

The inquiry

7.  The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

1) In dealing with the complainant's request, the Commission applied the relevant rules mechanically rather than seeking to achieve a result that is reasonable and fair in the circumstances.

2) The Commission should reimburse the costs of the orthodontic treatment under the same conditions as it would reimburse treatment to a minor, i.e., up to the established ceiling, or explain why not doing so is in accordance with the principle of sound financial management.

8.  In the course of the inquiry, the Ombudsman received the opinion of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Allegation that in dealing with the complainant's request, the Commission applied the relevant rules mechanically rather than seeking to achieve a result that is reasonable and fair in the circumstances, and the related claim.

Arguments presented to the Ombudsman

9.  The complainant argued that the relevant rule[1] which provides that costs of orthodontic treatments in adults are reimbursed only in cases of serious illness and need of surgery was discriminatory on the grounds of age. This provision unreasonably excluded the treatment of illnesses that could appear in adulthood, and could still be effectively cured with the appropriate orthodontic treatment. He considered, therefore, that such treatment should be reimbursed on the grounds of need and not on the grounds of the age of the patient.

10. The complainant argued that the PMO had not contested the fact that his illness could require surgery. If in the PMO's view both the orthodontic treatment and the surgery were equivalent cures to his problem, the Commission's decision not to reimburse the first treatment was unreasonable, particularly so since reimbursing the orthodontic treatment alone would be less costly for the Commission than reimbursing surgery with in addition to orthodontic treatment.

11. In its opinion, the Commission argued that, in accordance with the guidelines on orthodontic treatments applied globally,[2] these treatments should start before a patient is 18 years old. In minors, orthodontic treatment serve the purpose of accompanying, directing or correcting the dental development, and are thus functional. When an adult presents with a severe illness that must be treated with surgery accompanied by orthodontic treatment, such treatment is, under those circumstances, also recommended.

12. However, according to the Commission a careful analysis of the complainant's file by the dental officer had showed that the complainant did not suffer from a sufficiently severe disorder to require surgery and eventually an orthodontic treatment.

13. In his observations, the complainant reiterated that the fact that an adult must prove a serious illness for the orthodontic treatment to be reimbursed constituted discrimination on the grounds of age.

14. The complainant stated that his orthodontist did not consider that he needed surgery. However, he argued that making the reimbursement of the costs of orthodontic treatment on the need for surgery was not in accordance with the principle of sound financial management, as this procedure would be more costly than orthodontic treatment alone.

The Ombudsman's assessment

15. The Court of Justice has consistently held that a difference in treatment on the grounds of age constitutes discrimination unless that difference in treatment is objectively and reasonably justified by a legitimate aim.

16. According to the General Implementing Provisions for the reimbursement of medical expenses, the aim of setting ceilings and conditions for reimbursing certain benefits is "protecting the financial equilibrium of the Joint Sickness Insurance Scheme and respecting the principle of social security cover forming the basis for Article 72 of the Staff Regulations."[3]

17. In addition, the setting of an age limitation as regards the reimbursement of orthodontic treatment is justified by the fact that this type of treatment is considered to be most efficient while the buccal and maxillofacial area of a person is still developing.

18. The Ombudsman notes, therefore, that the underlying reasons for the relevant provisions are not limited to the need to limit costs, but also focus on the functionality of applied orthodontic treatments, as ascertained by the scientific research published on the matter. Since it is not the Ombudsman's role to analyse whether such scientific findings are indeed correct, the Commission's justification for setting an age limitation on the reimbursement of orthodontic treatment, which is based on this research, appears reasonable. 

19. As regards the complainant's argument that in his case the orthodontic treatment would have cost less than if he had also undergone surgery, the Ombudsman notes that the Commission's dental officer had already concluded that the complainant's illness was not sufficiently serious to require such surgery. The complainant conceded that his orthodontist agreed with this assessment.

20. In these circumstances, there is no need for the Ombudsman to address the issue as to whether the Commission complied with the principle of sound financial management in the hypothetical case of a patient with a severe dental illness, facing a choice between two equivalent treatments, out of which only the most expensive is reimbursed by the Commission.

21. In view of the foregoing, the Ombudsman considers that the Commission correctly applied the General Implementing Provision as regards the reimbursement of orthodontic treatment, taking due consideration of the particular circumstances of the case.

Conclusions

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

No maladministration has been committed by the Commission.

The complainant and the Commission will be informed of this decision.

Emily O'Reilly