THE BACKGROUND TO THE COMPLAINT

1. The complainant is a former Contract Agent who worked in the Delegation of the European Commission in city A ('the Delegation') between 1 May 2006 and 1 July 2007, the date of his dismissal from service.

2. During the relevant period, he rented an apartment for USD 3 400 a month, under a leasing agreement ('the Leasing Agreement') drafted on the basis of a template provided by the Commission. According to Article 13 of the Leasing Agreement, the complainant could terminate the lease at any time without penalty, provided he gave three-months' formal notice[1].

3. On 30 March 2007, the complainant requested the Delegation to pay him USD 20 400 corresponding to: (i) an advance of his half-yearly rent for the period between April and September 2007 inclusive; and (ii) USD 4 000 of deposit.

4. The Commission accepted his request. The complainant then transferred to his landlady the amounts paid to him by the Commission.

5. Subsequently, on 31 May 2007, the complainant received from the Directorate-General for Administration and Personnel of the European Commission (DG ADMIN) a note, dated 24 May 2007, informing him that his three-year contract would be cancelled on 1 July 2007, that is, within one month. The Delegation then informed the complainant that he would need to repay it the amounts advanced for the months after the end of his contract, plus the deposit.

7. On 1 June 2007, the complainant wrote two registered letters to the landlady with a view to terminating his lease immediately and recovering the amounts already advanced to her. However, his efforts were not successful. The landlady relied on a provision contained in the Leasing Agreement which stated the complainant could terminate the lease at any time without penalty, provided he gave three months' formal notice.

8. In the meantime, given that the complainant did not pay back to the Commission the amounts advanced for his rent and for the deposit, the latter informed him that, in order to cover the sums relating to his rent and deposit, it would deduct the advance payment from other payments due to him.

9. In August 2007, the complainant lodged a complaint under Article 90(2) of the Staff Regulations concerning "frozen and miss calculations of payments owed to [him] by the European Commission following the decision to terminate [his] contract [on] the 1st July 2007". In this complaint, the complainant argued that the Commission owed him a number of different amounts and that the money he received as an advance for the half-yearly rent and deposit should have no bearing on those payments.

10. DG ADMIN replied that the Leasing Agreement was signed by the complainant and therefore its provisions were binding on him alone, not on the Commission. Thus, the fact that the landlady refused to reimburse the advance of the rent and the deposit did not affect his obligation, under the relevant rules, to reimburse those amounts to the Commission.

11. It therefore retained EUR 10 635.10, corresponding to the amounts advanced to the complainant for his rent after the end of his contract, that is, for July, August and September 2007, plus deposit.

12. At the end of August 2007, the complainant left the rented apartment and returned to his place of origin, that is, country B.

13. In early April 2008, the complainant wrote an e-mail to the Commission in which he argued that, despite his having submitted all the necessary evidence, the Commission had still not paid him the full amount of his travel expenses to country B.

14. On 24 April 2008, he turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

15. The complainant alleged that the Commission's reimbursement claim concerning the rent for his accommodation in July, August and September 2007, as well as the deposit therefore, was unfair.

16. The complainant also alleged that the Commission did not reimburse him the full amount of the expenses he incurred when returning to his place of origin.

17. The complainant claimed that the Commission should pay him

(a) EUR 9932 relating to rent and deposit; and

(b) an amount that could be established at EUR 1 529, corresponding to his return trip to city B.

THE INQUIRY

18. On 16 October 2008, the Ombudsman forwarded the complaint to the President of the European Commission for an opinion.

19. On 3 November 2008, the complainant sent further correspondence clarifying his complaint. The Ombudsman forwarded this correspondence to the President of the European Commission and asked that Commission's opinion take account of the above clarification.

20. On 5 February 2009, the Ombudsman received the Commission's opinion, which he forwarded to the complainant with an invitation to make observations. On 30 March 2009, the complainant submitted his observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation that the Commission's reimbursement claim was unfair and related claim

Arguments presented to the Ombudsman

21. The complainant alleged that the Commission's reimbursement claim concerning the rent for his accommodation in July, August and September 2007, as well as the deposit therefor, was unfair.

22. In support of this allegation, he argued that: (a) the Leasing Agreement was drafted on the basis of a template provided by the Commission and endorsed by the Delegation; (b) when the Commission dismissed him by means of a one-month termination notice, it knew that he needed three months to terminate his Leasing Agreement; and (c) the Commission required him to do something which was not objectively possible (ultra posse nemo obligatur); he had no means of forcing the landlady to reimburse him the amounts advanced and any attempt to seek redress within the local jurisdiction in this regard was unlikely to produce any successful results.

23. The complainant claimed that the Commission should repay him EUR 9 932 relating to rent and deposit, which it had in the meantime deducted from the other payments due to him.

24. In its opinion, the Commission stated that it does not impose on its contract agents any type or model of leasing agreements, nor does it intervene in any such agreements. It was the complainant's choice to use the Commission's template instead of another equally suitable template. It was also for him to sign the contract and the Commission had no responsibility in this regard. In any case, when, on 30 March 2007, the complainant requested the advances, he became aware that he would need to reimburse them after the end of his contract/posting. The fact that the landlady refused to reimburse the amounts advanced, or that the complainant was unable to force her to do so, did not affect his obligation to repay these amounts to the Commission.

The Ombudsman's assessment

25. In accordance with the evidence available to the Ombudsman on 30 March 2007, when the complainant applied for the above reimbursement, he also:

"confirm[ed] that he has taken note of [vade mecum] 182/06 of 20 January 2006 in respect of reimbursement of rent for accommodation [(the 'VM 182/06')]. In the event of termination of his contract/posting or of his lease contract he confirm[ed] to reimburse any advances that have been made for periods after the end of his contract/posting or after the end of this lease contract"[2].

26. In this regard, the Ombudsman notes that the copy of the VM 182/06, provided by the complainant with his complaint and forwarded to the Commission for its opinion, included the following statements:

"3. Reimbursement of rent

... Where rent is paid ... half-yearly ... in advance, the Commission may advance on request of the official the amount for the respective period ... In the event of termination of the posting or of his lease, the official shall reimburse to the Commission any advances and reimbursements received for periods after the end of the posting or after the end of the lease ...

4. Reimbursement and advancement of other expenses

... Deposit costs may be temporarily advanced to the official up to the equivalent of three monthly rents ... In the event of termination of his posting or of his lease contract the official shall reimburse the deposit to the Commission without delay ..."

27. On 5 April 2007, the Delegation's Head of Administration approved the complainant's request for reimbursement of his accommodation rent for the period extending from April to September 2007. In addition, he also informed the complainant that:

"if the Contract Agent's contract ceases before the end of the period of the advance payment, the Contract Agent undertakes to reimburse the part of the advance payment covering the period beyond the validity of the contract"[3].

28. Finally, when the complainant received the amounts corresponding to the deposit, he also declared to:

"have taken note of the internal service provisions in respect of reimbursement of rent for accommodation to contract agents serving in third countries ... In the event of termination of [his] contract at the delegation or of the afore-mentioned lease [the complainant] confirm[ed] to reimburse the advanced amount to the Commission without delay"[4].

29. In light of the above evidence, it is undisputed that the complainant was aware that, in the event of the termination of his Contract Agent contract, or his lease, he would need to repay the amounts advanced to him.

30. However, in order to do so, he needed to recover from his landlady the rent advanced to her, which was in fact covered by the Commission. On the basis of Article 13 of the Leasing Agreement, the landlady could legitimately refuse to pay him the rent so advanced, since the complainant did not comply with the three-month notification notice foreseen therein.

31. The question therefore arises as to whether the landlady's above refusal should have any impact on the Commission's reimbursement claim.

32. The Commission argued that it should not have an impact because the complainant was not obliged to use the Commission's template to conclude the Leasing Agreement containing the above three-month notice period. It also put forward that it cannot be held responsible because it was not a party to that Leasing Agreement.

33. The Ombudsman finds this argument totally unfair.

34. First, it is normal for the Commission's staff working in its delegations abroad, who very often find themselves in completely different legal, social and linguistic environments than those of their countries of origin or the Commission's headquarters, to rely on the Commission's templates (if any) for leasing agreements they have to conclude with local private persons or entities.

35. Second, although the Commission was not a party to the Leasing Agreement in question, it cannot reasonably be argued that it was not at all concerned by its conclusion. On the contrary, pursuant to Article 118 of the Conditions of Employment of Other Servants of the European Communities (CEOS), read in conjunction with Article 23 of Annex X of the Staff Regulations of the European Communities ('the Staff Regulations')[5], renting an apartment in the local market constitutes an alternative option for staff working in the delegations to that of having an apartment provided to them by the Commission. In both cases, however, it is the Commission and not the staff in question which covers the rent costs and it is for that reason that the Commission needs to approve the said costs in advance.

36. The Delegation thus knew, because it had previously approved it, the exact content of the Leasing Agreement, notably Article 13 thereof[6]. It follows that, at the moment when the Commission gave the complainant the one-month termination notice of his contract, thus implying that he would have to leave city A within one month (on 1 July 2007), it was fully aware that the complainant needed three months and not one month to terminate his lease, if he were not to suffer any penalty or having to pay compensation. It was therefore, in substance, aware that he could never recover the rent advanced for those three months[7].

37. On 1 June 2007, that is, immediately after becoming aware of his dismissal, the complainant notified his landlady that he needed to leave city A on 1 July 2007. Despite this fact, it was still impossible for him to recover from her the amounts advanced for July and August 2007, if she relied strictly on the Leasing Agreement. He could thus only expect to recover the rent advanced for September 2007 and the deposit.

38. Therefore, by informing the complainant that he would be dismissed within one month whilst knowing that he would need three months to end the lease of his apartment, the Commission acted unfairly. This was because its action made it objectively impossible for the complainant to recover, in accordance with Article 13 of the Leasing Agreement drafted on the basis of a template provided by the Commission and approved by the Delegation, the rents advanced to the landlady for the months of July and August 2007. The Ombudsman therefore takes the view that this constitutes a prima facie evidence of maladministration.

39. However, the above prima facie instance of maladministration does not appear to have had any implications for the complainant. Indeed, according to him, he "left the apartment at the end of August (3 months after [he] received the letter from [DG ADMIN])." Therefore, after the end of his employment contract, that is, from 1 July 2007 and until the above date, the complainant continued to benefit from the accommodation, which was in fact pre-paid by the Commission.

40. Consequently, the Ombudsman considers that no useful purpose would be served by prolonging the present inquiry as regards the complainants' claim that the Commission should pay him back EUR 9 932 relating to rent and deposit it deducted from the other payments due to him.

41. Nevertheless, the Ombudsman finds it worrying that the Commission's staff in delegations may, as in the present case, be faced with situations where the requirements resulting from their employment status conflict directly with their local leasing obligations known to and, most importantly, endorsed by, the Commission. In the Ombudsman's view, the Commission could recommend to its delegations that they do their utmost to ensure that they allow departing staff sufficient time to comply with their local accommodation obligations. In particular, having regard to Article 41(1) of the Vienna Convention on Diplomatic Relations,[8] the Commission could inform the staff concerned about the termination of their employment contracts within a period of time that is sufficient for them to comply with the termination notices foreseen in their respective local leasing agreements, and which have been previously approved by the delegations in question. In this respect, the Ombudsman will make a further remark below.

B. Allegation that the Commission did not fully reimburse the complainant's travel expenses and related claim

Arguments presented to the Ombudsman

42. The complainant alleged that the Commission did not reimburse him the full amount of the expenses he incurred when returning to his place of origin.

43. In support of this allegation, he argued that, although he had provided the Commission with necessary evidence in this respect, he only received payment for his travel from Brussels to city B amounting to EUR 176.81.

44. The complainant claimed that the Commission should pay him an amount that could be established at EUR 1 529 and corresponded to his return trip to city B.

45. In its opinion, the Commission stated that the complainant's return trip included a stop over in Brussels and that it reimbursed him the Brussels - city B part of that trip. The Commission stated that it would reimburse the complainant the remaining city A - Brussels part of his return trip on production of a bill/proof of payment of the ticket used for his travel.

The Ombudsman's assessment

46. The Ombudsman notes that, in his observations, the complainant stated that the Commission had in its possession "a copy (based on the original) of the [above] travel ticket together with the cost."

47. It follows that the complainant did not satisfy the Commission's requirements for reimbursing him the relevant travel costs, nor did he submit the appropriate evidence in the context of the present inquiry.

48. In light of the Commission's acceptance to pay the city A - Brussels part of the trip if the complainant submits appropriate evidence, no maladministration by the Commission can be found as regards this aspect of the complaint. Consequently, the complainant's related claim cannot be sustained.

C. Conclusions

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

No further inquiries are justified into the complainant's claim that the Commission should pay him back EUR 9 932 corresponding to rent and a deposit it deducted from the other payments due to him.

No maladministration by the Commission can be found as regards the complainant's allegation that the Commission did not reimburse him the full amount of the expenses he incurred when returning to his place of origin. Consequently, the complainant's related claim cannot be sustained.

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

D. Further Remark

The Ombudsman considers it appropriate to make the following further remark to the Commission:

The Commission could recommend to its delegations that they do their utmost to ensure that they allow departing staff sufficient time to comply with their local accommodation obligations. In particular, having regard to Article 41(1) of the Vienna Convention on Diplomatic Relations,[9] the Commission could inform the staff concerned about the termination of their employment contracts within a period of time that is sufficient for them to comply with the termination notices foreseen in their respective local leasing agreements, which have been previously approved by the delegations in question.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 30 June 2009

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[1] Article 13 of the Leasing Agreement provides that: "[t]he Lessee shall be entitled to terminate the lease at any time, without compensation or penalty, by giving three months notice by registered or recorded-delivery letter. The Lessor shall reimburse within 30 days of the end of the lease any rent and charges paid in advance for periods after the effective end of the lease."

[2] In accordance with the "[r]equest for reimbursement of rent according to Article 23 of Annex X to the Staff Regulations (to be filled by the applicant)" document, provided by the complainant with his complaint and forwarded to the Commission for its opinion.

[3] As per the handwritten "NB" included at the bottom of the "[r]equest for reimbursement of accommodation rent for the period April - September 07" document, provided by the complainant with his complaint and forwarded to the Commission for its opinion.

[4] In accordance with the "[r]equest for advancement of deposit expenses" document, provided by the complainant with his complaint and forwarded to the Commission for its opinion.

[5] Article 118 of the CEOS extends to: "contract staff serving in third countries" the provision of Article 23 of Annex X of the Staff Regulations, which states that "[w]here the official is not provided with accommodation by the institution, his rent shall be reimbursed, provided that the accommodation corresponds to his duties and to the composition of his dependent family."

[6] Point "2. Procedure" of VM 182/06 provides that: "[p]rior to signature of any lease contract, the official is requested to submit a file for approval to the Head of Delegation ... This file shall contain: [t]he draft lease contract including all its annexes ... After approval the official shall have the lease signed ... A copy of the signed lease ... shall be provided to the Head of Delegation prior to any reimbursement."

[7] Article 13 of the Leasing Agreement provides that: "[t]he Lessee shall be entitled to terminate the lease at any time, without compensation or penalty, by giving three months notice by registered or recorded-delivery letter. The Lessor shall reimburse within 30 days of the end of the lease any rent and charges paid in advance for periods after the effective end of the lease."

[8] "Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State ..." Available at http://untreaty.un.org/.

[9] See footnote 8.