1. The present complaint concerns the Commission's follow-up to the Civil Service Tribunal's (henceforth: the 'CST') judgment in Case F-119/07 Strack v Commission ('the judgment') handed down on 17 February 2011.

2. By virtue of the judgment, the CST annulled the Commission's decision to refuse to grant the complainant an advance payment pursuant to Article 73 of the Staff Regulations and essentially reasoned that the Commission would have been required to obtain a medical doctor's opinion before deciding on the complainant's request. The Commission then granted the complainant an advance payment.

3. Subsequent to the CST judgment, the complainant submitted to the Commission a complaint pursuant to Article 90(2) of the Staff Regulations in which he requested, among other things, default interest for certain periods of time predating the granting of the advance payment.

4. The issue in dispute between the parties in the present case is the amount of time for which the Commission is required to pay default interest.

5. On 29 November 2011, the complainant turned to the Ombudsman.

The subject matter of the inquiry

6. In his complaint, the complainant submitted the following allegation and claim.

Allegation:

The Commission failed properly to deal with his Article 90(2) complaint.

Claim:

The Commission should revoke its decision on his Article 90(2) complaint and reconsider its position.

7. In support of his allegation, the complainant argued that the Commission: (i) did not fully implement the CST judgment; (ii) did not correctly assess his claim for damages; and (iii) did not correctly determine the periods of time for which default interest is due.

8. In the letter opening his inquiry into the present case, the Ombudsman informed the parties that he considered the Commission's position in relation to the complainant's arguments (i) and (ii) to be reasonable. Therefore, he took the view that there are insufficient grounds for an inquiry to the extent that the complainant's allegation and claim relate to those arguments.

9. As regards the complainant's argument (iii), the Ombudsman considered that the Commission's position not to pay default interest for the period before 11 May 2010, that is, before the day when the complainant was checked by a medical doctor commissioned by the Commission, appears to be in conformity with the judgment of the CST. As regards the issue as to whether default interest is due also for the period of time from 12 May 2010 to 20 December 2010, the complainant argued that the date of his medical assessment in 2010 should be considered to be the relevant point in time for the calculation of default interest. The Ombudsman considered the complainant's relevant argument to be plausible at first sight.

The inquiry

10. On 16 December 2011, the Ombudsman invited the Commission to submit an opinion on the complainant's allegation and claim to the extent that they relate to the complainant's third argument and, more specifically, to the Commission's decision not to pay default interest for the period of time between 12 May 2010 and 20 December 2010.

11. The Commission's opinion was forwarded to the complainant with an observation to submit observations. The complainant submitted his observations on the Commission's opinion on 26 May 2012.

12. On 5 March 2013, the Ombudsman submitted a friendly solution proposal to the Commission. The Commission's reply to that proposal was forwarded to the complainant for observations which he sent on 24 June 2013.

The Ombudsman's analysis and conclusions

Preliminary remarks

13. In his observations on the Commission's opinion, the complainant reiterated the view set out in his complaint to the Ombudsman that the Commission would have been required to take further measures to implement the judgment of the CST. In particular, it omitted to assess whether he was entitled to an advance payment before 11 May 2010. In the letter opening his inquiry, the Ombudsman informed the complainant and the Commission that, to the extent that the complainant's allegation and claim relate to this argument, he considered that there were insufficient grounds for an inquiry and gave reasons in support of his view. The Ombudsman maintains this finding and, in view of the complainant's observations, considers that there is no need to change his assessment.

14. Given their factual connection, it is appropriate to consider the complainant's allegation and claim together.

A. As regards the complainant's allegation and claim

Arguments presented to the Ombudsman

15. The complainant alleged that the Commission failed properly to deal with his Article 90(2) complaint. In support of his allegation, he argued that the Commission did not correctly determine the periods of time for which default interest is due. He claimed that the Commission should revoke its decision on his Article 90(2) complaint and reconsider its position.

16. In his letter requesting the Commission's opinion (see paragraph 10 above), the Ombudsman noted that the Commission recognised that default interest is due for the period of time during which its insurance company had not yet made the advance payment to the complainant, notwithstanding the Commission's relevant instructions to it on 21 December 2010. Against this background, he asked the Commission to explain the reasons why it apparently considered that the same considerations do not apply with regard to the complainant's medical assessment in 2010. The Ombudsman moreover pointed out that, according to the complainant, it was clear and undisputed, as of 11 May 2010, that his minimum degree of invalidity amounted to 5%. In view of these circumstances and against the background of Article 73 of the Staff Regulations[1], he asked the Commission to explain the reasons for which it considered it necessary to await the complainant's implied acceptance of the amount of the advance payment, before considering it to be due.

17. In its opinion, the Commission disagreed with the complainant's view that, as of 11 May 2010, it was clear that his minimum invalidity degree amounted to 5%. In its view, his invalidity degree could be considered undisputed only as of 20 December 2010.

18. In this regard, the Commission reasoned that Article 19(3) of the Common Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease (the 'Common Rules') stipulates that the degree of invalidity can only be defined after the insured party's condition has consolidated. On 11 May 2010, the medical doctor commissioned by the Commission considered the complainant's condition to be consolidated and determined an invalidity degree of 5%. The doctor issued a medical report on 13 September 2010 which was received by the Paymaster Office (the 'PMO') on 1 October 2010. In line with Article 20 of the Common Rules, the PMO, on 18 November 2010, sent a draft decision and the medical findings to the complainant who, according to Article 20 of the Common Rules, had 60 days to contest the findings by requesting the opinion of the Medical Committee. The Commission submitted that the complainant asked for a bank transfer on 20 December 2010 wherefrom it concluded that he would not request the opinion of the Medical Committee. The findings of the medical doctor had therefore become undisputed at that point in time.

19. The Commission referred to the case law of the Union courts, according to which an obligation to pay default interest can arise only where the amount of the principal sum is certain or can be ascertained on the basis of objective factors. Against this background, it submitted that the principal sum in the case at hand was not certain until the complainant requested the transfer on 20 December 2010, and default interest therefore started to accrue from that date. The Commission added that, by paying default interest as from 21 December 2010, it handled the complainant's case in an exceptionally generous way, given that the Financial Regulation allows for a payment deadline of 45 calendar days.

20. In his observations, the complainant disagreed with the Commission's view as to the effects of the judgment as regards time. However, even if one only considered the period of time as from 11 May 2010, his entitlement to an advance payment would have been clear from that date on and would accordingly require the Commission to pay default interest as from that date. He submitted that, by their very nature, requests to receive an advance payment require an expedited processing. Taking into account the delays resulting from the court proceedings in Case F-119/07, which had to be imputed to the Commission, the Commission would have been required to request the medical doctor to inform it of the relevant results with no further delay.

21. The complainant moreover submitted that the Commission had known since 2006 that he and his general practitioner considered the invalidity degree to be much more than 5%. As a consequence, the determination of the commissioned doctor was undisputed in the sense that amounted to a minimum invalidity degree. It followed that the advance payment was due as from 11 May 2010 and not after what seemed to be at least the complainant's tenth reminder on 20 December 2010. In support of his view, the complainant added an e-mail to the Commission of 5 January 2010 in which he requested a decision on the issue of the advance payment.

22. Finally, the complainant argued that the issue of an advance payment is entirely independent of the question whether he would request the opinion of the Medical Committee as to the existence of a degree of invalidity that was higher than the recognised 5%. The complainant stated that he had indeed requested the opinion of the Medical Committee. If one were to follow the Commission's fallacious logic, this would mean that it would not have had to make any payments to him up to the date of the complainant submitting his observations to the Ombudsman. According to the complainant, this suggested that the Commission essentially ignores the CST judgment.

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

23. In his friendly solution proposal, the Ombudsman pointed out that he had analysed the present complaint in detail and considered that the complainant appeared to have submitted plausible arguments in support of his view that 11 May 2010 should be considered to be the relevant point in time for the purposes of calculating default interest. At the same time, the Ombudsman realised that the amount of money claimed by the complainant appeared to be relatively small.

24. The Ombudsman went on to state that, in view of the relatively small amount at stake, having to pursue his inquiry further would, in terms of costs, imply a disproportionate burden on the Commission and the Ombudsman alike and would in all likelihood not be the most cost-effective solution from the vantage point of European taxpayers.

25. In view of the above considerations, the Ombudsman invited the Commission to consider paying interest for the period from 12 May 2010 until 20 December 2010 to the complainant.

The arguments presented to the Ombudsman after his friendly solution proposal

26. In its reply to the Ombudsman's friendly solution proposal, the Commission submitted that, on 13 September 2010, the Appointing Authority's doctor produced a 'consolidation report' which indicated 11 May 2010 as the consolidation date of the complainant's condition. The report was then submitted to, and accepted by, the Commission's insurance company. The Commission received the resulting settlement note from the insurance company on 2 November 2010.

27. The Commission stated that, on 8 November 2010[2], the PMO sent a draft decision to the complainant, in which it proposed a degree of permanent invalidity of 5%, a corresponding payment of EUR 31 177,88 to be made to the complainant.

28. The Commission then recalled that Article 19(4) of the Common Rules states that "[w]here an occupational disease is confirmed, the appointing authority shall grant a provisional allowance corresponding to the undisputed proportion of the permanent invalidity rate. That allowance shall be set off against the final benefit." It argued that the notion of an occupational disease being 'confirmed' is not a pure medical one and therefore cannot depend on a date indicated in a medical report. The Commission considered this to be clear from the text of Article 19(4) of the Common Rules which requires that "the appointing authority shall grant a provisional allowance". Thus, the confirmation is subject to a decision of the Appointing Authority which can only be taken after the relevant administrative procedure has been completed. It pointed out that, in case of invalidity, such a decision includes the agreement of the insurance company. The Commission added that the reference to the date of the administrative decision as the starting point for interest being due reflects general rules of administrative law.

29. The Commission concluded by saying that, in accordance with Article 19(4) of the Common Rules and in response to the specific request made by the Ombudsman, it could very exceptionally accept to pay interest as from the date when the PMO issued its draft decision. Accordingly, the period for such interest payment would run from 8 November 2010 to 20 December 2010.

30. In his observations, the complainant put forward that the Commission is not willing to accept the Ombudsman's friendly solution proposal. He considered the Commission's own proposal to be entirely unacceptable. If the Commission wished to base its argument on administrative decisions, it would, in the complainant's view, be required to take into account the unlawful decisions dating from 2006/2007 which had given rise to the CST judgment. The complainant asked the Ombudsman to find an instance of maladministration in the Commission's activities and to bring the matter before the European Parliament.

31. The complainant explained further that he is not interested in receiving a few more cents in terms of interest. Instead he wished to obtain a declaration that the Commission had taken no retroactive measures to implement the judgment. Thus, the Commission, through an unlawful decision, had not only managed to interfere with his rights and to expose him to a situation of uncertainty for many years, but also to generate illegal financial advantages in these circumstances. The complainant took the view that it had not proven possible for him to remedy this situation through the judgment and turning to the Ombudsman. Therefore, he considered that the Ombudsman should inform Parliament of what he considered to be a systemic lack of legal protection.

The Ombudsman's assessment after his friendly solution proposal

32. In his friendly solution proposal, the Ombudsman invited the Commission to consider paying interest for the period from 12 May 2010 until 20 December 2010 to the complainant. In its reply to his proposal, the Commission agreed to pay interest for the period from 8 November 2010 until 20 December 2010. At the same time, the Commission provided certain additional arguments in support of its view that the date of the complainant's medical examination, namely, 11 May 2010, cannot be considered to be the relevant point in time as from which interest would have to be calculated. Thus, it essentially argued that Article 19(4) of the Common Rules provides for a distinction between the medical report on an occupational disease and the decision taken by the Appointing Authority to grant a provisional allowance. The Commission also submitted that, in cases of invalidity, the agreement of its insurance company is required before it can proceed to making a decision.

33. The Ombudsman considers the Commission's interpretation of the Common Rules not to be without merit. It follows that, in light of the explanations provided in the Commission's reply to the friendly solution proposal, its position that 11 May 2010 cannot be considered to be the point in time from which interest starts accruing does not appear to be unreasonable.

34. The fact remains that a period of apparently more than four months elapsed between the complainant's medical examination and the submission of the medical doctor's report. Neither in its opinion nor in its reply to the Ombudsman's friendly solution proposal did the Commission provide any explanation to account for what appears to be an exceptionally long period of time which obviously delayed the PMO's draft decision. However, given that the complainant has explained in his observations that he is not interested in receiving a small sum in additional interest, the Ombudsman does not consider it useful to seek to persuade the Commission to show even greater flexibility in response to the friendly solution proposal.

35. In his observations, the complainant also reiterated his views expressed on previous occasions, namely, that certain decisions predating 11 May 2010 should be taken into account for the calculation of default interest. In this regard, the Ombudsman recalls that he has already explained the reasons why this view is not convincing (see paragraphs 9 and 13 above). It also follows from these considerations that the complainant's position, according to which the Commission would have been required to take retroactive measures to implement the judgment, is not convincing.

36. For the reasons explained above, the Ombudsman considers that no further inquiries into the present case are justified. He will therefore close the case.

37. As regards the complainant's request that he bring the matter before Parliament, the Ombudsman recalls that Article 3(7) of his Statute empowers him to submit a special report to Parliament if he does not consider that the detailed opinion he receives from an institution in response to a draft recommendation is satisfactory. It is clear, therefore, that, in the circumstances of the present case, the Ombudsman could not make a special report to Parliament.

B. Conclusions

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

No further inquires are justified.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 July 2013

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[1] Article 73 of the Staff Regulations reads as follows: "1. An official is insured, from the date of his entering the service, against the risk of occupational disease and of accident subject to rules drawn up by common agreement of the institutions of the Communities after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against non-occupational risks up to 0.1% of his basic salary. Such rules shall specify which risks are not covered.

2. The benefits payable shall be as follows:

...

(c) In the event of partial permanent invalidity:

Payment to the official of a proportion of the sum provided for in subparagraph (b), calculated by reference to the scale laid down in the rules referred to in paragraph 1.

As provided for in these rules an annuity may be substituted for the payments provided for above.

The benefits listed above may be paid in addition to the benefits provided for in Chapter 3. ..."

[2] In its opinion, the Commission referred to that date as 18 November 2010.