The background to the complaint

1. The complainant was a member of the contract staff of the European Commission between 1 August 2008 and 31 July 2011. When his contract ended, he claimed unemployment benefits from the Commission.

2. The rules which govern the EU unemployment allowance are Article 96(2) of the Conditions of Employment of Other Servants of the European Communities (CEOS), and Articles 1(6) and 3 of Commission Regulation 780/2009[1]. Article 96(2) of the CEOS reads as follows:

"To be eligible for this unemployment allowance, a former member of the contract staff shall:

a. be registered, at his own request, as seeking employment with the employment authorities of the Member State in which he establishes his residence;

b. fulfil the obligations laid down by the law of that Member State for persons in receipt of unemployment benefits under that law;

c. forward every month to the institution to which he belonged, which shall immediately forward it to the Commission, a certificate issued by the competent national employment authority stating whether or not he has fulfilled the obligations and conditions referred to in (a) and (b).

The allowance may be granted or maintained by the Community, even where the national obligations referred to under (b) have not been fulfilled, in cases of illness, accident, maternity, invalidity or a situation recognized as being similar or where the national authority, competent to meet those obligations, has given a dispensation."

Articles 1(6) and 3 of Regulation 780/2009 lay down detailed rules on the implementation of Article 96(2) of the CEOS and, more specifically, on the information the former member of the contract staff must provide to the national unemployment authorities, which of this information should be forwarded to the institution to which he or she belonged, and what obligations and continuous checks he or she should be subject to.

3. On 5 August 2011, the complainant submitted to the Commission's Paymaster Office (PMO) a formal request for an unemployment allowance under Article 96 of the CEOS. In a further e-mail of 13 October 2011, he stated that, even though he had submitted all necessary documents, he had not received a reply, or even an acknowledgment of receipt. He asked the Commission to process his request and pay him the allowance in question.

4. On 21 October 2011, the PMO informed the complainant that he had not sent all the required documents and invited him to do so. On 24 October 2011, the complainant submitted a scanned version of the so-called EC-FTCS form,[2] as provided for by Regulation No 780/2009, with its Part A completed for him by the Belgian Public Employment Office for the Brussels region, and added that the Belgian Unemployment Benefit Branch Office had refused to fill out Part B of the form because he did not have a Belgian ID and a national number. On 21 December 2011, the complainant received a payment for November 2011.

5. On 22 February 2012, the complainant sent to the PMO the original of the EC-FTCS form, with Part A completed by the Belgian Public Employment Office for the Brussels region on 12 August 2011, and Part B completed by the Unemployment Benefit Branch Office on 20 February 2012. When the PMO official asked the complainant on 28 March 2012 to provide a copy of his new employment contract (he had started a new job on 9 March 2012), the complainant refused to do so. The PMO official explained that this was important because the Commission needed proof of the end of his period of unemployment. The PMO also needed the corresponding official decision from the Belgian National Employment Office (ONEM). When the complainant questioned this, the official's superior confirmed the need for submitting the requested information.

6. On 11 April 2012, the complainant forwarded to the PMO a letter he had received from ONEM on 4 April 2012, which stated that he was not entitled to unemployment benefits from Belgium. On 13 April 2012, the PMO official replied that his payments were being processed.

7. On 21 May 2012, the complainant filed a complaint with the Ombudsman in which he alleged that the Commission had not addressed the substance of his letter of 13 October 2011, and had failed to pay him the unemployment benefits due to him for the nearly seven and a half months during which he was unemployed. He asked the Ombudsman to ensure that the Commission do so, and pay interest.

8. The Ombudsman decided to attempt to find an informal solution to this complaint. On 6 June 2012, the Ombudsman's services therefore contacted the Commission's services.

9. On 22 June 2012, the Commission forwarded to the Ombudsman a letter it had sent to the complainant in which the Commission explained that applicants have to provide the EC-FTCS forms every month and that the complainant had not done so; he had only submitted sufficient evidence to cover the period until 12 November 2011. The payment made for November 2011 had in fact been a mistake: the official who replaced the case handler in charge of the complainant's file had confused him with another former member of staff.

10. The fact that the complainant's application was not complete had delayed the processing of his file. This was why the payment order for EUR 4,086.48 for the first three and a half months of his unemployment (August-November 2011) was issued only in June 2012. The PMO acknowledged that this delay was frustrating, but underlined that payments could be made only upon receipt of all the necessary documents. It added that there was no legitimate reason to pay the complainant the interest he was claiming.

11. On 5 July 2012, the complainant confirmed having received a payment by the PMO. However, he had received only half of what he had expected. On 10 August 2012, he again wrote to the Ombudsman, explaining that he should have been considered unemployed for the period from 1 August 2011 to 9 March 2012. He was not challenging the calculation of the monthly allowance, but the total amount: he had been unemployed for seven months and eight days, which, on the basis of a monthly allowance of EUR 1,702.70, entitled him to an unemployment allowance of EUR 11,978.

12. On 27 November 2012, the complainant referred to a letter sent by the PMO in which it was stated that (i) for January and February 2012 he was not entitled to unemployment benefits and (ii) the eight days in March during which he was unemployed had not been taken into account.

13. On 17 December 2012, the Ombudsman's services contacted the Commission to clarify the above matters, and informed the complainant accordingly. On 17 January 2013, the Commission asked the Ombudsman to open a formal inquiry since no informal solution could be found.

The subject matter of the inquiry

14. The Ombudsman decided to open an inquiry into the following allegation and claim:

Allegation

The Commission failed to pay the complainant the unemployment benefits due to him.

Claim

The Commission should pay the complainant the unemployment benefits due to him, together with interest for late payment.

The inquiry

15. On 8 February 2013, the Ombudsman asked the Commission for an opinion on the above complaint. On 11 March 2013, the European Commission sent its opinion to the Ombudsman. It was forwarded to the complainant with an invitation to submit observations, which the complainant sent on 15 March 2013.

The Ombudsman's analysis and conclusions

Arguments presented to the Ombudsman

16. In its opinion, the Commission took the view that, on the basis of the documentation which the complainant had provided, it was clear that he had fulfilled the conditions for receiving unemployment benefits for the period between 12 August and 12 November 2011. As regards the period between 13 November 2011 and 20 February 2012, he had forfeited any claim to the unemployment allowance because he had not complied with the applicable national legislation.

17. The complainant did not register again as a jobseeker until 21 February 2012. However, for the period from 21 February until 12 March 2012, the complainant had not provided sufficient proof of his status as a jobseeker.

18. The Commission therefore maintained that it had properly calculated the amounts due to the complainant. It noted, in this regard, that it had not only paid the complainant EUR 4,086.48 in April 2012, but that it had also made a payment of EUR 1,702.70 in December 2011. The resulting total of EUR 5,789.18 covered the three months and 12 days with regard to which the complainant had provided sufficient proof.

19. In his observations, the complainant insisted that he had been unemployed until March 2012 and alleged that the evidence provided by PMO was incomplete. He attached documents that in his view showed that he had registered as a jobseeker with the Belgian authorities on 21 February 2012.

The Ombudsman's assessment

20. The Ombudsman notes that entitlement to the EU unemployment allowance is determined by the rules set out in paragraph 2 above. It follows from these provisions that, in order to qualify for the allowance, an applicant has to fulfil the obligations laid down by the law of the relevant Member State, and register with its employment authorities.

21. In the present case, the Commission had to base its decision whether to grant the EU unemployment allowance to an applicant on the assessment carried out by the competent Belgian authorities.

22. In that regard, it is clear from the documents issued by the Belgian authorities that the complainant registered as unemployed and as seeking employment from 12 August 2011 until 12 November 2011. The complainant does not appear to dispute that the Commission paid him a sum of EUR 5 789.18, which corresponds to three months' and 12 days' allowance (the monthly allowance being EUR 1 702.70).

23. Between 13 November 2011 and 20 February 2012, the complainant did not fulfil the conditions provided for by the applicable Belgian law. It is thus quite clear that the Commission would have had no legal basis for making a payment for that period. It should be noted that the complainant did not invoke any of the reasons mentioned in Article 96(2) of the CEOS which could justify the payment of unemployment benefits in cases where the national obligations are not met.

24. The Ombudsman is not convinced, on the basis of the documentation submitted, that the complainant provided sufficient evidence to show that he fulfilled the relevant criteria during the period between 21 February to 9 March 2012. It is true that the documents submitted to the Ombudsman suggest that the complainant again registered as an unemployed person seeking employment on 21 February 2012. However, the documents that were made available to the Ombudsman and that were clearly also in the possession of the Commission do not establish beyond doubt that the complainant fulfilled all the relevant criteria for receiving the unemployment benefit during that period. Admittedly, the evidence submitted by the complainant together with his observations may make it necessary for the Commission to review its position on this issue. However, it is not clear whether the complainant has already submitted this evidence to the Commission.

25. The Ombudsman therefore considers that there are insufficient grounds for further inquiries.

26. The Ombudsman will nevertheless forward the evidence that the complainant submitted in his observations to the Commission. She trusts that the Commission will duly assess this evidence and draw the appropriate conclusions from it.

B. Conclusion

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

There are insufficient grounds for further inquiries.

 

Emily O'Reilly

Done in Strasbourg on 27 January 2014

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[1] Regulation (EC) No 780/2009 laying down provisions for implementing the third subparagraph of Article 28A (2) and the third subparagraph of Article 96(2) of the CEOS, OJ 2009 L 226, p.3.

[2] "Certificate of Registration as a person seeking employment and entitlement to unemployed benefit of a former member of the temporary/contract staff of the European Communities".