Recommendation of the European Ombudsman in case 1174/2014/CEC on the European Commission’s refusal to reimburse the travel expenses of a babysitter incurred by a job interviewee
Recomendación - Caso 1174/2014/CEC - Abierto el Miércoles | 17 septiembre 2014 - Recomendación sobre Viernes | 09 junio 2017 - Decisión de Jueves | 09 noviembre 2017
Made in accordance with Article 3(6) of the Statute of the European Ombudsman
The case concerned the refusal of the European Commission to pay the travel expenses of a third person accompanying the complainant to help take care of her baby while she did a job interview with the Commission. The complainant travelled from city X to Brussels for the interview.
Following her inquiry, the Ombudsman proposed a solution under which the Commission would (i) make an ex gratia payment to the complainant, and (ii) commit to providing future candidates who are in a similar situation with information on the options available to them.
The Commission accepted the Ombudsman's proposal to provide future candidates with information on the options available to them, but refused to make an ex gratia payment to the complainant.
The Ombudsman found that, having failed to propose reasonable alternative arrangements, and then refusing to reimburse the additional costs necessarily incurred because of her personal and family situation, the Commission thereby discriminated against the complainant and that this constituted maladministration.
The Ombudsman has now made a recommendation to the Commission reiterating her solution proposal that the Commission make an ex gratia payment to the complainant to cover the travel costs of the person who accompanied her.
1. On 13 August 2013, the European Commission invited the complainant to attend an interview on 13 September 2013 with a view to filling a vacant post. The complainant was also asked to undergo a medical examination that same day.
2. Before travelling from city X to Brussels, the complainant asked the Commission whether she was entitled to the reimbursement of travel expenses of a babysitter, given that she had to take care of a four month old baby whom she was breast feeding.
3. The Commission replied on 21 August 2013 that only the travel expenses of the complainant would be reimbursed.
4. On the same day, the complainant referred the Commission to the European Ombudsman's decision in case 1303/2007/KM. She also referred to an acquaintance who had allegedly been in the same situation as her and had been refunded the travel expenses of a babysitter.
5. The Commission replied on 2 September 2013 that it had taken into consideration the Ombudsman's decision, EPSO's rules on the reimbursement of travel expenses along with the Commission's rules governing the same matter, as well as the personal factors the complainant mentioned in her correspondence and the timing of the interview. Nevertheless, the Commission maintained the position that it would not cover the expenses in question.
6. After the complainant's interview had taken place, she asked the Commission to reimburse the travel expenses of her husband, who had joined her in order to take care of her baby. However, her request was rejected.
7. On 30 June 2014, the complainant contacted the Ombudsman.
8. The Ombudsman opened an inquiry into (i) the complainant’s allegation that by failing to reimburse the full travel expenses of her husband, the Commission discriminated against her; and (ii) her claim that the Commission should reimburse the complainant the entire travel costs incurred by her husband (EUR 488.06).
Reimbursement of the full travel expenses of her husband
The Ombudsman's proposal for a solution
9. When proposing the solution, the Ombudsman took into account the arguments and opinions put forward by the parties.
10. The Ombudsman referred to the case law of the Court of Justice holding that the principle of equal treatment requires that the same situations should not be treated differently, whereas different situations should not be treated similarly, unless such treatment is objectively justified.
11. She agreed with the Commission that the Provisions on financial contribution do not provide for the reimbursement of the travel expenses of a person taking care of a baby on behalf of an interviewee. Furthermore, she noted that the Commission had informed the complainant in advance that the travel expenses of an accompanying person would not be covered.
12. However, the Ombudsman found that it was necessary for the Commission to consider the matter also in the light of the complainant's personal and family situation.
13. The Ombudsman noted that the complainant's baby was, at the time of the interview, four months old and was being breastfed. The complainant thus had to take her baby to Brussels if the interview was going to be held there. It was therefore only reasonable for her to ask someone, in this case her husband, to accompany her so as to take care of the baby during the interview.
14. The Ombudsman noted that the Commission, in its reply in the context of her inquiry, had acknowledged the complainant’s special situation and had stated that special arrangements could have been made to handle the situation properly. It had suggested that the interview could have been held by videoconference or could have been "scheduled at a more appropriate time, in accordance to the candidate’s wishes". The Commission had also stated that it could have made a separate room available for breastfeeding before and/or after the interview.
15. However, the Ombudsman noted that none of these solutions was actually offered to the complainant when she informed the Commission of her situation and of her particular needs. The Ombudsman found it difficult to understand why the Commission mentioned the various options in its reply even though it had not offered any of them to the complainant when she informed the Commission of her situation. In the second letter, after the complainant had informed the Commission that she was breast-feeding her baby and before the interview, the Commission expressly stated “we have taken into account the personal elements you have highlighted in your message as well as the timing of the interview”. However, the Commission failed to refer to any of the alternatives outlined in point 14 above.
16. In the Ombudsman’s view, the Commission appeared to treat the complainant in the same way as any other candidate, although she was clearly in a special situation, and did not provide an objective justification for not offering any of the alternative arrangements mentioned above.
17. Thus, the Ombudsman made the preliminary finding that the Commission had discriminated against the complainant.
18. Therefore the Ombudsman proposed the following solution:
“Taking into account the above findings, the Ombudsman proposes that the Commission (i) make an ex gratia payment of EUR 488.06 to the complainant to cover the travel expenses of the third person who took care of the baby, and (ii) commit itself to providing future candidates who are in a situation similar to the complainant's with information on the options available to them.”
19. In its reply to the Ombudsman’s proposal, the Commission refused to reimburse the complainant for the travel expenses of the accompanying person. It argued that the complainant had willingly decided to incur the expenses in question in the knowledge that the Commission would refuse reimbursement. The Commission also stated that the complainant had never sought any alternative solution or arrangement that would avoid her having to incur those expenses.
20. However the Commission committed itself to provide future candidates, who are in a situation similar to that of the complainant, with information on the options available to them, such as the use of a videoconference.
21. The complainant did not agree with the Commission's answer. She reiterated that there had been a case similar to hers where travel expenses of an accompanying person had been covered. She added that women who breastfeed should not be discriminated against on that account relative to other candidates.
The Ombudsman's assessment after the proposal for a solution
22. The Ombudsman regrets the Commission’s rejection of her first proposal.
23. The complainant in this case was not in the same position as that of the other candidates. Clearly, none of the male candidates was in the same position as the complainant and very few (if any) of the female candidates were in her position. The principle of equal treatment recognises that, in general, different arrangements need to be made in circumstances where an individual’s situation differs from that of others. The Commission, in effect, accepts that the complainant was entitled to special consideration, and special arrangements, given her circumstances. Despite this, the Commission failed to offer the complainant any special arrangement even though she had explicitly informed the Commission of her circumstances and her needs.
24. The Commission’s position appears to be that it was for the complainant, and not for the Commission, to propose an alternative arrangement. In fact, the complainant did propose an alternative arrangement - payment of the travel expenses of another person to help with her baby - but the Commission rejected this arrangement. In any event, and contrary to the Commission’s argument, the Ombudsman finds that it was not reasonable to expect that suggestions for alternative solutions should come from the complainant. Rather, the Ombudsman believes that the Commission itself, once it had been informed of the situation of the complainant, should have proposed solutions such as holding the interview by videoconference and having the medical examination done in the complainant’s home country. After all, ensuring fair arrangements for all candidates is the professional responsibility of the Commission itself.
25. The Ombudsman believes that, in managing the selection procedure for the job in question, the Commission had a responsibility to ensure that each candidate was treated fairly and equally and in a manner which reflected the values on which the EU is founded. The Ombudsman finds that the Commission’s failure to offer the complainant some alternative arrangement, and its rejection of the complainant’s own request for a specific, special arrangement, constituted unfair discrimination and thus amounted to maladministration. The Ombudsman therefore makes a corresponding recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.
26. The Ombudsman welcomes the Commission’s acceptance of her second proposal and its commitment to provide future candidates, who are in a situation similar to that of the complainant, with information on the options available to them.
On the basis of the inquiry into this complaint, and having found maladministration on its part, the Ombudsman makes the following recommendation to the European Commission:
The European Commission should make an ex gratia payment of EUR 488.06 to the complainant to cover the travel expenses of the third person who accompanied her to help take care of her baby.
The European Commission and the complainant will be informed of this recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the European Commission shall send a detailed opinion by 9 September 2017.
 Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.
 In this case, the Ombudsman held that the European Personnel Selection Office (EPSO) committed maladministration by refusing to schedule the complainant’s oral examination (the final stage of an open competition) on a date prior to the date on which she would give birth to her child and failed to respond adequately to her specific arguments regarding the rescheduling of her oral examination: http://www.ombudsman.europa.eu/cases/decision.faces/en/4297/html.bookmark
 The complainant clarified, in the course of this inquiry, that the reimbursement was made by the European Court of Justice and not by the European Commission.
 For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal for a solution: https://www.ombudsman.europa.eu/cases/solution.faces/en/82537/html.bookmark
 See Judgment of the Court of First Instance of 10 July 2014, Case F-115/11 CG v EIB, ECLI:EU:T:1994:39, paragraph 93 and the case-law cited therein.