Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The complainant is a Commission official. In September 2008, he went on a mission to a third country together with a colleague (who submitted complaint 2482/2009/(BU)KM). The mission was planned as follows:

Friday 19/9: Departure from Brussels airport at 10:00;

Saturday 20/9: Arrival at 06:25 local time;

Sunday 21/9: Rest day;

Monday 22/9 09:00 – Friday 26/9 18:00: Work;

Saturday 27/9: Free;

Sunday 28/9: Return flight departing at 09:15 and arriving in Brussels at 18:05.

2. The relevant mission order was approved by the authorising officer, the complainant's Director, in accordance with the Mission Guide applicable at the time[2]. The mission was carried out in line with the approved plan. On his return, the complainant completed an expenses declaration, which was again approved by the authorising officer.

3. According to point 1.1 of the 2004 Mission Guide, a mission order must be signed by the immediate superior of the official going on mission and by the authorising officer. Point 1.2 adds that "the signing of the travel order by the authorising officer entitles the staff member to reimbursement of the costs incurred within the regulatory limit in force."

4. Point 1.5 of the 2004 Mission Guide sets out the duties of an authorising officer when authorising a mission:

"Authorising officers have to manage the resources for which they are responsible. To this end, they must evaluate whether or not missions and requests for exceptions submitted by staff going on mission are justified, and substantiate any exception to the general rules applicable having regard to the requirements of the service and in conformity with the rules of sound financial management, in particular economy and cost effectiveness."

5. In relation to the substantive matters at issue in the present complaint, point 4.4 of the 2004 Mission Guide provides as follows:

"(2) Where the fare conditions require a weekend stay (Sunday rule), additional daily allowances may be paid where cost-effective.

The approved travel agency must provide the different rates available (including/not including a weekend stay) so that the member of staff going on mission, the immediate superior and the authorising officer can reach a decision with full knowledge of the facts…

(3) Where a journey involves a time difference of more than four hours, a day's rest is to be allowed at the place of the mission before official engagements begin."

6. Point 9.1 of the 2004 Mission Guide contains the following rules:

"If the leave (taken at the place of mission or on the way between the place of employment and the place of mission) precedes and/or follows the mission, the daily subsistence allowances are calculated from the time at which the meetings actually begin and/or up until the end of the meetings. Where a reduced-rate fare requiring a weekend stay has been obtained, allowances will be calculated to take account of the extra days required by that type of fare, with the exception of working days and/or public holidays."

7. The Commission's Office for the Administration and Payment of Individual Entitlements (the 'PMO') refused fully to reimburse the complainant's mission expenses. Initially, it decided to pay only EUR 1081.19 instead of the EUR 1866.85 claimed. It then however accepted that the departure on Sunday 28 September 2008 was justified. In fact, the Sunday return flight had been EUR 680 cheaper than the Saturday flight. It therefore made two partial payments. However, the complainant was still not reimbursed all his mission costs. In an e-mail of 27 November 2008, the PMO argued that missions had to be as short as possible and that any extensions to the length of a mission which are not justified by the needs of the mission had to be regarded as extensions "for personal convenience". If such an extension meant that an official would be absent from work, such absence constituted annual leave. The PMO noted that there was a flight departing on Saturday which would have allowed the complainant to arrive at 06:25 on Sunday. If he had taken that flight, he would still have had a day's rest, which it defined as 24 hours before work.

8. On 27 January 2009, the PMO wrote to the complainant's Director. It confirmed its view that the mission should have commenced on Saturday 20 September 2008, rather than Friday 19 September 2008. Based on the principle of sound financial management, a "fictional calculation" had to be made to determine the amount payable to the complainant. This meant that the mission would be treated as only having begun on Monday 22 September 2008.

9. On 20 February 2009, the complainant submitted an Article 90(2) complaint. He complained that he had not received a properly reasoned reply from the PMO justifying why his mission expenses had not been fully reimbursed. As far as he could see, he was being refused daily allowances for two days (EUR 110) and one 'fixed allowance' (EUR 54.25), as well as the hotel costs for Saturday 20 September 2008 (EUR 141.17). The costs of a taxi ride to the airport at the place if mission (EUR 26.82) were not accepted either, bringing the total amount of expenses that were no reimbursed to EUR 333.62[3]. The complainant also challenged the PMO's decision on four further grounds:

(1) He contested the classification of his mission as a "mission with leave". He had not taken Friday 19 September 2008 off because on that day he travelled to the place of mission.

(2) He questioned the PMO's view that an arrival at 06:25 on Sunday morning would have allowed him "a day's rest", which the PMO defined as a rest period of 24 hours before work. The complainant argued that there was nothing in the 2004 Mission Guide to support this argument and that, conventionally, a 'day' ran from midnight to midnight.

(3) The complainant challenged the decision not to reimburse the costs of the taxi to the airport at the place of mission.

(4) The complainant also challenged the implicit assumption that a mission beginning on Saturday rather than Friday would have been more cost-effective. As with the Saturday 27 September/Sunday 28 September return flights (where departure on the Saturday was EUR 680 cheaper than that on Sunday), the Saturday 20 September flight was significantly more expensive than the Friday 19 September flight. However, because airlines do not archive information on prices at given dates, the complainant could not prove that this was the case. He could have done so when he planned the mission.

10. The complainant recalled that he had discussed the mission plan "at length" with his superiors. The Head of Section, the Deputy Head of Unit, the Head of Unit and the Director (the authorising officer) all agreed that this mission was in line with the guidelines set out in the 2004 Mission Guide. He could therefore legitimately expect that all mission expenses incurred in accordance with the plan would be reimbursed.

11. On 19 June 2009, the Commission rejected the Article 90(2) complaint. It argued that provisions on financial entitlements had to be interpreted narrowly. It thus upheld the PMO's interpretation of "a day's rest". In its view, the complainant could have set off from Brussels on Saturday, which meant that Friday was a day off work for him. According to point 9.1 of the 2004 Mission Guide, in such cases, the mission only begins on Monday and the daily allowance is only paid from Monday onwards. The costs of the hotel for Saturday night would not be reimbursed either. The taxi costs were not awarded because the complainant had in fact not asked for their reimbursement.

12. Nevertheless, the PMO subsequently reimbursed the taxi costs.

The subject matter of the inquiry

13. The complainant submitted the following allegations:

(1) The PMO wrongly refused to reimburse the entirety of the mission expenses he incurred in relation to his mission in September 2008.

In support of this allegation, he submitted the following arguments:

(a) His Director, acting as authorising officer, signed both the mission order and the expenses declaration. This gave him the legitimate expectation that the expenses he incurred in accordance with the mission order would be paid in full.

(b) The Commission unlawfully declared Friday 19 September 2008 as a day of leave. This was in spite of the fact that he did not request leave for that day and used it to travel to the place of mission, in accordance with the mission order.

(c) The Commission wrongly interpreted the term "a day's rest" in order to deny his expenses incurred in accordance with the mission order.

(d) The Commission wrongly assumed that starting the mission on Saturday 20 September 2008 would have been more cost-effective. If it had raised this concern before the mission, it would have been easier for him to prove that this was not the case.

(2) The Commission rejected his Article 90(2) complaint without sufficiently explaining its decision.

14. The complainant claimed that the Commission should reimburse the outstanding sums plus interest.

The inquiry

15. The complaint was submitted on 6 November 2009. On 19 November 2009, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.

16. The Commission submitted its opinion on 3 March 2010 (English original) and on 11 March 2010 (German translation). The documents were forwarded to the complainant with an invitation to submit observations. The complainant sent his observations between 4 March and 19 April 2010.

17. On 12 May 2010, the Ombudsman asked the Commission for further information. The Commission sent its reply on 16 August 2010 and the Ombudsman forwarded it to the complainant on 19 August 2010 with an invitation to submit observations on it. The complainant sent his observations on 21 September 2010.

18. On 28 February 2011, the Ombudsman asked the Commission to provide him with the Mission Guide which was in force at the time when the complainant went on mission, that is, the 2004 Mission Guide. He also asked for the Mission Guide in force from January 2009[4] and for any other documents that could clarify the division of responsibilities between the authorising officer and the PMO.

19. The Commission sent the requested documents on 22 March 2011. On 31 March 2011, the Ombudsman forwarded them to the complainant with an invitation to make observations before 30 April 2011. The complainant submitted his observations on 6 April 2011.

The Ombudsman's analysis and conclusions

Preliminary remarks

20. The complainant submitted two allegations and one claim. His second allegation was that the Commission failed to reason its rejection of the complainant's Article 90(2) complaint. The Commission did not comment expressly on this issue. However, in view of the substantive explanations provided in the Commission's opinion and in its replies to his request for further information, the Ombudsman considers that it is no longer necessary for him to deal with the second allegation.

21. In his observations, the complainant stated that the Commission should provide reliable guidance on the definition of "a day's rest" and on the extent to which an official who is sent on mission can rely on a mission order signed by the authorising officer. In case this were to be understood as a new claim similar to the one submitted by the complainant's colleague in case 2482/2009/(BU)KM, it should be noted that the Ombudsman has made a draft recommendation in this regard in the parallel case 2482/2009/(BU)KM. There is therefore no need to address this issue in the present case.

A. Alleged error concerning the reimbursement of mission expenses and related claim

Arguments presented to the Ombudsman

22. In his complaint to the Ombudsman, the complainant alleged that the Commission wrongly refused to reimburse the entirety of his expenses in relation to his mission in September 2008. In particular, it wrongly defined Friday 19 September as a day of leave and wrongly interpreted the "day's rest" which must be granted to officials who have to undertake tiring journeys. He underlined that he had carried out his mission in accordance with the mission order which had been approved by his superiors. He therefore claimed that the Commission should reimburse the sum deducted (EUR 306.80) plus interest.

23. In its opinion, the Commission noted, in relation to the question of leave, that the complainant had left on mission on Friday, 19 September 2008, which was a working day. Point 9 of the 2004 Mission Guide stated that where leave was taken before the mission, the daily allowance was calculated from the time when official meetings actually began. However, point 4.4(2) of the 2004 Mission Guide provided that additional daily allowances could be paid where this was cost-effective, taking into account that plane tickets including a weekend stay may be cheaper (the 'Sunday rule'). It had been established that the price difference between the flights on Saturday 27 and Sunday 28 September 2008 justified extending the mission. While the actual prices for the Friday 19/Saturday 20 flights were no longer available, it was likely that the travel agency recommended the combination Friday 19 September to Sunday 28 September as the cheapest option. In fact, point 4.4 (2) obliged the travel agency to provide the different rates that were available. The Commission therefore accepted that the authorising officer had acted in full knowledge of the facts and with due regard to the principle of cost-effectiveness when authorising the mission. In the Commission's view, the cost-effectiveness of the travel plans would have been a proper justification for extending the mission. Friday 19 September 2008 could therefore not be regarded as a day of leave.

24. As regards the interpretation of the term "a day's rest", the Commission first noted that the Court of Justice of the EU has consistently required that provisions which confer a financial advantage on members of staff be interpreted strictly. However, there was nothing in the 2004 Mission Guide to support the PMO's initial interpretation of a "day's rest" as meaning 24 hours before the meeting for which the official in question had travelled. In any event, even if this interpretation were to be followed, the time for travelling from the airport to the venue of the meeting had to be taken into account, in which case a flight arriving on Sunday morning would not have allowed the complainant a period of 24 hours' rest. This was another element which justified departure on Friday 19 September.

25. The authorising officer approved the mission order which foresaw a departure on Friday 19 September 2008 and did not refer to any days of leave. According to point 1.2 of the 2004 Mission Guide, this approval entitled the official to reimbursement of the costs incurred, within the regulatory limits in force. The Commission underlined that, if the PMO considered that there was a problem with the execution of the mission, it should have informed the services concerned in order to prevent such problems from arising in future. It should not have penalised the official who went on mission.

26. The Commission stated that it had thus reconsidered its position and was now of the view that the deductions which the PMO made were not justified. It stated that it was in favour of a positive decision which meant that the complainant would receive the reimbursement he had requested.

27. On 22 March 2010, that is, around two weeks after the Ombudsman had forwarded this opinion to him, the complainant turned to the PMO and asked when he would be reimbursed. Moreover, he reminded the PMO that he was also claiming interest. On 9 April 2010, the Commission informed the complainant that the sum of EUR 307.84[5] would be paid into his account. On 19 April 2010, the Commission confirmed that this meant that it would not pay any interest.

28. The complainant informed the Ombudsman of the above reply. It seemed that this reply indicated that the Commission intended to distance itself from the statements it had made in its opinion. The Ombudsman therefore asked the Commission to specify its position on the issue of interest, which the complainant had claimed but the Commission had not commented on in its opinion, and, more generally, to clarify its position on the substance of the complaint in light of the fact that the e-mail which it sent to the complainant on 19 April 2010 appeared to contradict the position it had adopted in its opinion.

29. In its reply, the Commission stated that it did not see any contradiction between its opinion, in which it reconsidered, on the basis of the specific complaint, the PMO's rejection of the expenses submitted by the complainant, and the e-mail it had sent to the complainant on 19 April 2010, in which it had stated that it had treated the case as an individual matter.

30. As regards the complainant's claim for interest, the Commission noted that the initial decision had been correct under the 2004 Mission Guide applicable at the time. In its opinion, it had taken into account the particular situation of the applicant and had also anticipated some changes brought about by the 2009 Mission Guide, which was more favourable to the official sent on mission. Therefore, its decision to accept the expenses claimed by the complainant did not give the latter a right to interest on account of late payment, given that, before it had reconsidered its position in the opinion, he did not have a right to this payment.

31. In his observations, the complainant underlined that, in its opinion, the Commission relied on the 2004 Mission Guide. In fact, even though he had read the opinion thoroughly, he could not find any reference to the 2009 Mission Guide in it. In his view, the opinion was not a new decision but instead corrected the decision he had complained against and qualified the reasoning in that decision as wrong. He thus did not understand why the Commission was now referring to the opinion as a new decision which anticipated the new rules.

32. The complainant thus maintained his claim for interest.

The Ombudsman's assessment

33. In its opinion, the Commission stated that the deductions which the PMO had made were not justified, given that (i) the travel agency and the authorising officer could be assumed to have complied with their duties and that the travel arrangements made were thus more cost-effective than the approach suggested by the PMO and (ii) the PMO's interpretation of "a day's rest" and its classification of a travel day as a day of leave were not borne out by the Mission Guide. The Ombudsman considers this view reasonable and commends the Commission for reconsidering and modifying its position accordingly.

34. The Commission subsequently reimbursed the expenses claimed by the complainant. To that extent, the complainant's claim can be regarded as having been settled. However, it refused to pay interest on account of late payment. In reply to the Ombudsman's question concerning this issue, the Commission submitted that its decision to reimburse the expenses had anticipated some changes made in the new 2009 Mission Guide which was not applicable at the time of the complainant's mission and that thus no interest was payable.

35. Having carefully analysed the Commission's opinion, the Ombudsman cannot but conclude that this opinion did not rely on the 2009 Mission Guide or on any changes that the new version might contain when compared to the 2004 Mission Guide. Instead, the Commission clearly argued on the basis of the 2004 Mission Guide, from which it cited, and relied on the concept of fairness to come to the conclusion that the PMO's decision not to reimburse the complainant's mission expenses in full was not justified. The Ombudsman further notes that, in its reply to his request for further information, the Commission did not provide any details whatsoever as regards the alleged impact of the 2009 Mission Guide on its position.

36. In addition, the Ombudsman has carefully examined the relevant provisions of the 2004 and 2009 Mission Guides. However, he is unable to see how applying the 2009 Mission Guide would result in treating the complainant's situation more favourably than would have been the case under the 2004 Mission Guide. The Ombudsman also notes with concern that the Commission's reply to his request for further information suggests that the position it adopted in its opinion, that is to say, its decision to reimburse the relevant amount, was a concession, rather than the result of the correct application of the relevant rules.

37. It must therefore be concluded that the Commission has not provided a convincing explanation as to why it should not be obliged to pay interest on account of late payment in the present case. The Ombudsman will therefore make a corresponding draft recommendation below.

B. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the Commission:

The Commission should pay interest on the mission expenses which it unlawfully refused to pay the complainant.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 March 2012. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 20 December 2011

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[1] 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.

[2] General implementing provisions adopting the Guide to missions for officials and other servants of the European Commission, C(2004) 1313 final, hereinafter the "2004 Mission Guide".

[3] The complainant added an "increased amount on exchange rate" of EUR 7.38.

[4] General implementing provisions adopting the Guide to missions for officials and other servants of the European Commission, C(2008) 6215 final, hereinafter the "2009 Mission Guide".

[5] This sum differs slightly from the sum which was claimed by the complainant (see paragraph 22 above). This difference seems to result from corrective factors relating to the exchange rate.