Following the complainant's express request, the Ombudsman decided to treat the present complaint as public and to publish a copy of his decision on the complaint on this website.

Dear Mr G.,

On 29 August 2006, you submitted a complaint to the European Ombudsman against the European Commission concerning its handling of your indemnity insurance claim and of the Community rules on insurance against the risk of accidents[1].

On 18 October 2006, I forwarded the complaint to the President of the Commission.

The Commission sent its opinion on 29 January 2007.

On 26 February 2007, I forwarded it to you with an invitation to make observations.

In the meantime, on 10 and 19 January 2007 and also on 8 and 9 February 2007 you sent me further information regarding your complaint, and, on 31 March 2007, you sent me your observations on the Commission's opinion.

On 10 May, 20 August, 25 October and 11 December 2007, you forwarded to me additional documents related to your complaint.

I am writing now to let you know the results of the inquiries that have been made.

Please also note that, on the basis of Article 10 of the Decision of the European Ombudsman adopting Implementing Provisions[2], I decided in the course of my inquiry to classify your complaint as confidential for the reason explained in point 1.3 of the present decision.

THE COMPLAINT

The complaint was complex and accompanied by voluminous documentation.

According to the complainant, the facts are, in summary, as follows:

Since 1 July 2005, the complainant, a former European Commission official, has been on an invalidity pension as a result of an accident which took place on 8 December 2003.

After the accident, on 16 January 2004, the complainant applied for the indemnity insurance benefits, to which he was entitled on the basis of Article 73 of the Staff Regulations and the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (the "old accident rules").

Up to the time of submitting his complaint to the European Ombudsman, the Commission had not decided on his application.

On 16 January 2006, that is, approximately three years after the accident took place, the "new accident rules", which, according to the complainant, substantially differ from the old ones, were adopted. The changes consisted mainly in the substantial reduction of the amounts to be paid as insurance indemnity as a result of an accident, as calculated in Annex A of the accident rules concerning "European physical and mental disability rating scale for medical purposes" ("the new rating scale"). According to the complainant, the new accident rules were, independently of the date of the accident, to be applied to all applications which had not yet been decided, therefore also to the complainant's case.

On 18 March 2006, the complainant made a complaint under Article 90(2) of the Staff Regulations (R/198/06). In his complaint, he addressed, in summary, the following issues: the merits of the new accident rules; the fact that the Commission failed to inform him individually, as an interested person, of the new accident rules; and the fact that the new accident rules were published in the intranet only in French. He also alleged that the Commission abusively delayed its decision on his indemnity insurance claim.

On 14 July 2006, the Commission replied to the complainant. As regards the allegedly abusive delay in dealing with his case, the Commission recognised the length of time needed to deal with the complainant's case, but denied the abusive character of such a delay and stated that the complexity of the file justified such a length of time. The Commission also considered that the complainant's request under Article 90(2) was premature given that the final decision assessing the degree of his permanent invalidity as a result of an accident had not yet been taken. The Commission instructed the complainant about his right of redress before the Court of First Instance.

The complainant was not satisfied with the reply that he received and turned to the Ombudsman.

The complainant alleged that the Commission failed to take the decision on his application for the indemnity insurance within a reasonable time.

He also alleged that the Commission deliberately delayed its decisions on some applications (including his own) in order to deal with them under the new rules prescribing lower allowances and so pay less to the victims of the accidents.

Finally, the complainant alleged that the Commission's reply to his Article 90(2) complaint was incomplete in that it did not answer his arguments concerning the merits of the new accident rules and failed to inform him of his right to submit a complaint to the Ombudsman.

The complainant claimed that the Commission should decide about his percentage of invalidity on the basis of both the old and new rating scales in parallel, as well as the "Barème Officiel Belge des invalidités", and apply the more advantageous solution.

THE INQUIRY

Commission's opinion

The opinion adopted by the Commission can be summarised as follows:

The complainant had a car accident on 8 December 2003. On 24 November 2005, the insurance company paid him the provisional indemnity and, on 20 November 2006, it made the final payment.

On 18 March 2006, before the Commission had taken the final decision assessing the degree of permanent invalidity and therefore making the final payment, the complainant submitted a complaint under Article 90(2) to the Commission, against the new accident rules. He claimed that (i) the Commission should decide about his percentage of invalidity on the basis of both the old and new rating scales in parallel and apply the more advantageous solution; (ii) the Commission should pay him EUR 1 as damages for moral prejudice; and (iii) the Commission should reimburse him the fees paid to the lawyer who defended him against the driver who caused the accident.

On 14 July 2006, DG ADMIN rejected his complaint as inadmissible because its final decision assessing the degree of permanent invalidity had not yet been taken.

Therefore, the Commission found that the present complaint to the Ombudsman was inadmissible and recalled that, according to the Statute of the Ombudsman[3], the complainant must complete the prescribed prior administrative approaches before submitting his complaint to the Ombudsman.

As regards the complainant's first allegation that the Commission failed to take a decision on his application within a reasonable time, the Commission pointed out that the complainant did not submit evidence in support of this allegation.

The Commission stated that, on 24 November 2005, it paid to the complainant the provisional allowance corresponding to the undisputed proportion of the permanent invalidity rate.

As regards the final payment, the Commission explained that it received the final medical report on the complainant's accident on 28 September 2006.

Following this medical report, the Commission sent to the complainant a draft decision concerning his permanent invalidity rate[4].

After an exchange of correspondence with the complainant, the Commission modified the draft decision.

On 7 November 2006, the Commission sent the complainant the final version of the draft decision, and, on 20 November 2006, the insurance company made the final payment.

The Commission concluded that the complexity of the complainant's file necessitated such a delay in dealing with his case. The Commission also noted that the complainant had to undergo several medical examinations, including a psychiatric consultation, which delayed the adoption of the decision. The Commission also mentioned that, in the meantime, the complainant had submitted eleven complaints under Article 90 of the Staff Regulations.

As regards the complainant's second allegation that the Commission deliberately delayed its decisions on some applications (including his own) in order deal with them under the new rules prescribing lower allowances and so pay less to the victims of the accidents, the Commission considered that the complainant did not submit any evidence in support of his allegation.

The Commission pointed out that, according to the established case-law of the Community Courts[5], the laws amending a legislative provision apply, unless otherwise provided, to the future consequences of situations which arose under the former law. Therefore, the complainant wrongly stated that new accident rules applied retroactively.

As regards the complainant's allegation that the Commission's reply to his Article 90(2) complaint was incomplete, the Commission stated that the complainant could contest the new rules only by contesting a decision that concerned him directly and individually. Given that the Commission had not taken its final decision with respect to the assessment of the degree of permanent invalidity by the time of his complaint under Article 90(2) of the Staff Regulations, the complainant could not contest the new rules.

The Commission took the view that the draft decision sent to the complainant on 7 November 2006 was adopted on the basis of the new accident rules in force at the moment it took its decision. Therefore, the decision about his percentage of invalidity was based on the rating scale contained in the new accident rules.

The complainant's observations on the Commission's opinion and his additional letters

The complainant's observations on the opinion

In his observations on the Commission's opinion, the complainant made, in summary, the following comments:

The complainant considered that his complaint to the Ombudsman was admissible. In his view, he was entitled to lodge a complaint with the Ombudsman, given that his complaint with the Commission under Article 90(2) of the Staff Regulations referred to the Commission's delay in taking within a reasonable time, the final decision assessing the degree of permanent invalidity.

The complainant admitted that the Commission paid him a provisional allowance but took the view that the explanation offered by the Commission for its delay in making the final payment could not be accepted.

First, the complainant argued that he was only once examined by a doctor appointed by the Commission. Second, he noted, as regards the Commission's first draft decision sent to him on 18 October 2006, that the medical report on the basis of which his invalidity rate was proposed in that draft decision was not attached to it. The complete draft decision along with the medical report, in accordance with Article 20(1) of the new accident rules, was sent to the complainant only on 7 November 2006.

The complainant also found that, by its reference to the complainant's psychiatric consultation, the Commission disclosed an aspect of his private life without his agreement.

Moreover, the complainant argued that his injuries had been considered to be consolidated as of 28 June 2005 and the medical reports including that of the doctor appointed by the Commission were submitted before the new rules came into force. Therefore, the Commission had sufficient time to take a decision assessing the degree of his permanent invalidity on the basis of the old accident rules, given that the new accident rules came into force on 1 January 2006. Therefore he maintained his second allegation that the Commission deliberately delayed its decisions on some applications (including his own) in order deal with them under the new rules prescribing lower allowances and so pay less to the accident victims. In the complainant's view, the case-law of the Community Courts invoked in this respect by the Commission was not relevant in his case.

Finally, the complainant considered that the Commission did not reply fully to his third allegation given that it did not explain why it did not advise him that he could submit a complaint to the Ombudsman. He also pointed out that the Commission's statement, according to which "the complainant already lodged eleven complaints under Article 90 (2) Staff Regulations"[6], violated Article 8 of the Charter of Fundamental Rights of the European Union[7] and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data[8].

In the complainant's view, nothing prevented the Commission from calculating the percentage of his invalidity on the basis of a rating scale other than the one it actually used.

Additional letters

In his additional letters of 10 January and 9 February 2007, the complainant stated, in summary, that the delay in the payment of his indemnity was unjustifiable and criticised the Commission for its repeated refusal to grant him access to the documents relating to his indemnity insurance claim. Further, the complainant suggested that the Commission abused its power and specifically abused the complainant's weakness. He also stated that he referred to the above issues in his complaints submitted to the Commission under Article 90(1) and (2) of the Staff Regulations (complaints R/824/05 and R/266/06). He attached a substantial number of documents to his letters.

In his additional letter of 10 May 2007, the complainant informed the Ombudsman that he had asked the Commission to provide him with a copy of his medical file. The complainant argued that an official of the Commission only enumerated the content of the file and advised him to contact by telephone the doctor who represented him in the Medical Committee. In this respect, the complainant pointed out that, as a result of his accident, he was deaf and could only partially understand oral communications with the aid of a hearing prosthesis. Therefore, the invitation to contact verbally his doctor was not appropriate.

The complainant also argued that some parts of his medical files disappeared and that the Commission did not send him a bank statement concerning the reimbursement of the costs of a medical expertise. He also informed the Ombudsman that he lodged a complaint with the European Data Protection Supervisor as regards the Commission's reference made in its opinion on the complaint that he submitted eleven complaints under Article 90(2) of the Staff Regulations.

In his additional letter of 20 August 2007, the complainant stated that, on 25 July 2007, he had submitted another complaint under Article 90(2) of the Staff Regulations (D/418/07). He also pointed out the delays in appointing a third doctor within the Medical Committee. In his view, the Commission deliberately delayed sending his medical file to the third doctor of the Medical Committee. In support of his allegation, the complainant argued that he never received a copy of an intermediary medical report dated 10 April 2005, submitted by a doctor appointed by the Commission.

In his additional letter of 25 October 2007, the complainant stated, in summary, that the Commission did not provide him with accurate information about the official who was dealing with his case after the accident and about the role of a private insurance company. Further, the complainant pointed out the delays of the Medical Committee in dealing with his case. He also criticised the Commission for losing a part of his medical file. Finally, he pointed out that the Commission treated his complaint submitted under Article 90(2) of the Staff Regulations as a request pursuant Article 90(1) of the Staff Regulations.

In his additional letter of 11 December 2007, the complainant submitted, in substance, the same comments, as in his previous correspondence dated 20 August and 25 October 2007.

THE DECISION

1. Preliminary remarks

Admissibility of the complaint to the Ombudsman

First, the European Ombudsman notes that, in its opinion, the European Commission appears to argue that the complaint should not have been considered admissible by the Ombudsman given that, at the time the complainant submitted his complaint to the Ombudsman, the Commission had not taken a final decision on the complainant's degree of invalidity and on the amount of the final payment of the indemnity.

The Ombudsman notes that the original complaint concerned the delay by the Commission in taking a decision on the complainant's indemnity insurance claim. The complainant appeared to have referred to this issue in his Article 90(2) complaint (number R/198/06) submitted to the Commission on 20March 2006 and to which the Commission answered on 19 July 2006, that is, before the original complaint was submitted to the Ombudsman. Moreover, the Ombudsman does not consider that, with respect to the complaints concerning alleged delays in the taking of a decision, the prior administrative approaches are completed only when the decision to which the delay refers is taken. The Ombudsman also notes that in his Article 90(2) complaint, the complainant referred to the issues covered by its claim to the Ombudsman.

Confidentiality of the file

1.3 Given the nature of the information submitted by the Commission and the complainant in the course of the inquiry, the Ombudsman has decided to treat the complaint as confidential on the basis of Article 10(1) of his Implementing Provisions[9].

Scope of the Ombudsman's inquiry

1.4 The Ombudsman points out that, as he explained to the complainant in his opening inquiry letter[10], he does not deal in the present decision with the merits of the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (the "old accident rules" or the "new accident rules" of 1 January 2006).

1.5 As regards the complainant's additional letters sent to the Ombudsman in the course of the inquiry, the Ombudsman notes that they contain, in summary, the following issues: (i) the behaviour of a Commission official dealing with the complainant's file; (ii) access to documents of the medical file and alleged incompleteness of this file; (iii) the appointment of a third doctor to the Medical Committee; (iv) the delays of the Medical Committee in dealing with his case; (v) reimbursement of fees for a medical expertise; (vi) the role of a private insurance company; and (vii) the inappropriate treatment by the Commission of his complaint D/418/07 under Article 90(2) of the Staff Regulations, which was submitted on 25 July 2007.

As far as the complainant's observations (i), (ii), (v), (vi) submitted in his additional letters could constitute new allegations, the Ombudsman notes that it appears that the complainant referred the above observations to the Commission by submitting to it Article 90(2) complaints. However, the Commission took the decision to treat his complaints made under Article 90(2) as a request made pursuant to Article 90(1) of the Staff Regulations. From the information submitted by the complainant, it does not appear that the procedure under Article 90 has ended. Therefore, the Ombudsman does not consider that the complainant exhausted the prior administrative approaches required by Article 2(8) of the Ombudsman's Statute and will not deal with these issues in the present decision. The complainant is however free to submit the new complaints in this respect after having exhausted the prior administrative approaches.

As regards observations (iii), (iv), they appear to constitute additional arguments to demonstrate in which way the Commission allegedly delayed its dealing with the complainant's application. The Ombudsman does not consider however necessary to refer these observations to the Commission for separate comments, because they do not appear to be relevant to the Ombudsman's assessment of the delay in question.

As regards observation (vii), the Ombudsman notes that it concerns facts which occurred after the original complaint was submitted to the Ombudsman and does not appear to directly relate to the original allegations. In order not to delay his dealing with the original allegations, the Ombudsman decided not to include these observations in his present inquiry.

The Ombudsman takes note of the Commission's statement that the complainant submitted eleven Article 90 complaints and the complainant's statement that he addressed, with respect to this issue, the European Data Protection Supervisor. In this regard, the Ombudsman considers however the above Commission statement as an argument in its defence and will address it as such in the decision.

2. Delay in handling of the complainant's accident indemnity claim/alleged unjustified and deliberated delay

2.1 The complainant alleged that the Commission failed to take a decision on his accident indemnity claim within a reasonable time. In this connection, he referred to the following timetable of events: his accident took place on 8 December 2003; the Commission paid him the provisional allowance corresponding to the undisputed proportion of the permanent invalidity rate on 24 November 2005 and made the final payment on 20 November 2006.

He also alleged that the Commission deliberately delayed its decisions on some applications (including his own) in order to deal with them under the new rules, which prescribe lower allowances and provide for lower payments to the victims of accidents.

2.2 In its opinion, the Commission pointed out that the complexity of the complainant's file necessitated a delay in the adoption of the decision.

The Commission also noted that the complainant had to undergo several medical examinations, including a psychiatric consultation, which delayed the adoption of the decision. As a result, the final medical report was submitted to the Commission only on 28 September 2006. On 7 November 2006, the final version of the draft decision assessing the degree of permanent invalidity was sent to the complainant and after an exchange of correspondence with him, on 20 November 2006, the insurance company paid the complement to the amount received by the complainant in 2005, that is, the provisional payment.

As regards the allegation concerning the intentional character of the delay, the Commission considered that the complainant did not submit any evidence in support of his allegation. The Commission pointed out that, according to the case-law of the Community Courts, laws amending a legislative provision apply, unless otherwise provided, to future consequences of situations which arose when the former law was in force. Therefore, the new accident rules did not apply retroactively.

Alleged unjustified delay

2.3 First, the Ombudsman notes that the complainant's accident took place on 8 December 2003. The complainant submitted his application for insurance indemnity on 16 January 2004, and the final payment for his indemnity was made on 20 November 2006. The Ombudsman further notes (a) that the complainant's injuries were considered consolidated[11] on 28 June 2005 or at the latest on 7 October 2005[12], (b) that the undisputed proportion of the permanent invalidity rate was established on 1 July 2005, (c) that the insurance company made the first payment to the complainant of the provisional allowance on 24 November 2005[13], and that, (d) on 20 November 2006, the final payment to the complainant was made.

2.4 Moreover, the Ombudsman notes (a) that, according to the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease, payment of the provisional allowance is made after the undisputed proportion of the permanent invalidity rate has been established[14] and (b) that the final decision could be taken only after the insured party's injuries had consolidated[15]. The Ombudsman notes therefore that it took the Commission more than one year to deal with the complainant's application, that is, from the time his injuries had consolidated until the final payment was made. In this respect, the Ombudsman takes the view that the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease do not set a time limit for the Commission to take its final decision on the complainant's application. The question therefore is whether the above time period of more than one year it took the Commission to deal with the complainant's application is justified.

2.5 The Ombudsman notes in this respect that the Commission argues that such a delay is justified given (i) the complexity of the file; (ii) the necessity for the complainant to undergo additional medical examinations; (iii) the fact that the final medical report on the complainant's accident was only ready on 28 September 2006; (iv) the exchange of correspondence between the complainant and the Commission as regards the draft decision on the complainant's permanent invalidity rate; and (v) the fact that the complainant submitted, in the meantime, eleven complaints pursuant Article 90(2) of the Staff Regulations with which, the Ombudsman understands, the Commission needed to deal.

2.6 The Ombudsman also notes that, according to the complainant, he had undergone five medical examinations by a doctor appointed by the Commission, while the Commission, in its opinion, stated that the complainant underwent four medical checks-up. Moreover, the Ombudsman notes that according to the Commission, the final medical report was submitted to it on 28 September 2006, while the complainant notes that the relevant medical reports were completed by the end of 2005. On the basis of the evidence available, the Ombudsman is not able to take a position on the above divergences between the complainant and the Commission concerning the number of examinations or the date of the completion of the medical documentation.

2.7 Nevertheless, the Ombudsman does not find that the above reasons given by the Commission in order to explain its delay, as referred to in point 2.4 above, are manifestly unreasonable. However, he does not consider that these reasons are sufficient to justify the delay in paying the complete indemnity to a victim of an accident whose injuries were considered consolidated more than one year before the Commission made the final payment. As mentioned in the preliminary remarks, the Ombudsman notes that according to the complainant, there were delays in appointing the doctors(s) and in the work of the Medical Committee. Regardless of whether this was the case, the Ombudsman emphasizes that the Commission still had administrative responsibility for the work of the doctors it appointed, including all the preparatory acts necessary in their work. It is not enough for the Commission to argue that the complainant's file was too complex[16]. The Ombudsman considers that, by failing to provide sufficient reasons, justifying its delay in paying the complete indemnity to an accident victim whose injuries were considered consolidated more than one year before the Commission took its final decision on his indemnity insurance, the Commission committed an instance of maladministration. The Ombudsman will therefore make a first critical remark with respect to this aspect of the case.

2.8 The Ombudsman also recalls Article 12 of the European Code of Good Administrative Behaviour which requires that officials be helpful and courteous. The Ombudsman takes the view that, when dealing with the indemnity claims of the victims of accidents, the officials should be particularly helpful and courteous and avoid any remarks or allusions which might hurt or injure unnecessarily the complainants.

The Ombudsman notes, however, the fact that, in its opinion, the Commission referred specifically and in particular to only one of the several medical examinations that the complainant had undergone, namely, the psychiatric consultation, although the reference did not appear to be necessary. The Ombudsman considers that, by making such a reference to psychiatric consultation, which was absolutely unnecessary to the substance of its case, the Commission did not comply with the requirement to be courteous and that this failure constitutes an instance of maladministration. The Ombudsman therefore will make a second critical remark with regard to this aspect of the complaint.

Alleged deliberated delay

2.9 As regards the allegation of deliberate delay, the Ombudsman notes the complainant's arguments that (i) by the end of 2005, the Commission disposed of all the necessary elements, including the relevant medical reports needed to take a decision in his case, and (ii) that the new accident rules were applied retroactively.

2.10 The Ombudsman does not consider however that the above arguments or the fact that the new rules prescribe different and, according to the complainant, less advantageous rates for calculating the indemnity percentage are sufficient to demonstrate the intentional character of the delay in dealing with the complainant's indemnity claim.

2.11 Moreover, the Ombudsman notes that, according to a generally accepted principle, referred to by the Commission in its opinion, the laws amending a legislative provision apply, unless otherwise provided, to the future consequences of situations which arose under the former law[17].

2.12 In light of the above, the Ombudsman considers that the complainant did not succeed in demonstrating that the Commission deliberately delayed its decision on the complainant's indemnity claim. Therefore, there appears to have been no maladministration as regards this aspect of the complaint.

3. Alleged incomplete reply to the complainant's Article 90(2) complaint

3.1 The complainant alleged that the Commission's reply to his Article 90(2) complaint was incomplete in that it did not answer his arguments concerning the merits of the new accident rules and failed to inform him of his right to submit a complaint to the Ombudsman.

3.2 The Commission took the view in its opinion that the complainant could contest the new accident rules only by contesting a decision that concerned him directly and individually. It also stated that the purpose of an Article 90(2) complaint is not to contest the merits of common rules. Given that the Commission had not taken its final decision in the complainant's case by the time of his Article 90(2) complaint, the complainant could not contest the new rules.

3.3 The Ombudsman notes that, in its reply to the complainant's Article 90(2) complaint, the Commission did not reply to the complainant's request concerning the merits of the new accident rules. The Ombudsman further notes that, in its opinion, the Commission explained why it could not deal with the complainant's request and considers the Commission's explanation reasonable.

3.4 Moreover, although the Commission failed to inform the complainant of his right to lodge a complaint with the Ombudsman, the Ombudsman notes that the complainant did, in fact, exercise this right by submitting the present complaint. The Ombudsman considers that, as a former official of the Commission, the complainant should have been aware of the Staff Regulations and thus of the possibility to approach the Ombudsman.

3.5 In the light of the Ombudsman's findings in points 3.4 and 3.5, no further inquiries are justified as regards this allegation.

4. The complainant's claim

4.1 The complainant claimed that the Commission should decide about his percentage of invalidity on the basis of both the old and new rating scales in parallel as well as of the "Barème Officiel Belge des invalidités", and apply the more advantageous solution.

4.2 In its opinion, the Commission took the view that the draft decision sent to the complainant on 7 November 2006 was adopted on the basis of the new accident rules in force at the moment when the decision was taken. Therefore, the decision about his percentage of invalidity should be based on the rating scale contained in the new accident rules.

4.3 The Ombudsman notes that the accident rules in force at the moment when the Commission took its decision were the new accident rules. Moreover, the Ombudsman recalls again that the case-law of the Community Courts[18] established that, unless otherwise provided, the laws amending a legislative provision apply, to the future consequences of situations which arose under the former law. Therefore the Ombudsman considers that the Commission's decision should be based on the new rules. The Ombudsman is not aware of any rule that would oblige the Commission to undertake a comparative assessment between the new scale of the accident rules, the old scale of the accident rules as well as the "Barème Officiel Belge des invalidités" and to apply the more advantageous solution.

4.4 In light of the above, the Ombudsman takes the view that the Commission's provided an adequate response to the complainant's claim and that no further inquiries are therefore needed as regards the complainant's claim.

5. Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remarks:

By failing to provide sufficient reason, justifying its delay in paying the complete indemnity to an accident victim whose injuries were considered consolidated more than one year before the Commission took its final decision on his indemnity insurance, the Commission committed an instance of maladministration.

The Ombudsman recalls Article 12 of the European Code of Good Administrative Behaviour which requires that officials be helpful and courteous. The Ombudsman takes the view that, when dealing with complaints introduced by victims of accidents, the institutions should be particularly careful, helpful and courteous and avoid any remarks or allusions which might hurt or injure unnecessarily the complainants. The Ombudsman notes however the fact that, in its opinion, the Commission referred in particular to only one of the various medical examinations that the complainant underwent, namely, the psychiatric consultation, and that this reference did not appear to be necessary. The Ombudsman considers that, by making such a reference, the Commission did not comply with the requirement to be courteous and this failure constitutes an instance of maladministration.

Given that these aspects of the case relate to specific events in the past and the complainant's accident indemnity was in the meantime paid, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 10 January 2008

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[1] "Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease", adopted on 16 January 2006.

[2] Available on the Ombudsman's website (http://www.ombudsman.europe.eu).

[3] According to Article 2(8) of the Ombudsman's Statute: "No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired."

[4] According to Article 20(1) of the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease: "Before taking a decision pursuant to Article 18, the appointing authority shall notify the insured party or those entitled under him/her of the draft decision and of the findings of the doctor(s) appointed by the institution. The insured party or those entitled under him/her may request that the full medical report be communicated to them or to a doctor chosen by them".

[5] Case C-1/73 Westzucker GmbH v Einfuhr- und Vorratsstelle für Zuckerr [1973] ECR 723, paragraph 5.

[6] In French: "ayant introduit onze réclamations à cette date (...)".

[7] According to Article 8: "Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. (...)".

[8] OJ 2001 L 8, p. 1.

[9] Decision of the European Ombudsman adopting implementing provisions available at the Ombudsman's website (http://www.ombudsman.europa.eu).

[10] The Ombudsman notes that, in his letter sent to the complainant on 18 October 2006, he explained that the new accident rules were adopted by common agreement of the institutions (including the Ombudsman) pursuant to Article 73 of the Staff Regulations, which provides for consultation with the inter-institutional Staff Regulations Committee representing the staff and the administration of the institutions. The Ombudsman also notes that the rules adopted were binding on all the institutions, unless they were annulled by the Court, or amended through the same procedure as was used for their adoption. In these circumstances, the Ombudsman considered that the rules were analogous to legislation and did not raise an issue of potential maladministration. The complainant was advised to contact the European Parliament's Committee on Petitions if he wished to contest the merits of these rules.

[11] In accordance with Article 19(3) of the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease: "The decision defining the degree of invalidity shall be taken after the insured party's injuries have consolidated. The consequences of the accident or occupational disease shall be considered consolidated where they have stabilised or will diminish only very slowly and in a very limited way. (...)".

[12] The Ombudsman notes that in his observations the complainant stated that his injuries were considered consolidated on 28 June 2005, but he stated that the report of the doctor appointed by the Commission (GJ 1936.04 bis), to which he made reference is dated 7 October 2005.

[13] In accordance with Article 19(4) of the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease: "Where 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."

[14] See Article 19(5) of the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease.

[15] See note 11.

[16] In its opinion, the Commission stated that: "Le délai écoulé entre la date de l'accident et l'adoption de la décision était tout à fait justifié par la complexité du dossier du plaignant."

[17] See note 5.

[18] See note 5.