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

THE COMPLAINT

The facts, according to the complainant, can be summarised as follows.

The complainant's father, who was a former employee of the Commission, died on 8 November 1998. The complainant was his only heir.

On 7 May 2003, the Commission's Pension Services wrote to the complainant informing him that, as a result of a financial check of his father's invalidity pension, the Pension Services had noticed that they had unduly paid his father's pension of BEF 69 164 + BEF 1 314 for the month of December 1998. The Commission informed the complainant that it was obliged to recover the above-mentioned sum (which was equivalent to EUR 1 747.10). It invited the complainant to provide the Commission with the identity of his father's successors for this purpose, and informed him that his failure to do so, before 15 June 2003, would oblige the Commission to issue a recovery order in the complainant's name.

After exchanging telephone calls on the matter, the complainant addressed the Commission in writing on 7 July 2005 suggesting that he make monthly payments of EUR 72.80 over 24 months. The Commission replied by suggesting that he make monthly payments of EUR 300 over 6 months, plus interest of EUR 45 in relation to the deferred payment.

On 15 July 2003, the complainant wrote to the Commission pointing out that his basic monthly salary was less than the sum the Commission intended to recover on a monthly basis. He pointed out that, due to tragic circumstances -- he had lost several members of his family in a short period of time -- he was not aware of the amounts in the relevant bank accounts, which had, moreover, been blocked. The complainant also emphasised that the Commission had only noticed the undue payment after four and a half years. He proposed to make monthly repayments over 12 months.

On 7 August 2003, the Commission replied that it had accepted the complainant's suggestion to make monthly payments over 12 months and provided him with a payment plan. It explained that the total amount was EUR 1 795.17. This sum included EUR 48.07, which corresponded to interest on the deferred payment.

On 7 October 2003, the Commission wrote to the complainant informing him that, in the absence of any payments from him, it was requesting that, within 15 days, he make a payment of EUR 1 747.10 plus interest. The letter informed the complainant that the Commission would initiate recovery proceedings in the event he did not make the payment within the deadline. It also stressed that the complainant's debt was rising on a daily basis due to interest.

On 20 October 2003, the complainant wrote to the Commission contesting the recovery order. He referred to Article 85 of the Staff Regulations, arguing that he had acted in good faith. He recalled that he did not have automatic access to his father's bank account. Furthermore, he argued that the delay in the initiation of the recovery proceedings, that is, four and a half years after the payment was made, was contrary to Belgian legislation, which provided for a six-month deadline for the recovery of overpaid pensions. Moreover, the complainant argued that, as the deceased person's bank account was blocked, it was the responsibility of his father's bank to reimburse any unduly paid sum. The estate inventory was signed on 20 January 1999. That document did not provide the complainant with any automatic access to his father's bank account. The complainant underlined that he was a voluntary worker in an NGO and that he had no means of paying the sum which the Commission sought to recover.

On 26 April 2004, the Commission informed the complainant that, in accordance with the advice of the Legal Service of the Commission, the Commission was not prepared to invalidate the recovery order. In support of its decision, the Commission pointed out that: (i) as his father's survivor and heir, the complainant must have had access to the bank account of the deceased; (ii) the irregularity in question was so evident that the complainant could not have been unaware of it; (iii) the complainant, by his letter of 15 July 2003, agreed to pay the amount due; and (iv) his proposal to return the sum in monthly payments demonstrated that it was not possible to invalidate the recovery on grounds of insolvency. As to the alleged delay, the period between the undue payment and the notification date of the recovery amounted to less than five years and was thus not an obstacle to the recovery proceedings.

On 2 August 2004, the complainant again requested the Commission to review the recovery decision.

On 14 September 2004, the Director of the Office for Administration and Payment of Individual Entitlements confirmed the continuation of the recovery procedure. The letter included a debit note (N° 3240502021) indicating the complainant's debt (which, by that stage, on the basis of the accrued interest, was EUR 1 856.46).

On 21 April 2005, the complainant lodged a complaint with the Ombudsman.

The complainant argued that he had acted in good faith; that there had been undue delay in the recovery proceedings; and that the recovery order was not in accordance with Article 85 of the Staff Regulations.

In substance, the complainant alleged that it would be unfair for the Commission to enforce the recovery order.

He claimed that the Commission should cancel the said recovery order.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows.

Background of the case

The complainant's father, who was a former employee of the Commission, died on 8 November 1998.

On 7 May 2003, the Commission informed the complainant that, as a result of a financial check of his father's invalidity pension, its services had noticed that they had unduly paid the father's pension (BEF 69 164 + BEF 1 314) for the month of December 1998. It informed the complainant that it was obliged to recover the above-mentioned sum (equivalent to EUR 1 747.10) and invited him to provide the Commission with the identity of his father's successors for that purpose. The Commission explained that the complainant's failure to do so before 15 June 2003 would oblige it to issue the recovery order in the complainant's name.

On 18 June 2003, and in the absence of a reply from the complainant, the Commission issued recovery order S12.284311.

On 20 June 2003, the Commission sent debit note N° 3240502120 to the complainant.

On 7 and 15 July 2003, the complainant suggested reimbursing the above-mentioned amount in monthly payments of 24 and 12 months, respectively.

On 7 August 2003, the Commission accepted the complainant's proposal for reimbursing EUR 1 795.17 (including EUR 48.07 of interest) in monthly payments over 12 months and provided him with a payment plan.

As it did not receive any payments from the complainant within the deadlines established in the payment plan, the Commission informed the complainant, on 7 October 2003, that it considered him to be in default.

On 20 October 2003, the complainant changed his mind and requested the Commission to release him from the obligation to reimburse the amount unduly paid. He argued that it had been impossible for him to know about the undue payment and that he did not have automatic access to his father's bank account. The complainant also stressed that four years and six months had passed since the contested payment had been made.

On 20 February 2004, the Commission requested an opinion from its Legal Service on the arguments made by the complainant.

On 16 March 2004, the Legal Service suggested that the Commission pursue the recovery procedure.

On 26 April 2004, the Commission wrote to the complainant and presented the arguments of its Legal Service. It informed the complainant of its intention to pursue further the recovery procedure.

On 2 August 2004, the complainant requested the Director of the Office for Administration and Payment of Individual Entitlements ("PMO") to review the recovery decision.

On 14 September 2004, the Director of PMO confirmed by letter the Commission's decision to pursue the recovery of the initial amount, as well as of the interest on the deferred payment. The letter also stressed that the complainant's debt was rising on a daily basis due to interest.

The Commission's position on the complainant's allegation and claim

The Commission pointed out that, in his letters of 7 and 15 July 2003, the complainant accepted to repay the amount unduly paid to his father's estate and therefore recognised the legitimacy of the Commission's request, before changing his mind on 20 October 2003. Since the complainant did not respect the payment plan, established on the basis of his own proposal to refund the amount unduly received, he could not invoke his good faith.

The Commission also took the view that the complainant's proposal to repay the amount unduly paid to his father's estate in monthly payments showed that waiving the debt, as a result of the debtor's insolvency, could not be invoked.

The Commission recalled that, at the time of the facts, Article 85 of the Staff Regulations did not foresee any deadline for the recovery of overpaid sums. Article 85 has since been amended. According to the second paragraph of the new version of the Article, the administration now has a five-year deadline, from the date on which the sum was paid, to make the request for recovery. Between the date of the undue payment (December 1998) and that of the notification to the complainant of its existence (May 2003), four years and five months had passed and the notification was thus made within the time-limit. Thus, even if the new Staff Regulations applied, the Commission's request for recovery would still be well within the deadline set in Article 85 of the Staff Regulations.

The Commission stressed that, according to the established case-law of the Community Courts, "for a sum paid without justification to be recovered, evidence must be produced to show that the recipient was actually aware that there was no due reason for the payment or that the fact of the overpayment was patently such that he could not have been unaware of it."(2) If, in this case, the recipient disputes that he was aware of the irregularity of the payment, there is reason to examine the circumstances in which the relevant payment was made, in order to establish if the irregularity of the payment should be considered as patent.

According to the Commission, "[t]he phrase 'patently such' relating to overpayment within the meaning of Article 85 of the Staff Regulations does not mean that [a beneficiary] who receives undue payment need make no effort to reflect or check but rather that recovery is due where the error is one which does not escape the notice of [a beneficiary] exercising ordinary care."(3)

In the present case, the complainant accepted the assets and liabilities of the succession. It followed that, from the time of that acceptance, he ought to have had access to the bank account of the deceased. The sums in question not only formed part of the active assets, but the complainant, as sole heir, must have obtained bank statements retracing the movements of the bank account, including the statements on the contested payments.

The Commission pointed out that, according to the established case-law of the Court of First Instance(4), the situation of an administrative authority, which is responsible for the payment of thousands of salaries and allowances of all kinds, cannot be comparable to that of a person who has a personal interest in checking the payments made to him. While it is unfortunate that it took a long time for the Commission to become aware of the overpayment -- a delay which is nonetheless within the limits of Article 85 of the Staff Regulations -- the fact remains that the complainant, far from being exonerated from any effort to reflect or check, has unduly received an amount which could not have escaped the notice of a person exercising ordinary care.

The Commission therefore took the view that the complaint was not founded and that the claim could not therefore be sustained.

The complainants’ observations

The complainant, in summary, maintained the arguments of his original complaint. He underlined that he had originally agreed to make repayments under the pressure of receiving an official letter from the Commission. He had changed his view regarding the recovery only after learning about the Staff Regulations and Article 85, and the power of the Appointing Authority to waive a debt. He stressed that he was not a lawyer by profession and the Commission had never informed him of the legal provisions on which the recovery was based in order to allow him to challenge it from the outset.

The complainant also took the view that the overpayment was not patently such that he could not have been unaware of it. He stressed that at the time of the events he had been orphaned only two weeks previously and could therefore not have been in a position "to reflect or check".

As regards the Staff Regulations, the new provisions should not be taken into account, as the facts in the present case occurred before the entry into force of the new Staff Regulations. The complainant took the view that, although the former Staff Regulations did not provide for a deadline for recovery, citizens should have been able to rely on a reasonable deadline.

Finally, the complainant recalled that he receives unemployment benefit. He does not therefore wish the Commission to waive the debt on the basis of his "insolvency", as the Commission mentioned in its opinion, but rather to adopt a more humane and less mechanical approach.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegation and related claim.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal for a friendly solution to the Commission:

In view of the exceptional circumstances of the case, the Commission could consider whether it would be fair and reasonable to cancel, or meaningfully reduce, the recovery of the overpayment.

This proposal was based on the following considerations:

The Ombudsman first noted that, according to his understanding of the facts, the overpayment in question occurred as a result of an error by the Commission. The Ombudsman noted the Commission’s argument that the complainant could not have been unaware of the overpayment if he had exercised ordinary care, but considered that this ignored the complainant’s explanation that he was not aware of the amounts in the relevant bank account because of his personal circumstances, that is, his multiple bereavement. The Ombudsman also noted that the Commission has offered no explanation for the length of time which elapsed between its error in making the overpayment and its detection of the error through a financial check.

The Ombudsman considered that the complainant had offered a reasonable and easily understandable explanation as to why he first proposed a payment plan and then later did not make the payments and that there was, therefore, no justification for the Commission to impugn the complainant’s good faith on this ground.

Finally, the Ombudsman recognised that the Commission has a duty to recover sums unduly paid, in order to protect the financial interests of the Community. The Ombudsman noted, however, that the Commission has not argued that it is legally impossible for it to cancel the recovery order. In this regard, the Ombudsman pointed out that, in some Member States, the public authorities responsible for taxes and benefits have, in consultation with the relevant national ombudsman, adopted policies to ensure that overpayments that result from official mistakes are not recovered unless it is fair and reasonable to do so(5). In this respect, exceptional circumstances such as bereavement may be accepted by those authorities as a reasonable explanation for a beneficiary not checking the correctness of the payments received into bank accounts(6).

In the light of the above, the Ombudsman took the view that the principle of fairness required the Commission to take into account: (i) the fact that, even if lawful, the Commission's delay in seeking repayment was unexplained; (ii) the complainant’s explanation that he was not aware of the amounts in the relevant bank account because of his personal circumstances of multiple bereavement at the time; and (iii) that in the present case it is dealing with a person who could suffer hardship as a result of the recovery.

In the above circumstances, the Ombudsman's provisional conclusion was that execution of the recovery order by the Commission would be unfair and oppressive and would thus constitute an instance of maladministration.

The Commission's reply

The Commission reiterated, in summary, the arguments put forward in its opinion to the Ombudsman. It stated, in addition, that in an effort to find a friendly solution to the case, it decided to suspend the recovery procedure and to propose to the complainant a new reimbursement plan in instalments over a period of 24 months, instead of 12 months.

Although it agreed that the overpayment resulted from an error it committed, the Commission took the view that this error could be easily explained. The right of the complainant's father to a pension expired on 1 December 1998. The Commission paid the undue sum in December 1998. December is the month during which the annual adaptation of the pension takes place, which meant that the Commission still had to pay the complainant's father the annual 'adaptation' for the period from July to November 1998. It was therefore required to issue the pension bulletin in December 1998.

In any case, the fact that an error was committed by the Commission did not affect its right to claim back the unduly paid sums. Indeed, it is established case-law that the application of Article 85 of the Staff Regulations presupposes precisely that the administration has committed an error in making the undue payment(7).

During the whole period between 7 August 2003, the date on which the Commission accepted the reimbursement in monthly instalments, and 7 October 2003, the date of the Commission's letter informing the complainant that it considered him in default, there was no reaction from the complainant. It was only on 20 October 2003 that the complainant changed his mind and requested the Commission to exempt him from the obligation to reimburse the amount unduly paid.

The Commission considers that a person who acts in good faith would have taken the initiative to contact it from the moment he acknowledged the provisions of the Staff Regulations in order to inform it of his doubts and to request it to cancel the recovery order. The complainant limited himself to remaining silent and did not respect the reimbursement plan established at his request. The behaviour adopted by the complainant placed him in an irregular situation which precluded him from invoking his good faith and from being released from the obligation to reimburse the sum unduly received.

The Commission may waive recovery of all or part of an established amount receivable only in certain cases under the limited conditions of Article 87 of the rules for implementation of the Financial Regulation(8). The amount receivable in the present case is not such as to move the Commission in this direction, in terms of the cost-efficiency ratio or of the impossibility of recovery.

The Commission recalled that the overpayment was noticed during a financial check and recognised that it would have been desirable that the irregular payment had been noticed earlier. It took the view, however, that the fact that the irregularity was discovered showed that the Commission is equipped with efficient systems of control. The situation of an administrative authority, which is responsible for the payment of thousands of salaries and allowances of all kinds, is not comparable to that of a person who has a personal interest in checking the payments made to him(9).

In any event, the Commission's request for recovery was still well within the limits of Article 85 of the Staff Regulations.

The Commission stated that it could accept that a certain period of time passed between overpayment and the complainant's becoming aware of its irregular nature given that he did not have automatic access to his father's bank statements. It could also understand the difficulties the complainant might have experienced in noticing the overpayment, although from the moment he accepted the assets and liabilities of this succession, he ought to have had access to the bank account of the deceased and must have obtained bank statements retracing the movements of the bank account, including the statements regarding the contested payments.

The Commission recalled, however, that according to the case-law of the Court of First Instance(10), it suffices for the interested party to entertain doubts as to the soundness of a payment, for him to be obliged to approach the administration in order to have it make all the necessary verifications.

The Commission emphasised that, in any event, its recovery order only concerned the sums overpaid, and that it claimed interest from the complainant, in its letter of 7 October 2003, only after the complainant failed to pay the principal amount.

The Commission recalled that, on 7 August 2003, following the complainant's suggestion and considering his personal circumstances, it accepted a reimbursement in monthly payments over 12 months and provided the complainant with a reimbursement plan.

However, considering the Ombudsman's friendly solution proposal, the Commission decided to suspend the recovery procedure and to propose to the complainant, through the Ombudsman, a new reimbursement plan which provides for a reimbursement of EUR 2 005.52 (the principal amount and interest on deferred payment) - in addition to EUR 0.26 for each supplementary day between 1 April 2006 and the day of the first reimbursement - in instalments over a period of 24 months, that is, 23 instalments of EUR 85 and a 24th instalment of EUR 45.52 in addition to the supplementary payments.

The complainant's observations

The complainant, in summary, expressed his disappointment that the Commission maintained its position and stated that he did not accept the Commission's proposal, reiterating his claim that he had not been in a position to acknowledge the overpayment.

The complainant requested the Ombudsman to inform him about (i) his position as regards the Commission's proposal and (ii) the next steps in the procedure.

THE DECISION

1 The allegation of unfairness

1.1 The complainant is the only heir of a former employee of the Commission who died on 8 November 1998. In May 2003, the Commission informed the complainant that, during a financial check, it had noticed that it had unduly paid his father's pension for the month of December 1998. It was, therefore, obliged to recover EUR 1 747.10 from the complainant. After discussing the modality of the recovery, the Commission accepted, in August 2003, that the complainant could make monthly repayments over 12 months. On 7 October 2003, in the absence of any payments from him, the Commission announced that it was ready to initiate recovery proceedings within 15 days. On 20 October 2003, the complainant contested the impending adoption of the recovery order. On 26 April 2004, the Commission informed him that it intended to proceed with the recovery order and, on 14 September 2004, sent him a debit note for a revised total of EUR 1 856.46.

1.2 The complainant alleges that it would be unfair for the Commission to enforce the recovery order. In support of his allegation, the complainant argues, in summary, that: (i) he acted in good faith; (ii) the Commission only asked for repayment four and a half years after the payment was made; (iii) he was not aware of the amounts in the relevant bank account because of tragic circumstances, namely the loss of several members of his family in a short time; and (iv) given his personal circumstances, namely that he is a voluntary worker in an NGO, he has no means to reimburse the sum.

1.3 The Commission argues, in summary: (i) that the old Staff Regulations set no time limit for recovery and that, even if the new Staff Regulations had applied, the recovery would still have been within the five year deadline; (ii) that the complainant could not have been unaware of the overpayment if he had exercised ordinary care; (iii) that he cannot invoke his good faith because he did n ot respect the payment plan established on the basis of his own proposal; and (iv) that the initial debt of EUR 1 747.10 could not be waived because the complainant is not insolvent.

1.4 For the reasons explained above, the Ombudsman proposed a friendly solution to the complainant.

1.5 The Commission maintained that it had acted according to the relevant legal provisions and, "in an effort to find a friendly solution to the case," proposed a new reimbursement plan for the recovery of EUR 2 005.52 in instalments over a period of 24 months. In this regard, the Ombudsman notes that, instead of considering, in accordance with the Ombudsman's friendly solution proposal, whether it would be fair and reasonable to cancel, or meaningfully reduce, the recovery order, it, in fact, increased the amount it claimed from the complainant, by adding further interest payments.

1.6 T he Ombudsman also notes that, in its reply to his friendly solution proposal, the Commission advanced, mainly, that (i) the fact that the complainant had remained silent and did not respect the reimbursement plan during the period between the date on which the Commission accepted reimbursement through monthly instalments and his letter of 20 October 2003, placed him in an irregular situation which precluded him from invoking his good faith and from being released from the obligation to reimburse the unduly received sum; (ii) the Commission may waive recovery only in certain cases under the limited conditions of Article 87 of the rules for implementation of the Financial Regulation; (iii) according to the White case-law(11), the situation of an administrative authority, which is responsible for the payment of thousands of salaries and allowances of all kinds, is not comparable to that of a person who has a personal interest in checking the payments made to him; and (iv) the Jensen case-law(12) provides that a recipient must, in cases where there are doubts a bout the soundness of a payment made to him, approach the administration in order to allow it to make all the necessary verifications.

1.7 The Ombudsman notes that the Commission interprets the complainant's inaction and/or silence as contrary to the requirements of good faith. The Ombudsman cannot accept this interpretation of the facts. The Ombudsman is of the view that the Commission could only validly call into question the good faith of the complainant if his initial agreement to repay the amount unduly paid to his father's estate in December 1998 constituted an indication that he had been aware that this payment had been made in error. However, it appears to be clear from the facts as communicated to the Ombudsman that, rather than resulting from an acceptance that he was aware (or should have been aware) that the payment had been unduly made, the complainant's original acquiescence to the request from the Commission resulted from his lack of awareness that an exception existed in Article 85 of the Staff Regulations which invalidates the authority's right to recover sums unduly paid (this exception concerned cases where the recipient was either not aware that there was no due reason for the payment or the fact of the overpayment was not patently such that he could not have been unaware of it). The Ombudsman does not, therefore, consider the complainant's initial acquiescence to the requests of the Commission to constitute a sufficient indication that he knew that the payment to his father's estate was unduly made. At the very most, the initial position taken by the complainant, whereby he agreed to effect repayments in instalments, can be used to counter his subsequent arguments that he was unable to pay. Once the complainant became aware of the exception in Article 85 of the Staff Regulations, he raised the issue of his lack of awareness of the undue nature of the payment with the Commission. The complainant's silence from August 2003 until 20 October 2003, when he contested the recovery procedures, can therefore reasonably be interpreted as having been necessary for the complainant to evaluate his position and, in particular, to inform himself of the content and nature of the Staff Regulations.

1.8 The Ombudsman further points out that, in any case, it appears that there is no divergence between the Commission's understanding of good faith and the complainant's behaviour. The Commission understands that "a person that acts in good faith would have taken the initiative to contact it, from the moment he acknowledged the provisions of the Staff Regulations, and informed it of his doubts and requested it to renounce the recovery."(13) The complainant's behaviour appears to comply with this interpretation since, on the basis of the evidence available to the Ombudsman and as recognised by the Commission, it was precisely in his letter of 20 October 2003 that the complainant referred to Article 85 of the Staff Regulations.

1.9 The Commission argues that the complainant should have had access to the details of his father's bank account, and could therefore be aware that payments had been made in December 1998. However, the Ombudsman notes that it is not sufficient to argue that the complainant was aware that a payment was made in December 1998; it is also necessary to show that the complainant's unawareness that the payment was 'undue' is not plausible. In this respect, the Ombudsman notes that, in its reply to his Friendly Solution proposal, the Commission stated that December is the month during which the annual adaptation of the pension takes place, which meant that the Commission still had to pay to the estate of the complainant's father the annual 'adaptation' of his father's pension corresponding to the period from July to November 1998. It is the Ombudsman's understanding that the amount unduly paid in December 1998 took place, therefore, in the context of other payments which were duly paid. Given that the Commission admits that certain payments were due to his father even after his death, the Ombudsman takes the view that the mere fact that the complainant may have known that a payment was made in December 1998, that is, after the death of his father, is not sufficient to make it 'patently' such that the complainant could not have been unaware of the undue nature of that payment. Indeed, the Ombudsman finds it incongruous that the Commission can state that its error in making the undue payment in December 1998 "can be easily explained" on the basis of the fact that multiple payments were made at this time, whilst at the same time arguing that the complainant could, solely as a result of his knowledge of the existence of the (multiple) payments, be aware that one of these payments was unduly made.

1.10 The Ombudsman furthermore takes note of paragraph 38 of Case T-107/92 White(14) and paragraph 63 of Case T-156/96 Jensen(15) and recalls that, unlike the situation in these two cases, the Commission is dealing, in the present case, with a person who is neither a "servant" nor an "official" and who, as the Commission has itself accepted in its reply to the Ombudsman's friendly solution proposal, experienced difficulties in becoming aware of the undue nature of the payment. While the quoted case-law requires that officials and servants have a special responsibility as regards payments made to them, persons who are neither servants nor officials cannot be presumed to have such a special responsibility.

1.11 The Ombudsman, finally, notes that the Commission takes the view that the amount due by the complainant, is not such as to justify waiving the recovery. In this respect, the Commission refers to Article 87 of the rules for implementation of the Financial Regulation(16). In particular, the Commission refers to cost-efficiency ratios and the impossibility of recovery(17). The Ombudsman understands that these statements are a reference to Article 87, paragraph 1, points (a) and (b) of the rules for implementation of the Financial Regulation, which state that recovery can be waived where: (i) the foreseeable cost of recovery would exceed the amount to be recovered and the waiver would not harm the Community image; and (ii) the amount receivable cannot be recovered in view of its age or the insolvency of the debtor. The Ombudsman, however, notes that the above-mentioned Article also refers (in point (c) of paragraph 1 and in paragraph 2) to cases where recovery can be waived where it is inconsistent with the principle of proportionality. The Ombudsman therefore takes the view that the Commission's explanation, as set out in the opinion it sent to the Ombudsman, does not take proper account of all the possibilities for waiving the recovery of a sum unduly paid.

1.12 In light of the above, the Ombudsman considers that the Commission's counterproposal to suspend the recovery procedure and to offer the complainant a reimbursement plan for an increased amount of EUR 2 005.52 in instalments over a period of 24 months, is unfair and oppressive. Indeed, given that it now appears, from the information submitted by the Commission in its reply to the Ombudsman's proposal for a friendly solution, that multiple payments were made to the estate of the complainant's father in December 1998, and that certain of these were duly paid, whereas others were not duly paid, it cannot be argued that the undue nature of the payment was 'patently' such that the complainant could not have been unaware of the undue nature of that payment . In light of this new evidence, it is no longer appropriate for the Commission to reduce the amount which it intends to recover from the complainant. The Ombudsman takes, therefore, the view that the Commission should consider whether it would be in accordance with the applicable rules, in addition to being fair and reasonable, to cancel the recovery of the overpayment, and that its failure to do so would be an instance of maladministration.

2 Conclusion

In view of the above, the Ombudsman puts the following draft recommendation to the Commission, in accordance with Article 3(6) of the Statute of the Ombudsman:

In the view of the exceptional circumstances of the case, the Commission should consider whether it would be in accordance with the applicable rules, in addition to being fair and reasonable, to cancel the recovery of the overpayment.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 31 May 2007. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of the measures taken to implement it.

Strasbourg, 2 April 2007

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) Case T-107/92 White v Commission [1994] ECR-SC I-A-41 and II-143, paragraph 32.

(3) See Case 252/78 Broe v Commission [1979] ECR 2393; Case 310/87 Stempels v Commission [1989] ECR 43; Case 235/83 Mulligan v Commission [1984] ECR 3379, paragraph 4; Case T-107/92 White v Commission, cited above, paragraph 33; Case T-92/94 Maslias v Parliament [1996] ECR-SC I-A-249 and II-713; and Case T-14/99 Kraus v Commission [2001] ECR-SC I-A-7 and II-39.

(4) Case T-107/92 White v Commission, cited above, paragraphs 38 and 39.

(5) See, for example, point 10 of the Letter from HM Treasury dated 29 July 2005 to the UK Parliamentary and Health Service Ombudsman, available on her website (http://www.ombudsman.org.uk/improving_services/special_reports/pca/taxcredits05/tax_hmt_letter.html).

(6) See pages 3 and 6 of "What happens if we have paid you too much tax credit?", HM Revenue & Customs, Code of practice, COP26, available on the website of HM Treasury (http://www.hmrc.gov.uk/leaflets/cop26.pdf).

(7) Case T-38/93 Stahlschmidt v Parliament [1994] ECR-SC I-A-65 and II-227, paragraphs 20 - 23.

(8) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357).

(9) Case T-107/92 White v Commission [1994] ECR-SC I-A-41 and II-143, paragraphs 38 and 39.

(10) Case T-156/96 Jensen v Commission [1998] ECR-SC I-A -411and II-1173, paragraph 63.

(11) Case T-107/92 White v Commission [1994] ECR-SC I-A-41 and II-143, paragraphs 38 and 39.

(12) Case T-156/96 Jensen v Commission [1998] ECR-SC I-A -411and II-1173, paragraph 63.

(13) In the original French: "La Commission considère qu'une personne qui agit "en tout bonne foi", comme le plaignant affirme l'avoir fait, aurait pris l'initiative de contacter la Commission dès qu'elle aurait eu connaissance des dispositions du statut pour lui faire part de ses doutes et lui demander de renoncer à la dette."

(14) "The situation of an administrative authority, which is responsible for the payment of thousands of salaries and allowances of all kinds, cannot be comparable to that of an official who has a personal interest in checking the payments made to him each month."

(15) "Not only is the [recipient] not exempted from making any effort to give consideration to and check payments made to him, he is required to make repayment immediately an error is made which would not escape a normally diligent servant or official who is deemed to know the rules governing his pay."

(16) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 of the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357).

(17) In the original French: "[l]a créance dont il est question ne présente pas les caractéristiques susceptibles de motiver la Commission dans ce sens, en termes de rapport coût-efficacité ou d'impossibilité du recouvrement."