The complaint

1. This complaint is about the alleged failure of the European Personnel Selection Office (EPSO) to reimburse fully the complainant's expenses in connection to his participation in open competitions.

2. The complainant participated in two open competitions[1] organised by EPSO in 2009. The complainant was invited to Brussels, Belgium, sit the written tests in the first competition on 20 November 2009, and to take the oral test in the second competition on 26 November 2009. In view of the proximity of the test dates in the two competitions, the complainant asked EPSO, by e-mail of 4 November 2009, whether he would be entitled to a subsistence allowance for the period of 20 - 26 November 2009 if he stayed in Brussels, rather than returning to his place of residence. EPSO replied to the complainant that, on the basis of the Rules on the reimbursement of travel and subsistence expenses[2] ('the Rules'), this was possible on condition the complainant would travel to Brussels once and would present the relevant supporting documents concerning his (travel and accommodation) expenses.

3. After having sat the two tests in Brussels, the complainant submitted his claim for the reimbursement of his expenses. However, EPSO reimbursed the complainant EUR 200 less than what he had claimed. Further to EPSO's refusal to reimburse fully his claim for reimbursement, the complainant exchanged several e-mails with EPSO about how the relevant provisions of the Rules should be interpreted and applied.

4. The complainant, however, could not resolve the issue with EPSO, and therefore turned to the Ombudsman with the present complaint. He alleged that EPSO failed to reimburse fully his expenses in connection to his participation in the open competitions. He claimed that EPSO should reimburse fully his expenses.

The Ombudsman's assessment and conclusions

Admissibility of the complaint

5. After a careful examination of the complaint, all the admissibility conditions are met as regards the complainant's allegation and claim against EPSO. The complaint is therefore admissible.

Grounds for investigation

6. In accordance with Article 228 of the Treaty on the Functioning of the European Union, the Ombudsman must consider whether there are sufficient grounds to open an inquiry into the allegation and claim submitted by the complainant.

7. On the basis of a preliminary analysis of the information submitted to him, the Ombudsman found that EPSO had already addressed the complainant's concern and provided him with an appropriate and sufficiently detailed explanation as regards why it considers that it had fully reimbursed the expenses that he was entitled to. Therefore, by letter of 7 May 2012, the Ombudsman asked the complainant to clarify, by 30 June 2012, the reasons why he alleges that EPSO failed to reimburse fully his expenses.

8. However, the Ombudsman also found during his preliminary analysis that the title and certain provisions of the Rules use different terminology[3]. By letter of 7 May 2012, the Ombudsman also, for information, wrote to the Director of EPSO asking him to consider improving the wording of the Rules.

9. By e-mail of 18 May 2012, the complainant submitted his comments and observations.

10. The Ombudsman will analyse below the complainant's allegation and claim on the basis of the information made available to him.

A. The allegation that EPSO failed to reimburse fully the complainant's expenses

Elements considered by the Ombudsman

11. In November 2009, the complainant participated in Open Competition EPSO/AD/147/09-RO and in Open Competition EPSO/AST/50/08-EU12. He was scheduled to sit the written test in the first competition on 20 November 2009, and to take the oral test in the second competition on 26 November 2009.

12. On 4 November 2009, he sent the following e-mail to EPSO:

"Due to the proximity of [the test dates in the two competitions], and the great distance I have to travel in order to attend the tests, I am writing to inquire whether I am eligible for subsistence allowance for the period 20-26 Nov [2009] since I shall not be able to travel twice to Brussels."

13. On 10 November 2009, EPSO replied as follows:

"The more advantageous rules on reimbursement of travel and subsistence expenses for oral tests allow EPSO to pay, under certain circumstances, an accommodation allowance of € 100 per night with a maximum of € 400 (Article 5.6). On condition that you would only travel once to Brussels and upon presentation of supporting documents, EPSO could apply these rules in your case. You would need to claim the expenses (travel and accommodation) in the EPSO/AST/50/08-EU12 competition alone. No claim can be introduced in the other competition."

14. The complainant then travelled to Brussels and spent seven nights there to attend both competitions. He then duly submitted the relevant form to claim travel, accommodation and subsistence expenses. This amounted to EUR 856.

15. On 19 February 2010, EPSO reimbursed EUR 656 to the complainant (EUR 456 for his train ticket and EUR 200 for his accommodation cost on the basis of the hotel bill presented by the complainant).

16. On 21 February 2010, the complainant complained to EPSO that the amount he received was EUR 200 less than what he had actually claimed.

17. This was followed by an extensive correspondence between the complainant and EPSO in which both parties gave their own interpretation of the Rules. On 29 March 2012, EPSO provided the complainant with its 'final' reply, explaining in detail its position as regards this matter. EPSO added that it reserved the right to discontinue further correspondence with the complainant on the same issue.

18. In his complaint to the Ombudsman, the complainant explained that, further to the information received by EPSO in its e-mail of 10 November 2009, he had chosen a cheap hotel in Brussels in order not to exceed the EUR 400 limit and also to save money to be able to cover his subsistence expenses (such as food and water). He pointed out that Article 5 of the Rules bears the title "Subsistence allowance", which by definition includes not only accommodation but also living expenses (such as food and water). In his view, EPSO wrongly interpreted the Rules when it only reimbursed his actual hotel bill (and his train ticket), instead of reimbursing him the maximum amount payable (EUR 400).

19. Further to the Ombudsman's request for clarification as regards why the complainant alleged that EPSO failed to reimburse fully his expenses, the complainant submitted the following. There are, he argued, two major concerns with the current practice EPSO uses concerning the reimbursement of travel expenses. First, the wording of the Rules is poor, as it was also acknowledged by the Ombudsman in his letter asking for clarifications. This manifest in such "nonsensical" situations that Article 5(4) refers to the "daily allowance in paragraph 5(1)" when there is no mention of "daily allowance" in that paragraph at all.

20. Second, EPSO's interpretation of the Rules is incorrect. In the complainant's view, the intention of the drafters of the Rules was clearly to provide for a flat-rate contribution for the number of nights spent at the place of the competition. This is evident from the wording of Article 5 of the Rules, which provides that candidates shall "receive an accommodation allowance of EUR 100 for each night spent at the place of the venue". In this context, the Rules clearly distinguish between the reimbursement of the price of the ticket (rail or air) and of the flat-rate allowance for accommodation. The last sentence of Article 5(3), requiring that the accommodation allowance "shall be paid upon presentation of supporting documents, in the form of a hotel bill", is not "to define the contribution paid …[but] the standard of proof that is required of the candidate". The contribution is, in fact, defined in a previous sentence of the same paragraph (Article 5(3)). Consequently, candidates are only required by the Rules to prove the number of nights spent at the place of the competition, and not the actual hotel cost per night.

The Ombudsman's assessment

21. The Ombudsman first notes that this issue is governed by Article 5 (Subsistence allowance) of the Rules, which states that:

"1. Where the distance between the place of residence and the place where the competition is held is equal to or less than 50 km, no contribution to subsistence expenses shall be made.

2. Where the distance between the place of residence and the place where the competition is held is more than 50 km but less than 150 km, a flat-rate contribution of 25€ shall be made.

3. An accommodation allowance of EUR 100 per night shall be granted if the place of residence is more than 150 km from the venue. The allowance shall be granted if the person concerned is obliged to spend one or more nights at the venue because of incompatibility between the times given on the invitation letter and the transport available. It shall be paid upon presentation of documents, in the form of a hotel bill.

4. However, if the person concerned is paid an accommodation allowance in respect of one or several nights, he shall not be entitled to the daily allowance mentioned in paragraph 1.

5. Where the person concerned fulfils the conditions to receive reimbursement of a return flight, and where an extension of the stay is necessary in order to obtain an air ticket at the most economical rate, then that person shall be reimbursed for the price of the ticket upon presentation of that ticket, and shall also receive an accommodation allowance of EUR 100 for each night spent at the place of the venue, provided that the total amount to be paid by the institution remains less than the sum of the normal price of a return air ticket at the full economy fare and the accommodation allowance (or daily allowance) to which the person concerned would normally be entitled.

6. The total amount of the accommodation allowance paid to the invitee may not exceed EUR 400."

22. The Ombudsman also notes that the complainant, who lives in Vienna, Austria, is entitled, on the basis of Article 5(3) of the Rules, to an accommodation allowance. The dispute centres on whether the Rules provide for a flat-rate accommodation allowance of EUR 100 per night spent at the place of the competition, as argued by the complainant, or for the reimbursement of only the actual accommodation costs occurred, proven by a relevant hotel bill, up to a maximum of EUR 100 per night, as argued by EPSO.

23. Article 1 of the Rules provides that "a contribution to the travel and subsistence expenses of persons invited to the oral tests shall be made by EPSO." (Emphasis added). This wording clearly implies that not all expenses will be covered. The Ombudsman notes that this was conformed by additional information, provided by EPSO to the complainant in its letter of 29 March 2010, where EPSO stated that the Rules "originate from a concern to help candidates to partially cover their travel and subsistence expenses ..."

24. The Rules contain provisions on (i) "travel expenses" (Articles 2-4), and (ii) a "subsistence allowance" (Articles 5 and 6). The Ombudsman notes that the Rules do not define the notion of "travel expenses" or "subsistence allowance".

25. The complainant argues that the Rules clearly distinguish between the reimbursement of the price of the ticket (plain or train) and of the flat-rate allowance for accommodation. However, the Ombudsman points out that the Rules mention "flat-rate contribution" only in one occasion, namely, Article 5(2), which provides that a flat-rate contribution of EUR 25 shall be paid to a candidate taking part in an open competition in case the distance between the candidate's place of residence and the place of the venue is greater than 50 km but is less than 150 km. The Ombudsman considers that if the intention behind the Rules had been that the accommodation allowance, within the meaning of Article 5(3), is paid on a flat-rate basis, this would have been specifically mentioned in the Rules, as is the case with flat-rate contribution mentioned in Article 5(2). For the same reason, the Ombudsman does not agree with the complainant's argument that the hotel bill only serves the purpose of proving the number of nights spent at the place of the competition. It is clearly required to prove the actual accommodation costs incurred by a candidate taking part in an open competition.

26. The Ombudsman finds the explanations by EPSO to be coherent and reasonable, and in line with the relevant provisions of the Rules. Therefore, the Ombudsman confirms his preliminary analysis (see paragraph 7 above) that EPSO had already addressed the complainant's concern and provided him with an appropriate and sufficiently detailed explanation as regards why it considers that it had fully reimbursed the expenses that he was entitled to.

27. In light of the above, the Ombudsman finds that there are insufficient grounds (Article 228 of the TFEU) to continue the inquiry into the present complaint and, in particular, that it is unnecessary to ask EPSO to give an opinion on the complaint.

B. Conclusion

On the basis of Article 228 of the Treaty on the Functioning of the European Union, the Ombudsman makes the following conclusion:

There are insufficient grounds to continue the inquiry into this complaint.

He therefore closes the case.

The Director of EPSO will be sent an anonymised version of this decision for information.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 26 June 2012

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[1] Open Competition EPSO/AD/147/09-RO and Open Competition EPSO/AST/50/08-EU12.

[2] Rules on the reimbursement of travel and subsistence expenses for persons invited to take part in oral tests as part of a competition or selection tests for temporary agents organised by EPSO, available at: http://europa.eu/epso/doc/epso_oraux_en.pdf

[3] In particular, Article 5 (Subsistence allowance) of the Rules contains references to "subsistence allowance", "subsistence expenses", "accommodation allowance" and also "daily allowance".