Strasbourg, 10 April 2007

Dear Mr X,

On 1 July 2005, you submitted a complaint to the European Ombudsman against the European Parliament concerning the application of Article 2(1) of the Rules Governing the Payment of Travel Expenses and Allowances to Members ("EAM").

On 26 July 2005, I forwarded the complaint to the President of Parliament. Parliament sent its opinion regarding your original complaint on 19 October 2005. Moreover, as you had sent a further submission on 3 August 2005 which had been forwarded to Parliament on 26 September 2005, Parliament sent an additional opinion on your further submission on 17 November 2005. On 12 December 2005, I forwarded both opinions to you with an invitation to make observations, which you sent on 16 January 2006.

I apologise for the length of time it has taken to complete my inquiry into your complaint.

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

THE COMPLAINT

The original complaint

The complainant was a Member of the European Parliament from 1999 to 2004. On 12 July 1999, the complainant declared in his personal information form to Parliament his address A as his place of residence, pursuant to Article 2(1) of the Rules Governing the Payment of Expenses and Allowances to Members ("EAM")(1). According to the complainant, the same day he crossed out this address and sent a modified declaration registering his address B as his place of residence.

During the Election of 2004, a local newspaper alleged that the complainant's address B did not exist. The competent authority investigated the matter and found that the complainant's address was in order. On 24 March 2004, the complainant declared to Parliament address A as his place of residence pursuant to Article 2(1) EAM. On 5 April 2004, he made a payment of EUR 10 547.50 to Parliament's Travel Office in order to avoid further media publicity. The complainant presumed that after the Election 2004 he could reclaim this amount. A further sum of EUR 1 850 was withheld from the complainant by Parliament's Directorate-General for Finance.

On 23 May 2004, the complainant made a public statement. In his statement the complainant explained that:

"On my election to the European Parliament in September 1999, I was offered a[n] [electoral] postal address with the use of accommodation at a complex of holiday [homes] in [W]. (...) At my address [B] at [W], there are [a number of houses] - not [74] - arranged in [7] blocks (...). The [house] numbered [74] is [a house] in block [7]. There is no No.[75] (...). The No.[75] was allocated to me to ensure that my mail was delivered to the office and not to any of the numbered [houses]. For five years, all my mail has been received without any difficulty at this address. I have stayed in the [houses] whenever convenient as well as in [R] at the house of the owner of the [houses]. Although I am in the [electoral district] every weekend (...) I have never claimed that (...) address [B] is my 'permanent home'. I have always maintained that my family home is in [H - place of address A] and my supporters and constituents have known this. I have declared both my [B] and [A] addresses to the European Parliament."

Parliament's Authorising Officer by delegation opened an investigation and conducted two hearings with the complainant on 6 and 14 July 2004. In the context of these hearings, on 14 July 2004, the complainant provided a certificate from Mr Y. declaring that

"(...) during the period beginning in September 1999 and ending in May of this year as the guest of myself and my wife (...) [the complainant] had the use of premises(...) [at address B] belonging to a Company owned by my wife and her family. He used these premises as his [local electoral] office and did so for 'free gratis and for nothing'. (...) whenever he came to [our area] (which was frequently) he lived at our home [in address C]. Indeed he is registered as living at this address on [the local] Parliamentary Electoral Roll."

Address C had not been declared to Parliament.

Following the hearings, and after consulting the Legal Service, the Authorising Officer by delegation concluded:

1. that the complainant's declaration of address B was not a valid declaration under Article 2(1) EAM;
2. that the complainant's declaration of address A was a valid declaration under Article 2(1) EAM and that this address should be used for the purposes of calculating his travel expenses from the beginning of his term of office in July 1999;
3. that the sum of EUR 40 368.06 had been unduly paid, that the complainant had repaid EUR 10 547.50 of that sum, and that the amount outstanding, that is, EUR 29 820.56, should be recovered.

On 27 September 2004, the Secretary-General stated that, after consulting the Quaestors on 15 September 2004, he endorsed the above findings of the Authorising Officer by delegation and decided that, pursuant to Article 27(3) EAM(2), payment of the last instalment due to the complainant's general expenditure allowance would be withheld.

By letter of 29 September 2004, the complainant questioned the findings and the amount to be reimbursed. In this context, the complainant pointed to his inclusion in the electoral register of R (place of address C). On 22 January 2005, he gave the information that Mrs Y. had for the first time submitted his name for inclusion in this register in 2002. The complainant also provided copies of the electoral register for 2003 and 2004 bearing his name, together with the names of Mr and Mrs Y., at address C.

On 24 May 2005, after having received from the complainant the additional submissions concerning his inclusion in the electoral register of R, which was in force from 1 December 2002, the Secretary-General reported to the Quaestors. The Secretary-General found that these additional submissions did not provide conclusive evidence that the complainant had resided in R between July 1999 and March 2004. The Secretary-General proposed, nevertheless, that the additional submissions, while not constituting conclusive proof of residence, be taken into account for the purposes of calculating the complainant's travel expenses for the period between December 2002 and March 2004. At their meeting of 24 May 2005, the Quaestors endorsed the Secretary-General's findings and proposal. On 7 and 9 June 2005, the Authorising Officer by delegation informed the complainant of the Quaestors' decision.

The Authorising Officer by delegation, therefore, sought to recover only the sums unduly paid to the complainant during the period between July 1999 and December 2002. The total amount recoverable for the period July 1999-November 2002 was EUR 29 112.94 of which the complainant had already paid EUR 12 397.50. The outstanding total of the sums unduly paid was thus EUR 16 715.44.

In his complaint to the Ombudsman, the complainant alleged avoidable delay by Parliament in confirming its decision on the matter of his place of residence, in relation to the application of Article 2(1) of the Rules Governing the Payment of Expenses and Allowances to Members. Moreover, the complainant claimed that:

1. Parliament should immediately reimburse him EUR 12 397.50; and
2. The Secretary-General of Parliament should provide him with a written confirmation that he was not in breach of Article 2(1) EAM.

Further developments
Decision of the Secretary-General of 25 July 2005

On 3 August 2005, the complainant informed the Ombudsman that he had received a decision dated 25 July 2005 and adopted by the Secretary-General pursuant to Article 27(3) EAM, concerning the recovery of the above-mentioned outstanding sum of EUR 16 715.44. This decision was based on the following considerations:

"19. In the absence of a stipulation by [the complainant] as to the date on which his declaration of 24 March 2004 takes effect the declaration of (...) address [A] is to be effective from the date of [the complainant]'s letter, i.e. 24 March 2004.

20. [The complainant]'s application to annul his declaration of 24 March 2004 may not be accepted as it is constant practice that declarations concerning a place of residence may not have retroactive effect.

21. It is common ground that [the complainant] did in fact reside at his home in [H] throughout the entire duration of his term of office from July 1999 to July 2004.

22. The documentation [the complainant] submitted demonstrated that he was at times present in and around parts of the [E] electoral [area] of [his Member State] but does not make it possible to establish whether he actually resided at the [C] or [B] addresses.

23. The general expenditure allowance provided for in Article 13 EAM is intended to cover, inter alia, travel and ancillary expenses incurred within the Member State of election. This allowance is paid as a monthly lump sum at the rate fixed by the Bureau. Expenses incurred by [the complainant] for travel within [the Member State] were therefore covered by the general expenditure allowance.

24. The travel allowance provided for in Article 1(1) EAM is intended to reimburse travel expenses incurred for the purpose of attending meetings of the official bodies of the European Parliament. Members are also entitled, under Article 5 EAM, to the reimbursement of travel expenses arising from a visit to a Community institution (including Parliament) in Brussels, Luxembourg or Strasbourg made in connection with their duties, on the basis of the travel allowance referred to in Article 1(1). Members are required, under 2(1) EAM, to declare their place of residence to the relevant department of Parliament for the purposes of calculating the lump sum travel allowance referred to in Articles 1(1) and 5 EAM. This travel allowance it intended only to refund expenses which the Parliament has deemed necessary or useful for the performance of a Member's duties, and is not in any way a form of disguised remuneration(3).

25. In this context, the ordinary meaning of the words "place of residence", as used in Article 2(1) EAM, implies that the Member must declare the place where he or she has a home and actually lives on a stable basis.

26. After consulting the Legal Service, an office address, a post-office box, a non-existent address or an address at which the Member has never resided may not be declared as places of residence, within the meaning of Article 2(1) EAM.

7. '[house 75]' does not actually exist and so cannot validly be declared as a place of residence within the meaning of Article 2(1) EAM.

28. In any event, the buildings at '(...)[ house]' form a complex of holiday [houses] owned and run by a company as a commercial venture. An open invitation to use such premises for free, as an office where mail and phone calls can be received or as a place where a Member can stay occasionally, cannot be accepted as a valid basis for a declaration of a place of residence within the meaning of Article 2(1) EAM.

29. [The complainant] never declared to the European Parliament, during his term of office, that (...) address [C] was his place of residence within the meaning of Article 2(1) EAM.

30. [The complainant] has no utility bills or rent receipts attesting to his residence at (...) address [C]. He was merely given an open invitation to stay as a guest with the married couple, [Mr and Mrs Y.], whose own home [was] at this address.

31. However, the undeclared address [C] is in close proximity to the (invalidly) declared address[B] and its acceptance, for the purpose of calculating travel expenses to which [the complainant] may possibly have been entitled to [sic], would not have any impact on the European Parliament's budget. This being so, the documents [the complainant] submitted concerning his inclusion on the electoral register for R in force from 1 December 2002, while not constituting conclusive proof of residence, could be taken into account for the purposes of calculating the travel expenses which [the complainant] should have been paid for the period between December 2002 and March 2004."

On the basis of the above, the Secretary-General decided:

"1. To confirm that the declaration made in July 1999 of an address at '[house 75 at address B], is not a valid declaration under Article 2(1) EAM.

2. To confirm that the declaration made on 24 March 2004 of an address [A] is a valid declaration under Article 2(1) EAM which is to be used for the purposes of calculating the travel allowance referred to in Article 1(1) EAM due from 24 March 2004 until the end of [the complainant]'s term of office.

3. In the absence of a valid declaration made by [the complainant] as to his place of residence for the period between July 1999 and 23 March 2004, the travel allowance referred to in Article 1(1) EAM is to be calculated by reference to:

i) [The complainant]'s home address [A] for the period running from the beginning of his term of office in July 1999 to 30 November 2002, inclusive,

ii) an address [C] for the period between 1 December 2002 and 23 March 2004.

4. After deducting the sum of € 10,547.50 which [the complainant] has already repaid as well as the sum of € 1,850 (final instalment of [the complainant]'s general expenditure allowance), the outstanding total of the sums unduly paid which remain to be recovered from [the complainant] is €16,715.44. (...)" (emphasis in orginal).

The complainant's letter of 3 August 2005

After having received the Secretary-General's decision of 25 July 2005, the complainant made further submissions on 3 and 5 August 2005 which were forwarded to Parliament to be taken into account in its opinion. The complainant commented on certain passages from the Secretary-General's decision of 25 July 2005 and made a number of arguments in support of his positions(4). He also produced a statement, dated 2 August 2005, made by Mrs Y.:

"When [the complainant] was elected in July 1999 as the (...) Party MEP for [E, his electoral district], I offered him the use of (...)[houses at address B] as his official and permanent [electoral] address - No.[75] was allocated to him by me purely for administrative reasons as [address B] is a commercial complex of [a number of houses]. I offered him the facility for processing his mail/phones as well as having a permanent place of residence, whenever he required for the whole period from July 1999-July 2004. In view of our friendship with [the complainant] and the fact that as an MEP he did not require accommodation except at weekends, I chose not to charge [the complainant] for these services.

During the Parliamentary sessions in Brussels/Strasbourg, [the complainant] was away each week in Europe from Monday to Thursday inclusive which left only weekends during the 10 month/annum Parliamentary calendar. As we are away from our home [in R] for several months over winter, I extended my offer to [the complainant] and invited him to have unrestricted and permanent access to and use of a suite of rooms in our home as his place of residence in addition to [address B].

[The complainant] accepted this and found it increasingly convenient to stay in our home in preference to [address B]. However, he continued to use [address B] as his official address for his [electoral] work in order to maintain our privacy in the use of our home.

Allegations have been made by the media and others that [the complainant] did not have a residence in [address B]. This is not true. As the owner of (...) [the houses], I can confirm that [the complainant] had a place of residence available to him in [address B] as well as in our home for his unrestricted and permanent use for the period July 1999 to July 2004."

THE INQUIRY

Parliament's opinion on the complaint

Parliament stressed that its substantive position on the merits of the case were to be found in the Secretary-General's decision of 25 July 2005, which was presented above under the title "THE COMPLAINT - Further developments".

Parliament presented the following account of its dealing with the complainant's case.

1. The Authorising Officer by delegation opened his investigation after Parliament had received a letter on 18 May 2004 from the chairman of the competent Candidates authority in the Member State and following publication by the complainant of a statement, in May 2004.
2. On 22 June 2004, the complainant and the Secretary-General met. On 6 and 14 July 2004, the complainant was heard by the Authorising Officer by delegation. In connection with the hearings with the Authorising Officer by delegation, the complainant introduced various documents in support of his argument that he had been frequently present in his electoral district and, in particular, in area M. Shortly after the second hearing on 14 July 2004, he introduced a statement to the effect that he had, when in M, stayed at an address other than the one he had declared to Parliament pursuant to Article 2(1) EAM. The statement did not, however, provide any information concerning the date on which the complainant first stayed at the other address.
3. After consulting the Legal Service of Parliament, the Authorising Officer by delegation submitted his findings to the Secretary-General who consulted the Quaestors on 15 September 2004. By letter of 27 September 2004, the Secretary-General informed the complainant, pursuant to Article 27(3) EAM, that he owed Parliament EUR 27 970.56 which he was requested to pay before 31 October 2004.
4. The complainant challenged this decision by letter of 29 September 2004. On 16 November 2004, the Secretary-General proposed to the complainant that he be heard again by the Authorising Officer by delegation. The third hearing of the complainant by the Authorising Officer took place on 24 November 2004.
5. By letter of 16 December 2004, the Authorising Officer by delegation invited the complainant to submit documentary evidence of his inclusion in the electoral register of R for the period 1999-2004. By letter of 20 December 2004, the complainant informed the Authorising Officer of the years in respect of which his name had appeared on the electoral register, but did not provide the documentary evidence requested.
6. By letter of 11 January 2005, the Authorising Officer reminded the complainant of the need to provide documentary evidence of his inclusion in the electoral register of R. The Authorising Officer also invited the complainant to indicate more precisely when he had first stayed at the address concerned. By letter of 22 January 2005, the complainant forwarded the documentary evidence concerning inclusion in the electoral register but did not reply to the second request for a more precise indication of dates of residence. In the same letter, the complainant listed the documents he requested to be submitted to the Quaestors.
7. After due consideration of the additional submissions made by the complainant, the Secretary-General re-consulted the Quaestors. All documentation as requested by the complainant in his letter of 22 January 2005 was also submitted to the Quaestors. The item was placed on the agenda of the Quaestors' meeting of 19 April 2005 but was postponed for internal procedural reasons for the following meeting of 11 May 2005. On 11 May 2005, as a result of an important debate taking place in the plenary, the President of Parliament ordered that all meetings of other bodies be cancelled. The Quaestors' meeting was therefore held at the next available date, namely, 25 May 2005. On both occasions the complainant was informed of the reasons for the postponement.
8. After the Quaestors had reconsidered the complainant's case on 25 May 2005, the Authorising Officer by delegation informed the complainant by letters of 7 and 9 June 2005 of their findings. The Quaestors took due note of the documentary evidence the complainant had provided concerning his inclusion in the electoral register. The Quaestors, while noting that inclusion in the electoral register did not constitute conclusive proof of residence, approved a proposal by the Secretary-General to take these documents into account for the purposes of calculating the travel expenses which should have been paid for the period of validity of the electoral register. The complainant was provided with a detailed breakdown of the reduced amount he was requested to reimburse as a result, that is, EUR 16 715.44 instead of EUR 29 820.56. The Authorising Officer by delegation asked the complainant to give his agreement to the recalculation of the amount outstanding, before its submission to the Secretary-General for formal approval.
9. By letter of 10 June 2005, the complainant rejected the proposal. He requested that he be reimbursed, by 30 June 2005, all amounts paid by him or withheld from him, the total of which amounted to EUR 12 397.50. He also requested that Parliament pay him additional travel expenses in respect of the period between 24 March 2004 and the end of his term of office on 19 July 2004. He requested that the Secretary-General confirm to him by letter, by 30 June 2005, that he was not in breach of Article 2(1) EAM.
10. By letter of 23 June 2005, the Authorising Officer by delegation informed the complainant that the Secretary-General was considering the case following his [the complainant's] letter of 10 June 2005 and that the he would be informed of the Secretary-General's decision in due course.
11. By a second letter of 10 June 2005, the complainant made allegations concerning addresses declared by certain Members of Parliament on Parliament's website. He asked that these addresses be investigated and action be taken against these Members, should discrepancies be found.
12. By letter of 18 July 2005, the Secretary-General replied to the complainant that Members were allowed to declare not only a home address but also separate addresses for different mailing purposes. It was for each Member to instruct Parliament which address to place on Parliament's website. He furthermore confirmed that the files of the Members the complainant had named complied with the applicable rules.
13. On 25 July 2005, the Secretary-General sent to the complainant a reasoned decision informing him that a reduced amount of EUR 16 715.44 remained to be recovered, and informing him of his rights of appeal to the Court of First Instance of the European Communities.

With regard to the complainant's claim that Parliament should provide him with a written confirmation that he was not in breach of Article 2(1) EAM, Parliament was unable to provide confirmation that the complainant was not in breach of Article 2(1) EAM. The Secretary-General's decision of 25 July 2005 found that the declaration of address made in July 1999 was not a valid declaration under Article 2(1) EAM and that the outstanding total of the sums unduly paid which remained to be recovered from the complainant was EUR 16 715.44.

With regard to the claim to reimburse the complainant EUR 12 397.50, Parliament was unable to reimburse the amount requested. This amount was made up of EUR 10 547.50, which the complainant reimbursed to Parliament on 4 April 2004, and EUR 1 850, which is the last instalment of the complainant's general expenditure allowance withheld from him in September 2004. The amount of EUR 12 397.50 represented part of the total amount unduly paid to the complainant, that is, EUR 29 112.94, of which EUR 16 715.44 still remained to be recovered.

Parliament also rejected the complainant's allegation about avoidable delay, by providing a detailed account of its handling of the complainant's case.

Parliament concluded that these explanations demonstrated that it afforded the complainant every opportunity to present his case, and carefully considered every submission made to it. Parliament considered that this approach led to a more favourable situation for the complainant inasmuch as the amount to be recovered has been substantially reduced, that is, from EUR 27 970.56 to EUR16 715.44.

Parliament's opinion on the additional submissions made by the complainant

In its additional opinion, Parliament provided further explanations and dealt with the further submissions made by the complainant(5) and with Mrs Y.'s statement of 2 August 2005.

The complainant's observations

In his observations, the complainant maintained his complaint and made a number of remarks in support of his claims(6). The complainant confirmed that his entry in the electoral register for H (place of his address A) was maintained throughout the duration of his mandate at Parliament. He also argued that the applicable rules are ambiguous and open to misinterpretation.

THE DECISION

1 Preliminary remark

1.1 In his further submissions of 5 August 2005, the complainant made certain allegations against a political party in his Member State. These allegations do not concern a possible instance of maladministration in the activities of a Community institution or body and, as such, fall outside the European Ombudsman's mandate. They will thus not be examined in the context of the present decision.

2 Allegation about avoidable delay by Parliament in confirming its decision on the matter of the complainant's place of residence

2.1 The complainant alleged avoidable delay by Parliament in confirming its decision on the matter of his place of residence, in relation to the application of Article 2(1) of the Rules Governing the Payment of Expenses and Allowances to Members. Parliament rejected the above allegation, by providing the following detailed account of its dealing with the complainant's case.

1. The Authorising Officer by delegation opened his investigation after Parliament had received a letter on 18 May 2004 from the chairman of the competent Candidates authority in his Member State and following publication by the complainant of a statement, in May 2004.
2. On 22 June 2004, the complainant and the Secretary-General met. On 6 and 14 July 2004, the complainant was heard by the Authorising Officer by delegation. In connection with the hearings with the Authorising Officer by delegation, the complainant introduced various documents in support of his argument that he had been frequently present in his electoral district and, in particular, in area M. Shortly after the second hearing on 14 July 2004, he introduced a statement to the effect that he had, when in M, stayed at an address other than the one he had declared to Parliament pursuant to Article 2(1) EAM. The statement did not, however, provide any information concerning the date on which the complainant first stayed at the other address.
3. After consulting the Legal Service of Parliament, the Authorising Officer by delegation submitted his findings to the Secretary-General who consulted the Quaestors on 15 September 2004. By letter of 27 September 2004, the Secretary-General informed the complainant, pursuant to Article 27(3) EAM, that he owed Parliament EUR 27 970.56 which he was requested to pay before 31 October 2004.
4. The complainant challenged this decision by letter of 29 September 2004. On 16 November 2004, the Secretary-General proposed to the complainant that he be heard again by the Authorising Officer by delegation. The third hearing of the complainant by the Authorising Officer took place on 24 November 2004.
5. By letter of 16 December 2004, the Authorising Officer by delegation invited the complainant to submit documentary evidence of his inclusion in the electoral register for R, for the period 1999-2004. By letter of 20 December 2004, the complainant informed the Authorising Officer of the years in respect of which his name had appeared on the electoral register, but did not provide the documentary evidence requested.
6. By letter of 11 January 2005, the Authorising Officer reminded the complainant of the need to provide documentary evidence of his inclusion in the electoral register for R. The Authorising Officer also invited the complainant to indicate more precisely when he had first stayed at the address concerned. By letter of 22 January 2005, the complainant forwarded the documentary evidence concerning inclusion in the electoral register but did not reply to the second request for a more precise indication of dates of residence. In the same letter, the complainant listed the documents he requested to be submitted to the Quaestors.
7. After due consideration of the additional submissions made by the complainant, the Secretary-General re-consulted the Quaestors. All documentation as requested by the complainant in his letter of 22 January 2005 was also submitted to the Quaestors. The item was placed on the agenda of the Quaestors' meeting of 19 April 2005 but was postponed for internal procedural reasons to the following meeting of 11 May 2005. On 11 May 2005, as a result of an important debate taking place in the plenary, the President of Parliament ordered that all meetings of other bodies be cancelled. The Quaestors' meeting was therefore held at the next available date, namely, 25 May 2005. On both occasions the complainant was informed of the reasons for the postponement.
8. After the Quaestors had reconsidered the complainant's case on 25 May 2005, the Authorising Officer by delegation informed the complainant by letters of 7 and 9 June 2005 of their findings. The Quaestors took due note of the documentary evidence the complainant had provided concerning his inclusion in the electoral register. The Quaestors, while noting that inclusion in the electoral register did not constitute conclusive proof of residence, approved a proposal by the Secretary-General to take these documents into account for the purposes of calculating the travel expenses which should have been paid for the period of validity of the electoral register. The complainant was provided with a detailed breakdown of the reduced amount he was requested to reimburse as a result, that is, EUR 16 715.44 instead of EUR 29 820.56. The Authorising Officer by delegation asked the complainant to give his agreement to the recalculation of the amount outstanding, before its submission to the Secretary-General for formal approval.
9. By letter of 10 June 2005, the complainant rejected the proposal. He requested that he be reimbursed, by 30 June 2005, all amounts paid by him or withheld from him, that is, a total of EUR 12 397.50. He also requested that Parliament pay him additional travel expenses in respect of the period between 24 March 2004 and the end of his term of office on 19 July 2004. He requested that the Secretary-General confirm to him by letter, by 30 June 2005, that he was not in breach of Article 2(1) EAM.
10. By letter of 23 June 2005, the Authorising Officer by delegation informed the complainant that, following his [the complainant's] letter of 10 June 2005, the Secretary-General was considering the case and that the complainant would be informed of the Secretary-General's decision in due course.
11. By a second letter of 10 June 2005, the complainant made allegations concerning addresses declared by certain Members of Parliament on Parliament's website. He asked that these addresses be investigated and action be taken against these Members, should discrepancies be found.
12. By letter of 18 July 2005, the Secretary-General replied to the complainant that Members were allowed to declare not only a home address but also separate addresses for different mailing purposes. It was for each Member to instruct Parliament which address to place on Parliament's website. He furthermore confirmed that the files of the Members the complainant had named complied with the applicable rules.
13. On 25 July 2005, the Secretary-General sent to the complainant a reasoned decision informing him that a reduced amount of EUR 16 715.44 remained to be recovered, and informing him of his rights of appeal to the Court of First Instance of the European Communities.

2.2 The Ombudsman, first, notes that principles of good administration require that the Community institutions and bodies act within a reasonable time to resolve matters such as the one here at issue(7). Determining what is a reasonable time may vary, depending on the particular circumstances of the case, in particular in view of its complexity; the procedural rules to be followed; the behaviour of the person concerned; and the conduct of the relevant Community authorities.

2.3 In light of these criteria(8) and the circumstances of the case presented above, it appears that there has not been unjustified delay on the part of Parliament in its handling the complainant's appeal of 29 September 2004. The Ombudsman, thus, finds no instance of maladministration corresponding to the complainant's allegation.

3 Claim that Parliament should reimburse the complainant EUR 12 397.50

3.1 The Ombudsman, first, notes that this claim implies, in essence, that Parliament recovered unduly the above amount of money from the complainant. This sum had been paid for travel expenses concerning the period from July 1999 to 30 November 2002. In this regard, Articles 1(1), 2(1) and 5(1) EAM provide, respectively, as follows:

"Members of the European Parliament (hereinafter referred to as Members) shall be entitled to reimbursement of travel expenses in the form of a lump sum travel allowance in respect of proven and authorised attendance at meetings of the official bodies of the European Parliament. (...)

In respect of meetings of official bodies held within the territory of the European Community ... and within Europe, the travel allowance referred to in Article 1(1) shall be calculated in accordance with the mode of transport used and on the basis of the distance travelled by the Member to the venue for the meeting, the point of departure being the Member's place of residence as shown in the official list of Members of Parliament and declared to the relevant department of Parliament (...)

Except during part-sessions, Members shall be entitled to the reimbursement of travel expenses arising from a visit to a Community institution (including Parliament) in Brussels made in connection with their duties, on the basis of the lump sum travel allowance referred to in Article 1(1), calculated pursuant to Article 2. (...)".

3.2 The Ombudsman further notes that, according to Article 2(1) EAM, the basis for the calculation of the travel allowance/expenses is the MEP's place of residence "as shown in the official list of Members of Parliament and declared to the relevant department of Parliament." Neither the complainant nor Parliament has provided information on the complainant's place of residence appearing on the official list of Members of Parliament. However, both the complainant and Parliament have remarked that the address that the complainant had declared to Parliament as his place of residence for the period here at issue was his address B. It is equally clear, on the basis of the content of the complainant's own statement, that there was no residence at this address, which was merely used by the complainant for mailing purposes.

3.3 Under these circumstances and following criticism apparently made against the complainant concerning his above declaration to Parliament, the complainant, pursuant to Article 2(1) EAM, declared, by letter of 24 March 2004, his address A as his place of residence. This was where the complainant had, according to his own words, his "family home". Soon thereafter, the complainant made a voluntary repayment of EUR 10 547.50 based on his own calculation of overpayments made to him for travel expenses. There is no indication in the file of the case that this repayment was accompanied by any reservation about its propriety. Following this payment, Parliament withheld payment of the last instalment (EUR 1 850) due to the complainant as a general expenditure allowance. Parliament also issued a recovery decision for the outstanding amount of money, concluding that (i) the complainant's declaration of address B was not a valid declaration under Article 2(1) EAM; and (ii) the complainant's declaration of address A was a valid declaration under Article 2(1) EAM and that this address should be used for the purposes of calculating his travel expenses from the beginning of his term of office in July 1999 until 30 November 2002.

3.4 In the context of Parliament's investigation into the matter, of the complainant's relevant appeal of 29 September 2004 and of the present inquiry, the complainant sought, in essence, to establish that he actually had, from July 1999 until November 2002, his place of residence, within the meaning of Article 2(1) EAM, in the area of addresses B and C. The complainant sought to establish the above, despite his declarations to Parliament (i) referring to a mere mailing address, where there was no residence; (ii) referring to address A where the complainant had his "family home"; and (iii) regarding his act of returning to Parliament, as unduly received, the sum of EUR 10 547.50.

3.5 In this regard, the Ombudsman notes that, according to settled case-law of the Community Courts (i) the legal concept of residence relates to the place in which the person concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests; (ii) irrespective of the purely quantitative factor of the time spent by that person in one territory or another, the concept of residence implies, besides the physical act of living in a certain place, the intention of conferring on that act the continuity which arises from a way of life and the development of normal social relationships; (iii) the existence of such an intention is a question of fact which requires that the person's actual residence be taken into account; (iv) the person moving to prove his or her residence may refer to all the factual circumstances which constitute residence and furnish whatever supporting evidence he or she considers appropriate(9). Moreover, it is not necessary for an MEP's place of residence to coincide with the location of his electoral district(10).

3.6 The complainant has merely argued, by relying, in particular, on declarations given by Mr Y. and Mrs Y., that (i) he had a electoral postal address in W (place of address B); (ii) when convenient, he stayed at address B; (iii) Mr Y. and Mrs Y. also made available to him accommodation in their home in address C, which the complainant preferred over address B. He has also said that he went to area M, which appears to be part of his electoral district (area where the places of addresses B and C are found), at weekends, whenever Parliament was in session and when he did not travel abroad for delegation visits, but that, when Parliament was not in session, he stayed at his own home in address A. The complainant has specifically stated that address A was his home and not address C. Moreover, he has confirmed that his entry in the electoral register of the place of address A was maintained throughout the duration of his mandate at Parliament. Under these circumstances, the complainant cannot be considered to have established that, for the period at issue, he had his "place of residence," in the sense described above, in the area of addresses B and C.

3.7 In support of his claim, the complainant also relies on his inclusion in the electoral register of R(11) (made at the end of 2002) and on the fact that this information was invoked by Parliament as regards its decision on his travel expenses for the period from 1 December 2002 to 24 March 2004. Nevertheless, this argument is not convincing. First, the Ombudsman takes particular note of the complainant's parallel inclusion in the electoral register of H (the place of his address A). The complainant has not shown that the conditions of his inclusion in the electoral register of R are sufficiently related to considerations likely to have a bearing on the determination of his "place of residence," in the sense described above. Second, Parliament has emphasised that it did not consider the complainant's inclusion in the electoral register of R as conclusive proof of residence. Parliament has rather simply chosen to take into account the electoral documents for the purposes of calculating the complainant's travel expenses for the period mentioned above(12).

3.8 Finally, the complainant argued in his observations that the applicable rules are ambiguous and open to misinterpretation. In this regard, it is sufficient to note that (i) it is clear that a mere mailing address cannot be considered as the MEP's "place of residence," within the meaning of Article 2(1) EAM; and (ii) the complainant does not appear to have asked Parliament to provide clarifications on the interpretation of Article 2(1) EAM and its correct application to the particular circumstances of his case.

3.9 In light of the above, the Ombudsman considers that the complainant's claim that Parliament should pay him the sum of EUR 12 397.50, as unduly recovered from him, has not been substantiated. The Ombudsman, thus, concludes that Parliament's refusal to satisfy this claim does not appear to be an instance of maladministration.

4 Claim that the Secretary-General of Parliament should provide the complainant with a written confirmation that he was not in breach of Article 2(1) EAM

4.1 In light of his remarks in point 3 of the present decision, the Ombudsman concludes that Parliament's refusal to satisfy this claim does not appear to be an instance of maladministration.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by Parliament with regard to the complainant's allegation and claims. The Ombudsman therefore closes the case.

The President of Parliament will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Rules Governing the Payment of Expenses and Allowances to Members (EAM) in force in July 1999 Article 2(1): "In respect of meetings of official organs held within the territory of the European Community as defined in Article 299 (ex-227) of the Treaty establishing the European Community and within Europe, the travel allowance referred to in Article 1(1) shall be calculated in accordance with the mode of transport used and on the basis of the distance travelled by the Member to the place of the meeting, the point of departure being the Member's place of residence as shown in the official list of Members of the European Parliament and declared to the relevant department of the European Parliament (hereinafter referred to as the point of departure)."

(2) Rules Governing the Payment of Expenses and Allowances to Members (EAM) Article 27(3): "Where the Secretary-General, in consultation with the Quaestors, is satisfied that undue sums have been paid by way of allowances provided for Members by these Rules, he shall give instructions for the recovery of such sums from the Member concerned."

(3) See Case 208/80 Lord Bruce of Donington [1981] ECR 2205.

(4) The complainant made, inter alia, the following arguments: (i) the Electoral Registry entry for residence in R is based entirely on a house owner's declaration usually signed and submitted prior to local, national or European elections; (ii) in view of his preference to stay in address C rather than address B, his residency was submitted to and registered with the Electoral Registrar in 2002 and the entry appeared on the Register two months later in 2002; (iii) Parliament accepted Mrs Y.'s declaration of his residency for the period from December 2002 until July 2004 as recorded by the Electoral Registrar in R, but it chose, without reason or evidence, to reject her declaration for the earlier period July 1999 until November 2002, which was inconsistent and unjust.

(5) In reply to the complainant's arguments referred to in footnote 4 above, Parliament stated the following. These points shed no light on the dates the complainant first stayed at address C. In his letter of 29 September 2004 to the Secretary-General, the complainant informed Parliament with regard to address C that "I was registered with the [national] Electoral Register at this address and voted in all elections since 1999 on that basis". The Authorising Officer by delegation invited him by letters of 16 December 2004 and 11 January 2005 to submit documentary evidence of this registration. However, the documentation the complainant submitted covered only the period after 1 December 2002. The period in respect of which Parliament considered the complainant's inclusion in the electoral register for R is December 2002 to March 2004, when the complainant informed Parliament his home address had changed to address A. In respect of this period, however, Parliament did not consider that inclusion in the electoral register provided conclusive proof of residence but had simply used the electoral documents for the purposes of calculating the complainant's travel expenses, with a view to reducing the amount owed to Parliament under Article 27(3).

(6) The complainant pointed out, inter alia, that the acceptance by the Secretary-General of his residence in address C for the period between October 2002 until March 2004, if only for the purpose of recording travel expenses, was a tacit acknowledgement of the sufficiency of his compliance with the relevant regulations for that period. He further posed the following question: "if such compliance, which was based on [Mrs Y.'s] testimony to the Electoral Registrar for R, was accepted as being sufficient to accept his travel expenses from address C for the above-mentioned period, then why was the Secretary-General unwilling to accept the written testimony from the same source as adequate evidence for computing travelling expenses for the earlier period 1999-2002?"

(7) In this regard, it is recalled that Article 41 (1) of the Charter on Fundamental Rights of the European Union provides that every person has the right to have his affairs handled "within a reasonable time by the institutions and bodies of the Union".

(8) As regards the procedural rules, Article 27(2) EAM provides that: "Any Member who considers that these Rules have been incorrectly applied may write to the Secretary-General. In the event that no agreement is reached between the Member and the Secretary-General, the matter shall be referred to the Quaestors, who shall take a decision after consulting the Secretary-General. The Quaestors may also consult the President and/or the Bureau."

(9) See judgement of 27 September 2006 in Case T-416/04 Kontouli v Council, not yet reported, paragraphs 71-73 and the cases cited therein.

(10) See, in this sense, Case 208/80 Lord Bruce of Donington [1981] ECR 2205, paragraph 15.

(11) The complainant produced copies of the relevant electoral register (in force from 1 December 2002) and of his entry in the Register of Electors for the R City Council for the Register year 2003/2004.

(12) In this regard, the Ombudsman recalls that the compatibility of this choice with the relevant applicable rules does not come within the scope of his present inquiry.

In his further submissions of 3 August 2005, the complainant made, inter alia, the following arguments: (i) the Electoral Registry entry for residence in R is based entirely on a house owner's declaration usually signed and submitted in October in the year prior to local, national or European elections; (ii) in view of his preference for staying in address C rather than address B, his residency was submitted to, and registered with, the Electoral Registrar in October 2002 and the entry appeared on the Register in December 2002; (iii) Parliament accepted Mrs Y.'s declaration (October 2002) of his residency for the period from December 2002 to July 2004 as recorded by the Electoral Registrar in R but it chose, without reason or evidence, to reject her declaration for the earlier period July 1999 until November 2002, which was inconsistent and unjust. In reply, Parliament stated the following. These points shed no light on the dates the complainant first stayed at address C. In his letter of 29 September 2004 to the Secretary-General the complainant informed Parliament with regard to address C that "I was registered with the [national] Electoral Register at this address and voted in all elections since 1999 on that basis". The Authorising Officer by delegation invited him, by letters of 16 December 2004 and 11 January 2005, to submit documentary evidence of this registration. However, the documentation the complainant submitted covered only the period after 1 December 2002. The period in respect of which Parliament considered the complainant's inclusion in the electoral register for R is December 2002 to March 2004, when the complainant informed Parliament his home address had changed to address A. In respect of this period, however, Parliament did not consider that inclusion in the electoral register provided conclusive proof of residence but had simply used the electoral documents for the purposes of calculating the complainant's travel expenses, with a view to reducing the amount owed to Parliament under Article 27(3). In his observations, the complainant pointed out that the acceptance by the Secretary-General of his residence in R for the period between October 2002 until March 2004, if only for the purpose of recording travel expenses, was a tacit acknowledgement of the sufficiency of his compliance with the relevant regulations for that period. He further posed the following question: "if such compliance, which was based on Mrs Y.'s testimony to the [R] Electoral Registrar, was accepted as being sufficient to accept his travel expenses from [addresses B and C] for the above-mentioned period, then why was the Secretary-General unwilling to accept the written testimony from the same source as adequate evidence for computing travelling expenses for the earlier period 1999-2002?"

In light of the formulation of point 31 of the Secretary-General's decision of 25 July 2005 and the relevant explanations provided in Parliament's further opinion, it is the Ombudsman's understanding that Parliament's decision regarding the period December 2002-March 2004 was not based on a finding that the complainant's "place of residence" during this time was in addresses B and C, but was rather an ex gratia measure, taken "with a view to reducing the amount [the complainant] owes to the European Parliament under Article 27(3)", after taking into account that this reduction "would not have any impact on the European Parliament's budget." For this reason and also considering that (i) in this context, Parliament took into account the electoral register of R, and not merely a declaration made by Mr Y. or Mrs Y. about the complainant's residence; (ii) the inconsistency alleged by the complainant cannot, by itself, form an appropriate basis for the acceptance of the complainant's claim, the Ombudsman does not find it justified to conduct further inquiries in relation to the complainant's foregoing argument about inconsistency in the Parliament's behaviour.