An bhfuil gearán agat in aghaidh institiúid nó comhlacht de chuid an Aontais Eorpaigh?
- EN English
Decision of the European Ombudsman on complaint 1423/2004/ELB against the European Commission
Cinneadh
Cás 1423/2004/ELB - Tosaithe an Déardaoin | 03 Meitheamh 2004 - Cinneadh an Déardaoin | 28 Aibreán 2005
The complainant, a French citizen, has been a temporary agent of the European Parliament since July 1980. Previously, he worked in the agricultural sector in France and acquired pension rights. The complainant unsuccessfully sought to transfer his pension rights in accordance with the Staff Regulations. He then made an "Article 226" complaint against France to the Commission. The complainant alleged that the Commission failed to properly deal with his complaint against France and to ensure that France complied with Community law, in particular the Staff Regulations.
The Commission explained that a French pension, in co-ordination and with the agreement of the French Ministry of social affairs, was considering the possibility to transfer pension rights irrespective of the ratification by France of a special agreement on transfer of pension rights. It advised the complainant to contact the administration for which he was working (the European Parliament) inviting it to address a reasoned reminder to his French pension. The Commission considered that it was not appropriate for the moment to bring the matter before the European Court of Justice. However, if no result was achieved in the short term, the Commission would review its position and bring the matter before the Court. The Commission subsequently informed the Ombudsman of the reply sent by the French pension, in which it stated that provisions similar to the ones adopted for the general regime could be adopted for agricultural employees and that the requests submitted to it would be re-examined.
The Ombudsman noted that the Commission had prompt contacts with the French authorities following the complainant's complaint and his further request, informed him of its actions as regards the transfer of pension rights, explained in detail the present situation and itself contacted the French pension to obtain the transfer of the pension rights of its own officials. On the basis of the available evidence concerning the on-going activity of the Commission to ensure compliance with Community law in this matter, the Ombudsman considered that the Commission did not appear to have gone outside the limits of its legal authority as "Guardian of the Treaty". The Ombudsman understood that the Commission was committed to finding a solution that would enable the complainant to enjoy his rights as a servant of the European Communities. The Ombudsman considered it useful to make a further remark.
The complainant also alleged that the Commission failed to reply to his letters. The Commission indicated that it never received one of the letters and sent a reply to the other letter with delay, for which it apologised. The Ombudsman therefore concluded that no further inquiry was necessary and closed the case.
Strasbourg, 28 April 2005
Dear Mr L.,
On 12 May 2004, you made a complaint to the European Ombudsman against the European Commission concerning the Commission's failure to carry out its duties as Guardian of the Treaty vis-à-vis France so that it complies with Community law.
On 3 June 2004, I forwarded the complaint to the President of the Commission. On 6 August 2004, the Commission sent a reply. On 22 September 2004, I requested clarification on the content of this reply. The Commission sent its final opinion on 1 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 15 November 2004.
I am writing now to let you know the results of the inquiries that have been made.
THE COMPLAINT
According to the complainant, the facts can be summarised as follows:
The complainant, a French citizen, has been a temporary agent of the European Parliament since July 1980. From 1968 until 1980, he worked in the agricultural sector in France.
On 27 July 1992, France signed an agreement with the European Communities allowing the transfer of national pension rights of EU officials and temporary agents. However, this agreement does not apply to employees in the agricultural sector.
On 4 September 2002, the complainant lodged a complaint with the Commission against France under Article 226 of the EC Treaty for failure to comply with European law(1).
On 12 November 2002, the Commission registered his complaint and informed the complainant that discussions were being held between the Commission and the French authorities. The French authorities had finalised a draft modification to the agreement which was to be examined by the French National Assembly in the first quarter of 2003. Consequently, the Commission considered that it was not appropriate to launch an infringement procedure against France for failure to comply with Article 11 (2) of Annex VIII to the Staff Regulations(2). It also stated that it would follow up the issue.
On 11 December 2002, the complainant wrote to the Commission, taking note of the proposed modification to the agreement.
On 22 September 2003, the complainant wrote to the Commission requesting information on the adoption of the modification to the agreement. He received no reply.
On 30 March 2004, he again wrote to the Commission with the same request. Apparently, the complainant received no reply to this letter.
On the same day, the complainant lodged a complaint with the Ombudsman on the same subject (1006/2004/ELB). This complaint was declared inadmissible as no document was attached to it.
In the present complaint, the complainant alleges that:
(1) the Commission failed to properly deal with his complaint against France and to ensure that France complies with Community law, in particular Article 11 (2) of Annex VIII to the Staff Regulations;
(2) the Commission failed to reply to his letters dated 22 September 2003 and 30 March 2004.
THE INQUIRY
The Commission's opinionThe Commission's opinion can be summarised as follows:
The complainant has been a temporary agent working for the European Parliament since July 1980. He should shortly retire. Since the signature in 1992 of an agreement between the French government and the Commission concerning the transfer of pension rights of Community officials and temporary agents from a national pension system, he has been requesting the transfer of his pension rights acquired when he was working in France (the relevant French body is the Mutualité Sociale Agricole, MSA). Until now, MSA always refused to follow up his request, arguing that the agreement did not provide for the case of agricultural employees.
As regards the letters sent by the complainant to the Commission on 22 September 2003 and 30 March 2004, the Commission indicates that it never received the first letter. On 24 May 2004, it sent a reply to the second letter. The Commission apologises for the delay in sending the reply, which is due to the transfer to other duties of the official to whom the letter originally was sent.
As regards the substance of the complaint, the letter of 24 May 2004 explained that, following the changes in the Staff Regulations and notably in the provisions concerning transfer of pension rights, some elements of the agreements and national implementing regulations would have to be reviewed to ensure consistency with the provisions of the Staff Regulations. It also stated that a French pension fund, which was not mentioned in the agreement of 1992 (Caisse nationale des Barreaux Français, CNBF), showed the way to the application by all pension funds of the Community regulation. CNBF, in co-ordination and with the agreement of the French Ministry of Social Affairs, is considering the possibility to transfer pension rights irrespective of the ratification by France of an agreement in this regard. This possibility will be based on the direct applicability of Article 11 (2) of Annex VIII to the Staff Regulations. In its letter, the Commission advised the complainant to contact the administration for which he is working (the European Parliament) inviting it to address a reasoned reminder to MSA, in which the European Parliament should suggest that the example of CNBF be followed.
On 15 June 2004, the Commission sent a reminder to MSA about the files filed by officials of the Commission and which had been left in abeyance until the ratification by France of a special agreement on transfer of pension rights.
The Commission hopes that a concerted solution can be found quickly with French agricultural pension funds and considers that it is not appropriate for the moment to bring the matter before the European Court of Justice. However, if no result is achieved in the short term, the Commission will review its position and bring the matter before the Court.
The Commission subsequently sent the Ombudsman a copy of a letter from MSA dated 29 July 2004. MSA indicated that, according to the Ministry of Agriculture, provisions similar to the ones adopted for the general regime could be adopted for agricultural employees. It also stated that practical modalities would have to be adapted and that the requests submitted to MSA would be re-examined as soon as possible.
The complainant's observationsIn his observations, the complainant thanked the Ombudsman for the handling of his complaint. He took note of the Commission's commitments.
THE DECISION
1 Alleged failure to properly deal with a complaint against France1.1 The complainant, a French citizen, has been a temporary agent of the European Parliament since July 1980. From 1968 until 1980, he worked in the agricultural sector in France and acquired pension rights with the Mutualité Sociale Agricole (MSA). The complainant unsuccessfully sought to transfer his pension rights in accordance with Article 11 (2) of Annex VIII to the Staff Regulations. He then made an "Article 226" complaint against France to the Commission. The complainant alleges that the Commission failed to properly deal with his complaint against France and to ensure that France complies with Community law, in particular Article 11 (2) of Annex VIII to the Staff Regulations.
1.2 According to the Commission, following the changes in the Staff Regulations and notably in the provisions concerning transfer of pension rights, some elements of the agreements and national implementing regulations will have to be reviewed to ensure consistency with the provisions of the Staff Regulations. The Commission explains that a French pension fund, which was not mentioned in the agreement, showed the way to the application by all pension funds of the Community regulation. This pension fund, in co-ordination and with the agreement of the French Ministry of social affairs, is considering the possibility to transfer pension rights irrespective of the ratification by France of an agreement in this regard. This possibility will be based on the direct applicability of Article 11 (2) of Annex VIII to the Staff Regulations.
The Commission advised the complainant to contact the administration for which he is working (the European Parliament) inviting it to address a reasoned reminder to MSA. The Commission has also itself sent a reminder to MSA about the files filed by officials of the Commission and which had been left in abeyance until the ratification by France of a special agreement on transfer of pension rights.
The Commission hopes that a concerted solution can be found quickly with French agricultural pension funds and considers that it is not appropriate for the moment to bring the matter before the European Court of Justice. However, if no result is achieved in the short term, the Commission will review its position and bring the matter before the Court.
The Commission subsequently informed the Ombudsman of the reply sent by MSA to the Commission, in which MSA states that provisions similar to the ones adopted for the general regime could be adopted for agricultural employees and that the requests submitted to MSA will be re-examined as soon as possible.
1.3 The Ombudsman considers it useful to recall that his inquiry is limited to investigating whether the Commission, in its handling of the Article 226 complaint, has acted in accordance with the rules and principles binding upon it and within the limits of its legal authority. The Ombudsman's investigation does not imply a review of the question whether French legislation may be contrary to Community law.
The Ombudsman also recalls that the Commission has the right, but not the duty, to commence proceedings before the Court of Justice for a declaration that a Member State has failed to fulfil its obligations under Community law(3).
Furthermore, in accordance with the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(4), the Commission undertook to inform the complainant of the action taken in response to a complaint and of the outcome of the investigation.
1.4 The Ombudsman notes that the Commission had prompt contacts with the French authorities following the complainant's complaint and his further request and informed the complainant on 12 November 2002 and on 24 May 2004 of its actions as regards the transfer of pension rights. The Ombudsman further notes that the Commission, in its last letter to the complainant, explained in detail the present situation. He finally observes that the Commission itself contacted MSA to obtain the transfer of the pension rights of its own officials.
1.5 On the basis of the available evidence concerning the on-going activity of the Commission to ensure compliance with Community law in this matter, the Ombudsman considers that the Commission does not appear to have gone outside the limits of its legal authority as "Guardian of the Treaty".
1.6 The Ombudsman notes that the Commission is fully aware that the complainant is due soon to retire. The Ombudsman also notes that the Commission indicated that it will follow up the case, and that it might review its position and bring the matter before the Court if no result is achieved in the short term. The Ombudsman therefore understands that the Commission is committed to finding a solution that will enable the complainant to enjoy his rights as a servant of the European Communities. The Ombudsman considers it useful to make a further remark to this effect below.
1.7 In these circumstances, the Ombudsman considers that no further inquiries into the present complaint are justified. The Ombudsman points out that the complainant has the right to renew his complaint to the European Ombudsman in future, if necessary.
2 Alleged failure to reply to letters2.1 The complainant alleges that the Commission failed to reply to his letters dated 22 September 2003 and 30 March 2004.
2.2 The Commission indicates that it never received the letter dated 22 September 2003. On 24 May 2004, it sent a reply to the letter dated 30 March 2004. The Commission apologises for the delay in sending the reply, which is due to the transfer to other duties of the official to whom the letter originally was sent.
2.3 The Ombudsman recalls that, according to the European Code of Good Administrative Behaviour, "[e]very letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period (...) if a letter or a complaint to the Institution is addressed or transmitted to a Unit which has no competence to deal with it, its services shall ensure that the file is transferred without delay to the competent service of the Institution". The Ombudsman notes that the Commission never received one of the complainant's letters and replied on 24 May 2004 to the letter dated 30 March 2004. He also notes that the Commission apologised, in its opinion, for the delay in replying. The Ombudsman therefore concludes that no further inquiry is necessary as regards this aspect of the complaint.
3 ConclusionFor the reasons given above, the Ombudsman considers that no further inquiries into the complaint are justified. The Ombudsman therefore closes the case.
FURTHER REMARK
The Ombudsman notes that the Commission is fully aware that the complainant is due soon to retire. The Ombudsman also notes that the Commission indicated that it will follow up the case, and that it might review its position and bring the matter before the Court if no result is achieved in the short term. The Ombudsman therefore understands that the Commission is committed to finding a solution that will enable the complainant to enjoy his pension rights as a servant of the European Communities.
The President of the Commission will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.
(2) Article 11 (2) of Annex VIII
to the Staff Regulations stated that: "An official who enters
the service of the Communities after:
- leaving the service of a government administration or of a national
or international organisation; or
- pursuing an activity in an employed or self-employed capacity;
shall be entitled upon establishment to have paid to the Communities either
the actuarial equivalent or the flat-rate redemption value or retirement
pension rights acquired by virtue of such service or activities.
In such case the institution in which the official serves shall, taking
into account his grade on establishment, determine the number of years
of pensionable service with which he shall be credited under its own pension
scheme in respect of the former period of service, on the basis of the
amount of the actuarial equivalent or sums repaid as aforesaid."
(3) See, for example, Case 247/87 Star Fruit v. Commission [1989] ECR 291, paragraph 12; Case C-191/95 Commission v. Germany [1998] ECR I-5449, paragraph 46.
(4) COM (2002) 141 final, OJ 2002 C 244, p. 5.