The background to the complaint

1. The complainant participated in Open Competition EPSO/AD/26/05 and was unsuccessful in the oral examination. He obtained 24.5 points, whereas the minimum number of points required was 25. After EPSO refused to provide him with detailed reasons for its decision, he brought a case before the Civil Service Tribunal (the 'CST').

2. On 14 October 2008, the CST decided in the complainant's favour and ordered the European Commission to pay the complainant's legal costs[1].

3. On 2 December 2008, the complainant's legal representative claimed EUR 7 020.62 by way of legal costs from the Commission.

4. On 19 December 2008, the Commission appealed against the judgment of the CST.

5. On 21 January 2009, the Commission contested the amount of legal costs claimed by the complainant's legal representative. In order to reach an amicable settlement, the Commission proposed to pay EUR 4 206.65.

6. On 2 February 2009, the complainant's legal representative sent a letter to the Commission in which he explicitly accepted the above amount. The Commission received that letter on 4 February 2009.

7. On 4 February 2009, the complainant received notification of the Commission's appeal.

8. On 16 March 2009, the Commission paid to the complainant's legal representative the amount of EUR 4 206.65, which represented legal costs.

9. On 12 May 2010, the General Court set aside the CST's judgment and referred the case back to the CST[2].

10. By order of 25 May 2011, the CST decided that there was no longer any need to decide on the alleged insufficiency of EPSO's reasoning. As regards the remainder of the complainant's application, the CST rejected it partly as manifestly unfounded and partly as manifestly inadmissible. The CST ordered the Commission to pay two thirds of the complainant's legal costs relating to the first procedure before the CST and the complainant to pay the remaining one third[3].

11. Since it considered that it had already covered the entirety of the complainant's legal costs relating to the first procedure before the CST, on 7 June 2011, the Commission informed the complainant that it would shortly issue a debit note in the amount of EUR 1 402.22 in order to recover costs reimbursed in excess.

12. In a letter to the Commission dated 3 August 2011, the complainant took the view that there was no legal basis for a recovery. He submitted that the Rules of Procedure of the CST do not provide for a recovery of sums overpaid. Moreover, he pointed out that Article 85 of the Staff Regulations[4] does not apply to him, since he is neither an official nor a contractual agent of the EU.

13. On 2 September 2011, the Commission issued a debit note calling on the complainant to pay the aforesaid amount to the Commission by 3 January 2012. The debit note gave the following justification:

"07/F 74 RENV - Stefan Meierhofer / Kommission

Ein Drittel des Gesamtkostens des Verfahrens : 1.402,22 EUR [one third of the total costs of the procedure]".

The debit note also stated that the Commission would proceed to compulsory enforcement should the aforesaid amount not be paid by the due date.

14. On 10 September 2011, the complainant submitted a complaint to the European Ombudsman.

15. On 16 September 2011, upon the Ombudsman's suggestion, the Commission sent a letter to the complainant in which it regretted that it had been unable to reply to his letter of 3 August 2011 before issuing the debit note. This was due to the fact that it had received the complainant's letter during the holiday season. The letter had been internally forwarded to the Commission officials responsible for the complainant's court case, who were on holiday, while the financial department was already pursuing the recovery. As regards the substance, the Commission rejected the complainant's view that there was no legal basis for the recovery and pointed out that the legal basis was provided by the CST order of 25 May 2011, by means of which the Tribunal rejected the complainant's application and ordered the Commission to pay two thirds of the legal costs. The Commission stated that the CST's order was enforceable pursuant to Article 280[5] in conjunction with Article 299[6] of the Treaty on the Functioning of the European Union (the 'TFEU') and thus constituted an autonomous legal basis. The Commission added that the complainant himself had claimed legal costs on the basis of the enforceable judgment in case F-74/07.

16. On 8 February 2012, the Commission reminded the complainant that it still had not received the outstanding amount and invited him to pay it within 15 days of receipt of the letter together with default interest accruing from 4 January 2012. It added that if payment were not made within that time limit, it would initiate execution proceedings.

The subject matter of the inquiry

17. In his original complaint to the Ombudsman, the complainant alleged (first) that the Commission failed to reply to his letter of 3 August 2011, and (second) that the debit note issued by the Commission on 2 September 2011 was devoid of a legal basis. He claimed that the Commission should (first) reply to his letter and (second) either (i) indicate a plausible legal basis for the debit note or (ii) revoke it.

18. Given that, in the meantime, on 16 September 2011, the Commission replied to the complainant, the present inquiry does not concern the issue of failure to reply but exclusively the second allegation and the corresponding claim.

The inquiry

19. On 10 September 2011, the complainant submitted a complaint to the Ombudsman.

20. On 15 September 2011, the Ombudsman opened an inquiry into the allegation that the Commission failed to reply to the complainant's letter of 3 August 2011 and into the claim that the Commission should reply to that letter.

21. On 16 September 2011, the Commission replied to the complainant.

22. On 3 October 2011, the complainant submitted observations on the Commission's reply.

23. On 11 November 2011, the Ombudsman opened an inquiry and invited the Commission to submit an opinion on the second allegation and corresponding claim. He stated that he would be grateful if the Commission were to refrain from proceeding with the enforcement of the debit note.

24. On 22 December 2011, the Ombudsman received the Commission's opinion. On 6 January 2012, the Commission provided its translation into German.

25. On 4 January 2012, the Ombudsman forwarded to the complainant the English version of the Commission's opinion. On 10 January 2012, the German translation of the opinion was sent to the complainant.

26. On 4 February 2012, the complainant sent his observations on the Commission's opinion.

27. On 12 February 2012, the complainant sent further correspondence to which the Ombudsman replied on 12 March 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

28. The Ombudsman notes that, pursuant to Article 228 TFEU, his role is to investigate instances of maladministration in the activities of the Union institutions, bodies, offices and agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. Moreover, Article 1(3) of the Statute of the European Ombudsman provides that the Ombudsman cannot question the soundness of a court's ruling. Therefore, the Ombudsman's examination of the present complaint is necessarily limited to verifying whether the Commission acted in accordance with the applicable legal rules. The Ombudsman cannot, directly or indirectly, question the practice of the EU judicature, nor can he assess in abstracto the correctness of the applicable rules of EU law and their compliance with general principles of law.

A. Allegation that the debit note issued by the Commission was devoid of any legal basis and related claim

Arguments presented to the Ombudsman

29. In his complaint, the complainant argued that the debit note issued by the Commission was devoid of any legal basis. In fact, the CST's decision on legal costs in the order of 25 May 2008 obliged the Commission to make a payment to him, not vice versa. Given that the Commission's obligation was subsequently limited to the payment of two thirds of the complainant's costs incurred in the first procedure before the CST, the legal reason for the initial payment made by the Commission to him partly ceased to exist. However, payments made without a legal reason could only be recovered if there was a legal basis for such recovery. The complainant failed to see what legal basis there could be in the present case. He underlined that Article 85(2) of the Staff Regulations was not applicable. Even if there were a legal basis for recovery, the applicable conditions set by such provisions would have to be fulfilled. In the given context, the complainant argued that he had not been enriched in any way, given that the amount paid by the Commission had been fully spent on legal costs incurred. Moreover, the amount was never in the complainant's possession, since it was paid directly to his legal representative. He could not have known, at the time when the Commission effected the transfer, that he would ultimately not be entitled to the transferred amount.

30. In its reply of 16 September 2011, the Commission stated that the legal basis for the recovery was provided by the order of 25 May 2011. It added that the CST's order was enforceable pursuant to Article 280 in conjunction with Article 299 TFEU and thus constituted an autonomous legal basis.

31. In his observations on the Commission's above reply, the complainant took the view that the order of the CST was not enforceable in so far as the decision on legal costs is concerned. It could not serve as a legal basis, given that it merely indicated quotas instead of actual amounts, and was thus not sufficiently clear to be capable of being enforceable. He pointed out that enforcement would presuppose that the CST issue an order on costs pursuant to Article 92 of the Tribunal's Rules of Procedure[7]. However, no such order was issued in his case, and in any case, it was not to be expected that the CST do so, bearing in mind that the CST decides on the allocation of costs, but not on the recovery of legal costs. The only legal basis could therefore be the Commission's decision itself. In the given context, the complainant pointed to the danger that an enforceable claim could be created, once the deadline for payment has expired, regardless of whether a substantive entitlement exists. He also stated that there was a danger that national authorities would proceed to enforcement without checking whether the debit note in fact amounted to an enforceable claim. The complainant took the view that this would be at odds with the rule of law.

32. In its opinion, the Commission reiterated that, as explained in its reply of 15 September 2011, the order of 25 May 2011 did constitute the legal basis for the recovery. Relying on the view expressed by the General Court in its order in case Eppe v Commission[8], the Commission stated that the debit note requesting the reimbursement of the legal costs is no more than the mere execution of the decision on costs in the underlying judgement of the General Court (in the present case the CST), against which an appeal is manifestly inadmissible.

33. As indicated in the order in the Eppe v Commission case, it would have been up to the complainant to initiate a taxation procedure pursuant to Article 92 of the Rules of Procedure of the CST[9], if he did not agree with the amount requested by the Commission. However, referring to the General Court's case-law[10], the Commission considered that a request for the taxation of costs would have been rejected as manifestly inadmissible, since there is clearly no dispute between the parties in respect of the amount to be recovered. Indeed, the parties reached a written agreement as regards the amount of the complainant's legal costs for the proceedings before the CST. It is not the purpose of the taxation procedure to create an enforceable claim for legal fees, if there is no dispute regarding the amount. In such a case, the decision on costs in the underlying judgement or order itself constitutes the legal basis/enforceable claim. Any other conclusion would amount to denying court judgments of their authority. Therefore, the Commission does not need to establish a further enforceable claim under Article 299 TFEU, in addition to the decision on costs contained in the order of the CST of 25 May 2011.

34. In accordance with Articles 280 and 299 TFEU, the order of 25 May 2011, read together with the agreement between the parties fixing the amount of the recoverable costs, is enforceable. The German authorities would be obliged to append the order for its enforcement without verifying anything other than the decision on the costs contained in the order of 25 May 2011 and the parties' agreement on the amount of costs. In fact, the precise amount of recovery to be executed by a national bailiff is never spelt out in a decision on costs, since the bailiff himself must always calculate and add to the recoverable amount the interest to date and the cost of the execution. It is also the bailiffs who have to apportion the amounts due, for example, in cases involving several debtors. Thus, the German bailiff will be in a position to verify whether the amount to be recovered constitutes one third of the initial amount.

35. The Commission stated that it cannot suspend the recovery procedure, which is governed by Article 71 of the Financial Regulation in conjunction with Article 78 of the Implementing Regulation and which serves the public interest in sound financial management, by ensuring that the Union's financial claims are made good within a reasonable time.

36. In his observations on the Commission's opinion, the complainant recognized that the CST ordered him to bear one third of his legal costs relating to the first procedure before it. However, he maintained that the order of 25 May 2011 did not constitute an enforceable claim. In fact, he stated, the order does not specify the exact amount to be paid and the institution entitled to receive the payment. The complainant provided a comparative example from the German legal system, where the decision on costs does not, as such, constitute an enforceable claim. It is necessary for the parties to obtain an additional decision which clearly determines the exact amount to be paid as well as the identity of the creditor and the debtor. This corresponds to the principle of legal certainty, according to which, the enforceable claim must be sufficiently clear and understandable. The corresponding EU rules cannot be substantially different and a similar procedure is provided for under Article 92 of the CST Rules of Procedure.

37. Referring to the order in case F-55/08 DEP De Nicola v European Investment Bank[11], the complainant further argued that even the CST manifestly considers that its principal decision does not constitute an enforceable claim and that it is necessary to obtain a decision within the framework of the procedure set out in Article 92 of the Rules of Procedure of the CST. Had the CST considered that it is possible to proceed with enforcement on the basis of its principal decision on the case, it would have rejected the EIB's application under Article 92 of the CST Rules of Procedure. Therefore, the approach in Eppe v Commission has clearly been overturned. Moreover, the case-law cited by the Commission is not applicable to the complainant's case, since, unlike in the present case, the applicants had to bear the Commission's legal costs. The present case concerns, rather, the recovery of a payment made pursuant to an order for the reimbursement of costs, the legal basis for which subsequently ceased to exist.

38. The complainant took the view that a decision pursuant to Article 92 of the CST Rules of Procedure would have constituted an enforceable claim. It was up to the Commission to initiate this procedure. The complainant further argued that the Commission's application would have been admissible, since there is a dispute as regards the amount due. Alternatively, the Commission could have requested recovery in compliance with applicable procedures if such procedures exist and can be applied to the case at hand.

The Ombudsman's assessment

39. In light of the principles explained in point 28 above, the Ombudsman has to examine whether there was a legal basis for the Commission's decision to issue the debit note of 2 September 2011. In the complainant's view, this was not so because the decisions of the EU courts which do not lay down the exact amount of costs are not enforceable as such, unless a decision is issued, in the case of the CST, under Article 92 of its Rules of Procedure.

40. In reply to the complainant's stance, the Ombudsman points out that specific rules governing the determination of the costs of proceedings are set out in Chapter 8 of Title 2 of the CST Rules of Procedure. However, these rules do not support the complainant's view that the decision as to the costs contained in the principal decision is not enforceable and that the Commission should first file an application for the taxation of costs under Article 92 of the CST Rules of Procedure. In fact, Article 92 provides for an exceptional remedy in case of a "dispute concerning the amount and nature of the costs to be recovered". Thus, the Ombudsman agrees with the Commission that, in the absence of a "dispute" between the parties, it does not appear to be necessary to seek a decision under Article 92 and that the decision as to the costs contained in the principal decision is enforceable as such.

41. This interpretation is corroborated by the case-law cited by the Commission. In fact, in the order in case Eppe v Commission cited above, the then Court of First Instance (the 'CFI') intervened in a situation which was similar to the one in the case at hand. After the CFI had ordered the applicant in that case to bear two thirds of the Commission's costs, the Commission issued a debit note specifying the amount in question. The applicant then filed an action for annulment against the Commission's reimbursement request and its implicit rejection of his complaint under Article 90(2) of the Staff Regulations. The CFI declared the application manifestly inadmissible because the reimbursement request constituted a mere "consequence of the execution" of the CFI's order as to the costs and thus could not be regarded as an act adversely affecting him. The CFI further mentioned that the Commission's right to compensation for its costs stemmed from the said order. If the applicant disagreed with the calculation of the amount of the costs, he could have used the remedy under Article 92(1) of the Rules of Procedure of the CFI[12].

42. The Ombudsman does not agree with the complainant that the case-law cited above is not relevant to the case at hand. Nor is he aware of a change in approach by the EU judiciary. As regards the case De Nicola v European Investment Bank (the 'EIB'), which the complainant relied on, the Ombudsman does not agree that it demonstrates a departure from the principles pronounced in Eppe v Commission. Quite to the contrary, there was a dispute between the applicant and the EIB as to the amount of the costs which the EIB was entitled to claim from him. Therefore, the CST's intervention in the framework of the taxation procedure under Article 92 of its Rules of Procedure was justified by a dispute between the parties relating to the costs. Thus, this case does not support the complainant's conclusion that the institutions should systematically apply for a decision under Article 92 of the Rules of Procedure of the CST before proceeding with enforcement.

43. The Ombudsman notes that he understands the complainant's criticism of the above practice, since the exact amount due is not determined precisely in the decision on costs contained in the principal decision. However, he agrees with the Commission that this could not have any negative impact on the complainant whose legal representative agreed with the Commission on the amount of the complainant's legal costs in the first procedure before the CST. Thus, the amount due, that is, one third of the agreed sum, could easily be determined.

44. On the basis of the evidence available, the Ombudsman shares the Commission's view that, in sum, there were no objective indications of a "dispute" between the parties as regards the costs, after the agreement had been reached. If the complainant however did not agree with the amount requested by the Commission, he was free to submit an application for the taxation of costs under Article 92 of the Rules of Procedure of the CST.

45. In addition, as rightly pointed out by the Commission, pursuant to Article 280 TFEU, judgments of the Court of Justice of the European Union are enforceable under the conditions laid down in Article 299 TFEU. According to the latter provision, the actual enforcement is governed by the rules of civil procedure in force in the State in the territory of which the enforcement is carried out. However, national authorities may only verify the authenticity of the EU decision prior to issuing an enforcement order. Thus, the Treaties do not subject the enforceability of the Court of Justice's decisions on costs contained in its principal decisions to any further conditions, such as obtaining a special decision under Article 92 of the Rules of Procedure of CST, and these are enforceable as such[13]. In this context, the Ombudsman considers the Commission's explanation summarised in points 32-34 above to be correct and sufficient.

46. The Ombudsman takes the view that the legal basis for the Commission's debit note of 2 September 2011 clearly existed. This was the CST's order of 25 May 2011 together with the complainant's unjust enrichment. Indeed, it is not reasonable to consider that, if the Commission had not paid to the complainant's legal representative the amount corresponding to the latter's legal costs in March 2009, the complainant would not have been obliged to cover these costs himself at that time.

47. In light of the foregoing, the Ombudsman does not find an instance of maladministration corresponding to the complainant's allegation. The related claim thus cannot be sustained.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman finds no instance of maladministration corresponding to the complainant's allegation. Consequently, the complainant's claim cannot be sustained.

The complainant and the European Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 June 2013

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[1] See Case F-74/07 Meierhofer v Commission [2008] ECR-SC I-A-1-00319 and II-A-1-01745.

[2] See Case T-560/08 P Commission v Meierhofer [2010] ECR II-01739.

[3] See Case F-74/07 RENV Meierhofer v Commission, order of 25 May 2011, not published in the ECR.

[4] Article 85 of the Staff Regulations reads as follows: "Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.

The request for recovery must be made no later than five years from the date on which the sum was paid. Where the Appointing Authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed."

[5] Article 280 TFEU reads as follows: “The judgments of the Court of Justice of the European Union shall be enforceable under the conditions laid down in Article 299.”

[6] Article 299 TFEU reads as follows: “Acts of the Council, the Commission or the European Central Bank which impose a pecuniary obligation on persons other than States, shall be enfoceable.

Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out. The order for its enforcement shall be appended to the decision, without other formality than the verification of the authenticity of the decision, by the national authority which the government of each Member State shall designate for this purpose and shall make known to the Commission and to the Court of Justice of the European Union.

When these formalities have been completed on application by the party concerned, the latter may proceed to enforcement in accordance with the national law, by bringing the matter directly before the competent authority.

Enforcement may be suspended only by a decision of the Court. However, the courts of the country concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.”

[7] The relevant part of Article 92 of the Rules of Procedure of the CST reads as follows: “1. If there is a dispute concerning the amount and nature of the costs to be recovered, the Tribunal shall, on application by the party concerned and after hearing the opposite party, give its decision by way of reasoned order. …”.

[8] Case T-77/98 Eppe v Commission [1998] ECR-SC I-A-455 and II-1347, paragraphs 8 and 9.

[9] See the order in case Eppe v Commission, cited in footnote 8 above, paragraph 12.

[10] Joined Cases T-33/89 and T-74/89 DEP Blackman v Parliament [1993] ECR II-837, paragraphs 5 and 6.

[11] Case F-55/08 DEP, order of 27 September 2011, not published in the ECR.

[12] See paragraphs 9-12 of the order. Article 92(1) reads as follows: "If there is a dispute concerning the costs to be recovered, the Court of First Instance hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie".

[13] The Ombudsman points out that only the Court of Justice may provide an authoritative interpretation of EU law.