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

The background to the complaint

1. The complainant is a Commission official. In September 2008, he went on a mission to a third country together with a colleague (who submitted complaint 2749/2009/KM). The mission was planned as follows:

Friday 19/9: Departure from Brussels airport at 10:00;

Saturday 20/9: Arrival at 06:25 local time;

Sunday 21/9: Rest day;

Monday 22/9 09:00 – Friday 26/9 18:00: Work;

Saturday 27/9: Free;

Sunday 28/9: Return flight departing at 09:15 and arriving in Brussels at 18:05.

2. The relevant mission order was approved by the authorising officer, the complainant's Director, in accordance with the Mission Guide applicable at the time[2]. The mission was carried out in line with the approved plan. On his return, the complainant completed an expenses declaration, which was again approved by the authorising officer.

3. According to point 1.1 of the 2004 Mission Guide, a mission order must be signed by the immediate superior of the official going on mission and by the authorising officer. Point 1.2 adds that "the signing of the travel order by the authorising officer entitles the staff member to reimbursement of the costs incurred within the regulatory limit in force."

4. Point 1.5 of the 2004 Mission Guide sets out the duties of an authorising officer when authorising a mission:

"Authorising officers have to manage the resources for which they are responsible. To this end, they must evaluate whether or not missions and requests for exceptions submitted by staff going on mission are justified, and substantiate any exception to the general rules applicable having regard to the requirements of the service and in conformity with the rules of sound financial management, in particular economy and cost effectiveness."

5. In relation to the substantive matters at issue in the present complaint, point 4.4 of the 2004 Mission Guide provides as follows:

"(2) Where the fare conditions require a weekend stay (Sunday rule), additional daily allowances may be paid where cost-effective.

The approved travel agency must provide the different rates available (including/not including a weekend stay) so that the member of staff going on mission, the immediate superior and the authorising officer can reach a decision with full knowledge of the facts…

(3) Where a journey involves a time difference of more than four hours, a day's rest is to be allowed at the place of the mission before official engagements begin."

6. Point 9.1 of the 2004 Mission Guide contains the following rules:

"If the leave (taken at the place of mission or on the way between the place of employment and the place of mission) precedes and/or follows the mission, the daily subsistence allowances are calculated from the time at which the meetings actually begin and/or up until the end of the meetings. Where a reduced-rate fare requiring a weekend stay has been obtained, allowances will be calculated to take account of the extra days required by that type of fare, with the exception of working days and/or public holidays."

7. At first, the complainant received the entirety of the expenses he claimed in his mission declaration, apart from the costs of a taxi ride to and from Brussels airport (around EUR 60). However, the Commission's Office for the Administration and Payment of Individual Entitlements (the 'PMO') questioned the expenses claimed by the colleague with whom the complainant had undertaken this mission, in particular in relation to the fact that the officials left Brussels on Friday 19 September and thus spent the weekend at the place of mission. The PMO subsequently also recalculated the reimbursement due to the complainant and reclaimed parts of the sum that had already been disbursed, namely, daily allowances for 2.5 days (EUR 137.50), one 'fixed allowance' (EUR 54.25) and part of the hotel costs (EUR 141.17), thus totalling EUR 332.92. When the complainant objected, the PMO argued that missions had to be as short as possible and that any extensions to the length of a mission which are not justified by the needs of the mission had to be regarded as extensions "for personal convenience". If such an extension meant that an official would be absent from work, such absence constituted annual leave. The PMO noted that there was a flight departing on Saturday which would have allowed the complainant to arrive at 06:25 on Sunday. If he had taken that flight, he would still have had a day's rest, which it defined as 24 hours before work.

8. On 27 January 2009, the PMO wrote to the complainant's Director. It confirmed its view that the mission should have commenced on Saturday 20 September 2008, rather than Friday 19 September 2008. Based on the principle of sound financial management, a "fictional calculation" had to be made to determine the amount payable to the complainant. This meant that the mission would be treated as only having begun on Monday 22 September 2008.

9. On 16 February 2009, the complainant submitted an Article 90(2) complaint. He complained that he had not received a properly reasoned reply from the PMO justifying why his mission expenses had been reclaimed. He also challenged the PMO's decision on four further grounds:

(1) He contested the classification of his mission as a "mission with leave". He had not taken Friday 19 September 2008 off because on that day he travelled to the place of mission.

(2) He questioned the PMO's view that an arrival at 06:25 on Sunday morning would have allowed him "a day's rest", which the PMO defined as a rest period of 24 hours before work. The complainant argued that there was nothing in the 2004 Mission Guide to support this argument and that, conventionally, a 'day' ran from midnight to midnight.

(3) The complainant challenged the decision not to reimburse the costs of the taxi to and from Brussels airport.

(4) The complainant also challenged the implicit assumption that a mission beginning on Saturday rather than Friday would have been more cost-effective. As with the Saturday 27 September/Sunday 28 September return flights (where departure on Saturday was EUR 680 cheaper than that on Sunday), the Saturday 20 September flight was significantly more expensive than the Friday 19 September flight. However, because airlines do not archive information on prices at given dates, the complainant could not prove that this was the case. He could have done so when he planned the mission.

10. The complainant recalled that he had discussed the mission plan "at length" with his superiors. The Head of Section, the Deputy Head of Unit, the Head of Unit and the Director (the authorising officer) all agreed that this mission was in line with the guidelines set out in the 2004 Mission Guide. He could therefore legitimately expect that all mission expenses incurred in accordance with the plan would be reimbursed.

11. On 19 June 2009, the Commission rejected the Article 90(2) complaint. It argued that provisions on financial entitlements had to be interpreted narrowly. It thus upheld the PMO's interpretation of "a day's rest". In its view, the complainant could have set off from Brussels on Saturday, which meant that Friday was a day off work for him. According to point 9.1 of the 2004 Mission Guide, in such cases, the mission only begins on Monday and the daily allowance is only paid from Monday onwards. The costs of the hotel for Saturday night would not be reimbursed either. The taxi costs were not awarded because such costs could only be paid when the flight departed before 09:00 or landed after 22:00, whereas the complainant's flight departed at 10:00 and landed at 18:00.

12. Nevertheless, the PMO subsequently reimbursed the taxi costs.

The subject matter of the inquiry

13. The complainant submitted the following allegations:

(1) The PMO wrongly refused to reimburse the entirety of the mission expenses he incurred in relation to his mission in September 2008.

In support of this allegation, he submitted the following arguments:

(a) His Director, acting as authorising officer, signed both the mission order and the expenses declaration. This gave him the legitimate expectation that the expenses he incurred in accordance with the mission order would be paid in full.

(b) The Commission initially reimbursed the entire amount of his expenses. It only reopened the matter when he supported his colleague, who went on the same mission, in his efforts to have his expenses reimbursed in full.

(c) The Commission unlawfully declared Friday 19 September 2008 as a day of leave. This was in spite of the fact that he did not request leave for that day and used it to travel to the place of mission, in accordance with the mission order.

(d) The Commission wrongly interpreted the term "a day's rest" in order to deny his expenses incurred in accordance with the mission order.

(2) The Commission rejected his Article 90(2) complaint without sufficiently explaining its decision, mainly as regards the amounts that it refused and its interpretation of the notion of "a day's rest".

14. The complainant also submitted the following claims:

(1) The Commission should reimburse the outstanding sums plus interest.

(2) In the future, the Commission should act consistently with approved mission orders and expense declarations.

The inquiry

15. The complaint was submitted on 5 October 2009. On 9 November 2009, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.

16. The Commission submitted its opinion on 2 March 2010. It was forwarded to the complainant on 4 March 2010 with an invitation to submit observations on it. The complainant sent his observations between 4 March and 19 April 2010.

17. On 12 May 2010, the Ombudsman asked the Commission for further information. The Commission sent its reply on 16 August 2010 and the Ombudsman forwarded it to the complainant on 18 August 2010 with an invitation to submit observations on it. The complainant sent his observations on 19 August 2010.

18. On 28 February 2011, the Ombudsman asked the Commission to provide him with the Mission Guide which was in force at the time when the complainant went on mission, that is, the 2004 Mission Guide. He also asked for the Mission Guide in force from January 2009[3] and for any other documents that could clarify the division of responsibilities between the authorising officer and the PMO.

19. The Commission sent the requested documents on 22 March 2011. On 31 March 2011, the Ombudsman forwarded them to the complainant with an invitation to make observations before 30 April 2011. No observations were received by that date.

The Ombudsman's analysis and conclusions

Preliminary remarks

20. As stated above, the complainant submitted two allegations and two claims. His second allegation was that the Commission failed to reason its rejection of his Article 90(2) complaint. The Commission did not comment expressly on this issue.

21. However, in view of the substantive explanations provided in the Commission's opinion and in its replies to his request for further information, the Ombudsman considers that it is no longer necessary for him to deal with the second allegation.

A. Alleged error concerning the reimbursement of mission expenses and related claim

Arguments presented to the Ombudsman

22. In his complaint to the Ombudsman, the complainant alleged that the Commission wrongly refused to reimburse the entirety of his mission expenses in relation to his mission in September 2008. In particular, it wrongly defined Friday 19 September as a day of leave and wrongly interpreted the "day's rest" which must be granted to officials who have to undertake tiring journeys. He underlined that he had carried out his mission in accordance with the mission order which had been approved by his superiors. He therefore claimed that the Commission should reimburse the sum deducted (EUR 332.92) plus interest.

23. In its opinion, the Commission noted, in relation to the question of leave, that the complainant had left on mission on Friday 19 September 2008, which was a working day. Point 9 of the 2004 Mission Guide stated that where leave was taken before the mission, the daily allowance was calculated from the time when official meetings actually began. However, point 4.4(2) of the 2004 Mission Guide provided that additional daily allowances could be paid where this was cost-effective, taking into account that plane tickets including a weekend stay may be cheaper (the 'Sunday rule'). It had been established that the price difference between the flights on Saturday 27 and Sunday 28 September 2008 justified extending the mission. While the actual prices for the Friday 19/Saturday 20 flights were no longer available, it was likely that the travel agency recommended the combination Friday 19 September to Sunday, 28 September as the cheapest option. In fact, point 4.4 (2) obliged the travel agency to provide the different rates that were available. The Commission therefore accepted that the authorising officer had acted in full knowledge of the facts and with due regard to the principle of cost-effectiveness when authorising the mission. In the Commission's view, the cost-effectiveness of the travel plans would have been a proper justification for extending the mission. Friday, 19 September 2008 could therefore not be regarded as a day of leave.

24. As regards the interpretation of the term "a day's rest", the Commission first noted that the Court of Justice of the EU has consistently required that provisions which confer a financial advantage on members of staff be interpreted strictly. However, there was nothing in the 2004 Mission Guide to support the PMO's initial interpretation of a "day's rest" as meaning 24 hours before the meeting for which the official in question had travelled. In any event, even if this interpretation were to be followed, the time for travelling from the airport to the venue of the meeting had to be taken into account, in which case a flight arriving on Sunday morning would not have allowed the complainant a period of 24 hours' rest. This was another element which justified the departure on Friday, 19 September.

25. The authorising officer approved the mission order which foresaw a departure on Friday, 19 September 2008 and did not refer to any days of leave. According to point 1.2 of the 2004 Mission Guide, this approval entitled the official to reimbursement of the costs incurred, within the regulatory limits in force. The Commission underlined that, if the PMO considered that there was a problem with the execution of the mission, it should have informed the services concerned in order to prevent such problems from arising in future. It should not have penalised the official who went on mission.

26. The Commission stated that it had thus reconsidered its position and was now of the view that the deductions which the PMO made were not justified. It stated that it was in favour of a positive decision which meant that the complainant would receive the reimbursement he had requested.

27. On 22 March 2010, that is, around two weeks after the Ombudsman had forwarded this opinion to him, the complainant turned to the PMO and asked when he would be reimbursed and how the interest would be calculated. He also asked for a copy of the guidance issued to the PMO's staff in order to avoid similar problems in future. On 19 April 2010, the Commission informed the complainant that the sum of EUR 335.34[4] would be paid into his account. When the complainant reminded the Commission that he had also claimed interest, it replied, on 19 April 2010, that it would not pay any interest.

28. The complainant informed the Ombudsman of the above reply. It seemed that this reply indicated that the Commission intended to distance itself from the statements it had made in its opinion. The Ombudsman therefore asked the Commission to specify its position on the issue of interest, which the complainant had claimed but the Commission had not commented on in its opinion, and, more generally, to clarify its position on the substance of the complaint in light of the fact that the e-mail which it sent to the complainant on 19 April 2010 appeared to contradict the position it had adopted in its opinion.

29. In its reply, the Commission stated that it did not see any contradiction between its opinion, in which it reconsidered, on the basis of the specific complaint, the PMO's rejection of the expenses submitted by the complainant, and the e-mail it had sent to the complainant on 19 April 2010, in which it had stated that it had treated the case as an individual matter.

30. As regards the complainant's claim for interest, the Commission noted that the initial decision had been correct under the 2004 Mission Guide applicable at the time. In its opinion, it had taken into account the particular situation of the applicant and had also anticipated some changes brought about by the 2009 Mission Guide, which was more favourable to the official sent on mission. Therefore, its decision to accept the expenses claimed by the complainant did not give the latter a right to interest on account of late payment, given that, before it had reconsidered its position in the opinion, he did not have a right to this payment.

31. In his observations, the complainant pointed out that it was unclear what changes were being referred to by the Commission and that the Commission's opinion did not refer to any amendments made to the Mission Guide.

32. Finally, the complainant observed that the Commission argued that no interest was due on the ground that its decision to grant him the sum he had claimed was based on the fact that it applied the more favourable rules set out in the 2009 Mission Guide. In other words, the relevant sum was not due to the complainant until the Commission decided to grant it to him. The complainant strongly disputed this analysis and maintained his claim that interest was due on the sum unlawfully claimed back from him following the Commission's erroneous assessment of the reimbursement.

The Ombudsman's assessment

33. In its opinion, the Commission stated that the deductions which the PMO had made were not justified, given that (i) the travel agency and the authorising officer could be assumed to have complied with their duties and that the travel arrangements made were thus more cost-effective than the approach suggested by the PMO and that (ii) the PMO's interpretation of "a day's rest" and its classification of a travel day as a day of leave were not borne out by the Mission Guide. The Ombudsman considers this view reasonable and commends the Commission for reconsidering and modifying its position accordingly.

34. The Commission subsequently reimbursed the expenses claimed by the complainant. To that extent, the complainant's claim can be regarded as having been settled. However, it refused to pay interest on account of late payment. In reply to the Ombudsman's question concerning this issue, the Commission submitted that its decision to reimburse the expenses had anticipated some changes made in the new 2009 Mission Guide which was not applicable at the time of the complainant's mission and that thus no interest was payable.

35. Having carefully analysed the Commission's opinion, the Ombudsman cannot but conclude that this opinion did not rely on the 2009 Mission Guide or on any changes that the new version might contain when compared with the 2004 Mission Guide. Instead, the Commission clearly argued on the basis of the 2004 Mission Guide, from which it cited, and relied on the concept of fairness to come to the conclusion that the PMO's decision to reclaim the relevant sum from the complainant was not justified. The Ombudsman further notes that, in its reply to his request for further information, the Commission did not provide any details whatsoever as regards the alleged impact of the 2009 Mission Guide on its position.

36. In addition, the Ombudsman has carefully examined the relevant provisions of the 2004 and 2009 Mission Guides. However, he is unable to see how applying the 2009 Mission Guide would result in treating the complainant's situation more favourably than would have been the case under the 2004 Mission Guide. The Ombudsman also notes with concern that the Commission's reply to his request for further information suggests that the position it adopted in its opinion, that is to say, its decision to reimburse the relevant amount, was a concession, rather than the result of the correct application of the relevant rules.

37. It must therefore be concluded that the Commission has not provided a convincing explanation as to why it should not be obliged to pay interest on account of late payment in the present case. The Ombudsman will therefore make a corresponding draft recommendation below.

B. Claim that the Commission should act more consistently in future

Arguments presented to the Ombudsman

38. In his complaint to the Ombudsman, the complainant claimed that the Commission should act more consistently in the future, with regard to mission orders. The Commission did not deal with this claim in its opinion.

39. In his e-mail of 22 March 2010, the complainant asked the Commission to inform him of the steps that had been taken in this regard and whether it had issued any new interpretative guidance to ensure that the errors which had been made in his case (wrongly declaring a travel day as a day of leave and misinterpreting the notion of "a day's rest") would not be repeated.

40. The Commission replied that its decision only concerned the complainant's individual case (and that of his colleague). The PMO's practice and its interpretation of the relevant rules were not affected and therefore no new guidance was necessary.

41. The complainant informed the Ombudsman of the above-mentioned reply. He therefore asked the Commission to clarify its position in this regard. In its reply, the Commission reiterated its view that there was no need for any further action on its part.

42. As regards the Ombudsman's question concerning the respective responsibilities of the authorising officer and the PMO, the Commission again referred to the procedure foreseen in the Mission Guide. Thus, the official who intends to go on mission must submit his mission documents and any requests for exceptions to the authorising officer. According to Point 1.4 of the 2009 Mission Guide, the authorising officer then evaluates whether the request is justified, having regard to the requirements of the service and the financial rules and, in particular, the principles of cost effectiveness and economy. The authorising officer may consult the PMO where necessary, and the PMO must inform the authorising officer in good time of any problems it perceives. The Mission Guide further states that the authorising officer's signature on the mission order entitles the official to reimbursement of his expenses in so far as these are not contrary to the regulations in force. It is the PMO's role to check that the authorising officer has complied with these regulations. The Commission underlined that the authorising officer has "every interest in ensuring that the budget allocated to each Directorate-General for their missions is correctly managed".

43. The Commission concluded by emphasising that officials may not claim mission expenses if these are not in line with the regulations in force and that the PMO must continue to play its role as the entity which ensures that the Mission Guide is applied correctly.

44. In his observations, the complainant criticised the fact that the Commission continued to refuse to provide a workable definition of the notion of "a day's rest". This left officials who were planning a mission without any certainty in this regard. Furthermore, the Commission had stated that "[g]iven that the mission could be carried out within the expenditure limits permitted under the provisions in force, the Commission considered that it could be disproportionate to pass on part of the costs to the official who had been on mission". The complainant did not understand this sentence, wondering in particular what the Commission meant by "could be disproportionate" and "part of the costs". In his view, the Commission's further statement that "since the mission order is normally submitted for the authorising officer's signature by the official going on mission, the latter cannot claim reimbursement of mission expenses if they are contrary to the regulations in force" was equally unclear. In particular, it left unanswered the question why the financial responsibility for a mission approved by the authorising officer and carried out in line with the mission order should lie with the official who is sent on mission if the PMO refuses the request for reimbursement of the expenses.

The Ombudsman's assessment

45. Both the 2004 and the 2009 Mission Guides state that, once a mission order is signed by the relevant authorising officer, the official is entitled to reimbursement in accordance with that mission order "within the regulatory limit in force" (2004 Mission Guide) or, in the formulation of the 2009 Mission Guide, "subject to the rules in force". However, the present case shows that disputes can arise as to (i) what these regulatory limits are and (ii) what consequences ensue from an authorising officer's failure to comply with the relevant rules when authorising a mission.

46. In relation to the first issue, the Ombudsman notes that, as regards the concept of "a day's rest", which is not defined in the 2004 and 2009 Mission Guides, there would appear to be two possible interpretations, that is to say: (i) that it covers an entire day from midnight to midnight; or (ii) that it covers the period of 24 hours immediately preceding the moment when the official engagements for which the mission was undertaken begin. In its opinion, the Commission stated that there was nothing in the Mission Guide to support the second option, which had been adopted by the PMO. However, in its reply to the Ombudsman's request to clarify its e-mail of 19 April 2010, the Commission suggested that there was no basis in the Mission Guide for the first option, which the complainant had put forward. The Commission instead submitted that the interpretation of this notion cannot be generalised and must take account of individual circumstances.

47. It is thus obvious that there is a lack of clarity as regards the said notion. The Ombudsman considers, however, that the substantive rules on financial entitlements should be as clear as possible, so as to avoid unnecessary disputes.

48. This uncertainty in relation to the substance of some of the rules on mission expenses is exacerbated by the lack of clear rules on the relationship between the authorising officer and the PMO. When the Ombudsman asked to be provided with any documents, other than the Mission Guide, which describe the relationship between these two actors, the Commission informed him that there were no such documents. It also underlined that the Mission Guide states that the authorising officers are called upon to check that a mission request is justified, but that the PMO has to continue to be able to exercise its role as the entity which controls the correct application of the relevant financial rules. In the Commission's view, this meant that an official may not claim reimbursement of his travel expenses if these are not within the regulatory limits in force.

49. The Ombudsman understands and appreciates the Commission's concern for the PMO's ability to exercise its control role. He also agrees that provisions granting financial benefits should be interpreted strictly. However, the Ombudsman considers that it would in principle be unfair on an official to refuse to reimburse the expenses arising from a mission that was approved by the relevant authorising officer and that was carried out in accordance with the plan thus approved if it subsequently emerges that the authorising officer failed to comply with the relevant rules when authorising that mission. In fact, it is the authorising officer's role to check compliance with the regulations in force. Therefore, the authorising officer can and must be expected to know the rules. If a mistake is made by the authorising officer in this context, it should be primarily that official who should be held responsible, and not the official who carried out his mission in accordance with what had been approved. The Ombudsman agrees that there can be cases where the PMO may be entitled to take the view that the official who has carried out the mission should himself be asked to shoulder the financial consequences of the error that has occurred. Article 85 of the Staff Regulations stipulates that any sum overpaid to an official 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 Ombudsman considers that the same logic should apply in cases like the present one[5]. In all other cases, a disagreement between the authorising officer, who signed the mission order and therefore agreed that it was in line with the relevant rules, and the PMO, should be resolved without the official who was sent on mission suffering any consequences. The Ombudsman recalls that this would seem to correspond to the position that the Commission itself adopted in its opinion on the present complaint.

50. In conclusion, it results from the above that the current rules are not sufficiently clear both as regards (i) the concept of "a day's rest" and (ii) the consequences that ensue when a mission is authorised by the authorising officer and the PMO subsequently takes the view that the mission should not have been so authorised. It is therefore clearly necessary to clarify the relevant rules. Such a clarification should indicate that it is primarily for the authorising officer, where necessary in cooperation with the PMO, to ensure that the rules are complied with and that any failure to do so should only have financial consequences for the official sent on mission if the official knew that the rules were applied wrongly or where the mistake was so obvious that he could not have been unaware of it. The Commission's refusal to issue appropriate guidance to clarify these matters is an instance of maladministration. The Ombudsman will therefore make a corresponding draft recommendation below.

C. The draft recommendations

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendations to the Commission:

The Commission should pay interest on the mission expenses which it unlawfully recovered from the complainant.

The Commission should issue appropriate guidance on (i) the meaning of the concept of "a day's rest" and (ii) the consequences that ensue when a mission is authorised by the authorising officer and the PMO subsequently takes the view that the mission should not have been so authorised.

The Commission and the complainant will be informed of these draft recommendations. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 March 2012. The detailed opinion could consist of the acceptance of the draft recommendations and a description of how they have been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 20 December 2011

---

[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] General implementing provisions adopting the Guide to missions for officials and other servants of the European Commission, C(2004) 1313 final, hereinafter the "2004 Mission Guide".

[3] General implementing provisions adopting the Guide to missions for officials and other servants of the European Commission, C(2008) 6215 final, hereinafter the "2009 Mission Guide".

[4] This sum differs slightly from the sum which was claimed by the complainant (see paragraph 7 above). This difference seems to result from corrective factors relating to the exchange rate.

[5] It should be recalled that the complainant first received the mission expenses he had claimed and that these were subsequently reclaimed. Article 85 of the Staff Regulations was therefore applicable in his case.