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

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant was an official of the European Commission. Between 11 and 16 June 2002, he went on mission and travelled from Vienna to Copenhagen. The financial statement corresponding to his mission order did not comply with the Guide on Missions and the amount of reimbursement did not correspond to what he had spent.

On 14 March 2003, the complainant lodged an appeal under Article 90(2) of the Staff Regulations. The appeal was never forwarded to the responsible services. On 19 August 2003, the complainant lodged again an appeal under Article 90(2) to the Commission. This appeal was registered by Directorate General "Personnel and Administration" of the Commission on 28 August 2003.

Between December 2003 and February 2004, the complainant had several contacts with the person responsible for his file in order to complete it. During these discussions, the complainant was informed that he would receive a reasoned answer to his appeal.

In May 2004, the complainant contacted the person in charge of his file. He was again informed that he would receive a reasoned answer to his appeal made under Article 90(2) of the Staff Regulations.

On 15 July 2004, the complainant lodged a complaint with the European Ombudsman. He alleged that the Commission had failed to give him a reasoned answer to his appeal made under Article 90(2) of the Staff Regulations. He further alleged that the Commission's behaviour had deprived him of his right to lodge an appeal before the Court of First Instance of the European Communities.

The complainant claimed that he should receive a reasoned answer to his appeal made under Article 90(2) of the Staff Regulations.

THE INQUIRY

The Commission's opinion

The opinion of the European Commission on the complaint was in summary as follows:

In order to attend a meeting in Copenhagen on Wednesday 12 and Thursday 13 June 2002, the complainant had chosen to use an airplane ticket with the APEX fare amounting to EUR 396.21, an amount which had been lower than the standard reduced fare but which had implied spending the weekend on the spot. The complainant had followed the procedure in force for the establishment of his mission order.

After receiving the financial statement corresponding to his mission order on 18 January 2003, the complainant lodged an appeal under Article 90(2) of the Staff Regulations, via his immediate superior, on 14 March 2003. In this appeal, the complainant challenged the Commission's decision not to pay him the daily subsistence allowances for Friday 14 June, Saturday 15 June and Sunday 16 June 2002, pursuant to the provisions set out in Article VIII.1 of the Guide on Missions.

Fourth months later, after having noticed that his appeal had never been received by the "Appeals" Unit of the Commission, which is responsible for dealing with complaints made under Article 90 (2) of the Staff Regulations, the complainant lodged a second appeal with the relevant Unit concerning the same facts as those made in his first appeal. This second appeal was registered under reference R/517/03 on 28 August 2003. An acknowledgment of receipt was sent to the complainant on 1 October 2003.

In June 2004, the complainant contacted the relevant service by e-mail and then by telephone in order to get information on the progress in the handling of his appeal. The complainant was informed that, as already explained in the acknowledgment of receipt of 1 October 2003, a lack of reply by the Appointing Authority within a period of four months from the date on which the appeal was made was deemed to constitute an implied decision rejecting it.

It was regrettable that the complainant's first appeal sent to his immediate superior had never been forwarded to the "Appeals" Unit which was responsible for dealing with appeals made under Article 90(2) of the Staff Regulations. Once this Unit had been informed of this fact, it had decided to deal with the complainant's second appeal, in the latter's interest and in order to ensure a fair treatment of appeals, four months after the statutory deadline had expired. Appropriate measures had therefore been taken to correct the mistake resulting from an inadequate transfer of the complainant's first appeal between the Commission's relevant services.

The complainant was then sent an acknowledgment of receipt, informing him i) that the Appointing Authority had a four-month deadline from the date on which the appeal was made to communicate its reasoned decision; ii) that if, at the end of that period, no reply to the complaint had been received, this was deemed to constitute an implied decision rejecting it; and iii) that he could lodge an appeal before the Court of First Instance against an implied or express decision, under the conditions set out in Article 91 of the Staff Regulations (i.e., within a three-month deadline from the date of the notification of the decision or the date of the implied decision). In these circumstances, the complainant, who was supposed to know these rules, could not be unaware of the fact that the lack of a reasoned decision from the Commission by 28 December 2003 was deemed to constitute an implied decision rejecting his appeal and opened the statutory deadline to lodge an appeal before the Court of First Instance. The complainant's second appeal had therefore been dealt with in accordance with the rules in force. The complainant had not been deprived of his right to lodge an appeal before the Court of First Instance of the European Communities.

Without questioning the complainant's sincerity, it had to be pointed out that the latter did not submit any evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his appeal. There was no evidence of such an undertaking in the relevant file in the Commission's possession.

It had to be recalled that, although the Staff Regulations do not compel it to do so, the Commission endeavoured to give a reasoned decision in all appeals lodged with it. Nevertheless, in view of its limited resources and of the huge number of appeals, it might exceptionally occur that this practice is not followed. The Commission apologized for this situation.

Further inquiries
The Ombudsman's request for information from the European Commission

On 19 October 2004, the complainant sent the Ombudsman a further letter related to his complaint. In this letter, he pointed out that the first allegation of his complaint should be worded as follows:

"The Commission failed to give the complainant a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations, despite its commitment and its apparent intention to do so".

On 9 November 2004, the Ombudsman therefore wrote to Commission in order to ask it to comment on the complainant's allegation as reworded by the complainant.

The Commission's reply

In its reply, the Commission made in summary the following statements:

As stated in its first opinion, it could only be noted that that the complainant did not submit any evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his appeal. There was no evidence as regards this, in the relevant file in the Commission's possession, or in the file lodged with the European Ombudsman.

The Commission wished to express again its willingness to give a reasoned decision in all appeals lodged with it and apologised both to the Ombudsman and to the complainant for the fact that this practice exceptionally was not followed, for the reasons set out in its first opinion on the complaint.

The complainant's observations

No observations were received from the complainant by the date set for this purpose.

THE DECISION

1 The alleged failure of the Commission to give a reasoned answer to the complainant's complaint made under Article 90(2) of the Staff Regulations

1.1 The complainant was an official of the European Commission. Between 11 and 16 June 2002, he went on mission and travelled from Vienna to Copenhagen. In the complainant's view, the financial statement corresponding to his mission order did not comply with the Guide on Missions and the amount of reimbursement did not correspond to what he had spent. On 14 March 2003, the complainant lodged an appeal under Article 90(2) of the Staff Regulations. His appeal was never forwarded to the responsible services. On 19 August 2003, the complainant again lodged an appeal under Article 90(2) to the Commission. His appeal was registered by the Commission on 28 August 2003.

In his complaint to the Ombudsman, the complainant alleged that the European Commission had failed to give him a reasoned answer to his appeal made under Article 90(2) of the Staff Regulations.

1.2 In its opinion, the Commission stated that it was regrettable that the complainant's first appeal sent to his immediate superior had never been forwarded to the "Appeals" Unit which is responsible for dealing with appeals made under Article 90 (2) of the Staff Regulations. Once this Unit had been informed of this fact, it had decided to deal with the complainant's second appeal, in the latter's interest and in order to ensure a fair treatment of appeals, four months after the statutory deadline had expired. Appropriate measures had therefore been taken to correct the mistake resulting from an inadequate transfer of the complainant's first appeal between the Commission's relevant services.

The Commission explained that complainant had been sent an acknowledgment of receipt, informing him i) that the Appointing Authority had a four-month deadline from the date on which the appeal was made to communicate its reasoned decision; ii) that if, at the end of that period, no reply to the complaint had been received, this was deemed to constitute an implied decision rejecting it; and iii) that he could lodge an appeal before the Court of First Instance against an implied or express decision, under the conditions set out in Article 91 of the Staff Regulations. In these circumstances, the complainant could not be unaware of the fact that the lack of a reasoned decision from the Commission by 28 December 2003 was deemed to constitute an implied decision rejecting his appeal and opened the statutory deadline to lodge an appeal before the Court of First Instance.

1.3 On 19 October 2004, the complainant sent the Ombudsman a further letter related to his complaint. In this letter, he pointed out that the first allegation of his complaint should be worded as follows:

"The Commission failed to give the complainant a reasoned answer to his complaint made under Article 90(2) of the Staff Regulations, despite its commitment and its apparent intention to do so".

1.4 On 9 November 2004, the Ombudsman therefore wrote to Commission in order to ask it to comment on the complainant's allegation as reworded by the complainant.

1.5 In its further opinion, the Commission argued that, as stated in its first opinion, it could only be noted that the complainant did not submit any evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his appeal. In the Commission's view, there was no evidence as regards the complainant's statement, in the relevant file in the Commission's possession, or in the file lodged with the European Ombudsman.

1.6 The Ombudsman notes that, according to Article 90 (2) of the Staff Regulations, "(…) The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complainant has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91".

1.7 In his decisions on complaints 1479/99/(OV)MM and 729/2000/OV(2), the Ombudsman took the view that it was good administrative practice for the Appointing Authority to give an explicit reply to the appeals made by Community staff under Article 90 of the Staff Regulations. He further noted that when the Appointing Authority fails to do so, the person concerned is protected from further delay by the rule that the lack of reply constitutes a negative decision. In the Ombudsman's view, this rule aims to provide a legal remedy for an official where the Appointing Authority does not give an explicit reply, but does not authorise the Appointing Authority to depart from its obligation to comply with principles of good administration.

1.8 In the present case, the Commission should have replied to the complainant by 28 December 2003. The Ombudsman notes that in its opinion, the Commission stated that, although the Staff Regulations do not compel it to do so, it endeavoured to give a reasoned decision in all appeals lodged with it. Nevertheless, in view of its limited resources and of the large number of appeals, it might occur that, in exceptional circumstances, this practice is not followed. The Commission apologized for this situation. The Ombudsman takes the view that the Commission's limited resources and a possibly large number of appeals to be dealt with are not adequate reasons which could justify the Commission's failure to give a reasoned decision on the complainant's appeal. The Ombudsman notes that, in its two opinions, the Commission apologised both to the complainant and to the Ombudsman for its failure to give a reasoned decision on the complainant's appeal. However, the Ombudsman further notes that, in these opinions, the Commission did not discuss the reasons for its decision to reject the complainant's appeal. In the Ombudsman's view, the complainant has therefore still not been informed of these reasons. In view of this fact, the Ombudsman considers that the Commission's failure to give a reasoned answer to the complainant's appeal made under Article 90 (2) of the Staff Regulations on 19 August 2003 constitutes an instance of maladministration.

1.9 The Ombudsman notes that, concerning the allegation of the complainant pursuant to which "The Commission failed to give the complainant a reasoned answer to his complaint made under Article 90 (2) of the Staff Regulations, despite its commitment and its apparent intention to do so", the Ombudsman notes that the Commission stated that the complainant had not submitted evidence to show that the official in charge of his file had expressly informed him that there would be a reasoned decision on his appeal. The Ombudsman takes the view that it is not obvious from the documents submitted to him that the official in charge of the complainant's file had expressly informed him that there would be a reasoned decision on his appeal. However, in view of his conclusion in paragraph 1(8) mentioned above, the Ombudsman considers that that there are no grounds for further inquiries into this aspect of the complainant's allegation.

2 The allegation that the Commission's behaviour had deprived the complainant of his right to lodge an appeal before the Court of First Instance of the European Communities

2.1 The complainant alleged that the Commission's behaviour had deprived him of his right to lodge an appeal before the Court of First Instance of the European Communities.

2.2 The Commission stated that, on 1 October 2003, an acknowledgment of receipt had been sent to the complainant, informing him i) that the Appointing Authority had a four-month deadline from the date on which the appeal was made to communicate its reasoned decision; ii) that if, at the end of that period, no reply to the complaint had been received, this was deemed to constitute an implied decision rejecting it; and iii) that the official could lodge an appeal before the Court of First Instance against an implied or express decision, under the conditions set out in Article 91 of the Staff Regulations.

2.3 The Ombudsman considers that the complainant was given sufficient information in the acknowledgment of receipt as regards his right to lodge an appeal with the Court of First Instance. He therefore takes the view that the complainant could have lodged an appeal with the Court of First Instance after 28 December 2003, if he had wished to do so. The Ombudsman notes that the complainant argued that between December 2003 and February 2004, he had had several contacts with the person responsible for his file at the Commission and that he had been informed, on these occasions, that he would receive a reasoned answer to his appeal. However, the only relevant evidence that has been put at the Ombudsman's disposal is a copy of the complainant's e-mail of 9 June 2004. In this e-mail, the complainant referred to a conversation with the official responsible of his file that had taken place some three weeks before. On the occasion of this conversation, the complainant had been informed, according to his e-mail of 9 June 2004, that the reasoned decision on his appeal was ready for signature. Even on the assumption that this e-mail could be considered as evidence proving that the Commission had indicated that it would provide a written reply to the complainant's appeal made under Article 90 of the Staff Regulations, it should be noted that this information was given to the complainant in May 2004, i.e., after the expiry of the three-month deadline for lodging an appeal with the Court of First Instance. In these circumstances, the Ombudsman considers that the complainant has not submitted sufficient evidence to show that the Commission's behaviour deprived him of his right to lodge an appeal before the Court of First Instance of the European Communities. The Ombudsman therefore concludes that there appears to have been no maladministration by the European Commission as regards this allegation.

3 Conclusion

The Ombudsman therefore makes the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The European Commission should give a reasoned reply to the complainant's appeal made under Article 90 (2) of the Staff Regulations on 19 August 2003.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 31 October 2005. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 22 July 2005

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) These decisions are available on the European Ombudsman's website at the following address: http://www.ombudsman.europa.eu/decision/en/default.htm