The background to the complaint

1. The complainant worked for the European Parliament as a contractual agent between 1 October 2008 and 30 September 2011. He has a disability. His son, who was diagnosed with autism, was enrolled in one of the European Schools in Brussels in the framework of a programme for children with special educational needs. Subsequently, however, the School decided that it could no longer provide for his son's needs.

2. The complainant then enrolled him in a German-speaking school in Eupen, Belgium, where he stayed with his mother. The school provided a special programme, for which the complainant received financial assistance from Parliament. Parliament withheld 5% of the complainant's salary as part of the complainant's contribution to the educational costs.

The subject matter of the inquiry

3. When opening the present inquiry, the Ombudsman took note of the fact that the complainant had addressed a significant number of letters and e-mails to Parliament's services over the past years putting forward a number of grievances, not all of which were clear. The Ombudsman considered that it would not be appropriate to try and deal with each and every one of these issues. Nor did he consider that doing so would be in the complainant's interest. He instead decided to focus on what he considered to be the core of the complainant's case. Therefore, the Ombudsman decided to open an inquiry into the following allegation and claim:

Allegation:

Parliament failed to act properly, fairly and in conformity with principles of good administration when declining to provide the complainant with the assistance that was due to him. More particularly, Parliament failed to (i) cover the entirety of the educational costs for the complainant's son, and instead requested him to bear 5% of these costs himself; (ii) provide him with compensation or reimbursements for certain types of damages and expenditures mentioned in his complaint to the Ombudsman dated 1 January 2011, which was enclosed with his complaint under Article 90(2) of the Staff Regulations dated 8 March 2011 (for example, loss of income due to the fact that the complainant had to take family leave, costs of renting a car for travelling between Brussels and Hamburg, loss of a deposit in relation to a flat); and (iii) maintain its contribution to the educational costs for the complainant's child beyond the expiry of the complainant's employment contract with Parliament.

Claim:

Parliament should pay the complainant the amounts that he considers to be due to him.

4. In his opening letter, the Ombudsman drew Parliament's attention to the fact that, in case 1391/2002/JMA,[1] he had already presented a Special Report concerning the situation of officials whose children with special educational needs had been excluded from the European Schools and who were required to contribute to their children's educational costs.

The inquiry

5. On 19 August 2011, the Ombudsman opened the present inquiry. On 6 December 2011, Parliament submitted its opinion on the complaint. On 12 December 2011, 29 May 2012 and 18 September 2012,[2] the complainant submitted his observations.

6. On 9 July 2013, the Ombudsman's services contacted the complainant to inform him of the outlines of the Ombudsman's proposal for a friendly solution. The complainant was informed that his agreement was necessary in this respect.

7. On 10 July 2013, the complainant informed the Ombudsman that he needed more time for what appeared to be an evaluation of the Ombudsman's proposal by third parties.

8. On that same day, the Ombudsman's services informed the complainant that they had full understanding of the complainant's need to consider the proposal for a friendly solution. At the same time, they pointed out that the complainant had stressed his difficult financial situation in the preceding weeks, as a result of which, his case had been dealt with as a matter of priority. Therefore, the complainant was asked for an answer by 15 July 2013 as to whether he wished the Ombudsman to proceed with the proposal for a friendly solution.

9. Still on 10 July 2013, the complainant expressed his agreement with the proposal for a friendly solution.

10. On 16 July 2013, the Ombudsman submitted the following proposal for a friendly solution to Parliament: "Taking into account the complainant's difficult financial and personal situation as well as the Ombudsman's findings, Parliament could consider covering the remaining 5 % of the educational costs of the complainant's son".

11. On 17 July 2013, the complainant sent a number of e-mails to the Ombudsman's services, in which he underlined that he was not in agreement with the Ombudsman's proposal for a friendly solution. The complainant stressed in particular that, in order to be acceptable to him, any proposal for a friendly solution must include compensation for the immaterial damage he claimed to have suffered (see also points 15 and 16 below). The complainant also stated that he had lost confidence in the current Ombudsman and that his case should therefore be dealt with by the recently-elected new Ombudsman who would take up her duties on 1 October 2013.

12. The Ombudsman's services informed the complainant on that same day that the Ombudsman regretted the fact that the complainant no longer agreed with the proposal for a friendly solution. However, the Ombudsman saw no reason to modify his proposal in the sense outlined by the complainant. The Ombudsman therefore informed the complainant that, unless the latter were to change his mind, he would withdraw his proposal and decide upon the case on the basis of the available information. Moreover, the Ombudsman informed the complainant that he saw no reason to suspend the handling of the complainant's case until the new Ombudsman had taken up her duties.

13. Still on 17 July 2013, the complainant replied that, in his view, any compensation of less than 1 million Euros for him and his family was unacceptable. The complainant added that he was very dissatisfied with the time it had taken the Ombudsman to deal with his case, the narrow scope of the Ombudsman's proposal for a friendly solution and what he considered to be the Ombudsman's incompetent assessment of the discrimination he claimed to have suffered. He pointed out that if the Ombudsman were to proceed as outlined in the earlier e-mail of that day, he would turn to all the members of the Committee on Petitions of the European Parliament.

The Ombudsman's analysis and conclusions

Preliminary remarks

14. Parliament's comments in its opinion on the various aspects of the allegation implied that it was of the view that the complainant had not properly exhausted all the possibilities for submitting internal administrative requests and complaints. On this issue, the Ombudsman noted that Parliament treated the complainant's initial complaints as requests pursuant to Article 90(1), and that the complainant subsequently lodged internal administrative complaints against Parliament's decisions on his requests pursuant to Article 90(2) of the Staff Regulations. It was therefore not easy to see how it could be argued that the complainant had failed to exhaust the possibilities for submitting internal administrative requests and complaints, as required by Article 2(8) of the Ombudsman's Statute. However, in light of the conclusions that he reaches on the substance of the present case, the Ombudsman considers that it is not necessary to examine this issue in more detail.

15. In his observations on Parliament's opinion, the complainant put forward a number of issues and, among other things, added a claim for damages due to alleged immaterial losses,[3] which do not fall within the framework of the present inquiry. When making his proposal for a friendly solution, the Ombudsman took the view that in the interest of a focused investigation and with due respect to the conditions of admissibility, it was appropriate for him to concentrate his inquiry on the core issues, as set out in the allegation and the claim.

16. As mentioned above, the complainant subsequently informed the Ombudsman that he objected to the proposal for a friendly solution, unless the Ombudsman were to modify this proposal so as to envisage compensation for the alleged immaterial damages amounting to at least 1 million Euros. In this respect, the Ombudsman considers it useful to point out that the complainant does not appear to have exhausted all the possibilities for submitting internal administrative requests and complaints in relation to this claim. For this reason, this claim is inadmissible pursuant to Article 2(8) of the Ombudsman's Statute. Besides, and as explained below under point 41, certain conditions need to be met cumulatively so as to engage the non-contractual liability of EU institutions. At first sight, the Ombudsman is not convinced that this is the case in relation to the complainant's claim for immaterial damage.

A. The alleged failure to act properly, fairly and in conformity with principles of good administration by having declined to provide the complainant with the assistance due to him

Arguments presented to the Ombudsman

(i) Alleged failure to cover in their entirety the educational costs of the complainant's son

17. The complainant essentially alleged that Parliament discriminated against him in comparison to other officials whose children attended the European Schools, by not fully covering his con's educational costs. In this context, the complainant invoked, inter alia, the Ombudsman's Special Report in complaint 1391/2002/JMA.

18. Parliament confirmed that it has taken care of 95% of the educational costs for the complainant's disabled child pursuant to the inter-institutional Provisional Guidelines for Implementation of the Budget Heading 'Supplementary Aid for the Disabled' concerning Welfare Appropriations for Disabled Persons ("the Guidelines").[4]

19. The Guidelines stipulated that officials or other servants needed to make a contribution depending on their income. In the case of the complainant, the financial contribution in question amounted to 5% of the expenses incurred, the remaining 95% being covered by Parliament.

20. Parliament noted that the complainant initially appeared to welcome the decision to grant him reimbursement of the educational costs in accordance with the Guidelines. Subsequently, when the complainant started claiming that he was a victim of discrimination compared to officials whose children were admitted to the European Schools, it consistently informed him of the content of the Guidelines and confirmed their correct application in his case.

21. Parliament noted that the Ombudsman invoked his Special Report of 27 May 2005 in case 1391/2002/JMA. Following that Special Report, a working party reporting to the inter-institutional Committee for the preparation of social measures (CPAS) was entrusted with the task of proposing to the Heads of Administration amendments to the Guidelines.

22. Parliament pointed out that, prompted by its Members' resolution of 6 April 2006 on the Ombudsman's Special Report,[5] it had displayed a constructive attitude throughout the CPAS' works. So far, the Heads of Administration could not yet reach an agreement to improve the Guidelines on the basis of the works of the CPAS. Parliament hoped that the standstill situation would come to an end shortly and that works could be resumed to the satisfaction of all parties concerned.

23. Parliament was convinced that the rules in the Guidelines, as applied in the complainant's case, were fully consistent with the Staff Regulations. In particular, Parliament pointed out that, based on the opinion rendered in 2003 by the Commission's Legal Service, the system in question was not discriminatory on grounds of disability.

24. The complainant essentially expressed his disagreement with Parliament's above mentioned submissions.

(ii) Alleged failure to compensate or reimburse certain types of damages or expenditures

25. The complainant considered that Parliament should provide him with compensation or reimbursement for certain types of damages and expenditures mentioned in his complaint to the Ombudsman dated 1 January 2011.

26. Parliament stressed that, in addition to systematically reimbursing the complainant for the expenses he was entitled to recover pursuant to the applicable rules, it made a one-off, exceptional payment to him in accordance with Article 76 of the Staff Regulations. In consideration of the complainant's particularly difficult situation, Parliament decided, in November 2009, to grant him the sum of EUR 8 000 to cover the costs of a second accommodation in proximity to the centre catering for the educational needs of his disabled child. In January 2011, Parliament went even further by exceptionally enabling the complainant to benefit from teleworking.

27. Altogether, the financial aid granted to the complainant for the period from May 2009 to August 2011 amounted, according to the most recent estimate, to nearly EUR 100 000.

28. The complainant essentially did not agree with Parliament's submissions.

29. Moreover, it emerged from his observations of 18 September 2012, that he had submitted a further complaint pursuant to Article 90(2) of the Staff Regulations, which dealt with the damage allegedly caused by the lack of a barrier-free environment at the European Schools. Parliament rejected the said complaint on the grounds that: the complainant's request for compensation was not sufficiently clear since he had neither established Parliament's liability nor the amount allegedly due. Parliament further pointed out that, even on the assumption that the complainant's claim for damages was based on the exclusion of his son from the European School, that event could not be attributed to Parliament, and as a result, one of the three cumulative conditions for its liability for damages under EU law was not met.

(iii) Alleged failure to maintain the financial contribution to the educational costs of the complainant's son

30. The complainant objected to Parliament's intention to finance his son's education only until the end of the school year 2010/2011. He argued that Parliament had a duty of care and thus should grant financial support free of charge until his family decided to leave Eupen or until the necessary adaptations at one of the European Schools became available.

31. Parliament confirmed that, in conformity with the Guidelines, it had ceased contributing to the educational costs for the complainant's disabled child with effect from 1 October 2011. According to point 3.1 of the said Guidelines, officials and other servants were eligible for support under the relevant budget heading of their institution only if they were "in active employment". Given that the complainant's contract expired on 30 September 2011, he was not entitled, after that date, to the support in question. Parliament had duly informed the complainant about this.

32. Furthermore, after the complainant was granted invalidity benefits pursuant to Article 101 and 102 of the Conditions of Employment of other servants of the Communities, and despite the end of his employment contract, Parliament had decided to still cover certain types of costs of the complainant's son for the period between October 2011 until September 2012 for a total amount of EUR 10 500.

33. The complainant did not put forward any arguments in that regard.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

(i) Alleged failure to cover the entirety of the educational costs relating to the complainant's son

34. At the outset of his proposal, the Ombudsman recognised the considerable efforts made by Parliament's services over a period of five years in assisting the complainant in relation to his son's special needs. Thus, Parliament's services offered their assistance to the complainant when he was searching for a suitable school for his son, exceptionally granted him additional financial support (EUR 8 000) and showed understanding for his situation by allowing him, on an exceptional basis, to make use of teleworking so as to be closer to his family.

35. As far as the present case was concerned, the Ombudsman noted that Parliament essentially argued that (a) its position was in line with the Guidelines and that (b) after the Ombudsman's Special Report in case 1391/2002/JMA, the CPAS could not reach an agreement on amending these Guidelines. In that regard, Parliament made reference to an opinion of the Commission's Legal Service dated 29 October 2003, according to which the relevant provisions were not discriminatory.

36. As regards argument (a), the Ombudsman considered it useful to refer to points 3-6 of the draft recommendation in Case 1391/2002/JMA[6], which set out why, in his view, the relevant arrangement in the Guidelines was discriminatory. He further noted that the European Parliament adopted a resolution affirming his view on that point.[7] Turning to argument (b), the fact that the Guidelines in question have not yet been amended because of a disagreement within the CPAS could not serve as an excuse for preventing Parliament from doing what it publicly affirmed in the above-mentioned resolution to be the right thing to do. Finally, the Ombudsman noted that the opinion of the Commission's Legal Service, which, in any event, relied on a number of arguments which were raised and rejected in case 1391/2002/JMA, predated his Special Report and Parliament's own resolution. Parliament’s reliance on that opinion in the present inquiry was thus not convincing.

37. Therefore, the Ombudsman maintained his views as regards the conclusions underpinning his Special Report 1391/2002/JMA.

38. The Ombudsman explained that he was committed to seek, where possible, friendly solutions to complaints by citizens against EU institutions, bodies, offices and agencies. In this context, the Ombudsman noted that, in his most recent e-mails to his Office, the complainant put forward that he found himself in a very difficult financial and personal situation. Against that background, the Ombudsman made the preliminary finding that Parliament's failure to cover the entirety of the educational costs for the complainant's son could amount to an instance of maladministration. Therefore, Ombudsman invited Parliament to cover not just 95%, but 100% of the educational costs of the complainant's son, in line with the conclusions contained in the Special Report in case 1391/2002/JMA. If the only obstacle for making such a payment lied in the need for Parliament to first amend the Guidelines in question, then Parliament could consider making an ex-gratia payment of the relevant amount to the complainant, which would at the same time address the complainant's difficult situation.

(ii) Alleged failure to compensate or reimburse certain types of damages or expenditures

39. The complainant claimed that Parliament should make good and reimburse certain types of damages or expenditures, which he had mentioned in his 1 January 2011 complaint to the Ombudsman. In this context, the complainant referred to a number of legal provisions.[8]

40. The Ombudsman noted that none of these provisions provides a legal basis for the reimbursement of the types of expenditures claimed by the complainant. Furthermore, the Ombudsman was not aware of any provision which could provide Parliament with a legal basis for doing so.

41. As regards the claim for damages, it appeared useful to point out that, based on the case-law of the Court of Justice, the non-contractual liability of the EU institutions pursuant to Article 340(2) TFEU required that the following three cumulative conditions were met: (i) the alleged conduct of the EU institution must be unlawful, (ii) the damage is real and (iii) there is a causal link between the conduct alleged and the damage relied upon.[9]

42. The complainant claims that Parliament should reimburse damages, which he and his family had suffered due to his son's exclusion from the European School. However, and as regrettable as that may have been for the complainant's family, the Ombudsman failed to see how the alleged wrongdoing of the European Schools could be attributed to Parliament. Thus, in the Ombudsman's view, Parliament could not be responsible for the alleged damages.

43. Therefore, the Ombudsman took the view that there was no maladministration as regards aspect (ii) of the allegation.

(iii) Alleged failure to maintain the financial contribution to the educational costs of the complainant's son

44. The complainant argued that Parliament should maintain free of charge its financial contribution to the educational costs of his son until his family leaves Eupen or until the necessary adaptations at one of the European Schools become available. In turn, Parliament pointed out that, in accordance with point 3.1 of the Guidelines, its financial assistance would have to cease once the complainant's contract expired, on account of the fact that he was no longer in active employment.

45. In the Ombudsman's view, Parliament's position in this respect appeared to be reasonable, given that the provision in question expressly referred to the requirement of being "in active employment". Even though the Ombudsman considered, as mentioned above, that the Guidelines should not prevent Parliament from providing fair and non-discriminatory assistance in cases like the present one, this assistance could not be unlimited. Limiting such assistance to the period of time during which a person was working for an EU institution would not appear to be unreasonable or unfair. Having said that, the Ombudsman welcomed Parliament's decision to continue to contribute to certain types of costs relating to the complainant's son even beyond that date. In light of the foregoing, the Ombudsman considered that there was no maladministration as regards aspect (iii) either.

The arguments presented to the Ombudsman after his friendly solution proposal

46. The possibility of making a proposal for a friendly solution and the contents of such a proposal had been discussed with the complainant. However, as soon as the complainant had received a copy of the Ombudsman's proposal for a friendly solution, he made it clear that he was no longer in agreement with this proposal. The complainant essentially rejected the proposal for a friendly solution because it did not cover his claim that Parliament should pay him compensation of at least 1 million Euros for alleged immaterial damages. Moreover, he claimed that the Ombudsman should suspend the assessment of the case until the next Ombudsman assumed her duties (1 October 2013).

47. The complainant also argued that the Ombudsman's friendly solution proposal contained a factual error as regards aspect (iii) of the allegation. To this end, he argued that he actually still was in a contractual relationship with Parliament because the latter had granted him a "long-term pension" until the age of sixty-five ("eine Dauerrente bis zum 65.Lebensjahr"), due to his post-traumatic stress disorder. Therefore, Parliament should still cover the educational costs of his son, including the possibility that his son attends a school in Brazil.

The Ombudsman's final assessment

(i) Alleged failure to cover the entirety of the educational costs relating to the complainant's son

48. The Ombudsman has already explained in the preliminary remark under points 15 and 16 above why the complainant's alleged immaterial damage could not be taken into consideration in the framework of the present inquiry.

49. The Ombudsman regrets that the complainant decided to withdraw his support for the Ombudsman's friendly solution proposal. In the Ombudsman's view, this proposal would have served the complainant's interests. However, it is for a complainant to decide whether or not he or she wishes to accept a friendly solution. In view of the position adopted by the complainant, the Ombudsman must conclude that it was not possible to reach a friendly solution in the present case.

50. The Ombudsman therefore needs to finalize his assessment on the basis of the information that is available to him.

51. In his proposal for a friendly solution, the Ombudsman concluded that there was a possible instance of maladministration only as regards aspect (i) of the allegation. However, no maladministration was found as regards (ii) the alleged failure to compensate or reimburse certain types of damages or expenditures and (iii) the alleged failure to maintain the financial contribution to the educational costs of the complainant's son.

52. The Ombudsman considers that these conclusions remain valid.

53. As regards aspect (ii) of the allegation, the Ombudsman notes that the complainant did not put forward any new arguments.

54. As regards aspect (iii) of the allegation, the complainant appears to argue that he was still in "active employment" pursuant to point 3.1 of the Guidelines because Parliament had allegedly granted him what appears to be an invalidity pension ("Rente"). However, the Ombudsman considers that the very notion of a pension implies that its recipient, by definition, is no longer in active employment for the purposes of Article 3.1 of the Guidelines. Moreover, the complainant's argument that he (or his son) had been discriminated against on grounds of disability due to Parliament's decision to no longer cover his son's educational costs is not convincing. The only reason why Parliament ceased to provide financial assistance for the educational costs of the complainant's son was that the complainant's active employment relationship with Parliament had ended. The complainant thus cannot rely on Article 5 of the United Nations Convention on the rights of Disabled Persons, which prohibits all discrimination on the basis of disability. Nor did the complainant indicate any other provision that could serve as a legal basis for Parliament to continue paying for his son's educational costs.

55. Against this background, the Ombudsman maintains his initial findings that there was no maladministration with regard to aspects (ii) and (iii) of the allegation.

56. As regards aspect (i) of the complainant's allegation, the Ombudsman continues to believe that Parliament should cover the entirety of the educational costs for the complainant's son. Even though the complainant has rejected the Ombudsman's proposal for a friendly solution to this effect, the Ombudsman could address a corresponding draft recommendation to Parliament. The Ombudsman considers, however, that where a complainant has rejected a proposal for a friendly solution that appears to be reasonable and fair, it would not normally make sense to insist on this solution and make it the subject of a draft recommendation. Instead, the Ombudsman considers it appropriate to close his inquiries in such cases with a finding that no further inquiries are justified. In the present case, it is in any event manifest that the complainant would not be satisfied by any solution that would not accord him a payment of at least 1 million euro.

57. In these circumstances, the Ombudsman takes the view that no further inquiries into this case are justified.

C. Conclusions

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

There are no grounds for further inquiries with regard to aspect (i) of the complainant's allegation and his claim. No maladministration has been found as regards the remainder of the case.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 27 September 2013

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[1] The Special Report can be accessed here: http://www.ombudsman.europa.eu/en/cases/specialreport.faces/en/385/html.bookmark

[2] The complainant sent a significant number of further e-mails throughout the complaint procedure.

[3] The complainant claimed compensation for immaterial damage to him (at least EUR 750 000), to his son (at least EUR 500 000) and the other family members (at least EUR 250 000).

[4] Based on the information available to the Ombudsman, the 5% contribution of the complainant to his son's educational costs amounted to less than EUR 3 000.

[5] Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2006-0135&language=EN&ring=A6-2006-0118

[6] "3 The Ombudsman notes that, in line with the decisions of the European Schools' Board of Governors, it appears that the children of staff in the service of Community institutions for a minimum period of one year have the right to be admitted to the European Schools. These pupils are exempt from school fees (...). Hence, EU officials who have the possibility to send their children to the European Schools, including those with SEN ['Special Educational Needs'] children whose needs can be met by the European Schools, do not have to make any contribution to the costs of their education.

In contrast, the Commission does not cover the full educational costs of SEN children who are excluded from the European Schools because of their degree of disability.

4 The Ombudsman points out that the principle of non discrimination and equal treatment is a fundamental principle of Community law. As laid down in Article 21 of the Charter of Fundamental Rights of the European Union (...) and in Article 13 of the EC Treaty (...), any type of discrimination based, among others, on grounds of disability is prohibited.

5 On the basis of the available information, the Ombudsman considers that the different financial treatment which the Commission gives to officials with SEN children who are excluded from the European Schools is based solely on grounds of disability and is therefore discriminatory. The fact that the difference of treatment affects only some parents of SEN children does not alter its character as discrimination.

Furthermore, the fact that some children of EU officials are excluded from the European Schools for reasons other than disability is immaterial. The evidence available to the Ombudsman from his inquiry is that the exclusion of certain children from the European Schools for pedagogical reasons is not based on grounds explicitly prohibited by Community law. The factual and legal circumstances of such children are therefore not comparable to those of SEN children who are excluded from the European Schools because of their degree of disability.

6 The Ombudsman concludes, therefore, that the different financial treatment provided by the Commission to officials with SEN children who are excluded from the European Schools because of their degree of disability is discriminatory and consequently constitutes an instance of maladministration."

[7] See note 5 above.

[8] The complainant referred to the following provisions: Article 24 of the United Nations Convention on the rights of disabled persons, Article 13 of EC Treaty, Article 14 of the Charter of Fundamental Rights, Article 2(2) of Directive 2000/78/EC and Article 3 of Annex VII of the Staff Regulations.

[9] See, for example, Case T-409/09 Evropaiki Dynamiki v Commission, [ECR] 2011 p. II-3765, point 47 and the case-law cited therein.