The background to the complaint

1. The complainant is a Commission official who worked half-time in the form of job-sharing from 1 December 2006 to 30 June 2010, in accordance with Article 55b of the Staff Regulations[1]. He received 50% of his salary. The complainant stated that he opted for job-sharing because of his poor state of health. During that period, his health deteriorated further.

2. From 23 October 2008 to 31 January 2009, the Medical Service authorised him to work half-time for medical reasons. He received 50% of his full salary.

3. The Medical Service also authorised the complainant to work half-time for medical reasons between 7 May 2009 and 31 July 2009. He continued to receive 50% of his full salary.

4. On 19 February 2010, the complainant sent an e-mail to the Commission asking for clarifications regarding his situation. He received no reply to that e-mail. Nor did he receive a reply to any of his e-mails dated 10 March, 7 and 30 April, 23 September, 7, 14 and 29 October 2010 and 12 January 2011, in which he renewed his request. The complainant then turned to the Ombudsman.

The subject matter of the inquiry

5. The complainant alleged that the Commission erred by not paying 100% of his salary between 23 October 2008 and 31 July 2009. He claimed that the Commission should pay him these amounts.

The inquiry

6. On 10 March 2011, the complainant submitted a complaint to the Ombudsman. On 13 April 2011, the Ombudsman opened an inquiry and forwarded the complaint to the Commission, which then sent its opinion to the Ombudsman on 25 July 2011. The opinion was forwarded to the complainant, who submitted observations on 23 September 2011.

The Ombudsman's analysis and conclusions

A. Alleged error in the complainant's salary and related claim

Arguments presented to the Ombudsman

7. In its opinion, the Commission took the view that Article 2(8) of the Ombudsman's Statute applied to the present case. It pointed out that the complainant did not submit a complaint pursuant to Article 90(2) of the Staff Regulations before turning to the Ombudsman. Therefore, the Commission considered the complaint inadmissible.

8. In his observations, the complainant noted that the Ombudsman decided to open an inquiry into his complaint because he considered that it was admissible. He admitted, however, that, because of the Commission's failure to reply to his requests for clarifications, he failed to meet the deadline for the submission of Article 90(2) complaints. That is the reason why he turned to the Ombudsman.

The Ombudsman's assessment

9. Article 2(8) of the Ombudsman's Statute states that "[n]o complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned."

10. After having examined the clarifications put forward by the Commission in its opinion, and the complainant's observations, the Ombudsman concludes that, even if the complainant's request to the Commission dated 19 February 2010 were to be considered an "Article 90(2) complaint", that complaint was submitted outside the deadline laid down in Article 90(2) of the Staff Regulations. The Ombudsman notes that Article 90(2) of the Staff Regulations states that a complaint relating to a decision must be submitted within three months of that decision. The decision which could possibly be regarded as the last decision concerning the complainant's salary for the period during which he was working half-time for medical reasons was his payslip for the month of July 2009. The Ombudsman understands that the complainant's salary for July 2009 would have been paid by mid-July 2009. As a result, the complainant should have submitted an Article 90(2) complaint by no later than mid-October 2009. As he himself has admitted, he failed to do so and his complaint to the Ombudsman must indeed be considered inadmissible.

11. The Ombudsman therefore considers that no further inquiries into the present case are possible.

B. Conclusions

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

Given that the complainant did not lodge an Article 90(2) complaint and thus did not exhaust the available internal remedies, the complaint to the Ombudsman is inadmissible. The Ombudsman therefore considers that no further inquiries are possible and closes the case.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 30 November 2011

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[1] Article 55b of the Staff Regulations states the following: "An official may request authorisation to work half-time in the form of job-sharing in a post identified by the Appointing Authority as appropriate for that purpose. The authorisation to work half-time by job-sharing shall not be limited in time. It may, however, be withdrawn by the Appointing Authority in the interests of the service giving the official six months' notice. Likewise, the Appointing Authority may, on application of the official concerned and giving at least six months' notice, withdraw the authorisation. In this case, the official may be transferred to a different post."