Strasbourg, 3 April 2007

Dear Mr L.,

On 2 March 2006, you submitted a complaint against the European Commission. Your complaint concerns payment of installation and reinstallation allowances to you, as an individual expert, for technical assistance under a programme run by the Office National de l'Assainissement du Sénégal ("ONAS").

On 18 April 2006, I informed you that your complaint had been reassigned to another legal officer.

On 22 May 2006, I forwarded the complaint to the President of the Commission.

On 11 September 2006, the Commission informed me that, due to the absence of the responsible officials during the holiday period, the Commission was not able to reply on time, and asked for an extension of the deadline until 31 October 2006. On 21 September 2006, I granted the extension until 31 October 2006. After that date, the Commission informed my Secretariat that consultations were still ongoing at the cabinet level and that the opinion would therefore be delayed. On 4 December 2006, I asked the Commission to provide me with its opinion by 31 December 2006.

On 12 January 2007, I received the Commission's opinion, and on 25 January 2007, its translation into French, which I forwarded to you with an invitation to make observations. No observations have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The facts according to the complainant, can be in summarised as follows.

By letter of 10 September 2004, the Commission made a proposal that the complainant should undertake a 24-month mission as a technical assistance expert at the Office National d'Assainissement du Senegal ("ONAS"). The Commission's proposal informed the complainant that, in accordance with the General Conditions applicable to temporary contracts of Technical Assistants in the field of EC humanitarian and food co-operation actions for third countries ("the General Conditions")(1), the complainant could benefit from "(...) an installation allowance (150%, 225% or 300% of the reference amount (...), depending if the expert expatriates alone, with his consort, or with his dependant children)." The Commission invited the complainant to return a signed copy of the proposal, thereby informing it of his agreement to the applicable rules.

During the month of September 2004, the complainant sent to the Commission documents concerning the expatriation of his wife and their three children. The complainant explained that, since the school year had already started, he would, initially, depart for Senegal alone.

On 22 October 2004, the complainant and the Commission signed the contract. According to the General Conditions, if a contracting party is obliged, at the beginning of his or her contract, to transfer his or her European residence to a country outside the European Union because of his or her assignment, he or she is entitled to an installation allowance equivalent to 150% of the Reference Amount. This installation allowance is raised to 225% of the Reference Amount if that contracting party is married and to 300% of the Reference Amount if the contracting party has one or more dependant children(2). Should the contracting party decide to leave the country of assignment at the end of the contract, the contracting party is also entitled to a reinstallation allowance (provided the contracting party has (at least) two years of service with the Commission). The amount of this reinstallation allowance is equal to 50% of the Reference Amount. This amount shall be raised to 75% should the contracting party be married, and to 100% should the contracting party have one or more dependant children(3). Article 7 of the Special Conditions of the contract provided that the percentage of the Reference Amount was to be determined in accordance with the expatriation situation of the dependant members of the complainant's family(4). In accordance with the General Conditions, any changes to the civil status of the contracting party, or to the civil status of the contracting party's family, or, more generally, any changes to any element that had been taken into consideration for the establishment of the financial provisions of the contract, must be reported to the Commission as quickly as possible(5).

On 25 October 2004, the complainant departed for Senegal.

On 18 March 2005, the complainant addressed the Commission by e-mail and thanked the responsible officer for the deposit of EUR 8 300.50 corresponding to "Installation allowance + per diem". In the complainant's view, however, the amount due to be transferred was EUR 15 530.82. The complainant emphasised that he was married and had three children. In his opinion, he was entitled to an installation allowance equivalent to 300% of the Reference Amount, as mentioned in Article 31(1) of the General Conditions. The complainant asked whether it was standard practice to pay the allowance in several instalments, and, if so, when the next instalment would be paid. On the same day, the Commission replied that, in accordance with the complainant's contract, all allowances connected with the reference amount (EUR 5 067) were calculated on the basis of his family's expatriation situation in accordance with Article 7 of the Special Conditions.

On 29 March 2005, the complainant asked the Commission whether the remaining amount would be paid by the time of the expatriation of the rest of his family. On the same day, the Commission replied that, at the beginning of the contract, the complainant did not mention that he was to expatriate with his family, but that he was to do so alone. The expatriation of the rest of his family had contractual consequences (temporary accommodation, allowances, and so on). For budgetary purposes, the complaint should have informed the Commission, as soon as possible, if the initial situation had changed.

On 20 May 2005, the complainant informed the Commission that his wife and children would expatriate by the end of September 2005. He requested information on the formalities he needed to comply with for that purpose.

On 22 August 2005, the complainant informed the Commission by e-mail that, on 1 October 2005, his wife and two of their three children would depart for Dakar. The complainant explained that his spouse had asked for leave from her employment as of 1 November 2005 and that she would take her holidays during the month of October. In the same e-mail of 22 August 2005, the complainant confirmed that his spouse would not undertake any professional activity during the period of his stay in Senegal. He also requested the Commission to inform him about the amount of the "complement" to the installation allowance due for the expatriation of his family. On the same day, the Commission replied that it could not consider the complainant's spouse as dependant before her leave had become effective (that is, on 1 November 2005) and a leave certificate had been signed by her employer. The spouse's ticket would be reimbursed as soon as she could be considered as dependant and that once all members of the complainant's family were considered dependant, he could request the payment of the "complement" to his installation allowance. The letter included a form which the complainant needed to complete for that purpose.

On 30 September 2005, the Commission informed the complainant that it had taken note that, on 1 October 2005, (i) the complainant's spouse would be considered as dependant because of her "mise en disponibilité" by her employer; and (ii) three dependant members of the complainant's family would depart for Dakar.

On 3 October 2005, the complainant requested the payment of the "complement" to the installation allowance.

On 24 October 2005, the Commission replied that it could not satisfy his request because, in accordance with Article 31(1) of the General Conditions, the allowance was calculated on the basis of the expatriation situation of the contracting party at the beginning of its contract. The Commission also recalled that the future reinstallation allowance would be calculated on the basis of the expatriation situation of the complainant's family at the end of his contract, in accordance with Article 31(3).

On 27 October 2005, the complainant addressed a "recours amiable" to the Head of Unit for External Service. The complainant did not agree with the Commission's interpretation of the applicable rules. The complainant pointed out that he had never declared that he would expatriate alone and that, on the contrary, he had informed the Commission that his family would join him, once practical issues, for example, obligations concerning the education of his children, had been resolved. He stressed that Article 31(1) of the General Conditions should be read in accordance with Article 7 of the Specific Conditions of his contract. The complainant took the view that the Commission's position ignored the constraints related to his expatriation to a tropical country and to the school schedule of a family with three children. The complainant considered the Commission's interpretation to be: arbitrary; inconsistent with the information provided to him previously; and incompatible with the expatriation situation of his family. He argued that, as a responsible head of family he had, prior to his family's departure, first to guarantee that he had duly settled in, and that his probation period was over, and that the school obligations of his children had been duly fulfilled.

On 28 November 2005, the Commission replied. In summary, it maintained its position. The Head of Unit explained that the expatriation situation of the complainant's family, the constraints related to his expatriation, and the school calendar, had no influence on the amount of the allowance due to the complainant. The Head of Unit recalled that the complainant's reinstallation allowance would be calculated on the basis of the expatriation situation of his dependant family at the time of the expiration of his contract.

On 2 March 2006, the complainant lodged a complaint with the Ombudsman.

The complainant alleges that the Commission behaved inconsistently and provided him with misleading information.

The complainant claims that the Commission should pay him the installation and reinstallation allowances, in accordance with his interpretation of the contractual provisions.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows.

The Commission, first, confirmed that it had, on 24 October 2005, explained to the complainant that, in accordance with Article 31(1) of the General Conditions, the allowance was calculated on the basis of the expatriation situation of the dependant family at the beginning of the contract and that, therefore, the complainant's request for a "complement" to the installation allowance could not be satisfied.

The Commission admitted, however, that the usual practice of paying only once, according to the initial decision of employees, was not set out in detail in the contract, which thus left some room for interpretation of Article 31(1). The Commission also recognised that the complainant had an undeniable right to change his mind regarding the expatriation of his family after settling in the destination country. It further found it reasonable that a father decides to keep some of his children in their home country until the end of the academic year in order not to disrupt their studies. The Commission further accepted that the timing of the expatriation of the complainant's family "can be said to be sensible and was done within the usual deadline (first twelve months)."

In view of the above, the Commission decided to pay the supplement requested by the complainant. It has already taken the practical steps for the immediate execution of that decision.

The complainant's observations

No observations have been received from the complainant.

THE DECISION

1 The allegation and the claim

1.1 The case concerns the payment of installation allowances to an expert who was offered a two-year contract by the Commission to work with the Office National de l'Assainissement du Sénégal ("ONAS"). While the complainant was awarded an installation allowance as a result of his expatriation to Senegal, the additional installation allowance which is normally awarded for the expatriation of family members was, in his case, refused.

1.2 The complainant alleges that the Commission behaved inconsistently and provided him with misleading information.

The complainant claims that the Commission should pay him the installation and reinstallation allowances, in accordance with his interpretation of the contractual provisions.

1.3 In its opinion, the Commission informed the Ombudsman that it had decided to pay the supplement requested by the complainant. It has already taken the practical steps for the immediate execution of that decision.

1.4 The Ombudsman sent the opinion of the Commission to the complainant. The Ombudsman did not receive any comments from the complainant in relation thereto.

1.5 The Ombudsman takes the view that the Commission has taken steps to settle the matter. The Ombudsman therefore closes the case.

Conclusion

Following the Ombudsman's initiative, it appears that the Commission has taken steps to settle the matter. The Ombudsman welcomes the Commission's positive approach and closes the case.

The President of the Commission will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) In the original French: "Dispositions générales applicables aux Contrats de travail a durée déterminée des Assistants techniques pour les actions de coopération au bénéfice des pays tiers et dans le cadre de l'aide humanitaire ou alimentaire de la Commission européenne."

(2) In the original French: "31.1 Indemnité d'installation - [l]ors de sa prise de fonctions hors Europe au début de son Contrat, le Contractant tenu, du fait de son affectation, de transférer sa résidence d'Europe vers un pays situé hors Europe perçoit une indemnité de première installation hors Europe égale à 150% du Montant de Référence. L'indemnité est portée à 225% pour le Contractant marié et à 300% pour le Contractant ayant un ou plusieurs Enfants à Charge. (...)."

(3) In the original French: "31.3 Indemnité de réinstallation - [u]ne indemnité de réinstallation est accordée aux Contractants en fin de Contrat qui quittent le service de la Commission et leur pays d'affectation hors Europe après y avoir accompli une période de service d'au moins deux ans (congés inclus). Le montant de cette indemnité de réinstallation est égal à 50% du Montant de Référence. Il est porté à 75% pour le Contractant marié et à 100% pour le Contractant ayant un ou plusieurs Enfants à Charge. Cette indemnité est réglée en euro et versée à la date de fin de Contrat. (...)."

(4) In the original French: "Article 7 Dispositions particulières - Le Dispositions générales sont amendées ou complétées comme suit: Chapitre V. Article 31.1 et 31.3 Le pourcentage du montant de référence sera détermine en fonction de la situation d'expatriation des membres de la famille à charge du contractant."

(5) In the original French: "Article 33.2 Modification des droits - Le Contractant a l'obligation de notifier à la Commission, dans les plus brefs délais, toute modification intervenant dans son état civil, celui des personnes à charge, et plus généralement dans tout élément ou condition, ayant servi de base à l'établissement des conditions financières de son Contrat, tels qu'ils ont été déclares a la Commission lors de son engagement."