The background to the complaint

1. The complaint concerns the way in which the Delegation of the European Union to a non-European country (country X) handled national administrative procedures relating to the employment of the complainant, a former member of the Delegation's local staff.

2. The complainant resigned from his position in the Delegation in 2001. He then left country X to work in Europe for some years. By late 2004, he decided to return to work in country X. He looked for work and received several offers. However, in autumn 2005, it became clear that his potential new employer could not hire him, due to an administrative problem with his social security file. In sum, it emerged that the administration of country X had not closed his social security file when he left country X in 2001 because it had never received, from the Delegation, an official form in this regard ("the form"). The form serves to inform the administration of country X of the fact that a person's contract has ended.

The subject matter of the inquiry

3. In his complaint to the European Ombudsman, the complainant alleged that the EU Delegation committed a series of administrative errors when communicating with the local authorities in relation to his employment at the Delegation. In support of his allegation, the complainant argued that the Delegation:

1) failed to submit the required end of contract form to the authorities of country X;

2) deliberately provided the authorities of country X with an incorrect figure in respect of his salary;

3) failed to act and unnecessarily delayed the matter;

4) failed to keep him informed and to respond to his queries about the matter;

5) used an intimidating tone in its correspondence with him;

6) failed to resolve his problem in the same way that it resolved similar problems in other countries by way of reparation and damages, which means that he has been discriminated against since his case has not come to a fair end;

7) abused its power by approaching the Immigration and Passports Administration of country X without informing him or obtaining his authorisation; and

8) treated him unfairly by requiring him to undertake a cumbersome and suspicious administrative procedure (the issuing of a movement certificate).

4. The complainant claimed that the Delegation should:

1) Issue the form in question;

2) Regularise all the amounts due to the Social Security of country X in arrears, including outstanding fines and interest;

3) Propose or negotiate compensation for the following damages incurred:

1. ongoing damage to the complainant's professional career, specifically losses generated by missed job opportunities in country X;
2. stress and  anxiety; and
3. costs and expenses to sort out the problem, including expenses for hiring administrative, financial and legal experts.

The inquiry

5. The Ombudsman initially asked the European Commission to submit an opinion on the complaint. On 13 September 2011, the Commission informed the Ombudsman that the body competent to deal with the matter was the European External Action Service (EEAS). The Ombudsman, therefore, redirected his inquiry to the EEAS by letter dated 27 September 2011, asking the EEAS to submit an opinion by 31 December 2011. The EEAS submitted its opinion on 20 December 2011. The opinion was forwarded to the complainant, who submitted his observations on 22 February 2012. On 6 September 2012, the Ombudsman made a proposal for a friendly solution to the EEAS. The EEAS's reply of 29 October 2012 was forwarded to the complainant with an invitation to submit observations. The complainant submitted his observations on 20 December 2012.

The Ombudsman's analysis and conclusions

A. Allegation of administrative errors and related claims

Arguments presented to the Ombudsman

6. The complainant stated that, when he learnt, in 2005, about the problem with his social security file in country X, he immediately contacted the Delegation and has continued to do so, by e-mail, telephone and registered letters. Since 2010, he has also contacted the Commission services in Brussels. However, the matter has not been resolved. The Delegation and the Commission kept giving vague answers, stating that more time was needed. In the beginning, the complainant continued looking for work in country X, thinking that the matter would soon be resolved. However, he eventually had to return to Europe to earn a living carrying out much less rewarding work.

7. According to the complainant, the Delegation even asked the Passport and Immigration Authority of country X to issue a "movement certificate" for him, tracing all his travels in and out of country X to prove that he was not living there anymore. However, the application was rejected as illegal since the Delegation cannot request such a certificate in the complainant's name. The complainant's legal adviser then advised him not to proceed with obtaining such a certificate because, in his view, it is mainly requested by criminals trying to prove their alibis. By asking for such a certificate, he could therefore be put in a delicate or suspicious position.

8. The complainant stated that the Delegation's failure to submit the relevant end of contract form to the administration of country X means that:

• he cannot be employed in country X;
• he cannot liquidate his social insurance;
• he will not receive a pension upon reaching pensionable age;
• he has missed out on the opportunity to improve his future pension through new employment or buy-in;
• he will not receive the Government's special end-of-service allowance;
• since he is still considered to be an employee of the Delegation, he owes the social security administration all contributions for past years in arrears, in addition to fines and penalties for the delayed payments;
• he has lost earnings by missing out on excellent recruitment opportunities;
• his professional career has suffered;
• he has wasted money while trying to get a new job in country X; and
• he has suffered distress and anxiety.

9. In its opinion, the EEAS argued that, according to local legislation, the form known as the form (application to close the social security file) should have been issued upon the resignation of the complainant and sent to the authorities of country X. However, this was not done, due to the fact that the complainant was not in the country when he resigned from his position and therefore could not sign the form. The other possibility to close the complainant's social security file was to obtain a movement certificate proving that he had left country X and had not worked for the Delegation since his resignation.

10. According to the EEAS, in the period between 2001 and 2007, when the complainant was living outside country X, he never requested that his social security file be closed. The EEAS has found no evidence showing that the complainant approached the Delegation regarding the matter in 2007 or 2008. However, following the complaint made in 2009, the Delegation issued a form and presented it to the Social Security Services.  The administration of country X refused it because no movement certificate had been provided.

11. According to the EEAS, after it had explained to the complainant that a movement certificate was required, the complainant stated, on 14 June 2010, that he would not send the Delegation the required movement certificate. He considered that the Delegation was at fault and that the Delegation had to assume the responsibility for resolving the problem. The EEAS was of the view that the file would have been closed at a much earlier stage if the complainant had authorised the procedure for obtaining a movement certificate.

12. The EEAS stated that the Social Security Services advised the Delegation to request a movement certificate from the immigration and passports administration. The Social Security Services stated that this was the only possible procedure that could be used to close the complainant's file. The EEAS argued that there was no reason to believe that the Social Security Services would advise the Delegation to do something illegal. Furthermore, in the EEAS's view, there is no legal obligation on an employer to seek the prior approval of an employee before requesting a movement certificate to be issued.

13. The Social Security Services of country X requested the movement certificate from the Immigration Department on 25 October 2010. In November 2010, the Delegation was informed that the Social Security Services have no legal right to make this kind of request.

14. The EEAS argued that consequently, without the complainant's cooperation and without being able to resolve the matter with the authorities of country X, the Delegation was forced to seek specialised legal counsel, who suggested, in July 2011, that it should send the form to the complainant's last official address in country X and make an offer to the Social Security Services to pay the fine imposed by the administration of country X. The Delegation asked the lawyer to proceed accordingly and to seek information from the Social Security Services concerning the amount of the fine imposed. At the time when the EEAS was drafting the opinion to the Ombudsman, neither the Social Security Services, nor the complainant, had responded to the lawyer's letters. The EEAS was convinced, however, that the issue would be resolved and regularised before long.

15. The EEAS argued that the Delegation never provided an incorrect figure for the complainant's salary to the authorities of country X. When the complainant was recruited in 1990, a copy of the complainant's contract was sent to the Social Security Services indicating his exact salary.

16. The EEAS submitted that the complainant cannot argue that he was not kept informed of developments concerning his case, since February 2009, when, that is, the Delegation became aware of his problems. There have been telephone conversations, a meeting with his spouse and an extensive exchange of e-mails between the complainant and the Head of Administration.

17. As regards the compensation claimed by the complainant, the EEAS argued that such claim has no legal basis and cannot, therefore, be accepted. However, if the complainant believes that he is entitled to such compensation, he has the possibility of filing a claim at the competent court in country X.

18. In his observations on the EEAS's opinion, the complainant noted that the EEAS recognised that, according to national legislation, the form should have been issued and sent to the authorities of country X when the complainant resigned in 2001. According to the complainant, the local regulation states that the form has to be issued by the employer within seven days following the end of service. The form is to be delivered to the competent Social Security Services to be registered in their records. The employer is thus legally obliged to issue the form, irrespective of the physical location of the employee. In any case, the complainant stated that he visited the Delegation twice following his resignation. In addition, various administrative matters were handled from afar when the Delegation sent documents by post to the complainant’s address in Europe. The same could have been done with the form to be signed by him. However, this was never done or even suggested by the Delegation. The complainant also questioned why the Delegation did not mention the problem with the form in its other communications with him concerning administrative questions.

19. According to the complainant, he approached the Delegation about the form in 2005 and not in 2007, as argued by the EEAS. The reason why he did not do so immediately after his resignation in 2001 was that he thought that the matter was being dealt with, along with the issues of his provident fund and pension. Also, since he was in Europe, there was no urgent need for the form. As of 2005, he communicated regularly with his former colleagues regarding the matter. However, he initially found no reason to keep records and evidence of these communications because he was confident that the matter was about to be resolved and he did not believe that he would one day have to provide evidence of this correspondence.

20. The complainant questioned why the Delegation did not inform him of the need for a movement certificate until he approached the headquarters in Brussels in February 2010. Furthermore, it was only in May 2010, when is spouse met with the Delegation on his initiative, that he learnt that the Passport Services had rejected the Delegation's request in that regard in March 2010 and that he would have to ask for such a certificate himself. The Delegation never approached him in this regard.

21. At the meeting in May 2010, the Delegation explained to the complainant’s spouse that there were two possible solutions to the problem: 1) to issue a backdated form, based on a movement certificate; or 2) to issue a form bearing the date of the day on which it was submitted to the authorities of country X and to pay the arrears. The complainant argued that he did not arbitrarily reject the idea of obtaining a movement certificate. If the Delegation had communicated with him regarding the matter, instead of trying itself to obtain this document, which is of a personal and confidential nature, they would probably have been able to resolve the issue together. However, the complainant felt that the purpose of the measure taken by the Delegation, namely, trying to obtain a movement certificate in order to be able to backdate the form, was to cover the administrative error originally made, while ignoring all the consequences this would have for him. On the other hand, in his e-mails to the Delegation of 14 June and 13 October 2010, the complainant explained that he remained open to other solutions that the Delegation would propose. The Delegation never replied to these e-mails.

22. The complainant stated that, as mentioned in the EEAS's opinion to the Ombudsman, the Delegation, after its unsuccessful attempt to obtain a movement certificate in March 2010, appears to have tried a second time on 25 October 2010. This second time, the Delegation tried to involve the Social Security Services in order to cover up its own administrative mistake. However, once again, the request was rejected. In the complainant's view, the Delegation should have inferred from the earlier reply from the Passport Services, obtained in March 2010, that only he had the right to request a movement certificate.

23. According to the complainant, the Delegation eventually sent the form to his parents' address in country X and he personally delivered it to the national authorities in November 2011. However, the form turned out to be of no value. The Social Insurance Office does not appear to accept a backdated form to settle the matter. The complainant's file thus continues to be "open" as if he were still working for the Delegation and on special leave. The complainant further argued that, even if the form were to be eventually accepted because of the fine that the Delegation has proposed to pay, that would not put an end to the damage incurred by him, due to the administrative error made by the Delegation.

24. The complainant argued that the EEAS's proposal that he could bring his compensation claim before the national courts is intimidating and constitutes an abuse of power, given that the EEAS is well aware that such a process would take years and that the Delegation enjoys a privileged status via the Ministry of Foreign Affairs.

25. According to the complainant, the EEAS's statement that he never requested the closure of his social security file in country X is not relevant. The Delegation was responsible for issuing the form. Once that was issued, it would then have been up to the complainant to make a request to the Social Security Authority to close his file.

26. The EEAS's statement that the complainant was constantly informed was, in the complainant's view, not an accurate account of events, given that he was the one who made the telephone calls and that most of the e-mails sent regarding the matter were sent on his initiative.

27. In respect of his salaries, the complainant acknowledged that the national law sets "limits" or "ceilings" for declared salaries; one for "basic salary" and one for "variable salary". The Delegation provided a document showing that it declared the maximum sum for the basic salary at the time when the complainant was recruited in 1990. According to the complainant, these ceilings are indexed by the Social Security Services every year in July. A summary of the complainant's file, obtained from the website of the Social Security Services, showed that, for the complainant's basic salary, no contributions were registered for 1991 or 1995; the amount registered in 1996 differed slightly from the amount set by the law; and the way in which the Delegation had indexed his salary (in January of the following year and not in July) meant a six-month loss of contributions for each year. For the complainant's variable salary, no contributions were registered for 1991, 1993 and from 1995 onwards; the amount registered for 1992 differed slightly from the amount set by law, due to the way in which the Delegation had indexed his salary. The complainant argued that, in total, the contributions registered by the Social Security Services were significantly lower than they should have been.

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

28. The Ombudsman is of the view that the EU public administration should have procedures in place to ensure that it complies with all obligations imposed upon it under the national rules applicable to staff, including national rules concerning social security. The Ombudsman is also of the view, however, that all members of staff have an obligation of loyal cooperation with the EU public administration. This includes taking all reasonable steps to assist the administration to ensure that staff files are in good order.

29. From the information provided to him during the course of the inquiry, the Ombudsman understands that the Delegation had an obligation, under national law, to submit the form to the authorities of country X as soon as the complainant's employment came to an end in 2001. It appears that, at the time in question, the complainant was not present in country X to sign the form. This clearly would have made the procedure more difficult for the Delegation. However, the Delegation should have, at that time, at least sent the form to the complainant to sign, thereby allowing the administration to submit the form to the authorities of country X. The EEAS has not submitted any argument to explain why this was not done or why this would not have been possible. The Delegation was, therefore, responsible for the failure to submit the form within the stipulated deadline. The EEAS should take all reasonable steps to resolve the consequences resulting from this failure.

30. Following the Delegation's failure to submit the form to the authorities of country X within the deadline stipulated by law, the Ombudsman concludes, again on the basis of the information provided to him, that one means of closing the complainant's file would have been to provide the authorities of country X with a movement certificate[1].

31. The Ombudsman notes that the only way to obtain a movement certificate appears to be for the complainant to ask for it to be issued. However, the complainant does not wish to do so because he considers that the Delegation is to blame for the problem with his social security file and he argues that a movement certificate is a suspicious document mainly requested by criminals.

32. The Ombudsman considers that the fact that it is possible to request and obtain an official movement certificate from the administration of country X must reasonably mean that the certificate has a legitimate and legally valid purpose. In sum, it cannot be the case that the movement certificate is only requested and used by criminals. He is, therefore, not convinced by the complainant's argument that he cannot request such a document for fear that his request might be interpreted as implying that he is a criminal. The Ombudsman, therefore, cannot see any valid reason for the complainant's reluctance to assist the Delegation in obtaining such a certificate in May 2010 in order for him to successfully have his social security file closed.  The Ombudsman is thus of the view that any damage suffered by the complainant after this date as a result of his irregular social security status must be attributed only to the complainant.

33. It is also clear that any damage suffered by the complainant as a result of his irregular social security status prior to May 2010 must be attributed to the Delegation's initial failures to take reasonable steps to regularise his file in 2001 and its continuing failure after 2001 to regularise the situation. In this respect, the Ombudsman notes from the file that the Delegation could have taken steps at an earlier stage to regularise the situation. He notes that the complainant sent an initial e-mail to the administration on 3 February 2005, in which he drew attention to an irregularity in his administrative status.

34. The Ombudsman addressed the Delegation's failure to fulfil its legal obligation to submit the complainant's form to the national authorities in 2001, and its delay in trying to resolve the matter, by making a proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman (see paragraph 40 below).

35. Apart from the issue of the form, the complainant argued that the salaries declared by the Delegation to the Social Security Services on his behalf were not accurate. The complainant stated that the Delegation declared the maximum sum for the basic salary at the time of his recruitment in 1990, but that for some of the subsequent years, no contributions or incorrect contributions were made. According to the complainant, the ceilings for social security contributions were indexed by the Social Security Services every July. The Delegation, however, only indexed his salary in January of the following year (and not in July). According to the complainant, this meant that there was a reduction in contributions for six months of each year. The complainant argued, in sum, that in total, the contributions registered by the Social Security Services were significantly lower than they should have been.

36. The Ombudsman was of the view that the complainant's arguments in this regard were worthy of a full factual review. It appeared that the Delegation had not yet carried out such a full factual review. In the Ombudsman's view, the Delegation should carefully review the complainant's file to ensure that no irregularities did occur as regards payments to the Social Security Services. If they did occur, it should regularise the situation. The Ombudsman also addressed this issue in his proposal for a friendly solution.

37. The Ombudsman also dealt with the complainant's claims in the context of the proposal for a friendly solution.

38. Given the Delegation's failure to fulfil its legal obligation to submit the form to the national authorities and its delay in trying to solve the issue, the Ombudsman was not fully convinced that there is no legal basis for the complainant's claim for compensation for damage, at least as regards any damage which may have occurred prior to May 2010 when the Delegation made reasonable attempts to resolve the issue.

39. In this regard, the Ombudsman noted that the delay in trying to resolve the matter appears to have given rise to amounts due to the social security in arrears, including outstanding fines and interest. The Ombudsman underlined that any claim for damages can only relate to damage which cannot be undone by taking remedial action now.

The friendly solution proposal

40. On the basis of the above analysis and findings, the Ombudsman made the following friendly solution proposal:

Taking into account the Ombudsman's findings, the EEAS could:

(1) Take action to close the complainant's social security file in country X, after the complainant requests, and then submits to the Delegation, a movement certificate;

(2) Review the complainant's arguments and concerns in respect of the salaries declared by the Delegation to the Social Security Services of country X;

(3) Regularise any amounts due to the Social Security in arrears, including outstanding fines and interest, taking into account any possible mistakes identified through the review proposed under point (2); and

(4) Consider with care any substantiated claim for compensation for damage that the complainant may submit to it relating to the period before the Delegation first proposed the means of resolving the impasse in May 2010.

The arguments presented to the Ombudsman after his friendly solution proposal

41. With regard to point 1 of the friendly solution proposal, the EEAS stated that the Delegation continues to consult private lawyers and the authorities of country X, taking all possible measures to resolve the matter. However, the lack of loyal cooperation demonstrated by the complainant has severely prejudiced these efforts. Nevertheless, the EEAS remains committed to cooperating with the complainant in order to ensure that his social security file is closed as soon as possible once he submits the movement certificate.

42. In respect of point 2 of the proposal, the EEAS stated that the Delegation regularly paid, in good faith, social security contributions for the complainant during his employment. The complainant's concerns that the Delegation did not regularly pay social security contributions for him during his employment in country X are based on data accessed via the website of the Social Security Service of country X. The EEAS argued that the information in the print-out from this website cannot be reliably used as evidence of the Delegation not having paid proper social security contributions. First, the meaning of the data has not been verified and confirmed by the social security services. Second, the data provided are raw and open to interpretation. For instance, according to the EEAS, the complainant seems to interpret the figures as constituting the social security contributions paid by the Delegation, whereas the data would appear to constitute the changes in the ceilings declared for the 'basic salary' and the 'variable salary' for the complainant. Thus, the fact that no figure is indicated for a particular year does not mean that no social security contributions were paid, but simply that the salary ceiling on the basis of which the social security contributions were calculated remained unchanged. According to the EEAS, the Delegation paid contributions for the complainant for all the years he worked there. In addition, contrary to what the complainant argued, his social security salary ceilings were adjusted during his period of employment.

43. The EEAS also stated that, as regards the complainant's argument that the indexation of the salary ceiling was made six months too late every year, the Delegation is currently in contact with the social security services of country X to establish whether an administrative error was in fact made. It would appear, prima facie, that the Delegation applied the indexation with a six-month delay in 1995-1999, but that the error was corrected as of the year 2000. If it is established that some minimal amounts are in fact due, the EEAS will regularise these amounts.

44. In respect of point 3 of the proposal, the EEAS stated that it is committed to pay any fine which may be due following the late submission of the form, as well as any social security amounts due in arrears (see paragraph 43 above).

45. As regards point 4 of the proposal, the EEAS put forward that it has demonstrated its goodwill in trying to effectively resolve the matter, but that the complainant has failed to cooperate. The EEAS therefore considers the complainant's claims for compensation for damage to be unfounded.

46. In his observations on the EEAS's reply, the complainant argued, in respect of point 1 of the proposal, that the EEAS has not demonstrated anything of what it maintains that the Delegation has done. According to the complainant, there is no real proof of 'good faith' on the part of the Delegation. He tried kindly to communicate with the Delegation for years. However, he does not accept the backdating of the closure of his file on the basis of a movement certificate, since such a way of proceeding would infringe national laws.

47. In respect of point 2 of the proposal, the complainant questions, in summary, why he should be confident that the EEAS's understanding of the figures is correct and his is not. According to the complainant, the only way to know the situation exactly is to obtain an official statement from the social security services of country X.

48. In respect of the amounts due and the claim for compensation for damages, the complainant argued that a payment by the Delegation of "lost" contributions up until 2010 would be one way of repairing, at least in part, the damage caused by the Delegation's mistake. Another possible solution would be to issue the form with the current date, which would require the Delegation to pay social security contributions for the complainant up until today. The complainant does not, therefore, unconditionally agree to provide the Delegation with a movement certificate, because it would allow it to backdate the closure of his social security file with the authorities of country X. Once his file is closed, the complainant is afraid it will be impossible for him to claim compensation for the damage that he considers that he has suffered.

The Ombudsman's assessment after his friendly solution proposal

49. The Ombudsman notes the EEAS's statement that it is committed to taking action to close the complainant's social security file in country X once the complainant submits a movement certificate to the Delegation. The Ombudsman notes, however, that the complainant does not want to submit a movement certificate to the Delegation because, in his view, (1) such a step would infringe national laws; and (2) he is entitled to damages at least equivalent to the amount of social security contributions that the Delegation would have to pay if the file were to be closed with the current date, rather than being backdated to 2001 on the basis of a movement certificate.

50. The Ombudsman has not been provided with any evidence to show that the procedure suggested by the Delegation for closing the complainant's social security file, namely by submitting a movement certificate to the authorities of country X, would infringe national law. In any case, even if it were to emerge that it is not legally possible, under national law, to close the file on the basis of a movement certificate, surely, the Ombudsman notes, the only consequence would be that the authorities of country X would simply not accept the Delegation's request to close the file. The Ombudsman thus sees no justification for the complainant's unwillingness at least to allow the Delegation to attempt such a solution by providing it with the required movement certificate. The Delegation could then submit a request that his file be closed as of the date of his end of contract with the Delegation.

51. As regards the alleged errors in the salaries declared to the Social Security Services in respect of the complainant, the Ombudsman notes the EEAS's commitment to regularise amounts due to the Social Security Services, if any, once the complainant's file has been closed and the indexation issue has been clarified. The Ombudsman also notes the EEAS's commitment to pay any fine which may be due following the late submission of the form.

52. On the basis of the above, the Ombudsman considers that the EEAS is indeed committed to resolving the issue complained about. The Ombudsman thus closes this aspect of the complaint with a finding that the issue has been settled by the EEAS. However, if the EEAS were not to stand by its commitments in respect of closing the complainant's social security file once he has provided a movement certificate, or paying the amounts and fines due, the complainant could consider submitting a new complaint to the Ombudsman.

53. As regards the complainant's argument that he suffered considerable damage due to the delay in closing his social security file, and his consequent claim for compensation, the Ombudsman first notes that this issue is clearly separate from the EEAS's obligation to take action to close the complainant's social security file and the potential outstanding amounts and fines that might be due to the authorities of country X.

54. As noted in the friendly solution proposal (see paragraphs 32 and 33 above), any damage suffered by the complainant, prior to May 2010, as a result of his irregular social security status, must be attributed to the Delegation.

55. The Ombudsman underlines that the rules governing extra contractual liability are particularly strict. The complainant can only be granted damages if he submits to the EEAS evidence to show that he lost job opportunities, suffered anxiety and incurred costs as a direct and necessary result of the Delegation's failure to close his social security file. The Ombudsman has not been provided with any evidence of such damage. He does not exclude the possibility that the complainant may submit such evidence to the EEAS in the future. If he were to do so, the EEAS should examine the issue carefully. The Ombudsman, therefore, closes this aspect of the complaint with a finding that no further inquiries on his part are justified.

B. Conclusions

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

The EEAS has settled the aspect of the complaint that relates to the closing of the complainant's social security file and paying the amounts and fines due.

No further inquiries are justified as regards the aspect of the complaint that relates to the complainant's claim for compensation for damage.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 8 March 2013

 

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[1] It is not clear to the Ombudsman whether it would in fact be sufficient to close the complainant's social security file if he now signs the form to be submitted to the authorities of country X by the Delegation.