Strasbourg, 19 October 2007

Dear Mr X,

On 22 August 2005, you submitted a complaint to the European Ombudsman, against the European Commission. Your complaint concerned (i) the Commission's failure to make payments to you in compliance with a court garnishment order directing the European Community to withhold a certain sum from your spouse's pay, in order to satisfy sums due under a judgment for alimony, and (ii) the Commission's refusal to continue providing you with medical coverage.

On 22 September 2005, I opened an inquiry into your complaint and invited the Commission to submit its opinion on it. By letters dated 21 October 2005 and 25 November 2005, you sent me further documentation and information concerning your complaint. On 16 January 2006, I forwarded these letters to the Commission, asking it to take them into account in formulating its opinion. On the same date, I replied to certain requests made in these letters and asked you to provide me with certain clarifications and documents. You replied to me by letter dated 21 January 2006. On 7 March 2006, I received (the Greek version of) the Commission's opinion on your complaint (initial opinion). On 11 April 2006, I invited both the Commission and you to provide me with additional information and documentation regarding the case. Moreover, I communicated to you the Commission's initial opinion, together with an invitation to make observations, if you wished to do so. I also replied to your letter of 21 January 2006 and forwarded it to the Commission. On 23 May 2006, the Commission informed the Ombudsman that it did not have anything to add to its initial opinion, in reply to the Ombudsman's above request of 16 January 2006. By letters dated 9 March 2006 and 22 May 2006, the service "AIDE AUX VICTIMES", acting on your behalf, sent me additional information and documentation concerning your case. You also sent additional information and documentation, which I received on 23 June 2006. On 28 June 2006, I received the Commission's additional opinion on your complaint (additional opinion). On 31 August 2006, I forwarded this additional opinion to you, together with an invitation to make observations, if you wished to do so. You made observations and provided further information and documentation, by letters dated 26 September 2006, 20 October 2006 and 18 May 2006.

I am now writing to inform you of the result of the inquiries I have made into your complaint.

THE COMPLAINT

In his complaint the complainant, who stated that he was the lawful spouse of a European Commission official, Mrs Y., made the following submissions. As a result of a Belgian court order issued in 1991 ("the court order of 1991"), the European Union has a legal obligation to make alimony payments to him, by withholding the relevant sum from his spouse's pay. However, over the past few years, the Commission has repeatedly terminated his alimony payments, on the pretext that new court decisions would be rendered or that it awaited certain relevant clarifications on the part of its Legal Service. In January 2004, the Commission once again ceased making alimony payments to the complainant and terminated his medical coverage, apparently because Mrs Y. had informed it of the judgment (rendered in 2003) of the Supreme Civil Court of Greece regarding her divorce from the complainant.

After taking into account the complaint and the extensive documentation annexed to it, the Ombudsman opened an inquiry into the following allegations by the complainant:

1. The Commission's decision, which was made at the end of 2003 or at the beginning of 2004, not to make any more alimony payments to the complainant and to terminate his medical coverage is based on unlawful grounds, and, for that reason, the Commission should continue making alimony payments to the complainant.
2. The Commission was not consistent in its actions regarding the complainant's case, since, although there was no definitive judgment rendered by a Greek court concerning a divorce between Mrs Y. and himself, and although the marriage between these two persons had not been dissolved, the Commission ceased making alimony payments to the complainant as from December 2003, and terminated his medical coverage, in disregard of the opinion rendered by its Legal Service in 2001, which had been adopted by the Commission in a letter dated 31 May 2001.

The Ombudsman also decided to inquire into the following claim:

The complainant should be able to meet the Commission official handling his file, in order to obtain clarifications regarding his case. Hence, the Commission's refusal to grant his relevant request constitutes an instance of maladministration(1).

In light of the documentation attached to his complaint, the complainant appeared to put forward, in essence, the following arguments in support of his first allegation: (i) the court order of 1991 could be considered as inapplicable only if the Court of First Instance of Brussels entered a new judgment about the same matter, which had not occurred; (ii) the dissolution of a marriage in Greece presupposed a final and irreversible, not merely a definitive, court decision, which should then be declared enforceable in Belgium, following special proceedings before the Belgian courts; (iii) he had filed an extraordinary motion for a new trial in Greece as regards the divorce decision and, therefore, his marriage with Mrs Y. had not been dissolved; (iv) the Commission had failed to invoke a Greek judgment recognised by a Belgian court as meeting the conditions laid down in Article 570 of the Judicial Code of Belgium, regarding the recognition of foreign court decisions.

THE INQUIRY

In the context of the present inquiry, the Ombudsman has been provided both by the complainant (and the service "AIDE AUX VICTIMES", acting on his behalf) and by the Commission with voluminous information and documentation concerning the case. The following presentation is limited to the elements which have been considered as most relevant for the purposes of reaching a decision on the allegations and claims under inquiry.

The Commission's opinions

In its initial opinion, the Commission rejected the complainant's allegations and claims, noting, in particular, the following. As from January 2004, the Commission had stopped making alimony payments to the complainant after his ex-spouse had informed it, in the appropriate manner, of a decision of the Supreme Court of Greece (civil cases) declaring the dissolution of the marriage. This court decision rendered obsolete the provisional measures ordered by the Court of First Instance of Brussels. The above communication was made on 12 December 2003 by a bailiff in Greece and was sent to the Commission on 17 December 2003, through the Greek Ministry of Foreign Affairs.

As regards the complainant's second allegation, there was no inconsistency between the position adopted by the Commission's Legal Service and the one taken by the Commission services responsible for the fulfilment of the Commission's statutory obligations. Indeed, the measure taken in January 2004 was justified by the communication to the Commission of the act of divorce, which substantially modified the situation existing at the time of the Commission's letter of 31 May 2001.

In accordance with Article 72 of the Staff Regulations, the complainant was entitled to full medical coverage by the "Régime Commun d'Assurance Maladie" ("RCAM") for one year after the communication of the divorce decision, namely, until 1 February 2005. However, considering that the complainant was suffering from a grave illness, the coverage was prolonged until 22 December 2006 with respect to relevant expenses he incurred.

Contrary to the complainant's allegations, he had had many opportunities to communicate his views on the problem in question to the Commission. In fact, during the week beginning on 24 January 2005, he was invited, together with his daughter, to the "Caisse de Maladie" and subsequently he was provided with extensive information as to the procedure to be followed. As a result of these contacts, his medical coverage was prolonged.

On 11 April 2006, the Ombudsman conducted further inquiries and asked the Commission to

(1) explain the legal basis of its position, expressed in its letter of 8 March 2004 to the complainant, that Mrs Y. did not have to initiate a procedure of recognition/enforcement (procédure d'exéquatur) of the final divorce decision rendered in Greece, since such a decision "[est] reconnue en principe de plein droit en Belgique", and also to provide a copy of the relevant legal provisions;

(2) explain the legal basis (and provide a copy of the relevant legal provisions) of its position expressed in its letter of 8 March 2004 to the complainant, that it is for the first national authority which is invited to take into account the relevant divorce decision, to verify whether the conditions laid down in Article 570 of the Judicial Code are met, even if the authority concerned is an administrative one,-- in this case, the official responsible for the registers of marital/family status in the town K (Belgium);

(3) reply to the complainant's argument that he filed an extraordinary motion for a new trial in Greece as regards the divorce decision;

(4) explain whether, and to what extent, in its view, the examination of the issues raised by Mrs Y. in her action against the Commission, before the Court of First Instance (case T) was relevant to, and might have a bearing on, the assessment of the merits of the present complaint;

(5) explain why it considered that the court order of 1991 ordered only provisional measures, which were to become obsolete and ineffective, after the communication of the final divorce judgment.

The Ombudsman also asked the Commission to provide him with (i) a copy of the whole decision of the court order of 1991; and (ii) a copy of the French version of Articles 570 and 1280 of the Belgian Judicial Code, referred to in the Commission's letters of 31 May 2001 and 8 March 2004 to the complainant, and of the articles of the Belgian Judicial Code related to the understanding and interpretation of Articles 570 and 1280 thereof.

In its additional opinion, the Commission provided the Ombudsman with the requested documents and replied to his above questions as follows:

(1) The Commission referred to the judgment of the Court of First Instance in Case T.

(2) The Greek divorce decision was automatically enforceable as between the spouses pursuant to Article 14 of Council Regulation (EC) 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses(2) ("Regulation 1347/2000"). Article 14 states that

"(...) no special procedure shall be required for up-dating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another member State, and against which no further appeal lies under the law of that Member State."

(3) The Commission was not in a position to comment on the complainant's information that he had filed an extraordinary motion for a new trial. The Commission had been informed, in the appropriate manner, of a divorce decision of the Supreme Civil Court of Greece and it would consider this decision as valid until such time as it might be informed of a decision that could change this situation.

(4) The Court's judgment in Case T is of considerable relevance to the present complaint, because in that decision confirmed that the Commission was right in asking Mrs Y. to inform it of the decision of the Supreme Civil Court of Greece by a bailiff and to make the necessary arrangements following this judgment in relation to the provisional alimony payments to the complainant. It stems from this that the Commission was acting lawfully when seeking to establish whether the complainant and Mrs Y. should be considered as still married or divorced, in particular as concerned the payments made to the complainant and to the termination of these payments.

(5) The court order of 1991 lays down, among other things, that Mrs Y. is obliged to pay the sum of 60 000 BEF per month as "onderhoudsvoorschot", that is, advanced alimony payment. Such a decision by the President of the Court of First Instance of Brussels is always provisional and might be revised on the basis of the final decision on the divorce. Pursuant to Article 1280 of the Belgian Judicial Code, the special competence of the President of the Court of First Instance ends when the divorce becomes final. Here the divorce was pronounced by a Greek Court, but registration with the civil registry of the commune K produced the same effect as a divorce judgment from the Belgian Court of First Instance. Hence, the competence of the President of the Court of First Instance ended and his provisional alimony decision lapsed.

The complainant's observations

In his observations of 26 September and 20 October 2006, the complainant maintained his allegation that the Commission's challenged actions to stop making alimony payments to him and to terminate his medical coverage were not based on lawful grounds. He repeated his arguments that (i) the court order of 1991 was still in force and applicable, since Mrs Y. had not obtained a court decision lifting this order; (ii) the Greek court decision regarding the divorce had not been duly recognised and executed in Belgium(3); (iii) the latter court decision was not lawful.

During the course of the inquiry, the complainant informed the Ombudsman that he had filed before the Belgian judicial authorities (i) at least two complaints against Mrs Y., concerning his failure to pay alimony to him; (ii) an action to challenge the validity of Mrs Y.'s new marriage; and (iii) an action concerning his right to continue to use Mrs Y.'s surname. The complainant also provided information about relevant appeals he had filed. Furthermore, he mentioned that an appeal had been filed in connection with his extraordinary motion for a new trial in Greece.

THE DECISION

1 Allegation that the Commission's decision, made at the beginning of 2004, not to make any more alimony payments to the complainant and to terminate his medical coverage is based on unlawful grounds (and relevant claim)

1.1 In compliance with a court garnishment order, issued in 1991 ("the court order of 1991"), against the complainant's spouse Mrs Y., a European Commission official, the Commission withheld a certain sum from Mrs Y.'s pay and made alimony payments to the complainant. The Commission stopped making such payments in January 2004. The Commission has explained that it took that step after it had been duly informed by a bailiff of the decision of the Supreme Civil Court of Greece concerning the divorce between the complainant and Mrs Y. It has pointed out that, pursuant to Article 14 of Council Regulation (EC) 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses(4) ("Regulation 1347/2000"), this divorce decision was automatically recognised and enforceable in Belgium. Moreover and in light of Article 1280 of the Belgian Judicial Code, the issuance of the divorce meant that the provisional measures determined by the court order of 1991 were no longer applicable. The complainant alleges that the above grounds of the Commission's decision to stop making alimony payments to him are unlawful.

1.2 The complainant's first and main argument is that the Commission was still bound by the court order of 1991, since there was no court decision lifting this order. With regard to this plausible argument, the Ombudsman notes the following. The court order in question does not contain a provision concerning its force ratione temporis. The Commission has argued that

1. under this court order, Mrs Y. was obliged to pay the sum of 60 000 BEF per month as "onderhoudsvoorschot", that is, advanced alimony payment;
2. such an order by the President of the Court of First Instance of Brussels is always provisional and his special competence, pursuant to Article 1280 of the Belgian Judicial Code(5), ends when the divorce becomes final;
3. following the Greek divorce judgment, and its registration with the civil registry of the commune K ( Belgium), the competence of the President of the Court of First Instance of Brussels ended and his provisional alimony decision lapsed.

The Ombudsman finds this argumentation plausible but not unobjectionable. Indeed, Article 1280, standing alone, could reasonably be viewed as not resolving the question of whether the provisional measures ordered by the President of the Court of First Instance of Brussels automatically stop having effect at the time of the dissolution of the marriage. Moreover, neither the Commission nor the complainant has made any specific references to other provisions of Belgian law or to Belgian case-law, which would be likely to lead to the resolution of the above question. However, it must be remarked that the Commission's conclusion under point (iii) above appears to have been endorsed by the judgment of the Court of First Instance in Case T. On the basis of the Court's findings in paragraph 55 of this judgment(6), the Commission's approach, thus, appears to be lawful.

1.3 The complainant's second argument is that the Greek divorce judgment has not been duly recognised and declared enforceable in Belgium. In this regard, the Commission has argued that the Greek divorce decision was automatically recognised in Belgium, as between the spouses, pursuant to Article 14 of Regulation 1347/2000(7). The Ombudsman finds the Commission's position convincing and notes that the complainant has not contested it in a specific way. He also remarks that the complainant himself attached to his observations a legal opinion according to which a foreign divorce judgment, issued in a regular manner, is automatically recognised in Belgium(8).

1.4 In addition, the complainant has argued that the Greek divorce judgment is not lawful and that he has filed an extraordinary motion for a new trial in Greece. In reply, the Commission stated that it had been informed in due form of the divorce decision of the Supreme Civil Court of Greece and it would consider this decision as valid until it might be informed of a decision that could change this situation. The Ombudsman finds the Commission's reply reasonable and notes that the complainant has not argued, by making specific references to the Greek legislation, that the filing of an extraordinary motion for a new trial in Greece had an impact on the issue of the dissolution of his marriage with Mrs Y., following the relevant judgment of the Supreme Civil Court of Greece.

1.5 Finally, the Ombudsman recalls that the complainant appears to have filed before the Belgian judicial authorities (i) at least two complaints against Mrs Y., concerning her failure to pay alimony to him; (ii) an action to challenge the validity of Mrs Y.'s new marriage; and (iii) an action concerning his right to continue to use Mrs Y.'s surname. In this regard, he notes that he has not been provided with any information concerning the relevant decisions of the Belgian judicial authorities, including their reasoning, which could reasonably call into question the lawfulness of the grounds on which the Commission's challenged decision is based.

1.6 In light of the above, the Ombudsman concludes that it has not been established that the Commission's decision to stop making alimony payments to the complainant was based on unlawful grounds. The Ombudsman, thus, finds no corresponding instance of maladministration on the part of the Commission. Moreover, he does not accept the complainant's claim that the Commission should continue making alimony payments to him.

1.7 The complainant's allegation concerning the termination of his medical coverage seems to be collateral to his above-examined allegation relating to the termination of alimony payments. Relatedly, the Commission has noted that, in accordance with Article 72 of the Staff Regulations, the complainant was entitled to full coverage by the Régime Commun d'Assurance Maladie ("RCAM") for one year after the communication of the divorce decision, namely until 1 February 2005. However, considering that the complainant was suffering from a grave illness, the coverage was prolonged until 22 December 2006 with respect to his relevant expenses. The complainant has not made observations specifically concerning this part of the case.

In light of the above and his conclusion in point 1.5 of the present decision, the Ombudsman considers that the complainant's allegation has not been substantiated and finds no corresponding instance of maladministration on the part of the Commission. In addition the Ombudsman will express, in a further remark, his appreciation for the Commission's decision to prolong the complainant's coverage by the RCAM for almost two years.

2 Allegation concerning inconsistency in the Commission's actions

2.1 According to the complainant, the Commission was not consistent in its actions regarding his case. Although there was no definitive judgment rendered by a Greek court concerning a divorce between Mrs Y. and him, and although their marriage had not been dissolved, the Commission ceased making alimony payments to him as from December 2003. The Commission also terminated his medical coverage, in disregard of the opinion rendered by its Legal Service in 2001, which had been adopted by the Commission in a letter dated 31 May 2001. The Commission considers that there was no inconsistency between the position adopted by its Legal Service and the one taken by its services that are responsible for the fulfilment of the Commission's statutory obligations. It pointed out that the challenged measure taken in January 2004 was justified by the communication to it of the act of divorce, which substantially modified the situation existing at the time of its letter of 31 May 2001.

2.2 The Ombudsman, first, notes that, in the latter document, the Commission informed the complainant of the following views of its Legal Service:

1. Belgian law is applicable as to the determination of the effect of the divorce decision rendered by a Greek court to the provisional measures ordered pursuant to Belgian law.
2. Such measures would become obsolete and ineffective between the spouses when the divorce would be declared to be res judicata and would be duly transcribed in Belgium. With regard to third parties, Article 1280(6) of the Belgian Judicial Code mandates compliance with a court order such as the court order of 1991, providing for payments to be made to the petitioner by a third party. This obligation lasts until one of the two parties to the dispute informs the third party, through a bailiff, of the definitive judgment ("jugement définitif") rendered by the competent court, in this case, a Greek court.

The Commission also stated the following. In view of the fact that, in Belgian law, the definitive judgment about the dissolution of the marriage produces effects only after its transcription in the registers of marital/family status, the effects of the provisional measures expire on this date. Consequently, Mrs Y. would have to communicate such a judgment, through a bailiff, to the Commission, according to Article 1280(6). Only after such a communication would the provisional measures become obsolete and ineffective. The Commission had invited Mrs Y. to transcribe the Greek divorce judgment in the registers of marital/family status in Belgium and to inform the Commission of this judgment, through a bailiff. Hence, upon compliance with these formalities, the Commission would stop making alimony payments to the complainant.

2.3 The Ombudsman notes that the Commission stopped making alimony payments to the complainant in January 2004, after (i) it had been informed, by a bailiff, of the definitive judgment (rendered in 2003) of the Supreme Civil Court of Greece concerning the dissolution of the marriage between the complainant and Mrs Y. and (ii) a relevant change in the register of the marital/family status of the commune K. Taking into account this fact and the content of the Commission's letter of 31 May 2001 presented above, the Ombudsman concludes that the complainant's second allegation has not been substantiated. He, thus, finds no corresponding instance of maladministration on the part of the Commission.

3 Claim that the Commission should have granted the complainant's request for a meeting with the Commission official handling his file

3.1 The complainant claimed that he should be able to meet the Commission official handling his file, in order to obtain clarifications regarding his case. He alleged that that the Commission's refusal to grant his relevant request constituted an instance of maladministration. In its opinion, the Commission stated that, contrary to the complainant's allegation, he had had many opportunities to exchange views on the problem in question with it. In fact, during the week beginning on 24 January 2005, he was invited, together with his daughter, to the "Caisse de Maladie" and subsequently he was provided with extensive information as to the procedure to be followed. As a result of these contacts, his medical coverage by the RCAM was prolonged until December 2006. The complainant does not appear to have made specific observations on this part of the Commission's opinion.

3.2 Taking into account the above explanations provided by the Commission, which do not seem to have been contested by the complainant, together with its service-mindedness in relation to the prolongation of the complainant's coverage by the RCAM, the Ombudsman concludes that no further inquiry into and consideration of this part of the complaint are justified.

4 Conclusion

On the basis of his inquiries into the complaint, the Ombudsman concludes that (i) there appears to have been no maladministration corresponding to the complainant's first and second allegations; and (ii) no further inquiry into, and consideration of, the complainant's third allegation are justified.

The Ombudsman, therefore, closes the case.

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

FURTHER REMARK

It appears that the Commission decided to prolong the complainant's medical coverage by the RCAM for almost two years, because the complainant was suffering from a grave illness, the treatment of which apparently required considerable expenses. The Ombudsman would like to praise the Commission for this decision, which reflects a particularly sensitive and pragmatic consideration of the complainant's medical case.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) By contrast, the Ombudsman decided not to open an inquiry into the complainant's allegation that the Commission's challenged decisions were based on unlawful grounds, to the extent that this allegation concerned (i) the Commission's decision, made in February 2001, to cease making alimony payments to the complainant; and (ii) a Commission decision, received by the complainant on 5 December 2002, pursuant to which the complainant was not entitled to be reimbursed for his medical expenses, as from 1 October 2001. The Ombudsman took this decision because the complaint had been filed, in relevant part, after the expiry of the two-year deadline provided for in article 2(4) of the Statute of the European Ombudsman.

(2) OJ L 160, p. 19.

(3) In support of this argument, the complainant referred to an unsigned document, entitled "Consultation: Le divorce en droit international privé. Belgique-Grèce." This document includes a section D, which states the following: "Une décision étrangère régulièrement rendue en matière de divorce et plus généralement en matière d'etat et de capacité, est reconnue de plein droit en Belgique. Il n'y a donc pas de procédure d'exequatur à moins qu'elle ne contienne des mesures d'exécution sur les biens ou de contrainte sur les personnes. Ils ne sont toutefois tenus en Belgique pour régulièrement rendus que s'ils satisfont aux conditions énoncées dans l'article 570 du C.J. (Cass. 29 Mars 1973 - Pas.1973 I p. 725)."

(4) OJ L 160, p. 19.

(5) According to this Article "Le président du tribunal ou le juge qui en exerce les fonctions statuant en référé connaît jusqu’à la dissolution du mariage à la demande soit des parties ou de l’une d’elles, soit du procureur du Roi, en tout état de cause, des mesures provisoires relatives à la personne, aux aliments et aux biens, tant des parties que des enfants (…) Le président du tribunal ou le juge qui en exerce les fonctions peut exercer les mêmes pouvoirs que ceux conférés au juge de paix par l’article 221 du code civil. En ce cas, son ordonnance est opposable à tous tiers débiteurs actuels ou futurs sur la signification qui leur en est faite par ministère d’huissier de justice, à la requête d’une des parties. Lorsqu’elle cesse de produire ses effets, les tiers débiteurs en sont informés par la même voie, à la requête de la partie la plus diligente (…)".

(6) Paragraph 55 of the judgment states the following: "..." (text omitted).

(7) According to Article 13(1) of the Regulation, "[f]or the purposes of this Regulation, 'judgment' means a divorce, legal separation or marriage annulment pronounced by a court of a Member State, as well as a judgment relating to the parental responsibility of the spouses given on the occasion of such matrimonial proceedings, whatever the judgment may be called, including a decree, order or decision."

Article 14 of the Regulation provides: "1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. 2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for up-dating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another member State, and against which no further appeal lies under the law of that Member State. 3. An interested party may (...) apply for a decision that the judgment be or not be recognised."

Article 15 provides the grounds for non-recognition.

(8) See footnote 3 above.