Strasbourg, 27 September 2007

Dear Mr X,

On 20 April 2006, you submitted a complaint against the European Commission. Your complaint concerned the Commission's refusal to change the wording of an agreement it had proposed concerning the mandate of an arbitration body ("arbitration agreement") which would decide on your entitlement to an education allowance for your children.

On 28 June 2006, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 7 February 2007. I forwarded it to you with an invitation to make observations, which you sent on 21 February 2007.

On 28 February 2007, I forwarded your observations to the Commission and asked it to respond to them by 31 March 2007. I received its response on 21 May 2007.

Following a further exchange of information by both e-mail and telephone with you and the Commission, which is described in greater detail below, I am writing now to let you know my conclusion in your case.

THE COMPLAINT

The complainant had worked as a member of the Administrative and Technical Local Staff ("ALAT") at the Delegation of the European Commission in A ("the Delegation"). Upon his arrival, he enrolled his children in the so-called "maternelle" section of a French School. Under paragraph 5 of Article 5 of his ALAT contract, he was entitled to a monthly education allowance for dependent children attending an educational establishment. The allowance would be paid up to the age of 26 maximum; no minimum age was mentioned. However, the Commission rejected the complainant's request for payment of this allowance on the basis of internal note No 959598 of 19 November 2001 of the Commission's Directorate-General for External Relations ("DG RELEX"), concerning the adaptation of the allowance. This note indicated that the allowance was paid only for children attending primary school level and higher. The complainant appealed against this decision, citing the relevant article of his ALAT contract(1). He received no reply. He subsequently proposed to submit the dispute to an arbitration body envisaged in Article 14 of his ALAT contract(2). The Commission made a proposal for an arbitration agreement to the complainant, which provided the following in Point 1(a):

"to determine, on the basis of the contract concluded between the parties, the Framework Rules and, where applicable, the Specific Conditions of Employment if the decision taken by the Commission not to pay the education allowance to [the complainant] for his two children who attend a kindergarten is fair and lawful."

The complainant agreed with the content of the proposed agreement, except the wording "for his two children who attend a kindergarten". According to the complainant, this wording was misleading given that his children attended the "maternelle" section of the French school, which was, in his opinion, a fully-fledged educational establishment. He argued that to include an expression such as 'kindergarten' in the arbitration agreement would pre-empt the issue in his case. Therefore, the complainant proposed to remove the wording "for his two children who attend a kindergarten". However, the Commission did not consent to this modification. The complainant proposed two other alternative wordings which were likewise rejected by the Commission without addressing the issue or stating the reasons for its position. He then proposed to proceed with arbitration on the basis of a simple letter by the Commission agreeing to the arbitration. However, the Commission rejected this proposal and stated that it was up to the complainant "to decide whether or not he wants to try to find an agreement on the mandate or whether or not he wants to take any other legal actions concerning his claim".

In his complaint to the European Ombudsman, the complainant alleged that the Commission was unfairly refusing to modify the formulation of Point 1(a) of the arbitration agreement it had proposed to him, and claimed that the Commission should agree to a balanced wording of the arbitration agreement.

In his opening letter to the President of the Commission informing him of the complaint, the Ombudsman expressly asked the Commission to consider whether it was willing to accept the following alternative formulation of Point 1(a) of the draft arbitration agreement: "to determine whether [the complainant's] children attend an 'educational establishment' within the meaning of Article 5(5) of the contract concluded between the parties."

THE INQUIRY

The Commission's opinion

In its opinion, the Commission stated that although Article 5 of the complainant's ALAT contract did not explicitly mention that the possibility of granting the education allowance for children would depend on the level of the educational establishment, the general practice of the Commission was to pay the allowance only as from primary school level. This was clearly explained in the administrative guidelines from the Director-General of DG RELEX of 19 November 2001 and as established in Article 3.3 of the Special Conditions of Employment for local agents serving in Tanzania: "the contract is subject to the Framework Rules, to any amendments thereto adopted by the Commission of the European Communities, and to any specific rules deriving from either." In addition, it was comparable to the provisions applicable in this matter for all the officials and other staff of the Commission.

The Commission could not accept the modifications of Point 1(a) of the draft arbitration agreement proposed by the complainant because they omitted the scope of the main point of the dispute on which the Commission's refusal of the request for an education allowance was based. In its last communication to the complainant in April 2006, the Commission expressed its willingness to review the case if the complainant could submit evidence that attending kindergarten was considered mandatory by the Tanzanian education system. Its proposal remained without a response.

The Commission's decision to refuse the payment of the education allowance was based on the same criteria that were applied to all Commission officials and other staff, and was in line with the guidelines applied equitably to all ALATs. Any exception to this approach would imply, without a legal base, discriminatory treatment as regards the other staff.

The Commission considered that the formulation of Point 1(a) of the draft arbitration agreement as proposed by the Ombudsman did not specify the type of educational establishment attended by the complainant's children and that this lack of information would prevent the arbitrators from ruling on the main point of disagreement with the complainant.

However, in a spirit of reaching a satisfactory conclusion for all parties concerned, and without prejudice to the above-mentioned legal consideration, the Commission proposed the following wording of the relevant point of the arbitration agreement: "to determine, taking into account all legal bases applicable to the case, whether the education establishment attended by the two children of [the complainant] at kindergarten level is within the meaning of article 5(5) of the contract concluded between the parties."

The Ombudsman informed the complainant of this proposal and forwarded the opinion to him with an invitation to make observations.

Complainant's observations

In his observations, the complainant accepted the Commission's proposal and suggested three other minor changes to the agreement. However, he wished to maintain his complaint until the Commission sent him a revised arbitration agreement.

Further developments on the case

The Ombudsman forwarded the complainant's observations to the Commission and asked it to respond by 31 March 2007. However, since he received no response from the Commission by that deadline, the Ombudsman issued a reminder and informed the complainant accordingly. Following this, the complainant informed the Ombudsman, by e-mail of 25 April 2007, that he had received the duly revised arbitration agreement from the Commission on 21 March 2007, had signed it and returned it to the Commission on 22 March 2007 for its signature. However, he had not received the agreement signed by the Commission.

On 21 May 2007, the Commission, on the other hand, informed the Ombudsman that it was still waiting for the complainant to sign the duly revised arbitration agreement, which was sent to him through the Delegation on 16 March 2007.

In light of the above contradictory information, the Ombudsman's services contacted the Commission on 6 June 2007 in order to clarify the situation. Following this intervention, the Commission explained that the duly signed arbitration agreement had been sent to the complainant on 21 May 2007 and that it arrived by diplomatic post on 4 June 2007. In a telephone conversation, initiated by the Ombudsman's services on 22 June 2007, the complainant confirmed that he indeed had received the arbitration agreement; and added that, in fact, the arbitration was ongoing and the decision was due on that same day. The complainant considered the subject-matter of his complaint to have been settled following the Ombudsman's intervention, for which he was thankful. He confirmed this in writing by e-mail of 22 June 2007 and asked the Ombudsman to close the case accordingly.

THE DECISION

1 Alleged unfair refusal to modify the arbitration agreement and the corresponding claim

1.1 The complaint concerns the European Commission's allegedly unfair refusal to change the wording of the agreement it had proposed to the complainant concerning the mandate of an arbitration body ("arbitration agreement") which would decide on his entitlement to an education allowance for his children. The disputed wording was the following: "to determine (...) if the decision taken by the Commission not to pay the education allowance to [the complainant] for his two children who attend a kindergarten is fair and lawful." (emphasis added). The complainant contended that this wording was misleading, given that his children attended the "maternelle" section of the French school, which was, in his opinion, a fully-fledged educational establishment. Including an expression such as 'kindergarten' in the arbitration agreement would pre-empt the issue in his case. He proposed several alternative wordings which were all rejected by the Commission, which, however, did not address the issue or state the reasons for its position.

The complainant alleged that the Commission was unfairly refusing to modify the formulation of Point 1(a) of the arbitration agreement it proposed to him, and claimed that the Commission should agree to a balanced wording of the arbitration agreement.

1.2 With a view to finding a possible solution to the dispute at an early stage, the Ombudsman asked the Commission already i n his opening letter to consider whether it was willing to accept the following alternative formulation of Point 1(a) of the draft arbitration agreement: "to determine whether [the complainant's] children attend an 'educational establishment' within the meaning of Article 5(5) of the contract concluded between the parties."

1.3 In its opinion, the Commission stated that it could not accept the modifications of Point 1(a) of the draft arbitration agreement proposed by the complainant because they omitted the scope of the main point of the dispute, on which the refusal of the request for education allowance was based. The Commission's decision to refuse the payment of the allowance was based on the same criteria that applied to all Commission officials and other staff, and was in line with the guidelines applied equitably to all ALAT. Any exception to this approach would imply, without a legal basis, discriminatory treatment as regards other staff.

The Commission also considered that the formulation of Point 1(a) of the draft arbitration agreement as proposed by the Ombudsman did not specify the type of educational establishment attended by the complainant's children and that this lack of information would prevent the arbitrators from ruling on the main point of disagreement with the complainant.

However, in an effort to reach a satisfactory conclusion for all parties concerned, and without prejudice to the above consideration, the Commission proposed the following wording of the relevant point of the arbitration agreement:

"to determine, taking into account all legal bases applicable to the case, whether the education establishment attended by the two children of [the complainant] at kindergarten level is within the meaning of article 5(5) of the contract concluded between the parties."

1.4 In his observations, the complainant accepted the Commissions proposal and suggested three other minor changes to the agreement. The Ombudsman informed the Commission accordingly.

1.5 The Ombudsman notes that on 22 June 2007 the complainant informed his services that he had received a duly revised and signed arbitration agreement; that the arbitration was ongoing and that the decision was due on that same day. The complainant considered the subject-matter of his complaint to have been settled following the Ombudsman intervention and asked the Ombudsman to close the case accordingly.

1.6 In view of the above, the Ombudsman considers that the Commission has settled the matter and has thereby satisfied the complainant. Hence no further inquiries into the matter are justified.

2 Conclusion

In light of the foregoing, the Ombudsman concludes that the Commission has settled the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 14 of the complainant's ALAT contract refers to an internal appeal procedure laid down in Article 22 of the Framework Rules and, where applicable, Chapter X of the Specific Conditions of Employment applicable to local staff serving in Tanzania.

(2) The first paragraph of Article 14 provides: "The parties hereby expressly declare that any dispute arising between them as regards the interpretation or performance of this contract will be referred to an arbitration body." The third paragraph provides for the establishment of the arbitration body. The fourth paragraph provides: "(...) The powers of the arbitrators shall last for three months, beginning on the date of the agreement to seek arbitration. (...)".