Dear Mr G.,

On 21 February 2002, you made a complaint to the European Ombudsman concerning the Commission's refusal to reimburse travel expenses you had incurred in August 1999 during a mission in La Hague (France).

On 20 March 2001, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 6 July 2001. I forwarded it to you with an invitation to make observations, which you sent on 31 August 2001.

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

THE COMPLAINT

The complainant is a European Commission official working in Luxembourg. In August 1999, he volunteered to join a mission in La Hague (France), accepting to shorten his family holidays in Bristol (United Kingdom). His family spent two weeks in Bristol, while he was on mission during the second week. Two months before joining the mission he was granted a derogation by his director in order to be reimbursed for the travel to La Hague starting from Bristol instead of Luxembourg. He also received an advance payment amounting to 899.45 € for the travel expenses, which he interpreted as an acceptance by the administration of the derogation signed by the responsible director.

In March 2000, an amount of 359.40 € was debited from his salary instead of the foreseen reimbursement of the travel expenses. He twice referred to "DG ADM" but did not receive any answer. In May 2000, he lodged a complaint in accordance with art. 90 of the Statute and in January 2001 he received a negative answer from the appointing authority.

The complainant therefore lodged a complaint with the European Ombudsman and made the following allegation:

The complainant requested the reimbursement of his travel expenses. The payment should have been made on the basis of a derogation duly signed by his authorising officer and which had thereby created legitimate expectations. The complainant alleges that a derogation applies in exceptional circumstances which can obviously not all be foreseen in a standard form.

The complainant claims that his expenses be reimbursed.

THE INQUIRY

The European Commission's opinion

The opinion of the European Commission on the complaint was in summary the following:

The Statute or the Mission Guide only foresee specific provisions for officials which have to interrupt their holidays to go on urgent or exceptional missions. This was not the case in the present situation and these specific provision are therefore not applicable.

In the complainant's case, the mission and the holidays were foreseen two months in advance. The holidays ended on 13 August 1999 and the travel for the mission started on Sunday 15 August 1999. The complainant could have returned to Luxembourg in the meantime to start the mission from there.

As regards the complainant's allegation:

The Commission considers that the derogation signed by the authorising officer could not create legitimate expectations for a diligent official. Firstly, there is no legal basis in the Statute for the derogation requested by the complainant. Furthermore, the form used by the complainant did not foresee the type of derogation requested by the complainant. Finally, the complainant had faced the same situation in 1998 and could therefore not be unaware of the situation.

Given the form used by the complainant and that he should have been aware that there was no legal basis for his request, the complainant should have noticed that the circumstances mentioned were beyond the administrative borderline.

The complainant's observations

The European Ombudsman forwarded the European Commission's opinion to the complainant with an invitation to make observations. In his reply, the complainant stated the following:

The Commission failed to address the fact that the derogation had been duly signed by the authorising officer and that the derogation had been accepted by the administration.

The complainant stated that he accepted to go on mission and to shorten his holidays because he had received the written assurance by his hierarchy that he would not have to start his mission from Luxembourg and that he would be reimbursed the travel expenses starting his mission from Bristol. The complainant considers that the advance payment made on the basis of the mission order and derogation signed by his hierarchy confirmed the validity of the derogation.

The complainant had indeed faced the same situation in 1998. At that time, he had not asked for a derogation and accepted to bear the costs. This led him to take measures to prevent the same situation from occurring in 1999 by asking for a derogation.

THE DECISION

1 Alleged existence of legitimate expectations created by a duly signed derogation.

1.1 The complainant requested the reimbursement of travel expenses. According to him, the payment should have been made on the basis of a derogation duly signed by his authorising officer and which had thereby created legitimate expectations. The complainant alleged that a derogation applies in exceptional circumstances which can obviously not all be foreseen in a standard form.

1.2 The Commission refused to pay on basis of the derogation presented by the complainant. The Statute or the Mission Guide only foresee specific provisions for officials which have to interrupt their holidays to go on urgent or exceptional missions. This was not the case in the present dispute.

1.3 The derogation requested by the complainant and granted by the authorising officer is not foreseen by the applicable provisions. Therefore it does not appear to have a legal basis. Although the complainant considers that the signature of the derogation by the responsible director and the payment of an advance created legitimate expectations, it must be noted that the Court of Justice has held that "no official of a Community institution can give a valid undertaking not to apply Community law"(1).

1.4 In the present case, the Commission gave a reasonable explanation as to why the payment requested by the complainant was not made. The Ombudsman therefore finds no instance of maladministration as regards this aspect of the case.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Case T-123/89, Jean-Louis Chomel v Commission of the European Communities [1990], ECR page II-0131, paragraphs 28 to 30.