Strasbourg, 25 July 2005

Dear Mr X.,

On 6 March 2004, you made a complaint to the European Ombudsman concerning a decision by the European Commission to reject your request to have a person treated as a dependent child under the Staff Regulations.

On 3 May 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 5 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 10 August 2004.

On 1 March 2005, I asked the Commission for further information, and informed you by letter that same date. The Commission sent me its reply on 3 May 2005, and I forwarded it to you with an invitation to make observations. On 15 June 2005, you submitted your observations.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time that it has taken to carry out these inquiries.

THE COMPLAINT

The complaint was working as an official for the European Commission. It concerned the Commission's decision not to grant Ms Z. the status of a person being treated as if she were a dependent child of the complainant under Article 2(4) of Annex VII of the Staff Regulations. This article provides as follows:

"Any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned decision of the appointing authority, based on supporting documents."

The complainant had in 2002 adopted Ms Z., a 26-year old, through a so-called "simple adoption" under the law of the third country concerned while working for the Commission's representation in the third country concerned. The purpose of the adoption was to obtain cover for Ms Z. under the health insurance applying to persons recognised as dependent children under the Staff Regulations. Ms Z. was a friend of the complainant, and had fallen ill during his stay in the third country concerned.

Following lengthy correspondence with the Commission, the complainant was informed by the Commission that his request to have Ms Z. recognised as if she were a dependent child of him could only be met if Ms Z. was recognised as an adopted child under the law of the country of which he was a national.

By letter of 15 November 2002, the Ministry of Justice of the country of which the complainant was a national refused to recognise that the complainant had a legal responsibility to maintain Ms Z. under its law. This decision was confirmed by the Ministry on 21 January 2003.

The Commission accordingly informed the complainant that as it had not been established under the law of which the complainant was a national that Ms Z. was a person whom the complainant "has a legal responsibility to maintain" under Article 2(4) of Annex VII of the Staff Regulations, she could not be granted the status of a person being treated as if she were a dependent child of the complainant.

On 30 September 2003, the complainant filed a complaint under Article 90(2) of the Staff Regulations against the Commission's decision. He argued, in particular, that his "legal responsibility to maintain" Ms Z. should be assessed on the basis of the law of the third country concerned only, as he had been resident in that third country when the adoption of Ms Z. took place. He referred to Article 3 of the Commission's General Implementing Provisions(1), in "Section 2 - Legal Responsibility for Maintenance", that provides as follows:

"1. Where there exist factors connecting the case with more than one law, the applicable law shall be determined in accordance with the rules concerning conflicts of laws applicable by the court having jurisdiction.

2. The court having jurisdiction shall be determined in accordance with the rules concerning the choice of court including, where appropriate, those laid down by the relevant international agreements, notably the amended Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

For the purpose of the provision set out in paragraph 1, officials shall be assumed to be resident at their place of employment, in the absence of evidence to the contrary."

On 8 July 2004, i.e., following the submission of the present complaint to the Ombudsman, the Commission adopted its decision on the complainant's Article 90(2) complaint. In its decision, the Commission maintained its view that Ms Z. could not be granted the status of a person being treated as if she were a dependent child of the complainant under Article 2(4) of Annex VII of the Staff Regulations.

As regards the complainant's view that his "legal responsibility to maintain" Ms Z. should be decided on the basis of the law of the third country concerned only because he had been resident in that third country when the adoption of Ms Z. took place, the Commission stated that "unless there is evidence of an obligation under private international law for the law of a non-Community country [...] to take precedence over that of a Member State [...], priority must be given to the latter, particularly since the Community institutions have a duty of reciprocal cooperation towards the Member States. At all events, the civil law which applies to [the complainant] is first and foremost that of the country of which he is a national."

In his complaint to the Ombudsman, the complainant alleged that the Commission had wrongly interpreted the Staff Regulations in rejecting his request to have a person adopted by him treated as if she were his dependent child.

THE INQUIRY

The Commission's opinion

The complaint was sent to the Commission for opinion. In its opinion, the Commission confirmed its decision not to grant Ms Z. the status of a person being treated as if she were a dependent child of the complainant under Article 2(4) of Annex VII of the Staff Regulations. It reiterated the reasons and points summarised above.

The complainant's observations

In his observations, the complainant contested the Commission's view that it was necessary to obtain recognition from the authorities of which he was a national of a "legal responsibility to maintain" Ms Z. He maintained that the law of the third country concerned was the applicable law in this case because he had been employed in that third country when the adoption of Ms Z. took place.

The complainant also stated that other officials had orally told him that an important reason for the Commission to reject his request had been a fear that accepting it would establish a precedent for third-world citizens to get access to cover from the European Union's medical insurance scheme.

Further inquiries
The Ombudsman's letter to the Commission

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore wrote to the Commission, asking it to provide more detailed information as to which rules on conflicts of laws should apply, and the specific reasons for its decision that the applicable law in this case is the law of the country of which the complainant is a national.

The Commission's reply

In its reply, the Commission took the view that the replies to the questions raised by the letter from the Ombudsman had already been given in its opinion. It sought, however, further to clarify its position. The Commission quoted Article 3 of the General Implementing Provisions. It noted that the complainant relied on the final indent of this article, and stated that "it is clear form the wording of this provision that its scope is limited to paragraph 2, which deals with legal responsibility. It cannot therefore be invoked by [the complainant] with regard to paragraph 1, which establishes which law is applicable (although, of course, it could have an indirect effect thereon, since the applicable law is determined according to the rules on conflicts of laws to be applied by the competent court)." The Commission also repeated its previously made statement that "[i]n any case, the civil law applicable to the person concerned here is primarily that of the country of which he is a national." It furthermore stated that "in view of this principle [...] it is [...] up to the complainant [...] (who is a national) to indicate - in so far as he contests this principle - what obligation under private international law he intends to invoke in order to claim precedence of [the law of the third country concerned over the law of the country of which he is a national] with regard to adoption".

The complainant's observations

In his observations on the Commission's reply to the Ombudsman's further inquiries, the complainant maintained his arguments.

The complainant also noted that the Commission had not addressed his remark, made in his first set of observations, that an important reason for the Commission to oppose his request was a fear that accepting it would establish a precedent for third-world citizens to get access to cover under the European Union's medical insurance scheme.

The complainant furthermore indicated that a hospitalisation of Ms Z. under better conditions was urgent, stating that the Commission's medical doctor, Mr S., had (according to the complainant's recollection) made the finding that half of the dialysis patients at Ms Z.'s present hospital had died since their hospitalisation.

THE DECISION

1 Introductory remarks

1.1 The complaint was submitted by a Commission official against a decision of the European Commission to refuse to grant Ms Z. the status of a person being treated as if she were a dependent child of the complainant under the Staff Regulations. In its opinion and in its reply to further inquiries made by the Ombudsman (cf. paragraph 2 below), the Commission maintained its position.

1.2 In his observations on the Commission's reply to the Ombudsman's further inquiries, the complainant made remarks concerning two issues. First, he noted that the Commission had not addressed his remarks, made in his first set of observations, that some officials had orally told him that an important reason for the Commission to reject his request had been the fear that accepting it would establish a precedent for third-world citizens to get access to cover under the European Union's medical insurance scheme. Second, the complainant indicated that a hospitalisation of Ms Z. under better conditions was urgent, stating that the Commission's medical doctor, Mr S., had (according to the complainant's recollection) made the finding that half of the dialysis patients at Ms Z.'s present hospital had died since their hospitalisation.

1.3 It is the Ombudsman's understanding that the complainant made the above remarks by way of information for the overall assessment of the case, and not to submit additional allegations or claims. No such additional allegations or claims have, therefore, been taken up for inquiry.

2 The question of the applicable law

2.1 The European Commission decided that Ms Z. could not be granted the status of a person being treated as if she were a dependent child of the complainant under Article 2(4) of Annex VII of the Staff Regulations. This decision was based on the consideration that Ms Z. could not be recognised as a person whom the complainant had a "legal responsibility to maintain", as the authorities of the country of which the complainant was a national had refused to recognise the complainant's adoption of Ms Z.

2.2 The complainant alleged that the Commission had wrongly interpreted the Staff Regulations in rejecting his request to have a person adopted by him treated as if she were his dependent child. He argued that the fact that he was resident in the third country concerned when the adoption took place implied that the question of whether he had a "legal responsibility to maintain" Ms Z. should be decided on the basis of the law of the third country. He referred to Article 3 of Section 2 of the Commission's General Implementing Provisions ("legal responsibility for maintenance"), quoted above.

2.3 In its reply to further inquiries made by the Ombudsman, the Commission referred to the final indent of Article 3, Section 2, of the General Implementing Provisions (quoted above), and stated that "it is clear form the wording of this provision that its scope is limited to paragraph 2, which deals with legal responsibility. It cannot therefore be invoked by [the complainant] with regard to paragraph 1, which establishes which law is applicable." In his second set of observations, the complainant rejected the Commission's view.

2.4 The present case only concerns the condition of Article 2(4) of the Staff Regulations that the official must have a "legal responsibility to maintain" the individual concerned. It does not concern the other conditions set out in that article. It should furthermore be noted that the Ombudsman's review of the present case is confined to an assessment of the specific legal provisions that were the subject of the dispute in the complainant's internal complaint under Article 90(2) of the Staff Regulations.

2.5 Article 3(1) of the General Implementing Provisions refers to "factors connecting the case with more than one law". In the present case, the complainant is a Commission official who claims that his adoption of Ms Z. under the law of the third country concerned during his residence in that country should be recognised. The case would therefore appear to comprise factors that make it necessary to establish which law is applicable. According to Article 3(1) of the General Implementing Provisions, the applicable law shall be determined in such cases "in accordance with the rules concerning conflicts of laws applicable by the court having jurisdiction".

2.6 In the present case, the Commission has basically stated that in the absence of evidence to the contrary, the law of the country of which the complainant is a national applies because the complainant is a national of that country. However, the final indent of Article 3 of the Commission's General Implementing Provisions provides that "[f]or the purpose of the provision set out in paragraph 1 [concerning the court of jurisdiction and the applicable rules on conflicts of laws], officials shall be assumed to be resident at their place of employment, in the absence of evidence to the contrary." In the light of this wording, the Ombudsman does not understand the Commission's view that the final indent should not apply to the first paragraph of Article 3. The Ombudsman therefore finds that the complainant's place of employment - i.e. the third country concerned - should have been an important factor in identifying the court having jurisdiction. The complainant, having reached a similar conclusion, appears to have taken the view that the court having jurisdiction would be a court in the third country, and that the applicable law should be determined on that basis. The Ombudsman considers that this view does not appear to be unreasonable.

2.7 As regards the rules on conflict of laws that would be applied by a court in the third country concerned, the Ombudsman notes that neither the complainant nor the Commission has provided information on that issue. The Commission has, however, stated that in so far as the complainant contests that the civil law that applies to him should be the law of the country of which he is a national, it is up to him to indicate what rules under private international law should give the law of the third country concerned precedence over the law of the country of which the complainant is a national with regard to the adoption of Ms Z.

2.8 The Ombudsman notes that neither the Staff Regulations nor the Commission's General Implementing Provisions appear to oblige the Commission to carry out a detailed assessment of international private law in order to examine which law should apply. The Ombudsman furthermore notes that the complainant acknowledges that he adopted Ms Z. specifically in order to obtain medical cover for her under the Staff Regulations. The complainant's request to have Ms Z. treated as a dependent child under the Staff Regulations was therefore basically a request for a financial benefit. It is therefore appropriate to adopt a strict interpretation of the legal framework regulating the matter.

2.9 In the light of the above, the Ombudsman considers that the Commission has taken a reasonable position by concluding that it is incumbent on the complainant to establish that the law of the third country was applicable and to demonstrate that he has a legal responsibility to maintain Ms Z. under that law. As the complainant does not appear to have provided evidence to this effect, the Ombudsman finds that the Commission's rejection of the complainant's request to have Ms Z. recognised as a person being treated as if she were a dependent child of the complainant under Article 2(4) of Annex VII of the Staff Regulations is not unreasonable, and that there has therefore been no maladministration.

3 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,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 110 of the Staff Regulations provides that general provisions for giving effect to the Staff Regulations shall be adopted by each institution.