Strasbourg, 3 May 2007

Dear Mr W.,

On 24 January 2005, you made a complaint to the European Ombudsman against the Joint Research Centre, a service of the European Commission. Your complaint concerned the conditions of your research fellowship at the Joint Research Centre.

On 1 February 2005, I forwarded the complaint to the President of the Commission. On 30 March 2005, you sent copies of correspondence you had had on the matter with the Commission. The Commission sent its opinion on 8 June 2005. I forwarded it to you with an invitation to make observations, which you sent on 30 June 2005.

On 16 December 2005, I sent a letter of further inquiries to the Commission. I also asked you to submit an additional document, which you sent on 16 January 2006.

On 20 February 2006, the Commission sent its reply to my request for further information in French. On 14 March 2006, the Commission sent the English translation of this reply. I forwarded it to you with an invitation to make observations, which you sent on 28 April 2006.

On 17 July 2006, I requested an additional opinion from the Commission. On 10 November 2006, the Commission sent this additional opinion. I forwarded it to you with an invitation to make observations, which you sent on 21 December 2006.

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

THE COMPLAINT

In his complaint, the complainant made the following submissions:

The complainant sent an application further to a call for interest for scientific fellowships at the Joint Research Centre (hereafter "JRC") in Ispra, Italy. By letter of 17 February 2004, the JRC informed the complainant that he had been selected for the award of a scientific fellowship. A draft JRC contract, labelled "for information only", for research training fellowships and an additional information brochure were enclosed with the letter. The complainant made an information visit to the JRC on 26 March 2004. On the basis of the information provided in the draft contract, in the additional information brochure, as well as during the information visit, the complainant decided to resign from his job in order to start the proposed fellowship.

However, upon his arrival at the JRC on 1 October 2004, the conditions of the contract, which had to be signed at that moment, deviated from those indicated in the information provided previously and on the basis of which the complainant had decided to accept the offer. The JRC had not informed the complainant of these changes either during his visit in March 2004, or in the several e-mails sent in July 2004 concerning the confirmation of the starting date of his employment.

In his complaint, the complainant described in detail these changes, which related to the conditions of his contract. These were as follows: (1) There was a difference of EUR 184.14 in his net monthly salary; (2) As regards language, although he had explicitly asked if it was necessary to have a command of Italian and although the draft contract labelled "for information" was in English, his work contract was written in Italian. The representatives of the administration responsible for his work contract did not speak English or German, and the meetings were held in Italian; (3) The additional information brochure given to him together with the draft contract labelled "for information only" indicated that he would be covered by the health insurance of his country of origin, while, under the signed contract, he was to be covered by the Italian health insurance scheme; (4) The initial information he was given was that he would not be obliged to pay taxes in Italy. It turned out that he was, in fact, obliged to declare taxes in Italy in the same way as Italian employees.

On 21 December 2004, the complainant complained to the JRC administration about the above changes that had not previously been communicated to him. On 14 January 2005, the JRC replied that the complainant's signed work contract could not be adapted to the content of the "for information" contract sent to him in February 2004. It also stated that, following the sending of the "for information" contract to the complainant and before the conclusion of his work contract in October 2004, the Italian social security authorities imposed social security contributions on the mobility allowance.

On 24 January 2005, the complainant made the present complaint to the Ombudsman. In it, he claimed that, in order to fulfil his expectations, the JRC should adapt the conditions of his contract concerning the monthly allowance, the language, the health insurance and the taxation to the conditions that had been presented to him prior to signing the contract. The Ombudsman opened an inquiry into this matter.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made, in summary, the following comments:

The JRC employs fellows for a maximum period of 36 months with an eye to promoting the mobility of young researchers at the European level. Following a call for applications published on the Internet, the complainant was, on 17 February 2004, offered a "Category 30 research fellowship", that is, a fellowship for someone holding a PhD. Attached to the offer was a salary slip in English, which was for information only. The salary slip provided information on the salary level that the fellow could expect to receive. The final salary level was established on the basis of the information concerning the composition of the applicant's family, the indexation of salaries and other information, which the JRC did not possess when the job offer was submitted.

The Commission observed that the complaint concerned the following points:

1. The salary, which the complainant actually received, was lower than the salary that had been proposed to him in February 2004. More specifically, the complainant argued that, between February 2004, when he received the offer, and 1 October 2004, when he began to work at the JRC, he had not been informed of the difference in salary, which, he stated, amounted to EUR 184.14 per month.
2. The final contract was written in Italian and the JRC was unable to inform him of his rights either in German or in English.

The Commission explained that it was not possible to guarantee an exact net salary since the Commission may be obliged, because of amendments to the relevant laws or a revision of the case-law, to revise the net salary upwards or downwards. The main difference in salary was due to the mobility allowance, which is paid to fellows at a rate of EUR 600 if the fellow does not have dependent family members and EUR 900 if he is married and/or has dependent children. The allowance, which was initially foreseen, was EUR 900, because the complainant is married. However, it has since become apparent that, under Italian law, which is applicable in this case, certain social security contributions have to be deducted from that sum. The payment to research fellows therefore had to be adjusted in order to comply with Italian law.

The Commission acknowledged that it should have informed the complainant that his mobility allowance was subject to social security contributions, and declared that steps have since been taken to ensure that a case of this kind would not arise again.

As regards the fact that certain Commission officials do not speak German or English, the Commission pointed out that knowledge of English and/or German is not a condition of recruitment to the institution. Officials must know two languages without these necessarily being English and/or German. The complainant could have been received in English, although the first person who received him did not have a sufficient command of the language. The Commission has in its possession a large number of e-mails addressed to the complainant, which proves that his inquiries were handled in English. Furthermore, under Italian law, the Commission is required to draw up contracts in Italian. According to the Commission, it is now normal practice that research fellows receive the final contract several weeks before they begin their duties, together with an English translation.

As far as taxation is concerned, the Commission pointed out that the information provided in the contract, which had been sent to the applicant for information, might have appeared ambiguous in that, in Article 10, it referred to the "net salary of fellow". This net salary is the salary paid by the Commission after the deduction of social security contributions and before the payment of taxes. However, Article 12 of the draft contract clearly pointed out that the taxes must be paid directly by the fellow: "it will be the responsibility and obligation of the fellow to provide independently for the declaration and taxation of the income he/she receives on the basis of the laws in force". Given that the draft contract had been sent to the complainant in English, it could not have been interpreted by the complainant as meaning that he would not be required to pay taxes in accordance with the applicable law.

On the basis of the above, the Commission concluded that no maladministration had taken place.

The complainant's observations

In his observations of 30 June 2005, the complainant maintained his complaint and made, in summary, the following remarks:

Contrary to the Commission's comment, he had not been provided with a salary slip but with a work contract labelled "for information only". This document gave the complainant the impression that the final work contract would be identical to the "for information only" contract, and that it would be merely individualised by inserting the personal data of the complainant. There was no explicit indication that the contractual conditions might be changed without notice prior to signing the final contract. Neither was there any indication that the final contract would be in Italian.

As regards the social security contributions, the complainant observed that the information given in the "for information only" contract clearly suggested that the mobility allowance was not subject to any social security contributions. The complainant argued that he was not aware of any recent change in the Italian law with regard to the mobility allowance. The necessity of implied changes was therefore the result of an initial misinterpretation of the Italian law by the Commission, and not the result of a change in the Italian law. Furthermore, the complainant has still not received a reply from the Commission to his request of 5 March 2005 to be informed about the exact date when the changes had been imposed by the Italian social insurance authorities. The complainant also observed that the "for information only" contract did not indicate that the Commission was unable to guarantee an exact net salary, since, instead of the wording "approximate net salary of fellow", the wording "net salary of the fellow" was used.

In reference to the Commission's statement regarding the use of languages, the complainant pointed out that there was no explicit indication that the final work contract would be in Italian. Moreover, he had received an e-mail in French in reply to his inquiry, even though all his e-mails and letters were written in English.

As regards taxation, the complainant observed that the wording of Articles 10 and 12 of the "for information only" contract was ambiguous, and this was also admitted by the Commission in its opinion. He therefore had, during his visit to the JRC in March 2004, asked the project leader whether he had to pay taxes in Italy or in Germany. The project leader informed him orally that, as a grant holder, he would not have to pay taxes in either Germany or Italy. The complainant pointed out that, despite the fact that he had already provided this information in his complaint to the Ombudsman, the Commission only commented on what is written in the contract.

On the basis of the above, the complainant made the following conclusions:

According to Article 10 of the European Code of Good Administrative Behaviour (hereafter "the Code"), the Commission should have respected his legitimate and reasonable expectations concerning the conditions of the work contract. The Commission should also have respected his expectation that the negative effects resulting from the error that was caused by the Commission, would be corrected in the most expedient way, in accordance with Article 12 of the Code.

Prior to the complainant's arrival on his first working day, all communication and documents from the Commission were in English. He was not informed about the fact that the final work contract would be in Italian. Moreover, he was orally informed that there was absolutely no need for a command of Italian. The complainant is therefore of the opinion that there has been an instance of maladministration also with regard to Article 13 of the Code.

Since he had been provided with ambiguous written information and inaccurate oral information, there has also been an instance of maladministration in light of Article 10 of the Code.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. Furthermore, in his observations of 30 June 2005, the complainant submitted a further allegation, namely, that the Commission failed to reply to his request, made in his letter of 5 March 2005, to be informed about the exact date when the changes had been imposed by the Italian social insurance authorities.

The Ombudsman's request for further information from the Commission

On 16 December 2005, the Ombudsman wrote to the Commission asking it to provide a supplementary opinion on the complainant's new allegation.

The Ombudsman further asked the Commission to submit a copy of the document entitled "Useful information", enclosed with the Commission's letter of 17 February 2004 to the complainant, and a copy of the salary slip, to which the Commission had referred in its opinion of 8 June 2005.

The Ombudsman also asked the Commission to (1) provide an explanation as to exactly how and when, as explained in the Commission's letter of 14 January 2005 to the complainant, the Italian social security authorities imposed the additional deduction (social security contributions) on the mobility allowance, (2) provide an explanation as to why its services did not inform the complainant of the modifications concerning the conditions of his contract before he started working for the Commission; and (3) comment on the complainant's statement that that he was orally informed during his information visit to the JRC in March 2004 that he would not need to have a command of Italian and that, as a grant holder, he would not have to pay taxes in Italy or in Germany;

The Ombudsman's request for further information from the complainant

In his letter of 16 December 2005 to the complainant informing him about the further inquiries, the Ombudsman also asked him to submit the information brochure ("Useful information") to which he had referred in his complaint, and which was allegedly provided to him together with the "for information only" contract. The complainant sent the requested document on 16 January 2006.

The Commission's reply

In its reply of 14 March 2006, the Commission made, in summary, the following comments:

The complainant's new allegation, that his letter of 5 March 2005 remained unanswered, was groundless because the Commission replied to it on 23 March 2005. The Commission's reply of 23 March 2005 had been sent as a holding letter and the information requested could be found in its reply of 14 March 2006.

As regards the Ombudsman's first question, the Commission pointed out that, under the Conditions for employment of other servants of the European Communities, the auxiliary staff is subject to the national social security scheme. The Commission explained that, originally, it had not paid any social security contributions on fixed-rate allowances, such as mobility allowances, mission allowances or daily allowances, for the auxiliary staff coming under the Italian social security scheme. However, on 2 September 1997, the new Italian Legislative Degree No 312 was adopted by the competent Italian authorities. Since the Commission had not been aware of these legislative developments in Italy, it continued to pay the social security contributions, as it had always done. In other words, no social security deductions were made from the fixed-rate allowances paid to auxiliary staff. In January 2004, following an inspection by the competent Italian authorities, the Commission received a fine of EUR 1 200 000 in respect of unpaid social security contributions on fixed-rate allowances. The Commission therefore had to start deducting social security contributions from fixed-rate allowances and adapt the research fellows' contracts accordingly.

As regards the second question, the Commission expressed its regret that it had not informed the complainant in good time of the changes in the conditions of his contract. However, it pointed out that the complainant's contract did mention the deduction of social security contributions from his mobility allowance.

As regards the third question, the Commission stated that it was difficult to comment on what had allegedly been said more than twenty months previously. The Commission explained that the JRC expects new researchers to know at least two languages, including English if possible, as it is the lingua franca of the scientific community. Regarding the payment of taxes, the Commission could not find in the complainant's file any information according to which he would have been exempted from the payment of taxes and social security contributions. Moreover, Article 12 of the draft contract that the complainant had received stated that "it will be the responsibility and obligation of the fellow to provide independently for the declaration and taxation of the income he/she receives on the basis of the laws in force".

The Commission attached to its additional opinion a copy of its reply of 23 March 2005 to the complainant's letter of 5 March 2005, the complainant's payslip for October 2004, and the brochure "Useful information".

The complainant's additional observations

In his observations of 28 April 2006 on the Commission's reply, the complainant made, in particular, the following comments:

The information provided to him on 17 February 2004 did not indicate that, other than his family status, the JRC was lacking the information necessary in order to be able to establish his final salary level. Contrary to the Commission's statement, the "for information only" contract clearly raised the expectation that the final contract would be identical. There was no explicit indication that the contractual conditions might be changed without notice prior to signing the final contract.

With regard to his new allegation, the complainant explained that, in his letter of 5 March 2005, he asked the Commission to correct the negative effects resulting from the error caused by its actions, but instead of doing so, the Commission only drew his attention to the fact that he might appeal to the competent Italian Labour Court of Varese. Finally, the complainant stated that the Commission did not agree to improve the conditions of the complainant's contract.

As regards the Commission's answer to the Ombudsman's first question, the Commission did not provide any explanation as to why it had not informed the complainant about the changes in Italian law. Furthermore, in its letter of 14 January 2005, the Commission had stated that these changes had been imposed by the Italian social security authorities following the transmission of the complainant's draft contract in February 2004 and prior to his receiving his final contract in October 2004. This was contrary to what the Commission had stated in its additional opinion of 14 March 2006, namely, that the changes were introduced on 2 September 1997.

As regards the taxation, the complainant stated that the "for information only" contract clearly distinguished between the salary and the fixed monthly mobility allowance, indicating that the latter was exempted from any social security deductions.

On the Commission's statement that it was difficult to comment on what had allegedly been said twenty months ago, the complainant observed that this long period of time was mainly caused by the Commission's delaying tactics. He went on to say that, during his visit on 26 March 2004, he had been orally informed that he would not need to pay taxes.

The complainant concluded that the Commission's highhanded behaviour in this matter was particularly frustrating since the Ombudsman, as early as 1998, had noted JRC's highhanded and arrogant behaviour in its dealings with its Research Fellows.

Additional inquiries

After carefully considering the Commission's additional opinion and the complainant's additional observations on it, it appeared that further clarifications were necessary in order for the Ombudsman to be able to finalise his inquiries into the complaint.

The Ombudsman's request for further information from the Commission

The Ombudsman therefore asked the Commission to:

1. provide an explanation as to whether it accepts the complainant's statements that he was orally informed during his information visit to the JRC in March 2004 that he would not need to have a command of Italian and that, as a grant holder, he would not have to pay taxes in Italy or in Germany; should the Commission be unable to accept these statements, to specify what information had been given to the complainant during his visit to the JRC in March 2004;
2. provide an explanation for the difference with respect to the content of the sections concerning health insurance between the copy of the "Useful information" attached to the Commission's additional opinion addressed to the Ombudsman together and the copy of the "Useful information" sent by the Commission to the complainant;
3. provide an English translation of the complainant's final contract in Italian.

Furthermore, it appeared from the complainant's observations of 30 June 2005 that he also alleged that the Commission had infringed Articles 10, 12 and 13 of the European Code of Good Administrative Behaviour.

The Ombudsman's request for an additional opinion

The Ombudsman therefore asked the Commission to provide an additional opinion on the following four new allegations raised by the complainant in his observations. More specifically:

1. The complainant alleged that the Commission failed to respect his legitimate and reasonable expectations, as provided for in Article 10 of the European Code of Good Administrative Behaviour, by not informing him about the necessary changes in the conditions of his contract.
2. The complainant alleged that the Commission infringed Article 12 of the Code, when it failed to respect his expectation that it would endeavour to correct the negative effects resulting from having provided him with incorrect information.
3. The complainant alleged that the Commission infringed Article 13 of the Code when it provided the complainant with his final contract in Italian, instead of in English, and when, on 14 February 2005, it replied in French to the complainant's letter of 21 January 2005, which was written in English.
4. The complainant alleged that the Commission infringed Article 10 of the Code when it provided him with ambiguous written information and inaccurate oral information concerning taxation.

The Commission's reply

In its reply of 10 November 2006, the Commission made, in summary, the following comments:

As regards the oral information provided to the complainant during his visit to the JRC in March 2004, the Commission stated that the complainant had had a discussion with his scientific action leader about the research activities, scientific working conditions and the social activities on the site. However, the tax and social status of the candidate grantholder, that is, the complainant, had not been discussed. Moreover, the scientific action leader confirmed that the complainant had neither claimed that he would not have to pay taxes in Italy or Germany, nor stated that the Commission had informed him that he would not have to pay taxes.

As regards the difference between the two versions of the "Useful information", the Commission admitted that the complainant had not received the updated version of this publication and explained that the copy that the complainant had received was only valid under the previous research framework programme. The Commission regretted that the complainant had been provided with an out-dated version, but pointed out that the updated version equally provides that the public and health insurance cover is compulsory.

As regards the four new allegations, the Commission pointed out, as a preliminary remark, that in its dealings with the public, it undertakes to observe the standards of good administrative behaviour set out in its own Code of Good Administrative Behaviour(1). In addressing the complainant's new allegations, the Commission equally took account of the provisions of the Code.

With regard to the provisions concerning the legitimate and reasonable expectations of the members of public, as provided for under Article 10 of the Code, the Commission pointed out that, in its opinion of 14 March 2006, it had explained why, when it had sent the draft contract to the complainant, it had held the view that no social security contributions should be deducted from the mobility allowance. The Commission a rgued that, as a result of an inspection carried out by the competent Italian authorities, it realised that it was in fact compulsory under Italian law to deduct social security contributions. The Commission regretted that it might have led the complainant to believe otherwise, but stated that it could not affect the application of the relevant Italian law. The Commission also acknowledged that the complainant could have reasonably been informed in good time about the resulting amendments to his contract.

As regards the requirement to correct the negative effects resulting from an error in the most expedient way, as set out in Article 12 of the Code, the Commission acknowledged that the need to amend the contract to increase social security contributions had resulted in a reduction of the complainant's net salary. However, this reduction was unavoidable since both the complainant and the Commission were bound to comply with the relevant Italian rules and thus ensure that the correct contributions were made to the Italian social security scheme. Moreover, the situation provided benefits or potential benefits to the complainant, since he was thus covered against the risks of illness and industrial accidents, while part of the amount was withheld for pension contributions. The Commission was therefore of the opinion that even if the amendment of the complainant's contract in this regard was not in line with his initial expectations, it had to be made in order to comply with Italian law and was in conformity with the duties of any good employer. The Commission pointed out that the complainant had, on 29 March 2005, been granted the benefit of parental leave under Italian law, which could not have been possible if the Commission had not paid the correct social security contributions.

As regards the obligation to provide an answer in the same language as in which the Community insitution or body was addressed, as provided for under Article 13 of the Code, the Commission acknowledged that its e-mail of 14 February 2005 was sent to the complainant in French. However, the Commission pointed out that the purpose of this e-mail was simply to pass on its substantive reply, which was written in English. The Commission argued that since the complainant indicated that he had a basic knowledge of French, he was in a position to understand the e-mail, which only consisted of two short sentences.

As regards the allegedly ambiguous written information and inaccurate oral information concerning the taxation, the Commission referred to Article 12 of the "for information only" contract. Article 12 provided that "it will be the responsibility and obligation of the fellow to provide independently for the declaration and taxation of the income he/she receives on the basis of the laws in force". The Commission stated that the information provided to the complainant therefore cannot be regarded as ambiguous, and that its relevant services were not aware of any statement made by the complainant claiming that he had been informed by other Commission staff that he would not have to pay taxes in Italy or in Germany.

The Commission concluded by saying that even if the complainant had not been informed about the final amendments to his contract as soon as he should have been, he did not suffer any financial harm as a result, particularly as the amendments were unavoidable and actually allowed him to be covered under the Italian social security scheme, from which he benefited. The Commission nevertheless regretted that it had not informed the complainant in due time and that it had provided the complainant with an out-of-date leaflet.

The complainant's second additional observations

In his second additional observations of 21 December 2006, the complainant made the following comments:

Contrary to the Commission's statements, the issues of both taxation and his social security status were part of the discussion between the complainant and his scientific action leader during his visit in March 2004. As regards taxation, the action leader stated that Article 12 of the "for information only" contract did not indicate the necessity of tax payments either in Italy or in Germany since the status of a research fellow does not imply such an obligation, and added that detailed information concerning taxation should be requested from the administration. As regards his social security status, the action leader explained the advantages of the Van Breda & Co International insurance combined with the national insurance scheme. In support of his above submissions, the complainant attached a written statement made by Ms Jutta Ottmann, a person who accompanied the complainant during his visit, confirming that these two issues had indeed been discussed with the action leader.

As regards the legitimate and reasonable expectations and the requirement to correct the negative effects resulting from an error, the complainant observed that the obligation to pay social security contributions led to a remarkable reduction in his expected salary and thus he legitimately expected an increase in the gross salary in order to compensate for the compulsory reductions. In addition, the fact that he was granted parental leave does not change the Commission's obligation to endeavour to correct the negative effects to which it had exposed him.

With regard to the obligation to provide an answer in the same language, the complainant observed that the fact that he has a basic knowledge of French does not affect the requirement contained in Article 12 of the Code. He added that it was unlikely that the Commission official reviewed his CV prior to choosing the language of the Commission's answer.

Finally, as regards the allegedly inaccurate oral information, the complainant referred to his above-mentioned comments concerning the discussion with his action leader.

The complainant concluded by stating that the fact that the amendments were unavoidable does not influence the fact that he did suffer financial harm. Furthermore, the out-of-date leaflet indicated that he should be covered by his national insurance scheme and thus the Commission provided him with misleading information.

THE DECISION

1 Allegation that the Commission has failed to respect the complainant's protectable expectations regarding the conditions of his work contract and relevant claims

1.1 In his complaint to the European Ombudsman, the complainant claimed that the European Commission's Joint Research Centre ("JRC") should adapt the conditions of his contract concerning the monthly allowance, the language, the health insurance and the taxation to the conditions that had been presented to him prior to signing the contract. The Ombudsman inquired into this claim. During this inquiry, the Ombudsman investigated, and asked the Commission to send an additional opinion on, a number of points made by the complainant in support of his above claim. This claim appears to be part of the complainant's broader claim that the Commission should endeavour to correct the negative effects resulting from having provided him with incorrect information about the conditions of his contract. In this regard, he suggested, in particular, that the Commission could increase his gross salary, so as to offset the reductions imposed. Both claims are based, in essence, on an allegation that, before the conclusion of his work contract, the Commission provided the complainant with inaccurate or misleading information about the conditions of his contract and relevant national legislation. This information led to the creation of protectable expectations on his part, which the Commission has failed to respect.

1.2 The Ombudsman notes that the principle of the protection of legitimate expectations forms part of the Community legal order(2) and is also explicitly recognised as part of good administration as enshrined in Article 10 of the European Code of Good Administrative Behaviour(3). Ac cording to the case-law of the Community Courts(4) and Ombudsman's earlier decisions(5), three conditions must be satisfied in order to claim entitlement to the protection of legitimate and reasonable expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, these assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules(6).

1.3 The Ombudsman further remarks that principles of good administration require that the information the Community Administration gives to citizens, either upon request or on its own initiative, be accurate and sufficiently clear. This is particularly important in contexts like the present one, where the information concerns the rights and obligations arising from a work contract that the Community offers to a citizen. Indeed, in these cases, the content of such information is likely to constitute an important and even crucial factor for the citizen to consider when deciding whether he or she will accept the offer made and change his existing working situation and possibly his living arrangements and life style. Such information may, under certain circumstances, give rise to Community liability, (i) if it is inaccurate or if it is incomplete and/or not sufficiently clear, so as to be potentially misleading; (ii) if it originates from sources that the citizen may reasonably consider as authorised and reliable; and (iii) if it would have led a normally diligent and prudent person to a reasonable, albeit inaccurate, conclusion about his or her legal situation following the entry into force of the work contract(7).

Difference of EUR 184.14 in the monthly salary

1.4 The Ombudsman notes that Article 10 of the draft contract labelled "for information only" that was sent to the complainant provides a detailed description of the monthly salary to fellows, as follows:

Basic monthly allowance:	EUR 3 682.42
Social insurance contributions:	EUR 627.18
Accident insurance contributions:	EUR 88.45
Gross salary of fellow:	EUR 2 966.79
Social insurance deductions:	EUR 263.65
Net salary of fellow:	EUR 2 703.14

The same Article also provides that, in addition to this salary, the JRC shall pay the fellow a fixed monthly mobility allowance equal to EUR 900 per month for fellows who are married or have dependent children at the time the contract is signed.

As regards the final contract, the Ombudsman notes that, unlike the draft contract labelled "for information only", Article 10 of the final contract does not provide for a detailed description of the monthly salary. It indicates the same amount for the gross salary of fellow, namely, EUR 2 966.79, and states that the monthly mobility allowance to be paid to the complainant will be EUR 725.10. This amount is EUR 174.90 lower than the amount of EUR 900 mentioned in the "for information only" contract. On the basis of the information provided by the parties, it is the Ombudsman's understanding that the amount of EUR 174.90 concerns the social security contributions that were to be deducted from the mobility allowance. Given that neither the complainant nor the Commission has fully explained the reason for the difference of EUR 184.14, indicated by the complainant, this part of the complainant's allegation appears to refer basically to the above-mentioned amount corresponding to the social security contributions upon the mobility allowance.

The Ombudsman further remarks that it has not been demonstrated that the information received by the complainant when he was offered the contract included precise assurances as to whether social security contributions would have to be paid from the mobility allowance. The "for information only" contract contained no explicit statement that such contributions would not be due. In addition, there was no indication that this document contained exhaustive information about the contributions and deductions that would have to be made.

Nevertheless and as argued by the complainant, the same document might be considered to suggest that no such contributions would be paid, since it referred to other kinds of contributions and deductions, but not to this specific one. The information in the document was thus incomplete and not sufficiently clear in this regard, and was presented in a way which could mislead its recipient to believe that no contributions would be due for the mobility allowance. Moreover, it originated from sources that the complainant could reasonably consider as authorised and reliable. However, a normally diligent and prudent person, in the position of the complainant, who would seek to make a well-informed decision on the work offer, also taking this element into account, would reasonably be expected to request a relevant clarification and then draw a definitive conclusion about the matter. It appears that the complainant did not follow this course of action.

In light of the above, the Ombudsman concludes that it has not been established that the complainant had, as regards the part of his complaint referring to a difference of EUR 184.14 in his monthly salary, protectable expectations of the kind that the Commission should respect or that could give rise to Community liability. However, it must also be noted that the information given to the complainant about the (net) amount of the mobility allowance was incomplete and not sufficiently clear. Taking into consideration his observations in point 1.3 above, and the Commission's statement that it has since taken steps to ensure that a case of this kind would not arise again, the Ombudsman will make a relevant further remark below.

The issue of language(s)

1.5 The Ombudsman notes that the "for information only" contract was in English, whereas the final contract signed by the complainant was in Italian. The Ombudsman also notes that there are no indications about the language of the contract or the working languages either in the "for information only" contract or in the final contract. The same is true as regards the relevant call for interest for scientific fellowships(8).

In this regard, the Ombudsman considers that the issue raised by the complainant regarding the language of the final (signed) contract basically concerns the conclusion of the contract, rather then the specific conditions of it and the relevant national legislation. This issue will thus be dealt with under point 3 below.

With regard to the second aspect of the complainant's allegation, that is, the complainant's references to (i) the languages used by representatives of the administration responsible for his work contract; (ii) the language used during meetings in his unit at the JRC; and (iii) the information he received orally, according to which he would not need to have a command of Italian, it is the Ombudsman's understanding that the complainant refers to the working languages at the JRC.

In this regard, the Ombudsman notes that it has been neither argued nor shown in the course of the present inquiry that there had been any specific references to the working languages in the "for information only" contract, in the complainant's final (signed) contract, or in the pertinent documents for the fellowship, namely, the Call for interest for scientific fellowships, and the Internal rules applicable to the recruitment and selection of fellows. Moreover, it has been neither argued nor shown that the complainant was in fact required to have a command of the Italian language when accomplishing his tasks in the context of the execution of his contract.

Relatedly, the Ombudsman recalls that principles of good administration require that the Community Administration be efficient. This requirement implies that the Administration must ensure that persons working for it are able to communicate meaningfully and efficiently with each other, at least insofar as such communication is necessary for the proper completion of their tasks and the efficient functioning of the service. It also implies that these persons have a reasonable expectation that the Administration will fulfil its above duty. However, the Ombudsman considers that, in the present case, it has not been specifically argued or demonstrated that (i) problems had resulted from the language(s) used by other JRC agents when accomplishing their tasks and (ii) the JRC failed to comply with the above requirement.

Under these circumstances and independently of whether the complainant's above-mentioned references can be considered as factually accurate, the Ombudsman concludes that it has not been established that the complainant had, as regards the pertinent part of his complaint, protectable expectations that the Commission failed to respect.

The health insurance

1.6 The Ombudsman notes that indent 1 of Article 12 of the "for information only" contract provides:

"[s]ince performance of this contract will take place in Italy, the fellow will be insured with the Istituto Nazionale della Previdenza Sociale and the Istituto Nazionale per l'Assicurazione degli Infortuni sul Lavoro, in the same way as an Italian employee, but this does not mean that the fellow is assimilated to employees from a legal point of view."

The Ombudsman also notes that Article 12, indent 1, of the final contract in Italian contained the same provision. The Ombudsman accordingly finds that both the "for information only" contract and the final contract provided precise assurances as regards the requirement that the fellow would be insured by the Italian health insurance scheme.

However, the Ombudsman also notes that the document entitled "Useful information" contained additional information about the matter. In this regard, it should be noted that, further to the Ombudsman's request of 16 December 2005, both the complainant and the Commission sent him a copy of this document. The relevant section of the "Useful information" document sent by the complainant reads as follows:

"You have to ask your national insurance scheme for an E 111 form covering all citizens going abroad. The Commission has subscribed a group insurance policy with Van Breda & C. International. (...) In case you do not subscribe to the proposed insurance cover system (Van Breda) but prefer to choose your own insurance scheme, you are responsible for ensuring that the chosen scheme provides coverage in Italy (medical expenses, doctor's visits, hospitalisation)."(9)

The relevant section of the "Useful information" sent by the Commission reads:

"Once you get to Italy, from the first day of your contract you will be covered by A.S.L. (Italian scheme care). A.S.L. will register you to the Italian scheme and will give you a booklet with all necessary information. If your family accompanies you during your visit, please get a copy of a documentary evidence of family membership."

The Ombudsman notes that this is the only section of the two documents that is different. Further to the Ombudsman's specific request, the Commission explained that the complainant had not received the updated version of the "Useful information", but an earlier version of it, which was only valid under the previous research framework programme. It is not in dispute that, according to the applicable rules, the complainant should be covered by the Italian health insurance scheme.

Hence, it appears that the "Useful information" document sent to the complainant by the JRC contained information about the matter of health care coverage which was not accurate. Nevertheless, since this information did not reflect the pertinent applicable rules, it could not give rise to legitimate expectations on the part of the complainant. Furthermore, the same information contradicted the information included in the "for information only" contract, according to which the complainant would be covered by the Italian health insurance scheme. Under these circumstances, a normally diligent and prudent person, in the position of the complainant, who would seek to make a well-informed decision on the work offer, also taking this element into account, would reasonably be expected to request a relevant clarification and then draw a definitive conclusion about the matter. It appears that the complainant did not follow this course of action.

In light of the above, the Ombudsman concludes that it has not been established that the complainant had, as regards the part of his complaint referring to the issue of the health care coverage, protectable expectations of the kind that the Commission should respect or that could give rise to Community liability. However, it must also be noted that the information given to the complainant about his health insurance was contradictory, unclear and, to a certain extent, inaccurate. Taking into consideration his observations in point 1.3 above, and that the Commission has indicated that steps have since been taken to ensure that a case of this kind would not arise again, the Ombudsman will make a relevant further remark below.

The taxation

1.7 The Ombudsman notes that indents 2 and 3 of Article 12 of the "for information only" contract provides that

"only social insurance contributions shall be deducted from the salary paid to the fellow. On the other hand, no income tax shall be deducted as the JRC does not have the status of a person legally responsible for paying withholding tax as defined in the Income Tax Law (TUIR). Thus it will be the responsibility and obligation of the fellow to provide independently for the declaration and taxation of the income he/she receives on the basis of the laws in force."

The Ombudsman notes that indent 3 of Article 12 of the final contract contains exactly the same provision. This provision appears to be sufficiently clear and could not reasonably be understood as indicating that, on the basis of the laws in force, the salary the complainant would receive in Article 10 might not subject to taxation.

The complainant has submitted that, since the wording of Articles 10 and 12 of the "for information only" contract was ambiguous, he asked the project leader, during his visit to the JRC in March 2004, whether he would have to pay taxes in Italy or in Germany, and received the information that, as a grant holder, he would not have to pay taxes neither in Germany nor in Italy. In this regard, the Ombudsman remarks that, independently of the clarity of the relevant part of the "for information only" contract and independently of the accuracy of the factual basis of the above argument (contested by the Commission), it has been neither contended nor shown that the project leader was an authorised and reliable source of information regarding the taxation of the complainant's income. Moreover, as the complainant confirmed in his additional observations of 21 December 2006, the action leader specifically told him that detailed information concerning taxation should be requested from the Administration. Under these circumstances, a normally diligent and prudent person, in the position of the complainant, who would seek to make a well-informed decision on the work offer, also taking this element into account, would reasonably be expected to request pertinent information from the Administration and then draw a definitive conclusion about the matter. It appears that the complainant did not follow this course of action.

In light of the above, the Ombudsman concludes that it has not been established that the complainant had, as regards the part of his complaint concerning the taxation of his salary, protectable expectations of the kind that the Commission should respect or that could give rise to Community liability.

1.8 In light of the above findings, the Ombudsman finds no instance of maladministration corresponding to the complainant's allegation that the Commission failed to respect his protectable expectations regarding certain conditions of his work contract. Accordingly, the Ombudsman concludes that the Commission's refusal to accept the relevant claims made by the complainant does not amount to an instance of maladministration.

2 The allegation that the Commission has failed to inform the complainant about the exact date when the changes were imposed by the Italian social insurance authorities

2.1 I n his observations of 30 June 2005, the complainant alleged that the Commission failed to reply to his request, made in his letter of 5 March 2005, to be informed about the exact date when the changes were imposed by the Italian social insurance authorities.

2.2 In its reply of 14 March 2006, the Commission stated that the complainant's allegation was groundless because, on 23 March 2005, it had replied to the complainant's letter of 5 March 2005. Its reply had been sent as a holding reply and the information requested could be found in its reply of 14 March 2006.

2.3 The Ombudsman notes that the complainant, in his letter of 5 March 2005 to the Commission, wrote "I would like to ask for the exact date, when changes were imposed by the competent Italian social security authorities (INPS)." The Ombudsman also notes that the Commission, in its reply of 23 March 2005, wrote

"[y]our letter [of 5 March 2005] raises general issues with respect to the fellowship contracts requiring an in-depth examination. In that respect, JRC is currently analysing the situation of fellows through all sites. Furthermore, considering that you have lodged a complaint with the European Ombudsman who opened an enquiry, it would now appear more appropriate to wait the final Ombudsman position on your case before I provide you with any further comments."

The Ombudsman further notes that, in its reply of 14 March 2006, the Commission explained that, originally, it had not paid any social security contributions on fixed-rate allowances, such as mobility allowances, mission allowances or daily allowances, for the auxiliary staff coming under the Italian social security scheme. However, on 2 September 1997, the new Italian Legislative Degree No 312 was adopted by the competent Italian authorities. Since the Commission had not been aware of these legislative developments in Italy, it continued paying the social security contributions, as it had always done, that is to say, no social security deductions were made from the fixed-rate allowances paid to auxiliary staff. In January 2004, following an inspection by the competent Italian authorities, the Commission received a fine for EUR 1 200 000 in respect of unpaid social security contributions on fixed-rate allowances. The Commission therefore had to start deducting social security contributions from fixed-rate allowances and adapt the research fellows' contracts accordingly.

2.4 The Ombudsman, first, notes that point 4 of the Commission's Code of Good Administrative Behaviour provides that "[t]he Commission is committed to answering enquiries in the most appropriate manner and as quickly as possible". In its holding reply of 23 March 2005, the Commission stated that it had appeared appropriate, in view of the Ombudsman's ongoing inquiry, to wait for the Ombudsman's position on the case before providing the complainant with any further comments. In this regard, the Ombudsman remarks that providing the above information requested by the complainant can hardly be considered as "providing comments" on the present complaint. Nevertheless, the Ombudsman also notes that, in the context of his inquiry into this complaint, the Commission provided the complainant with the requested information and, thus, settled the matter. Since it appears that the complainant had not complained specifically about the timeliness of the provision of the requested information, the Ombudsman concludes that no further consideration of this aspect of the complaint is justified.

3 Allegation that the Commission did not act in accordance with principles of good administration when it provided the complainant with his final contract in Italian, and when it replied in French to the complainant's letter written in English

3.1 The complainant alleged that the Commission infringed Article 13 of the European Code of Good Administrative Behaviour when it provided him with his final contract in Italian, instead of in English, and when, on 14 February 2005, it replied in French to the complainant's letter of 21 January 2005, which was written in English.

3.2 The Commission stated that it provided the complainant with a final contract in Italian because it was obliged by Italian law to do so. As regards its e-mail reply of 14 February 2005, the Commission pointed out that the purpose of this e-mail was simply to pass on its substantive reply, which was written in English. The Commission argued that since the complainant had indicated that he had a basic knowledge of French, he was in a position to understand the e-mail, which only consisted of two short sentences.

3.3 The complainant observed that the fact that he has a basic knowledge of French does not affect the requirement contained in Article 13 of the Code, and added that it was unlikely that the Commission official reviewed his CV prior to choosing the language of the Commission's reply.

3.4 The Ombudsman recalls that Article 13 of the above-mentioned Code provides that the Institutions "shall ensure that every citizen of the Union or any member of the public who writes to the Institutions in one of the Treaty languages receives an answer in the same language."(10) The scope ratione materiae of this principle, which refers to the language of replies to letters, does not cover the issue of the language of work contracts concluded between the Community Administration and citizens. The Ombudsman further notes that this issue is not dealt with in the Conditions of employment of other servants of the European Communities.

3.5 The Ombudsman points out that the conclusion of a work contract, such as the one here concerned, presupposes a declaration of will from the Community institution or body offering employment, under certain conditions, and a declaration of will by the person accepting it. The latter declaration must correspond to the content of the former, which refers, in particular, to the specific rights and obligations arising from the work relationship. Under these circumstances, principles of good administration require that, when, according to applicable legal rules, a contract to be signed by the parties must be written in a specific language and the person accepting the work offer does not adequately understand that specific language, the Community institution, along with the work contract offered to him or her, should provide the person concerned with an accurate translation of this document into a language of which this person has a good command. Relatedly, t he Ombudsman welcomes the Commission's announcement that it is now normal practice that research fellows receive the final contract, together with an English translation, several weeks before they begin their duties.

3.6 In the present case, the Commission did not comply with the above-mentioned requirement, since, at the time of the signature of his contract in Italian, it failed to provide the complainant with an accurate translation of its contents into a language that the complainant could understand adequately. This constitutes an instance of maladministration. Taking into account that the Commission provided a translation of the contract into English in the context of the present inquiry, the Ombudsman will make a pertinent critical remark below.

3.7 As regards the Commission's e-mail reply of 14 February 2005, the Ombudsman notes that it was a short e-mail in French, to which the Commission's substantive reply, written in English, was attached. The Ombudsman also notes that the complainant's CV, which was attached by the Commission to its second additional opinion, indicated, under the heading Language knowledge, "English fluent in spoken and written. French basic knowledge." Moreover, complainant has not argued that he was not in a position to understand this short e-mail in French, which merely stated that (i) it contained a reply to the complainant's letter of 11 February 2005, registered under the reference D(2005) 3564, and (ii) this reply was going to be sent only by e-mail(11).

3.8 In light of the above and assuming, without deciding, that the principle referred to in point 3.4 above is applicable in the context of correspondence between the Community Administration and a person working for it, when this correspondence concerns the working relationship, the Ombudsman finds that the Commission did not infringe Article 13 of the Code by its reply of 14 February 2005 to the complainant's letter of 21 January 2005.

4 Conclusion

On the basis of his inquiries into this complaint, the Ombudsman

1. finds no instance of maladministration corresponding to the complainant's allegation that the Commission failed to respect his protectable expectations regarding certain conditions of his work contract;
2. finds that it would not be justified to further consider the complainant's allegation that the Commission has failed to inform him about the exact date when the changes were imposed by the Italian social insurance authorities;
3. finds that the Commission did not infringe Article 13 of the European Code of the Good Administrative Behaviour by its reply of 14 February 2005 to the complainant's letter of 21 January 2005;
4. makes the following critical remark:

   Principles of good administration require that, when a contract establishing a work relationship with a Community institution or body must, according to the applicable legal rules, be written in a specific language and the person accepting the work offer does not adequately understand that specific language, the Community institution or body should, along with the work contract offered to him or her, provide the person concerned with an accurate translation of this document into a language of which this person has a good command. In the present case, the Commission did not comply with the above-mentioned requirement, since, at the time of the signature of his contract in Italian, it failed to provide the complainant with an accurate translation of its contents into a language that the complainant could understand adequately. This constitutes an instance of maladministration.

In light of the above, the Ombudsman closes the case.

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

FURTHER REMARK

Principles of good administration require that the information the Community Administration gives to citizens, either upon request or on its own initiative, be accurate and sufficiently clear. This is particularly important in contexts like the present one, where the information concerns the rights and obligations arising from a work contract that the Community offers to a citizen. Indeed, in these cases, the content of such information is likely to constitute an important and even crucial factor for the citizen to consider when deciding whether he or she will accept the offer made and change his existing working situation and possibly his living arrangements and life style.

As observed in point 1.4 above, it seems that the information given to the complainant about the (net) amount of the mobility allowance was incomplete and not sufficiently clear. It further seems, as noted in point 1.6 above, that the information given to the complainant about his health insurance was contradictory, unclear and, to a certain extent, inaccurate. Relatedly, the Commission has indicated that steps have since been taken to ensure that a case of this kind would not arise again.

The Ombudsman takes note of the above commitment on the part of the Commission and encourages it to verify, in consultation with the competent national authorities, the accuracy of the information it provides in this context about applicable national rules. The Ombudsman also remarks that, in certain circumstances and, in particular, where there is objectively justifiable uncertainty about the content of the applicable rules, it may be appropriate for the Community Administration to provide information accompanied by properly formulated reservations about its accuracy.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Annex to Commission Decision of 17 October 2000 amending its Rules of Procedure, OJ 2000 L 267, p. 63.

(2) Case 112/77 Töpfer v Commission [1978] ECR 1019, paragraph 19.

(3) Article 10(2) of the Code of Good Administrative Behaviour, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu) provides: "The official shall respect the legitimate and reasonable expectations that members of the public have in the light of how the Institution has acted in the past."

(4) See Case T-571/93 Lefebvre v Commission [1995] ECR II-02379, paragraph 72; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 31; Case T-266/97 Vlaamse Televisie Maatschappij v Commission [1999] ECR II-2329, paragraph 71.

(5) Decision on complaint 548/2002/GG, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu/decision/en/default.htm).

(6) See Case T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paragraph 70; Case T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, paragraph 38; Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 102. See also Decision on complaint 1330/2004/PB, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu/decision/en/default.htm).

(7) Cf. Case 169/73 Compagnie Continentale France v Council [1975] ECR 117, paragraphs 21-23.

(8) The Call for Interest for Scientific Fellowships at the JRC is available on the JRC's website (http://www.jrc.cec.eu.int/what_we_offer/download/recruitment_200305/call-ultima%20versione%20fellow.pdf), last accessed on 23.04.2007.

(9) In this regards, the Ombudsman recalls that the E 111 form, which as of 1 January 2006 is no longer in use, used to serve as a means of entitling European citizens, when visiting other Member States, to free or reduced-cost medical care in all European Union countries. Given the fact that this meant that a European citizen visiting another Member State was insured and covered by the health insurance of his place of origin (the national health insurance), the Ombudsman considers that the complainant could, indeed, understand the information, which was contained in the document "Useful information" sent to him, as meaning that he would be insured by his national health insurance.

(10) The Ombudsman notes that Point 4 (Dealing with enquiries) of the Commission's own Code of Good Administrative Behaviour similarly provides that "members of the public who write to the Commission shall receive a reply in the language of their initial letter, provided that it was written in one of the official languages of the European Union". Similarly, Article 21 of the Treaty establishing the European Community provides: "Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language."

(11) The original text of the letter was: "Veuillez trouver ci-joint une lettre concernant le sujet repris en objet datée du 11/02 /2005 et enregistrée sous la référence D(2005) 3564. Veuillez également noter que cette lettre sera envoyée uniquement via courriel."