The background to the complaint

1. The complainant used to work at the Delegation of the European Union to Mauritania (the 'Delegation'), and was also a member of the staff committee.

2. On 21 December 2010, the Head of Delegation wrote to Unit K4 of the (then) Directorate-General for External Relations ('DG RELEX') about the reimbursement of annual travel expenses concerning the Delegation's staff. He explained that DG RELEX based its flat-rate calculations for such reimbursements on data made available by the International Air Transport Association ('IATA'). He pointed out, however, that IATA rates and the methods for calculating them were not published and, with the exception of officials working in Unit K4, no other officials had access to those data. In the opinion of the Head of Delegation, the system applied by DG RELEX allowed for discrimination between officials. Among the staff of the Delegation, there were officials who received different flat-rate payments for the same route (Nouakchott - Brussels), and others who received double, or even triple flat-rate payments for the same distance travelled between Mauritania and Europe. The Head of Delegation enclosed a table with a number of illustrative examples. He drew attention to a situation where an official travelling to Spain received an allowance equivalent to double the one received by a colleague travelling to the island of Reunion, and to triple the allowances received by colleagues travelling to Italy or Germany. The Head of Delegation considered that such flat-rate payments did not respect (in the original French) the "note n. 500966 du 7 mars 2008" which, together with the notes (in the original French) "n. 509288 du 20 juin 2008 et ... n. 505070 du 2 avril 2007", allowed for corrections to be made to the discrepancies resulting from a strict application of the IATA rates. In view of all the above, the Head of Delegation asked DG RELEX to apply transparent calculation methods which would be compatible with the principles set out in the above-mentioned notes[1].

3. Since the Head of Delegation did not receive a reply, on 14 February 2011, the 'Outside the EU' section of the European Commission's Staff Committee (the 'Staff Committee') also sent a similar letter to the European External Action Service (the 'EEAS'). The Staff Committee urged the EEAS to clarify the allowances for annual travel expenses paid to staff.

4. On 24 February 2011, the EEAS replied to the Staff Committee. It first emphasised that, in 2010, DG RELEX was able to correct a number of anomalies in respect of annual travel expenses allowances, "refining the system of calculation but confirming the approach." Second, it referred to Article 8(4) of Annex VI to the Staff Regulations of Officials of the European Communities (the 'Staff Regulations') and stated that, according to

"section 3, article 7 of the general implementing provisions giving effect to article 8 of Annex VII to the Staff Regulations:

'The cost of travel by air in the class immediately above "tourist" or "economy" class, in accordance with Article 8(4) of Annex VII to the Staff Regulations, shall be reimbursed in the form of a flat-rate payment based on IATA rates on production of the boarding passes proving that the journey between the place of employment and the place of origin or any other journey for the purposes of Article 8(4) of Annex VII has taken place. For other means of transport, the official shall provide equivalent evidence that the journey has taken place'" (emphasis added by EEAS).

5. The EEAS then went on to state that the system put in place by Unit K4 was fully in line with the principles governing flat-rate payments based on IATA rates. The system introduced in Article 8(4) of Annex VII by the amendments to the Staff Regulations "correspond[ed] to a flat-rate and neither to a reimbursement of expenses really incurred nor a real price charged by a commercial company nor a reimbursement made on the basis of kilometres. In 2009, [DG RELEX] organized a direct access to IATA rates and developed a system for calculating the flat rate by adding the different sections on relevant routes." IATA defined and adapted its rates for the different geographical zones in the world and the EEAS knew "by experience" that these rates were very similar to the fares charged by commercial companies. The existence of an IATA rate for a route did not necessarily imply that a commercial flight existed and was available at a particular moment for a particular route. IATA rates for journeys from the place of posting to a destination in Europe were generally lower than those applicable to the same route departing from Europe, as was the case with commercial fares. The EEAS added that it would nevertheless look into the Delegation's case and verify whether any discrepancies mentioned by it resulted from any anomalies which needed to be corrected. However, it would not change the system for the year 2011, "even if [it, that is, the EEAS] should remain open to changing implementing rules if required."

6. On 19 May 2011, the Head of Delegation replied by taking the view that the EEAS failed to explain the inequalities which he had pointed out in his correspondence concerning the flat-rate reimbursement of annual travel expenses for 2010. He clarified in his letter that the Delegation did not raise any issues regarding the method of calculation or the applicable rules. It rather wished to know what the results of the re-examination of the calculations relating to the annual travel expenses for 2010 were. The Head of Delegation considered that the calculations applied for the year 2010 resulted in discriminatory treatment between the different officials working at the Delegation. He requested that a solution be found[2]. The Delegation's Staff Committee and the complainant were aware of the Head of Delegation's aforementioned communications with the EEAS.

7. In the absence of a reply to the above-mentioned letter, the complainant turned to the European Ombudsman on 30 September 2011.

The subject matter of the inquiry

8. The complainant alleged that the EEAS did not reply to the Head of Delegation's letter of 19 May 2011.

9. The complainant claimed that the EEAS should reply to the above letter and clarify whether there were any outstanding issues relating to the annual travel expenses of the Delegation's staff which the EEAS was willing to resolve and, if not, why.

The inquiry

10. On 30 November 2011, the Ombudsman forwarded the complaint to the EEAS for an opinion.

11. On 13 April 2012, the Ombudsman received the EEAS's opinion, which he forwarded to the complainant with an invitation to make observations. He received the complainant's observations on 31 May 2012.

The Ombudsman's analysis and conclusions

A. Allegation of failure to reply and related claim

Arguments presented to the Ombudsman

12. In its opinion, the EEAS again referred to Article 8(4) of Annex VII to the Staff Regulations and the implementing provisions adopted by the European Commission. It explained that, every year, it evaluates the amounts resulting from the automatic calculations based on data provided directly by IATA, with a view to ensuring that the results are appropriate for each delegation.

13. The EEAS emphasised that this system is based exclusively on the Staff Regulations and the implementing provisions which provide for a flat-rate reimbursement based on IATA rates. Consequently, the EEAS does not base its reimbursements on actual expenses, commercial fares, mileages or prices for specific routes operated by carriers. It applies the same method and the same criteria to all staff in all delegations.

14. The EEAS enclosed a copy of a note to "officials serving outside the territory of the Member States" dated 16 June 2011 and containing further information on IATA rates and explanations about the method of calculation and the possible different results within the same delegation.

15. The EEAS regretted that it did not reply to the Head of Delegation in good time. It nevertheless confirmed that it had checked the calculations for the year 2010. It also emphasised that it remedied this situation by sending a reply to the Head of Delegation in March 2012 (the 'EEAS Letter of March 2012'). In the meantime, it received two further complaints regarding the calculations for the year 2011, which it dismissed after carrying out verifications.

16. In his observations, the complainant referred to the EEAS Letter of March 2012. He noted that, in that letter, the EEAS argued that IATA rates are not based on distances but on other criteria which depend on, for example, market forces[3]. The complainant argued that market prices correspond to real and not virtual prices. The right to an annual travel expenses allowance should thus take into consideration real prices and not virtual ones. Real market prices are sometimes higher and sometimes lower than the IATA rates. This places Delegation staff at a financial advantage or disadvantage, as the case may be. The complainant again gave some examples of routes concerning which, according to him, the IATA rates identified in the EEAS Letter of March 2012 did not correspond to real market prices.

17. The complainant enclosed tables indicating the results of an Internet search on a flights search engine showing the prices for Nouakchott - Saint Denis de la Réunion return flights, and Nouakchott - Bologna return flights, which were different from those referred to in the EEAS Letter of March 2012 (prices were lower for the Nouakchott - Bologna route, and higher for the Nouakchott - Saint Denis de la Réunion route). Moreover, in order to counter the EEAS's position, expressed in its Letter of March 2012, that fares for flights from Europe to other continents were significantly higher than those for flights in the opposite direction[4], the complainant referred to a table indicating the results of an Internet search on a flights search engine showing the prices for Bologna - Nouakchott return flights and emphasised that these were significantly lower than any of the IATA rates mentioned in the EEAS letter for flights from Europe to Mauritania in 2010. This, in his view, demonstrated that the system applied by the EEAS allowed for further discrimination between staff, namely, between "losers" (that is, staff whose families live with them) and "winners" (that is, staff whose families live in Europe).

The Ombudsman's assessment

18. By its Letter of March 2012, the EEAS replied to the concerns expressed by the Head of Delegation both in December 2010 and in May 2011. In that letter, whilst regretting that it had not given an earlier reply, the EEAS confirmed that it had reviewed the matters raised by the Head of Delegation[5] and that it had taken a clear stance in their regard[6]. Therefore, after the Ombudsman opened his inquiry, the EEAS replied to the Head of Delegation's letters and clarified its position on the outstanding issues relating to the annual travel expenses allowance of the Delegation's staff.

19. In his observations, the complainant disagreed with the EEAS's position. He repeated the Head of Delegation's concerns regarding the system applied by the EEAS and reiterated the view that such a system led to a situation where, when considering the airfares actually charged, certain Delegation staff members were unjustifiably placed at a disadvantage, while others were unjustifiably advantaged.

20. At the outset, the Ombudsman considers that the EEAS's opinion shows that, after the complaint was lodged, the EEAS conducted a thorough review of its rules and practices and that, by so doing, it acted diligently.

21. In addition, the explanations which the EEAS advanced in support of its position are reasonable. The EEAS has properly referred to the relevant rules.  The Ombudsman emphasises in this respect that the reimbursement of travel expenses to staff based outside the EU at a flat rate stems directly from the Staff Regulations[7]. In addition, in 2004, the Commission adopted a decision implementing the above-mentioned principle. By virtue of that decision, the said reimbursement is dependant on the rates established by IATA[8].

22. "Cost of travel by air" was defined by the Commission as corresponding to the rates established by IATA. Thus, the EEAS relies on IATA rates to establish the flat-rate reimbursements of the annual travel expenses of the Delegation's personnel. When applying rules stemming directly from the Staff Regulations, the EEAS does not appear to go beyond the limits of its discretion or to apply measures which are manifestly inappropriate to ensure that the aim of Article 8 of Annex VII, which is to allow officials to maintain personal ties with the place where they have their main interests, is attained[9].

23. Consequently, the complainant's argument that, in sum, the EEAS reimbursements must be based on his real travel expenses cannot be sustained.

24. In light of the above, no further inquiries into the complaint are justified.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No further inquiries into the complaint are justified.

The complainant and the EEAS' Chief Operating Officer will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 1 February 2013

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[1] The Ombudsman did not receive a copy of these notes.

[2] In the original French: "[n]ous n'avons reçu ... aucune explication quant aux iniquités signalés par la délégation sur les paiements forfaitaires pour 2010 du voyage annuel.

[...]

[L]es collègues devraient avoir le droit d'être informés des résultats du réexamen du calcul des frais de voyage annuel de 2010. Par ailleurs, la Délégation n'a pas soulevé de questions concernant les modalités de calcul, ni les règles qui sont à la base du traitement. Nous avons simplement signalé que les modalités de calcul appliquées en 2010 ont amené à un traitement non équitable entre les agents expatriés en poste à la Délégation en Mauritanie et qu'une solution à cette question devait être trouvée."

[3] In the original French: "les tarifs IATA ne sont pas fondés sur la distance en kilomètres mais répondent à d'autres critères que dépendent notamment des lois du marché."

[4] In the original French: [l]es tarifs d'Europe vers d'autres continents soient plus, voir beaucoup plus importants que dans le sens inverse... Cela se vérifie aussi bien pour les tarifs réels pratiqués par les compagnies aériennes."

[5] In the original French: "[j]e voudrais exprimer mes regrets que la réponse à vos notes [of 21 December 2010 and 19 May 2011] n'ait jamais été finalisée et envoyée à la Délégation... Votre Note de Décembre 2010 soulevait un certain nombre de remarques et d'objections sur le calcul des tarifs IATA et les différences entre les fonctionnaires et agents de la Délégation pour les distances semblables. [J]e vous confirme qu'entretemps nous avions vérifié des données factuelles de chacun des dossiers cités..."

[6] In the original French: "[-] certaines chiffres de votre tableau sont erronés: par exemple, il n'y a pas 3 tarifs différents pour le trajet Nouakchott - Bruxelles mais un seul: 1752,01, le tarif Nouakchott - Rome n'est pas exact (1397,50)

- les tarifs IATA ne sont pas fondés sur la distance en kilomètres mais répondent à d'autres critères que dépendent notamment des lois du marché.

Il est ainsi courant:

- que les tarifs d'Europe vers d'autres continents soient plus, voir beaucoup plus importants que dans le sens inverse. D'où l'obligation d'actualiser la résidence des familles. Cela se vérifie aussi bien pour les tarifs réels pratiqués par les compagnies aériennes.

- que certaines destinations proches à partir du lieu d'affectation aient de fortes différences. Exemple, variation de 1380,60 à 1516,66 pour des destinations en Italie. Le tableau en annexe indique de quelle manière les tarifs sont déterminées.

- ... [l]e forfait payé pour les enfants dépend de l'âge (10%, 70%), car les pratiques en matière de transport de passager sont telles. Les fiches de calcul en tiennent compte.

- Nous n'avons repéré aucune anomalie dans les routes calculées el les chiffres retenus selon les principes déterminés plus haut.

Je voudrais ajouter que dans le système antérieur, c'est-à-dire lorsque nous faisions appel à une agence de voyage pour tarifer les routes, les mêmes différences apparaissaient de même que des variations, parfois sensibles, d'une année sur l'autre.

Je conçois que le système mis en place sur la base de l'annexe VII article 8-4 peut paraître déroutant, mais le système est fondé sur des données qui sont soumises à des fluctuations sur lesquelles nous n'avons pas de maitrise.

Un système qui serait en fonction du kilométrage, comme intra-union, ne serait pas non plus totalement équitable, en tenant compte des lois du marché dans les transports aériens."

[7] Article 8 of Annex VII to the Staff Regulations lays down that staff based in the territory of the Member States are entitled to a flat-rate payment for their annual travel expenses from their place of employment to their place of origin which is based on a kilometric allowance established in the SR. As regards officials whose place of employment is outside the territory of the Member States, the above-mentioned article provides that they "4. shall be entitled for themselves and, if they are entitled to receive the household allowance, for their spouse and other dependants ..., in each calendar year, to repayment of travel expenses to their place of origin, or to repayment of travel expenses to another place not exceeding the expense of travel to the place of origin. However, if the spouse and [dependent children] do not live with the official at the place of employment, they shall be entitled each calendar year to reimbursement of travel expenses from the place of origin to the place of employment or to another place not exceeding the cost of the former journey.

These travel expenses shall be reimbursed in the form of a flat-rate payment based on the cost of air travel in the class immediately superior to economy class" (emphasis added).

[8] Article 7 of the Commission decision adopting general provisions giving effect to Article 8 of Annex VII to the Staff Regulations, C (2004) 1588 lays down that: "[t]he cost of travel by air in the class immediately above "tourist" or "economy" class, in accordance with Article 8(4) of Annex VII to the Staff Regulations, shall be reimbursed in the form of a flat-rate payment based on IATA rates on production of the boarding passes proving that the journey between the place of employment and the place of origin or any other journey for the purposes of Article 8(4) of Annex VII has taken place./span> For other means of transport, the official shall provide equivalent evidence that the journey has taken place" (emphasis added).

[9] See, for example, the Judgment of the Civil Service Tribunal in Case F-43/05 Olivier Chassagne v Commission, [2007] ECR-SC I-A-1-27 and II-A-1-139, paragraphs 52, 55-57, 61-62, 65-66, and 73:

"[a]n official’s entitlement to reimbursement of annual travel expenses for himself and his dependants between his place of employment and his place of origin, recognised in Article 8 of Annex VII to the Staff Regulations, is an expression of the Community legislature’s exercise of its discretionary power, since it was not obliged under any higher rule of Community law or of international law to recognise officials and members of their families as having that right. Since it was at its discretion that it decided that members of the European civil service should be reimbursed the travel expenses incurred during their annual leave, the Community legislature should a fortiori enjoy a broad discretion in determining the conditions and rules governing that reimbursement, a discretion which must be exercised in accordance with the higher rules and principles of Community law.

The judicial review carried out by the Community judicature in this area must therefore be confined to establishing whether the measure in question was manifestly incorrect or a misuse of power, or whether the authority concerned did not manifestly exceed its discretion, which must be exercised in accordance with the higher rules and principles of Community law. The review by the Court must therefore be confined to determining, as regards the principles of equal treatment and non-discrimination, that the institution concerned has not applied arbitrary or manifestly inappropriate distinctions, and, as regards the principle of proportionality, that the measure adopted is not manifestly inappropriate for the objective pursued by the rules.

Thus, in view of the substantial and constant increase in the number of officials, the Community legislature was perfectly entitled, for legitimate budgetary, administrative and staff policy reasons, to elect in future to make only a flat-rate reimbursement rather than reimbursing the costs actually incurred, subject only to ensuring that the aim of Article 8 of Annex VII to the Staff Regulations, which is to enable each official to maintain personal ties with the places where he has his main interests, is met, as appears to have been the case here."