Dear Dr. N.,

On 27 July 2001, you submitted a complaint against the European Commission regarding the latter’s handling of your grant as a European Commission Science and Technology Fellow in Japan.

On 22 August 2001, I forwarded the complaint to the Commission for its comments.

The Commission sent its opinion on your complaint on 11 December 2001. I forwarded the Commission's opinion to you on 12 December 2001 with an invitation to make observations, if you so wished. On 8 February 2002, you sent me your observations.

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

THE COMPLAINT

The EU provides grants to enable scientists from member states to do research in Japan, presently under the "Fifth Framework Programme of the European Community for Research, Technological development and Demonstration activities". Grants are provided for a duration of two years and for overlapping periods. This means that the group that started in 1999 (the thirteenth group of Science and Technology Fellows since the beginning of the scheme, hence known as "STF 13") stayed in Japan from March 1999 until March 2001. The following group ("STF 14") started in 2000 and stays until 2002 etc.

All grants were paid in Yen until and including group STF 12. Some of the scientists belonging to group STF 13 received their grant in Euro. As a result of the deterioration of the exchange rate between the two currencies, these scientists received a sum that was worth far less than the sum paid out in Yen. After these scientists had complained to the Commission and subsequently to the Ombudsman, they were compensated for this loss(1).

The complainant in the present case, a German scientist, belongs to group STF 14 (2000 until 2002). The members of this group are paid in Euro. In October 2000, the Commission decided to increase the monthly grant paid to members of STF 14 in so far as the second half of their stay in Japan was concerned. The complainant claimed that he and his colleagues still received considerably less than their colleagues from group STF 13 (in so far as the first year was concerned) and their colleagues from group STF 15 (in so far as the second year was concerned) for the same period of time and that they were therefore being discriminated against.

On 5 December 2000, the complainant and several colleagues wrote to the Commission in order to demand compensation. In its reply of 21 March 2001, the Commission took the view that it had complied with the terms of the individual agreement and that there was no legal right to compensation. It also referred to its decision of October 2000 to increase the monthly indemnities. On 15 June 2001, the complainant wrote to the Commission again. According to the complainant, this letter had not been answered by the time the present complaint was lodged with the Ombudsman. The complainant claimed that the Commission had failed to reply to his letters within a reasonable period and had omitted to give reasons for its decision to reject the demand for compensation. He further alleged that the Commission was deliberately delaying the matter. In his view, the Commission had thus infringed his right to good administration under Article 41 of the Charter on Fundamental Rights.

In summary, the complainant submitted the following claims and allegations:

(1) The Commission failed to grant him compensation on account of the deterioration of the exchange rate between the Yen and the Euro

(2) The Commission infringed his right to good administration

THE INQUIRY

The Commission’s opinion

In its opinion, the Commission made the following comments:

In so far as STF 13 was concerned, a monthly grant of 445 000 Yen had been announced. Some of the contracts that were thereupon concluded with the scientists included that sum. Other contracts that were dealt with by different services referred to the equivalent in Euro (€ 3 063). As a result of the deterioration of the exchange rate between the Yen and the Euro, the Commission had subsequently decided to compensate those scientists whose grant had been expressed in Euros so as to ensure that they received the equivalent of 445 000 Yen.

For both STF 14 and STF 15 a monthly grant of € 3 063 had been announced. At the time when the contracts where negotiated, however, and in order to take account of the deterioration of the exchange rate between the Yen and the Euro, the Commission had decided to increase the monthly grant to € 3 600 for STF 14 and to € 4 470 for STF 15. The monthly grant for scientists belonging to STF 14 had also been increased to € 4 470 in so far as their second year was concerned.

The Commission thus considered that it had complied with its commitments and had infringed neither the principle of legitimate expectations nor that of equal treatment. However, the Commission’s services had carried out a comparative analysis of the financial conditions for the different selections. On that basis, all the scientists belonging to STF 14 had been informed in November 2001 that the Commission intended to grant them a further indemnity. This indemnity would be paid as soon as the sum resulting from this analysis had been agreed by them.

It was true that the Commission had only replied on 21 March 2001 to the letter of 5 December 2000. This had been due to the need for many internal discussions with different services on such a complex matter, and it had been necessary to analyse the situation and possible solutions with great care. Whilst the complainant and several of his colleagues had written a further letter to the Commission on 15 June 2001, the Tokyo Delegation had been in constant touch with the fellows. Furthermore, the Commission’s services had met seven of the fellows belonging to STF 14, including the complainant, on 12 June 2001, and had explained the situation.

The complainant’s observations

In his observations, the complainant informed the Ombudsman that on the occasion of a video conference that took place in early December 2001, the Commission had offered to make further payments ranging between € 11 037 and € 11 726 to the scientists belonging to STF 14 and that he and the others had accepted this offer. The money had however not yet been paid out.

However, the complainant reiterated his view that the Commission had infringed his right to good administration. He stressed that he had had to wait for three months before he received a short reply to his letter of December 2000. A reply to his letter of June had only been sent in August 2001. According to the complainant, the Commission had contacted him just four times within a period of twelve months, and that on the last two occasions this had only been done because of the pressure brought to bear by the Ombudsman. The complainant noted that at the video conference he had expressed the view that an apology would be appropriate. No formal apology had however been given.

THE DECISION

1 Failure to grant compensation on account of deterioration of exchange rate

1.1 The complainant, a German scientist, was awarded by the European Commission a grant expressed in Euros under the "Fifth Framework Programme of the European Community for Research, Technological development and Demonstration activities" for a stay of two years in Japan. He claimed that as a result of the deterioration of the exchange rate between the Yen and the Euro, he received less than comparable scientists that had arrived the year before or the year after and that he was thus being discriminated against.

1.2 In its opinion, the Commission took the view that it had complied with its commitments and had infringed neither the principle of legitimate expectations nor that of equal treatment. However, the Commission also noted that it had carried out a comparative analysis of the situation and that on the basis of this analysis it intended to grant a further indemnity to the complainant and his colleagues.

1.3 In his observations, the complainant informed the Ombudsman that the Commission had offered to make further payments ranging between € 11 037 and € 11 726 to the complainant and his colleagues and that this offer had been accepted.

1.4 The complainant stressed that the relevant sum had not yet been paid. The Ombudsman trusts, however, that the Commission will pay the sum due to the complainant as soon as possible.

1.5 It thus appears that the Commission has taken steps to settle this aspect of the complaint and has thereby satisfied the complainant.

2 Infringement of right to good administration

2.1 The complainant alleges that the Commission failed to reply to his letters of 5 December 2000 and of 15 June 2001 within a reasonable period and omitted to give reasons for its decision to reject the demand for compensation. He further considers that the Commission was deliberately delaying the matter. In his view, the Commission has thus infringed his right to good administration under Article 41 of the Charter on Fundamental Rights.

2.2 The Commission accepts that it only replied to the first letter of 5 December 2000 on 21 March 2001. According to the Commission, this was due to the need for many internal discussions with different services on such a complex matter and the need to analyse the situation and possible solutions with great care. Whilst the complainant and several of his colleagues had written a further letter to the Commission on 15 June 2001, the Tokyo Delegation had been in constant touch with the fellows. Furthermore, the Commission points out that its services met seven of the fellows belonging to STF 14, including the complainant, on 12 June 2001, and explained the situation.

2.3 Article 41 (1) of the Charter on Fundamental Rights provides that every person has the right to have his affairs handled "within a reasonable time by the institutions and bodies of the European Union". The Ombudsman notes that in the present case the complainant first wrote to the Commission in early December 2000. The video conference at which the Commission proposed to make a further payment took place in early December 2001.

2.4 It has thus taken the Commission nearly a whole year to come up with a solution to the problem raised by the complainant and his colleagues. In this context, regard should be had to the fact that it was comparatively easy to ascertain, on the basis of a simple mathematical operation, the accuracy of the complainant’s claim that his grant was effectively lower than that given to comparable scientists. The Ombudsman understands that it may take some time to decide on the action to be taken and to find the funds necessary to finance further, compensatory payments. Given that the complainant’s stay in Japan was limited to two years and that the grant was intended to help him cover the expenses of this stay, it would however have been all the more important to react as quickly as possible. Moreover, the Commission was already aware of the problem before the complainant turned to it, given that a similar complaint had been lodged in November 1999(2). In these circumstances, the Ombudsman considers that the Commission has failed to handle the matter within a reasonable time. This is an instance of maladministration, and the Ombudsman considers it necessary to make a critical remark.

3 Conclusion

On the basis of the European Ombudsman’s inquiries into this complaint, it appears necessary to make the following critical remark:

Article 41 (1) of the Charter on Fundamental Rights provides that every person has the right to have his affairs handled "within a reasonable time by the institutions and bodies of the European Union". The Ombudsman notes that in the present case it has taken the Commission nearly a whole year to come up with a solution to the problem raised by the complainant. He further notes that the Commission was already aware of the problem before the complainant turned to it, given that a similar complaint had been lodged in November 1999. In these circumstances, the Ombudsman considers that the Commission has failed to handle the matter within a reasonable time. This is an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

---

(1) See the Ombudsman's decision of 30 March 2001 on complaint 1393/99/(IJH)/BB, available on the Ombudsman's website (http://www.ombudsman.europa.eu) and in the forthcoming Annual Report 2001.

(2) See the Ombudsman's decision of 30 March 2001 on complaint 1393/99/(IJH)/BB, available on the Ombudsman's website (http://www.ombudsman.europa.eu) and in the forthcoming Annual Report 2001.