Strasbourg, 17 February 2005

Dear Mr T.,

On 14 November 2003, you made a complaint to the European Ombudsman concerning your pension rights for the period you worked as an auxiliary agent at the European Commission from 1965 to 1968. This complaint was the follow-up of an earlier complaint (ref. 0878/2003/FA) you made to the Ombudsman.

On 15 December 2003, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 19 February 2004. I forwarded it to you on 12 March 2004 with an invitation to make observations. On 29 April 2004, you sent an e-mail informing me that you still had not received the Commission's opinion. By e-mail of 5 May 2004, my office sent you again a copy of the Commission's opinion. As you could not open the enclosure, you sent another e-mail on 12 May 2004 requesting that the opinion be sent again to your postal address. The opinion was sent again to you by post and by fax on 14 May 2004. You sent your observations on 25 May 2004. On 1 August 2004, you sent an additional letter inquiring about your case. My office informed you by telephone on 3 September 2004 on the progress of your case.

By letter of 29 October 2004, I wrote to the Commission proposing a friendly solution to your complaint and informed you of the proposal in a letter of the same date. By letter of 7 December 2004, you thanked me for the friendly solution proposal. The Commission sent its additional opinion on 30 November 2004. On 17 December 2004, I forwarded it to you with an invitation to make observations which you made in a telephone conversation with my office on 28 January 2005.

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

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant is a Greek national who worked as an auxiliary agent at the European Commission from 13 July 1965 to 31 December 1968. The complainant subsequently returned to Greece, where he encountered problems with his pension rights.

By letter of 27 May 2002, the Belgian National Pensions' Office ("Office National des Pensions", hereafter "ONP") informed the complainant that the Commission had paid pension contributions only for the years 1965 and 1966, but not for the years 1967 and 1968. Those years could therefore not be taken into account for the calculation of his pension. The ONP advised the complainant to contact the Commission directly about the matter. Due to the lack of contributions from the Commission, the Greek Insurance Organisation ("IKA") does not recognise, for the calculation of his pension, all the years the complainant has worked at the Commission.

On 8 August 2002, the Commission provided the complainant with a certificate, according to which, from 13 July 1965 to 31 December 1966, he was registered with the Belgian pension scheme, and from 1 January 1967 to 31 December 1968, he was under a voluntary insurance with the Greek pension system.

On 5 May 2003, the complainant complained to the Ombudsman about the matter (complaint 0878/2003/FA). As he had only very recently written to the Commission about the same issue, the Ombudsman, by letter of 4 July 2003, considered the complaint to be inadmissible since the appropriate prior administrative approaches had not been completed and advised the complainant to wait for the Commission's reply. Further to the issuing of the above certificate, the complainant wrote on 28 May 2003 to DG Personnel and Administration of the Commission pointing out that auxiliary agents were entitled to compulsory insurance by the Commission with the Belgian pension scheme. In order to have his pension rights for the years 1967 and 1968 recognised by IKA in Greece, the complainant asked the Commission to clarify the matter. However, he received no reply to this letter from the Commission.

On 14 November 2003, the complainant thus lodged a new complaint with the Ombudsman. In his complaint he made the following claim:

The Commission should, for the entire period that the complainant worked as an auxiliary agent (i.e. also including the period from 1 January 1967 to 31 December 1968), recognise that it was obliged to insure him under the Belgian pension scheme.

THE INQUIRY

The Commission's opinion

The Commission stated that, after a thorough examination of the complainant's file, it had the following comments to make:

The complainant indeed worked for the Commission as an auxiliary agent without interruption from 13 July 1965 to 31 December 1968. Contributions were paid to the Belgian scheme ("ONSS", Office National de Sécurité Sociale) for the period from 13 July 1965 to 30 September 1966. No contribution to the Belgian scheme was paid after that date.

On 23 November 1966, the complainant made a request for the transfer of part of his remuneration (BEF 7 000), justifying his request on the basis of "various costs resulting from his status as a lawyer at the Athens' Bar". The complainant's justification apparently referred to legislation applicable in Greece, which requires lawyers to continue to contribute to their national scheme in order to maintain their affiliation with it.

It thus appears that these rules justified the application to the complainant of Article 70.1 of the Conditions of employment of other servants of the European Communities, and more particularly the last phrase of the second paragraph, which gives the possibility to auxiliary agents to continue, on a voluntary basis, to be affiliated to the national scheme to which they belonged before entering into service at the Commission.

According to the Commission, this explains the hand-written note "assurance volontaire Grèce" on the complainant's financial file, as well as on the ONSS declaration for the 4th semester of 1966, "assurance à l'étranger à partir du 1er octobre 1966".

As the Commission no longer has the payment slips of the time available, it is impossible for it to prove that it stopped deducting a personal contribution from the complainant's salary. Nor does the Commission have proof of the reimbursement by the Commission of two thirds of the complainant's Greek coverage.

The Commission is, however, of the opinion that it has fulfilled its obligations towards the complainant.

The complainant's observations

The complainant observed that the Commission did not dispute the fact that he worked as an auxiliary agent from 13 July 1965 to 31 December 1968. The Commission also admits that it did not pay contributions to the ONSS for the period of 30 September 1966 to 31 December 1968.

The Commission was, however, under the obligation to pay contributions for that period.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and observations, the Ombudsman considered that there could be an instance of maladministration by the Commission. In accordance with Article 3(5) of the Statute(1), he therefore wrote to the President of the Commission on 29 October 2004 to propose a friendly solution on the basis of the following analysis of the issue in dispute between the complainant and the Commission:

1.1 The complainant claims that the Commission should, for the entire period that he has worked as an auxiliary agent (i.e. also including the period from 1 January 1967 to 31 December 1968), recognise that it was obliged to insure him under the Belgian pension scheme.

1.2 The Commission observed that contributions were paid to the Belgian National Social Security Office ("ONSS") for the period from 13 July 1965 to 30 September 1966, but that no contribution to the Belgian scheme was paid after that date. The Commission further pointed out that, on 23 November 1966, the complainant made a request for the transfer of part of his remuneration (BEF 7000), justifying his request on the basis of "various costs resulting from his status as a lawyer at the Athens' Bar". This would explain the hand-written note "assurance volontaire Grèce" on the complainant's financial file, as well as on the declaration to the ONSS, 4th semester 1966, "assurance à l'étranger à partir du 1er octobre 1966". The Commission further pointed out that, as it no longer has the payment slips of the time available, it is impossible for it to prove that it stopped deducting a personal contribution from the complainant's salary. Nor does the Commission have proof of the reimbursement by its services of two thirds of the complainant's Greek coverage.

1.3 The Ombudsman notes that, according to Article 70.1, second paragraph of the Conditions of employment of other servants of the European Communities, "the institution shall be responsible for the employer's contributions required under the legislation in force where the servant is compulsorily affiliated to such a social security scheme, or for two thirds of the servant's contributions where he remains voluntarily affiliated to the national social security scheme of which he was a member before he entered the service of the Communities or where he voluntarily joins a national social security scheme".

1.4 It appears from the file that the complainant and the Commission agree that the complainant worked as an auxiliary agent for the Commission from 13 July 1965 to 31 December 1968. However, the parties disagree about the national pension scheme to which the complainant, as an auxiliary agent, was affiliated and about the contributions paid.

1.5 From the only documents of the complainant's file which are still available today, it appears that the situation concerning the complainant's pension rights is as follows:

1.6 The certificates of 7 July and 8 August 2002, established by DG Personnel and Administration of the Commission, certify that the complainant was registered with the Belgian social security system from 13 July 1965 to 31 December 1966, and had a voluntary insurance with the Greek social security system from 1 January 1967 to 31 December 1968. Similarly, the letter of the Belgian National Pensions' Office ("ONP") to the complainant, dated 27 May 2002, mentions that contributions were paid only for the years 1965 and 1966, and that therefore the years 1967 and 1968 could not be taken into account for the calculation of the complainant's pension.

1.7 In its opinion on the present complaint, however, the Commission provided different information, namely that it paid contributions to the Belgian pension scheme from 13 July 1965 to 30 September 1966, i.e. three months less than mentioned in the certificates of DG Personnel and Administration and in the letter of the Belgian ONP. The Commission further refers to hand-written comments on the complainant's file indicating registration with a foreign pension scheme from 1 October 1966 onwards. The Commission however admitted not having proof concerning deduction of contributions from the complainant's salary or reimbursement of two thirds of the complainant's contributions to the Greek scheme.

1.8 The Ombudsman points out that principles of good administration require that the institutions keep adequate records. In the case of pension entitlements, it is clearly necessary for such records to be kept reliably over long periods of time in order to ensure that individuals can enjoy the benefits which they have earned. According to the Conditions of employment of other servants, the Commission - not the auxiliary agent - is responsible for the employer’s social security contributions. In the present case, the Commission has acknowledged, in substance, that its records do not allow it to know how, or indeed whether, it discharged its responsibilities in this regard.

1.9 In these circumstances, the Ombudsman's provisional conclusion is that the Commission has not managed to demonstrate that it has fulfilled its obligations towards the complainant as regards his pension rights. This constitutes an instance of maladministration.

The proposal for a friendly solution

The friendly solution proposed by the Ombudsman consisted in the Commission taking the necessary measures to ensure that the complainant receives an appropriate pension entitlement in respect of the full period for which he worked for the Commission.

The Commission's additional opinion

Given the material impossibility for the Commission to prove that the complainant had, during the period of his contract as an auxiliary agent, opted for a modification of the social security scheme, the Commission accepts the Ombudsman's proposal for a friendly solution.

The Commission contacted the Belgian authorities on 10 November 2004 in order to regularise the contributions to the Belgian social security scheme for the entire period of the auxiliary contract, namely from 13 July 1965 to 31 December 1968. A copy of the document which confirms the regularisation will be sent directly to the complainant once the Commission services receive it.

The complainant's additional observations

The Ombudsman forwarded the Commission's additional opinion to the complainant with an invitation to make observations. In a telephone conversation with the Ombudsman's services on 28 January 2005, the complainant observed that he was satisfied with the outcome and expressed his appreciation for the Ombudsman's intervention. The complainant mentioned that the Commission services had contacted him by telephone for the concrete follow-up and regularisation of the matter. The complainant therefore considered that the Commission had settled the case to his satisfaction.

THE DECISION

1 The alleged failure of the Commission to pay pension contributions for the years 1967 and 1968

1.1 The complainant claims that the Commission should, for the entire period that he has worked as an auxiliary agent (i.e. also including the period from 1 January 1967 to 31 December 1968), recognise that it was obliged to insure him under the Belgian pension scheme.

1.2 The Commission observed that contributions were paid to the Belgian National Social Security Office (ONSS) for the period from 13 July 1965 to 30 September 1966, but that no contribution to the Belgian scheme was paid after that date. The Commission further pointed out that, on 23 November 1966, the complainant made a request for the transfer of part of his remuneration (BEF 7000), justifying his request on the basis of "various costs resulting from his quality of lawyer at the Athens' Bar". This would explain the hand-written note "assurance volontaire Grèce" on the complainant's financial file, as well as on the declaration to the ONSS, 4th semester 1966, "assurance à l'étranger à partir du 1er octobre 1966". The Commission further pointed out that, as it no longer has the payment slips of the time available, it is impossible for it to prove that it stopped deducting a personal contribution from the complainant's salary. Nor does the Commission have proof of the reimbursement by its services of two thirds of the complainant's Greek coverage.

1.3 On 29 October 2004, the Ombudsman made a proposal for a friendly solution to the Commission, consisting in the Commission taking the necessary measures to ensure that the complainant receives an appropriate pension entitlement in respect of the full period for which he worked for the Commission. The Commission accepted the proposal for a friendly solution and took contacts with the Belgian authorities on 10 November 2004 in order to regularise the contributions to the Belgian social security scheme for the entire period of the complainant's auxiliary contract, namely from 13 July 1965 to 31 December 1968. The Commission also indicated that a copy of the document which confirms the regularisation would be sent directly to the complainant once the Commission services received it.

1.4 In a telephone conversation with the Ombudsman's office on 28 January 2005, the complainant observed that he was satisfied with the outcome and expressed his appreciation for the Ombudsman's intervention. The complainant mentioned that the Commission services had contacted him by telephone for the concrete follow-up and regularisation of the matter. The complainant therefore considered that the Commission had settled the case to his satisfaction.

2 Conclusion

Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between the Commission and the complainant. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint".