Strasbourg, 11 March 2004

Dear Mrs L.,

On 1 October 2002, you lodged a complaint with the European Ombudsman against the European Commission, concerning the alleged lack of due diligence by the institution's Delegation in Guatemala to have your car registered with a diplomatic licence plate.

On 28 October 2002, I forwarded the complaint to the President of the European Commission. I received the Commission's opinion on 21 February 2003, and forwarded it to you with an invitation to make observations. I received your observations on 9 April 2003. On 6 October 2003, I wrote to the President of the European Commission in order to seek a friendly solution to your complaint. The Commission replied on 18 November 2003 and I forwarded the reply to you for possible observations. I received your observations on 14 January 2004.

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

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

In April 1999, the complainant joined the Commission's Delegation in Guatemala as a junior expert. At the time, she was informed of her right to purchase a tax-free vehicle. In June 1999, she bought a car from an American car dealer. Following the delivery of the vehicle, the complainant submitted the necessary paperwork to the responsible person at the Commission's Delegation, who filed the request for the diplomatic registration with the Guatemalan authorities on 10 August 1999. This responsibility had been entrusted to an external consultant. The complainant was granted a 3-month temporary licence plate, at which time the procedure was expected to be completed.

Following the arrival of a new Head of Delegation in November 1999, the responsibility for handling diplomatic licence plates was transferred to the Delegation's administrative assistant. The Head of the Delegation instructed the responsible official to expedite the outstanding procedures for the granting of diplomatic licence plates to the Delegation's staff. Despite his instructions, the diplomatic registration of the complainant's vehicle had not been finalised by the end of 2001. The only reply the complainant received to her numerous requests to the responsible official was that the Guatemalan authorities had not yet taken a decision. At the end of the complainant's posting in April 2002, her car had not yet been granted a diplomatic licence plate. As a result of the situation, the complainant was unable to complete the sale of the vehicle, which she had initially agreed with a colleague from the Delegation for a price of $2000.

The complaint to the Ombudsman included a lengthy annex, which contained numerous exchanges between the complainant and the Commission services, both in its Delegation in Guatemala and in DG RELEX. It also encompassed a number of internal notes on the problem prepared by different Commission services.

In summary, the complainant alleges that the responsible Commission officials did not handle the administrative procedure for the diplomatic registration of her car with due diligence, and that they showed a lack of willingness to undertake the necessary procedures. She claims that the Commission should recognise its fault, complete the process, and compensate her for the losses incurred.

THE INQUIRY

The European Commission's opinion

In its opinion of 13 February 2003, the Commission explained, in summary, that the complainant had worked as a junior expert in its Delegation in Guatemala from 28 March 1999 until 7 March 2001. In her capacity as a junior expert, the complainant was granted privileges and immunities under the Vienna Convention in the same way as Commission officials.

Soon after her arrival, the complainant bought a car and obtained its temporary registration with a diplomatic licence plate. Although final registration should normally have taken place within three months of the temporary registration, the process has not yet been completed. The institution stated that the Delegation’s administrative assistant, as the person assumed to be most familiar with local living conditions, was to be the main source of on-the-spot assistance for the complainant with the various administrative procedures that were to be completed (immigration formalities, visas, residence permits, driving licences, importing of personal effects, and so forth). During the complainant's term in Guatemala, this position was held by a local agent, Mr M.R. The Commission recognised that the role of its responsible official in this affair could not be established. Furthermore, since he left the Delegation on 30 September 2002, the institution had been unable to ask for his comments.

Although the Commission's Delegation is always available to assist members of staff with the practicalities of their stay in the country, it is the responsibility of the individual concerned to ensure that he or she does whatever is necessary to comply with the applicable local rules. Therefore, at the end of a posting, an individual should ensure that all the legal requirements are in place for the disposal of her private vehicle within the country.

The Commission services in Brussels (DG RELEX) were informed of the problem for the first time in January 2002, namely more than ten months after the complainant had finished her contract and had left the country. The Commission services systematically replied to all the notes, faxes and electronic messages from the complainant and advised her to hire a lawyer to solve the problem.

At present, the complainant has no legal link with the Commission and the problem therefore no longer falls within the remit of the Commission's Delegation in Guatemala.

The Commission finally expressed its regrets that the complainant had failed during her two-year stay to ensure that the vehicle was properly registered. Therefore, by leaving her car behind when leaving the country at the end of her assignment, the Commission considered that she had accepted the implicit risks of her action.

The complainant's observations

In her observations, the complainant contested some of the arguments put forward by the Commission. She emphasised that the necessary arrangements to have a diplomatic licence plate granted can only be undertaken by the Commission's Delegation in Guatemala, and that she was therefore not in a position to negotiate with the Guatemalan authorities. The Head of the Delegation had clearly stressed this point in his fax to the complainant of 4 March 2002.

The complainant noted that the Commission had never raised any objection regarding the lawfulness of the purchase of her vehicle, either before or after she left the Delegation in Guatemala. She pointed out that six months after the conclusion of her contract, the Head of the Delegation explained, in an e-mail dated 25 September 2001, that the negotiations with the Guatemalan authorities concerning her vehicle should be renewed.

As for her approaches towards the institution, the complainant pointed out that she had first addressed the responsible officials in the Commission's Delegation in Guatemala in order to respect the proper procedure. Only when these approaches had seemingly failed, did she seek to draw the attention of the Commission services in Brussels to the problem.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After a careful evaluation of the opinion and observations, the Ombudsman did not consider that the Commission had responded adequately to the complaint. Article 3 (5) of the Statute of the Ombudsman(1) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complaint. The Ombudsman’s provisional conclusion was that the Commission should have taken the necessary initiatives to facilitate a resolution of the matter within a reasonable time and that its failure to do so could be an instance of maladministration. The provisional conclusion was based on the following considerations:

The complainant's initial request was made in August 1999. At that time, she was given a three-month temporary diplomatic licence plate. Final registration should normally have taken place within three months of the temporary registration. By April 2002, at the end of the complainant's posting, the procedure had not yet been completed. The institution had not been able to account for this long delay, having simply stated that the role of the Delegation's responsible official at the time could not be established.

By letter dated 6 October 2003, the Ombudsman therefore proposed that the Commission could take steps to ensure that the complainant's request for the diplomatic registration of her vehicle be finalised by the responsible national authorities, or if such possibility was no longer feasible, to make a suitable offer of compensation to the complainant.

In its reply, the Commission first noted that it had received further comments from its Delegation in Guatemala which arrived too late to be taken into consideration in the Commission's first opinion. The institution explained that the Delegation's local agent in charge of administration had put his visa on the file for the registration of the complainant's vehicle and sent it to the relevant national authorities, so that the registration procedure could be launched.

The Commission acknowledged that the delivery of diplomatic licence plates appears to be common practice where diplomatic services are concerned and should be regarded as an administrative favour. The delivery of diplomatic licence plates takes place only if and when all the documents necessary for a regular registration are submitted to the relevant department.

As pointed out by the Commission services in notes dated 12 April 2002 and 28 January 2003, the complainant had failed to produce an invoice to establish that she was the actual owner of the vehicle, and a declaration of importation for permanent use. The vehicle entered Guatemala with a declaration of temporary importation for 30 days, after which it should have been re-exported to the United States.

The Commission concluded that as a result of these irregularities, for which the complainant was the only person responsible, the registration of her vehicle could not take place. The Commission added that when the complainant left the country at the end of her two-year assignment with the Commission Delegation in Guatemala, she could have re-exported the vehicle to the United States, its country of origin. She chose instead to try and sell it locally, although she knew that the administrative situation of the vehicle did not comply with local legislation on the import of vehicles.

On the basis of these arguments, the Commission rejected any responsibility for the situation and any liability towards the complainant.

The Ombudsman forwarded the Commission’s reply to the complainant. In her reply, she re-stated the arguments made in both her complaint and observations.

THE DECISION

1. Due diligence on the part of the Commission to have the complainant's car registered

1.1 The complainant alleges that the responsible Commission officials did not handle the administrative procedure for the diplomatic registration of her car with due diligence, and that they showed a lack of willingness to undertake the necessary steps. In her observations, the complainant stresses that she could not have carried out the necessary arrangements, since only the Commission's Delegation in Guatemala had the capacity to negotiate with the responsible national authorities.

1.2 In reply to the Ombudsman’s proposal for a friendly solution, the Commission argued that the complainant's vehicle had not been registered due to a number of irregularities for which the complainant was solely responsible. The institution referred to the complainant's failure to produce both an invoice establishing her ownership of the vehicle, and a declaration of importation for permanent use.

1.3 Before assessing whether the Commission carried out its duties diligently, it is necessary to determine the scope of the institution's duties in this procedure.

From the documentary evidence submitted in the course of the inquiry, it appears that when the complainant asked to have her car registered with a diplomatic licence plate, the responsible services in the Commission Delegation in Guatemala took charge of the matter and acted on the complainant's behalf in all representations made to the Guatemalan authorities. An internal administrative note from the Head of the Guatemalan Delegation to all staff, dated 27 July 2000, annexed to the complaint, states in point 2 that any initiative involving the national tax authorities, as was the case of a diplomatic registration of a car, had to be supervised at all times by the Delegation's responsible official.

The Ombudsman also notes that having taken charge of the vehicle's registration while the complainant served as a junior expert in its Delegation in Guatemala, the Commission appeared willing to continue handling the problem once she no longer had a working relationship with the institution. This fact is illustrated by the note of 14 March 2002 from Mr B., Head of the Local Agents Unit in DG RELEX, to the Head of the Delegation in Guatemala, which was also annexed to the complaint.

Throughout the procedure, the Commission never questioned, either in correspondence with the complainant or in the internal exchanges between its services, its exclusive responsibility for handling the diplomatic registration of the complainant's vehicle, or the duty to pursue its efforts even after the complainant's working relationship with the institution had ceased.

The Ombudsman therefore takes the view that the Commission willingly undertook the administrative handling of the registration of the complainant's vehicle before the national authorities, and therefore, it should have carried out its tasks with due diligence.

1.4 On the basis of the information submitted in the course of the Ombudsman's inquiry, it appears that the conclusion of the administrative procedure before the Guatemalan authorities for the diplomatic registration of the complainant's vehicle was blocked because the complainant had not provided the necessary documentation concerning the vehicle’s importation and ownership.

1.5 As illustrated by its internal notes dated 12 April 2002 and 28 January 2003, the Commission was well aware that the file submitted by the complainant was incomplete and that this was the reason why the administrative procedure before the Guatemalan authorities was blocked. The Ombudsman notes, however, that the Commission appears never to have informed the complainant of the above or to have asked her for the missing documents.

1.6 The Ombudsman points out that it is good administration for an official to advise, where necessary, on how a matter which comes within his or her remit is to be pursued and how to proceed in dealing with the matter(2).

1.7 The Ombudsman therefore considers that if the Commission had carried out its task with due diligence in this case, it would have asked the complainant for the necessary documents and informed her that there could be no progress on the file unless and until she provided them. The Commission’s failure to do so was an instance of maladministration. A critical remark will be addressed to the Commission.

2. Claim for compensation

2.1 The complainant claims that the Commission should recognise its fault and compensate her for the losses incurred.

2.2 The Commission argues that the registration of the vehicle was not achieved because of a number of irregularities for which the complainant was solely responsible. It adds that despite the vehicle's irregular administrative situation, the complainant chose not to re-export it when she left the country. On the basis of these arguments, the Commission rejected the Ombudsman’s proposal for a friendly solution and denies any liability towards the complainant.

2.3 The Ombudsman notes that the Commission has rejected a friendly solution and defined its position towards the complainant’s claim in terms of a denial of legal liability. The Ombudsman considers that only a court of competent jurisdiction could satisfactorily determine the question of liability in this case. In these circumstances, the Ombudsman does not consider that further inquiries are justified.

3. Conclusion

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

It is good administration for an official to advise, where necessary, on how a matter which comes within his or her remit is to be pursued and how to proceed in dealing with the matter(3) . If the Commission had carried out its task with due diligence in this case, it would have asked the complainant for the necessary documents and informed her that there could be no progress on the file unless and until she provided them. The Commission’s failure to do so was an instance of maladministration.

The Commission has rejected a friendly solution and defined its position towards the complainant’s claim in terms of a denial of legal liability. The Ombudsman considers that only a court of competent jurisdiction could satisfactorily determine liability in this case. In these circumstances, the Ombudsman does not consider that further inquiries are justified. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) Art. 10 (3) of the European Code of Good Administrative Behaviour.

(3) Art. 10 (3) of the European Code of Good Administrative Behaviour.