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A Study on the Complainant Satisfaction of the Institution of the European Ombudsman in the period 2006 – 2008, with a Case Study on the Ombudsman’s Irrational Reasoning

 

 

Edited by Holger J. Scheidel-Apostolov, MBA

 

 

The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.

Albert Einstein

 

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember it or overthrow it.

Abraham Lincoln

 

 

Introduction

In 2007, the Ombudsman’s institution has cost the taxpayers 7,4 million euro[1] (the institution’s actual spending).

On April 23rd, 2009, the European Parliament adopted a resolution with observations forming an integral part of its Decision on discharge in respect of the implementation of the European Union general budget for the financial year 2007, Section VIII – European Ombudsman,[2] in which it notes that:

 

… over the period 2003 to 2007, commitment appropriations have steadily increased from EUR 4,4 million to EUR 8,2 million (nearly +86%) and posts from 31 to 57 units (+84%), while complaints have increased from 2 436 to 3 217 (+32%) and new enquiries opened from 253 to 308 (+22%) …

 

In other words, while the number of open enquiries has increased only by 21,7%, and the incoming complaints have increased by 32,1%, in the reference period the institution’s budget has increased disproportionately by 86,4% (or almost 4 times higher than the increase in open enquiries and 2,7 times higher than the increase in complaints).

A review of the available literature revealed that, although there have been publications on the role and impact of the European Ombudsman on the European Institutions,[3],[4],[5] ombudsman evaluation guides[6] and surveys on the complainant satisfaction and improvement potential of ombudsmen at the national level,[7] so far no evaluation of the complainant satisfaction of the European Ombudsman has been carried out.

Inspired by the above observations, this study aims at filling in the identified gap by investigating the European Ombudsman’s complainant satisfaction. It is expected that the outcomes of the study will not only provide valuable information on the effectiveness of the European Ombudsman but will foster a public debate on the need for improvement of the cost-effectiveness of taxpayers’ money management and optimization of the institutions of the European Communities.

The study has been limited in two aspects: first, the studied period covered the years 2006, 2007 and 2008; and second, the complainant’s dissatisfaction with the Ombudsman’s performance was (i) concluded from a complainant’s feedback to the Ombudsman regarding the implementation of a friendly solution by the institution concerned in one of the cases where such a solution was proposed based on established maladministration, (ii) deduced from the rejection of the possibility of proposing a friendly solution by the Ombudsman in another case where an instance of maladministration had been found and (iii) assumed in the cases where the institution concerned rejected a friendly solution proposed by the Ombudsman or implemented it only partially and where the Ombudsman did not find an instance of maladministration.

 

Materials And Methods

The European Ombudsman’s online database of decisions was used as the source of data. Forty-five randomly selected Ombudsman’s decisions for 2006, 2007 and 2008 were studied for the purpose of this research. The simple random sample method was chosen based on the presumption that the Ombudsman’s decisions on whether there has or has not been maladministration would have an even (or close to even) distribution. The samples were generated using the Research Randomizer[8] online random numbers generator. Each sample contained 15 decisions per year (constituting 7,9% of the total number of decisions for 2006, 6,2% of the decisions for 2007 and 7,2% of the decisions for 2008). There were no decisions for 2009 published in the institution’s online database of decisions at time of data collection.

The number of decisions satisfying the complainant was selected as the parameter characterizing the complainant satisfaction of the institution of the European Ombudsman in view of Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties[9],[10],[11] (as amended) declaring as the institution’s main function to ‘… help to uncover maladministration in the activities of the Community institutions and bodies…’ (Article 2 paragraph 1) with the objective of ‘[a]s far as possible, … seek[ing] a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint’ (Article 3 paragraph 5). In view of the Ombudsman’s main function, the number of decisions concluding that there has in fact been an instance of maladministration is also discussed. The paper also presents the distribution of maladministration complaints per European Institution. An attempt is made to identify the most probable underlying causes for the observed results.

Because the decisions published in the Ombudsman’s online database did not contain any contact details of the complainants, it was not possible to carry out a direct survey of their satisfaction with the Ombudsman’s performance. Instead, this research interprets as a manifestation of complainant’s dissatisfaction with the Ombudsman’s performance in the studied cases where the Ombudsman found an instance of maladministration:

     a complainant’s feedback to the Ombudsman in one of the studied cases;

     a complainant’s rejection of the possibility of proposing a friendly solution by the Ombudsman in another case.

Further, it was assumed that the complainants were not satisfied with the Ombudsman’s performance in (i) the cases where the institution concerned rejected a friendly solution proposed by the Ombudsman or implemented it only partially and (ii) all cases in which the Ombudsman did not find an instance of maladministration, ie the outcome of the complaint was not to the complainant’s satisfaction. Finally, it was assumed that the complainant was satisfied with the Ombudsman’s performance where the institution complained against had solved the problem complained about.

For the purpose of this research, the following definitions apply:

     European Institution means ‘a European institution as described by the Treaty establishing the European Community[12] (as amended) including, where applicable, its respective permanent and temporary attached offices, decentralised bodies and/or agencies’;

     Commission Extensions means ‘various permanent and temporary “offices attached to the Commission”, “decentralised bodies” and “agencies”’.[13],[14],[15],[16],[17],[18]

 

Results and Discussion

The most important findings of the study are presented in Figure 1 (for 2006), Figure 2 (for 2007) and Figure 3 (for 2008) below.

 

 

Legend:  Commission – Commission of the European Communities, Parliament – European Parliament, EPSO – European Personnel Selection Office.

 

Figure 1. Distribution of the complaints per European Institution, Ombudsman’s decisions
and complainant’s satisfaction in 2006
(Source: data from the European Ombudsman’s web site).

 

 

 

 

Legend:  Commission – Commission of the European Communities, Parliament – European Parliament, EPSO – European Personnel Selection Office.

 

Figure 2. Distribution of the complaints per European Institution, Ombudsman’s decisions
and complainant’s satisfaction in 2007
(Source: data from the European Ombudsman’s web site).

 

 

 

 Legend:  Commission – Commission of the European Communities, Parliament – European Parliament, EPSO – European Personnel Selection Office.

 

Figure 3. Distribution of the complaints per European Institution, Ombudsman’s decisions
and complainant’s satisfaction in 2008
(Source: data from the European Ombudsman’s web site).

 

 

The figures clearly demonstrate that the outcomes of the Ombudsman’s intervention were not to the complainant’s satisfaction in all 100% of the admitted cases in 2006 and 2008, and only one complainant was satisfied with the Ombudsman’s performance in 2007. In addition, the Ombudsman made five proposals for a friendly solution in the studied period; however, as shown in Figure 4, one of these was withdrawn by the Ombudsman, one was partially ignored and one was rejected by the respective institution concerned. Of the remaining two cases, the one complainant rejected the possibility of a friendly solution, which is interpreted by this paper as a manifestation of the complainant’s dissatisfaction with the Ombudsman’s performance, and the other complainant ‘did not … consider the … response [of the institution concerned to the proposal] to be satisfactory’, which is also interpreted as dissatisfaction for the purpose of the research.

 

 

Figure 4. Friendly solutions proposed by the Ombudsman in the period 2006 – 2008

(Source: data from the European Ombudsman’s web site).

 

 

Based on these results it can be concluded that:

a)  the Ombudsman is ineffective in achieving the objective of satisfying the complainants;

b)  no improvement is observed in the studied three-year period.

Two are the most probable causes for this ineffectiveness of the institution:

1)  the Ombudsman’s mandate to rectify the discovered instances of maladministration is restricted to:

Ø seeking to find a friendly solution (Article 3 paragraph 5 of Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties and Article 6 of Decision of the European Ombudsman adopting implementing provisions;[19]

Ø making a critical remark (Article 7 of Decision of the European Ombudsman adopting implementing provisions);

Ø making a recommendation or recommendations to the institution concerned with a view to putting an end to the maladministration (Article 2 of Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties and Article 8 of Decision of the European Ombudsman adopting implementing provisions);

Ø submitting a report to the European Parliament in relation to the instance of maladministration (Article 3 paragraph 7 of Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties, and Article 8 and Article 11 of Decision of the European Ombudsman adopting implementing provisions).

It should be noted, though, that neither the friendly solution nor the recommendation, respectively – recommendations, are binding on the European Institution they are addressed to. The author argues that this freedom of choice is de facto a deficiency of the Ombudsman since, as the results of the study show (see also Figure 4), it is often (mis)used by the institutions concerned: as already mentioned, in two of the cases of proposed friendly solution the respective European Institution either ignored the Ombudsman’s proposal or implemented it only partially, which adds up to 50% of the friendly solutions proposed in the studied period (only the proposals that were not withdrawn by the Ombudsman are taken into consideration).

2)  the fact that, in the author’s view, the Ombudsman does not base his decisions on legal provisions but on apparent reasonableness, respectively – apparent unreasonableness, ie on entirely subjective interpretation of the facts presented to his attention. Following are just a few examples of the Ombudsman’s argumentation, based on which he decides that ‘there appears to be no maladministration’ by the European Institution (the respective decision random number and year are shown in brackets):

 

‘The Ombudsman therefore takes the view that … the Commission could reasonably conclude…’ (49:2006).

‘… the Ombudsman therefore finds that the Commission’s position appears reasonable…’ ‘… it appears reasonable that…’ (105:2006).

‘the Commission’s argument … does not appear to be unreasonable.’ (150:2006).

‘The Ombudsman considers that this assessment appears to be correct.’ (232:2007).

‘In light of the above, the Ombudsman considers that there appear to be no grounds for further inquiries into the complainant’s allegation…’ (33:2008).

‘The Ombudsman considers that the Commission’s explanation is convincing.’ (150:2008).

‘… the EDPS’s argument … appears to be plausible.’ (161:2008).

 

In the author’s opinion, the reasoning behind the Ombudsman’s decisions is unacceptable from an official institution entrusted with the task of protecting the rights of European citizens by ensuring that the institutions of the European Community comply with the union’s respective regulations and legislation, from an institution that should itself abide by the rule of law. This is the same ‘reasoning’ that concluded the Earth was the centre of the Universe, with the Sun, Moon and stars revolving around it. It appeared to be a reasonable conclusion, yet it was a materially false one. Or, as Svensmark and Calder[20] noted on a similar occasion, ‘It was good observation but dodgy theorising.’

But the Ombudsman’s restricted mandate and irrational reasoning are not the institution’s only deficiencies. Two other substantial shortcomings of the Ombudsman are:

1)  the inequitable terms under which Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties (as amended) and Decision of the European Ombudsman adopting implementing provisions put the Ombudsman and the complainants:

     while there are deadlines for the complainants to submit a complaint or observations, there are no deadlines for the Ombudsman to reply or make a decision (cf Article 2 of Decision 94/262/ECSC, EC, Euratom, Article 2, Article 4 and Article 13 of the decision of the European Ombudsman). For example, in the case of decision 82:2008 there is an unjustified delay in the Ombudsman’s decision of more than 2 years and 4 months, in the case of decision 164:2007 the unjustified delay exceeds 10 months, the unjustified delay in the case of decision 95:2008 is greater than 5 months, and the unjustified delay in the Ombudsman’s communication to the complainants exceeds 4 months in the case of decision 144:2007 (see the Case Study below for another example of unjustified delay).

     no provisions are made to ensure that the complainant receives the file on his/her case (as provided for by Article 13 of the decision) in the requested form (see also the Case Study for an example).

2)  the use of vague terms like ‘a reasonable period of time’ and ‘sufficient time’ not only in his correspondence with complainants[21] but even in some of his decisions as proven by decision 48:2006, which refers to ‘a reasonable time period’, ‘a reasonable time’ and ‘a reasonable amount of time’, decision 7:2008, which refers to ‘a reasonable period of time’, and decisions 149:2006 and 87:2008 referring to ‘a reasonable time’. These terms are useless to the person they are addressed to since they are inherently subjective and what ‘sufficient time’ or ‘a reasonable period of time’ is for one is often not the case for others.

In addition, the use of vague terms eliminates any possibility for the complainant to obtain justice against the European Ombudsman in a court of law.

Based on the above results, this paper argues that the Ombudsman’s deficiencies, respectively – shortcomings, are the most probable cause for the complainants not to be satisfied with the Ombudsman’s performance.

The Case Study below illustrates the Ombudsman’s irrational reasoning and presents arguments in support of the author’s claim that the Ombudsman’s argumentation is not based on legal provisions. It also provides an example of the effect on the complainant of the inequitable terms, under which Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties and Decision of the European Ombudsman adopting implementing provisions put the Ombudsman and the complainants.

Figures 1, 2 and 3 above also show that the Ombudsman’s enquiries revealed cases of maladministration in 21,4% of the cases in 2006, in 30,8% of the cases in 2007 and in 42,9% of the cases in 2008 (only the complaints admitted as per the Ombudsman’s implementing provisions that were not withdrawn by the complainant were taken into consideration). In addition, the study revealed that year after year the Ombudsman had issued decisions which did not at all state if there had been an instance of maladministration or not – these account for 14,3% of the complaints in 2006, 30,8% of the complaints in 2007 and 14,3% of the complaints in 2008 (only the admitted complaints that were not withdrawn by the complainant were taken into consideration).

Based on these results, the author argues that:

(a)    the Ombudsman’s efficiency in terms of uncovering maladministration was extremely low in 2006 and 2007; however, a considerable increase is observed in 2008. Although the institution’s efficiency remains far below 50% (relatively low a value) in 2008, it can be assumed that steps have been taken to improve the efficiency in performing the institution’s function.

(b)    the Ombudsman does not state explicitly if there had been an instance of maladministration or not in a significant part of the studied cases.

 

The above arguments do not imply that the Ombudsman should have sought to discover maladministration where no such had existed. Rather, they suggest that the institution may have been more successful if it had based its decisions on legal provisions.

 

The results also revealed that the Commission of the European Communities (alias the European Commission) was the reason for most of the maladministration complaints submitted to the Ombudsman in the period 2006 – 2008. Considering the fact that the European Personnel Selection Office is merely one of the Commission Extensions as proven by Decision 2002/620/EC establishing a European Communities Personnel Selection Office[22],[23] and the office’s subordination to the European Commission,[24] the following numbers appear: 86,7% of the complaints in 2006, 60% of these in 2007 and 73,3% of the ones in 2008 targeted the Commission. However, as the European Institutions as a reason for complaint are not the focus of this research, the complaint distribution per European Institution will not be discussed further.

 

Conclusion and Recommendation

Based on the results of the study it can be concluded that the European Ombudsman:

a)  has significant inherent deficiencies, eg restricted mandate, etc.

b)  is ineffective in achieving the objective of satisfying the complainants in the studied three-year period;

c)  had extremely low efficiency in terms of uncovering maladministration in 2006 and 2007; however, it seems that steps have been taken to improve the efficiency in terms of performing the institution’s function in 2008;

d)  does not state explicitly if there had been an instance of maladministration or not in a significant part of the studied cases;

e)  does not base his decisions on legal provisions but on apparent reasonableness, respectively – apparent unreasonableness, ie on entirely subjective interpretation of the facts presented to his attention;

f)   uses inherently subjective terms which are not only useless to the person they are addressed to but also eliminate any possibility for the complainant to obtain justice against the Ombudsman in a court of law.

 

Considering the fact that the above results were obtained studying representative samples, it can be further concluded that similar distribution and abnormalities will be observed outside the samples. In addition, the legal provisions governing the institution’s performance put the complainant and the Ombudsman under inequitable terms.

Based on the above conclusions, it is recommended that the ineffective and inefficient Ombudsman’s institution with its inherent deficiencies be abandoned, and its financing be redirected to efficient institutions in order to improve the cost-effectiveness of taxpayers’ money management. For example, reallocating the Ombudsman’s budget (7,4 million euro in 2007) to the Court of Justice, the judgments of which are binding, and extending the mandate of the latter to cover more European Institutions (currently the Court of Justice only deals with claims against Community Institutions within the meaning of Article 232 of the Treaty establishing the European Community[25] (see also the court’s decision in the case of Apostolov[26])) would provide more Community citizens with proper access to justice in matters related to the institutions and, hence, will increase the complainants’ satisfaction.

 

 


Case Study

The Ombudsman’s Irrational Reasoning

 

Background[27]

I was invited to an interview for a position with DG Environment of the Commission of the European Communities (alias the European Commission, hereafter referred to as ‘the EC’) in November 2007. Along with the invitation[28] I received the EC’s Rules for the reimbursement of travel and subsistence expenses for persons outside the Commission invited to attend a competition, interview or medical examination (hereinafter ‘the Rules’).

Having duly fulfilled all related requirements and attended the interview, I expected to receive the reimbursement for the associated expenses in about a month, which I know by experience is sufficient time to finalize this type of administrative procedure.

Two months after the interview I received only a part of the expected reimbursement. In reply to my request to receive the full reimbursement the EC alleged that I was not entitled to a substantial part of the reimbursement.[29]

Having unsuccessfully tried to solve the problem through direct negotiations with the EC, on 31.01.2008 I submitted a complaint to the European Ombudsman[30] about several instances of maladministration by the EC in relation to this interview only. A big part of the complaint elaborated on the missing reimbursement and on the EC’s misinterpretation of the Rules.

On 13.03.2008 I received the Ombudsman’s reply to my complaint,[31] in which he informed me that he had decided not to open inquiries into the reported cases of maladministration, because:

a)    the Commission’s explanation, made in its letter of 29 January 2009, as to why it could not pay you a daily allowance appears to be reasonable.’ (emphasis added);

b)    [I] do not appear to have turned to the Commission with [my] allegations 2) – 6) above.’

c)    … [I] had not allowed sufficient time for the Commission to reply…’ (emphasis added).

The Ombudsman further suggested that I contacted the Commission concerning my allegations 2) – 6) and, in case I did ‘not receive a satisfactory reply from the Commission within a reasonable period of time’ (emphasis added), I made a new complaint to him.

 

Being totally dissatisfied with the institution’s reply, I requested the Ombudsman[32] to:

A.     First:

1)  in case his decision had not in fact been based on the above entirely subjective perception but on a legal analysis of the Rules, send me a copy of the analysis.

2)  in case his decision had actually been based only on the above entirely subjective perception, revise his decision No 054384 in the part on opening an inquiry into my claim for being entitled to receive daily allowance of EUR 50 based on made by him legal analysis of the Rules.

B.     Second: provide me with a definition of the terms ‘a reasonable period of time’ and ‘sufficient time’, preferably based on either legal requirements or rules of procedure.

 

Since the Ombudsman’s reply to Complaint 336/2008/DK raised in me certain reasonable doubts about the institution’s analytical capacities, I supplied the Ombudsman with an illustrated version of my analysis of the Rules for his reference.[33]

In his reply[34] the Ombudsman reiterated his decision based on his subjective conception of the EC’s misinterpretation of the Rules.

Having submitted multiple requests to see the Ombudsman’s file on Complaint 336/2008/DK as provided for by Article 13 of the Decision of the European Ombudsman adopting implementing provisions,[35] almost four months later I finally received the requested documents.[36] The file revealed that the Ombudsman’s ‘analysis’ of the Rules is nothing else but parroting their misinterpretation by the EC without even referring to my considerations in relation to the very same Rules.

 

This Case Study will not elaborate on the uselessness of the Ombudsman’s instructions about the ‘reasonable period of time’ and ‘sufficient time’ and his suggestion to submit a complaint about not having received a reply to the EC and then wait for a reply from the same institution, or on the fact that the Ombudsman sent his file on Complaint 336/2008/DK as electronic copies of the documents despite my explicit request to receive a paper copy of the file. The interested reader is advised to consult the Ombudsman’s reply[37] to the request for definitions for legal provisions in relation to the ‘reasonable period of time’ and ‘sufficient time’.

Instead, the next sections of the Case Study will prove in two different ways that the Ombudsman’s reasoning is in fact irrational.

 

 

Method 1

The Rules for the reimbursement of travel and subsistence expenses for persons outside the Commission invited to attend a competition, interview or medical examination in Article 8[38] on the subsistence expenses set explicitly ‘the distance between the place of residence and the place where the competition, interview or medical examination is held’ as the eligibility criterion for the eligibility for subsistence expenses. The article further divides the above criterion into three categories and sets the amount of the subsistence expenses proportionally to the distance as follows (see also Article 8 (1), (2) and the first sentence from (3)):

1)    The first category includes distances ranging from 0 km to 50 km from ‘the place of residence and the place where the competition, interview or medical examination is held’. Applicants falling within this category receive ‘no contribution to subsistence expenses’ (in other words, EUR 0).

2)    The second category includes distances from 50 km + 1 to 150 km. Applicants falling within this category receive ‘a flat rate contribution of EUR 25’.

3)    The third category includes distances exceeding 150 km. Applicants falling within this category receive ‘a flat rate daily allowance of EUR 50’.

 

As it can be seen from the above, the integrated eligibility-amount criterion sets no requirement or statement as of the duration of the competition, interview or medical examination as such.

The above principles of eligibility for and proportioning of the amount of the subsistence expenses are illustrated in Figure 5 below.

 

 

Figure 5. Principles of eligibility for and proportioning of the amount of the subsistence expenses.

 

Having made the above clear and in view of the Commission’s interpretation of the Rules regarding the daily allowance that ‘we pay this allowance only when the total duration of the trip covers a period of 24 hours or more[39] and that ‘The rules provide for a payment of €50 for each period of 24 hours covered by the trip’ (section 3(2) of the Commission’s opinion[40] submitted in relation to my renewed complaint to the Ombudsman), thus referring to the provision of the second sentence of Article 8 (3) of the Rules, the following arguments prove that this interpretation is manifestly incorrect:

a)    The sentence itself does not refer to a period of 24 hours in relation to the hypothesis of a single day taken up by the competition, interview or medical examination.

b)    The sentence itself puts the cited by the Commission periods of 24 hours in brackets after the word ‘days’, thus making sure that this clarification applies only to the hypothesis of a competition, interview or medical examination that takes more than a single day. I claim that the legislator included this clarification for the following two reasons:

·         First and foremost, as a prerequisite to limit the payment of daily allowance only to the minimal number of days actually needed by the candidate to finish the competition, etc., and no more days (eg no allowance will be paid to the candidate to stay additional couple of days for sightseeing, etc.).

·         Second, in view of the fact that, unlike in other languages (eg in Bulgarian: денонощие, in Russian: сутки), in the English language there is no word describing specifically a complete day-night cycle (24-hr cycle), and in English the word ‘day’ may be used to describe several very different concepts according to the context – for an example see the word’s definition in the Merriam-Webster Online Dictionary:[41]

 

day

1 a: the time of light between one night and the next b: daylight 1 c: daytime;

2: the period of rotation of a planet (as earth) or a moon on its axis;

3: the mean solar day of 24 hours beginning at mean midnight;

4: a specified day or date.

 

c)    The above claims are further confirmed by the following provision of the Rules:

Candidates who, after the competition, interview or medical examination, cannot return to the place specified in the invitation before midnight shall be entitled to an additional allowance of EUR 50.’ The following major conclusions can be drawn from this provision:

·         midnight is the borderline of the day of the competition, etc., for which the flat rate allowance of EUR 50 is due;

·         based on the above conclusion and taking into consideration the second sentence of Article 8 (3) and the meanings of the word ‘day’ it can be further concluded that for the purpose of the Rules a ‘day’ means ‘the mean solar day of 24 hours beginning at mean midnight’ (as defined by the Merriam-Webster Online Dictionary);

·         candidates can be able to return to the place specified in the invitation before midnight after the competition, etc. (eg at 23:59), which can also involve night travelling;

·         an additional daily allowance of EUR 50 shall be paid to those candidates who cannot return to the place specified in the invitation before midnight after the event, ie to those candidates who, for some reasons (eg logistical – no train or plane connection to the place specified in someone’s invitation after the competition, etc., or the respective transportations means arrives at its final destination after midnight), cannot arrive back at the specified location on the day of the competition, etc., and begin a new day away from the place specified in the invitation.

 

The described cumulative effect is illustrated in the following figure:

 

 

Figure 6. Cumulative effect of the number of days on the daily allowance.

 

As it is clear from the above analysis, the paragraph in question is not a formal requirement that the competition, etc., take at least 24 hours in order for the applicant to be eligible for reimbursement of the EUR 50 daily allowance.

 

Furthermore, it is also not a formal requirement that the applicant stays at a hotel in order to receive either the single or the double daily allowance – the only eligibility criterion is midnight after the competition, etc.

 

Therefore, this paper argues that the Commission’s interpretation of Article 8 is manifestly incorrect.

 

A further analysis of Article 8 (3) of the Rules reveals that the article itself states that the daily allowance ‘shall also cover expenses incurred as a result of the need to spend a night at the place where the competition, interview or medical examination is held’. I argue that the legislator included this statement in order to make certain that it is in fact not the daily allowance’s main objective (purpose) to cover hotel accommodation while at the same time providing for limited financial support to those candidates who would need to spend a night at the place where the competition, etc., is held.

The above argument is further supported by the fact that the legislator has provided candidates who would need to spend a night at a place that is not the place specified in the invitation with ‘an additional allowance of EUR 50’ in order to cover their associated expenses.

 

The above analysis confirms my claim that the flat-rate allowance of EUR 50 per day is due for the day or, in the case of more than one day, for every day spent on the competition, etc., and related travel from the day of the candidate’s departure for the competition, etc., until the day that the candidate has returned to the place specified in the invitation, where for the purpose of the Rules a ‘day’ means ‘the mean solar day of 24 hours beginning at mean midnight’ (see bullet c) above).

 

Further to the above and having in mind that the logic of legal acts follows the structure of the act (unless stated otherwise by the act itself), it concludes that, since the eligibility-amount criterion, which, as already mentioned, does not itself set any requirement as of the duration of the competition, etc., is set out in a separate sentence that precedes the sentence treating the additional allowance criterion, the first criterion outweighs the second one and the EUR 50 daily allowance is due in all cases.

 

 

Method 2

For the purpose of an academic exercise aimed to demonstrate in a different way the incorrectness of the Commission’s interpretation of the Rules, I will accept purely hypothetically that there is some dependence of the flat-rate allowance from the third category listed above on (i) the duration of the competition, etc., and (ii) the need for an applicant to spend a night at the place where the event is held. However, even if that would have been the case, as Figure 5 above clearly shows, applicants falling within this category who have been able to return to the place specified in the invitation before midnight within a single day should have the right to receive at least EUR 25 – the amount to which applicant from the second category, for whom no spending of the night away from the place specified in the invitation is even envisaged, are entitled. Yet, the Commission’s interpretation of the Rules deprives applicants from the third category who have been able to return to the place specified in the invitation before midnight within a single day of any daily allowance, thus in fact discriminating against these applicants.

Again, this is not the case and the Rules clearly entitle all applicants from the third category to a flat-rate daily allowance of EUR 50 even in cases where the competition, etc., took only a single day.

 

 

Conclusion

The above analysis of the Rules clearly demonstrates that the Ombudsman’s decision not to open an enquiry into the illegal withholding of the subsistence expenses reimbursement is not based on legal provisions but relies entirely on the Commission’s misinterpretation of the Rules.

 



[1] Court of Auditors, ‘Annual Reports concerning the financial year 2007’, (2008) Official Journal of the European Union C 286 259.

[2] European Parliament, ‘European Parliament Decision of 23 April 2009 on discharge in respect of the implementation of the European Union general budget for the financial year 2007, Section VIII – European Ombudsman (C6-0423/2008 – 2008/2282(DEC))’ (2009) Available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0263&language=EN&ring=A6-2009-0156, accessed May 12, 2009.

[3] European Ombudsman’s web site: http://www.ombudsman.europa.eu/start.faces, accessed January 17, 2009.

[4] R. Rawlings, ‘Engaged Elites: Citizen Action and Institutional Attitude in Commission Enforcement’ (2000) 6 European Law Journal 4.

[5] Shepherd and Wedderburn LLP, ‘The European Ombudsman: Potential for a Competition Role’ (2007) E-Bulletin Feb 6, 2007. Available at http://www.shepwedd.com/knowledge/article/698-1199/the-european-ombudsman-potential-for-a-competition-role/archive/?page=2, accessed June 23, 2009.

[6] F. Fowlie, ‘A Practitioner’s Guide to Evaluating Ombudsman Offices’ (2008) International Ombudsman Institute: Occasional Paper No 83.

[7] House of Commons, ‘Memorandum from the Local Government Ombudsmen’ (2007) Available at http://www.publications.parliament.uk/pa/cm200708/cmselect/cmpubadm/408/408we46.htm, accessed June 23, 2009.

[8] Research Randomizer web site: http://www.randomizer.org/, accessed January 16, 2009.

[9] European Parliament, ‘Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (94/262/ECSC, EC, Euratom)’ (1994) Official Journal of the European Communities L 113 15.

[10] European Parliament, ‘Decision of the European Parliament of 14 March 2002 amending Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties (2002/262/EC, ECSC, Euratom)’ (2002) Official Journal of the European Communities L 92 13.

[11] European Parliament, ‘Decision of the European Parliament of 18 June 2008 amending Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions governing the performance of the Ombudsman’s duties (2008/587/EC, Euratom)’ (2008) Official Journal of the European Union L 189 25.

[12] EUR-Lex web site: http://eur-lex.europa.eu/, accessed May 12, 2009.

[13] European Commission, ‘General Report on the Activities of the European Union – 2003’ (2004). Available at http://europa.eu/generalreport/en/2003/index.htm, accessed January 19, 2009.

[14] European Commission, ‘General Report on the Activities of the European Union – 2004: Technical annex’ (2005) Brussels, Luxembourg. ISBN 92-894-8756-9. Available at http://europa.eu/generalreport/en/2004/somm000.htm, accessed January 19, 2009.

[15] European Commission, ‘General Report on the Activities of the European Union – 2005’ (2006) Brussels, Luxembourg. ISBN 92-79-00591-X. Available at http://europa.eu/generalreport/en/rg2005.pdf, accessed January 19, 2009.

[16]  European Commission, ‘General Report on the Activities of the European Union – 2006’ (2007b) Brussels, Luxembourg. ISBN 92-79-02100-1. Available at http://europa.eu/generalreport/en/rg2006en.pdf, accessed January 19, 2009.

[17] European Commission, ‘General Report on the Activities of the European Union – 2007’ (2008) Brussels, Luxembourg. ISBN 978-92-79-07102-7. Available at http://europa.eu/generalreport/en/rg2007en.pdf, accessed January 19, 2009.

[18] European Commission, ‘General Report on the Activities of the European Union – 2008’ (2009) Brussels, Luxembourg. ISBN 978-92-79-10131-1. Available at http://europa.eu/generalreport/en/rg2008en.pdf, accessed May 10, 2009.

[19] European Ombudsman, ‘Decision of the European Ombudsman adopting implementing provisions’ (2008). Available on the web: URL: http://www.ombudsman.europa.eu/resources/provisions.faces, accessed January 17, 2009.

[20] Svensmark, H. and N. Calder, The Chilling Stars – A Cosmic View of Climate Change (Icon Books Ltd., 2008) 1.

[21] European Ombudsman, ‘Reply 054384 to Complaint 336/2008/DK’ (2008).

[22] Article 4 of the decision explicitly states that ‘Any appeal in [areas of requests and complaints relating to the exercise of the powers conferred under Article 2(1) and (2) of this Decision] shall be made against the Commission’.

[23] European Parliament, Council of the European Union, European Commission, Court of Justice, Court of Auditors, Economic and Social Committee, Committee of the Regions, European Ombudsman, ‘Decision of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing a European Communities Personnel Selection Office (2002/620/EC)’ (2002) Official Journal of the European Communities L 197 53. Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:197:0053:0054:EN:PDF, accessed January 19, 2009.

[24] EU Whoiswho directory: http://europa.eu/whoiswho/public/index.cfm?fuseaction=idea.hierarchy&nodeid=10, accessed June 09, 2009.

[25] ie the European Parliament, the European Council and the European Commission.

[26] Case T290/08 AJ, Apostolov v European Ombudsman, decision of 15 December 2008. Available at http://curia.europa.eu/jcms/jcms/Jo1_6308/ecran-d-accueil, accessed May 11, 2009.

[27] For full details see Complaint 336/2008/DK.

[28] European Commission, ‘ADMIN.A.4/VB/ch D(2007) 24455 Invitation for an interview for the selection of temporary agents COM/TA/ENV/07/07-AD5’ (2007).

[29] F. Augendre, ‘Reply to complaint about incomplete reimbursement for a participation in an interview for the selection of temporary agents COM/TA/ENV/07/07-AD5’ (2008). [Personal communication].

[30] S. Apostolov, ‘Complaint to the European Ombudsman about maladministration by the European Commission (336/2008/DK)’ (2008).

[31] European Ombudsman, ‘Letter 054384 – Reply to Complaint 336/2008/DK’ (2008).

[32] S. Apostolov, ‘Request to the European Ombudsman to revise his decision No 054384 and to provide definition of terms’ (2008).

[33] S. Apostolov, ‘Request to the European Ombudsman to revise his decision No 054384 and to provide definition of terms’ (2008).

[34] European Ombudsman, ‘Letter 055675 – Reply to Request to the European Ombudsman to revise his decision No 054384 and to provide definition of terms’ (2008).

[35] European Ombudsman, ‘Decision of the European Ombudsman adopting implementing provisions’ (2008). Available at http://www.ombudsman.europa.eu/resources/provisions.faces, accessed January 17, 2009.

[36] European Ombudsman, ‘Reply to requests to see the Ombudsman’s file on Complaint 336/2008/DK’ (2008). [Personal communication].

[37] European Ombudsman, ‘Letter 055675 – Reply to Request to the European Ombudsman to revise his decision No 054384 and to provide definition of terms’ (2008).

[38] Article 8 of the Rules reads:

‘Article 8

1. Where the distance between the place of residence and the place where the competition, interview or medical examination is held is 50 km or less, no contribution to subsistence expenses shall be made.

2. Where the distance between the place of residence and the place where the competition, interview or medical examination is held is more than 50 km but not more than 150 km, a flat rate contribution of EUR 25 shall be made.

3. Where the distance between the place of residence and the place where the competition, interview or medical examination is held is more than 150 km, a flat rate daily allowance of EUR 50 shall be granted.

The flat rate daily allowance of EUR 50 shall be granted exclusively for the day or days (ie periods of 24 hours) taken up by the competition, interview or medical examination.

It shall also cover expenses incurred as a result of the need to spend a night at the place where the competition, interview or medical examination is held. Candidates who, after the competition, interview or medical examination, cannot return to the place specified in the invitation before midnight shall be entitled to an additional allowance of EUR 50.

4. Candidates shall be entitled to reimbursement of the most economical air fare (on production of the ticket) and to a daily allowance of EUR 50 for each period of 24 hours which they are obliged by the conditions governing the purchase of the most economical air fare to remain at the place where the competition, interview or medical examination is held, provided that the total cost is less than the sum of the most economical standard return air fare and the normal subsistence allowance.’

[39] F. Augendre, ‘Reply to complaint about incomplete reimbursement for a participation in an interview for the selection of temporary agents COM/TA/ENV/07/07-AD5’ (2008). [Personal communication].

[40] European Commission, ‘D(09)207 Comments by the Commission on a request for information from the European Ombudsman – Complaint by Mr Svetoslav Apostolov, ref. 2851/2008/TN’ (2009).

[41] Merriam-Webster Online Dictionary: http://www.merriam-webster.com/dictionary/day, accessed May 20, 2009.

 

 

 

 

 

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