September 15, 2009
The Subsistence Expenses Deceit
In an age of universal deceit, telling the truth is a revolutionary act.
Note to the reader: Some attachments have been omitted or replaced by blank forms in the present entry and personal data have been removed out of personal privacy considerations.
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 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’) (European Commission 2007).
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 (Augendre 2008). Using two different methods, in the next sections I will prove that the EC attempted to deceive me into thinking I was not entitled to that part of the reimbursement.
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 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 1 below.
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’ (Augendre 2008) 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 (European Commission 2009) 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 (e.g. 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 (e.g. 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:
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. (e.g. 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, i.e. to those candidates who, for some reasons (e.g. 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:
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.
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 1 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.
The above analysis of the Rules clearly demonstrates that the European Commission’s explanation as to why it had initially decided to withhold the subsistence expenses reimbursement is merely an attempted deceit. For the sake of objectivity I must note that more than ten months after the interview the EC finally paid me the subsistence expenses; nevertheless, the Commission continued to sustain its deceptive interpretation of the Rules (European Commission 2009; see also Apostolov 2009).
 For full details see Apostolov 2008.
Apostolov, S. 2008. Complaint 336/2008/DK.
Available online: http://spapostolov.blogactiv.eu/files/2009/09/complaint_336-2008-dk.pdf (site last accessed on 15.09.2009).
Apostolov, S. 2009. Observations on the opinion of the European Commission concerning Complaint 2851/2008/TN.
Available online: http://spapostolov.blogactiv.eu/files/2009/09/observations_on_ecs_opinion.pdf (site last accessed on 15.09.2009).
Augendre, F. 2008. Reply to complaint about incomplete reimbursement for a participation in an interview for the selection of temporary agents COM/TA/ENV/07/07-AD5.
Available online: http://spapostolov.blogactiv.eu/files/2009/09/attachment13_augendre-re-complaint_reimburs.pdf (site last accessed on 15.09.2009).
European Commission. 2007. ADMIN.A.4/VB/ch D(2007) 24455 Invitation for an interview for the selection of temporary agents COM/TA/ENV/07/07-AD5.
European Commission. 2009. 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.
Available online: http://spapostolov.blogactiv.eu/files/2009/09/ecs_opinion_complaint-2851-2008.pdf (site last accessed on 15.09.2009).
Merriam-Webster Online Dictionary: http://www.merriam-webster.com/dictionary/day (site last accessed on 20.05.2009).
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Author : spapostolov