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Decision of the European Ombudsman on complaint 1075/2001/SM against the European Commission
Decision
Case 1075/2001/SM - Opened on Tuesday | 18 September 2001 - Decision on Thursday | 14 November 2002
Dear Mr N.,
On 20 July 2001, you made a complaint to the European Ombudsman concerning an alleged failure by the Commission to pay you costs due to you within a reasonable period and a failure to reply to your letter of 28 February 2001.
On 18 September 2001, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 5 December 2001. I forwarded it to you with an invitation to make observations, which you sent on 31 January 2002.
On 30 April 2002, I wrote to the Commission in order to propose a friendly solution. The Commission sent its opinion on 11 July 2002, and I forwarded it to you on 25 July 2002 with an invitation to make observations, if you so wished. On 25 August 2002 you sent me your observations on the Commission's opinion.
I am writing now to let you know the results of the inquiries that have been made.
THE COMPLAINT
The complainant worked with the Commission from 1971 to 1981. In 1994, he applied for the recognition of an occupational disease under Article 73 of the Staff Regulations for officials in the European Communities. He considered that his poor health status was due to exposure to asbestos in the Commission's Berlaymont building and claimed proper compensation. Following rejection of his request for recognition of an occupational disease, the complainant brought an action before the Court of First Instance (the CFI), case T-27/98.
On 15 December 1999, the CFI ruled that the decision of the Commission based on the opinion of an ad hoc Medical Committee was flawed and inadequately reasoned. The court therefore annulled the decision and ordered the Commission to pay the legal costs of the complainant. On 24 January 2001, the Commission paid the complainant the amount of BEF 489,590.-.
On 28 February 2001 the complainant wrote to the Commission requesting interest on account of late payment of the legal expenses and reimbursement of additional legal costs incurred as a result of the late payment in the amount of BEF 34,293.-.
The complainant alleges that the Commission failed to pay him the costs due to him within a reasonable period and failed to reply to his letter of 28 February 2001.
The complainant claims that the commission should pay interest on account of late payment and reimburse additional costs incurred for legal services in the amount of BEF 34,293.-(i.e. interest, BEF 12,545.- and legal fees, BEF 21,748.-).
THE INQUIRY
The Commission's opinionIn its opinion, the Commission made the following comments:
Following a re-examination of the complainant's file, the Commission admitted that part of the delay, that is between February and October 2000, could have been avoided and that it was therefore ready to compensate the complainant accordingly. However, it considered that it should not compensate the complainant for two following periods: between December 1999 and February 2000; and between October 2000 and January 2001. The Commission explained that the complainant sent his invoice on 2 February 2000, which is why the period between December 1999 and February 2000 should not be considered. It also pointed out that between October 2000 and January 2001 the amount recoverable was being negotiated. This period should therefore not be taken into account either.
The Commission received the invoice from the complainant's lawyers on 3 or 4 of February 2000. It noted that the costs and legal fees requested amounted to BEF 493,045.- (that is legal fees, BEF 378,843.- and costs and disbursements BEF 114,202.-). The Commission stated that this amount is above the average cost for a staff case which normally amounts to approximately BEF 250,000.-. The Commission services therefore had to assess whether this above average request could be accepted which took some time. The Commission explained that after a normal period of assessment as to whether the costs were reasonable its Legal Service unfortunately lost sight of the file because of other obligations.
The Commission stated that following a reminder from the complainant's legal advisers, the Commission's services actively had sought to close the file and from October to January 2001 the amount to be paid had been negotiated, as the legal advisers representing the complainant had not accepted the Commission's Legal Service's initial suggestion to reduce the legal fees relating to the court proceedings. The Commission was of the opinion that the length of the period between October 2000 and January 2001 was normal practice during which it had duly verified that the costs recoverable were legitimate.
On 11 October 2000, the Commission's Legal Service had informed the complainant's legal advisors that it considered that part of the legal fees did not relate to the court proceedings and should be deducted from the costs recoverable. It was however ready to pay legal fees amounting to BEF 330,000.- in view of the fact that the costs related to a specific factual background, such as voluminous documentation, translation of documents and an additional written phase before the CFI.
By letter of 30 October 2000 the complainant's legal advisors however maintained the initial amount requested with a slight modification of BEF 3455.-, which related to costs incurred following the judgment and which were therefore not reimbursable. They informed the Commission's Legal Service that in case it did not agree, the CFI would have to decide on the costs. The Legal Service replied by letter of 6 December 2000 and stated that it had to apply its administrative practice in view of other cases for which this individual case could set a precedent but that it considered that it was inappropriate to ask the CFI to decide on the cost recoverable and unnecessarily prolong the decision on payment where the disputed amount relating to legal fees only concerned BEF 48,000.- (difference between BEF 378,843.- and BEF 330,000.-). Therefore, whilst stressing that the case would not constitute a precedent for future court cases and that the only reason for accepting being the insignificance of the disputed amount, it accepted to pay the amount requested of legal fees, BEF 378,843.- . In January 2001, the complainant received payment of the total amount agreed on (that is BEF 489,590.-).
As regards the claim for interest on account of late payment, the Commission stated that it did not accept the claimed interest of BEF 12,545.- but was ready to compensate the complainant for the period between February and the beginning of October 2000, that is eight months, and pay interest on account of late payment in the amount of BEF 8,364 to the complainant, applying the method of calculation of the complainant (BEF 12,545.- x 8 months/12 months = BEF 8,364.-).
Regarding the claimed additional legal fees incurred, the Commission took the view that it would not compensate the complainant, as these were incurred after the judgment and therefore were not linked to the procedural costs incurred.
The Commission finally pointed out that it answered the complainant's letter of 28 February 2001 by letter of 5 March 2001 in which it had explained its position in the light of the Community case law in staff cases and in accordance with the principle of sound financial management of public funds.
The complainant's observationsIn his observations, the complainant maintained his complaint.
THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION
The issues in dispute between the Commission and the complainantAfter careful consideration of the opinion and observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's claims. As regards the period of delay for which interest should be paid, the Ombudsman considered that the Commission had not shown that it acted as promptly as possible to conclude the matter when it discovered that it had lost track of the complainant's file. He also considered that it was reasonable for the complainant, faced with the delay in handling his file, to instruct his legal advisers to act so as to obtain the outstanding payment. The Ombudsman therefore asked the Commission to consider paying the additional legal expenses as compensation to the complainant.
The possibility of a friendly solutionOn 30 April 2002, the Ombudsman submitted a proposal for a friendly solution to the Commission. In his letter, the Ombudsman suggested that the Commission should: 1) reconsider the period for which it is ready to pay interest on account of late payment; and 2) consider paying the additional legal expenses as compensation to the complainant for the consequences of its maladministration.
In its second opinion of 11 July 2002, the Commission stated in summary the following:
Firstly, as regards the period from October 2000 to December 2000, the Commission pointed out that its Legal Service, after having received a reminder, had apologised to the complainant's lawyers in an e-mail of 10 October 2000 and had immediately taken up the case again. It had sought to conclude the matter amicably and therefore made a proposal. Only when that proposal had been rejected and after having studied the terms of the letter rejecting it, the Legal Service had considered whether it was necessary to ask the CFI to determine the amount recoverable. It in the end considered that it was not, and agreed to pay the amount requested.
As regards the period from December 2000 to January 2001, it explained that the letter of 6 December 2000 from its Legal Service to the complainant's lawyers shows that from 6 December 2000 it was clear that there was no longer a dispute. In this letter, the Legal Service informed the lawyers that it had decided not to contest the bill. It then submitted the bill for payment on 11 December 2000 and informed the complainant's lawyers on 15 December 2000 that it had done so. The payment was made shortly thereafter by early January 2001.
Secondly, as to whether the Commission would consider paying the additional legal expenses as compensation to the complainant for the consequences of its maladministration, the Commission pointed out that compensating for delay is one thing, calculating the amount of recoverable costs is another. The Commission considered in this regard that the additional expenditure of BEF 21,748.- did not result from the initial delay, as the amount claimed only referred to services provided between 27 September and 31 December 2000 according to a letter of 10 January 2001 from the complainant's lawyers to the complainant. In the Commission's view, only one letter out of several during this period may be described as a reminder, that is the letter of 9 October 2000 from the complainant's lawyers to the Commission's Legal Service. The remainder of the correspondence was a discussion about costs, which according to the Commission, would have occurred anyhow, irrespective of the initial delay. The Commission therefore concluded that according to the complainant's own documents, the sum of BEF 21,748.- did not result from the delay. It however stated that in addition to the sum of BEF 8,364.-, it was ready to pay the estimated cost of the reminder, the letter of 9 October 2000, in the amount of BEF 2,500.- to the complainant.
In his observations of 25 August 2002, the complainant maintained his initial position. He disagreed with the Commission's claim that the 'dispute' regarding the amount recoverable was solved in the letter of 6 December 2000 from the Commission's Legal Service to his legal advisors. He also considered that, contrary to what the Commission had said, the payment of the amount due was not made by early January 2001 and that several reminders had been sent to the Commission. The complainant finally rejected the Commission's conclusions and maintained that only the Ombudsman's initial finding of an instance of maladministration was acceptable to him.
In these circumstances, the Ombudsman considered that a friendly solution has not been achieved.
THE DECISION
1 Alleged failure to reply to letter of 28 February 20011.1 The complainant alleges that the Commission failed to reply to his letter of 28 February 2001 in which he requested compensation in the form of interest on account of late payment and additional legal costs incurred because of the delay.
1.2 The Commission informs the Ombudsman that it replied to the complainant's letter of 28 February 2001 by a letter sent on 5 March 2001 in which it set out the reasons for which it considered that the amount claimed was not acceptable to it.
1.3 The Ombudsman notes that the Commission has submitted a copy of the letter of 5 March 2001 to which it referred. In these circumstances, there appears to be no maladministration by the Commission as regards this aspect of the complaint.
2 Alleged unnecessary delay and claimed interest on account of late payment2.1 The complainant alleges that there was an unnecessary delay as it took the Commission thirteen months, from 15 December 1999 (date of the court judgment) to 24 January 2001 (date of payment of the legal costs recoverable) to pay him the legal costs following the Court of First instance judgment in the staff case T-27/98. He claims interest in the amount of BEF 12,545.- on account of late payment.
2.2 The Commission admits that there was a delay of eight months, from the beginning of February 2000 to the beginning of October 2000, for which it is responsible. It informs the Ombudsman that it is ready to compensate the complainant for this period, that is eight months instead of the thirteen months claimed by the complainant, in the amount of BEF 8,364.-.
2.3 The Ombudsman notes that the Commission admits that there was unnecessary delay caused by its Legal Service losing track of the file. It is also noted that the Commission offers to compensate the complainant for this delay and pay an amount of BEF 8,364.- to the complainant. In the Ombudsman's view, the Commission's proposal appears reasonable.
2.4 In his proposal for a friendly solution, the Ombudsman considered that the Commission should have acted as promptly as possible to conclude the matter when it became aware of the delay, but that the Commission had not shown that it had done so. The Ombudsman therefore proposed a friendly solution regarding this aspect of the complaint.
2.5 The Ombudsman however notes that the Commission has since provided a more detailed explanation of its procedure. It is also noted that the Commission started dealing with the matter as soon as it was alerted to the delay and that it apologised for the latter. It is moreover noted that it first queried the amount claimed by the complainant which it apparently was entitled to do. It then accepted to pay this amount, without agreeing that the amount was due, within a period of two months, which is reasonably fast. The Ombudsman therefore considers that the Commission has shown that it has dealt with the matter without delay after it had been notified of the omission. In these circumstances, there appears to be no maladministration by the Commission as regards this aspect of the complaint.
3 Claim for additional legal costs incurred3.1 The complainant claims that he is entitled to payment of additional legal costs in the amount of BEF 21,748.- incurred because of the late payment by the Commission.
3.2 The Commission argues that the additional costs incurred for legal fees should not be reimbursed as these took place after the judgment and are therefore not linked to the procedural costs normally recoverable in accordance with the Commission's administrative practice and the Community case law in staff cases.
3.3 In his proposal for a friendly solution, the Ombudsman asked the Commission to consider paying the additional legal expenses as compensation to the complainant for the consequences of its maladministration in view of the fact that the Commission has accepted that there was a delay on its part. He considered that it was reasonable for the complainant, faced with this delay, to instruct his legal advisers to act so as to obtain the outstanding payment. The Ombudsman's provisional view, therefore, was that the expenditure was incurred by the complainant as a result of the maladministration by the Commission.
3.4 The Ombudsman notes that the Commission claims that it should only bear costs that are due to its delay but that it should not bear costs related the remainder of the correspondence concerning the cost negotiations between 10 October and 6 December 2000. In the Commission's view, this correspondence between its Legal Service and the complainant's legal advisors would have occurred irrespective of the initial delay. It is also noted that the Commission offers to pay for the reminder sent on 9 October 2000 by the complainant's legal advisors due to the delay. The Ombudsman considers that the complainant has not shown that the rest of his costs claimed was due to the delay. In the light of this, the Ombudsman takes the view that the Commission's explanation appears reasonable and that the Commission has taken a step in the right direction to settle the issue at dispute in the present case. In these circumstances, there appears to be no maladministration by the Commission as regards this aspect of the complaint.
4 ConclusionOn the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.
The President of the Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN
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